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diff --git a/75266-h/75266-h.htm b/75266-h/75266-h.htm new file mode 100644 index 0000000..b75bc24 --- /dev/null +++ b/75266-h/75266-h.htm @@ -0,0 +1,27107 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> +<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> + <head> + <meta http-equiv="Content-Type" content="text/html;charset=utf-8" /> + <title>The Distributed Proofreaders Canada eBook of Trial of the Major War Criminals Before the International Military Tribunal Vol. 18 by Various</title> + <link rel="coverpage" href="images/cover.jpg"/> + <meta name="cover" content="images/cover.jpg" /> + <meta name="DC.Title" content="Trial of the Major War Criminals Before the International Military Tribunal Vol. 18 (Blue Series #18)"/> + <meta name="DC.Creator" content="Various"/> + <meta name="DC.Language" content="en"/> + <meta name="DC.Created" content="1948"/> + <meta name="DC.Subject" content="Law"/> + <meta name="DC.date.issued" content="1948"/> + <meta name="Tags" content="World War II, Germany, law, non-fiction, Nuremberg, Nuernburg"/> + <meta name="DC.Publisher" content="Distributed Proofreaders Canada"/> + <meta name="generator" content="fpgen 4.67"/> + <meta name="Series" content="The Blue Series [18]"/> + <style type="text/css"> + .footnote-id { + text-indent:1.5em; + vertical-align:super; + font-size:smaller; + } + body { margin-left:8%;margin-right:10%; } + .pageno { right: 1%; font-size: x-small; background-color: inherit; color: silver; + text-indent: 0em; text-align: right; position: absolute; + border:1px solid silver; padding:1px 3px; font-style:normal; + font-variant: normal; font-weight: normal; text-decoration:none; } + .pageno:after { color: gray; content: attr(title); } + .it { font-style:italic; } + .gesp { letter-spacing:0.2em; } + p { text-indent:0; margin-top:0.5em; margin-bottom:0.5em; + text-align: justify; } + div.lgc { } + div.lgc p { text-align:center; 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text-align:left; vertical-align:top;padding-left:29px; text-indent:-24px; + } + .tdStyle3 { + padding: 0px 5px; text-align:left; vertical-align:top; + } + .tdStyle4 { + padding: 0px 5px; text-align:left; vertical-align:bottom; + } + .pindent { margin-top:0; margin-bottom:0; text-indent:1.5em; } + .noindent { margin-top:0; margin-bottom:0; text-indent:0; } + .hang { padding-left:1.5em; text-indent:-1.5em; } + .listTag { + padding-right:.5em; + text-align:right; + display:table-cell; + } + .listPara { + display:table-cell; + } + .listEntry { + display:table-row; + } + + .literal-container { text-align:center; margin:0 0; } + .literal { display:inline-block; text-align:left; } + </style> + <style type="text/css"> + h1 {font-size:1.2em; text-align:center; line-height:150%; + margin-top:4em; word-spacing:.2em;} + h2 {font-size:1.2em; text-align:center; word-spacing:.2em; + margin-bottom:1em;} + h3 {font-size:1em; text-align:center; margin-bottom:1em; + margin-top:1em;} + .literal-container { margin-top:.5em; margin-bottom:.5em } + div.lgc { margin-top:.5em; margin-bottom:.5em } + p { text-indent:0; margin-top:0.5em; margin-bottom:0.5em; + text-align: justify; } + div.blockquote { margin-top:.5em; margin-bottom:.5em; } + .pindent {margin-top: 0.2em; margin-bottom: 0em; text-indent:2em; } + body { margin-left:8%; margin-right:10%;} + hr.pbk { width:50%; visibility:hidden; } + .fs { font-size:.8em; } + </style> + </head> + <body> +<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 75266 ***</div> +<div class='figcenter' style='width:80%'> +<img src='images/cover.jpg' alt='blue cover' id='iid-0000' style='width:100%;height:auto;'/> +</div> + +<hr class='pbk'/> + +<div class='lgc' style=''> <!-- rend=';' --> +<p class='line' style='margin-top:2em;font-size:1.5em;'>TRIAL</p> +<p class='line' style='margin-top:.2em;margin-bottom:.2em;font-size:.7em;'>OF</p> +<p class='line' style='font-size:1.5em;'>THE MAJOR WAR CRIMINALS</p> +<p class='line'> </p> +<p class='line' style='font-size:.7em;'>BEFORE</p> +<p class='line'> </p> +<p class='line' style='font-size:1.2em;'>THE INTERNATIONAL</p> +<p class='line' style='font-size:1.2em;'>MILITARY TRIBUNAL</p> +<p class='line'> </p> +<p class='line' style='font-size:.7em;'><span class='gesp'>NUREMBERG</span></p> +<p class='line' style='margin-top:.2em;margin-bottom:2em;font-size:.7em;'>14 NOVEMBER 1945—1 OCTOBER 1946</p> +<p class='line'> </p> +<p class='line'> </p> +<div class='figcenter'> +<img src='images/title.jpg' alt='logo' id='iid-0001' style='width:80px;height:auto;'/> +</div> +<p class='line'> </p> +<p class='line'> </p> +<p class='line' style='margin-top:4em;font-size:.7em;'><span class='gesp'>PUBLISHED AT NUREMBERG, GERMANY</span></p> +<p class='line' style='margin-top:.2em;font-size:.7em;'><span class='gesp'>1948</span></p> +</div> <!-- end rend --> + +<hr class='pbk'/> + +<div class='literal-container' style='margin-top:4em;margin-bottom:20em;'><div class='literal'> <!-- rend=';fs:.8em;' --> +<p class='line' style='font-size:.8em;'>This volume is published in accordance with the</p> +<p class='line' style='font-size:.8em;'>direction of the International Military Tribunal by</p> +<p class='line' style='font-size:.8em;'>the Secretariat of the Tribunal, under the jurisdiction</p> +<p class='line' style='font-size:.8em;'>of the Allied Control Authority for Germany.</p> +</div></div> <!-- end rend --> + +<hr class='pbk'/> + +<div class='lgc' style='margin-top:8em;margin-bottom:4em;'> <!-- rend=';' --> +<p class='line'>VOLUME XVIII</p> +<p class='line'> </p> +<p class='line'> </p> +<hr class='tbk100'/> +<p class='line'> </p> +<p class='line' style='font-size:1.2em;'><span class='gesp'>OFFICIAL TEXT</span></p> +<p class='line'> </p> +<p class='line' style='font-size:.8em;'><span class='gesp'>IN THE</span></p> +<p class='line'> </p> +<p class='line' style='font-size:1.2em;'>ENGLISH LANGUAGE</p> +<p class='line'> </p> +<hr class='tbk101'/> +<p class='line'> </p> +<p class='line'> </p> +<p class='line' style='font-size:1.2em;'><span class='gesp'>PROCEEDINGS</span></p> +<p class='line'> </p> +<p class='line' style='font-size:.8em;'>9 July 1946—18 July 1946</p> +</div> <!-- end rend --> + +<hr class='pbk'/> + +<table id='tab1' summary='' class='center'> +<colgroup> +<col span='1' style='width: 6em;'/> +<col span='1' style='width: 22.5em;'/> +<col span='1' style='width: 2.5em;'/> +</colgroup> +<tr><td class='tab1c1 tab1c1-col2 tdStyle0' colspan='2'><span style='font-size:larger'>CONTENTS</span></td><td class='tab1c3 tdStyle1'></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'></td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'></td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-fourth Day, Tuesday, 9 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_1'>1</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_48'>48</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-fifth Day, Wednesday, 10 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_89'>89</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-sixth Day, Thursday, 11 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_129'>129</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_164'>164</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-seventh Day, Friday, 12 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_193'>193</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_227'>227</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-eighth Day, Monday, 15 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_253'>253</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_287'>287</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Seventy-ninth Day, Tuesday, 16 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_325'>325</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_364'>364</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Eightieth Day, Wednesday, 17 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_403'>403</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'> </td><td class='tab1c3 tdStyle1'> </td></tr> +<tr><td class='tab1c1 tab1c1-col3 tdStyle2' colspan='3'>One Hundred and Eighty-first Day, Thursday, 18 July 1946,</td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Morning Session</td><td class='tab1c3 tdStyle1'><a href='#Page_442'>442</a></td></tr> +<tr><td class='tab1c1 tdStyle2'></td><td class='tab1c2 tdStyle3'>Afternoon Session</td><td class='tab1c3 tdStyle1'><a href='#Page_468'>468</a></td></tr> +</table> + +<hr class='pbk'/> + +<div class='blockquote'> + +<p>Editor’s Note: <span class='it'>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.</span></p> + +</div> + +<hr class='pbk'/> + +<div><span class='pageno' title='1' id='Page_1'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-FOURTH DAY</span><br/> Tuesday, 9 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>MARSHAL (Lieutenant Colonel James R. Gifford): May it please +the Tribunal, the Defendants Hess and Fritzsche are absent.</p> + +<p class='pindent'>THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): I have +an order to read. The Tribunal orders:</p> + +<div class='blockquote'> + +<p>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.</p> + +<p>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.</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='2' id='Page_2'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='3' id='Page_3'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='4' id='Page_4'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>This is a reasoned analysis of Keitel’s attitude toward the so-called +ideologically-based orders of Hitler.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The question of whether these facts relieve the Defendant Keitel +of guilty responsibility requires investigation. Keitel does not deny +<span class='pageno' title='5' id='Page_5'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. NELTE: I have limited it and shall be through by noon.</p> + +<p class='pindent'>THE PRESIDENT: Very well. Do you think it is necessary to +read these passages about metaphysics?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Perhaps I may just read from Page 120 at the bottom.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='6' id='Page_6'></span> +of antiquity and of pre-Christian Germanism to which even the gods are +necessarily subject.</span></p> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>I am now beginning Paragraph 3 on Page 120.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='7' id='Page_7'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>(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.</p> + +<p>(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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='8' id='Page_8'></span> +and in the proper execution of orders concerning the administration +of the war, that is, in the so-called ministerial sector.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>ex contrario</span> 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.</p> + +<p class='pindent'>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. +<span class='pageno' title='9' id='Page_9'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='10' id='Page_10'></span> +single concrete fact referring to the Staff of the OKW—that is, +Keitel—as the perpetrator or instigator of these atrocities.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(1) The document Exhibit USSR-90 is a court-martial sentence against the +German Generals Bernhardt and Hamann, and includes the following sentence:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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....”</span></p> + +</div> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“The defendant, Lieutenant General Bernhardt ... acted according to +plans and instructions of the Commander-in-Chief of the Army ...”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(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.”</span></p> + +<p class='pindent'><span class="fs">The Prosecution’s argument runs that “Keitel writes to Minister Todt ...” +The document which was submitted does not reveal this, because it does not +<span class='pageno' title='11' id='Page_11'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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:</span></p> + +<p class='pindent'><span class="fs">“The Führer.</span></p> + +<p class='pindent'><span class="fs">“OKH: General Staff of the Army Operations Section 1.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">From the large number of documents concerning this I would refer to the +following:</span></p> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">Document USSR-9 bears the heading:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“Report of the Extraordinary State Commission for the determination and +investigation of the atrocities of the Fascist German invaders and the +<span class='pageno' title='12' id='Page_12'></span> +damage caused to citizens, collective enterprises, social organizations, +State plants and institutions of the Soviet Union.</span></p> + +<p><span class="fs">“Regarding the demolitions and bestialities which the German Fascist +invaders have committed in Kiev.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">This document states:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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....”</span></p> + +</div> + +<p class='pindent'><span class="fs">To this it must be stated:</span></p> + +<p class='pindent'><span class="fs">(1) The contents of this document do not show one single concrete “directive” +issued by the OKW or Keitel.</span></p> + +<p class='pindent'><span class="fs">(2) The OKW had no authority to give orders, and therefore could not issue +directives.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(4) No opinion is going to be expressed as to the remaining contents of the +reports.</span></p> + +<p class='pindent'><span class="fs">Document USSR-38 is entitled:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class="fs">In this document it is stated on Page 1:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='noindent'><span class="fs">Page 13 states:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“Responsible for the crimes committed by the Germans at Minsk ... are +the Hitler Government and the High Command of the Armed Forces.”</span></p> + +</div> + +<p class='pindent'><span class="fs">Nowhere in this document have either concrete or verifiable instructions +or orders by the Defendant Keitel or from the OKW been given.</span></p> + +<p class='pindent'>Then, on Page 134, Paragraph 1:</p> + +<p class='pindent'>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 +<span class='pageno' title='13' id='Page_13'></span> +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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='14' id='Page_14'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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).</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class='pageno' title='15' id='Page_15'></span></p> + +<p class='noindent'><span class="fs">The same is shown by Document USSR-10:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='16' id='Page_16'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p><span class="fs">“High Command of the Armed Forces; F. H. Qu., 5 March 1945; Secret.</span></p> + +<p><span class="fs">“WFST./Qu. 2 (I) No. 01487/45 g.</span></p> + +<p><span class="fs">“Subject: Alleged Killing of French Nationals without Trial.</span></p> + +<p><span class="fs">“German Armistice Commission; Group Wa/Ib No. 5/45 g.</span></p> + +<p><span class="fs">“1) German Armistice Commission; 2) Commander-in-chief West.</span></p> + +<p><span class="fs">“Received: 17 March 1945.</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“Handling of this matter calls for the following remarks:</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“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.</span> +<span class='pageno' title='17' id='Page_17'></span></p> + +<p><span class="fs">“For information: Army General Staff (Gen. St. d. H.); Headquarters +Gen./Qu.</span></p> + +<p><span class="fs">“(signed) Keitel.”</span></p> + +</div> + +<p class='pindent'>This document of the OKW, signed by Keitel, shows that:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>2. The German Armistice Commission thereupon instructed +Commander-in-Chief West to investigate the incidents.</p> + +<p class='pindent'>3. On receiving a letter from Army Group B, the OKW expressed +itself as follows:</p> + +<div class='blockquote'> + +<p>“It was in the German interest to answer these charges at +the earliest possible moment.</p> + +<p>“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.</p> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='18' id='Page_18'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">I request the Tribunal, when judging this complex and when examining the +responsibility of the Defendant Keitel, to take into consideration:</span></p> + +<p class='pindent'><span class="fs">(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).</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">(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 +<span class='pageno' title='19' id='Page_19'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='20' id='Page_20'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='21' id='Page_21'></span> +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.</p> + +<p class='pindent'>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 ...”</p> + +<p class='pindent'>The closing sentence runs: “The attached directives ... represent +the Führer’s views.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='22' id='Page_22'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It is evident therefore that Police authorities in the occupied +territories made use of this decree as a universal and unrestricted +<span class='it'>carte blanche</span> for deportations, exceeding every conceivable limit +and disregarding the exclusive rights exercised by the military +authorities and the rules of procedure imposed upon them.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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: +<span class='pageno' title='23' id='Page_23'></span></p> + +<div class='blockquote'> + +<p>“... 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 ...”</p> + +</div> + +<p class='pindent'>Paragraph 4 of that letter contains the following passage:</p> + +<div class='blockquote'> + +<p>“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 ...”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Perhaps this will be a convenient time to take +a recess.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'><span class='pageno' title='24' id='Page_24'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">The Codefendant Sauckel gave the following testimony:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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?</span></p> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“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?</span></p> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">These documents give expression to the relationships and contacts of the GBA +with many offices. These relationships and contacts vary in their nature.</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span> +<span class='pageno' title='25' id='Page_25'></span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(a) In the occupied territories under civil administration (Holland, Norway, +East), it was the Reich Commissioner who had to assist Sauckel.</span></p> + +<p class='pindent'><span class="fs">(b) In the territories under military commanders (France, Belgium and the +Balkans) it was the Quartermaster General of the Army.</span></p> + +<p class='pindent'><span class="fs">(c) In Italy, in the highest instance, it was the Ambassador, Rahn.</span></p> + +<p class='pindent'><span class="fs">This is obvious from the decree of 27 March 1942.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">These “next best” were Keitel, for the military administration of the occupied +territories, or Dr. Lammers, for the territories under civilian administration.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">(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 +<span class='pageno' title='26' id='Page_26'></span> +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.</span></p> + +<p class='pindent'><span class="fs">(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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='noindent'>I quote from the penultimate paragraph:</p> + +<div class='blockquote'> + +<p>“In my opinion the decree should in the first place be sent to +the following offices ...</p> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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. +<span class='pageno' title='27' id='Page_27'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“The following directives will govern the attitude of military +commanders or their representatives:</p> + +<p>“... 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.).”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>This reference to the Führer’s order shortly after 11 July 1944 +shows, as does Warlimont’s statement, that no directives from Keitel +<span class='pageno' title='28' id='Page_28'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In the sphere of labor procurement and labor commitment Keitel +was in contact with Sauckel’s activities at the following points:</p> + +<p class='pindent'>(a) He was cosignatory of the Führer’s decree of 21 March 1942 +concerning the appointment of the GBA;</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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, +<span class='it'>et cetera</span>; (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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='29' id='Page_29'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Prisoner-of-War Question.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The treatment of the responsibility of the Defendant Keitel in +the general complex of the prisoner-of-war system comprises the +following separate problems: +<span class='pageno' title='30' id='Page_30'></span></p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='31' id='Page_31'></span> +on, through a further control agency, the Inspector General of the +Prisoners of War Organization.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Treatment of French Prisoners of War.</p> + +<p class='pindent'>As a result of the agreement of Montoire, the keynote to apply +to relations with French prisoners of war became “collaboration.” +<span class='pageno' title='32' id='Page_32'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>To mention just a few ...</p> + +<p class='pindent'>THE PRESIDENT: Dr. Nelte, is there anything very important +in these next few pages, until you get to Page 183?</p> + +<p class='pindent'>DR. NELTE: It is the treatment of the French ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT: That is what the Tribunal’s order was.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. NELTE: I hope, Mr. President, that that does not mean +that these statements are to be considered irrelevant. I think my +subjective opinions ... +<span class='pageno' title='33' id='Page_33'></span></p> + +<p class='pindent'>THE PRESIDENT: I said “of real importance.”</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.</span></p> + +<p><span class="fs">“I hope that the execution of this decision will be expedited through +this report, which I have the honor to submit to you.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">The Treatment of Soviet Russian Prisoners of War.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='34' id='Page_34'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“Your doubts originate from the soldierly conception of a chivalrous war. +Here we are concerned with the destruction of an ideology.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">What Keitel actually thought is revealed in the excerpt submitted as Document +Keitel-6, Document Book 1, from the book <span class='gesp'>Employment Conditions for +Eastern Workers and Soviet Russian Prisoners of War</span>. 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.</span></p> + +<p class='pindent'><span class="fs">The defense counsel for the Defendant Speer will also deal with this question +in detail.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='35' id='Page_35'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>During his cross-examination, Keitel made the following statement:</p> + +<div class='blockquote'> + +<p>“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 ...’ ”</p> + +</div> + +<p class='pindent'>Keitel says:</p> + +<div class='blockquote'> + +<p>“I have certainly neither signed this order of the OKW nor +seen it; there is no doubt about that.”</p> + +</div> + +<p class='pindent'>He cannot explain it; he can only assume how this order +came to be issued by the Reich Security Main Office.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I pass on to Page 187, where Kaltenbrunner said:</p> + +<div class='blockquote'> + +<p>“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 +<span class='pageno' title='36' id='Page_36'></span> +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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>Now I come to Page 190 of my final plea:</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='noindent'><span class="fs">The last paragraph reads:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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. +<span class='pageno' title='37' id='Page_37'></span></p> + +<p class='pindent'>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, <span class='it'>Mein +Kampf</span>, I have already demonstrated why Keitel did not have this +recognition of a realization by force.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='38' id='Page_38'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>dolus eventualis</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>dolus eventualis</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='39' id='Page_39'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='40' id='Page_40'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: Dr. Kauffmann—yes, go on, Dr. Kauffmann.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='41' id='Page_41'></span> +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?</p> + +<p class='pindent'>Would it not have been better to allow for that very lapse of +time between crime and atonement with regard to the present +proceedings?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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? +<span class='pageno' title='42' id='Page_42'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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 +<span class='pageno' title='43' id='Page_43'></span> +indicted here, who have been termed conspirators, have been the +victims of that carefully devised system of secrecy, or most of them +at least.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='44' id='Page_44'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. KAUFFMANN: In that case may I at least read a few sentences +below the headline with regard to the defense? It starts ...</p> + +<p class='pindent'>THE PRESIDENT: Can you not summarize the general nature +of what you wish to say before you come to the Defendant Kaltenbrunner?</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>These testimonies were certainly made within the framework of +the law, but also within the framework of power.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT: Are you reading now from some part of your +document? +<span class='pageno' title='45' id='Page_45'></span></p> + +<p class='pindent'>DR. KAUFFMANN: I am reading a few sentences, Mr. President. +This is at Page 7 of the German text.</p> + +<p class='pindent'>THE PRESIDENT: Can you not summarize the argument you +are presenting?</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='46' id='Page_46'></span> +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.</p> + +<p class='pindent'>“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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In the <span class='it'>Confessions of a Revolutionary</span> 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 +<span class='pageno' title='47' id='Page_47'></span> +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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Tribunal will now adjourn.</p> + +<h3>[<span class='it'>The Tribunal recessed until 1400 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='48' id='Page_48'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='49' id='Page_49'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='50' id='Page_50'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.’ ”</p> + +</div> + +<p class='pindent'>The witnesses Von Eberstein, Wanneck, and Dr. Hoettl have +expressed themselves in a similar manner. +<span class='pageno' title='51' id='Page_51'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. <span class='it'>Sine ira et studio.</span></p> + +<p class='pindent'>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 +<span class='pageno' title='52' id='Page_52'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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 +<span class='pageno' title='53' id='Page_53'></span> +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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>From the testimony by General Jodl I stress the following +sentences:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='54' id='Page_54'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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?’ ”</p> + +</div> + +<p class='pindent'>And Kaltenbrunner answers:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Thus the duty of the Defense is automatically delineated by +asking the questions: +<span class='pageno' title='55' id='Page_55'></span></p> + +<p class='pindent'>(1) What did Kaltenbrunner do, good and evil, after his appointment +as Chief of the Reich Security Main Office on 1 February 1943?</p> + +<p class='pindent'>(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?</p> + +<p class='pindent'>(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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='56' id='Page_56'></span> +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?</p> + +<p class='pindent'>May I refer to just a few sentences from his interrogations:</p> + +<div class='blockquote'> + +<p>“Question: ‘Did you know that protective custody was at all +permissible and was used frequently?’</p> + +<p>“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.’ ”</p> + +</div> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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 +<span class='pageno' title='57' id='Page_57'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='58' id='Page_58'></span> +longer comes under the authority of human judges and considerations. +Hoess stated:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='59' id='Page_59'></span> +would, however, have been a utopia. On the whole, Kaltenbrunner +was but a small cog in this machinery.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“No, Kaltenbrunner did not issue such orders and could not, +in my opinion, give such orders”—for killing Jews—“on his +own initiative.”</p> + +</div> + +<p class='pindent'>And Wanneck explicitly asserted the following:</p> + +<div class='blockquote'> + +<p>“It is known to me that Himmler personally decided over +life and death and other punishment of inmates of concentration +camps.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='60' id='Page_60'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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 ...”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='61' id='Page_61'></span> +support also the planned Hungarian National Socialist Government +was not set up for a long time.</p> + +<p class='pindent'>Dr. Hoettl then says literally:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='62' id='Page_62'></span> +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:</p> + +<div class='blockquote'> + +<p>“It is correct that Kaltenbrunner issued such an order. He +dictated it in my presence for transmission to the camp +commandant.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='63' id='Page_63'></span> +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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='64' id='Page_64'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='65' id='Page_65'></span></p> + +<p class='pindent'>Wanneck has characterized Kaltenbrunner’s attitude toward the +question of Himmler’s Jewish policy as follows. He says:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“It is the greatest nonsense; all the Jews should be released, +that is my personal opinion.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='66' id='Page_66'></span> +achieve the elimination of evil orders and their execution through +his never-ending resistance and every form of human cunning.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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, <span class='it'>et cetera</span>. 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?’ ”</p> + +</div> + +<p class='pindent'>Kaltenbrunner says:</p> + +<div class='blockquote'> + +<p>“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.</p> + +<p>“Question: ‘And so, did you consider it consistent with your +conscience to remain in spite of this?’</p> + +<p>“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.’ ”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='67' id='Page_67'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='68' id='Page_68'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: The Tribunal will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'><span class='pageno' title='69' id='Page_69'></span></p> + +<p class='pindent'>THE PRESIDENT: Yes, Dr. Thoma.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='70' id='Page_70'></span> +that the struggle of the National Socialists against Bolshevism +meant a preparation for a war of aggression against the U.S.S.R.</p> + +<p class='pindent'>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 <span class='it'>Mein Kampf</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>(1) The military occupation of Romanian territory, namely, +Bessarabia and North Bukovina.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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). +<span class='pageno' title='71' id='Page_71'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(3) To my question about Rosenberg’s influence on Hitler’s +decisions concerning foreign policy, Göring replied before this +Tribunal on 16 March 1946:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>This was also confirmed by the witness Von Neurath on 26 June +1946 in this courtroom.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>Administration in the East.</p> + +<p class='pindent'>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 +<span class='pageno' title='72' id='Page_72'></span> +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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I shall deal later, <span class='it'>de jure</span> and <span class='it'>de facto</span>, 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:</p> + +<p class='pindent'>First, because he allegedly participated in the preparation of +the war of aggression against the Soviet Union; I have already +<span class='pageno' title='73' id='Page_73'></span> +stated that this assertion is not correct; Rosenberg has neither +ideologically nor actually participated in the preparations of the +war of aggression.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='74' id='Page_74'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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). +<span class='pageno' title='75' id='Page_75'></span></p> + +<p class='pindent'>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:</p> + +<table id='tab2' summary='' class='center'> +<colgroup> +<col span='1' style='width: 13em;'/> +<col span='1' style='width: 3em;'/> +<col span='1' style='width: 4em;'/> +</colgroup> +<tr><td class='tab2c1 tdStyle2'>Tractors, 40-50 HP</td><td class='tab2c2 tdStyle4'>about</td><td class='tab2c3 tdStyle1'>7,000</td></tr> +<tr><td class='tab2c1 tdStyle2'>Threshing machines</td><td class='tab2c2 tdStyle4'>about</td><td class='tab2c3 tdStyle1'>5,000</td></tr> +<tr><td class='tab2c1 tdStyle2'>Agricultural implements</td><td class='tab2c2 tdStyle4'>about</td><td class='tab2c3 tdStyle1'>200,000</td></tr> +<tr><td class='tab2c1 tdStyle2'>Gas generators for German and Russian tractors</td><td class='tab2c2 tdStyle4'>about</td><td class='tab2c3 tdStyle1'>24,000</td></tr> +<tr><td class='tab2c1 tdStyle2'>Harvesters</td><td class='tab2c2 tdStyle4'>about</td><td class='tab2c3 tdStyle1'>35,000</td></tr> +<tr><td class='tab2c1 tab2c1-col3 tdStyle2' colspan='3'>Total Cost: about 180,000,000 marks.</td></tr> +</table> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='76' id='Page_76'></span> +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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, “<span class='it'>Le roi règne, mais il ne +<span class='pageno' title='77' id='Page_77'></span> +gouverne pas</span>,” one may define in the following way Rosenberg’s +position as Minister for the Occupied Eastern Territories: “<span class='it'>Le +ministre gouverne, mais il ne règne pas.</span>” 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='78' id='Page_78'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='79' id='Page_79'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Hitler’s ideas tended more and more in the direction of Bormann-Himmler. +The East became the ground for experiments.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='80' id='Page_80'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Koch goes on to say:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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. +<span class='pageno' title='81' id='Page_81'></span> +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!</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>.</p> + +<p class='pindent'>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 +<span class='pageno' title='82' id='Page_82'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='83' id='Page_83'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>On 11 December 1945 Mr. Dodd said:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>And on 8 February 1946 General Rudenko said:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>He wrote to Rosenberg on 3 October 1942 (Document Number +017-PS):</p> + +<div class='blockquote'> + +<p>“The Führer has drawn up new and most urgent armament +programs which require the speediest employment of two +<span class='pageno' title='84' id='Page_84'></span> +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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='noindent'>On that point Sauckel and Rosenberg shared the same opinion.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I come now to the “Central Agency for Nationals of the Eastern +Territories.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">2. Central Office for Nationals of the Eastern Territories.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='85' id='Page_85'></span> +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.</span></p> + +<p class='pindent'>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, <span class='it'>et cetera</span>.</p> + +<p class='pindent'>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 <span class='it'>clichés</span>, he complained +seriously and urgently about the methods used in the employment +of labor. I quote:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='86' id='Page_86'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='87' id='Page_87'></span> +between them and their parents, <span class='it'>et cetera</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='88' id='Page_88'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Would that be a convenient time to +break off?</p> + +<h3>[<span class='it'>The Tribunal adjourned until 10 July 1946 at 1000 hours.</span>]</h3> + +<hr class='pbk'/> + +<div><span class='pageno' title='89' id='Page_89'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-FIFTH DAY</span><br/> Wednesday, 10 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>THE PRESIDENT: The Tribunal will sit in closed session this +afternoon and will not sit in open session after 1 o’clock.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Thus the following principle recognized by international law is +indicated:</p> + +<p class='pindent'>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 <span class='it'>Handbuch des Völkerrechts</span>.</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='90' id='Page_90'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: The Tribunal would like to have any authorities +in international law which you have to cite for that proposition.</p> + +<p class='pindent'>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 <span class='it'>Handbuch des Völkerrechts</span>, published by Stier-Somlo, +and I shall give more quotations.</p> + +<p class='pindent'>THE PRESIDENT: Will you tell me what language that book +is in? +<span class='pageno' title='91' id='Page_91'></span></p> + +<p class='pindent'>DR. THOMA: In German, Mr. President; it is the <span class='it'>Handbuch des +Völkerrechts</span>, published by Stier-Somlo, 1923.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>I refer to Strupp, <span class='it'>Handbuch des Völkerrechts</span>, published by +Stier-Somlo, Stuttgart 1920, Part III, “Violations of International +Law,” Page 128 <span class='it'>et sequentes</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I quote Strupp, as above, Page 172.</p> + +<div class='blockquote'> + +<p>“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.</p> + +<p>“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:</p> + +<p>“ ‘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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='92' id='Page_92'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>Blood and Honor</span>, 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):</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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. +<span class='pageno' title='93' id='Page_93'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. THOMA: May it please the Tribunal—may I make an +answer to that?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. THOMA: Thank you, My Lord.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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 +<span class='pageno' title='94' id='Page_94'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 +<span class='pageno' title='95' id='Page_95'></span> +and Mirabeau responsible for the subsequent horrors of the French +Revolution.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I should like to take up the question of his responsibility on the +grounds of the documents submitted for this purpose.</p> + +<p class='pindent'>(1) The action taken against the Jews at Sluzk (Document Number +1104-PS).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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 +<span class='pageno' title='96' id='Page_96'></span> +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:</p> + +<div class='blockquote'> + +<p>“I prohibited the execution of Jews in Libau because there +was no justification for the way in which it was carried out.”</p> + +</div> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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:</p> + +<div class='blockquote'> + +<p>“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 +<span class='pageno' title='97' id='Page_97'></span> +Germany. My suggestion to the Führer is that instead of +killing 100 Frenchmen, he should have 100 or more Jewish +bankers, lawyers, <span class='it'>et cetera</span>, shot.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>omni modo facturus</span>, +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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>(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 +<span class='pageno' title='98' id='Page_98'></span> +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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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; +<span class='pageno' title='99' id='Page_99'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I come now to the Einsatzstab Rosenberg, the Operational Staff +Rosenberg.</p> + +<p class='pindent'>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 +<span class='pageno' title='100' id='Page_100'></span> +and regulations have changed in the meantime, but I should like to +mention two things:</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>, 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.’ ”</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Later on, it says:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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, <span class='it'>et cetera</span>, were saved and, with +the co-operation of the individual army groups, were brought to a +<span class='pageno' title='101' id='Page_101'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>Privateigentum im besetzten und unbesetzten Feindesland</span>, +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).</p> + +<p class='pindent'>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. +<span class='pageno' title='102' id='Page_102'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='103' id='Page_103'></span> +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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='104' id='Page_104'></span> +German authorities had not taken care of them, then I believe that, +objectively speaking, one can use any term but that of “vandalism.”</p> + +<p class='pindent'>THE PRESIDENT: I think this would be a good time to break off.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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?</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='105' id='Page_105'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Altmark</span> incident, +Hagelin, who moved in Norwegian Government circles, intensified +<span class='pageno' title='106' id='Page_106'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>coup d’état</span> (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.</p> + +<p class='pindent'>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 +<span class='pageno' title='107' id='Page_107'></span> +regard to Norway; that even the appointment of a Reich Commissioner +for Norway was carried out without consulting him.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>The Myth of the 20th Century</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>His book <span class='it'>The Myth of the 20th Century</span>, 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 +<span class='pageno' title='108' id='Page_108'></span> +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.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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 +<span class='pageno' title='109' id='Page_109'></span> +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 <span class='it'>Mein Kampf</span>, +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 <span class='it'>The Myth of the 20th Century</span> 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.</p> + +<p class='pindent'>If one goes to the trouble of looking through the book, <span class='it'>The Myth +of the 20th Century</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In the Defendant Rosenberg’s case it is a question of whether +by his teachings he was guilty of preparing and promoting crimes. +<span class='pageno' title='110' id='Page_110'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='111' id='Page_111'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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):</p> + +<div class='blockquote'> + +<p>“We are rather facing systematic criminality which directly +and necessarily derives from a monstrous doctrine with the +<span class='pageno' title='112' id='Page_112'></span> +full will of the leaders of Nazi Germany. The crime against +peace, which was undertaken, is immediately derived from +the National Socialist doctrine.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Rosenberg expresses this thought in the following manner (<span class='it'>The +Myth of the 20th Century</span>, Introduction, Pages 1 and 2):</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Consequently, Rosenberg had, in any case, no ideas of genocide +as Raphael Lemkin expounds in <span class='it'>Axis Rule in Occupied Europe</span>, +Page 81, where he ends the above quotation after the words “race +<span class='pageno' title='113' id='Page_113'></span> +and race, people and people,” but he believed in a struggle between +psychologies, in other words, spiritual controversy.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>The charges by the Prosecution that Rosenberg was the advocate +of a conspiracy against peace, of racial hatred, of the elimination +<span class='pageno' title='114' id='Page_114'></span> +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 +<span class='it'>The Myth of the 20th Century</span>, 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 <span class='it'>Blood and Honor</span>, 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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='115' id='Page_115'></span> +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.</p> + +<p class='pindent'>I shall now take up the charge of racial hatred.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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, <span class='it'>The Decline of +the Great Race</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>The Myth of the 20th Century</span>. 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, +<span class='pageno' title='116' id='Page_116'></span> +but of the European nations in general. I refer to his speech in +Rome of November 1932.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='117' id='Page_117'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 +<span class='pageno' title='118' id='Page_118'></span> +toward tyranny. In connection with Paragraph 25 of the Party +Program he said in his comments, on Page 46:</p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='pindent'>In his speech on German law of 18 December 1934, Rosenberg +stressed:</p> + +<p class='pindent'>“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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='119' id='Page_119'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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” (<span class='it'>Blood and Honor</span>, +Page 377).</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. THOMA: I shall try to do that, Mr. President.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='120' id='Page_120'></span></p> + +<p class='pindent'>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 <span class='it'>NS Monatshefte</span>, 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.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. THOMA: Thank you, Mr. President.</p> + +<p class='pindent'>I shall now sum up in conclusion, and I should like to point out +the following:</p> + +<p class='noindent'><span class="fs">... 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).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">He thereby attacked both Christianity and Jewry theoretically, and hoped +that the Christian Churches would gradually become extinct among the German +<span class='pageno' title='121' id='Page_121'></span> +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 <span class='gesp'>Myth</span> 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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">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. <span class='gesp'>Monatshefte</span>, +which after 1933 acquired a gradually increasing polemical political content in +the interest of handling historical, cultural, and scientific topics. <span class='gesp'>Die Kunst +im Deutschen Reich</span> achieved special significance by simply offering the +<span class='pageno' title='122' id='Page_122'></span> +most beautiful examples in the way of contemporary plastic art, excellently +presented without discussion. The <span class='gesp'>Bücher Kunde</span> offered a monthly cross +section of writings and literary contributions. The monthly periodical <span class='gesp'>Musik</span> +devoted itself above all to serious art, the cultivation of the German classics, +and without any pettiness toward new creations. The journal <span class='gesp'>Germanisches +Erbe</span> published contributions on research in early history, the <span class='gesp'>Deutsche +Volkskunde</span> was devoted to games, folk songs, peasant customs. <span class='gesp'>Deutsche +Dramaturgie</span> described the ambitions and problems of the contemporary +theater.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='123' id='Page_123'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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?</span></p> + +<p class='pindent'><span class="fs">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.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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?</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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?</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='124' id='Page_124'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='gesp'>summum bonum</span>, 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 +<span class='pageno' title='125' id='Page_125'></span> +egotism has not yet been dethroned and is still considered the highest moral +instance of the State.</span></p> + +<p class='pindent'><span class="fs">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 <span class='gesp'>Essay Concerning +Human Understanding</span>; 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.”</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">The highest good, <span class='gesp'>summum bonum</span>, 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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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, +<span class='pageno' title='126' id='Page_126'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='127' id='Page_127'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='128' id='Page_128'></span> +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.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 11 July 1946 at 1000 hours.</span>]</h3> + +<hr class='pbk'/> + +<div><span class='pageno' title='129' id='Page_129'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-SIXTH DAY</span><br/> Thursday, 11 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>THE PRESIDENT: The Tribunal will adjourn this afternoon +at four o’clock to sit in closed session.</p> + +<p class='pindent'>Dr. Seidl, will you present the case of the Defendant Frank?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='130' id='Page_130'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='131' id='Page_131'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='132' id='Page_132'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“First, no one should be sentenced who has not had an +opportunity of defending himself.</p> + +<p>“Second, no one shall be deprived of his property, provided +that he uses it unobjectionably from the point of view of the +<span class='pageno' title='133' id='Page_133'></span> +community, except by judicial sentence. Legal properties +in this sense include honor, freedom, life, and earnings.</p> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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: <span class='it'>Salus publica suprema lex</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='134' id='Page_134'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='135' id='Page_135'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>occupatio bellica</span> +(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.</p> + +<p class='pindent'>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 +<span class='pageno' title='136' id='Page_136'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='137' id='Page_137'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='138' id='Page_138'></span> +resettlement measures without even establishing previous contact +with the administration of the Government General or informing +the Governor General.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='139' id='Page_139'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='140' id='Page_140'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Above all, however, it seems to me essential to point out +the following: The contents of any document are of material +<span class='pageno' title='141' id='Page_141'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='142' id='Page_142'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='143' id='Page_143'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='144' id='Page_144'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='145' id='Page_145'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='146' id='Page_146'></span> +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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='147' id='Page_147'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“1. The Government General comprises that part of the occupied +Polish area which is not a component part of the German +Reich ...</p> + +<p>“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.</p> + +<p>“3. In accordance with the instructions we have received +under the Führer’s decree Polish laws will remain in force +here.”</p> + +</div> + +<p class='pindent'>On 7 June 1942 the Defendant Frank stated word for word +as follows:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='148' id='Page_148'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='149' id='Page_149'></span></p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<p class='pindent'>Millions of Germans were driven from their ancestral homes +in accordance with a resolution taken at Potsdam on 2 August 1945 +<span class='pageno' title='150' id='Page_150'></span> +by President Truman, Generalissimo Stalin, and Prime Minister +Attlee.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. SEIDL: Mr. President, may I briefly define my attitude +on this?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. SEIDL: Very well, Mr. President.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>But the question of the importance to be attached to the diary +entries submitted by the Prosecution is quite another matter. +<span class='pageno' title='151' id='Page_151'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='152' id='Page_152'></span> +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:</p> + +<p class='pindent'>In the American Occupation Zone alone there were, according +to a statement ...</p> + +<p class='pindent'>DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the +United States): Mr. President, we raise an objection. This matter +is completely irrelevant.</p> + +<p class='pindent'>THE PRESIDENT: Dr. Seidl, do you wish to say anything in +answer to the objection?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. SEIDL: I assume, Mr. President, that in that case I may continue +with the last paragraph on Page 44.</p> + +<p class='pindent'>THE PRESIDENT: I think so, yes, the last paragraph. +<span class='pageno' title='153' id='Page_153'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='154' id='Page_154'></span> +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:</p> + +<div class='blockquote'> + +<p>“... 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.”</p> + +</div> + +<p class='pindent'>On 14 January 1944 he made a similar statement to the Commander +of the Security Police. I quote:</p> + +<div class='blockquote'> + +<p>“The Governor General is strongly opposed to the suggestion +that police forces should be used in recruiting labor.”</p> + +</div> + +<p class='pindent'>These quotations could be amplified by many more.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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 +<span class='pageno' title='155' id='Page_155'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In general it should first be said that the reconstruction work +of the administration of the Government General had to be carried +<span class='pageno' title='156' id='Page_156'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“... 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.”</p> + +</div> + +<p class='pindent'><span class='pageno' title='157' id='Page_157'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='158' id='Page_158'></span></p> + +<p class='pindent'>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 +<span class='it'>Official Gazette</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='159' id='Page_159'></span> +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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='160' id='Page_160'></span> +epidemics—in particular typhus and typhoid—to a degree which +had been found impossible in this area in the preceding decades.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='161' id='Page_161'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='162' id='Page_162'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“Law cannot be degraded to a position where it becomes an +object of bargaining. Law cannot be sold. It is either there +<span class='pageno' title='163' id='Page_163'></span> +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.”</p> + +</div> + +<p class='pindent'>THE PRESIDENT: We will begin again at 10 minutes past 2.</p> + +<h3>[<span class='it'>The Tribunal recessed until 1410 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='164' id='Page_164'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>THE PRESIDENT: Dr. Pannenbecker.</p> + +<p class='pindent'>DR. OTTO PANNENBECKER (Counsel for Defendant Frick): +Mr. President, Gentlemen of the Tribunal:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT [<span class='it'>Interposing</span>]: 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='165' id='Page_165'></span> +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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='166' id='Page_166'></span></p> + +<p class='pindent'>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.<a id='r1'/><a href='#f1' style='text-decoration:none'><sup><span style='font-size:0.9em'>[1]</span></sup></a> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='167' id='Page_167'></span> +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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='168' id='Page_168'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='169' id='Page_169'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='170' id='Page_170'></span> +since the twenties, which is alleged to have been discernible to anybody +who took a glance at the Party Program.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='171' id='Page_171'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='172' id='Page_172'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='173' id='Page_173'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='174' id='Page_174'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='175' id='Page_175'></span> +“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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='176' id='Page_176'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='177' id='Page_177'></span> +according to the Charter. And now mention must be made of those +territories in particular for which the Defendant Frick bears a +responsibility.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='178' id='Page_178'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='179' id='Page_179'></span></p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Hitler directly commissioned Himmler to carry out police work +in the occupied territories—see Document 1997-PS, Exhibit Number +<span class='pageno' title='180' id='Page_180'></span> +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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='181' id='Page_181'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='182' id='Page_182'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='183' id='Page_183'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='184' id='Page_184'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='185' id='Page_185'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='186' id='Page_186'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='187' id='Page_187'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='188' id='Page_188'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='189' id='Page_189'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It is not without reason that John Gunther in his book <span class='it'>Inside +Europe</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Dr. Marx. +<span class='pageno' title='190' id='Page_190'></span></p> + +<p class='pindent'>DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen +of the Tribunal, Mr. President.</p> + +<p class='pindent'>I begin the speech for the defense of Julius Streicher.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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. +<span class='pageno' title='191' id='Page_191'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>As far as particulars are concerned, the Counts of the Indictment +against the Defendant Streicher were summed up as follows:</p> + +<div class='listEntry'> +<span class='listTag'>I.</span><p class='listPara'>Support of seizure of power and consolidation of power of the +NSDAP after the latter’s entry into the Government.</p> +</div> + +<div class='listEntry'> +<span class='listTag'>II.</span><p class='listPara'>Preparation of aggressive wars by propaganda aimed at the +persecution of the Jews.</p> +</div> + +<div class='listEntry'> +<span class='listTag'>III.</span><p class='listPara'>Intellectual and spiritual preparation and education to encourage +hatred against the Jews,</p> +</div> + +<p class='pindent'>(a) in the German people,</p> + +<p class='pindent'>(b) in the German youth, and</p> + +<p class='pindent'>(c) in the active extermination of Jewry.</p> + +<p class='pindent'>Without Julius Streicher, no Auschwitz, no Mauthausen, no +Maidanek, no Lublin—thus the Indictment may be summed up +briefly.</p> + +<p class='pindent'>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 +<span class='pageno' title='192' id='Page_192'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: I think this is a good time to break off. The +Tribunal will adjourn.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 12 July 1946 at 1000 hours.</span>]</h3> + +<p class='line' style='text-align:center;margin-top:2em;'>NOTES</p> + +<hr class='footnotemark'/> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f1'><a href='#r1'>[1]</a></span> + +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>To revert to the example of the Prosecution:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +</div> + +<hr class='pbk'/> + +<div><span class='pageno' title='193' id='Page_193'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-SEVENTH DAY</span><br/> Friday, 12 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>THE PRESIDENT: The Tribunal will adjourn today at 4 o’clock.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>1. Support of seizure of power and consolidation of the power +of the NSDAP after its entry into the Government.</p> + +<p class='pindent'>2. Preparation of aggressive wars by propaganda aimed at the +persecution of the Jews.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The foundation of the entire charges against all the defendants +lies in this very fact that the NSDAP is accused of having had +<span class='pageno' title='194' id='Page_194'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Prosecution did not offer any evidence on this point, nor +did the proceedings produce any proof to that effect. Of all the +<span class='pageno' title='195' id='Page_195'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='196' id='Page_196'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='197' id='Page_197'></span> +people are involved. As evidence of this the Prosecution put +forward:</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(b) Active assertion of the person and authority of the defendant, +especially on “Boycott Day,” 1 April 1933.</p> + +<p class='pindent'>(c) Numerous articles published in the weekly paper, <span class='it'>Der +Stürmer</span>, 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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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, +<span class='pageno' title='198' id='Page_198'></span> +had coercive measures used against the Jewish population, as might +necessarily be expected of him if the accusations made by the +Prosecution were true.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>At the beginning of this exposition it appears important to point +out that a great many of <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Defendant Streicher—and this cannot be denied and shall +not be defended—continually wrote articles in <span class='it'>Der Stürmer</span> 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 +<span class='pageno' title='199' id='Page_199'></span> +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.</p> + +<p class='pindent'>On this ground and in this setting <span class='it'>Der Stürmer</span> 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 +<span class='it'>Der Stürmer</span>.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> and by +Streicher’s speeches in the sense and to the extent asserted by the +Prosecution?</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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? +<span class='pageno' title='200' id='Page_200'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>Der Hammer</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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, <span class='it'>Der Stürmer</span> could only have +a regional importance. This alone explains why its influence was +never at any time or in any place of great importance.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='201' id='Page_201'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The year of the seizure of power by the NSDAP also put +<span class='it'>Der Stürmer</span> to a decisive test. Had <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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. +<span class='pageno' title='202' id='Page_202'></span></p> + +<p class='pindent'>It is particularly significant that at that time it had been +repeatedly suggested that <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>The firm which published <span class='it'>Der Stürmer</span>, 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 <span class='it'>Der Stürmer</span>. The witness Fritzsche also has +alluded to this circumstance, stating that many Germans only +decided to subscribe to <span class='it'>Der Stürmer</span> because they thought it would +be a means of paving the way for their intended membership in +the Party.</p> + +<p class='pindent'>So as not to give a false impression of the circulation figures of +<span class='it'>Der Stürmer</span> during the years between 1923 and 1933, the following +analysis will show the different stages of its development.</p> + +<p class='pindent'>In the years 1923 to 1933 <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> up to the beginning of 1935 +show that, despite the Party’s rise to power, popular interest in +<span class='it'>Der Stürmer</span> 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 +<span class='pageno' title='203' id='Page_203'></span> +out by the new director Fink. The use of the Labor Front, as +explained by the proclamation of Dr. Ley in Number 36 of +<span class='it'>Der Stürmer</span>, 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.</p> + +<p class='pindent'>In that connection I further refer to a quotation from the +<span class='it'>Pariser Tageblatt</span> of 29 March 1935 reproduced in <span class='it'>Der Stürmer</span> of +May 1935. Here, too, it is stated that the increase of <span class='it'>Der Stürmer’s</span> +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 <span class='it'>Der Stürmer</span>, +forced on the members of the Labor Front in such a manner, could +have actually turned subscribers into readers of <span class='it'>Der Stürmer</span> and +followers of its line of thought. On the contrary, it is known that +bundles of <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>When, therefore, the Defendant Streicher wrote in his paper in +1935—Document Number GB-169—that the 15 years’ work of +enlightenment of <span class='it'>Der Stürmer</span> 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 +<span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='204' id='Page_204'></span> +of the war, in contrast to all other Gauleiter, he was not even +appointed to the position of Wehrkreiskommissar of his own district.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In what way now did <span class='it'>Der Stürmer</span> exert any influence during +the war period? It can be said that during the war <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span>. +The people were weary of the continuous repetition of the same +assertions. The best proof of how little <span class='it'>Der Stürmer</span> was desired +as reading matter can be seen in the fact that in restaurants and +cafés <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> in the political sphere no +longer amounted to anything.</p> + +<p class='pindent'>During the periods mentioned <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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 <span class='it'>Der Stürmer</span> 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 +<span class='it'>Der Stürmer</span> and would have contributed far more essentially to a +hostile attitude towards the Jews.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='205' id='Page_205'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='206' id='Page_206'></span></p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>If even the leading personalities of the Third Reich, with the +exception of a very small circle, were not informed and if even they +<span class='pageno' title='207' id='Page_207'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='208' id='Page_208'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='209' id='Page_209'></span> +enemy nations. In the years 1942 and 1943 the whole world was +already engaged in a bitter war against National Socialist Germany.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>As for the books which have been mentioned here, it must be +said that German youth scarcely knew of their existence—much +<span class='pageno' title='210' id='Page_210'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span>. One of his closest co-workers, +the witness Lauterbacher, stated in this connection that <span class='it'>Der Stürmer</span> +was actually banned for the Hitler Youth by the Defendant +Von Schirach. It is clear that the very style and illustrations of <span class='it'>Der +Stürmer</span> 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.</p> + +<p class='pindent'>Although some of <span class='it'>Der Stürmer</span> articles submitted by the Prosecution +seem to indicate that <span class='it'>Der Stürmer</span> 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 ...</p> + +<p class='pindent'>THE PRESIDENT: Dr. Marx, perhaps this would be a convenient +time to break off.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>DR. MARX: One might now be tempted to assume that <span class='it'>Der +Stürmer</span> 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 <span class='it'>Der Stürmer</span> +just as did the mass of the people. Its publications were <span class='it'>Der SA-Führer</span> +and <span class='it'>Die SA</span>. 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 +<span class='pageno' title='211' id='Page_211'></span> +question. A publication intended to provide ideological instruction +could never have dispensed with the collaboration of such a man.</p> + +<p class='pindent'>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 <span class='it'>Der SA-Führer</span> and +<span class='it'>Die SA</span> 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:</p> + +<div class='blockquote'> + +<p>“At a leader conference, the former SA Chief of Staff, Lutze, +stated that he did not want propaganda for <span class='it'>Der Stürmer</span> in +the SA. In certain groups <span class='it'>Der Stürmer</span> was even prohibited. +The contents of <span class='it'>Der Stürmer</span> 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.”</p> + +</div> + +<p class='noindent'>The ideology of <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Völkischer Beobachter</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span>, 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 +<span class='pageno' title='212' id='Page_212'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Mein Kampf</span> 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 +<span class='pageno' title='213' id='Page_213'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='214' id='Page_214'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Das Schwarze Korps</span> or even for the +<span class='pageno' title='215' id='Page_215'></span> +<span class='it'>SS Leithefte</span>. 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 <span class='it'>Der Stürmer</span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='216' id='Page_216'></span> +short account of his personality and his activities under the Hitler +regime.</p> + +<p class='pindent'>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 <span class='it'>Der Stürmer</span> 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 <span class='it'>Schulungsbriefe</span> of the Party or the periodicals belonging +to the organizations.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='217' id='Page_217'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It cannot be denied that by writing <span class='it'>ad nauseam</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='218' id='Page_218'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It must appear incomprehensible that the defendant continued +to play a part in the publication of <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The defendant claims that in the long series of articles published +by <span class='it'>Der Stürmer</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>He considered the articles published in the <span class='it'>Israelitisches Wochenblatt</span> +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 +<span class='pageno' title='219' id='Page_219'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Not one of the defendants here on trial shows such a wide discrepancy +between fact and fancy as does the Defendant Streicher.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Prosecution’s assumption that the tendentious articles in +<span class='it'>Der Stürmer</span> found an echo or a ready acceptance among the +<span class='pageno' title='220' id='Page_220'></span> +German population, or even produced an attitude which would +readily accept criminal measures, is herewith fully refuted.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I leave the decision on the guilt or innocence of this defendant +in the hands of the High Tribunal.</p> + +<p class='pindent'>THE PRESIDENT: I call on Dr. Sauter for the Defendant Funk.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='221' id='Page_221'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='222' id='Page_222'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='223' id='Page_223'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='224' id='Page_224'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='225' id='Page_225'></span> +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 <span class='it'>Berliner Börsenzeitung</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='226' id='Page_226'></span> +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.</p> + +<p class='pindent'>Mr. President, I now turn to a new subject. I would propose to +have a recess now.</p> + +<p class='pindent'>THE PRESIDENT: The Court will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken until 1400 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='227' id='Page_227'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>THE PRESIDENT: The Tribunal proposes to go until 4 o’clock +without a break, if that is convenient.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='228' id='Page_228'></span></p> + +<p class='pindent'>The evidence offered by the Prosecution consists mainly of +references and extracts from reference books, and especially from +a book by Dr. Oestreich, <span class='it'>Walter Funk—A Life for Economy</span>, 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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The period during which Funk was given Party assignments +was a very short one. That these activities were never of decisive +<span class='pageno' title='229' id='Page_229'></span> +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, <span class='it'>et cetera</span>, 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.</p> + +<p class='pindent'>In cross-examining the Defendant Funk the Soviet Russian +Prosecution showed him an article which had appeared on 18 August +1940 in the magazine <span class='it'>Das Reich</span> 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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='230' id='Page_230'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">As to defendant’s activity in the Reich Ministry of Propaganda, the Prosecution +charges him as follows:</span></p> + +<div class='blockquote'> + +<p><span class="fs">“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.”</span></p> + +</div> + +<p class='pindent'><span class="fs">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: <span class='gesp'>Walter Funk—A +Life for Economy</span>, Document 3505-PS, Exhibit USA-653, Document Book +Funk Number 4b.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='231' id='Page_231'></span> +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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='232' id='Page_232'></span> +co-responsibility of the Defendant Funk for the entire legislation for the control +and co-ordination of the cultural professions (Kulturberufe).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">It is proven by the affidavit of the former editor-in-chief of the <span class='gesp'>Frankfurter +Zeitung</span>, 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.</span></p> + +<p class='pindent'><span class="fs">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 <span class='gesp'>Frankfurter Zeitung</span>, 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.</span></p> + +<p class='pindent'><span class="fs">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 <span class='gesp'>Frankfurter +Zeitung</span>. 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 <span class='gesp'>Frankfurter Zeitung</span> 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.</span> +<span class='pageno' title='233' id='Page_233'></span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='234' id='Page_234'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>, did not, +<span class='pageno' title='235' id='Page_235'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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).</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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 +<span class='pageno' title='236' id='Page_236'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>He goes on to say:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Funk likewise says:</p> + +<div class='blockquote'> + +<p>“It was also my duty as Reich Minister of Economics to increase +production.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='237' id='Page_237'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='238' id='Page_238'></span> +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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='239' id='Page_239'></span> +he demanded further investigation of these problems, especially +since the matter could not be decided in advance.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='240' id='Page_240'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='241' id='Page_241'></span> +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?</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='242' id='Page_242'></span> +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.</p> + +<p class='pindent'>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 +<span class='pageno' title='243' id='Page_243'></span> +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.</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class="fs">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.</span></p> + +<p class='pindent'><span class="fs">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 +<span class='pageno' title='244' id='Page_244'></span> +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).</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>This was certainly particularly difficult for Funk, in view of +his tolerant attitude. At that time he had already been a civil +<span class='pageno' title='245' id='Page_245'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='246' id='Page_246'></span> +economic life of the country in the same way as they had been +eliminated in 1933 from its cultural life.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>fait accompli</span>. 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='247' id='Page_247'></span> +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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='248' id='Page_248'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='249' id='Page_249'></span> +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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'><span class="fs">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?</span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='250' id='Page_250'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='251' id='Page_251'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Gentlemen, thus a sense of duty on the one hand, and humane +feeling on the other, were the motives which kept the defendant in +<span class='pageno' title='252' id='Page_252'></span> +office and thus brought him into a situation where he is today +charged with criminal action.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Can you finish it by that time, Dr. Sauter?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn at this time.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 15 July 1946 at 1000 hours.</span>]</h3> + +<hr class='pbk'/> + +<div><span class='pageno' title='253' id='Page_253'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-EIGHTH DAY</span><br/> Monday, 15 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>MARSHAL: May it please the Tribunal, the Defendant Ribbentrop +is absent today.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the +United Kingdom): My Lord, it would be perfectly convenient for +the Prosecution.</p> + +<p class='pindent'>THE PRESIDENT: Dr. Sauter, do you think it would be convenient +for the Defense Counsel to deal with those matters at 2 +o’clock?</p> + +<p class='pindent'>DR. SAUTER: Certainly, Mr. President; I will inform the other +defense counsel that these applications will be discussed at 2 o’clock.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do +it immediately after Dr. Sauter’s plea.</p> + +<p class='pindent'>DR. SAUTER: May I speak now, Mr. President?</p> + +<p class='pindent'>THE PRESIDENT: Yes, Dr. Sauter.</p> + +<p class='pindent'>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. +<span class='pageno' title='254' id='Page_254'></span></p> + +<p class='pindent'>On Friday, I finished my statements in that respect with the +words:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='255' id='Page_255'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='256' id='Page_256'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='257' id='Page_257'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='258' id='Page_258'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='259' id='Page_259'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='260' id='Page_260'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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. +<span class='pageno' title='261' id='Page_261'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='262' id='Page_262'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='263' id='Page_263'></span> +German people to move forward toward a happier future of human +dignity and charity, of equality and peace.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is +no further comment with regard to that first application.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: That is so, My Lord.</p> + +<p class='pindent'>THE PRESIDENT: And one document to which the defendants’ +counsel wants to refer in its entirety, namely, TC-75, is that right?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. There +is no objection to that.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: That is so, My Lord.</p> + +<p class='pindent'>THE PRESIDENT: And three letters from Seyss-Inquart to +Himmler which have not yet been produced.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: That is so, My Lord.</p> + +<p class='pindent'>THE PRESIDENT: Also, in the case of Fritzsche there are two +interrogatories of Delmar and Feldscher which have not yet been +received.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Yes.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: My Lord, the French Delegation +will let the Tribunal know if they find there is any objection. +<span class='pageno' title='264' id='Page_264'></span></p> + +<p class='pindent'>THE PRESIDENT: Yes. Now, with reference to the rest, so far +as the Prosecution are concerned, what are the objections, if any?</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT [<span class='it'>Interposing</span>]: Just one minute, Sir David. +These documents “A” to “I,” were they applied for after the case +had been closed?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: They were submitted on 3 July, +Sir. That would be after the case had been closed.</p> + +<p class='pindent'>THE PRESIDENT: But that was at the time, was it not, when +we were asking for supplementaries?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, at the very end.</p> + +<p class='pindent'>THE PRESIDENT: That very day?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Are these documents which you have just +been referring to—“A” to “I”—are they already all in the document +book?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Dr. Servatius tells me they are.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='265' id='Page_265'></span></p> + +<p class='pindent'>THE PRESIDENT: You say Falkenhorst?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Falkenhorst, Sir. My Lord, it +is the very last application on my list.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Do you mean, Dr. Servatius, that the affidavit +from Falkenhorst had already been granted before?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: What about these two affidavits asked for by +Dr. Steinbauer from Erwin Schotter and Adalbert Joppich?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: I see; well, then for the rest you have no +other objections?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: No other objections.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the +position.</p> + +<p class='pindent'>It did not seem, on consideration of the outline of the evidence, +that the evidence of the defendant’s son would contribute anything +fresh. +<span class='pageno' title='266' id='Page_266'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: The difficulty that these sorts of applications +put the Tribunal in is that the case never closes.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord, I quite agree.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Then, Sir David, do we have an affidavit +from the Defendant Sauckel himself which you have already dealt +with?</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord.</p> + +<p class='pindent'>THE PRESIDENT: That was after the last date when the +defendants’ counsel were asked for their applications.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='267' id='Page_267'></span></p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord.</p> + +<p class='pindent'>THE PRESIDENT: Dr. Thoma, are you wanting to say anything +in support of that application or is it sufficiently covered by your +speech?</p> + +<p class='pindent'>DR. THOMA: I am of the opinion that it has been sufficiently +dealt with in my speech.</p> + +<p class='pindent'>THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one +from Ribbentrop and one from Schulze, not yet put in. Do you want +them?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Then, with regard to TC-75 ...</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: My Lord, that is one of our +original British documents. I have no objection to Dr. Horn using it.</p> + +<p class='pindent'>THE PRESIDENT: How about the translation, though? I suppose +it is a German document, is it not?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Is it a very long document or not?</p> + +<p class='pindent'>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 +<span class='pageno' title='268' id='Page_268'></span> +complete document, and submitted it to the Tribunal, and have had +it translated.</p> + +<p class='pindent'>THE PRESIDENT: It has been translated?</p> + +<p class='pindent'>DR. HORN: Yes.</p> + +<p class='pindent'>THE PRESIDENT: Very well then, that is all right then.</p> + +<p class='pindent'>Now, Dr. Steinbauer, what about these two affidavits that you +are asking for, one from Erwin Schotter and another from Adalbert +Joppich?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Has the Prosecution seen the substance of +the affidavits or not?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Was the application made before 3 July, or +when was it made?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: The Tribunal will consider the matter then +and they will be glad to hear from the Prosecution if they have any +objection.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT: What was it you were saying, Dr. Steinbauer?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: What is the name of the person who was +interrogated? +<span class='pageno' title='269' id='Page_269'></span></p> + +<p class='pindent'>DR. STEINBAUER: The physician, Dr. Gero Reuter. He was +questioned about health conditions in the Netherlands. The Tribunal +expressly granted me that interrogatory.</p> + +<p class='pindent'>THE PRESIDENT: Well, that will be considered, then.</p> + +<p class='pindent'>DR. STEINBAUER: Then I shall submit it to the Court under +Number 114.</p> + +<p class='pindent'>THE PRESIDENT: Sir David, perhaps you can look at that later.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I understood +that the Tribunal had already approved and that this was +just putting in the answer.</p> + +<p class='pindent'>THE PRESIDENT: Yes, that is all.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Then, My Lord, there can be no +objection.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: Yes, My Lord.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: My Lord, I appreciate that. +I gather that Dr. Steinbauer has just given that the Number 114.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.</p> + +<p class='pindent'>My Lord, Dr. Siemers just wanted to know that his applications +were covered. I think he is quite safe.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: That is the way I understand +it, My Lord. +<span class='pageno' title='270' id='Page_270'></span></p> + +<p class='pindent'>THE PRESIDENT: Well, then, the Tribunal will consider all +these matters and make the appropriate order upon it.</p> + +<p class='pindent'>SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn now. Wait a minute, wait a +minute!</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: They have been granted before, I suppose? +Have they been granted?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Yes, but the application for that interrogatory +had been allowed, I suppose?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Very well. We will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>THE PRESIDENT: Go on, Dr. Dix.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Schacht was banished to a concentration camp on the order of +Hitler, as has been established here. The charge against him was +<span class='pageno' title='271' id='Page_271'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>lucus a non lucendo</span>. 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='272' id='Page_272'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='273' id='Page_273'></span> +quest for truth. <span class='it'>Nescis, mi fili, quanta stultitia mundus regitur</span>, as +old Axel Oxenstierna once said, and he was probably right.</p> + +<p class='pindent'>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 <span class='it'>dolus</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='274' id='Page_274'></span> +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.</p> + +<p class='pindent'>The list of these false conclusions could be continued <span class='it'>ad infinitum</span>. +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.</p> + +<p class='pindent'>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. +<span class='pageno' title='275' id='Page_275'></span> +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.</p> + +<p class='pindent'>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. +<span class='pageno' title='276' id='Page_276'></span></p> + +<p class='pindent'><span class='it'>En fait d’histoire il vaut mieux continuer que recommencer</span>, +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.</p> + +<p class='pindent'>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 +<span class='pageno' title='277' id='Page_277'></span> +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.</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>But what Messersmith very reasonably says of ordinary Party +members of that time, naturally applies also, <span class='it'>mutatis mutandis</span>, 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 +<span class='pageno' title='278' id='Page_278'></span> +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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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 +<span class='pageno' title='279' id='Page_279'></span> +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: <span class='it'>Nemo contra Deum, nisi Deus ipse</span>.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'><span class='pageno' title='280' id='Page_280'></span></p> + +<p class='pindent'>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 <span class='it'>Daily Mail</span>, entitled: “Adolf Hitler from +Close By.” I quote only a few sentences:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>THE PRESIDENT: Dr. Dix, I thought the Tribunal had refused +to allow the writings of Lord Rothermere to be put in evidence +or used.</p> + +<p class='pindent'>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 ... +<span class='pageno' title='281' id='Page_281'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>DR. DIX: I quote from Sumner Welles’ book <span class='it'>Time for Decision</span>, +published in New York in 1944:</p> + +<div class='blockquote'> + +<p>“Economic circles in each of the western European democracies +and the New World welcomed Hitlerism.”</p> + +</div> + +<p class='pindent'>And it is only right, when Great Britain’s last Ambassador in +Berlin, even during the war, states on Page 25 of his book:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Further on he makes this interesting remark:</p> + +<div class='blockquote'> + +<p>“It is possible that Hitler was an idealist himself in the +beginning.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='282' id='Page_282'></span> +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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Now one witness here has passed judgment on Schacht’s attitude +toward the seizure and consolidation of power during this +period:</p> + +<div class='blockquote'> + +<p>“Schacht was an untrustworthy person,” he said. “Schacht +betrayed the cause of democracy at that time. I therefore +<span class='pageno' title='283' id='Page_283'></span> +refused in 1943 to join a Government proposing to overthrow +Hitler with Schacht’s participation.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='284' id='Page_284'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='285' id='Page_285'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT: Dr. Dix, I think you had better go on until +1 o’clock.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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 +<span class='pageno' title='286' id='Page_286'></span> +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: +<span class='it'>à corsaire, corsaire et demi</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: The Tribunal will adjourn.</p> + +<h3>[<span class='it'>The Tribunal recessed until 1400 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='287' id='Page_287'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='288' id='Page_288'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='289' id='Page_289'></span> +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, <span class='it'>et cetera</span>, 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. +<span class='pageno' title='290' id='Page_290'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>clausula rebus sic stantibus</span> 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 <span class='it'>nulla poena sine +lege poenale</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='291' id='Page_291'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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: +<span class='pageno' title='292' id='Page_292'></span></p> + +<div class='blockquote'> + +<p>“There is no doubt that an agreed reduction of the armaments +of other big nations was to follow upon the forced +disarmament of Germany.”</p> + +</div> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>THE PRESIDENT: [<span class='it'>Interposing</span>] The date of the occupation +of the Rhineland was not March 1935, but March 1936.</p> + +<p class='pindent'>DR. DIX: I cannot ascertain that at the moment.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 +<span class='pageno' title='293' id='Page_293'></span> +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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='294' id='Page_294'></span> +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.</p> + +<p class='pindent'>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 “<span class='it'>si vis pacem, para bellum</span>” +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, +<span class='pageno' title='295' id='Page_295'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='296' id='Page_296'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='297' id='Page_297'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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 <span class='it'>coup d’état</span> +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.</p> + +<p class='pindent'>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 +<span class='pageno' title='298' id='Page_298'></span> +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, <span class='it'>et cetera</span>. +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In the memoirs of a Czarist officer regarding his experiences in +the Russo-Japanese war I found the following humorous observation:</p> + +<div class='blockquote'> + +<p>“If I, as a member of the General Staff, wished an incident +to become known, I had it classified as ‘secret’ and my wish +<span class='pageno' title='299' id='Page_299'></span> +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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='300' id='Page_300'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='301' id='Page_301'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='302' id='Page_302'></span> +opposing groups, he even encouraged them and made use of them +as a basis for his power.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>—asserted +<span class='pageno' title='303' id='Page_303'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='304' id='Page_304'></span></p> + +<p class='pindent'>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 <span class='it'>dolus eventualis</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='305' id='Page_305'></span></p> + +<p class='pindent'>Your Lordship, I have now arrived at the end of a section, if +Your Lordship would care to announce a recess now.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>DR. DIX: I beg your pardon for being late, but I was detained +at the entrance.</p> + +<p class='pindent'>Gentlemen of the Tribunal, I have arrived at the discussion of +the beginning of the opposition by means of the various Putsch +actions.</p> + +<p class='pindent'>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 <span class='it'>ex post</span> 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.</p> + +<p class='pindent'>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 <span class='it'>ex post</span> 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, +<span class='pageno' title='306' id='Page_306'></span> +and I think one must believe it, then one cannot speak of Schacht’s +co-operation in instigating a war of aggression.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='307' id='Page_307'></span> +Pahlen persists in speaking about “<span class='it'>Notre auguste Empereur</span>,” and +so forth. Significantly, this drama bears the title <span class='it'>The Patriot</span>.</p> + +<p class='pindent'>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 <span class='it'>vice versa</span>. 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 <span class='it'>pro</span> +or <span class='it'>contra</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='308' id='Page_308'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>coup d’état</span> +in autumn 1938 and for the various other attempted <span class='it'>coups d’état</span> +leading up to that of 20 July 1944, which finally caused him to be +put in a concentration camp.</p> + +<p class='pindent'>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 +<span class='pageno' title='309' id='Page_309'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='310' id='Page_310'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='311' id='Page_311'></span> +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 <span class='it'>ex post +facto</span> 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 +<span class='pageno' title='312' id='Page_312'></span> +of the emperor’s assassin, Parricida: “I raise my clean hands to +Heaven, and curse you and your deed!”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: I call on Dr. Kranzbühler for the Defendant +Dönitz.</p> + +<p class='pindent'>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.”<a id='r2'/><a href='#f2' style='text-decoration:none'><sup><span style='font-size:0.9em'>[2]</span></sup></a> 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.</p> + +<p class='pindent'>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.<a id='r3'/><a href='#f3' style='text-decoration:none'><sup><span style='font-size:0.9em'>[3]</span></sup></a> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='313' id='Page_313'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='314' id='Page_314'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='315' id='Page_315'></span> +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 <span class='it'>Manaar</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.” +<span class='pageno' title='316' id='Page_316'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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. +<span class='pageno' title='317' id='Page_317'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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<a id='r4'/><a href='#f4' style='text-decoration:none'><sup><span style='font-size:0.9em'>[4]</span></sup></a>, 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.<a id='r5'/><a href='#f5' style='text-decoration:none'><sup><span style='font-size:0.9em'>[5]</span></sup></a></p> + +<p class='pindent'>The French delegate, M. Sarraut, at that time received instructions +from his Foreign Minister, M. Briand, to second the reservations +of the Italian delegate.<a id='r6'/><a href='#f6' style='text-decoration:none'><sup><span style='font-size:0.9em'>[6]</span></sup></a> He thereupon moved to have the +Italian reservations included in the minutes of the session.</p> + +<p class='pindent'><span class='pageno' title='318' id='Page_318'></span></p> + +<p class='pindent'>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.<a id='r7'/><a href='#f7' style='text-decoration:none'><sup><span style='font-size:0.9em'>[7]</span></sup></a> 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.</p> + +<p class='pindent'>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.<a id='r8'/><a href='#f8' style='text-decoration:none'><sup><span style='font-size:0.9em'>[8]</span></sup></a> 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.</p> + +<p class='pindent'>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.<a id='r9'/><a href='#f9' style='text-decoration:none'><sup><span style='font-size:0.9em'>[9]</span></sup></a></p> + +<p class='pindent'>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 +<span class='pageno' title='319' id='Page_319'></span> +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:</p> + +<div class='blockquote'> + +<p>“Ships sailing in enemy convoys are usually deemed to be +guilty of forcible resistance and therefore liable to be sunk +forthwith.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='320' id='Page_320'></span> +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 <span class='it'>American Journal of International +Law</span> 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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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,<a id='r10'/><a href='#f10' style='text-decoration:none'><sup><span style='font-size:0.9em'>[10]</span></sup></a> +stated in 1922, that is, after the Washington Conference and the +afore-mentioned Root Resolution on U-boat warfare:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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, +<span class='pageno' title='321' id='Page_321'></span> +to form the opinion that armed merchant ships do not enjoy protection +from attacks without warning.</p> + +<p class='pindent'>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.<a id='r11'/><a href='#f11' style='text-decoration:none'><sup><span style='font-size:0.9em'>[11]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Confidential Fleet Orders</span>, chiefly, however, in the <span class='it'>Defense +of Merchant Shipping Handbook</span>. 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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>(1) Reporting of submarines by radio telegraphy.</p> + +<p class='pindent'>(2) The use of naval artillery.</p> + +<p class='pindent'>(3) The use of depth charges. +<span class='pageno' title='322' id='Page_322'></span></p> + +<p class='pindent'>These instructions were supplemented on 1 October 1939, when +a call was transmitted over the radio to ram all German submarines.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The guns on the merchant vessels and the orders concerning +their use were, however, only a part of a comprehensive system +<span class='pageno' title='323' id='Page_323'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='324' id='Page_324'></span></p> + +<p class='pindent'>THE PRESIDENT: Dr. Kranzbühler, we may as well break +off now.</p> + +<p class='pindent'>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.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 16 July 1946 at 1000 hours.</span>]</h3> + +<p class='line' style='text-align:center;margin-top:2em;'>NOTES</p> + +<hr class='footnotemark'/> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f2'><a href='#r2'>[2]</a></span> + +<span class='gesp'>De jure pacis ac belli</span>, Book II, Chapter XXIV, Paragraph 10.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f3'><a href='#r3'>[3]</a></span> + +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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f4'><a href='#r4'>[4]</a></span> + +Yamato Ichihalie, <span class='gesp'>The Washington Conference and After</span>, 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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f5'><a href='#r5'>[5]</a></span> + +<span class='gesp'>Conference on the Limitation of Armaments</span>, Washington, +November 12, 1921-February 6, 1922, Washington, Government Printing Office, 1922, +Pages 606, 688, 692.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f6'><a href='#r6'>[6]</a></span> + +<span class='gesp'>French Yellow Book</span>, La Conférence de Washington, Page 93.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f7'><a href='#r7'>[7]</a></span> + +Protocol Pages 693, 702.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f8'><a href='#r8'>[8]</a></span> + +Protocol Page 704.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f9'><a href='#r9'>[9]</a></span> + +<span class='gesp'>American Journal of International Law</span>, 1931, Page 307.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f10'><a href='#r10'>[10]</a></span> + +Hyde, <span class='gesp'>International Law</span>, 1922, Vol. II, Page 469.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f11'><a href='#r11'>[11]</a></span> + +<span class='gesp'>U.S. Foreign Relations</span>, 1916, Supplement Page 147.</p> + +</div> + +<hr class='pbk'/> + +<div><span class='pageno' title='325' id='Page_325'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND SEVENTY-NINTH DAY</span><br/> Tuesday, 16 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>City of Benares</span> in the autumn of 1940, then this +example is not very well chosen because the <span class='it'>City of Benares</span> was +armed and went under convoy. +<span class='pageno' title='326' id='Page_326'></span></p> + +<p class='pindent'>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 <span class='it'>Vendia</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='327' id='Page_327'></span></p> + +<p class='pindent'>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:<a id='r12'/><a href='#f12' style='text-decoration:none'><sup><span style='font-size:0.9em'>[12]</span></sup></a></p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, <span class='it'>et cetera</span>. +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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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, +<span class='pageno' title='328' id='Page_328'></span> +the so-called U.S.A. combat zone. As the note states, these two +facts give the Reich Government cause—I quote:</p> + +<div class='blockquote'> + +<p>“... 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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='329' id='Page_329'></span> +combat zone around England without any limitation was designated +as an operational area.</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The technical reasons for such a development are obvious: The +improvement of mines made it possible to render large sea areas +<span class='pageno' title='330' id='Page_330'></span> +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.</p> + +<p class='pindent'>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.<a id='r13'/><a href='#f13' style='text-decoration:none'><sup><span style='font-size:0.9em'>[13]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The French Admiral Castex<a id='r14'/><a href='#f14' style='text-decoration:none'><sup><span style='font-size:0.9em'>[14]</span></sup></a> 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.<a id='r15'/><a href='#f15' style='text-decoration:none'><sup><span style='font-size:0.9em'>[15]</span></sup></a> In a thorough study published by Professor Ernst +Schmitz<a id='r16'/><a href='#f16' style='text-decoration:none'><sup><span style='font-size:0.9em'>[16]</span></sup></a> in 1938 a merchant vessel which enters an operational +<span class='pageno' title='331' id='Page_331'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”<a id='r17'/><a href='#f17' style='text-decoration:none'><sup><span style='font-size:0.9em'>[17]</span></sup></a></p> + +</div> + +<p class='pindent'>Particularly with respect to the question concerning the area +of operations, Briand characterizes the submarine rules as being +“ineffective and deceptive.”</p> + +<p class='pindent'>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.<a id='r18'/><a href='#f18' style='text-decoration:none'><sup><span style='font-size:0.9em'>[18]</span></sup></a> 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.</p> + +<p class='pindent'>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. +<span class='pageno' title='332' id='Page_332'></span></p> + +<p class='pindent'>THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to +know what that American draft of 1939 is, to which you refer.</p> + +<p class='pindent'>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 <span class='it'>American Journal of International Law</span> of +July 1939.</p> + +<p class='pindent'>THE PRESIDENT: Jessup and Warren, you say?</p> + +<p class='pindent'>FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and +Charles Warren.</p> + +<p class='pindent'>THE PRESIDENT: Thank you.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>FLOTTENRICHTER KRANZBÜHLER: I do not quite follow +the point of your question.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='333' id='Page_333'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: The proclamation of the President of the +United States was directed, was it not, solely to United States +vessels?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>FLOTTENRICHTER KRANZBÜHLER: Yes.</p> + +<p class='pindent'>THE PRESIDENT: You say it depends upon the possibility of +danger in the zone?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 +<span class='pageno' title='334' id='Page_334'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: Thank you.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>(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.”</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='335' id='Page_335'></span> +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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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.<a id='r19'/><a href='#f19' style='text-decoration:none'><sup><span style='font-size:0.9em'>[19]</span></sup></a></p> + +<p class='pindent'><span class='pageno' title='336' id='Page_336'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“In the interest of the conduct of operations against Japan +the area of the Pacific Ocean is declared a zone of operations.”</p> + +</div> + +<p class='pindent'><span class='pageno' title='337' id='Page_337'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='338' id='Page_338'></span> +conceal the truth wisely. Dissimulation is absolutely necessary and +unavoidable.”<a id='r20'/><a href='#f20' style='text-decoration:none'><sup><span style='font-size:0.9em'>[20]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='339' id='Page_339'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='340' id='Page_340'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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”<a id='r21'/><a href='#f21' style='text-decoration:none'><sup><span style='font-size:0.9em'>[21]</span></sup></a> 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.<a id='r22'/><a href='#f22' style='text-decoration:none'><sup><span style='font-size:0.9em'>[22]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Athenia</span> on 3 September 1939 by <span class='it'>U-30</span> +under the command of Kapitänleutnant Lemp. The sinking of this +<span class='pageno' title='341' id='Page_341'></span> +ship was due to the fact that the commander mistook it for an armed +merchant cruiser.</p> + +<p class='pindent'>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 <span class='it'>U-30</span> 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.</p> + +<p class='pindent'>Only on the return of <span class='it'>U-30</span> 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 <span class='it'>Athenia</span>. 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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>(1) The affair was further to be dealt with politically in Berlin.</p> + +<p class='pindent'>(2) Court-martial proceedings were not necessary since the commander +acted in good faith.</p> + +<p class='pindent'>(3) The entire matter was to be kept in strict secrecy.</p> + +<p class='pindent'>On the grounds of this order the Commander of U-boats gave +orders that the report on the sinking of the <span class='it'>Athenia</span> be deleted from +the log of <span class='it'>U-30</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='342' id='Page_342'></span> +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 <span class='it'>Athenia</span> 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 +<span class='it'>Athenia</span> 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.</p> + +<p class='pindent'>The <span class='it'>Athenia</span> 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.</p> + +<p class='pindent'>The Tribunal is familiar with the wireless communications of +September 1942, by which, on occasion of the sinking of the <span class='it'>Monte +Corbea</span>, 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.</p> + +<p class='pindent'>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.<a id='r23'/><a href='#f23' style='text-decoration:none'><sup><span style='font-size:0.9em'>[23]</span></sup></a> 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.</p> + +<p class='pindent'>Every military command acts in accordance with these principles. +In this connection I will refer to the unreserved recognition which +<span class='pageno' title='343' id='Page_343'></span> +the commander of the British destroyer <span class='it'>Cossack</span> received for setting +free the prisoners of the <span class='it'>Altmark</span> in spite of the incidents which +occurred during this action, which were probably regretted by the +British too.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='344' id='Page_344'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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;<a id='r24'/><a href='#f24' style='text-decoration:none'><sup><span style='font-size:0.9em'>[24]</span></sup></a> (2) a moral one, namely, the nature of the new +measures makes them suitable for incorporation into the new +international law.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'><span class='pageno' title='345' id='Page_345'></span></p> + +<p class='pindent'>The well-known expert on international law, Baron von Freytagh-Loringhoven +says, and I quote:</p> + +<div class='blockquote'> + +<p>“... 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.”<a id='r25'/><a href='#f25' style='text-decoration:none'><sup><span style='font-size:0.9em'>[25]</span></sup></a></p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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.</p> + +<p class='pindent'>FLOTTENRICHTER KRANZBÜHLER: Before the recess I was +speaking about the possibilities of development of naval law.</p> + +<p class='pindent'>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:<a id='r26'/><a href='#f26' style='text-decoration:none'><sup><span style='font-size:0.9em'>[26]</span></sup></a></p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='346' id='Page_346'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='347' id='Page_347'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>In the light of these principles I will briefly deal with rescue +measures by U-boats until the autumn of 1942. The basic order +<span class='pageno' title='348' id='Page_348'></span> +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>This was the situation when on 12 September it was reported +that the heavily armed British troop transport <span class='it'>Laconia</span> 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 +<span class='pageno' title='349' id='Page_349'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>These were the reasons which caused Admiral Dönitz directly +after the close of the <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='350' id='Page_350'></span> +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 +<span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Laconia</span> 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 +<span class='pageno' title='351' id='Page_351'></span> +noncombatants.<a id='r27'/><a href='#f27' style='text-decoration:none'><sup><span style='font-size:0.9em'>[27]</span></sup></a> 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.<a id='r28'/><a href='#f28' style='text-decoration:none'><sup><span style='font-size:0.9em'>[28]</span></sup></a> Although this blockade was frequently +acknowledged to be inadmissible according to international law,<a id='r29'/><a href='#f29' style='text-decoration:none'><sup><span style='font-size:0.9em'>[29]</span></sup></a> +it was nevertheless practiced, and therefore it amounts to an infringement +of the principle of protection for noncombatants against +war measures.<a id='r30'/><a href='#f30' style='text-decoration:none'><sup><span style='font-size:0.9em'>[30]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='352' id='Page_352'></span></p> + +<p class='pindent'>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.<a id='r31'/><a href='#f31' style='text-decoration:none'><sup><span style='font-size:0.9em'>[31]</span></sup></a> 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.</p> + +<p class='pindent'>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 <span class='it'>franc-tireur</span>. 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 +<span class='pageno' title='353' id='Page_353'></span> +Admiralty’s orders.<a id='r32'/><a href='#f32' style='text-decoration:none'><sup><span style='font-size:0.9em'>[32]</span></sup></a> 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.</p> + +<p class='pindent'>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 <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='354' id='Page_354'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 <span class='it'>U-386</span>, 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 <span class='it'>U-386</span> had been reprimanded +because he did not take on board the airmen concerned +and bring them back. The whole affair concerning <span class='it'>U-386</span>, furthermore, +took place a year after the <span class='it'>Laconia</span> incident in September +<span class='pageno' title='355' id='Page_355'></span> +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 <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>Is Admiral Dönitz thus responsible for the interpretation of the +<span class='it'>Laconia</span> 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 <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Noreen Mary</span> bears the stamp of +phantasy in various points, and in the case of the attack on the +<span class='it'>Antonica</span> the intention to destroy shipwrecked people is out of the +question because everything was over in 20 minutes and the night +was dark.</p> + +<p class='pindent'>I was in the fortunate position to be able to present to the Tribunal +a compilation of the Naval Operations Staff concerning a dozen +<span class='pageno' title='356' id='Page_356'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>Laconia</span> 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.</p> + +<p class='pindent'>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 <span class='it'>Laconia</span> order, rejected all +consideration of action against shipwrecked crews.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='357' id='Page_357'></span> +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.</p> + +<p class='pindent'>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.<a id='r33'/><a href='#f33' style='text-decoration:none'><sup><span style='font-size:0.9em'>[33]</span></sup></a> 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.</p> + +<p class='pindent'><span class='pageno' title='358' id='Page_358'></span></p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”<a id='r34'/><a href='#f34' style='text-decoration:none'><sup><span style='font-size:0.9em'>[34]</span></sup></a></p> + +</div> + +<p class='pindent'>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 (<span class='it'>The Stars and Stripes</span>, European Edition, +5 December 1945) the ideas of the Prosecution regarding this +subject as follows:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='359' id='Page_359'></span> +against the will of Spain was absolutely impossible and out of the +question during the entire war, and especially so in 1943.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”<a id='r35'/><a href='#f35' style='text-decoration:none'><sup><span style='font-size:0.9em'>[35]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='360' id='Page_360'></span> +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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='361' id='Page_361'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='362' id='Page_362'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.<a id='r36'/><a href='#f36' style='text-decoration:none'><sup><span style='font-size:0.9em'>[36]</span></sup></a></p> + +<p class='pindent'><span class='pageno' title='363' id='Page_363'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Mr. President, I have come to the end of a section.</p> + +<p class='pindent'>THE PRESIDENT: Certainly. We will break off.</p> + +<h3>[<span class='it'>The Tribunal recessed until 1400 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='364' id='Page_364'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>MTB 345</span> 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.</p> + +<p class='pindent'>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 +<span class='pageno' title='365' id='Page_365'></span> +to Grossadmiral Dönitz, who did not answer. The attitude of the +military leaders on this matter was unanimously negative.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='366' id='Page_366'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='367' id='Page_367'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.<a id='r37'/><a href='#f37' style='text-decoration:none'><sup><span style='font-size:0.9em'>[37]</span></sup></a></p> + +<p class='pindent'>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 +<span class='pageno' title='368' id='Page_368'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='369' id='Page_369'></span> +naval court and executed after the sentence had been confirmed by +the Commander-in-Chief.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='370' id='Page_370'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='371' id='Page_371'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='372' id='Page_372'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”<a id='r38'/><a href='#f38' style='text-decoration:none'><sup><span style='font-size:0.9em'>[38]</span></sup></a></p> + +</div> + +<p class='pindent'>May the verdict of this Tribunal stand in a similar way before +the judgment of history.</p> + +<p class='pindent'>THE PRESIDENT: I call on Dr. Siemers for the Defendant Raeder.</p> + +<p class='pindent'>DR. WALTER SIEMERS (Counsel for Defendant Raeder): Gentlemen +of the Tribunal, in my final speech for the Defendant +<span class='pageno' title='373' id='Page_373'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='374' id='Page_374'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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:</p> + +<p class='pindent'>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 +<span class='pageno' title='375' id='Page_375'></span> +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.</p> + +<p class='pindent'>Moreover, I need only point out that from the legal point of +view a treaty violation cannot <span class='it'>ipso jure</span> 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.</p> + +<p class='pindent'>(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, <span class='it'>Der Kampf der Marine gegen Versailles</span>, +as well as on statements contained in the notes of the naval historian, +Admiral Assmann, found in Document D-854.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>et sequentes</span> 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.”</p> + +<p class='pindent'>It appears from this clear treaty clause that participation in +the Dutch firm was not a violation of the Treaty of Versailles. +<span class='pageno' title='376' id='Page_376'></span> +According to Article 191, Germany was only forbidden to construct +or purchase U-boats, moreover, strictly speaking, only in Germany.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(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 +<span class='pageno' title='377' id='Page_377'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='378' id='Page_378'></span></p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>ad absurdum</span>.</p> + +<p class='pindent'>(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 +<span class='pageno' title='379' id='Page_379'></span> +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 <span class='it'>Scharnhorst</span> and the <span class='it'>Gneisenau</span> 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.</p> + +<p class='pindent'>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 +<span class='it'>Scharnhorst</span> and <span class='it'>Gneisenau</span> were only commissioned in 1938 and +1939, 3 and 4 years respectively after the naval pact (see Exhibit +Number Raeder-2, Lohmann Affidavit).</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>This agreement between Britain and Germany concluded the +debate on the Versailles Treaty both factually and juridically, as far +<span class='pageno' title='380' id='Page_380'></span> +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:</p> + +<p class='pindent'>(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 +<span class='it'>Bismarck</span> and <span class='it'>Tirpitz</span> 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 <span class='it'>Bismarck</span>. If it was only +a question of a defensive idea, no aggressive intentions can be construed +from this treaty violation.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='381' id='Page_381'></span> +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.</p> + +<p class='pindent'>(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.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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.</p> + +<p class='pindent'>(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? +<span class='pageno' title='382' id='Page_382'></span></p> + +<p class='pindent'>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,<a id='r39'/><a href='#f39' style='text-decoration:none'><sup><span style='font-size:0.9em'>[39]</span></sup></a> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Now the Prosecution maintains that the leading personalities in +Germany at that time already knew Hitler’s true intentions from his +book <span class='it'>Mein Kampf</span>, 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 +<span class='pageno' title='383' id='Page_383'></span> +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 <span class='it'>Mein Kampf</span>, 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.)</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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 +<span class='pageno' title='384' id='Page_384'></span> +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.</p> + +<p class='pindent'>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.<a id='r40'/><a href='#f40' style='text-decoration:none'><sup><span style='font-size:0.9em'>[40]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='385' id='Page_385'></span> +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.”<a id='r41'/><a href='#f41' style='text-decoration:none'><sup><span style='font-size:0.9em'>[41]</span></sup></a> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='386' id='Page_386'></span> +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.</p> + +<p class='pindent'>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 ...”<a id='r42'/><a href='#f42' style='text-decoration:none'><sup><span style='font-size:0.9em'>[42]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Nor can membership in the Reich Defense Council—Document +2194-PS<a id='r43'/><a href='#f43' style='text-decoration:none'><sup><span style='font-size:0.9em'>[43]</span></sup></a>—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 +<span class='pageno' title='387' id='Page_387'></span> +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<a id='r44'/><a href='#f44' style='text-decoration:none'><sup><span style='font-size:0.9em'>[44]</span></sup></a> than the equivalent institution in Germany.</p> + +<p class='pindent'>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.<a id='r45'/><a href='#f45' style='text-decoration:none'><sup><span style='font-size:0.9em'>[45]</span></sup></a></p> + +<p class='pindent'>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:</p> + +<p class='pindent'>“National Socialist and Christian concepts are incompatible.”<a id='r46'/><a href='#f46' style='text-decoration:none'><sup><span style='font-size:0.9em'>[46]</span></sup></a> +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.<a id='r47'/><a href='#f47' style='text-decoration:none'><sup><span style='font-size:0.9em'>[47]</span></sup></a></p> + +<p class='pindent'>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 +<span class='pageno' title='388' id='Page_388'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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,<a id='r48'/><a href='#f48' style='text-decoration:none'><sup><span style='font-size:0.9em'>[48]</span></sup></a> 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 +<span class='it'>Bismarck</span> and <span class='it'>Tirpitz</span> were not available in the first year of the +war, and thus could not take part in the occupation of Norway; +<span class='pageno' title='389' id='Page_389'></span> +the <span class='it'>Bismarck</span> was completed only in August 1940, and the <span class='it'>Tirpitz</span> +in 1941.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Great +Contemporaries</span>, wrote in 1935:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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. +<span class='pageno' title='390' id='Page_390'></span></p> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.<a id='r49'/><a href='#f49' style='text-decoration:none'><sup><span style='font-size:0.9em'>[49]</span></sup></a></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='391' id='Page_391'></span> +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.</p> + +<p class='pindent'>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<a id='r50'/><a href='#f50' style='text-decoration:none'><sup><span style='font-size:0.9em'>[50]</span></sup></a> 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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='392' id='Page_392'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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; +<span class='pageno' title='393' id='Page_393'></span> +Hitler just spoke quite generally about—I quote—“possibilities of +development.”<a id='r51'/><a href='#f51' style='text-decoration:none'><sup><span style='font-size:0.9em'>[51]</span></sup></a> 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.</p> + +<p class='pindent'>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<a id='r52'/><a href='#f52' style='text-decoration:none'><sup><span style='font-size:0.9em'>[52]</span></sup></a> 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 +<span class='pageno' title='394' id='Page_394'></span> +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.<a id='r53'/><a href='#f53' style='text-decoration:none'><sup><span style='font-size:0.9em'>[53]</span></sup></a></p> + +<p class='pindent'>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.”<a id='r54'/><a href='#f54' style='text-decoration:none'><sup><span style='font-size:0.9em'>[54]</span></sup></a></p> + +<p class='pindent'>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.<a id='r55'/><a href='#f55' style='text-decoration:none'><sup><span style='font-size:0.9em'>[55]</span></sup></a> 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:</p> + +<p class='pindent'>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<a id='r56'/><a href='#f56' style='text-decoration:none'><sup><span style='font-size:0.9em'>[56]</span></sup></a> +who added that Hitler allayed Raeder’s misgivings about +<span class='pageno' title='395' id='Page_395'></span> +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.</p> + +<p class='pindent'>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<a id='r57'/><a href='#f57' style='text-decoration:none'><sup><span style='font-size:0.9em'>[57]</span></sup></a> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='396' id='Page_396'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Hossbach Document, discussion of 5 November 1937 in the Reich +Chancellery:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='397' id='Page_397'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='398' id='Page_398'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.<a id='r58'/><a href='#f58' style='text-decoration:none'><sup><span style='font-size:0.9em'>[58]</span></sup></a> 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.</p> + +<p class='pindent'>It seems to me important that up to August 1939 not only the +witness Dahlerus, but also Chamberlain still believed in Hitler’s +<span class='pageno' title='399' id='Page_399'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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 +<span class='pageno' title='400' id='Page_400'></span> +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.”</p> + +<p class='pindent'>I now come to the address of Hitler to the commanders-ih-chief +on 22 August 1939 at the Obersalzberg.<a id='r59'/><a href='#f59' style='text-decoration:none'><sup><span style='font-size:0.9em'>[59]</span></sup></a> 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<a id='r60'/><a href='#f60' style='text-decoration:none'><sup><span style='font-size:0.9em'>[60]</span></sup></a> 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,<a id='r61'/><a href='#f61' style='text-decoration:none'><sup><span style='font-size:0.9em'>[61]</span></sup></a> 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.</p> + +<p class='pindent'>When surveying all this material, it becomes clear that Document +1014-PS is extremely incomplete and inaccurate, all the more +<span class='pageno' title='401' id='Page_401'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I come now to Hitler’s speech to the commanders-in-chief on +23 November 1939.<a id='r62'/><a href='#f62' style='text-decoration:none'><sup><span style='font-size:0.9em'>[62]</span></sup></a> 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.</p> + +<p class='pindent'><span class='pageno' title='402' id='Page_402'></span></p> + +<p class='pindent'>THE PRESIDENT: Yes.</p> + +<p class='pindent'>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,<a id='r63'/><a href='#f63' style='text-decoration:none'><sup><span style='font-size:0.9em'>[63]</span></sup></a> 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.”</p> + +<p class='pindent'>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.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 17 July 1946 at 1000 hours.</span>]</h3> + +<p class='line' style='text-align:center;margin-top:2em;'>NOTES</p> + +<hr class='footnotemark'/> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f12'><a href='#r12'>[12]</a></span> + +Vanselow, <span class='gesp'>Völkerrecht</span>, Berlin, 1931, Figure 226 i.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f13'><a href='#r13'>[13]</a></span> + +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.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f14'><a href='#r14'>[14]</a></span> + +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?”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f15'><a href='#r15'>[15]</a></span> + +Bauer, Das U-Boot, 1931, Report on it by Captain G. P. Thomson, R.N. in +<span class='gesp'>The Journal of the Royal News Instruction 1931</span>, Page 511.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f16'><a href='#r16'>[16]</a></span> + +Sperrgebiete im Seekrieg, Zeitschrift für ausländisches öffentliches Recht +und Völkerrecht, Volume VIII, 1938, Page 671.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f17'><a href='#r17'>[17]</a></span> + +French Yellow Book, La Conférence de Washington, Page 88.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f18'><a href='#r18'>[18]</a></span> + +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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f19'><a href='#r19'>[19]</a></span> + +Commander Russel Grenfell, R.N., <span class='gesp'>The Art of the Admiral</span>, 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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f20'><a href='#r20'>[20]</a></span> + +<span class='gesp'>De jure pacis ac belli</span>, 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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f21'><a href='#r21'>[21]</a></span> + +Admiral King, <span class='gesp'>Report of the American High Command</span>.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f22'><a href='#r22'>[22]</a></span> + +John Chamberlain, “The man who pushed Pearl Harbor,” <span class='gesp'>Life</span>, of 1 April 1946.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f23'><a href='#r23'>[23]</a></span> + +Manual for Courts Martial U.S. Army, 1928, Page 10.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f24'><a href='#r24'>[24]</a></span> + +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.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f25'><a href='#r25'>[25]</a></span> + +Freiherr von Freytagh-Loringhoven, <span class='gesp'>Völkerrechtliche Neubildungen +im Kriege</span>, Hamburg 1941, Page 5.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f26'><a href='#r26'>[26]</a></span> + +Quoted from “<span class='gesp'>Neue Auslese</span>,” 1946, Number 1, Page 16.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f27'><a href='#r27'>[27]</a></span> + +Not always acknowledged by English authors. Compare for instance A. C. +Bell, <span class='gesp'>A History of the Blockade of Germany</span>, 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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f28'><a href='#r28'>[28]</a></span> + +Grenfell, <span class='gesp'>The Art of the Admiral</span>, 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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f29'><a href='#r29'>[29]</a></span> + +See also protest of the Soviet Government to the British Ambassador of +25 October 1939, printed as Number 44 in “<span class='gesp'>Urkunden zum Seekriegsrecht</span>,” +Volume I, edited by the High Command of the Navy.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f30'><a href='#r30'>[30]</a></span> + +See for instance <span class='gesp'>Wheaton’s International Law</span>, 5th Edition, +Page 727, Liddell Hart, “The Revolution in Naval Warfare,” <span class='gesp'>Observer</span> of +14 April 1946.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f31'><a href='#r31'>[31]</a></span> + +Oppenheim, Die Stellung des Kauffahrteischiffes im Seekrieg, <span class='gesp'>Zeitschrift +für Völkerrecht</span>, 1914, Page 165.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f32'><a href='#r32'>[32]</a></span> + +Concerning the execution of these orders in the first World War, Vidaud, +in “<span class='gesp'>Les navires de commerce armés pour leur défense</span>,” +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.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f33'><a href='#r33'>[33]</a></span> + +Compare for instance “Submarines in the Atomic Era” in the <span class='gesp'>New York +Herald Tribune</span>, European Edition, of 27 April 1946, Page 2.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f34'><a href='#r34'>[34]</a></span> + +A. C. Bell, Historical Section, Committee of Imperial Defense, <span class='gesp'>A History +of the Blockade of Germany and of the Countries Associated +with Her in the Great War 1914-1918</span>—The introduction +contains the remark: “This history is confidential and for official use only.” +(Quoted from the German edition by Böhmert, <span class='gesp'>Die englische Hunger-blockade +im Weltkrieg</span>, Essen, 1943).</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f35'><a href='#r35'>[35]</a></span> + +Hugo Grotius, <span class='gesp'>De jure pacis ac belli</span>, Book II, Chapter XXI.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f36'><a href='#r36'>[36]</a></span> + +Hugo Grotius, <span class='gesp'>De jure pacis ac belli</span>, Book II, Chapter XXVI. +Paragraph 4, “He can believe that in a matter of doubt he must obey his superior.”</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f37'><a href='#r37'>[37]</a></span> + +See <span class='gesp'>Wheaton’s International Law</span>, 5th Edition, Pages 543-5.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f38'><a href='#r38'>[38]</a></span> + +Claud Mullins, <span class='gesp'>The Leipzig Trials</span>, London, 1921.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f39'><a href='#r39'>[39]</a></span> + +See Document Book 1, Documents Numbers Raeder-3 and 4, Page 9 et sequentes.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f40'><a href='#r40'>[40]</a></span> + +Especially the following documents are concerned:</p> + +<p class='line'> </p> + +<p class='noindent'>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.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f41'><a href='#r41'>[41]</a></span> + +Record of 4 December 1945, Volume III, Page 95.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f42'><a href='#r42'>[42]</a></span> + +Record of 4 December 1945, Volume III, Page 110.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f43'><a href='#r43'>[43]</a></span> + +Reich Defense Law of 4 September 1938.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f44'><a href='#r44'>[44]</a></span> + +For instance under Balfour and Churchill.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f45'><a href='#r45'>[45]</a></span> + +Document Book 1, Document Number Raeder-4, Page 12.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f46'><a href='#r46'>[46]</a></span> + +Document Book 6, Document Number Raeder-121, Page 524.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f47'><a href='#r47'>[47]</a></span> + +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.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f48'><a href='#r48'>[48]</a></span> + +Second Lohmann Affidavit, Document Number Raeder-8, Document Book 1, +Page 41.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f49'><a href='#r49'>[49]</a></span> + +Refer to Documents 386-PS, USA-25; L-79, USA-27; 798-PS, USA-29; 1014-PS, +USA-30; 769-PS, USA-23.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f50'><a href='#r50'>[50]</a></span> + +Document Book 2, Document Number Raeder-27, Page 144 et sequentes.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f51'><a href='#r51'>[51]</a></span> + +See Hossbach Document.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f52'><a href='#r52'>[52]</a></span> + +Record of 19 March 1946, Volume IX, Page 463.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f53'><a href='#r53'>[53]</a></span> + +Record of 19 March 1946, Volume IX, page 481.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f54'><a href='#r54'>[54]</a></span> + +Record of 16 May 1946, Volume XIV, Page 35.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f55'><a href='#r55'>[55]</a></span> + +Record of 22 May 1946, Volume XIV, Page 314.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f56'><a href='#r56'>[56]</a></span> + +Record of 22 May 1946, Volume XIV, Page 306.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f57'><a href='#r57'>[57]</a></span> + +Record of 22 May 1946, Volume XIV, Page 306.</p> + +<p class='noindent'>Affidavit Generaladmiral Böhm, Document Number Raeder-129.</p> + +<p class='noindent'>Affidavit Generaladmiral Albrecht, Document Number Raeder-128.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f58'><a href='#r58'>[58]</a></span> + +Record of 22 May 1946, Volume XIV, Page 306.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f59'><a href='#r59'>[59]</a></span> + +See Documents Numbers 798-PS, USA-29; 1014-PS, USA-30, Document Book 2. +Page 144, Document Number Raeder-77.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f60'><a href='#r60'>[60]</a></span> + +Record of 26 November 1945, Volume II, Page 292.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f61'><a href='#r61'>[61]</a></span> + +Raeder Document Book 2, Page 144.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f62'><a href='#r62'>[62]</a></span> + +See Document 789-PS, USA-93.</p> + +</div> + +<div class='footnote'> +<p class='footnote'> +<span class='footnote-id' id='f63'><a href='#r63'>[63]</a></span> + +Document Book 2, Pages 116-117, Document Number Raeder-19.</p> + +</div> + +<hr class='pbk'/> + +<div><span class='pageno' title='403' id='Page_403'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND EIGHTIETH DAY</span><br/> Wednesday, 17 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Athenia</span>, 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 <span class='it'>Völkischer Beobachter</span> of +23 October 1939 entitled “Churchill Sinks the <span class='it'>Athenia</span>.” 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.</p> + +<p class='pindent'>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 <span class='it'>Völkischer Beobachter</span> 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 +<span class='pageno' title='404' id='Page_404'></span> +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:</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(2) Accordingly Raeder, as stated in Document D-912, published +a <span class='it'>bona fide</span> denial and gave statements to this effect to the American +Naval Attaché and to the German State Secretary, Baron Weizsäcker.</p> + +<p class='pindent'>(3) Raeder did not realize the mistake until after the return of +<span class='it'>U-30</span> on 27 September 1939.</p> + +<p class='pindent'>(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.</p> + +<p class='pindent'>(5) Fritzsche disclosed, that after the first investigation by the +Navy in early September 1939, he made no further investigation +and that the <span class='it'>Völkischer Beobachter</span> 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 <span class='it'>Völkischer Beobachter</span> +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. +<span class='pageno' title='405' id='Page_405'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Athenia</span> case, of all things, in such +ponderous and injurious terms for the sole purpose of discrediting +the former Commander-in-Chief of the Navy.</p> + +<p class='pindent'>Concerning Greece, the Prosecution accuses Raeder of violation +of neutrality and breach of international law on two counts, namely:</p> + +<p class='pindent'>(1) On the basis of Document C-12, according to which Hitler +decided, basing on a report by Raeder on 30 December 1939, that:</p> + +<div class='blockquote'> + +<p>“Greek merchant ships in the zone around England which the +U.S.A. declared prohibited will be treated like enemy ships.”</p> + +</div> + +<p class='pindent'>(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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='406' id='Page_406'></span> +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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='407' id='Page_407'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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 +<span class='pageno' title='408' id='Page_408'></span> +would be for Norway and all Scandinavia to remain absolutely +neutral.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='409' id='Page_409'></span> +scientific compilation and findings. For the purpose of final plea I +shall confine myself to a summary of the essential concepts of the +opinion.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 ...</p> + +<p class='pindent'>PRESIDENT [<span class='it'>Interposing</span>]: 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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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? +<span class='pageno' title='410' id='Page_410'></span></p> + +<p class='pindent'>DR. SIEMERS: Mr. President, I beg to apologize, but I am afraid +I cannot quite understand the sense as it comes through in translation.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>PRESIDENT: Assuming, I only say assuming that the war +begun by Germany against Poland were to be held to be an aggressive +war.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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 <span class='it'>Altmark</span>. But basically, carrying on shipping +<span class='pageno' title='411' id='Page_411'></span> +operations from Narvik was justified according to international law +as far as I know.</p> + +<p class='pindent'>PRESIDENT: Continue.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>DR. SIEMERS: Yes.</p> + +<p class='pindent'>PRESIDENT: And thirdly, for the transport of prisoners of war?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>With reference to prisoners of war, may I point out that only +one case arose and that is the case of the <span class='it'>Altmark</span>. 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.</p> + +<p class='pindent'>PRESIDENT: You may continue.</p> + +<p class='pindent'>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 +<span class='pageno' title='412' id='Page_412'></span> +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).</p> + +<p class='pindent'>The legal title under which the belligerent power thus placed at +a disadvantage can proceed to take countermeasures is the “right +of self-defense” (<span class='it'>das Recht der Selbsterhaltung; le droit de défense +personelle</span>). 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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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. +<span class='pageno' title='413' id='Page_413'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The well-known English specialist on international law, Westlake, +states with regard to the question of measures:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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 +<span class='pageno' title='414' id='Page_414'></span> +clearly and correctly in accordance with international law in an official +announcement of the Foreign Office, as follows:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='415' id='Page_415'></span> +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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='416' id='Page_416'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='417' id='Page_417'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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 <span class='it'>démarche</span> 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:</p> + +<div class='blockquote'> + +<p>“... 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).</p> + +</div> + +<p class='pindent'>On 27 February 1940, Churchill declared in the House of Commons +that he was “tired of considering the rights of neutrals” +(Document Raeder-97). +<span class='pageno' title='418' id='Page_418'></span></p> + +<p class='pindent'>It is interesting to note that unanimity was achieved in the sixth +session of the Supreme Council on 28 March 1940—I quote:</p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='419' id='Page_419'></span> +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.”</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“... 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).</p> + +</div> + +<p class='pindent'>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).</p> + +<p class='pindent'>All these facts go to show that, since the autumn of 1939, preparations +for possible action in Norway were made by studying +landing possibilities, <span class='it'>et cetera</span>. 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.</p> + +<p class='pindent'>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. +<span class='pageno' title='420' id='Page_420'></span></p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='421' id='Page_421'></span> +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.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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 +<span class='pageno' title='422' id='Page_422'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='423' id='Page_423'></span> +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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='424' id='Page_424'></span> +the Prosecution failed to prove Raeder to have committed a crime +or even a violation of international law.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Tirpitz</span>. 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).</p> + +<p class='pindent'>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 +<span class='pageno' title='425' id='Page_425'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='426' id='Page_426'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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 +<span class='pageno' title='427' id='Page_427'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='428' id='Page_428'></span> +(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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>The resulting strength and power has not been sufficiently +appreciated by the Prosecution, and has certainly not been taken +<span class='pageno' title='429' id='Page_429'></span> +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 <span class='it'>Psychology of the Masses</span> (published by Alfred Kröner) +in the chapter entitled, “The Leaders of the Masses.” I quote +from it:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='noindent'>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.</p> + +<p class='pindent'>Gustave le Bon continues:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>These words make it clear enough that Raeder could not resist +either.</p> + +<p class='pindent'>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, +<span class='pageno' title='430' id='Page_430'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I therefore ask the High Tribunal to acquit Admiral Dr. Erich +Raeder on all points of the Indictment.</p> + +<p class='pindent'>PRESIDENT: I call on Dr. Sauter for the Defendant Von Schirach.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“Youth throws a bridge across all frontiers and seas! I call +upon the Youth of the World and through them, upon Peace!”</p> + +</div> + +<p class='pindent'>And Baldur von Schirach, then Gauleiter of Vienna, said to +Hitler in 1940: “Vienna cannot be conquered with bayonets, but +only with music.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='431' id='Page_431'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='432' id='Page_432'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='433' id='Page_433'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='434' id='Page_434'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='435' id='Page_435'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>Rhein-Neckar Zeitung</span> of 6 July 1946 which states +<span class='pageno' title='436' id='Page_436'></span> +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.</p> + +<p class='pindent'>May I now continue in my presentation on Page 8.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>The Hitler Youth</span>, +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:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>Schirach had this comradeship and this socialism in mind when, +in 1934, he describes in his book <span class='it'>The Hitler Youth</span> how he conceived +this socialism; and I quote again, word for word: +<span class='pageno' title='437' id='Page_437'></span></p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='noindent'>That ends the quotation describing the attitude of Von Schirach at +that time.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='438' id='Page_438'></span> +night work, increasing spare time, granting paid vacations, prohibiting +child labor, raising the protected age of adolescents, <span class='it'>et +cetera</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>Wille und Macht</span> 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.</p> + +<div class='blockquote'> + +<p>“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:</p> + +<p>“Our two nations know that an understanding between them +would be one of the most valuable factors for world peace; +<span class='pageno' title='439' id='Page_439'></span> +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 <span class='it'>rapprochement</span> 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).</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“The education of youth in this spirit is one of the most +important tasks of the politicians of both our countries” +(Document Schirach-111).</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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).</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“The <span class='it'>rapprochement</span> 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 +<span class='pageno' title='440' id='Page_440'></span> +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.”</p> + +</div> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“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.)</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Prosecution has stated in this very connection that he +referred to the “Lebensraum” in his book <span class='it'>The Hitler Youth</span>, 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, <span class='it'>The Hitler Youth</span>, 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, +<span class='it'>The Hitler Youth</span>, published in 1936; but he quite obviously did +<span class='pageno' title='441' id='Page_441'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>PRESIDENT: We will adjourn now.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 18 July at 1000 hours.</span>]</h3> + +<hr class='pbk'/> + +<div><span class='pageno' title='442' id='Page_442'></span><h1><span style='font-size:larger'>ONE HUNDRED<br/> AND EIGHTY-FIRST DAY</span><br/> Thursday, 18 July 1946</h1></div> + +<h2 class='nobreak'><span class='it'>Morning Session</span></h2> + +<p class='pindent'>MARSHAL: May it please the Tribunal, the Defendants Hess, +Von Ribbentrop, and Fritzsche are absent.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='443' id='Page_443'></span> +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.</p> + +<p class='pindent'>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.)</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='444' id='Page_444'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='445' id='Page_445'></span> +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.</p> + +<p class='pindent'>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, +<span class='it'>et cetera</span>. Such was Von Schirach’s point of view.</p> + +<p class='pindent'>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 +<span class='it'>Failure of a Mission</span> 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:</p> + +<div class='blockquote'> + +<p>“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.’ ”</p> + +</div> + +<p class='pindent'><span class='pageno' title='446' id='Page_446'></span></p> + +<p class='pindent'>And Henderson added:</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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, <span class='it'>Christmas Gift of the War +Welfare Service</span>. 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='447' id='Page_447'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='448' id='Page_448'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='449' id='Page_449'></span> +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.</p> + +<p class='pindent'>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 +<span class='pageno' title='450' id='Page_450'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='451' id='Page_451'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>May it please the Tribunal, I shall proceed with my statement, +the middle of Page 26.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='452' id='Page_452'></span> +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.</p> + +<div class='blockquote'> + +<p>“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.”</p> + +</div> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='453' id='Page_453'></span> +“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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<div class='blockquote'> + +<p>“I cannot take back this wicked statement; I must take the +responsibility for it. I spoke these words, which I sincerely +regret.”</p> + +</div> + +<p class='pindent'><span class='pageno' title='454' id='Page_454'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.” +<span class='pageno' title='455' id='Page_455'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='456' id='Page_456'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='457' id='Page_457'></span> +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.</p> + +<p class='pindent'>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 +<span class='pageno' title='458' id='Page_458'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: We will adjourn now.</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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 +<span class='pageno' title='459' id='Page_459'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='460' id='Page_460'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='461' id='Page_461'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='462' id='Page_462'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='463' id='Page_463'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='464' id='Page_464'></span> +therefrom, this would be a valuable result of this Trial for our +German youth.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='465' id='Page_465'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='466' id='Page_466'></span> +the people; but you, the Nuremberg Tribunal, should administer +justice in the name of humanity.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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: +<span class='it'>Justitia est fundamentum regnorum</span>.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: I call on Dr. Servatius for the Defendant +Sauckel.</p> + +<p class='pindent'>DR. SERVATIUS: Mr. President, may it please the Tribunal:</p> + +<p class='pindent'>The Defense of the Defendant Sauckel has, in the first place, +to deal with the charge of “slave labor.” What is slave labor?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It follows therefrom that the deportation mentioned in Article +6(b) cannot be the same thing as deportation according to +<span class='pageno' title='467' id='Page_467'></span> +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 ...</p> + +<p class='pindent'>THE PRESIDENT [<span class='it'>Interposing</span>]: That paragraph of your speech +which is in English on Page 2, the second paragraph:</p> + +<p class='pindent'>“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?</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 <span class='it'>uvod</span>, 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 <span class='it'>ssylka</span>, by which penal +deportation under the rule of the czars is understood as denoting +deportation in the sense of penal deportation.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>MARSHAL: The Court will remain adjourned until a quarter +to two.</p> + +<h3>[<span class='it'>The Tribunal recessed until 1345 hours.</span>]</h3> + +<hr class='pbk'/> + +<h2><span class='pageno' title='468' id='Page_468'></span><span class='it'>Afternoon Session</span></h2> + +<p class='pindent'>DR. SERVATIUS: I was speaking of the terminology of “deportation” +in the Russian text. I pointed out the distinction between the +word <span class='it'>uvod</span> meaning only transportation, and <span class='it'>ssylka</span> 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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:</p> + +<p class='pindent'>The English version speaks of “slave labor” as a war crime and +of “enslavement” as a crime against humanity; the French version +states <span class='it'>travaux forcés</span> and <span class='it'>réduction en esclavage</span>, the Russian +version accordingly <span class='it'>rabstvo</span> (slavery) and <span class='it'>poraboshtshenie</span> (enslavement). +It is not discernible how the terms chosen differentiate +<span class='it'>in re</span>. 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 +<span class='pageno' title='469' id='Page_469'></span> +terminology of the Charter and that more of an ethical discrimination +and stigmatization is intended.</p> + +<p class='pindent'>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,” +<span class='it'>esclavage</span>, and <span class='it'>poraboshtshenie</span> for the inhuman form of +labor, whereas the labor not inconsistent with laws of humanity is +called “forced labor,” <span class='it'>travaux forcés</span>, and <span class='it'>prinudidjenaja rabota</span>. +Slave labor (“slave labor,” <span class='it'>travaux forcés</span>, and <span class='it'>rabstvo</span>) consequently +is the general term comprising both kinds.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='it'>travaux forcés</span> and uses terms such as <span class='it'>les obligèrent à travailler</span> and +<span class='it'>mis en obligation</span>; the Russian version follows this and also speaks +only of “compulsory labor” as <span class='it'>prinuditjelnaja rabota</span> but does not +refer to this as being slave labor.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='470' id='Page_470'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Although Article 52 of the Hague Convention on Land Warfare +can accordingly not be directly applied, its basic principles are +<span class='pageno' title='471' id='Page_471'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='472' id='Page_472'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='473' id='Page_473'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='474' id='Page_474'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='475' id='Page_475'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='476' id='Page_476'></span> +state to carry on the war through increase of production and to +allow it to release its own workers for service at the front.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The notion that in Britain the women were conscripted for work +in a higher degree than in Germany is wrong. In Germany the +<span class='pageno' title='477' id='Page_477'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='478' id='Page_478'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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, +<span class='pageno' title='479' id='Page_479'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='480' id='Page_480'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='481' id='Page_481'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='482' id='Page_482'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The natural interest of the state lies in attaining security by +winning the aliens over inwardly because their collaboration is +<span class='pageno' title='483' id='Page_483'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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, +<span class='pageno' title='484' id='Page_484'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='485' id='Page_485'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='486' id='Page_486'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='487' id='Page_487'></span></p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: Would that be a convenient time to break off?</p> + +<h3>[<span class='it'>A recess was taken.</span>]</h3> + +<p class='pindent'>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 +<span class='pageno' title='488' id='Page_488'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='489' id='Page_489'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='490' id='Page_490'></span> +would protect the “poor fellow” and intercede for the human rights +of others. This is Document R-124, Page 1913.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>The Defendant Sauckel could merely place requests with these +agencies for the number of workers he was ordered to bring to +<span class='pageno' title='491' id='Page_491'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='492' id='Page_492'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='493' id='Page_493'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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). +<span class='pageno' title='494' id='Page_494'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Document 3010-PS, Economy Inspection South, may also be +quoted, in which on 17 August 1943 the use of “all suitable means” +is permitted.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>What is the position as to the admissibility of such measures? +<span class='pageno' title='495' id='Page_495'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='496' id='Page_496'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='497' id='Page_497'></span> +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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.”</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='498' id='Page_498'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>I now come to the question of the treatment of workers.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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)].</p> + +<p class='pindent'>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 +<span class='pageno' title='499' id='Page_499'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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. +<span class='pageno' title='500' id='Page_500'></span></p> + +<p class='pindent'>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)].</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='501' id='Page_501'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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). +<span class='pageno' title='502' id='Page_502'></span></p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='503' id='Page_503'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>In addition to his own staff, the Defendant Sauckel on 6 April 1942 +appointed the Gauleiter as “Commissioners for the Mobilization of +<span class='pageno' title='504' id='Page_504'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='505' id='Page_505'></span> +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.</p> + +<p class='pindent'>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).</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Herewith I conclude my exposition regarding the special field +of labor allocation.</p> + +<p class='pindent'>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 +<span class='pageno' title='506' id='Page_506'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>THE PRESIDENT: I call on Dr. Exner for the Defendant Jodl.</p> + +<p class='pindent'>PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): +May it please the Tribunal, in this unique Trial the discovery of the +<span class='pageno' title='507' id='Page_507'></span> +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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>It is actually clear, I think, from the previous speakers’ statements +that a conspiracy to commit Crimes against Peace and the +<span class='pageno' title='508' id='Page_508'></span> +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.</p> + +<p class='pindent'>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 <span class='it'>Mein Kampf</span>, 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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='509' id='Page_509'></span> +National Socialism in any way, his attitude would have been the +opposite on every one of these points.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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 +<span class='pageno' title='510' id='Page_510'></span> +upon in the event of war to carry out the allegedly common aggressive +plan.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>Mr. President, I have reached the end of a paragraph, and this +perhaps might be an opportune moment to recess.</p> + +<p class='pindent'>THE PRESIDENT: Very well.</p> + +<h3>[<span class='it'>The Tribunal adjourned until 19 July 1946 at 1000 hours.</span>]</h3> + +<hr class='pbk'/> + +<p class='line' style='text-align:center;margin-top:4em;margin-bottom:2em;font-size:1.2em;'>TRANSCRIBER NOTES</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>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.</p> + +<p class='pindent'>An attempt has been made to produce this eBook in a format as close as +possible to the original document presentation and layout.</p> + +<p class='line'> </p> + +<p class='noindent'>[The end of <span class='it'>Trial of the Major War Criminals +Before the International Military Tribunal Vol. 18</span>, +by Various.]</p> + +<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 75266 ***</div> + </body> + <!-- created with fpgen.py 4.67 on 2025-02-01 00:41:01 GMT --> +</html> + diff --git a/75266-h/images/cover.jpg b/75266-h/images/cover.jpg Binary files differnew file mode 100644 index 0000000..f01bd21 --- /dev/null +++ b/75266-h/images/cover.jpg diff --git a/75266-h/images/title.jpg b/75266-h/images/title.jpg Binary files differnew file mode 100644 index 0000000..bbe4ad9 --- /dev/null +++ b/75266-h/images/title.jpg |
