path: root/75266-0.txt

*** START OF THE PROJECT GUTENBERG EBOOK 75266 ***


                          [Cover Illustration]




                                 TRIAL
                                   OF
                        THE MAJOR WAR CRIMINALS

                                 BEFORE

                           THE INTERNATIONAL
                           MILITARY TRIBUNAL

                              _NUREMBERG_
                    14 NOVEMBER 1945—1 OCTOBER 1946


                             [Illustration]


                   _PUBLISHED AT NUREMBERG, GERMANY_
                                 _1948_




        This volume is published in accordance with the
        direction of the International Military Tribunal by
        the Secretariat of the Tribunal, under the jurisdiction
        of the Allied Control Authority for Germany.




                              VOLUME XVIII



                            _OFFICIAL TEXT_

                                _IN THE_

                            ENGLISH LANGUAGE



                             _PROCEEDINGS_

                        9 July 1946—18 July 1946




                              CONTENTS


     One Hundred and Seventy-fourth Day, Tuesday, 9 July 1946,
                  Morning Session                                   1
                  Afternoon Session                                48

     One Hundred and Seventy-fifth Day, Wednesday, 10 July 1946,
                  Morning Session                                  89

     One Hundred and Seventy-sixth Day, Thursday, 11 July 1946,
                  Morning Session                                 129
                  Afternoon Session                               164

     One Hundred and Seventy-seventh Day, Friday, 12 July 1946,
                  Morning Session                                 193
                  Afternoon Session                               227

     One Hundred and Seventy-eighth Day, Monday, 15 July 1946,
                  Morning Session                                 253
                  Afternoon Session                               287

     One Hundred and Seventy-ninth Day, Tuesday, 16 July 1946,
                  Morning Session                                 325
                  Afternoon Session                               364

     One Hundred and Eightieth Day, Wednesday, 17 July 1946,
                  Morning Session                                 403

     One Hundred and Eighty-first Day, Thursday, 18 July 1946,
                  Morning Session                                 442
                  Afternoon Session                               468




    Editor’s Note: _In respect to the presentation of the final
    pleas by Counsel for the Defense, the Tribunal in several
    instances directed that written speeches of excessive length be
    shortened for oral presentation in Court and that notice would
    be taken by the Tribunal of the paragraphs omitted. In the
    sessions to follow such passages have been reproduced in small
    type._




                              ONE HUNDRED
                         AND SEVENTY-FOURTH DAY
                          Tuesday, 9 July 1946


                           _Morning Session_

MARSHAL (Lieutenant Colonel James R. Gifford): May it please the
Tribunal, the Defendants Hess and Fritzsche are absent.

THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): I have an order to
read. The Tribunal orders:

    1. Applications for witnesses for organizations to be heard by
    the Tribunal in open court in accordance with Paragraph 5 of the
    Tribunal’s order of 13 March 1946 should be made to the General
    Secretary as soon as possible, and in any case not later than 20
    July.

    2. The Tribunal believes that so much evidence has already been
    taken, and so wide a field has been covered, that only a very
    few witnesses need be called for each organization. That is all.

DR. OTTO NELTE (Counsel for Defendant Keitel): Mr. President, Gentlemen
of the Tribunal, yesterday I dealt with the problem of Keitel and the
Russian campaign. Now I recall to you what Keitel said in the witness
box concerning the so-called ideological orders:

    “I knew their content. In spite of my personal misgivings I
    passed them on without letting myself be deterred by the
    possibility of serious consequences.”

I wanted to point that out in order to make what I have to say now
comprehensible, above all, in its extent. In the course of time the
opinion arose and was disseminated throughout the Army, that Field
Marshal Keitel was a “yes man,” a tool of Hitler’s and that he was
betraying the interests of the Armed Forces. These generals did not see,
nor were they interested in the fact that this man was fighting a
constant battle, day after day, in every possible field, with Hitler and
the forces which were influencing him on all sides. The effects of this
distorted picture shown here in detail, which definitely did not apply
to Keitel, especially not in the sphere of strategic operations,
planning, and execution, made themselves still felt even in this Trial;
perhaps not without the fault of the Defendant Keitel himself. As to the
justification of his conception of duty there can in principle be no
argument. It has also been confirmed here by the witness Admiral
Schulte-Mönting for the Defendant Grossadmiral Raeder. There can be no
doubt that the rest of the admirals and generals were in principle of
the same point of view, that it is impossible in military spheres to
criticize before subordinates the decision of a superior as expressed in
an order, even if one has misgivings about the order.

One may say that every principle, every basic rule must be interpreted
and applied in a reasonable way, that every exaggeration of a good
principle detracts from it. In the case of Keitel this objection affects
the problem of his responsibility and guilt.

Does nonrecognition of the point where a principle, correct in itself,
is being carried to excess and thus endangers the object for the
protection of which it has been established, constitute guilt? In the
case of Keitel we must consider this crucial question from the point of
view of a soldier. The thoughts and ideas which the Defendant Keitel had
in this connection were the following:

It is incontestable that the principle of obedience is necessary for
every army; one might say that obedience—in civilian life a virtue and
therefore more or less unstable in its application—must be the
essential element of a soldier’s character, because without this
principle of obedience the aim which is to be accomplished by the army
could not be achieved. This aim—the security of the country, the
protection of the people, the maintenance of the most precious national
possessions—is so sacred that the importance of the principle of
obedience cannot be valued highly enough. Hence, the duty of those
called upon to preserve that national institution, the Armed Forces, in
the sense of its higher task, is to emphasize the importance of
obedience. But what the general demands of the soldier, because it is
indispensable, must hold good for himself too. This also applies to the
principle of obedience.

It would be dangerous to weaken an order, still less an essential
principle, by mentioning exaggerations and taking them into
consideration at the outset. That would leave the principle of decision
to the individual, that is, to his judgment. There may be cases where
the decision depends, or must be made dependent, on actual
circumstances. In theory, that would lead to a devaluation or even to an
abrogation of the principle. In order to forestall this danger and to
eliminate any doubt as to its absolute importance, the principle of
obedience has been changed in military life into one of “absolute
obedience,” and embodied in the oath of allegiance. This is equally
valid for the general as for the common soldier.

The Defendant Keitel not only grew up in this school of thought, but
during the 37 years of his military service, up to 1938, including the
first World War, he had become convinced that this principle of
obedience is the strongest pillar upon which the Armed Forces, and
thereby the security of the country, rests.

Deeply imbued with the importance of his profession, he had served the
Kaiser, Ebert, and Von Hindenburg in accordance with this principle. As
representatives of the State, they had to a certain extent an impersonal
and symbolic effect on Keitel; Hitler, from 1934, at first appeared in
the same light to him, that is, merely as representing the State,
without any personal connection, in spite of the fact that his name was
mentioned in the oath of allegiance. In 1938 Keitel as Chief of the OKW
came into the immediate circle and the personal sphere of Hitler. It
appears important for further explanation and in assessing the
personality of Keitel to bear in mind that Keitel, as the result of his
highly-developed soldierly conception of duty described above, and the
pronounced feeling of soldierly obedience, was now exposed to the direct
effects of Hitler’s personality.

I am inclined to assume that Hitler had clearly realized, in the
preliminary discussions with Keitel which led to the Führer Order of 4
February 1938, that Keitel was the type of person he was including in
his calculations: A man upon whom he could rely as a soldier at any
time; who was devoted to him with sincere soldierly loyalty; whose
bearing fitted him to be a worthy representative for the Armed Forces in
his sphere; and who in the opinion of his superiors was an
extraordinarily able organizer as shown by the report of Field Marshal
Von Blomberg. Keitel himself has admitted that he sincerely admired
Hitler, and that the latter subsequently attained a strong influence
over him and brought him completely under his spell.

This must be borne in mind if we wish to understand how Keitel could
have made out and transmitted orders from Hitler which were
irreconcilable with the traditional conceptions of a German officer,
such as, for instance, orders C-50, 447-PS, et cetera, submitted by the
Soviet Russian Prosecution.

By exploiting the willingness to fight for Germany, which might be taken
for granted in the case of every German general, Hitler was able to
camouflage his party political aims with the pretext of defending the
national interests and to present the impending struggle with the Soviet
Union as a dispute which must inevitably be settled—even as a war of
defense, the necessity for which was made clear by definite information
which had been received and on which depended the existence of Germany.

In this way Hitler broached the fateful question. General Jodl has
testified here to the fact that, as an officer of long standing,
Keitel’s conscience pricked him nevertheless; and that he repeatedly,
but unsuccessfully, raised objections and suggested alternatives to the
orders drafted.

During his cross-examination by the representative of the American
Prosecution, the Defendant Keitel has openly declared that he was aware
of the illegal nature of these orders, but that he believed that he
could not refuse to obey the orders of the Supreme Commander of the
Armed Forces and head of the State, whose final pronouncement in the
case of all objections was: “I do not know why you are worrying; after
all, it is not your responsibility. I myself am solely responsible to
the German people.”

This is a reasoned analysis of Keitel’s attitude toward the so-called
ideologically-based orders of Hitler.

Keitel’s last hope, which in many cases proved to be justified, was that
the commanders-in-chief and subordinate commanders of the Armed Forces
would at their discretion and within the scope of their responsibility
either fail altogether to apply these harsh, inhuman orders, or would
apply them only to a limited degree. In view of his position, Keitel had
only the choice between military disobedience by refusing to transmit
the orders, or complying with the instructions to forward them. I shall
investigate in another connection the question of what alternative cases
of action might have been open to him. The problem here is to show how
Keitel came to forward orders which indisputably violated the laws of
warfare and humanity and why, by reason of his duty to obey, his sworn
loyalty to the Supreme Commander, and the fact that he saw in the order
of the head of the State the absolution of his own responsibility, he
failed to recognize the point at which even the soldier’s strict duty of
obedience must end.

Every soldier who has appeared here as a defendant or as a witness has
mentioned the duty of allegiance. All of them, when they sooner or later
realized that Hitler had drawn them and the Armed Forces into his
egocentric gamble for the highest stakes, have considered their oath of
allegiance as rendered to their country and have believed that they must
continue to do their duty in circumstances which to us and even to
themselves, when they realized the extent of resulting disaster, appear
inconceivable. Not only soldiers such as Raeder, Dönitz, and Jodl, but
Paulus as well, kept their positions and remained at their posts, and we
have heard the same from other defendants. The statements of the
Defendants Speer and Jodl in this connection were deeply moving.

The question of whether these facts relieve the Defendant Keitel of
guilty responsibility requires investigation. Keitel does not deny that
he bears a heavy moral responsibility. He realizes that no one who
played even the smallest part in this terrible drama can feel himself
devoid of the moral guilt in which he was entangled.

If I nevertheless emphasize the legal point of view, I am doing so
because Justice Jackson, in his speech on behalf of the Prosecution,
expressly referred to the law as being the basis of your verdict—to
international law, the law of individual states, and the law which the
victorious powers have embodied in the Charter.

I assume that the Defendant Keitel has recognized that some of Hitler’s
orders violated international law. The Charter says that a soldier
cannot clear himself by referring to orders given by his superiors or by
his government. At the beginning of my argument I asked you to determine
whether, independently of the terms of the Charter, the principle is
unimpeachable that the standard determining right or wrong cannot but
depend on a national concept.

THE PRESIDENT: Dr. Nelte, I see that in the next few pages you pass into
the realm of metaphysics. Don’t you think that part you might leave for
the Tribunal to read?

You must remember that you began your speech yesterday before the
morning adjournment, and you have got over seventy pages left of your
speech to read.

DR. NELTE: I have limited it and shall be through by noon.

THE PRESIDENT: Very well. Do you think it is necessary to read these
passages about metaphysics?

DR. NELTE: I want to show in these pages that they are not metaphysical
forces, and that the individual is not in a position to free himself
through metaphysical forces. I shall—well, I think I shall continue on
Page 121, immediately following my reference to Hitler’s character.

Perhaps I may just read from Page 120 at the bottom.

THE PRESIDENT: Very well, if you tell the Tribunal that you have limited
your presentation. I think you began yesterday at a quarter past 12. Go
on then. Take your own course, but do your best to limit it, and go to
Page 120 now.

[sm type begins]DR. NELTE: The French prosecutor, M. De Menthon, has
pointed to the “demoniacal” undertaking of Hitler and therewith
pronounced a word which had necessarily to be brought up in a discussion
which is dedicated to the investigation of events forming the background
of these Trials. It is the natural endeavor of intelligent people to
analyze the reasons for events which have deeply touched the fate of
mankind in these days. If these events deviate from the regular
happenings and the natural course of things so much that they sharpen
our imagination, we take our refuge in metaphysical powers. I ask you
not to consider the pointing to such metaphysical forces as an attempt
to evade responsibility. We are all still under the impression of the
attempt by a single man to lead the world from its course. I should not
care to be misunderstood: The “demoniacal” is an incomprehensible yet
extremely real power. Many call it “fate.” If I speak of fateful,
metaphysical powers, I do not mean the fate of antiquity and of
pre-Christian Germanism to which even the gods are necessarily
subject.[sm type ends]

[sm type begins]I should like to make this quite clear: The demoniacal
about which I am talking in this connection does not exclude the
capacity of man to discern evil; of course, I believe that the
demoniacal, should it become effective, does limit the capacity for
perception. Principiis obsta. The old German maxim says: “Resist from
the very start, the remedy will be prepared too late.”[sm type ends]

[sm type begins]Fate and guilt are not phenomena excluding one another,
but rather circles which overlap, so that there are sections of life
when both power groups are operative. I can only indicate here in a few
words what things may be considered as being governed by fate:
nationality, historical and traditional conditions of existence,
individual origin, professional surroundings.[sm type ends]

[sm type begins]Mankind today cannot yet recognize the difference
between the fateful, that is, the metaphysical powers which have become
operative, and the persons who have appeared as tools of these powers;
therefore the people who made their appearance as actors on the stage of
this terrible drama are “guilty people” to them. The further removed
mankind is from the events, the less it sees or feels the consequences,
the more objective does judgment—divested of actuality and subjective
instincts—become within the framework of the history of human
development. In this way the active figures and their share in the
events will be better recognized. But as long as we are under the recent
impression of the events, we do, it is true, realize the border line
between guilt and fate, but we cannot yet recognize it clearly.[sm type
ends]

[sm type begins]No less a person than Marshal Stalin has pointed out in
February 1946 that the second World War was not so much the result of
mistakes of individual statesmen, but rather the consequence of a
development of economic and political tension on the basis of the
existing capitalist economic system.[sm type ends]

I am now beginning Paragraph 3 on Page 120.

Hitler was the exponent of an idea. He was not only the representative
of a Party political program, but also of a philosophy which separated
him and the German people from the ideology of the rest of the world. As
a convinced enemy of parliamentary democracy, and obsessed with the
conviction that this was the true ideology, he was devoid of tolerance
and the spirit of compromise. This produced an egocentric ideology which
recognized as right only his own ideas and his own decisions. It led to
the “Führer State,” in which he was enthroned on a lonely height as the
incarnation of this faith, blind and deaf to all misgivings and
objections, suspicious of all those who he thought might constitute a
threat to his power, and brutal to everything that crossed his
ideological path.

This outline of his character, which has been verified by the evidence,
is incompatible with the Prosecution’s assumption that a partnership of
interests might have existed between Hitler and the defendant. There was
no partnership of interests and no common planning between Hitler and
the men who were supposed to be his advisers. The hierarchy of the
Führer State, in connection with the Führer Order Number 1, which gives
the crudest expression to the separation of work, can only admit of the
conclusion that the so-called co-workers were merely mouthpieces or
tools of an overwhelming will, and not men who translated their own will
into deeds. The only question, therefore, which can be raised is whether
these men were guilty in putting themselves at the disposal of such a
system and in submitting to the will of a man like Hitler.

This problem requires special examination in the case of soldiers,
because this submission to the will of some person, which is contrary to
the nature of a free man, is for the soldier the basic element of his
profession, and of the duties of obedience and allegiance which exist
for the soldier in all political systems.

The legal problem of conspiracy in the sense of the Indictment has been
dealt with by my colleague Dr. Stahmer and by Dr. Horn. In the specific
case of the Defendant Keitel I should only like to refer to two
sentences of the speech as the starting point of my statements:

    (1) “It is not sufficient that the plan be common to them all;
    they must know that it is common to all of them, and each one of
    them must of his own accord accept the plan as his own.

    (2) “That is why a conspiracy with a dictator at the head is a
    contradiction in itself. The dictator does not enter into a
    conspiracy with his followers; he concludes no agreement with
    them; he dictates.”

Dr. Stahmer has pointed out that no one acting under or on account of
pressure can therefore be a conspirator. I should like to modify this
for the circle to which the Defendant Keitel belonged. To say that the
defendants belonging to the military branch acted on account of or under
pressure, does not accurately represent the real circumstances. It is
correct to say that soldiers do not act voluntarily, that is, of their
own free will. They must do what they are ordered, regardless of whether
or not they approve of it. Accordingly, when soldiers engage in any
action, their will is disregarded, or at least not taken into
consideration; it will in fact always be disregarded because of the
nature of the military profession, and in applying the Leadership
Principle in the Armed Forces it cannot appear as a causal factor in the
initiation and execution of orders. In this military sphere, therefore,
we are not dealing with an abstract and thus theoretical deduction, but
with a conclusion which is bound to result from the nature and practice
of the military profession, when we maintain that the function of the
Defendant Keitel was based on military orders. The activity of the
Defendant Keitel with regard to the initiation of orders, decrees, and
other measures by Hitler, even insofar as they are criminal, cannot
therefore be considered as common work, that is, as the result of a
common plan within the meaning of the term “conspiracy.” Keitel’s
activity in regard to the execution of orders consists in the proper
transmission of orders in the operations sector and in the proper
execution of orders concerning the administration of the war, that is,
in the so-called ministerial sector.

No matter how this activity in itself might be qualified in terms of the
penal code, the Prosecution have not, I think, so far submitted anything
which could refute this train of thought as to the conspiracy.

This is a soldierly principle, and is valid wherever the military
command system exists. The significance of this statement is
particularly important in the case of the Defendant Keitel. For the
validity of such evidence might be questioned by saying that Keitel’s
functions were not those of a soldier, or at least not only those of a
soldier; and that he is therefore not entitled to claim consideration
purely on the grounds of the existing system of command. The unfortunate
nature of his position and the many and varied assignments, not all of
which can be fitted into the framework of a system, which fell to him as
Chief of the OKW, tend to obscure for us the primary factor with regard
to the Defendant Keitel, namely, that no matter what Keitel did, or with
what authority or organization he negotiated or was in contact, he was
always motivated by his function as a soldier and by some general or
particular order issued by Hitler.

The existence of a conspiracy seems to me incompatible with the theory
of a soldier’s functions and with Keitel’s position as head of the OKW,
and cannot logically be derived therefrom. In all cases in which the
Prosecution has claimed conspiracy to be prejudice, the purpose of this
conspiracy is an activity indulged in by the members in perpetrating
acts which differ from their normal private activity. The _ex contrario_
proposition is that the activity which a man must practice because it
belongs to his profession or office cannot be termed a conspiracy. It
may be added that the soldier does not act on his own initiative, but on
orders received. A soldier may therefore take part in a conspiracy aimed
against the duties he has undertaken as a soldier; but his activity
within the scope of his military functions can on no account be termed a
conspiracy.

The OKW, including the Armed Forces Operations Staff, was relatively
little affected by the conduct of the war in the East. By the OKW I mean
the staff of the OKW. It is well known that Hitler himself as Supreme
Commander of the Armed Forces, dealt with all matters concerning the
conduct of this—his own—ideological war and took a hand in it. The
Army was in command; but Hitler was in close and constant collaboration
with the Commander-in-Chief of the Army and his Chief of General Staff
up to December 1941 when, after taking over the supreme command of the
Army, he also took over its direct leadership.

This union in one person of the Supreme Commander of the Armed Forces
and Commander-in-Chief of the Army was evidently the cause of the
numerous mistakes which led to the severe incrimination of the OKW as
staff OKW, and of its Chief of Staff, Keitel.

Keitel feels himself to be gravely incriminated by the frank statements
he made in the witness box on the whole question of the Russian war. It
is, therefore, not only an understandable proceeding on the part of the
defense, but in fact its duty, to clarify the extent to which Keitel
bears the responsibility for these entire conditions of most frightful
atrocity and unimaginable degeneration.

To make these matters of competency, which are frequently extremely
complicated, easier of understanding, I refer to the Defendant Keitel’s
affidavit Number K-10, which was submitted to the Tribunal. It seems to
me essential just to emphasize the fact that the war against the Soviet
Union was from the first subject to three effective factors: (1)
Operations and command: High Command of the Army; (2) Economics: The
Four Year Plan; (3) Ideological: The SS Organizations.

These three factors were outside the competency of the OKW, which was
not empowered to issue orders affecting them. It is true, nevertheless,
that as a result of Hitler’s practically anarchic methods, by which he
himself retained entire control of the Government in his own hands, the
OKW and Keitel were sometimes used to transmit Hitler’s orders; but this
fact cannot in itself deflect the basic responsibility.

In view of the mass of material presented by the Soviet Prosecution, I
can refer within the scope of my statement to only a comparatively small
number of the documents. I shall give a brief summary of the documents
which have been dealt with separately, Pages 126 to 136.

To begin with, I referred to Documents USSR-90, 386, 364, 366, 106, and
407, and tried to prove in detail that the charges made against the OKW
and Keitel as the guilty parties have no value as evidence as far as
these documents are concerned.

Then, on Page 130, I referred to a category of documents with which I
have dealt earlier in Part 2 of my presentation on the subject of
official documents. If I refer in this connection to the official
reports of the Investigation Commission, I do so not because of their
actual contents, but because, although they were submitted in order to
implicate Keitel, they are in themselves proof that the charges made
against Keitel and the OKW are not justified as far as these grave
indictments are concerned.

Out of the large number of documents in this connection I have dealt
with USSR-40, 35, and 38. These official reports, which implicate the
High Command of the Armed Forces, do not contain a single concrete fact
referring to the Staff of the OKW—that is, Keitel—as the perpetrator
or instigator of these atrocities.

I make no comment on the contents of the documents; I merely point out
that Keitel in his official position, had neither the authority nor the
opportunity to give orders which resulted in the crimes alleged.

[sm type begins]First of all I shall deal with the Documents USSR-90,
386, 364, 366, 106, 407, submitted by the Prosecution for the specific
purpose of establishing Keitel’s responsibility.[sm type ends]

[sm type begins]They will show that not in a single case are they
orders, decrees, or regulations issued by the German High Command of the
Armed Forces and that it has not been proved that the latter was even
informed thereof.[sm type ends]

[sm type begins](1) The document Exhibit USSR-90 is a court-martial
sentence against the German Generals Bernhardt and Hamann, and includes
the following sentence:[sm type ends]

    [sm type begins]“During the temporary occupation of the Orlova
    area ... German Fascist intruders committed bestial crimes in
    huge numbers against the peaceful populations and prisoners of
    war on direct orders of the rapacious Hitler Government and the
    command of the Armed Forces, thus violating the rules of warfare
    established by international law....”[sm type ends]

[sm type begins]The argumentation leading up to the verdict does not
reveal proof of the claim that the “German Armed Forces command”—if
this means the OKW and the Defendant Keitel—ordered the crimes with
which the court-martial verdict is dealing. This is another of the
frequent confusions as to the status of the High Command of the Army and
the High Command of the Armed Forces. Statements on Page 2 of the
verdict seem to indicate this; it is said there:[sm type ends]

    [sm type begins]“The defendant, Lieutenant General Bernhardt ...
    acted according to plans and instructions of the
    Commander-in-Chief of the Army ...”[sm type ends]

[sm type begins]This document, therefore, cannot furnish proof for the
Prosecution’s contention that the Defendant Keitel is connected with the
crime which is described in Document USSR-90.[sm type ends]

[sm type begins](2) In connection with the facts in the case dealing
with “compulsory labor,” the Prosecution submitted in proof of its
charge against Keitel Document USSR-36, a letter by Reich Marshal
Göring, in whom Hitler had vested general powers within the framework of
the Four Year Plan for this essential project—Plan
Barbarossa-Oldenburg—as shown in the Green File.[sm type ends]

[sm type begins](3) Nor does the report or discussion of the Economic
Staff East (Wirtschaftsstab Ost) of 7 November 1941 (USSR-386) touch
upon the competency and responsibility of OKW, because the Economic
Staff East had nothing to do with the OKW and the Defendant Keitel.[sm
type ends]

[sm type begins]This is also proved by the Green File, the Thomas
Document 2353-PS, and Keitel’s affidavit, Keitel Document Book 2,
Exhibit Number Keitel-11.[sm type ends]

[sm type begins]The conclusion drawn by the Soviet Russian Prosecution
that “Proof is established of the OKW commander having been primarily
responsible for the mobilization of labor in the Reich” is erroneous, if
the argument is to establish responsibility on the part of the Defendant
Keitel. If, on the other hand, reference as commander of the OKW is made
to Hitler, this cannot be contradicted.[sm type ends]

[sm type begins](4) Document USSR-364 is a document from the OKH (High
Command of the Army), signed by the Quartermaster General of the Army,
Wagner. It can be seen from the distribution of the document that the
OKW was not even informed through the usual channels.[sm type ends]

[sm type begins](5) Document USSR-366 mentions the name of the defendant
as having complained because: “OT (Organization Todt) units operating in
the vicinity of Lvov paid local laborers a daily wage of 25 rubles and
because OT availed itself of the services of local factories.”[sm type
ends]

[sm type begins]The Prosecution’s argument runs that “Keitel writes to
Minister Todt ...” The document which was submitted does not reveal
this, because it does not make any mention of such a letter. Inasmuch as
the entire economic administration and the exploitation of the Eastern
Territories had been transferred to the Four Year Plan, OKW had no
relevant office for this problem.[sm type ends]

[sm type begins]This becomes evident from the Green File just referred
to, and from the Führer order for the “Barbarossa-Oldenburg Plan.”
Presumably, after discussion of the basic question during the conference
on the situation, Keitel once again received orders from Hitler to get
into touch with Reich Minister Todt. This would then be one of the
instances where the defendant merely served as an instrument for the
transmission of a Hitler order to the competent office without the
matter being in any way within the competency of the OKW. In any case,
the information conveyed by the document does not show in how far this
problem should be a charge on Keitel.[sm type ends]

[sm type begins](6) Document USSR-106 is a Führer Order of 8 September
1942, dealing with the employment of prisoners of war and the
construction of field fortifications behind the front. The heading of
the Führer order reads:[sm type ends]

[sm type begins]“The Führer.[sm type ends]

[sm type begins]“OKH: General Staff of the Army Operations Section
1.”[sm type ends]

[sm type begins]The order was sighed by the Army General Staff and
issued by Halder. This proves conclusively that the Defendant Keitel or
the OKW was not involved.[sm type ends]

[sm type begins](7) Nor is it possible to refer to Document USSR-407 for
the establishment of the defendant’s participation. This document deals
with the order given by a local commander, who refers to alleged OKW
instructions.[sm type ends]

[sm type begins]It has already been emphasized on several occasions that
the OKW does not mean Keitel. It may however be quite possible, as no
date of the alleged OKW order is mentioned in Document USSR-407, that
this is one of the numerous cases of confusion, especially since even in
Armed Forces circles the exact conception of the OKW was not known.[sm
type ends]

[sm type begins]In any case the conclusion by the Soviet Russian
Prosecution, after submission of this document, that “OKW and Keitel
have not only ordered the mobilization of labor from the occupied part
of Russia, but have worked directly in the execution of this order” is
incorrect and has not been proved.[sm type ends]

[sm type begins]Now there is still a category of documentary evidence
which contains official communiqués of the Extraordinary Commission for
the determination and investigation of War Crimes and Crimes against
Humanity. I already some time ago dealt with the importance of official
documents in the presentation of evidence, and pointed out their limited
value as evidence.[sm type ends]

[sm type begins]If in this connection I discuss the official reports of
the investigating commissions, then I do so because ostensibly they have
been presented in order to incriminate Keitel, while in actual fact they
furnish proof that the accusations against Keitel and the OKW Staff are
not based on any reasoning in these very weighty Prosecution charges.[sm
type ends]

[sm type begins]From the large number of documents concerning this I
would refer to the following:[sm type ends]

[sm type begins]Document USSR-4 has been submitted to show that the
Soviet-Russian population was exterminated through intentional infection
with typhus, and that this was a case of a planned spreading of
typhus-epidemics among the Soviet population. For this the following,
among others, are named as the culprits (Page 10 of the document); “The
Hitler Government and the Supreme Command of the Armed Forces.”[sm type
ends]

[sm type begins]Once again it cannot be seen from the document itself on
what concrete facts the commission supports the guilt of the “Supreme
Command of the German Armed Forces” and what military agency is thereby
described. There is no mention made of an order of the “Supreme Command
of the German Armed Forces” in any part of this lengthy document.
However, since the Prosecution have presented this document as proof of
the guilt of the Defendant Keitel and the OKW, I establish that this
document cannot be valid as evidence for an accusation against Keitel in
this horrible charge.[sm type ends]

[sm type begins]Document USSR-9 bears the heading:[sm type ends]

    [sm type begins]“Report of the Extraordinary State Commission
    for the determination and investigation of the atrocities of the
    Fascist German invaders and the damage caused to citizens,
    collective enterprises, social organizations, State plants and
    institutions of the Soviet Union.[sm type ends]

    [sm type begins]“Regarding the demolitions and bestialities
    which the German Fascist invaders have committed in Kiev.”[sm
    type ends]

[sm type begins]On Page 4 it is stated: By order of the German High
Command German Army units looted, blew up, and destroyed the old
cultural monument, the Lavra of Kiev. The following are described as
responsible: “The German Government and the German High Command and all
officers and officials listed by name.” From the speech of the
representative of the Prosecution and from the term, “the German
Government and the German High Command” it can be seen that the High
Command of the Armed Forces and Keitel are to be accused as having been
responsible. This document lacks any positive statement on which the
Investigating Commission supports this judgment.[sm type ends]

[sm type begins]It is also shown here that the judgment of the
investigating commission—in any case with reference to the Defendant
Keitel—is not basically supported.[sm type ends]

[sm type begins]Document USSR-35 is a report “regarding the material
damage which the Fascist German invaders inflicted on State plants and
institutions, collective industries, and citizens of the Soviet
Union.”[sm type ends]

[sm type begins]This document states:[sm type ends]

    [sm type begins]“The German armies and occupation authorities
    which carried out the directives of the criminal Hitler
    Government and the High Command of the Armed Forces, destroyed
    and looted the Soviet cities occupied by them....”[sm type ends]

[sm type begins]To this it must be stated:[sm type ends]

[sm type begins](1) The contents of this document do not show one single
concrete “directive” issued by the OKW or Keitel.[sm type ends]

[sm type begins](2) The OKW had no authority to give orders, and
therefore could not issue directives.[sm type ends]

[sm type begins](3) Therefore the findings of the State investigation
commission, which for formal reasons would not be binding for the
Tribunal, cannot be considered as justified insofar as the OKW and
Keitel are concerned.[sm type ends]

[sm type begins](4) No opinion is going to be expressed as to the
remaining contents of the reports.[sm type ends]

[sm type begins]Document USSR-38 is entitled:[sm type ends]

    [sm type begins]“Communication of the Extraordinary State
    Commission for the Determination and Investigation of the
    Atrocities of the Fascist German invaders and their Accomplices.
    Regarding atrocities of the Fascist German invaders in the city
    of Minsk.”[sm type ends]

[sm type begins]In this document it is stated on Page 1:[sm type ends]

    [sm type begins]“Following instructions, which were issued
    directly by the German Government, the Hitlerite military
    authorities destroyed without any limitation scientific research
    institutes, et cetera ... they exterminated thousands of
    peace-loving Soviet citizens and also prisoners of war.”[sm type
    ends]

[sm type begins]Page 13 states:[sm type ends]

    [sm type begins]“Responsible for the crimes committed by the
    Germans at Minsk ... are the Hitler Government and the High
    Command of the Armed Forces.”[sm type ends]

[sm type begins]Nowhere in this document have either concrete or
verifiable instructions or orders by the Defendant Keitel or from the
OKW been given.[sm type ends]

Then, on Page 134, Paragraph 1:

In the documents previously quoted, either Keitel or the OKW is named as
the responsible party. However, during the Prosecution’s presentation
many such official reports were quoted as evidence for Keitel’s guilt,
which do not even mention either the name of the defendant or the OKW.
In this connection, I draw your attention to Documents USSR-8, 39, 45,
46, and 63. I only ask the Tribunal to examine the remaining documents
with equal care in order to ascertain whether, if submitted in
connection with Keitel and the OKW, they allow Keitel’s guilt to be
concluded or whether that is not the case. In this connection I should
like to add that I am not going to read, and am not referring to, the
remarks at the bottom of Page 134 (USSR-3).

I beg the Tribunal to take note of my statements on the economic
exploitation of the occupied territories—Pages 137 to 142—without my
reading them. Since Reich Marshal Göring’s defense counsel has already
dealt with this problem and has clarified the spheres of competency and
responsibility, it would mainly be repetition for me to speak on it.
However, I wish to draw attention to this part of my presentation and
beg the Tribunal to take judicial notice of it.

[sm type begins]In the war against Poland as well as later in the West,
extended on the basis of experiences in Poland, expert personnel trained
in military economy were detached from the Armed Forces Economic Office
in the form of small staffs and units to the Army Groups and Army High
Commands as expert advisers and assistants in all military economic
questions which resulted from the conquest and occupation of
economically and industrially valuable territories. The Economic
Armament Office, together with the OKW, prepared the organization of
these groups of experts and technical detachments.[sm type ends]

[sm type begins]By and large, they consisted of: (a) Expert advisers
with the unit staffs (at first known as liaison officers of the OKH
Economic Armament Office); (b) Reconnaissance Staffs for factories and
raw materials important to war economy: (c) technical detachments and
formations for security, repairs, and protection from destruction of
essential and vital plants and supply installations.[sm type ends]

[sm type begins]This organization was prepared by the OKW (Economic
Armament Office) because it relied on expert research personnel from all
three branches of the Armed Forces and civilian economy with the
“technical emergency aid” (Technische Nothilfe). The Army completed the
set-up itself.[sm type ends]

[sm type begins]The organization was subordinated to the senior troop
commanders in charge. Their employment took place exclusively on the
orders of the troop command, for which each adviser submitted
suggestions from time to time to the unit staffs (the General Staff Ib
or the Chief Quartermaster).[sm type ends]

[sm type begins]The missions of these technical detachments were: (a)
Advising the command concerning the importance and significance of
industrial plants and supply installations (fuel, water, electric
current, repair plants, mines, et cetera); (b) Protection of these
installations from destruction by the enemy and our own forces and the
civilian population; (c) Utilization for the purpose of Germany’s
conduct of the war for troops and population; (d) Examination of
essential and vital plants and establishment of their productive
capacity for German use; (e) Establishment of raw material supplies of
metals, ore, coal, fuel, et cetera, for reindustrialization or Germany’s
conduct of the war.[sm type ends]

[sm type begins]All functions, with the exception of those mentioned
under (d) and (e), served exclusively to supply the fighting troops, the
occupational troops, and the native population. The statistical
collections (d) and (e) were reported, through military channels to the
competent offices at home (Plenipotentiary for Economy, Four Year Plan,
Minister of Armaments) who had to make disposition concerning use and
utilization. The Armed Forces itself had no independent right of
action.[sm type ends]

[sm type begins]It is correct that (according to the Thomas book,
2353-PS) raw materials and also machines were removed to Germany for the
production of implements of war as the Prosecution charges, since both
had served the enemy’s conduct of the war and had necessarily gone out
of production. No military agency could order the removal to Germany,
because it had no right at all to dispose of “booty” of this sort. Only
the three highest Reich authorities mentioned could effect such a
removal on the basis of a general authority by the Führer or a special
order by him to the Commander-in-Chief of the Army. The OKW and the
Chief of the OKW, as well as the Economic Armament Office, had no right
of disposition and command outside of their own fields, nor did any
separate chain of command exist from the OKW Economic Armament Office to
these detachments, et cetera. The communications and report chain ran
via the unit staffs to the OKH Quartermaster General, with whom the
highest Reich authorities (Food, Economy, Armament Ministry, Four Year
Plan) had representatives who reported to their departmental chiefs.
Orders by the Defendant Keitel as Chief of the OKW concerning
utilization, use, or seizure of economic goods have not been given; this
follows from Document 2353-PS.[sm type ends]

[sm type begins]The unified leadership of the entire war economy in
France and Belgium was then centered in Reich Marshal Göring as Delegate
of the Four Year Plan by the Führer Decree of 16 June 1940.[sm type
ends]

[sm type begins]For determining the responsibility it is of significance
that the staff of the Economic Armament Office examined the problems
which concerned the armament economy and utilization of economy in the
occupied territories. Their appraisals, which in this respect were
regarded as decisive, are collected in Document EC-344, coming from the
Foreign Department in the OKW (headed by Admiral Canaris).[sm type ends]

[sm type begins]With reference to Articles 52, 53, 54, and 56 of the
Hague Convention of Land Warfare, it is explained therein in connection
with total warfare that “economic rearmament” must be regarded as
forming part of the “belligerent enterprise,” and accordingly all
industrial supplies of raw materials, semifinished and manufactured
goods as well as machinery, et cetera, are to be regarded as serving the
war effort. Therefore, according to the viewpoint of the author of this
opinion, all these goods are liable to be seized and used against
compensation after the conclusion of peace. Furthermore, the problem of
the need for war is examined and Germany’s state of economic difficulty
at that time is already affirmed. For the judgment of the Defendant
Keitel this opinion is of significance insofar as the well-known Foreign
Department under the responsible leadership of Admiral Canaris as late
as November 1941 gave vent to an opinion which justified the economic
utilization of the occupied countries. That was the office which
concerned itself with problems of international law and on which the
Defendant Keitel based his confidence.[sm type ends]

[sm type begins]An organization for all economic requirements and
intended to supersede the former organization was created for Russia on
the basis of experiences in the West by Reich Marshal Göring by virtue
of a general delegation of authority by the Führer.[sm type ends]

[sm type begins]The chief of the Economic Armament Office together with
State Secretary Körner drew up this organization for Reich Marshal
Göring without participation by the Chief of the OKW. The Chief of the
OKW for this purpose put General Thomas at the disposal of Reich Marshal
Göring. The Chief of the OKW did not acquire any influence at all on
this organization, and severed his own and the OKW’s connection with it
after Reich Marshal Göring had received full powers and the OKW had put
General Thomas at his disposal. General Thomas thus acted solely on
instructions by Reich Marshal Göring. The OKW and the Defendant Keitel
were never under Reich Marshal Göring’s orders nor were they bound by
his instructions. The Defendant Keitel was not represented in Göring’s
Economic Staff and had nothing to do with the Eastern Economic Staff
(See Thomas book, Page 366).[sm type ends]

[sm type begins]The execution of the work was centrally directed by the
Economic Operations Staff in Berlin as part of the Four Year Plan. The
local higher command in the Eastern district was under the Eastern
Economic Staff. To this organization was also attached the troops’
supply department. The OKW, and the Defendant Keitel as Chief of the
OKW, never issued orders concerning the exploitation, administration, or
confiscation of economic property in occupied territory. This is
revealed in the book submitted by the Prosecution, Document 2353-PS. On
Page 386 of this document, Thomas, in summarizing, correctly stated as
follows:[sm type ends]

    [sm type begins]“The Eastern Economic Operations Staff under the
    Reich Marshal or State Secretary Körner was responsible for the
    whole economic direction of the Eastern area; the state
    secretaries were responsible for departmental instructions; the
    Economic Armament Office was responsible for the reconstruction
    of the economic organization; the Eastern Economic Operations
    Staff was responsible for the execution of all measures.”[sm
    type ends]

[sm type begins]The same is shown by Document USSR-10:[sm type ends]

    [sm type begins]“Directives (of Reich Marshal Göring) for the
    unified conduct of economic management in the zone of operations
    and in political administrative areas to be subsequently
    established.”[sm type ends]

[sm type begins]This ought to prove that the OKW and Keitel are clear of
any responsibility for the consequences attendant upon carrying out the
measures within the scope of the Barbarossa-Oldenburg operation.[sm type
ends]

I now come to Page 143 and following pages, where I refer to the
assertion made by the French Prosecution regarding the participation of
the OKW and Keitel in the cases of Oradour and Tulle.

The French Prosecution have charged the Defendant Keitel in person with
the commission of war crimes and crimes against humanity. The accusation
concerns in particular the execution of French civilians without a
trial. In this connection the cases of Oradour and Tulle received
special emphasis. They are recorded in a report made by the French
Government—Document F-236. The French Prosecution stated: “Keitel’s
guilt in all these things is certain.”

In this connection it is not my task to discuss the frightful events of
Oradour and Tulle. As defense counsel for the Defendant Keitel I have to
examine whether the Prosecution’s assertion that the Defendant Keitel
bears any guilt or responsibility for these atrocious happenings has any
foundation.

You will understand that the Defendant Keitel attaches particular
importance to the production of evidence to the effect that he is not
responsible for these terrible occurrences, and, further, that when such
things came to his knowledge he took steps to have them cleared up in
order that the actual offenders might be brought to account. It is an
indisputable fact that Keitel had no direct part in these crimes. Any
responsibility and guilt attaching to the defendant can therefore be
derived only from his official position. No orders of any kind bearing
Keitel’s signature have been submitted by the Prosecution, so that,
whoever is guilty, Keitel is not, at any rate, among those directly
responsible.

The terrible sufferings inflicted on a large number of French villages
are recorded in the notes of General Bérard dated 6 July and 3 August
1944. I pointed out, when this document was submitted, that the
submission of these complaints alone—that is, unaccompanied by the
replies, which are also in the hands of the Prosecution—cannot convey
an objective picture of the actual facts, on which to base a
pronouncement on the guilt of the Defendant Keitel. As the Defendant
Keitel, not being empowered to issue orders in the matter, cannot
possibly be taken into consideration as the originator of the orders
which led to the complaint, any responsibility and guilt on Keitel’s
part can therefore be based only on the fact that he did not cause the
necessary steps to be taken on receiving information from the German
Armistice Commission. What Keitel did or did not do can be gathered only
from the reply notes and from the directives issued by the OKW to the
German Armistice Commission.

Here, too, the Defendant Keitel would have been unable to provide proof
to the contrary, had not the French Prosecution themselves submitted a
document, F-673, which was intended to furnish proof of Keitel’s
individual guilt. This document was already read by the French
Prosecution at the session of 31 January 1946:

    [sm type begins]“High Command of the Armed Forces; F. H. Qu., 5
    March 1945; Secret.[sm type ends]

    [sm type begins]“WFST./Qu. 2 (I) No. 01487/45 g.[sm type ends]

    [sm type begins]“Subject: Alleged Killing of French Nationals
    without Trial.[sm type ends]

    [sm type begins]“German Armistice Commission; Group Wa/Ib No.
    5/45 g.[sm type ends]

    [sm type begins]“1) German Armistice Commission; 2)
    Commander-in-chief West.[sm type ends]

    [sm type begins]“Received: 17 March 1945.[sm type ends]

    [sm type begins]“In August 1944 the French delegation of the
    German Armistice Commission addressed a memorandum to D. W. St.
    K. (German Armistice Commission) describing in detail incidents
    leading to the alleged shooting without justification of
    Frenchmen during the period of 9 to 23 June 1944. Statements
    made in the French note were almost entirely made in such detail
    that an examination by Germany was possible without any
    difficulty.[sm type ends]

    [sm type begins]“On 26 September 1944 the High Command of the
    Armed Forces charged the German Armistice Commission with the
    handling of the case. Thereupon, the German Armistice Commission
    asked the Commander-in-Chief West to investigate the incidents
    and to take action with regard to the representation of facts
    given in the French memorandum.[sm type ends]

    [sm type begins]“On 12 February 1945 the German Armistice
    Commission was informed by the Judge of Army Group B that since
    November 1944 the case was in the hands of Army Judge of Pz.
    AOK/6 (6th Armored Army Command) and that Pz. AOK/6 and 2. SS
    Pz. Division ‘Das Reich’ (2nd Armored SS Division ‘Das Reich’)
    had in the meantime separated from the Army Group.[sm type ends]

    [sm type begins]“Handling of this matter calls for the following
    remarks:[sm type ends]

    [sm type begins]“The Frenchmen, and the delegation of the Vichy
    Government, have made the grave charge against the German Armed
    Forces of numerous cases of unjustified killing of French
    nationals, in other words, of murder. Germany’s interest
    demanded a reply to this charge at the earliest possible moment.
    Considering the length of time which has elapsed since receipt
    of the French memorandum, it should have been possible to take
    up at least some of the charges and to refute them through
    actual investigation, irrespective of subsequent development in
    military matters and the transfer of troops incidental thereto.
    If even a portion of the charges made had been refuted at once,
    the French people would have been shown that their whole subject
    matter is based on doubtful material; but because nothing was
    undertaken by the Germans, the opponents’ impression must be
    that we are not in a position to answer these charges.[sm type
    ends]

    [sm type begins]“The manner in which this case was handled
    indicates that there possibly still exists a great deal of
    ignorance as to the importance to be attached to all reproaches
    against the German Armed Forces, to counteract any enemy
    propaganda, and to refute immediately any purported German acts
    of atrocity.[sm type ends]

    [sm type begins]“The German Armistice Commission is hereby
    instructed to continue to devote to this matter all possible
    energy. It is requested to render any assistance possible, and
    particularly to take all steps for expediting matters within its
    own sphere of action. The fact that Pz. AOK/6 (6th Armored Army
    Command) no longer forms part of the forces of the
    Commander-in-Chief West is no reason to hold up the necessary
    investigations in order to clarify and refute the French
    charges.[sm type ends]

    [sm type begins]“For information: Army General Staff (Gen. St.
    d. H.); Headquarters Gen./Qu.[sm type ends]

    [sm type begins]“(signed) Keitel.”[sm type ends]

This document of the OKW, signed by Keitel, shows that:

1. On receiving the French complaint of 26 September 1944, the OKW
issued orders to the German Armistice Commission to investigate and deal
with the matter.

2. The German Armistice Commission thereupon instructed
Commander-in-Chief West to investigate the incidents.

3. On receiving a letter from Army Group B, the OKW expressed itself as
follows:

    “It was in the German interest to answer these charges at the
    earliest possible moment.

    “This case shows that there is still widespread ignorance as to
    the importance of combating all imputations made against the
    German Armed Forces and all enemy propaganda, and of refuting
    immediately any alleged acts of atrocity on the part of the
    Germans.

    “The German Armistice Commission is hereby instructed to
    continue to pursue their investigations as energetically as
    possible. It is requested that every possible assistance be
    rendered to the commission and that all possible steps be taken
    to expedite matters in your own sphere of action. The fact that
    Pz. AOK/6 is no longer under the jurisdiction of
    Commander-in-Chief West is no reason for discontinuing the
    necessary investigation in order to clarify and refute the
    French charges.”

It may therefore be considered as proved that in this case the Defendant
Keitel, on receiving information, took energetic steps in accordance
with the range of his competency as Chief of the OKW, and as far as he
was in a position to do so. This eliminates the charge made by the
Prosecution insofar as the Defendant Keitel is concerned. At the same
time, however, the way in which the Defendant Keitel handled this case
suggests that he acted in similar manner in other cases.

Mr. President, before dealing with the problem of hostages which I may
discuss later, I should like to discuss the grave evidence on the Night
and Fog Decree on Page 154.

[sm type begins]War, which is frightful even under orderly international
law, becomes atrocious when the last restraints are removed. Many
terrible things have happened during this war and it is impossible to
tell which chapter of this book of sorrows and tears is the saddest;
but, in any case, one of the most lamentable chapters is that of the
treatment of hostages. In international law the question of treatment of
hostages is controversial. The taking of hostages is almost generally
admitted. Doubtless, although taking hostages is assumed to be
admissible under international law, that has as yet no bearing on their
treatment. The treatment, even more than the seizure, of hostages must
be subject on the one hand to the law of absolute military necessity
which cannot otherwise be met, and, on the other, to the application of
all possible guarantees to prevent the indiscriminate shooting of
hostages as a principle. Any primitive and brutal handling of this very
institution, which is doubtful under international law and is apt to
affect the absolutely innocent, must be rejected.[sm type ends]

[sm type begins]Unfortunately, this problem which seldom arose in
previous wars between civilized people, acquired considerable importance
during World Wars I and II. The cases previously taken into
consideration and also explained in the Army Manual 2g (H. Dv. 2g)
(Document Book 1, Exhibit Number Keitel-7) resulted from military
necessity of troops in operation. As happened with so many things in
this war, but especially due to the change-over from theater of
operations to rear area, there finally developed a broadening and
degeneration in the application of a principle which originally was
indisputable according to international law.[sm type ends]

[sm type begins]The immediate connection with military necessity was
absent, that is to say, with military action; its place was taken by
interests which naturally included military safeguards, particularly of
lines of communications between the front zone and home.[sm type ends]

[sm type begins]It must be said that this fundamental change ought to
have been recognized, and ought to have been taken into consideration in
the handling of the existing rules governing hostages. The degeneration
in the treatment of hostages was decisively influenced by the fact that
civil administrative and police organizations claimed for themselves one
of the extreme means of soldierly warfare and often made use of it
arbitrarily, wherever they wanted to break resistance, by arresting
people without concrete individual or even presumptive guilt and by
treating them from the viewpoint of reprisals. Collective arrests for
individual offenses come into this category.[sm type ends]

[sm type begins]All these cases have nothing to do with the original
facts in the cases of hostages; but since the word “hostage” is used for
all these cases, the Prosecution in many cases has placed on the Armed
Forces a responsibility which they should not bear.[sm type ends]

[sm type begins]I request the Tribunal, when judging this complex and
when examining the responsibility of the Defendant Keitel, to take into
consideration:[sm type ends]

[sm type begins](1) The concept of hostages, the basic conditions
governing the taking of hostages end their treatment had become known to
all authorities in command and their offices in the Armed Forces by the
Army manual regulations (H. Dv. 2g) before the war, especially before
the campaign in the West. The Documents 1585-PS, submitted by the
Prosecution itself (discussions of the hostage question with the
Luftwaffe), and 877-PS (operation orders of the Army for “Case Yellow”
and the attack in the West, dated 29 October 1939) reveal that special
regulations had originally been issued for the seizure of hostages.
Their application was justifiably transferred to the Army offices and
later to the military commanders who were subordinate to the Army, never
to the Armed Forces High Command (OKW).[sm type ends]

[sm type begins](2) Nobody could be in doubt, according to existing
regulations (H. Dv. 2g), as to what authority Army commanders had and as
to who had to make a decision on a possible shooting of hostages. No
supplementary order or supplementary regulation was ever issued by the
Armed Forces High Command (OKW). The letter from Falkenhausen (Military
Commander in Belgium), dated 16 September 1942 (Document 1594-PS),
mentioned by the Prosecution, and the report of this military commander
(1587-PS) are not addressed to Keitel, but quite correctly to his
superior office, the Army High Command (OKH) Quartermaster General;
Keitel received neither the letter nor the report. Whether Hitler
received them in his capacity of Supreme Commander of the Army and
military superior of the military commanders, Keitel does not know.[sm
type ends]

[sm type begins](3) The OKW was not informed of the cases in which
inhabitants of the occupied territories were mistakenly and falsely
described as hostages and treated without legal procedures.[sm type
ends]

[sm type begins](4) Whenever hostages, without being connected with the
plots and terror acts against the occupying power, were held responsible
for them without local or material connection, such practice is contrary
to service regulations.[sm type ends]

[sm type begins](5) Insofar as the OKW or the Defendant Keitel was
approached by military agencies in individual cases referring to hostage
problems, for example by the Military Commanders in France and Belgium,
the evidence has shown that the “hostages” to be shot were to be
selected from the circle of persons already sentenced to death by virtue
of the law. However, so that this should not be outwardly
recognized—for producing the desired deterrent effect—it was to be
announced that hostages had been shot.[sm type ends]

[sm type begins]The French Prosecution has cited the OKW and Keitel in
connection with this complex by means of Document 389-PS, which is the
same as UK-25, a Führer order of 16 September 1941 drawn up by Keitel.
This document, whose contents are monstrous, does not, however, have
anything to do with the question of taking hostages and the treatment of
hostages. The word “hostages” does not appear in the text. From the
subject and from the contents it can be seen that this is an order
designed to combat the resistance movement in the eastern and
southeastern war theaters, and therefore is related to the basic
principles of the so-called ideological war against the Soviet Union,
which has been already dealt with at another place, and condemned. When
the communication of 16 September 1941 was addressed to the Military
Commander in France by the High Command of the Army for information
purposes the latter had already decreed the so-called “Hostages Law”
(Document Number 1588-PS). Accordingly no causal connection existed, as
the French Prosecution has assumed, between the directives signed by
Keitel and ordered by Hitler in Document 389-PS, and the hostage
legislation in the West. The latter had been decreed without
collaboration or consultation of the OKW. The agency to which the
Military Commanders in France and in Belgium were subordinated was the
High Command of the Army (OKH), and not the OKW; the agency which
specialized in this matter was the Quartermaster General (in the OKH).
With regard to this it must also be considered that at this period of
time Hitler himself was the Commander-in-Chief of the Army, which
explains the above-mentioned references to the OKW. In reality, they
were not references to the OKW, but to Hitler as Supreme Commander of
the Armed Forces and Commander-in-Chief of the Army, which were
partially routed through Hitler’s working staff (the OKW). This however
establishes no competence and thereby no responsibility of the OKW and
the Defendant Keitel as Chief of the OKW.[sm type ends]

[sm type begins]In conclusion I request permission to hand in some
literature to the Tribunal demonstrating present-day opinions pertaining
to international law with regard to the question of hostages for
consideration in the examination of these facts in the case. I limit
myself to reading the summarization of expert opinions and military
practices:[sm type ends]

    [sm type begins]“In summarizing it must be said, concerning the
    question of taking hostages and the execution of hostages, that
    according to existing practices and probably also according to
    existing rules of international law, the taking of hostages in
    occupied territory is permissible under international law
    insofar as hostages are taken in order to guarantee the proper
    legal behavior of the enemy civilian population. According to
    the commentary by Waltzog, which is standard for the German
    conduct of warfare, it is also a formal requirement, whenever
    hostages are taken according to unwritten international law
    (common law), that such taking of hostages, the reasons
    therefor, and in particular the threat of their execution must
    be brought to the knowledge of those for whose lawful behavior
    the hostages are to go bail. The question as to whether it is
    permissible to execute hostages cannot be interpreted
    unequivocally. The German jurisprudents of international law,
    like Meurer, the Englishman, Spaight, and the Frenchmen, Sorel
    and Funck, consider this permissible in the extremes of
    emergency, and therefore not contrary to international law.”[sm
    type ends]

During the whole course of this Trial, no order made such a deep
impression on the mind of the public as did the Night and Fog Decree.
This was an order which originated during the fight waged against acts
of sabotage and against the resistance movement in France. As a result
of the withdrawal of troops in connection with the campaign against the
Soviet Union, the number of plots aimed against the security of German
troops stationed in France, and in particular the acts of sabotage aimed
at the destruction of all means of communication increased daily. This
necessitated increased activity on the part of the counterintelligence
offices, which in its turn led to proceedings being taken and sentences
being passed by military courts against members of the resistance
movement and their accomplices. These sentences were very severe. In
addition to a large proportion of death sentences, sentences of
imprisonment were also passed. The reports made almost daily during the
situation conferences led to violent disputes in which Hitler, in
accordance with his usual habit, tried to find someone on whom to put
the blame; in this instance he fixed upon the far too cumbersome
handling of military justice. In his spontaneous and explosive way, he
ordered directives to be worked out for a rapid, effective, and lasting
intimidation of the population. He declared that imprisonment could not
be considered an effective means of intimidation. To Keitel’s objection
that it was impossible to sentence everyone to death and that military
courts would, in any case, refuse to co-operate, he replied that he did
not care. Offenses found sufficiently grave to necessitate the
imposition of capital punishment without very lengthy court proceedings
would continue to be dealt with as before—that is, by the courts—but
where this was not the case, he would order the suspected persons to be
brought secretly to Germany and all news of their fate to be withheld,
since the publication of prison sentences in occupied territory was
robbed of its intimidating effect by the prospect of the amnesty to be
expected at the end of the war.

The Defendant Keitel thereupon consulted the chief of the Judge
Advocate’s Office of the Armed Forces and the chief of the
counterintelligence office (Canaris), who is also the originator of the
letter of 2 February 1942, Document UK-35, on the procedure to be
followed. When repeated applications made to Hitler to refrain from this
procedure, or at least not to insist upon complete secrecy, had no
effect, they finally submitted a draft which we have before us in the
well-known decree of 7 December 1941.

The staff of experts and the Defendant Keitel had succeeded in
establishing the competency of the Reich Administration of Justice for
the persons removed to Germany (see last paragraph of directives of 7
December 1941). Keitel had guaranteed this stipulation by means of the
first Enactment Decree governing the directives, in which he specified
(last sentence in Paragraph I, IV) that unless orders to the contrary
were issued by the OKW, the case would be turned over to the civil
authorities in accordance with Section 3, Paragraph 2, second sentence,
of the Articles of War. The defendant believed that in this way he had
at least made certain that the persons concerned would have the benefit
of regular court proceedings and that in accordance with the German
regulations for the accommodation and treatment of prisoners on trial
and prisoners serving a sentence, there would be no danger to life and
limb. Keitel and his staff of experts reassured themselves by the fact
that however cruel the suffering and suspense endured by those concerned
might be, the lives of the deported persons had at least been saved.

In this connection, allusion is also made to the text of the covering
letter of 12 December 1941. As the Codefendant General Jodl stated
during his examination, a certain wording was regularly adopted to
indicate that the signatory did not agree with the order submitted. The
covering letter begins with the words: “It is the carefully considered
desire of the Führer ...”

The closing sentence runs: “The attached directives ... represent the
Führer’s views.”

Persons who received such letters knew from that wording that here was
another order of the Führer which could not be evaded, and concluded
that the order should be applied as leniently as possible.

The letter of 2 February 1942 originated with the counterintelligence
office (Amt Ausland Abwehr), and the original which is before you must
have been signed by Canaris. At that time the defendant was not in
Berlin where, after promulgation of the decree of 7 December 1941, the
matter was dealt with further. Keitel, at the Führer’s headquarters, was
not informed of the contents of the letter. In connection with the above
remarks, the possibility of leniency in application, which might be
deduced from the wording of the letter, resided in the fact that
counterintelligence offices were directed “to insure as far as possible
before making the arrest that they were in possession of sufficient
evidence to justify a conviction of the offender.” The competent
military court had also to be approached before the arrest took place
with a view to ascertaining whether the evidence was adequate.

In Germany the persons concerned were to be handed over to the Reich
Administration of Justice. The correctness of the Defendant Keitel’s
assumption in this respect is borne out by the fact that Canaris, in
view of his attitude with which the Tribunal is familiar, would never
have ordered a prisoner to be handed over to the Gestapo. As already
stated, the Defendant Keitel did not know of the letter of 2 February
1942.

Although the Defendant Keitel believed that he had succeeded as far as
possible in safeguarding those in question, the Night and Fog Decree, as
it was later called, weighed heavily on his mind. Keitel does not deny
that this decree is incompatible with international law and that he knew
that.

What Keitel denies, however, is that he knew—or that prior to the
Nuremberg Trial he knew—that on arrival in the Reich the persons
involved were imprisoned by the Police and then transferred to
concentration camps. This was contrary to the meaning and purpose of the
decree. The Defendant Keitel could not know of this because in cases
which did not involve proceedings by a military court, the competency of
the Armed Forces only extended to turning over the persons concerned
through the competent military court officials to the Police to be
transferred to Germany and there turned over to the Administration of
Justice. The Defendant Keitel is unable to say from his own knowledge
why so many persons were brought into concentration camps and there
subjected to the treatment known as “Night and Fog,” as described by
witnesses who have appeared here. The evidence presented to this
Tribunal must lead to the conclusion that all political suspects who, as
a result of political measures, were removed from the occupied
territories to Germany for detention in concentration camps were without
the knowledge of the military authorities designated “NN” prisoners by
the Police, for according to the testimonies we have heard the majority
of persons in “NN” camps had not been formally sentenced by military
courts in occupied territories for transfer to Germany.

It is evident therefore that Police authorities in the occupied
territories made use of this decree as a universal and unrestricted
_carte blanche_ for deportations, exceeding every conceivable limit and
disregarding the exclusive rights exercised by the military authorities
and the rules of procedure imposed upon them.

Such a state of affairs in the occupied territories without the
knowledge of the Armed Forces authorities can only be explained by the
fact that as a result of the appointment of Higher SS and Police leaders
the military commanders of the occupied territories no longer had
executive powers in Police affairs and that these Higher SS and Police
leaders received their orders from the Reichsführer SS.

The Reichsführer SS and the Higher SS and Police leaders were never
authorized by the OKW to apply this decree, which was intended as a
police executive measure to be used only by the Armed Forces. The decree
affected only those offices of the Armed Forces exercising judicial
authority; and it is clear from the wording that it was restricted to
these and drafted to apply to them.

The German Armistice Commission’s letter of 10 August 1944 (Document
843-PS) proves that the OKW really had no knowledge of this improper
application of the decree of 7 December 1941. It says there:

    “... that the basis for arrests seems to have undergone a
    change, since in the early stages they were only made in
    individual cases of attacks on the Reich or the occupation
    forces; in other words, those elements were apprehended who had
    played an active part in definite cases”—and who were liable to
    punishment under those articles of the Hague Convention which
    refer to land warfare—“whereas at present ... numerous persons
    are also being deported to Germany who, on account of their
    anti-German sentiments, are being removed from France as a
    precautionary measure ...”

Paragraph 4 of that letter contains the following passage:

    “The above-mentioned decree is based on the condition that the
    persons arrested will be made the subject of judicial
    proceedings. There is reason to believe that on account of the
    number of cases—especially those coming within the scope of
    precautionary measures—such proceedings are now frequently
    dispensed with and prisoners are no longer confined in the
    detention or penal institutions of the German legal authorities,
    but in concentration camps. In this respect, too, there has been
    a considerable change as compared with the original provisions
    of the decree ...”

The OKW’s reply of 2 September 1944, which is signed by Dr. Lehmann,
refers expressly to the directives of the Führer decree of 7 December
1941, the so-called Night and Fog Decree. It contains no statement to
the effect that the original conditions for deportation to Germany were
changed by the OKW.

This reply, however, was sent from Berlin without the knowledge of the
Defendant Keitel; and the Armistice Commission’s letter was obviously
also sent to Berlin, where the legal department of the Armed Forces was
situated. Keitel himself was at the Führer’s headquarters and did not
hear of the correspondence.

It must be admitted that failure to reply immediately to the German
Armistice Commission’s letter of 10 August 1944, with the explanation
that this constituted an abuse of the decree of 7 December 1941 and the
directives issued in connection with it, was a grave omission. An
investigation should have been initiated at once in order to find and
punish those responsible for this abuse. Insofar as the Tribunal should
regard Hitler’s military staff as guilty, the Defendant Keitel accepts
responsibility within the scope of his general responsibility as Chief
of the OKW.

THE PRESIDENT: Perhaps this will be a convenient time to take a recess.

                        [_A recess was taken._]

DR. NELTE: Mr. President, the Prosecution have charged the Defendant
Keitel with participating in the deportations for the purpose of
obtaining forced labor. In this connection Keitel declares that his
competency did not cover the procurement, recruiting, and conscription
of people in the occupied territories nor did it cover allocation of the
labor forces procured in this way for the armament industry. The
Codefendant Sauckel confirmed this in his testimony of 27 May 1946.

Mr. President, I should like to have official notice taken of the
following statements without my reading them. My colleague Dr.
Servatius, according to our agreement, will explain the connection
between the Armed Forces replacement and the procurement of manpower
through the Plenipotentiary General for the Allocation of Labor.

[sm type begins]The Codefendant Sauckel gave the following testimony:[sm
type ends]

    [sm type begins]“Question: You mean by that that the OKW and the
    Defendant Keitel had no functions whatsoever appertaining to the
    matter of procurement, recruiting, and conscription of labor in
    the occupied territories?[sm type ends]

    [sm type begins]“Answer: He had no function whatsoever
    appertaining to this matter. I got in touch with Field Marshal
    Keitel, because the Führer frequently charged me to ask Field
    Marshal Keitel to transmit his orders by phone or by
    instructions to the army groups.[sm type ends]

    [sm type begins]“Question: Did the OKW, and in particular Keitel
    as Chief of the OKW, have any function appertaining to the
    question of labor allocation in the homeland?[sm type ends]

    [sm type begins]“Answer: No; because the commitment of workers
    took place in the economic branches for which they had been
    requested. They had nothing to do with the OKW.”[sm type ends]

[sm type begins]During the cross-examination by General Alexandrov
documents were presented which, according to the opinion of the
Prosecution, should prove the participation of Keitel and the OKW. In
this connection it must be examined whether and in what way the OKW and
Keitel had participated in the sphere of duty of Defendant Sauckel as
Plenipotentiary General for the Allocation of Labor (GBA). Document
USSR-365, presented by the Prosecution, contains the basic provisions
concerning spheres of tasks and powers of the GBA, the decree of 21
March 1942 about the appointment of Sauckel as GBA, the order of Göring
as Delegate for the Four Year Plan dated 27 March 1942, the program for
labor allocation, and the task and solution as conceived by Sauckel.[sm
type ends]

[sm type begins]These documents give expression to the relationships and
contacts of the GBA with many offices. These relationships and contacts
vary in their nature.[sm type ends]

[sm type begins]The jurisdiction and the official channels in the sphere
of tasks of the GBA are clear: He is the spokesman for the Four Year
Plan (Order Number 3 of 27 March 1942) and he was therefore subordinate
to Reich Marshal Göring and Hitler, who was identified with the Four
Year Plan. The relationships and contacts of the OKW or Keitel with the
GBA and his sphere of tasks, according to the outcome of the evidence
(testimony of Keitel, Sauckel, and the documents) were as follows:[sm
type ends]

[sm type begins]The replacement system for the whole Armed Forces was
under the jurisdiction of the Defendant Keitel in his capacity as Chief
of Staff of the High Command of the Armed Forces (OKW). Losses at the
front were reported to the OKW by each individual branch of the Armed
Forces and at the same time replacements were requested.[sm type ends]

[sm type begins]On the basis of these requests, Keitel submitted a
report to the Führer, according to which replacements had to be procured
for the troops of the various branches of the Armed Forces at certain
designated times by the service commands through their replacement
inspectorates.[sm type ends]

[sm type begins]The replacement inspectorates consequently called up the
recruit year group, besides those draftees who had been deferred up to
that time. With the war progressing, the result was almost invariable
that, for instance, the Armament Ministry (for the deferred employees of
the armament industry), the Ministry for Agriculture (for the deferred
employees of agriculture), the Transportation Ministry (for the deferred
employees working for the railroad), et cetera, made the greatest
difficulties with regard to the demands of the replacement authorities,
and protested against them.[sm type ends]

[sm type begins]They pointed out that the tasks of the various
departments would suffer dangerously if the deferred employees were
removed without further ado. The competent ministers requested that
before the release of deferred employees new workers should be procured
to make up for those released.[sm type ends]

[sm type begins]Therefore, the matter was referred by way of the labor
offices to the Plenipotentiary General for the Allocation of Labor
(GBA), whose task it was to procure the necessary manpower for the
domestic labor allocation required. The Defendant Sauckel as the GBA,
who as a special deputy personally did not have at his disposal an
independent organization of his own for the recruiting, procurement, and
possible conscription of labor, was therefore forced to get in touch
with the competent authorities in the occupied territories for the
execution of his task.[sm type ends]

[sm type begins](a) In the occupied territories under civil
administration (Holland, Norway, East), it was the Reich Commissioner
who had to assist Sauckel.[sm type ends]

[sm type begins](b) In the territories under military commanders
(France, Belgium and the Balkans) it was the Quartermaster General of
the Army.[sm type ends]

[sm type begins](c) In Italy, in the highest instance, it was the
Ambassador, Rahn.[sm type ends]

[sm type begins]This is obvious from the decree of 27 March 1942.[sm
type ends]

[sm type begins]Before Sauckel became active in the execution of his
task in the various territories, he invariably turned to Hitler, whose
subordinate he was with respect to the Four Year Plan, in order to
obtain through his instructions the necessary backing by the local
authorities. This was done in such a way that the order was issued to
the local authorities to give Sauckel the assistance which he considered
necessary for the execution of his task. The Defendant Keitel was not
present at such discussions between Hitler and Sauckel, nor did he have
any jurisdiction or competence in these questions. However, somebody had
to inform the local authorities about Hitler’s orders, and the result
was that Hitler, who did not recognize any difficulties of jurisdiction,
told the next best man to inform the local authorities about Sauckel and
to point out Hitler’s wish to grant him all the necessary assistance.[sm
type ends]

[sm type begins]These “next best” were Keitel, for the military
administration of the occupied territories, or Dr. Lammers, for the
territories under civilian administration.[sm type ends]

[sm type begins]Such was the contact which existed between Keitel and
Sauckel in this matter. How the details of recruiting or otherwise
procuring labor were carried out was not within the competence of the
OKW, nor did they receive any reports on the matter. The interest of the
OKW was limited to the fact that the required number of soldiers were
placed at its disposal through induction by the replacement authorities.
In particular, the OKW and the Defendant Keitel had nothing to do with
the allocation of the labor procured by the Plenipotentiary General for
the Allocation of Labor within war economy; this was solely the business
of the labor offices, where firms requiring labor requested the workers
deemed necessary.[sm type ends]

[sm type begins](1) The name of Keitel stands at the beginning of
Sauckel’s activity, as submitted by the Prosecution, because Keitel was
cosignatory to the Führer decree concerning the Plenipotentiary General
for the Allocation of Labor (Document USSR-365). From repeated
references of the Prosecution to this fact the conclusion must be drawn
that apparently it sees in this cosignatory act of the Defendant Keitel
the beginning of a chain of developments, at the end of which stood such
frightful happenings as were presented here.[sm type ends]

[sm type begins]In this connection I would refer to the significance,
expounded elsewhere, of the cosignature by Keitel as Chief of the OKW on
such decrees of the Führer. This fact, which penally cannot be
considered as determinative, does not constitute guilt for the reason
that all conception of the events occurring during the further course of
developments was lacking.[sm type ends]

[sm type begins](2) If the Führer’s decree of March 1942 provides the
legal origin of the Plenipotentiary General for the Allocation of Labor
(GBA), the first step in the participation of this official is also
connected with the name of Keitel as head of the OKW, as the personnel
replacements matters were subordinated to him and he made his requests
for replacement of losses at the front to the subordinate military
replacement offices. Here also the same applies as in (1), as neither an
appreciable determinative effect nor criminal guilt was involved.[sm
type ends]

[sm type begins](3) Owing to the situation, as characterized by the
shortage of manpower, there came into being a purely factual connection
between the military personnel requirements and the requirements of the
economic replacement of workers, without Keitel thereby coming in
contact with the GBA either as regards competence or orders.[sm type
ends]

[sm type begins]Sauckel confirmed the statement of Keitel that the OKW
had nothing to do with the recruiting, levying, or any other
mobilization of labor, nor with the allocation of the labor procured for
German economy.[sm type ends]

I have to refer to some documents which the French Prosecution have
submitted to incriminate the OKW and Keitel on account of active
participation in deportation. These are Documents 1292-PS, 3819-PS,
814-PS, and 824-PS.

The first document is a marginal note by the Chief of the Reich
Chancellery, Dr. Lammers, on a conference with Hitler, at which the
question of procuring labor for 1944 was discussed. The Defendant Keitel
took part in this discussion. Annexed to this report is a copy of a
letter from the Defendant Sauckel dated 5 January 1944, in which he sums
up the results of the conference of 4 January and proposes a Führer
decree. I quote the following passages:

    “5. The Führer pointed out that all German offices in occupied
    territories and countries within the Tripartite Agreement must
    become convinced of the necessity of taking in foreign labor, in
    order to be able to give uniform support to the Plenipotentiary
    General for the Allocation of Labor in carrying out the required
    organization, propaganda, and police measures.”

I quote from the penultimate paragraph:

    “In my opinion the decree should in the first place be sent to
    the following offices ...

    “3. The Chief of the OKW, Field Marshal Keitel, for the
    information of the Military Commanders in France and Belgium,
    the Military Commander Southeast, the General accredited to the
    Fascist Republican Government of Italy, the chiefs of the army
    groups in the East.”

The document therefore proves that Field Marshal Keitel took part in a
conference, without, however, stating his point of view on the problem
of labor procurement; and that he was to be informed of the Führer
decree so that the military commanders might be informed. This confirms
what the Defendant Keitel stated in the passages which I have not read
as to how he came to be concerned with this question. The second and
third documents refer to a conference in the Reich Chancellery on 11
July 1944, in which Field Marshal Keitel did not take part.

Now the French prosecutor has made the statement that the teletype is an
order issued by Field Marshal Keitel to the military commanders to carry
out the decisions of the conference of 11 July. M. Herzog has said in
this connection that Keitel’s order was dated 15 July 1944. A brief
examination of the document, a photostat, shows it to be a teletype
dated 9 July, containing an invitation from the Chief of the Reich
Chancellery, Dr. Lammers, to a conference on 11 July, which invitation
Keitel transmitted to the military commanders.

This was, therefore, an error. The conclusions based by the Prosecution
on this document are therefore also invalid, but the document is
interesting from another point of view as well. It contains the
following statement:

    “The following directives will govern the attitude of military
    commanders or their representatives:

    “... I refer to my directives for the collaboration of the Armed
    Forces in the procurement of labor from France (OKW/West/ku
    (Verw. 1 u. 2 West) Nr. 05210/44 geh.).”

The Defendant Keitel requested me to call the attention of the Court to
this method of expression for the following reasons: Numerous documents
bearing the signature “Keitel” have been submitted here. In accordance
with his position, which has already been described and which excluded
all powers of command, Keitel never used the first person in
communications or transmissions of orders. Apart from this document,
only one other teletype was submitted by the Prosecution in which the
first person is used. In consideration of the large number of documents
which bear out Keitel’s statement, his claim that he was transmitting an
order from the Führer must be believed; and, indeed, the whole style of
wording is that of a Führer order.

General Warlimont (Document 3819-PS) also expressly refers during the
conference of 11 July to a “recently issued Führer order,” the contents
of which as reproduced by him are exactly as contained in the teletype
directive bearing the signature “Keitel.”

The newly-submitted Document F-824 (RF-1515) is also significant and
confirms the evidence given by the Defendant Keitel. This is a letter
written on 25 July 1944 by the Commander-in-Chief West, Von Rundstedt,
who in the meantime had become the Chief of the Military Commanders in
France and Belgium. It states that “by order of the Führer the demands
of the GBA and of Speer are to be fulfilled”; further, that in the event
of evacuation of the battle area measures must be taken to secure
refugees for labor and finally, that reports on the measures taken must
be sent to the OKW.

This reference to the Führer’s order shortly after 11 July 1944 shows,
as does Warlimont’s statement, that no directives from Keitel or the OKW
existed. It may therefore be considered proved that neither Keitel
himself nor the OKW had any part in measures for the recruitment or
conscription of labor. The OKW was the office responsible for
transmitting the orders which Hitler as Sauckel’s superior wished to
forward to the military commanders; it had no competence and no legal
responsibility.

Nor is this complex in line with subjects within the ministerial scope
of the OKW, where at least there functioned a team of experts providing
an opportunity for voicing objections.

In the sphere of labor procurement and labor commitment Keitel was in
contact with Sauckel’s activities at the following points:

(a) He was cosignatory of the Führer’s decree of 21 March 1942
concerning the appointment of the GBA;

(b) He transmitted Hitler’s orders to support the activities of the GBA
by special instructions to the local military authorities in the
occupied territories.

Now, the French Prosecution, at the session of 2 February 1946, made the
following statement in regard to the deportation of the Jews, within the
scope of the Defendant Keitel’s responsibility:

    “I shall discuss the order for the deportation of the Jews
    later; and I shall prove that in the case of France this order
    was the result of joint action on the part of the military
    government, the diplomatic authorities, and the Security Police.
    This leads to the conclusion that: (1) the Chief of the High
    Command, _et cetera_; (2) the Reich Foreign Minister, and (3)
    the Chief of the Security Police and Reich Security Main Office
    (RSHA) must necessarily have been informed of and have agreed to
    this action, for it is clear that through their official
    functions they must have learned that such measures concerning
    important matters were taken, and also that the decisions were
    invariably made jointly by the staffs of three different
    administrations. These three persons are therefore responsible
    and guilty.”

If you examine the very detailed treatment of this point of the
Indictment you will find that the High Command of the Armed Forces is
not mentioned and that no document is produced which originates either
with the OKW or with the Defendant Keitel. It appears from the Keitel
affidavit, Document Book 2, that the military commander for France, who
is mentioned several times, was not subordinated to the OKW. In handling
this question the Prosecution have attempted to prove that the “Army” as
M. Faure says, co-operated with the Foreign Office and the Police, and
is endeavoring to place responsibility for this co-operation upon the
highest authorities, that is, in the case of the Army, on the OKW, and
therefore on Keitel. This deduction is erroneous. In order to make that
clear, I must point out that there was a military commander in France.
This military commander was invested with civil and military authority
and represented the defunct state authority, so that in addition to
military tasks he had police and political functions. The military
commanders were appointed by the OKH and received their orders from the
latter. It follows that on this question they had no direct relations
with the OKW. Since the Defendant Keitel as Chief of the OKW was not
superior to the OKH, there is likewise no direct relation either of
subordination or seniority.

M. Faure’s statement in this connection is unfortunately true. In France
there existed a large number of authorities who worked along different
lines, contradicted each other, and frequently encroached upon each
other’s spheres of competency. The OKW and the Defendant Keitel had
actually nothing to do with the Jewish question in France or with the
deportations to Auschwitz and other camps; they had no powers of command
or control, and therefore no responsibility.

The fact that the letter K in the telegram of 13 May 1942 (Document
RF-1215) was interpreted to mean Keitel is characteristic of the
attitude adopted by the prosecuting authorities, all of whom assumed
that the Defendant Keitel was implicated. The French Prosecutor has
fortunately cleared up the error.

The Prisoner-of-War Question.

The fate of prisoners of war has always aroused considerable feeling.
All civilized nations have tried to alleviate the fate of soldiers who
fell into the hands of the enemy as far as was possible without
prejudicing the conduct of the war. The reaching of an agreement to be
adhered to even when the nations were engaged in a life and death
struggle has been considered one of the most important advances of
civilization. The torturing uncertainty with regard to the fate of these
soldiers seemed to be ended; their humane treatment guaranteed; the
dignity of the disarmed opponent assured.

Our belief in this achievement of human society has begun to waver, as
in the case of so many other instances. Although the agreement was
formally adhered to originally owing to the determined resistance of the
general officers, we must nevertheless admit that a brutal policy
oblivious of the nation’s own sons and of anything but its own striving
after power, has in many cases disregarded the sanctity of the Red Cross
and the unwritten laws of humanity.

The treatment of the responsibility of the Defendant Keitel in the
general complex of the prisoner-of-war system comprises the following
separate problems:

(1) The general organization of the treatment of prisoners of war, that
is, the German legislation on the prisoner-of-war system; (2) the power
of command over prisoner-of-war camps, which are classified under Oflag,
Stalag, and Dulag; (3) the supervision and control of this legislation
and its application; (4) the individual cases which have been brought
before the Court in the course of the indictment.

Since the organization of the prisoner-of-war system has been set forth
as part of the presentation of evidence, I can restrict myself to
stating that Keitel was, by order of Hitler and within the scope of his
assignments as War Minister, in accordance with the decree of 4 February
1938 competent and to that extent responsible: (a) for the material
right to issue ordinances within the entire local and pertinent sphere,
restricted in part by co-operation and co-responsibility regarding the
utilization of prisoner-of-war labor; (b) for the general allocation of
prisoners of war arriving in Germany to the corps area commander,
without having powers of command over prisoner-of-war camps and
prisoners of war themselves; (c) for the general supervision of the
camps in the OKW area not including those within the zone of operations,
the rear Army area, or the area of the military commanders, nor the Navy
and Air Force prisoner-of-war camps.

The competent office in the OKW was the “Chief of the Prisoner-of-War
Organization,” who was several times made personally responsible by the
Prosecution. The Defendant Keitel attaches importance to the fact that
the Chief of the Prisoners of War Organization was his subordinate
through the Armed Forces Department. Hence the responsibility of the
Defendant Keitel in this domain is self-evident, even in those cases in
which he did not personally sign orders and decrees.

The basic regulations for the treatment of prisoners of war were: (1)
The service regulations issued by the Chief of the OKW within the scope
of normal preparations for mobilization, and laid down in a series of
Army, Navy, and Air Force publications; (2) the stipulations of the
Geneva Convention, to which special reference was made in the service
regulations; (3) the general decrees and orders which became necessary
from time to time in the course of events.

Apart from the treatment of Soviet Russian prisoners of war who were
subject to regulations on an entirely different basis, to which I shall
later make particular reference, the provisions of the service
regulations in accordance with international law, that is the Geneva
Convention, held good. The OKW exercised supervision over the strict
observance of these Army service regulations through an Inspector of the
Prisoners of War Organization and, from 1943 on, through a further
control agency, the Inspector General of the Prisoners of War
Organization.

The representatives of the protecting powers and the International Red
Cross may be considered as constituting an additional control agency,
which no doubt submitted to the various governments reports on
inspections and visits to the camps, in accordance with the provisions
of the Geneva Convention. No such reports have been submitted here by
the Prosecution; I shall come back to the charges made here by the
French prosecutor. But the fact that the British and American
prosecutors, for instance, have not submitted such reports may well
permit the conclusion that the protecting powers did not discover any
serious violations with regard to the treatment of inmates of
prisoner-of-war camps.

The treatment of prisoners of war, which led to no serious complaints
during the first few years of the war with the Western Powers—I except
isolated cases like that of Dieppe—became more and more difficult for
the OKW from year to year, because political and economic considerations
gained a very strong influence in this sector. The Reichsführer SS tried
to get the Prisoners of War Organization into his own hands. The
resulting struggles for power caused Hitler to turn over the Prisoners
of War Organization to Himmler from October 1944 on, the alleged reason
being that the Armed Forces had shown itself to be too weak and allowed
itself to be influenced by doubts based on international law. Another
important factor was the influence exerted on Hitler, and through him on
the OKW, by the labor authorities and the armament sector. This
influence grew stronger as the labor shortage increased.

The Party Chancellery, the German Labor Front, and the Propaganda
Ministry also played a part in this question, which was in itself purely
a military one. The OKW was engaged in a constant struggle with all
these agencies, most of which had more influence than the OKW.

All these circumstances must be taken into consideration in order
properly to understand and evaluate the responsibility of the Defendant
Keitel. As he himself had to carry out the functions “by order,” and
since Hitler always kept the problem of the Prisoners of War
Organization under his personal control for reasons previously
described, the Defendant Keitel was scarcely ever in a position to voice
his own, that is, military, objections against instructions and orders.

The Treatment of French Prisoners of War.

As a result of the agreement of Montoire, the keynote to apply to
relations with French prisoners of war became “collaboration.” Their
treatment moved in the direction indicated by this; and discussions with
Ambassador Scapini brought about a considerable improvement for them. In
this connection I refer to the affidavit of Ambassador Scapini, who
states among other things:

    “It is correct that General Reinecke examined the questions at
    hand objectively and without hostility, and that he attempted to
    regulate them reasonably when this depended on his authority
    alone. He took a different attitude when the pressure exercised
    on the OKW by the Labor Service—that is by the Allocation of
    Labor—and sometimes by the Party made itself felt.”

The prisoners of war used for labor were scarcely guarded, and those
employed in the country had almost complete freedom of movement. By
virtue of the direct understanding with the Vichy Government there were
considerable alleviations in comparison with the rules of the Geneva
Convention, after repatriation under the armistice provisions had very
considerably lessened the number of the original prisoners of war.

To mention just a few ...

THE PRESIDENT: Dr. Nelte, is there anything very important in these next
few pages, until you get to Page 183?

DR. NELTE: It is the treatment of the French ...

THE PRESIDENT: If you would only deal with it in a very general way. I
should have thought there was nothing very important until you get to
Page 183 where you begin to deal with the accusation in reference to the
Sagan case. You see, it is 12 o’clock now.

DR. NELTE: I believe that by 1 o’clock I shall be through. Or am I to
understand your remark to mean that you are limiting my speech to a
certain time? I asked you to grant me 7 hours for my speech, and my
request ...

THE PRESIDENT: That is what the Tribunal’s order was.

DR. NELTE: I submitted my request to the Tribunal, and believed I could
assume that in this particular case my request was granted, but if that
is not the case ...

THE PRESIDENT: Well, the Tribunal will give you until 12:30 on account
of any interruptions which I may have made. But I again suggest to you
that there is really nothing between 178 and 183 which is of any real
importance.

DR. NELTE: I hope, Mr. President, that that does not mean that these
statements are to be considered irrelevant. I think my subjective
opinions ...

THE PRESIDENT: I said “of real importance.”

[sm type begins]DR. NELTE: (1) Release of all prisoners of war born in
or before 1900; (2) release of fathers of families with numerous
children and widowers with children; (3) considerable alleviation of the
mail and parcel facilities; increased German support for officers’ and
enlisted personnel camps by establishing institutions for entertainment
and physical welfare of the prisoners of war; (4) for officer
candidates, facilitation of their further training in their civilian
occupation and care by a French General, Didelet.[sm type ends]

[sm type begins]As Ambassador Scapini himself has testified, he and the
members of his delegation had complete freedom of correspondence with
and access to all camps and labor detachments, except for special
military reasons in isolated cases. The members of the delegation were
able to speak to their prisoner comrades privately, like every
representative of a protecting power, and they were particularly able to
make detailed inquiries about conditions with the French camp leader or
the trustees, who were elected by the prisoners of war themselves. In
addition to this, officers who had been selected by him personally were
placed at his disposal as his assistants.[sm type ends]

[sm type begins]The subsequent regrettable occurrences, as presented by
the French Prosecution here, resulted from the deterioration of the
political and military situation. One of these occurrences was the
escape of General Giraud, which Hitler, in spite of all arguments
brought by the OKW, used to have measures against the French generals
and officers increased in severity. The second decisive incident was the
Allied invasion of Africa, which led to general unrest and to numerous
attempts at escape. Finally, at the time of the last stage of the war,
measures were applied which can only be explained by the—I would call
it catastrophic—morale.[sm type ends]

[sm type begins]In examining the responsibility of the Defendant Keitel
it must be considered that he did not possess any direct influence on
the occurrences in the camps and workshops. His responsibility can only
be determined if it is proven that he had caused a lack of necessary
supervision, or that no intervention had taken place after learning of
such occurrences. In this respect, however, there is no proof of guilt
of the OKW.[sm type ends]

[sm type begins]The French Prosecution, in the charges against the
Defendant Keitel, have presented a note from Ambassador Scapini to the
German Ambassador, Abetz, of 4 April 1941 under a collective number,
F-668. This refers to the retaining of French civilians in Germany as
prisoners of war. This document states on Page 5:[sm type ends]

    [sm type begins]“In order to facilitate the examination of the
    categories to be released, I am transmitting enclosed a
    summarized chart. I am also enclosing a copy of the note of the
    German Armistice Commission Number 178/41 of 20 January 1941,
    which refers to the decision of the OKW to liberate all French
    civilians who are being treated as prisoners of war.[sm type
    ends]

    [sm type begins]“I hope that the execution of this decision will
    be expedited through this report, which I have the honor to
    submit to you.”[sm type ends]

[sm type begins]I have asked the French Prosecution to pass on to me the
note of the German Armistice Commission Number 178/41 of 20 January
1941, in which this decision of the OKW is mentioned. I believe that the
copy of this note, which was attached to the communication of 4 April
1941 (Document F-668) should have been handed over with this document,
because it was part of this document. Unfortunately this has not been
done.[sm type ends]

[sm type begins]From the reference it can be seen that the OKW, and
thereby the Defendant Keitel, held the view that things would have to be
dealt with in a correct manner in accordance with the agreements with
France, and that the OKW, which was the proper authority for these
fundamental orders with regard to the prisoners of war, had decided to
release all French civilians who were being treated as prisoners of
war.[sm type ends]

[sm type begins]It is difficult to recognize how this document can serve
as evidence of guilt of the Defendant Keitel. Rather will this document
have to be regarded as symptomatic of the fact that the Defendant
Keitel, when violations against existing agreements came to his
knowledge, saw to it that they were stopped.[sm type ends]

[sm type begins]The Treatment of Soviet Russian Prisoners of War.[sm
type ends]

[sm type begins]Hitler already regarded the prisoner-of-war problem as a
personal domain of his legislation, and the more time passed, the less
he regarded it from the points of view of international law and military
needs, but rather from a political and economic angle. The problem in
the treatment of Soviet Russian prisoners of war from the very beginning
was also subject to ideological considerations which for him was the
primary motive in the war against the Soviet Union. The fact that the
Soviet Union was not a member of the Geneva Convention was exploited by
Hitler, in order to obtain a free hand in the treatment of Soviet
Russian prisoners of war.[sm type ends]

[sm type begins]He stated to the generals that the Soviet Union felt
equally free from all stipulations which had been created by the Geneva
Convention for the protection of prisoners of war. One must read the
decrees of 8 September 1941 (Document Number EC-338, Exhibit Number
USSR-356) in order to understand clearly Hitler’s attitude. In the
official document of the counterintelligence office (Amt Ausland Abwehr)
of 15 September 1941, rules were laid down, which were to be observed
according to international law, concerning the treatment of prisoners of
war where the Geneva Convention did not apply between belligerents.[sm
type ends]

[sm type begins]The Defendant Keitel has testified on the witness stand
that he had accepted the viewpoints laid down in this document and had
presented them to Hitler. The latter strictly refused to rescind the
decree of 8 September 1941. He told Keitel:[sm type ends]

    [sm type begins]“Your doubts originate from the soldierly
    conception of a chivalrous war. Here we are concerned with the
    destruction of an ideology.”[sm type ends]

[sm type begins]Keitel noted this passage down word for word and added
to his written statement of 15 September 1941: “I therefore approve and
countenance these measures.”[sm type ends]

[sm type begins]It was a typical example of Keitel expressing his doubts
and Hitler taking his final decision. Keitel stood up for these
decisions and did not let his subordinate offices know that he was of a
different opinion. Such was his attitude. For this also he is, within
the limits of his official position, taking responsibility.[sm type
ends]

[sm type begins]What Keitel actually thought is revealed in the excerpt
submitted as Document Keitel-6, Document Book 1, from the book
_Employment Conditions for Eastern Workers and Soviet Russian Prisoners
of War_. The Codefendant Speer has testified in cross-examination that
he over and over again told the Defendant Keitel that any employment of
prisoners of war of any enemy country in enterprises prohibited by the
Geneva Convention was out of the question. Speer further testified that
Keitel several times rejected any attempt to employ prisoners of war of
any western nation in actual war plants.[sm type ends]

[sm type begins]The defense counsel for the Defendant Speer will also
deal with this question in detail.[sm type ends]

[sm type begins]In addition, I just want to submit certain individual
cases charged against the Defendant Keitel personally by the
Prosecution, that is to say, cases where, in the opinion of the
Prosecution, he is supposed to have exceeded the limits of the general
responsibility inherent in his position.[sm type ends]

I should not like to omit that case which was repeatedly mentioned—and
rightly so—in the course of the evidence, the case of the 50 Royal Air
Force officers, the shameful case of Sagan.

It particularly affects us as Germans, because it shows the utter lack
of all restraint and proportion in the orders and the character of
Hitler, who did not allow himself to be influenced for an instant in his
explosive decisions by any thought of the honor of the German Armed
Forces.

The cross-examination of the Defendant Keitel by the representative of
the British Prosecution has determined how far his name too has been
implicated in these abominable facts. Although the evidence clearly
establishes the fact that Keitel neither heard nor transmitted Hitler’s
murderous order, that he and the Armed Forces had nothing to do with the
execution of this order and, finally, that he did everything in his
power to prevent the escaped officers from being handed over to Himmler
and did at least succeed in saving the officers who were taken back to
the camp, he is painfully conscious of his guilt in not realizing at the
time the terrible blow which such a measure must inflict on German
military prestige throughout the world. In connection with the treatment
of the Sagan case the French Prosecution confronted the Defendant Keitel
with Document 1650-PS, which deals with the treatment of escaped
prisoners of war.

This, Mr. President, is the so-called “Bullet Decree.” Considering the
lack of time, I should like to deal shortly with this case, but I must
deal with it because it is one of the most significant and gravest
accusations against my client; I shall only summarize.

During his cross-examination, Keitel made the following statement:

    “This Document 1650-PS emanates from a police agency and
    contains a reference to the OKW by the words: ‘The OKW has
    decreed the following ...’”

Keitel says:

    “I have certainly neither signed this order of the OKW nor seen
    it; there is no doubt about that.”

He cannot explain it; he can only assume how this order came to be
issued by the Reich Security Main Office.

In his examination he mentions the various possibilities whereby such an
order could have reached the office which issued it. Then he refers to
another document, 1544-PS, which contains all the orders and directives
concerning prisoners of war, but not this order referring to the escaped
officers and noncommissioned officers.

The witness Westhoff has confirmed that the concept “Stufe III” and its
meaning were unknown to him and to the office of the OKW Prisoners of
War Organization. He also stated that on assuming office on 1 April 1944
he found no order of this nature, not even a file note.

The meaning of that Bullet Decree was completely obscure. I believe this
obscurity has been cleared up by the evidence given by the Codefendant
Kaltenbrunner, who on his part had never before spoken to the Defendant
Keitel on the matter.

I pass on to Page 187, where Kaltenbrunner said:

    “I had never heard of the Bullet Decree before I assumed the
    office. It was an entirely new concept for me. Therefore I asked
    what it meant. He answered that it was a Führer order; that was
    all he knew. I was not satisfied with this information, and on
    the same day I sent a teletype message to Himmler asking for
    permission to look up a Führer order known as the Bullet
    Decree.... A few days later, Müller came to see me on Himmler’s
    orders and submitted to me a decree which, however, did not
    originate with Hitler but with Himmler, and in which Himmler
    stated that he was transmitting to me a verbal Führer order.”

From this it is safe to assume that, without consulting Keitel and
without the latter’s knowledge, Hitler must have given a verbal order to
Himmler, as stated in Document 1650-PS which was submitted here.

Now I come to Page 190 of my final plea:

[sm type begins]This confirms the assumption which Keitel expressed in
his interrogation, although Kaltenbrunner had not previously informed
him that he knew of verbal orders given by the Führer.[sm type ends]

[sm type begins]3) In another case also, the one dealing with the
branding of Soviet prisoners, Keitel’s statement in the witness box has
proved to be the simple truth.[sm type ends]

[sm type begins]The witness Roemer has confirmed in her supplementary
affidavit that the order to mark Soviet prisoners of war by branding was
cancelled immediately after being issued. A further statement of the
Defendant Keitel is therefore also credible, according to which this
order had been issued without his knowledge, although naturally Keitel’s
responsibility for the acts of the party concerned is not thereby
contested.[sm type ends]

[sm type begins]4) In this connection I refer finally to Document 744-PS
dated 8 July 1943, submitted in support of the charge against Keitel. It
deals with the increased iron and steel program, for the execution of
which the allocation of the necessary miners from among the prisoners of
war was ordered. The first two paragraphs of the document read:[sm type
ends]

    [sm type begins]“For the extension of the iron and steel program
    the Führer on 7 July ordered the unqualified promotion of the
    necessary coal production and the employment of prisoners of war
    to cover the labor requirements. The Führer ordered the
    following measures to be taken with all possible dispatch for
    the ultimate purpose of assigning 300,000 additional workers to
    the coal mining industry.”[sm type ends]

[sm type begins]The last paragraph reads:[sm type ends]

    [sm type begins]“In connection with the report to the Führer,
    the Chief of Prisoner of War Affairs will advise every 10 days
    concerning the progress of the drive. First report on 25 July
    1943, reference date: 20 July 1943.”[sm type ends]

[sm type begins]I submit this document, not because of its actual
content, which will be taken up by the defense of the Defendant Speer,
but because of its symptomatic evidential value for the answer of the
Defendant Keitel, when he stated that Hitler was particularly interested
in prisoner of war affairs and himself personally issued the principal
orders and those he considered important.[sm type ends]

[sm type begins]5) The cases also connected with this complex such as:
Terror-fliers, lynch law, Commando tasks, combat against partisans, will
be dealt with by other defense counsels. The Defendant Keitel has made
his statement regarding these individual facts during his interrogation
and cross-examination.[sm type ends]

For the subjective facts of the alleged crimes one element is of special
importance: the knowledge of them. Not only from the point of view of
guilt, but also in view of the conclusions which the Prosecution have
drawn, namely, acquiescence, toleration, and omission to take any
counteraction. The fact of knowledge comprises: (1) Knowledge of the
facts; (2) recognition of the aim; (3) recognition of the methods; (4)
conception of, or possibility of conceiving the consequences.

During the discussion of the question of how far the Defendant Keitel
could possibly have drawn any conclusion as to the intention of
realization by force from knowledge of the text of the National
Socialist Party Program and from Hitler’s book, _Mein Kampf_, I have
already demonstrated why Keitel did not have this recognition of a
realization by force.

Keitel denied any knowledge of the intended wars of aggression up to the
time of the war against Poland, and his statement is confirmed by
Grossadmiral Raeder. This comment is certainly a subjective truth
inasmuch as Keitel did not seriously believe in a war with Poland, not
to mention one involving intervention by France and England. This
belief, held by Keitel and other high-ranking officers, was based on the
fact that the military potential was insufficient, according to past
experiences, to wage a war with any chance of victory, especially if it
developed into a war on two fronts. This belief was strengthened by the
nonaggression pact signed on 23 August 1939 with the U.S.S.R.

However, that is not the core of the problem. The speeches which Hitler
delivered before the generals, beginning with the conference of 5
November 1937, at which Keitel was not present, made it increasingly
clear that Hitler was determined to attain his goal by any means, that
is, if peaceful negotiations did not succeed, he was prepared to fight,
or at least to use the Armed Forces as an agent of pressure. There is no
doubt about that. It is a debatable point whether the text of Hitler’s
speeches, of which no official record is available, is altogether
accurately reproduced. There is, however, no doubt at all that they
allow Hitler’s intentions to be clearly recognized.

A distinction must be made as to whether it was possible for his hearers
merely to gather that a definite plan was to be carried out, or whether
they could not but recognize the existence of a general aim of
aggression. If they did not recognize this, the only explanation lies in
the fact that the generals on principle did not include the question of
war or peace in their considerations. From their point of view this was
a political question which they did not consider themselves competent to
judge since, as has been stated here, they were not acquainted with the
reasons for such a decision and, as the Defendant Keitel has testified,
the generals were bound to have confidence in the leadership of the
State to the extent of believing that the latter would only undertake
war for reasons of pressing emergency. That is a consequence of the
traditional principle that although the Armed Forces was an instrument
of the politicians it should not itself take part in politics—a
principle which Hitler adopted in its full stringency. The Court must
decide whether this may be accepted as an excuse. Keitel stated on the
witness stand that he recognized the orders, directives, and
instructions which had such terrible consequences, and that he drew them
up and signed them without allowing himself to be deflected by any
consequences which they might entail.

This testimony leaves three questions undecided: (1) The question of the
methods used to carry out the orders; (2) the question of the conception
of the consequences which actually followed; (3) the question of the
_dolus eventualis_.

The Defendant Keitel, in his affidavit (Document Book Number 12), showed
with reference to the so-called ideological orders how the SS and Police
organizations influenced the conduct of the war, and how the Wehrmacht
was drawn into events. The evidence has shown that on their own
responsibility numerous Wehrmacht commanders failed to apply such
terrible orders, or applied them in a milder form. Keitel, brought up in
a certain military tradition, was unfamiliar with SS methods which made
the effects of these orders so terrible, and they were therefore
inconceivable to him. According to his testimony he did not learn of
these effects in their full and terrible extent.

The same is true of the Führer’s Night and Fog Decree which I have just
discussed. If he did not allow himself to be deflected by the “possible”
results when he transmitted the orders, the _dolus eventualis_ cannot be
affirmed in regard to the results which took place. It must be assumed
rather that if he had been able to recognize the horrible effects, he
would, in spite of the ban on resignations, have drawn a conclusion
which would have freed him from the pangs of conscience and would not
have drawn him from month to month further and further into the
whirlpool of events.

This may be an hypothesis; but there are certain indications in the
evidence which confirm it. The five attempts made by Keitel to leave his
position, and the fact that he resolved to commit suicide, which General
Jodl confirmed in his testimony, enable you to recognize the sincerity
of Keitel’s wish.

The fact that he did not succeed must be attributed to the circumstances
which I have already presented: The unequivocal and, as Keitel says,
unconditional duty of the soldier to do his duty obediently to the
bitter end, true to his military oath.

This concept is false when it is exaggerated to the extent of leading to
crime. It must be remembered, however, that a soldier is accustomed to
measure by other standards in war. When all high-ranking officers,
including Field Marshal Paulus, represent the same point of view, the
honesty of their convictions cannot be denied, although it may not be
understood.

In reply to the questions asked so often during this Trial—why he did
not revolt against Hitler or refuse to obey his orders—the Defendant
Keitel stated that he did not consider these questions even for a
moment. His words and behavior show him to be unconditionally a soldier.

Did he incriminate himself by such conduct? In general terms: May or
must a general commit high treason if he realizes that by carrying out
an order or measure he will be violating international law or the laws
of humanity?

The solution of this problem depends on whether the preliminary question
is answered as to who is the “authority” which “permits or orders” such
criminal high treason. This question seems to me important because the
source of the authority must be established—the authority which can
permit or order the general to commit high treason; which can “bind and
absolve.”

Since the existing state power, which in this case was represented by
the Chief of State, who was identical with the Supreme Commander of the
Armed Forces, can certainly not be this authority, we merely have to
decide whether an authority exists above or beyond the authority of the
particular state, which could “bind or absolve.” Since the struggle for
power between Pope and Emperor, which dominated the Middle Ages, has no
longer any significance in regard to constitutional law, such a power
can only be impersonal and moral. The German poet Schiller expresses the
supreme commandment of the unwritten eternal law in the words: “The
tyrant’s power yet one limit hath ...” That is only one of the manifold
poetical revelations in world literature, which express the deep
yearning for freedom felt by all peoples.

If there is an unwritten law which indisputably expresses the conviction
of all men, it is this, that with due consideration for the necessity of
maintaining order in the state, there is a limit to the restriction of
freedom. Where this is transgressed, a state of war will arise between
the national order and the international power of world conscience.

It is important to state that no such statute of international law has
hitherto existed. This is understandable, since freedom is a relative
conception, and the different conceptions existing in various states and
the anxiety of all states for their sovereignty are irreconcilable with
recognition of an international authority. The authority which “binds
and absolves”—which absolves us of guilt before God and the people—is
the universal conscience which becomes alive in every individual. He
must act accordingly. The Defendant Keitel did not hear the warning
voice of the universal conscience. The principles of his soldierly life
were so deeply rooted, and governed his thoughts and actions so
exclusively, that he was deaf to all considerations which might deflect
him from the path of obedience and faithfulness, as he understood them.
This is the really tragic role played by the Defendant Keitel in this
most terrible drama of all times.

THE PRESIDENT: Dr. Kauffmann—yes, go on, Dr. Kauffmann.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): Mr. President,
may I first say that I have a few changes which I will announce when I
come to them. I shall take about two hours altogether, Mr. President.

May it please the Tribunal: The present Trial is world history—world
history full of revolutionary tensions. The spirits conjured up by
mankind are stronger than the cries of the tortured peoples for justice
and peace. Since man was deified and God humiliated, chaos, as an
inevitable consequence and punishment, has afflicted mankind with wars,
revolutions, famine, and despair. Whatever the guilt borne by my
country, it is now enduring—and permanently enduring—the greatest
penance ever endured by any people.

The means adopted to restore longed-for prosperity are wrong, because
they are second-rate. And none of my listeners can question the truth of
my assertion that the present Trial was not begun at the end of a period
of wrong, and in order to end it, but is surrounded by the surging waves
of a furious torrent bearing on its surface the hopeless wreckage of a
civilization guarded through the centuries, and in the demoniacal depths
of which lurk those who hate the true God, who are the enemies of the
Christian religion, and therefore opposed to all forms of justice.

The European commonwealth of peoples, of which my country, if only
because of its geographical position, was the very heart, is seriously
afflicted. It suffers from the spirit of negation and humiliation of
human dignity. Rousseau would have cursed his own maxims had he lived to
see the radical refutation of his theories in this twentieth century.
The peoples proclaimed the “liberty” of the great revolution, but in the
course of a mere 150 years they have in the name of that same liberty
created a monster of bondage, cruel slavery, and ungodliness, which
contrived to elude earthly justice, but did not escape the living God.

This Tribunal, conscious of its task and its mission, will some day have
to submit to the searching eye of history. I do not doubt that the
judges selected are striving to serve justice as they see it. But is not
this task indeed impossible of solution? The American chief prosecutor
stated that in his country important trials seldom begin until one or
two years have elapsed. I do not need to elucidate the profound core of
truth contained in this practice. Could human beings, torn between love
and hate, justice and revenge, conduct a trial immediately after the
greatest catastrophe humanity has ever known—and constantly harassed by
the statutory demands for rapid and time-saving proceedings—in such a
way as to earn the thanks of mankind when the waters of this second
deluge have withdrawn into their old bed?

Would it not have been better to allow for that very lapse of time
between crime and atonement with regard to the present proceedings?

Justice can be administered only when the Court possesses that inner
liberty and independence which owes allegiance only to conscience and to
God himself. Such a sacred activity had largely been forgotten in my
country, above all, by the governing class of the nation; Hitler had
prostituted the law. But this Tribunal intends to prove to the world
that the welfare of the peoples is based on law alone. And no conception
could arouse more joy and hope within the heart of people of good will
than that of unselfish justice.

I am not criticizing the provisions of the Charter; but I do ask whether
any justice has ever been, or ever could be, found on earth if might
submitted to reason so far as to grant its enemies regular trial, but
could not see fit to crown this tribute to reason by appointing a
genuinely international tribunal; for even though 19 nations have
approved of the legal basis of the Charter it is far more difficult to
administer the laws laid down.

The American chief prosecutor has emphatically declared that he did not
propose to hold the entire German nation guilty; but the records of this
Tribunal, which history will some day scrutinize attentively,
nevertheless contain many things which, to us Germans, appear to be
false and, therefore, painful. Unfortunately they also contain numerous
explicit questions on the part of the French Prosecution as to the
extent to which, for instance, certain Crimes against Humanity committed
both inside and outside Germany were known to the German people. Indeed,
the French Prosecution have asked explicitly: “Could these atrocities
remain, on the whole, unknown to the entire German nation, or were they
aware of them?” These and similar questions are not conducive to the
solution of such a difficult and tragic problem with even the slightest
approach to the truth. Insofar as evil, which always grows and manifests
itself organically, reigns supreme in a nation, every individual who has
reached the age of reason will bear some guilt for his country’s
disasters. Yet even this guilt, which is on the metaphysical plane,
could never become the collective guilt of a nation unless every
individual member of this nation has incurred a separate guilt. But who
would be entitled to establish the existence of such a guilt without
examining thousands of individual circumstances?

The problem, however, becomes even more difficult if one should try—and
this is the final aim—to establish the so-called national guilt for any
past crimes against peace, humanity, and so forth, committed on the part
of the omnipotent State, no matter through what agencies. One must bear
in mind most carefully the condition of the Reich before 1933. This has
been done sufficiently here and I shall not discuss it.

Hitler claimed for himself alone such far-reaching concepts as the
powerful German diligence, austerity, family affection, willingness to
make sacrifices, aristocracy of labor, and a hundred more. Millions
believed in this; millions of others did not. The best of them did not
lose hope of being able to avert the tragedy which they foresaw. They
flung themselves into the stream of events, assembled the good, and
fought, visibly or invisibly, against the evil. Can the man in the
street be blamed for not immediately refusing to believe in Hitler,
considering the latter’s ability to pass as a seeker after the truth,
and the fact that he constantly raised the palm of peace for the benefit
of the peace lovers? Who knows whether he himself was not convinced at
the outset that he could strengthen the Reich without going to war?
After the assumption of power large sectors of the German people
probably felt themselves to be at unison with many other peoples on
earth. Therefore, it is not astonishing that gradually, and with the
approval or tolerance of other countries, Hitler acquired the nimbus of
a man unique in his century. Only a German who lived in Germany during
the past few years and did not view Germany through a telescope from
abroad, is competent to report on the historical facts of an almost
impenetrable method of secrecy, the psychosis of fear, and the actual
impossibility of changing the regime, and thus to comply with Ranke’s
demand of historians to establish “how it was.”

[sm type begins]Ought the artisans, peasants, merchants, or housewives
categorically to have asked Hitler or Himmler for a change? I would be
quite willing to let the Prosecution answer this, as I am of the opinion
that there are living in my country no fewer idealistic and heroic
people than in any other country.[sm type ends]

[sm type begins]It will never be possible to ascertain how large a
number of Germans knew and approved of concentration camps, their terror
and such like. Only if one could establish knowledge and approval in the
soul of every individual German, considering general and particular
conditions prevailing in the Germany of the last 12 years, which it is
not now the moment to discuss, these, and only these, could be
considered guilty.[sm type ends]

[sm type begins]Therefore I do not think it just to put, to a larger or
smaller extent, the principle of collective guilt in the place of
individual responsibility, as it is held valid in all civilized nations;
it was unfortunately similarly applied by the National Socialist regime
to a whole people, and almost led to its complete extermination. May
there be no repetition of Article 231 of the Treaty of Versailles, that
portentous document of the twentieth century.[sm type ends]

Let me say a few words about that secrecy. This Trial has shown clearly
that the State itself managed to suppress such facts as would lower its
prestige and betray its real intentions. Even the men indicted here, who
have been termed conspirators, have been the victims of that carefully
devised system of secrecy, or most of them at least.

A special place in that system of secrecy is reserved to the
plan—ordered by Hitler and executed by Himmler, Eichmann, and a circle
of the initiated—for the biological destruction of the Jewish people,
the ghastly aim of which was for years concealed by the term “final
solution”—a term not immediately self-explicable. The problem of the
Jewish question ...

THE PRESIDENT: Dr. Kauffmann, it seems to the Tribunal a very long
preamble to the defense of the Defendant Kaltenbrunner, who has not been
named at all yet in what you have said. Is it not time that you came to
the case of the defendant whom you represent? We are not trying a charge
against the German people. We are trying the charges against the
defendant. That is all we are trying.

DR. KAUFFMANN: Mr. President, in the next few sentences I would have
concluded that; but I ask you to appreciate that the important word
“humanity” forms the core of my case. I believe that I am the only
defense counsel who intends to go more deeply into that subject; and I
request permission to make these few statements. I shall come to the
case of Kaltenbrunner very soon.

THE PRESIDENT: On Page 8 you have a headline which is, “The Development
of the History of the Intellectual Pursuit in Europe.” That seems rather
far from the matters which the Tribunal have got to consider.

DR. KAUFFMANN: Mr. President, may I remind you that this question was
discussed by the Prosecution, and especially by M. de Menthon. I do not
believe that I can carry out my task if I take these tremendous crimes
only as facts. Some German must have an opportunity of giving a short
description of the development—and it is very short. At the end of a
few pages I return to the case of Kaltenbrunner; and my plea will in any
case be the shortest one presented here.

THE PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far as it can,
to decide the cases which it has got to decide in accordance with law
and not with the sort of very general, very vague and misty
philosophical doctrine with which you appear to be dealing in the first
12 pages of your speech, and, therefore, they would very much prefer
that you should not read these passages. If you insist upon doing so,
there it is; but the Tribunal, as I say, do not think that they are
relevant to the case of the Defendant Kaltenbrunner. They would much
prefer that you would begin at Page 13, where you really come to the
defendant’s case.

DR. KAUFFMANN: Mr. President, it is, of course, extremely difficult for
me to present a plea which is already very much condensed, and now to
disrupt it even more. It is really difficult. I hope that the Tribunal
will appreciate that.

THE PRESIDENT: Well, Dr. Kauffmann; there has been nothing condensed in
what you have read up to the present. It has been all of the most
general type.

DR. KAUFFMANN: In that case may I at least read a few sentences below
the headline with regard to the defense? It starts ...

THE PRESIDENT: Can you not summarize the general nature of what you wish
to say before you come to the Defendant Kaltenbrunner?

DR. KAUFFMANN: Yes, I shall try. I shall read only a few sentences, for
the sake of better understanding, from the short chapter dealing with
the task of the Defense. I say there that the defense has been
established by the Charter and ask how in the face of such excesses a
defense can still identify its task. I then go on to say:

In this Trial, error and truth are mysteriously mixed, probably more so
than ever before in any great trial. To try to find the truth raises the
counsel for the defense to the dignity of an assistant of the Court. Not
only does it entitle the Defense to doubt the credibility of the
witnesses but also that of the documents, in particular of the
Government reports. It entitles the counsel for the defense to state
that such reports, although they may be admitted by the Charter in
evidence, can only be accepted under protest, because none of the
defendants, defendants’ counsel, or neutral observers could have any
influence on the way in which they originated.

These testimonies were certainly made within the framework of the law,
but also within the framework of power.

The people, or a large part of the people, in their aspirations toward
peace and happiness elevated the representative of a heretical doctrine
to the position of their Führer, and this Führer abused the faith of his
followers so that the people, no longer possessing the strength to offer
a timely and open resistance, were engulfed in the gigantic abyss of the
annihilation of their entire racial, political, spiritual, and economic
existence. All of this is tragic in the truest sense of the word. Had
the individual man in the street, the mother at home, and her sons and
daughters, been asked to choose between peace or war, they would never
voluntarily have chosen war. The unsatisfactory element in this Trial is
the absence of the man ...

THE PRESIDENT: Are you reading now from some part of your document?

DR. KAUFFMANN: I am reading a few sentences, Mr. President. This is at
Page 7 of the German text.

THE PRESIDENT: Can you not summarize the argument you are presenting?

DR. KAUFFMANN: Mr. President, I would appreciate it if I could be told
once more whether the Tribunal does not wish me to throw any light at
all on the ideological background in the interests of an understanding
of these crimes against humanity and peace. If the Tribunal states that
it does not desire me to make any such statements, then of course I
shall follow the wishes of the Tribunal. But such a phenomenon ...

THE PRESIDENT: Well, Dr. Kauffmann, if you think it is necessary for you
to read this passage you can do so; but, as I have indicated to you, the
Tribunal think it is very remote indeed from any question which they
have to consider.

DR. KAUFFMANN: Thank you very much. Then I shall skip a few pages and
shall present only 4 or 5 pages, which will be very condensed, on the
subject which I have just mentioned. That begins with the heading,
“Outline of Intellectual Development.”

The rise of Hitler, and his downfall, unique in its extent and
consequences, may be viewed from any side—from the perspective of the
historical spectacle afforded by the course of German history, the
course of economic forces supposedly governed by irresistible laws, the
sociological divisions of the nation, the peculiarities of race and
character of the German people, or the mistakes committed in the
political sphere by the other brothers and sisters of the family of
nations living in the same house.

All this certainly completes the picture of the analysis, but it brings
to light only partial knowledge and partial truth. The deepest, and the
fatal, reason for the Hitler phenomenon lies in the metaphysical domain.

In the final analysis the second World War was unavoidable. Anyone,
however, who regards the world and its phenomena only from the
standpoint of economics may arrive at the conclusion that both world
wars could have been avoided if the resources of the earth had been
reasonably distributed. Economic factors alone can never change the face
of the earth; therefore, the change in the German people’s standard of
living, and the demoralization of the national soul by the Treaty of
Versailles, inflation, serious unemployment, and other factors formed a
foundation for the advent of Hitler. It is possible that catastrophes
may be delayed for years or decades, if certain external living
conditions make the relationship between different nations and peoples
ostensibly happier. At no time, however, can a misguided idea be
destroyed through economic measures alone, and deprived of its power to
injure the individual and the nation, unless mankind can overcome such
ideas and replace them by better ones.

“In the way in which the name of God is used by the peoples and
nations,” says the famous Donoso Cortes, “lies the solution of the
most-feared problems.” Here we have the explanation of the providential
mission of the separate nations and races, the great changes in history,
the rise and fall of empires, conquests and wars, the different
characteristics of the nations, and even their changing fortunes.

M. de Menthon has tried to make an intellectual analysis of National
Socialism. He speaks of the “sin against the spirit,” and sees the
deeper causes of this system in estrangement from Christianity.

I wish to add a few words. Hitler was not a meteor, the fall of which
was incalculable and unpredictable. He was the exponent of an ideology
which was in the last resort atheistic and materialistic.

There is every reason to reflect that, although National Socialism is
eliminated through the complete defeat of Germany, and although the
world is now free of the German threat as proclaimed by all nations,
there has been no decisive change for the better. No peace has filled
our hearts, no rest has come to any corner of human existence. It is
true that the collapse of a powerful state with all its physical and
spiritual forces will be felt for a long time, just as the sea is
stirred into motion when a rock is thrown into calm water. But something
much more is happening at present in Europe and in the world—something
quite different from the mere ebbing away of such a wave of events.

To retain the comparison, the waves rise anew from the deep; they are
fed by mysterious forces which constantly emerge anew. They are those
restless ideas, aiming at the disaster of nations, of which I spoke. And
nothing can disprove the truth of my words when I maintain that victor
and vanquished alike live in the midst of a crisis which disturbs the
conscience of individuals and of nations like a monstrous and apparently
inevitable nightmare, and which causes us to look beyond the punishment
of guilty individuals toward those ways and means which can spare
humanity an even greater catastrophe.

In the _Confessions of a Revolutionary_ the clear-sighted socialist
Proudhon wrote the memorable words: “Every great political problem
contains within itself a theological one.” He coined this phrase one
hundred years ago. It is most timely that the American General
MacArthur, at the signing of the Japanese capitulation, is said to have
repeated the essential meaning of these profound words by saying: “If we
do not create a better and greater system, death will be at our door.
The problem is, fundamentally speaking, a religious one.”

History is made by changes in religious values. They constitute the
strongest motive power in the cultural progress of humanity. Permit me
to show you in a few bold outlines the intellectual and historical
forebears of National Socialism.

THE PRESIDENT: Dr. Kauffmann, it is 1 o’clock, and I must say that the
last two pages which you have read seem to me to have absolutely nothing
to do with Crimes against Humanity, or with any case with which we have
got to deal. I suggest to you that the next pages, headed “Renaissance,
Subjectivism, French Revolution, Liberalism, National Socialism” are
equally completely unlikely to have any influence at all upon the minds
of the Tribunal.

The Tribunal will now adjourn.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

DR. KAUFFMANN: Mr. President, I am going to leave out the section headed
“Renaissance, Subjectivism, French Revolution, Liberalism, National
Socialism.” The gist of those remarks can be summarized in two or three
sentences and I merely beg you to take cognizance of them. I have
pointed out that the course of all these disastrous movements is the
spiritual attitude which Jacques Maritain described as anthropocentric
humanism.

[sm type begins]The clamor of the great struggle between the Middle Ages
and modern times has filled the last centuries until this very hour. Its
victims include since 1914, for the first time, the women; since 1939,
for the first time, the children. The apocalyptic battle is in full
progress for the 2,000-year-old meaning of the Occident, the motherland
of the material as well as the personal culture of humanity. Its object
is the steadily growing anthropocentric humanism which makes the human
being the measure of all things, the secularization of religion. It
announces itself in the Renaissance, becomes completely clear in the
enlightenment of the seventeenth and eighteenth centuries and in the
intellectual movements of the nineteenth century. However good the
reasons and motives were, the way over the Renaissance and the schism of
the sixteenth century proved to be wrong. At its very end stands, for
the present, the ideology of National Socialism. In the heads of its
most extreme champions National Socialism culminated in the radical
demand for the fight unto death against Christianity. Therefore this
ideology was in its last analysis a philosophy without love; and because
of this, it extinguished the light of reason in those addicted to it. To
that extent the head himself of this heresy proclaimed a truth.[sm type
ends]

[sm type begins]Goethe expressed this problem by saying: “World history
is the struggle between belief and unbelief.” And I maintain, based on
the declarations of the greatest minds in all camps of religious faiths,
that the history of the nations, just as previously it was a struggle
for the natural divine right of man, for 2,000 years has been a striving
of human intellect for the Christian soul in man. These precepts are in
fact such that one may not doubt them even for a short moment without
the mind beginning to reel and vacillate helplessly between truth and
error. It is cause for reflection that Hitler rejected the wonderful
characteristic of a truly kind man that we call humility because he had
decided in favor of Machiavelli and Nietzsche and that now the fate of
the Germans is humiliation without precedent. One may also reflect upon
the fact that Hitler denied the virtues of pity and mercy and that now
millions of women and children wail with sorrow, while the law,
seemingly extinct, again assumes enormous proportions, whereas Hitler
surrounded himself with lawlessness. The real and last root of these
calamitous modern movements which threaten state, society, and
Christianity, is rootless liberalism in the meaning of that
anthropocentric humanism, as Maritain calls it. Man and his autonomous
reason become the criterion of everything. The question should impose
itself upon every thinking person, why from the turn of the nineteenth
century until the present such catastrophes of humanity have occurred
which in history, I should almost like to say, find their parallel only
in cosmic catastrophes. Two world wars, with revolutions in their wake,
are never an accidental development but rather a predetermined evolution
of the human race founded on some intellectual-religious error. Coming
from England, rationalism found its way to France and on arrival there
changed its physiognomy. I believe that the paganism of the ancient
times knew hardly anything like Voltaire. No sooner had rationalism
become the state religion of France, when the French Revolution burst
into flames and wrote the idea of the emancipated human rights with
flaming letters into the sky of Europe. In spite of the proclamation of
the human rights, mankind waded through blood as if this was the way to
freedom. Sarcastic and scornful laughter at everything sacred went
through the raving masses. When the French Revolution had put into
practice its state founded on reason, the new institutions did not prove
quite so reasonable. The “brotherhood” was, compared with the glamorous
promises of the rationalists, a bitterly disappointing caricature. Soon
these ideas also conquered Germany; for Germany looked with amazement
and awe toward France in this century. The manifestation of religion
became a religion of pure humanity. The last step was taken by Kant; he
drew the last consequence from the principle of free science. Hegel
abolished the personal God and replaced him by the absolute reason. The
state is everything; it is God, its will is God’s will, in all relations
to it there are no natural rights; it creates religion, law, and
morality by virtue of its own sovereignty. Hitler once more placed the
sovereignty in the people as a race. Hegel’s disciples destroyed the
last vestige of the moral fundaments of society, state, and law. Only
the genius of a man like Leibnitz, in whom the intellect of the German
nation seemed to concentrate for the last time, stood alone in a sea of
the rational ideology. Voltaire ridiculed the German thinker, not only
in France, but also in Berlin. The last stages are connected with the
names of Nietzsche and others. Nietzsche has, as no other modern man,
reasoned modern ideologies out to the end and proclaimed with dauntless
logic whither the present development would inevitably lead. Thus the
road leads from Caligula and Julian Apostate through many a genius,
glorified by the whole world but truly destructive in their effects,
directly to Hitler.[sm type ends]

[sm type begins]Ancient paganism or modern paganism, which of them is
worse? As Donoso Cortes so wisely puts it, there will be no more hope
for a society which has exchanged the stern cult of Christian quest of
truth for the idolatry of reason. After the sophisms come the
revolutions, and behind the sophist walk the executioners.[sm type ends]

[sm type begins]When Hitler, returning from the first World War,
decided, as he said, to become a politician, he declared that he had
found the powers which could free Germany with its national and social
elements from its misery. But fundamentally his ideology was only
another step along the well-worn road to complete autonomy of so-called
natural common sense, to which he so often referred. Naturally he had
his teachers. The apotheosis of his own people traces back to Fichte,
the ideal of the master-man to Nietzsche, the relativity of morals and
right to Machiavelli, the cult of race to Darwin. We have witnessed
their practical effect; for this road leads straight into the
concentration camps, to the destruction of other races, to the
persecution of Christians. But the outside enemies of National Socialism
succumbed to the same ominous idea of “natural common sense” by killing
with their bombs millions of noncombatant women and children and
destroying so many dwellings in German villages and cities. The victor,
even in a defensive war, must not try to excuse these events with
“military necessities” in the meaning of the Charter. The cultural
values of this very city in which this Tribunal is sitting, or of
Dresden, Frankfurt, and many other cities, were the cultural property of
the entire Occident. All this, and the terrible misery of the flood of
refugees from the East, and the fate of the prisoners of war, is part of
the theme of the intellectual and cultural analysis of National
Socialism.[sm type ends]

In the midst of this whole spiritual situation stands the figure of the
Defendant Dr. Kaltenbrunner. The fatherland was already bleeding from a
thousand wounds dealt at its sensitive soul and its gigantic power. Is
this man guilty? He has denied his guilt and yet admitted it. Let us see
what the truth is.

As I have already emphasized, up to the year 1943 Kaltenbrunner was, by
comparison with the other defendants at this Trial, hardly known in
Germany; at any rate, he had hardly any associations with either the
German public or the high officials of the regime. In those days, when
the military, economic, and political fate of the German people was
already swinging with great velocity toward the abyss, hate and
abhorrence of the executive powers were at their peak, the more so as
the paralyzing sensation of the hopelessness of any resistance against
the terror of the regime began to disappear, for people had by then
finally turned away from the legend of invincibility preached by
propaganda. Up to that point Kaltenbrunner had led a retired life and,
in spite of the Austrian Anschluss, his record was clear of offenses
against international law. I should like to say here that he was an
Austrian—I might almost say, a bona fide Austrian. Suddenly, so to
speak, and not on account of any special aptitude, much less through any
efforts of his own, he was drawn into the net of the greatest
accomplices of the greatest murderer. Not of his own free will; on the
contrary, he repeatedly attempted to resist and to have himself
transferred to the fighting front.

I can well understand that I might be told that I should, in view of the
sea of blood and tears, refrain from illuminating the physiognomy of
this man’s soul and character. But deep in my heart—and I beg you not
to misunderstand me—while exercising my profession as counsel, even of
such a man, I am moved by the universal thesis of the great Augustine,
which is hardly intelligible to the present generation: “Hate error, but
love man.” Love? Indeed, insofar as it should pervade justice; because
justice without this virtue becomes simple revenge, which the
Prosecution explicitly disavows. Therefore, for the sake of justice, I
must show you that Kaltenbrunner is not the type of man repeatedly
described by the Prosecution, namely, the “little Himmler,” his
“confidant,” the “second Heydrich.”

I do not believe that he is the cold-hearted being which the witness
Gisevius described in such unfavorable terms, although only from
hearsay. The Defendant Jodl has testified before you that Kaltenbrunner
was not among those of Hitler’s confidants who always gathered around
him after the daily situation conferences in the Führer’s headquarters.
The witness Dr. Mildner, on the basis of direct observation, made the
following statement, which was not shaken by the Prosecution:

    “From my own observation I can confirm this: I know the
    Defendant Kaltenbrunner personally. His private life was
    irreproachable. In my opinion he was promoted from Higher SS and
    Police Leader to Chief of the Security Police and of the SD
    because Himmler, after the death of his principal rival Heydrich
    in June 1942, did not want any man near him or under him who
    might have endangered his own position. The Defendant
    Kaltenbrunner was no doubt the least dangerous man for Himmler.
    Kaltenbrunner had no ambition to bring his influence to bear
    through special deeds and ultimately to push Himmler aside. He
    was not hungry for power. It is wrong to call him the ‘little
    Himmler.’”

The witnesses Von Eberstein, Wanneck, and Dr. Hoettl have expressed
themselves in a similar manner.

And yet this man took over the Reich Security Main Office; indeed, he
took it over to the fullest extent, despite his agreement with Himmler.
I know that today this man is suffering a great deal in thinking of the
catastrophe that has overtaken his people and from the uneasiness of his
conscience; nothing is more understandable than that Dr. Kaltenbrunner,
knowingly, can no longer face the fact that he actually was in charge of
an office under the burden of which the very stones would have cried out
if that had been possible. The personality and character of this man
must be judged differently from the way the Prosecution has judged it.

For the psychologist the question arises how a man, with, let us say, a
normal citizen’s virtues, could take under his control an office which
became the very symbol of human enslavement in the twentieth century, as
far as Germany is concerned. Yet there may have been two reasons for
taking over this office, nevertheless. One is based on the fact that Dr.
Kaltenbrunner, although closely connected with the political and
cultural interests of his Austrian homeland, supported National
Socialism in its larger sense. For before he turned into the side path
with its secrets, he marched with thousands and hundreds of thousands of
other Germans, who desired nothing else than delivery from the unstable
conditions prevailing at that time, on that wide road into which the
eyes of the entire world had insight. Therefore, for example, he was
without a doubt a disciple of anti-Semitism, however, only in the sense
of the necessity of putting an end to the flooding of the German race
with alien elements; but he condemned just as emphatically the mad crime
of the physical annihilation of the Jewish race, as Dr. Hoettl
definitely assures us.

Certainly Kaltenbrunner also admired Hitler’s personality as long as it
did not, little by little, give expression to its absolutely
misanthropic and therefore un-German nature. Also, he approved in
principle, as he himself admitted during his interrogation, of measures
which implied more or less severe compulsion, for example, the
organization of labor training camps. For this reason no sensible person
will want to question the fact that he deemed the establishment of
concentration camps fundamentally quite proper, at least as a
provisional measure during the war, as had been the case for a long time
beyond the German borders. _Sine ira et studio._

The establishment of concentration camps, or whatever one wishes to call
those places at the mention of which the listener involuntarily is
reminded of the words of Dante, is unfortunately not unknown in many
states. History knows of their existence in South Africa some decades
ago, in Russia, England, and America during this war, for the admission,
among others, of persons who for reasons of conscience do not want to
serve with arms. In Bavaria, in the land in which the Tribunal at
present sits, this sort of camp is also known; also known is the
so-called “automatic arrest” category for certain groups of Germans.
Under the heading “Political Principles,” in Point B-5 of the text of
the mutual declaration of the three leading statesmen on the Potsdam
Conference of 17 July 1945, the statement is contained that, among
others, all persons who are a threat to the occupation or its aims shall
be arrested or interned.

The apparent necessity for camps of this sort is thereby recognized. I
myself detest those institutions of human slavery; but I state openly
that these institutions also lie on the road which, when followed to the
end, can and does bring suffering to persons holding different views to
those desired by the state. By this the crimes against humanity in the
German concentration camps are not in the least to be minimized.

As far as Kaltenbrunner is concerned, this man, in view of his character
and attitude as apparent since 1943, according to my conviction and as
can be affirmed by many witnesses, is basically a National Socialist
leader who noted only with repugnance the general trend of the
continually growing wave of terror and enslavement in Germany. For this
reason I deem it important to point to the statement of the witness
Eigruber to the effect that the claim of the Prosecution that
Kaltenbrunner established Mauthausen is wrong.

The second reason lies in the subject of the two conversations with
Himmler, about which Kaltenbrunner testified. According to that
Kaltenbrunner was prepared to take over the offices of the Domestic and
Foreign Intelligence Service in the Reich Security Main Office with the
promise of Himmler that he would be allowed to expand this service into
a central agency, with the aim of absorbing the Political Intelligence
Service and joining it with the hitherto military one of Admiral
Canaris. No doubt it is true, as the witnesses Wanneck, Dr. Hoettl, Dr.
Mildner, and Ohlendorf, and also the defendant himself have testified,
that Himmler, with Kaltenbrunner’s wish in mind, after the murder of
Heydrich, intervened in the executive realm so that nothing of any
importance took place in any executive field in Germany without Himmler
having the final word and thus issuing the decisive order.

The witness Wanneck confirmed the subject of those two conversations of
Kaltenbrunner with Himmler in the following words, which I shall quote
because of their importance:

    “When material problems arose Kaltenbrunner frequently remarked
    that he had come to an understanding with Himmler to work rather
    in the field of the Foreign Political Intelligence Service and
    that Himmler himself wanted to exert more influence in executive
    functions. To my knowledge Himmler agreed to these adjustments
    all the more since he believed that he could depend on
    Kaltenbrunner’s political instinct in foreign affairs, as was
    apparent from various remarks made by Himmler.”

Various witnesses have testified that Kaltenbrunner, predominantly and
from inner conviction, did dedicate himself to the Domestic and Foreign
Intelligence Service and more and more approached the influence on
domestic and foreign politics he was hoping for. I call attention again
to Wanneck and Dr. Hoettl, and then also to the Defendants Jodl,
Seyss-Inquart, and Fritzsche. Dr. Hoettl testified:

    “In my opinion Kaltenbrunner never was completely master of the
    large Reich Security Main Office and, from lack of interest in
    police and executive problems, occupied himself far more with
    the Intelligence Service and with exerting influence on politics
    as a whole. This he considered his real domain.”

From the testimony by General Jodl I stress the following sentences:

    “Before Kaltenbrunner took over the Intelligence Service from
    Canaris he already sent to me, from time to time, very good
    reports from the southeastern territory, through which I first
    noticed his experience in the Intelligence Service ... I had the
    impression that this man knew his business; I now received
    constant reports from Kaltenbrunner, just as earlier from
    Canaris; not only the actual reports from agents, but from time
    to time he sent to me, I might almost say, a political survey on
    the basis of his individual reports from agents. I noticed these
    condensed reports on the entire political situation abroad
    especially, because they revealed, with a frankness and sobriety
    never possible under Canaris, the seriousness of our entire
    military position.”

The results therefore, which I must deduce from the evidence, are as
follows: Kaltenbrunner, on the basis of the separation of the
Intelligence Service from the executive police function in the Reich
Security Main Office as desired by him, actually held a position, the
main interest of which was the Intelligence Service and its continuous
development. I should add that this Intelligence Service covered more
than Europe; it went from the North Cape to Crete and Africa, from
Stalingrad and Leningrad to the Pyrenees. Kaltenbrunner was the most
zealous of all those in Germany who wished to feel the pulse of the
enemy nations.

That was the lifework of this man as he himself wished it to be for the
duration of the war. Personally he lived in modest circumstances, and it
is the truth when I say that he leaves the stage of political life just
as poor as when he first entered it. The witness Wanneck once quoted a
statement by Kaltenbrunner which is characteristic of him: That he,
Kaltenbrunner, would retire completely from office after the war and
return to the land as a farmer.

Only with deep regret will the spectator see that under the pressure of
political and military events this man did not observe the limitations
desired by himself. His obedience to Hitler, and therefore also Himmler,
submitted to the apparent necessity, in the years 1943-45, of
guaranteeing the stability of conditions inside Germany through police
compulsion. Thereby he became involved in guilt; for it is clear that he
might count on a milder judgment on his guilt before the conscience of
the world only if he could produce evidence that he actually effected a
sharp separation from the unholy Amt IV of the Secret Police, if he had
in no way participated in the ideas and methods, which I believe,
eventually led to the institution of this whole Trial. I cannot deny
that he did not undertake this separation. Nothing is clearly proved in
this direction; even his own testimony speaks against him. Thus his
statement at the beginning of his examination before the Tribunal may be
explained, which I should like to define as the thesis of his guilt:

    “Question: ‘You realize that a very special accusation has been
    brought against you. The Prosecution accuses you of Crimes
    against Peace as well as of your role of an intellectual
    principal or of a participant in committing Crimes against
    Humanity and against the rules of war. Finally the Prosecution
    has connected your name with the terrorism of the Gestapo and
    with the cruelties in the concentration camps. I now ask you: Do
    you assume responsibility for these points of accusation as they
    are outlined and familiar to you?’”

And Kaltenbrunner answers:

    “First of all I should like to state to the Court that I am
    fully aware of the serious nature of the accusations brought
    against me. I know that the hatred of the world is directed
    against me, since I am the only one here to answer to the world
    and to the Court, because a Himmler, a Müller, a Pohl are no
    longer alive ... I want to state at the very beginning that I
    assume responsibility for every wrong which from the time of my
    appointment as Chief of the Reich Security Main Office was
    committed within the jurisdiction of that office as far as it
    occurred under my actual command, and I thus knew or should have
    known of these occurrences.”

Thus the duty of the Defense is automatically delineated by asking the
questions:

(1) What did Kaltenbrunner do, good and evil, after his appointment as
Chief of the Reich Security Main Office on 1 February 1943?

(2) To what extent is the statement justified that in the essential
points he did not have sufficient knowledge of all the Crimes against
Humanity and against the rules of war?

(3) In how far can his guilt be established from the viewpoint that he
should have known about the serious crimes against international law in
which Amt IV of the Reich Security Main Office (Secret State Police) was
directly or indirectly involved?

What has Kaltenbrunner done? In this connection I am passing over the
accusation brought against him by the Prosecution for his participation
in the events surrounding the occupation of Austria and Czechoslovakia,
for no matter with what energy he followed his goal of seeing his
Austrian homeland incorporated into the German Reich and used the SS
forces under his command for the realization of this end, this aim
cannot have been a criminal one according to the world’s conscience.
Just as little could one reach a verdict of criminal guilt because of
the forcible means employed at that time to accomplish the annexation of
Austria, which was the outcome of history and desired by millions.
Kaltenbrunner was still much too insignificant a man for that. Economic
distress—Anschluss movement—National Socialism: That was the path
followed by the majority of the Austrian people, not the National
Socialist ideology; for Hitler himself was, from the standpoint of
Austrianism, a spiritual and political renegade. Yet the Austrian
Anschluss movement was a people’s movement before National Socialism had
reached any importance in Germany. Austria wanted to protect herself
against the Versailles and St. Germain ruling, which forbade the
Anschluss, by holding a plebiscite in each province. After 90 percent
had voted in Tyrol and Salzburg, the victorious powers threatened to
discontinue the shipment of food supplies. Hitler’s seizure of power
paralyzed the desire for Anschluss among those not sympathizing with the
Party, but the distress in Austria became still more acute and isolated
the Dollfuss-Schuschnigg regime. Incorporation into the economic sphere
of Greater Germany, where the removal of mass unemployment seemed to be
the source of hope, appeared to the greatly distressed Austrian people
as the only way out. The wave of enthusiasm which on 12 and 13 March
1938 went through all Austria was real. To try to deny this today would
be to falsify history. The Anschluss, not the Dollfuss-Schuschnigg
Government, was based on democracy.

Just as little can one, I believe, according to the reasons mentioned
above, reach a verdict of guilt for Kaltenbrunner because of his alleged
activity in the question of Czechoslovakia. In my opinion, the question
of guilt and expiation arises only for the time after 1 February 1943.
The indignation of the German people over one of the most infamous
terroristic measures, the imposition of protective custody, had already
become immense before this date. Is it correct to say that Kaltenbrunner
himself, of whom many orders for protective custody bearing his
signature are in evidence before the Court, inwardly abhorred this type
of suppression of human liberties?

May I refer to just a few sentences from his interrogations:

    “Question: ‘Did you know that protective custody was at all
    permissible and was used frequently?’

    “Answer: ‘As I have stated, I discussed the idea of “protective
    custody” with Himmler already in 1942. But I believe that
    already before this time I had corresponded quite extensively on
    this subject with him, as well as once also with Thierack. I
    consider protective custody as applied in Germany only in a
    smaller number of cases to be a necessity of state, or better, a
    measure such as is justified by war. For the rest I often voiced
    my opinion, well founded in legal history, against this
    conception and against the application of protective custody in
    principle. I had several discussions about it with Himmler and
    with Hitler also. I publicly took my stand against it at a
    meeting of public prosecutors, I think in 1944, because I have
    always been of the opinion that a man’s freedom is one of his
    highest possessions and only the lawful sentence of a regular
    court of justice founded on the Constitution may limit or take
    away this freedom.’”

Here the same man expresses the right principles, the observance of
which would have spared the German people and the world untold
suffering, and the nonobservance of which constitutes the guilt of this
man who in spite of his right views, suited his actions to the so-called
necessity of state. He thereby, against his own will and knowledge,
became subject to the principle of hatred, which sooner or later will
always shake or shatter the foundations of the strongest state. “Right
is what benefits the people,” Hitler had proclaimed. I well know that
Kaltenbrunner today deeply regrets having adhered too long to that false
maxim without putting up sufficient resistance ...

Although the Prosecution has not been able to produce even one single
original signature of Kaltenbrunner in connection with orders for
protective custody, and I do not think it incredible when Kaltenbrunner
deposes that he himself never put into effect such an order for
protective custody by his signature, nevertheless, in view of the tragic
results due to so many of these orders, I do not need to say even one
word as to whether he is entirely blameless or is much less to blame
because these orders had perhaps been signed without his knowledge;
although of course the question arises immediately how this was possible
in an office however large. Be that as it may; in affairs of such depth
and such tragic outcome one’s feelings are inclined to make hardly any
distinction between knowledge and ignorance due to negligence, because
one wants to hold everyone occupying a post in an office responsible for
what happens there. This recognition is also the meaning of
Kaltenbrunner’s statement, cited above, regarding his fundamental
responsibility. Where the happiness and fate of living men are involved,
it is impossible to retreat under the pretext of ignorance in order to
avoid punishment; at best mitigation of sentence can be asked for. The
defendant knows this too. Orders for protective custody were the ominous
harbingers of the concentration camp. And I am not revealing a secret
when I say that the responsibility for issuing orders for protective
custody includes the beginning of responsibility for the fate of those
held in the concentration camps. I could never admit that Dr.
Kaltenbrunner may have known of the excesses suffered by the thousands
who languished in the camps; for, as soon as the gates of the
concentration camps were closed, there began the exclusive influence of
that other office, the frequently mentioned Central Office for Economy
and Administration. Instead of referring to many statements of witnesses
regarding this point, I refer only to the one of the witness Dr. Hoettl
who, when asked about subordination in rank replied:

    “The concentration camps were exclusively under the command of
    the SS Central Office for Economy and Administration, hence not
    under the Reich Security Main Office, and therefore not under
    Kaltenbrunner. In this sphere he had no authority of command and
    no competency.”

Other witnesses have said that of necessity Kaltenbrunner should have
had knowledge of the sad conditions in the concentration camps, but
there is no doubt that the commandants of the concentration camps
themselves deliberately concealed criminal excesses of the guards even
from their superiors. It is furthermore a fact that the conditions found
by the Allies upon their arrival were almost exclusively the results of
the catastrophic military and economic situation during the last weeks
of the war, which the world mistakenly identified with general
conditions in former times as well. The above statement is fully
verified by the statements of the camp commandant of Auschwitz, Hoess,
who because of his later activity in the Concentration Camp Department
of the Central Office for Economy and Administration, had an accurate
over-all picture. Hoess has no ulterior motive whatsoever to give false
testimony. A person like him, who sent millions of men to their deaths,
no longer comes under the authority of human judges and considerations.
Hoess stated:

    “The so-called ill-treatment and tortures in the concentration
    camps were not, as assumed, a policy. They were rather excesses
    of individual leaders, subleaders, and men who laid violent
    hands upon the inmates.”

These people themselves were, according to the statement of Hoess, taken
to task for that. I believe I need not go into any more details of how,
according to various witnesses, visitors to concentration camps were
impressed and surprised by the good condition, cleanliness, and order in
the camps; and therefore no suspicion was aroused as to special
sufferings of the inmates. But it would be in the worst taste if I
contested the fact that a chief of the Intelligence Service, if only on
the basis of foreign news of atrocities, should not have felt a
responsibility, in the interest of humanity, to clear up any doubts
arising in that sphere.

The lack of knowledge seems to be confirmed by the statement of Dr.
Meyer of the International Red Cross, since the permission to allow the
International Red Cross to visit the Jewish Camp at Theresienstadt and
to allow food and medical supplies to be sent in, coming from
Kaltenbrunner, seems to be proof of the bad conditions in the camps
during the last months of the war; nobody, however, would allow neutral
or foreign observers to have insight into the camps if it had been known
that crimes against humanity were, so to speak, scheduled daily in the
camps, as is asserted by the Prosecution.

In no case, therefore, do I come to the conclusion that Kaltenbrunner
had full knowledge of the so-called “conditions” in the concentration
camps, yet I do conclude that it was his duty to investigate the fate of
those who were imprisoned. Kaltenbrunner might have found out then that
a considerable number of the inmates were sent to the camps because they
were criminals and that a much smaller portion was there because of
their political or ideological viewpoints or because of their race but
that he would then have found out about those primitive offenses against
humanity, about those excesses and all the distress of these
people—that I contest, in agreement with Kaltenbrunner.

The way to arrive at the truth was immensely complicated in Germany, and
even the Chief of the Reich Security Main Office found nearly
insurmountable obstacles in the hierarchy of jurisdiction and authority
of other offices and persons. The alleviation of the sad lot of the
internees was, after 1943, a problem which could have been solved only
through the dissolution of such camps. A Germany of the last 12 years
without any concentration camps would, however, have been a utopia. On
the whole, Kaltenbrunner was but a small cog in this machinery.

Earlier I spoke about the orders for protective custody and of their
effect. Dr. Kaltenbrunner has affirmed the necessity for work education
camps, owing to—as stated by him during his examination—the conditions
then prevailing in the Reich, to the shortcomings of the labor market,
and to other reasons. And if I am not mistaken, no convincing proof was
submitted of ill-treatment and cruelties in such camps. The reason may
well lie in the fact that these camps were in some respects only related
to, but not on equal footing with, concentration camps.

With all available means of evidence, Kaltenbrunner has opposed the
accusation of having confirmed orders of execution with his signature.
The witnesses Hoess and Zutter stated that they saw such orders in
isolated cases. The Prosecution, however, does not seem to me to have
proved that any such orders were issued without judicial sentence or
without reasons justifying death, with the exception of a particularly
serious case reported from hearsay by the witness Zutter, adjutant of
the camp commandant of Mauthausen. According to him, a teletype signed
by Kaltenbrunner is said to have authorized the execution of
parachutists in the spring of 1945. An original signature by
Kaltenbrunner is entirely lacking. I add that Kaltenbrunner has
contested having any knowledge or information about this matter. I think
I may safely claim that he did not sign any such orders concerning life
and death, because he was not authorized to do so. Dr. Hoettl as a
witness stated:

    “No, Kaltenbrunner did not issue such orders and could not, in
    my opinion, give such orders”—for killing Jews—“on his own
    initiative.”

And Wanneck explicitly asserted the following:

    “It is known to me that Himmler personally decided over life and
    death and other punishment of inmates of concentration camps.”

Thus the exclusive authority of Himmler in this sad sphere may be
considered proved. I am not seriously disposed to deny the guilt of
Kaltenbrunner completely on this point. If such orders were carried out
against members of foreign powers, for example, based on the so-called
“Commando Order” of Hitler of 18 October 1942, then there arises the
question of the responsibility of that person whose signature was
affixed to these orders, because misuse of his name by subordinates was
possible. It is certain that Kaltenbrunner never exerted the least
influence in originating the “Commando Order.” It can, however, hardly
be doubted that this decree constituted a violation of international
law. The development of the second World War into a total war inevitably
created an abundance of new stratagems. Insofar as genuine soldiers were
employed in their execution, even a motive of bitterness, humanly quite
understandable—and I am now speaking about the conduct of the Commando
troops concerned in violation of the laws of warfare and other
things—could not justify the order. Fortunately but very few people
fell victims to this order of Hitler, as the Defendant Jodl has
testified.

Perhaps one might ask me whether it is my duty, or whether I am
permitted, to reiterate such points of incrimination as I have just
done, since this seems to be the task of the Prosecution. To this I
reply: If the Defense is so liberal as to admit the negative side of a
personality, it surely is apt to be heard more readily when it
approaches the Tribunal with the request to appraise the positive side
in its full significance. However, is there a positive side at all in
the case before us? I believe that I may answer that question in the
affirmative. I already pointed out several facts which are connected
with the time of the assumption of office by Kaltenbrunner. During his
short 2 years of activity this man has made himself a bearer of
decidedly fortunate and humane ideas. I wish to remind you of his
attitude toward the lynch order of Hitler with respect to enemy aviators
who were shot down. The witness, General of the Air Force Koller,
described the decent conduct of Kaltenbrunner, which led to a total
sabotage of this order. After first describing the contents of Hitler’s
order and Hitler’s threat, pronounced during the situation conference at
that time, namely, that any saboteur of this order should himself be
shot, Koller goes on to repeat the statements of Kaltenbrunner. Permit
me to quote a few sentences of the deposition of Koller. Koller says
that Kaltenbrunner said:

    “The tasks of the SD are always given a wrong interpretation.
    Such matters are not the concern of the SD. Moreover, no German
    soldier will do what the Führer commands. He does not kill
    prisoners; and if a few fanatic partisans of Herr Bormann try to
    do so, the German soldier will interfere ... Furthermore, I
    myself, too, will do nothing in this matter ...”

Koller and Kaltenbrunner, therefore, were fully agreed on that matter.
This positive action of Kaltenbrunner, important for the judgment of the
actual nature of his personality, does not stand alone. Dr. Hoettl
confirmed the fact that, in questions of the future fate of Germany,
Kaltenbrunner went, if not beyond, at least up to the borderline of high
treason. This witness, for example, confirms that Kaltenbrunner in March
1944 caused Hitler to moderate the plans concerning the Hungarian
question and succeeded in preventing the entry of Romanian units into
Hungary, that with his support also the planned Hungarian National
Socialist Government was not set up for a long time.

Dr. Hoettl then says literally:

    “Since 1943 I told Kaltenbrunner that Germany must attempt to
    end the war by a peace at any price. I informed him of my
    connections with an American authority in Lisbon. I also
    informed him that I had taken up new contacts with an American
    authority abroad by way of the Austrian resistance movement. He
    declared that he was prepared to go to Switzerland with me and
    there to take up personally negotiations with the American
    representative, in order to prevent further useless bloodshed.”

The depositions of the witness Dr. Neubacher run along the same lines.
But over and beyond that, this witness testified to a significant humane
deed of Kaltenbrunner. Upon being questioned whether Kaltenbrunner had
assisted the witness in moderating, as much as possible, the terror
policies in Serbia, Dr. Neubacher answered; and I quote:

    “Yes, in this field I owe much to the assistance of
    Kaltenbrunner. The German Police agencies in Serbia knew from me
    and from Kaltenbrunner that in his capacity as Chief of the
    Foreign Intelligence Service he uncompromisingly supported my
    policies in the southeastern territory. Thereby I succeeded in
    exerting influence on the police offices. Kaltenbrunner’s
    assistance was of value in my efforts to abolish the then
    prevailing system of collective responsibility and reprisals
    with the aid of intelligence officers.”

I further mention the relief work of the Geneva Red Cross, which is due
to the initiative of Kaltenbrunner. The activity of the defendant with
respect to this was portrayed by the witnesses Professor Burckhardt, Dr.
Bachmann, and Dr. Meyer. As a consequence many thousands were able to
exchange their captivity for liberty.

I should like to draw your attention to a few words stated by the
Defendant Seyss-Inquart on two points. He mentioned that Kaltenbrunner
advocated the complete autonomy of the Polish state as well as the
reintroduction of the independence of both Christian Churches, and I
might add that Dr. Hoettl testified that Kaltenbrunner defended his
activity very energetically and met with most bitter resistance by
Bormann. Kaltenbrunner tried to realize his humane intentions not only
in this field. Therefore, it seems to me to be of significance also to
point out his efforts to make the Austrian Gauleiter understand that any
resistance against the troops of the Western powers would be senseless
and that in view of this, irresponsible orders for resistance were not
to be issued. This was confirmed by the witness Wanneck. The Prosecution
held Kaltenbrunner responsible for the evacuation and planned
destruction of certain concentration camps. I believe this evidence may
not only be considered as inconclusive, but that the contrary has in
fact been proved. Upon the question, addressed to Dr. Hoettl, whether
Kaltenbrunner had instructed the commandant of the concentration camp
Mauthausen to surrender the camp to the advancing troops, Dr. Hoettl
answered:

    “It is correct that Kaltenbrunner issued such an order. He
    dictated it in my presence for transmission to the camp
    commandant.”

As a supplement Kaltenbrunner, during his personal examination, declared
very logically: If the camp of Mauthausen, filled with criminals, could
not be evacuated by his orders, an order to evacuate Dachau would have
been devoid of any basis by reason of its—compared with
Mauthausen—harmless inmates. According to the testimony of Freiherr Von
Eberstein, the destruction of the concentration camp Dachau with its two
secondary camps was the goal of the then Gauleiter of Munich, Giesler.

Finally the witness Wanneck confirmed the fact that such an order of
Kaltenbrunner had not become known to him; that, however, due to his
position with Kaltenbrunner, he would have known if such an order had
been issued by the latter or even the issuance of such an order
considered. Who actually issued these orders can no longer be
established with certainty. The witness Hoess, in his examination,
mentioned an order of evacuation by Himmler, as well as one directly by
Hitler.

In this connection it seems appropriate to me to refer to
Kaltenbrunner’s participation in the sad case of Sagan as charged by the
Prosecution. With reference to Kaltenbrunner’s statement, confirmed by
the examination of the witness Wielen, it appears to me to be a proven
fact that this matter came to Kaltenbrunner’s attention for the first
time only several weeks later, after the conclusion of this tragedy.

It also appears doubtful to me whether the so-called Einsatzgruppen,
introduced on the basis of Hitler’s “Commissar Order” of 1941, were
still in existence and functioning after the appointment of
Kaltenbrunner. Some facts speak for it, others against it. Kaltenbrunner
denied the existence of these groups during his term as Chief of the
Reich Security Main Office. I do not want to lose myself in details, but
I should like to draw the attention of the Tribunal to these doubts. The
same applies, for example, to the so-called “Bullet Decree.” Document
1650-PS confirms that it was not Kaltenbrunner but Müller, the infamous
Chief of Amt IV, who issued the instructions involved, while Document
3844-PS mentions personal signatures of the defendant. It appears to me
that the first document deserves preference. May I finally draw your
attention to those documents which are of less value as evidence because
they are based upon indirect observation. I believe that the Tribunal
possesses sufficient experience in evaluating evidence so that I need
not argue this any further.

I have thus far openly conceded the negative, so that I may be the more
justified in emphasizing the positive in Kaltenbrunner’s personality.
How far, however, shall I be justified in stating that Kaltenbrunner had
actually insufficient knowledge of many War Crimes and Crimes against
Humanity which were committed with some kind of participation of Amt IV
in the course of the last 2 years of the war? Would such a defense offer
the prospect of essentially exculpating the Chief of the Reich Security
Main Office?

Dr. Kaltenbrunner admitted during his examination that it was only very
late, in some cases as late as 1944 or 1945, that he obtained knowledge
of orders, instructions, and directives, despite the fact that they
originated much earlier—in some instances several years before he took
office. And here I add—and I wish to emphasize this particularly at
this point—that these orders, which are contrary to international
ethics and humanity, all go back to a time during which Dr.
Kaltenbrunner was still in Austria.

I will not at this moment try to prove in detail all these statements of
Kaltenbrunner’s. The Prosecution is interested exclusively in whether
such orders, decrees, directives, and so forth, were also executed
during the period of time in which the defendant was in office as Chief
of the Reich Security Main Office. It is also often very difficult for a
defense counsel to follow a defendant along the secret channels of his
knowledge or his ignorance. Perhaps the defense counsel also sometimes
lacks the necessary distance for a free and just judgment, in view of
the hecatombs of victims spread out across a whole continent, and he is
unfair to his client. Thus he leaves the nature of the defendant’s
character to the later judgment of history, for even the defense counsel
is not infallible when it comes to drawing a picture of the soul of his
own client.

During his examination before the Tribunal Kaltenbrunner once explained
the difficult position he was in when he took over his office on 1
February 1943, and I hope that nobody will misjudge this situation. The
Reich was still fighting, and even in 1943 was still dangerous for any
adversary colliding with it. But it was already a fight for a goal
obviously remote and out of reach. Whoever tries to hold back the spokes
of the wheels on a vehicle rolling into an abyss at top speed will
perish all too easily. Coupled with these conditions, from which there
was no way of escaping, there was an uncreative officiousness, caused by
nervous insecurity, in all areas of private and public life.
Kaltenbrunner said with regard to this situation:

    “I beg you to put yourself into my situation. I came to Berlin
    in the beginning of February 1943. I began my work in May 1943,
    except for a few complimentary calls. In the fourth year of the
    war the orders and decrees of the Reich also in the execution
    sector had piled up by the thousands on the tables and in the
    filing cabinets of the civil service. It was quite impossible
    for a human being to read through all that, even in the course
    of a year. Even if I had felt it to be my duty, I could never
    possibly have made myself acquainted with all these orders.”

In connection with this I remind you respectfully that, according to the
evidence given by the witness Dr. Hoettl and others, the Reich Security
Main Office in Berlin had 3,000 employees of all categories when
Kaltenbrunner was in office and that according to the statement of the
same witness Kaltenbrunner never controlled this office completely.

Nobody will be able to deny that the question is justified whether it
was not Kaltenbrunner’s duty to have himself informed in the shortest
possible time at least about the most essential proceedings in all the
departments of the Reich Security Main Office and whether he would not
then very soon have obtained knowledge of, for example, Himmler’s and
Eichmann’s anti-Jewish operation and many other serious terrorist
measures. I may remind you that Kaltenbrunner declared repeatedly and
emphatically, in answering my questions before this Tribunal, that he
protested regularly every time he heard of such occurrences, addressing
himself to Himmler and even to Hitler, but that he had but little
success, and this only after a long while. The defendant, for example,
traces back the cessation of the extermination of Jews, by an order of
Hitler in October 1944, to his personal initiative. However difficult it
may be to judge whether the power and influence of a single person would
have been sufficient to bring about the suspension of a program of the
extermination of a race, already in its final phase, I believe I may say
without being open to correction that many tens of thousands of Jews owe
it to this man that they escaped the hell of Auschwitz and can still see
the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer
of the International Red Cross it appears that Kaltenbrunner asked the
International Red Cross to organize relief shipments to a large Jewish
nonpolitical camp at Unskirchen near Wels.

Wanneck has characterized Kaltenbrunner’s attitude toward the question
of Himmler’s Jewish policy as follows. He says:

    “In the daily haste of our joint labors and discussions on
    foreign policy, we no longer dwelt upon the problem of Jewish
    policy. At the time Kaltenbrunner came into office this question
    was already so far advanced that Kaltenbrunner could not have
    had any more influence on it. If Kaltenbrunner expressed himself
    at all on the subject, it was to the effect that mistakes had
    been made here that could never be made good.”

This witness then finally confirmed the fact that this operation was
conducted independently through a direct channel of command from Himmler
to Eichmann and said that the position of Eichmann, which already had
been a dominating one when Heydrich was still alive, had increased
steadily, so that eventually he had acted completely independently in
the entire Jewish sphere.

And here I add that, according to the statement of Hoess, the only man
left alive who is familiar with this question, it is established that
only about 200 or 300 people knew of that dreadful order of Himmler’s
which was given during a conference which lasted for 10 or 15 minutes,
on the basis of which more than four million people were exterminated.
And I add that a large nation of 80 million had learned little or
probably nothing about these things which happened in the Southeast of
the Reich during the war. Professor Burckhardt states that
Kaltenbrunner, when discussing the Jewish question, declared:

    “It is the greatest nonsense; all the Jews should be released,
    that is my personal opinion.”

But in spite of all this, the fundamental question is raised for the
problem of guilt: May a high official and the director of an influential
office, whose subordinates in a far-reaching hierarchy continually
commit crimes against humanity and against the rules of international
law, assume such an office at all or remain in such an office, although
he condemns these crimes? Or is it perhaps a different case if this man
has the intention of doing all that is humanly possible to break the
chain of crimes and thereby finally to become a benefactor of humanity?
The last question is generally to be answered in the affirmative. It is
to be appraised solely from the standpoint of the highest ethical
principles.

My further thought in this connection is the following: He who invokes
such a philanthropic intention is free of guilt if from the first day of
his taking over such an office he refuses to take any active part in the
actual commitment of the crime, and, beyond this, avails himself of
every conceivable possibility, even seeks it out, to achieve the
elimination of evil orders and their execution through his never-ending
resistance and every form of human cunning.

The defendant himself has also sensed and clearly recognized all these
things. On account of the importance of the question I should like to
refer to his interrogation:

    “Question: ‘I ask you whether there was a possibility that you
    might have brought about a change after having gradually learned
    the conditions in the Secret State Police and in the
    concentration camps, _et cetera_. If this possibility existed,
    will you then say that an alleviation, that is, an improvement,
    was brought about in the conditions in these fields due to your
    remaining in office?’”

Kaltenbrunner says:

    “I repeatedly applied for service at the front. But the most
    burning question which I had to decide for myself was whether
    the conditions would be thereby improved, alleviated, or
    changed. Or was it my duty to do everything possible in this
    position to change all the conditions that have been so severely
    criticized here? Since my repeated demands to be sent to the
    front were refused, all I could do was to make a personal
    attempt to change a system, the ideological and legal
    foundations of which I could no longer change, as has been
    illustrated by all the orders presented here from the period
    before I was in office; I could only try to moderate these
    methods in order to help eliminate them for good.

    “Question: ‘And so, did you consider it consistent with your
    conscience to remain in spite of this?’

    “Answer: ‘In view of the possibility of constantly using my
    influence on Hitler, Himmler, and other people, I could not in
    my opinion reconcile it with my conscience to give up this
    position. I considered it my duty to take a personal stand
    against injustice.’”

As you see, the defendant refers to his conscience and you have to
decide whether this conscience, taking into consideration duty toward
one’s own country but also toward the community of mankind, has failed
or not. The duty which I have just mentioned, to resist the orders of
evil, exists in itself for every human being, regardless of his
position. This duty is expressly affirmed by Kaltenbrunner also. He who
holds a state office must in the first place be able to prove that he
contributed toward abolishing the gigantic injustice which occurred in
Europe as soon as he learned of it, if he does not want to become
guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to
this question I leave to your judgment. But one thing I should like to
express as my opinion: This man was no conspirator; rather was he
exclusively a person acting under orders and under compulsion. Himmler’s
order was, despite all previous agreement, for him to take over the
Reich Security Main Office. Is it right that an order should change the
fundamental aspect of the problem? This question is of the highest
importance. According to the Charter of this Tribunal one cannot plead
higher orders for the purposes of avoiding punishment. The reasons given
for this by the American chief prosecutor proceeded from the presumed
knowledge of the crimes or their background in the minds of the higher
leaders which, therefore, precluded them from pleading the existence of
orders. Like a red thread the fact runs through this Trial that hardly
one high official, in whatever position of public life he may have been,
was put into office without the order of the highest representative of
official authority; for in the last 3 years of the war the already
clearly discernible inevitable destiny of the Reich meant for the holder
of a high office the renunciation of that part of life which many people
say makes life worth living. For the duration of the war, orders tied
the office holder to his position. Also there is no doubt that he who
refused to obey an order, especially in the last years of the war,
risked his own death, and possibly the extinction of his family.

From whatever side we approach the problem of orders in Germany after
1933, the invocation of the above-mentioned state of duress ought not to
be denied to a defendant, because that principle of duress which exists
in the German criminal code, as no doubt it does in the criminal codes
of all civilized nations, is based on that freedom of the individual
being which is necessary for the affirmation of any guilt.

If the perpetrator is no longer free to act, because another person
deprives him of this liberty through direct immediate danger to his
life, then, on principle, he is not guilty. I do not want at this
instant to examine whether in the German world of reality of the last
years such a direct immediate danger for one’s own life always existed;
but an encroachment upon the freedom of the man receiving orders did
exist to a smaller or larger extent without any doubt. It seems certain
to me that Himmler would have interpreted a refusal of Kaltenbrunner to
take over the direction of the Reich Security Main Office as sabotage
and would, as a necessary conclusion, have eliminated him.

Hitler, according to the revelations at this Trial, was one of the
greatest lawbreakers that world history has ever known. Many even admit
it to be a duty to kill such a monster, so as to guarantee to millions
of human beings the right of freedom and life. At this Trial the most
varied points of view with regard to the “Putsch,” especially the
killing of the tyrant, have been proffered by witnesses and defendants.
I cannot recognize the duty, but the right is certainly not contestable.
If the oppression of human freedom occurs by means of a clearly unjust
order based on misanthropy, the scales in the now ensuing conflict
between obedience and freedom of conscience will be weighted on the side
of the latter. Even the so-called oath of allegiance could not justify a
different point of view because, as everybody feels, the obligation to
allegiance presupposes duties of both partners, so that he who treads
under foot the obligation to respect human conscience in the person of
his subordinates loses at the same moment the right to expect obedience.
The tortured conscience is freed and breaks the ties which the oath had
created. Perhaps some people will not agree with my point of view on
this problem and will point out the necessity of orderliness in the
community, and the salutary effects of obedience in the very interest of
this orderly state, or they will point to the wisdom of those in command
and at the impossibility of understanding and evaluating all such orders
as well as the person in command does; they will point to patriotism and
other aspects. And though all that may be correct, there yet remains an
absolute obligation to resist an order the purport of which, clearly
recognizable to a subordinate, amounts to the materialization of evil
and obviously violates the healthy sentiments which aim at humanity and
peace among people and individuals. The phrase “in a life-and-death
struggle of a nation there can be no legality” is an untrue thesis not
thought out to the end, no matter who expresses it. Even immediate
danger to the life of the person receiving the order could not induce me
to change my conviction. Dr. Kaltenbrunner would not deny that he who
stands at the head of an office of great importance to the community is
obliged to sacrifice his life under the above-mentioned conditions.

Whereas even direct and imminent danger to his own life and that of his
family cannot excuse him, it does diminish his guilt, and Kaltenbrunner
only means to point to this moral and legal evaluation of his position.
Thus he emphasizes a fact, historically proven, which was one of the
deeper reasons for the collapse of the Reich; for no living man can
bring to a community liberty, peace, and welfare, who himself bears his
chains reluctantly and has lost that freedom which is the decisive
characteristic of all human beings.

I believe Kaltenbrunner would like to be reborn, and I know that he
would fight for that freedom with his life’s blood. Kaltenbrunner is
guilty; but he is less guilty than he appears in the eyes of the
Prosecution. As the last representative of an ominous power of the
darkest and most anguish-laden period of the Reich’s history he will
await your judgment, and yet he was a man whom one could not meet
without a feeling of tragedy.

THE PRESIDENT: The Tribunal will adjourn now.

                        [_A recess was taken._]

THE PRESIDENT: Yes, Dr. Thoma.

DR. ALFRED THOMA (Counsel for the Defendant Rosenberg): May it please
the Tribunal, Mr. President, the documentary film which was shown in
this room and which was to illustrate the “Rise and Fall of National
Socialism,” begins with a speech delivered by Rosenberg concerning the
development of the Party up to the assumption of power. He also
describes the Munich insurrection and says that on the morning of 9
November 1923 he saw police cars with machine-guns assembling in the
Ludwigstrasse in Munich and he knew what the march to the Feldherrnhalle
implied. Nevertheless he marched in the first lines. Today also, my
client takes the same position in face of the Indictment formulated by
the prosecutors of the United Nations. He does not want to be pictured
as though nobody paid any attention to his books, his speeches, and his
publications. Even today he does not want to appear as a person other
than what he was once before, a fighter for Germany’s strong position in
the world, namely, a German Reich in which national freedom should be
linked to social justice.

Rosenberg is a German, born in the Baltic provinces, who learned to
speak Russian as a young boy, passed his examination in Moscow after the
Technical College in Riga moved to Moscow during the first World War,
took an interest in Russian literature and art, had Russian friends, and
was puzzled by the fact that the Russian nation, defined by Dostoievsky
as “the nation with God in its heart,” was overcome by the spirit of
materialistic Marxism. He considered it inconceivable and unjust that
the right of self-determination had indeed often been promised but never
voluntarily granted to many nations of Eastern Europe which had been
conquered by Czarism even in the nineteenth century.

Rosenberg became convinced that the Bolshevik revolution was not
directed against certain temporary political phenomena only but against
the whole national tradition, against the religious faith, against the
old rural foundations of the Eastern European nations, and generally
against the idea of personal property. At the end of 1918 he came to
Germany and saw the danger of a Bolshevistic revolution in Germany too;
he saw the whole spiritual and material civilization of the Occident
endangered and believed to have found his lifework in the struggle
against this danger as a follower of Hitler.

It was a political struggle against fanatical and well-organized
opponents who had at their disposal international resources and
international backing and who acted according to the principle: “Strike
the Fascists wherever you can.” But as little as one can deduce from
that slogan that the Soviets entertained intentions of military
aggression against Fascist Italy, just as little can one say that the
struggle of the National Socialists against Bolshevism meant a
preparation for a war of aggression against the U.S.S.R.

To the Defendant Rosenberg a military conflict with the Soviet Union,
especially a war of aggression against the latter, seemed as likely or
as unlikely as to any German or foreign politician who had read the book
_Mein Kampf_. It is not correct to maintain that he was initiated in any
way into plans of aggression against the Soviet Union; on the contrary,
he publicly advocated proper relations with Moscow (Document
Rosenberg-7b, Page 147). Rosenberg never spoke in favor of military
intervention against the Soviet Union. However, he did fear the entry of
the Red Army into the border states and then into Germany.

When, in August 1939, Rosenberg learned about the conclusion of the
Non-Aggression Pact between the Reich and the Soviet Union—he was as
little informed about the preliminary discussions as he was about the
other foreign political measures taken by the Führer—he might have gone
to see the Führer and protested against it. He did not do it, and he did
not object to it with a single word, which the witness Göring confirmed
as being a statement of Hitler’s.

In the witness box Rosenberg himself described (session of 16 April
1946) how he was then suddenly called to Hitler, at the beginning of
April 1941, who told him that he considered a military clash with the
Soviet Union inevitable. Hitler offered two reasons for it:

(1) The military occupation of Romanian territory, namely, Bessarabia
and North Bukovina.

(2) The tremendous increase of the Red Army, along the line of
demarcation and on Soviet Russian territory in general, which had been
going on for a long time.

These facts were so striking, he said, that he had already issued the
appropriate military and other orders, and he said that he would appoint
Rosenberg in some form as a political adviser. As he further stated in
the witness box, he thus found himself confronted with an accomplished
fact, and the very attempt to discuss it was cut short by the Führer
with the remark that the orders had been issued and that hardly anything
could be changed in this matter. Thereupon Rosenberg called some of his
closest collaborators together, because he did not know whether the
military events would take place very soon or later on; and he made, or
had made, some plans concerning the treatment of political problems. On
20 April 1941 Rosenberg received from Hitler a preliminary order to
establish a central office to deal with questions concerning the East
and to contact the competent highest Reich authorities with respect to
these matters (Document Number 865-PS, USA-143).

If this statement made by Rosenberg is not in itself sufficient to
refute the assertion made by the Prosecution, according to which
Rosenberg is “personally responsible for the planning and execution of
the war of aggression against Russia” (Brudno, in the session of 9
January 1946) and was aware of the “aggressive predatory character of
the imminent war” (Rudenko, in the session of 17 April 1946)—if, above
all, it is not accepted that Rosenberg was convinced of an imminent
aggressive war to be waged by the Soviet Union against Germany, then I
would like to bring up four more points in order to prove the
correctness of the statements made by the defendant.

(1) Rosenberg was not called to the well-known conference at the Reich
Chancellery on 5 November 1937 (“Hossbach Document,” Document Number
386-PS, USA-25), when Hitler disclosed for the first time his intentions
of waging war. This was at the time when Rosenberg still had political
influence, or at least seemed to have it. If ever, he should have played
the part of the intimate political “inspirator” then.

(2) Lammers, as a witness, stated before this Tribunal that Hitler made
all important decisions quite alone; thus also the decision concerning
war against Russia.

(3) To my question about Rosenberg’s influence on Hitler’s decisions
concerning foreign policy, Göring replied before this Tribunal on 16
March 1946:

    “I think that after the accession to power, the Führer did not
    consult the Party Office of Foreign Affairs a single time about
    questions concerning foreign policy and that it was created only
    as a center for dealing with certain questions concerning
    foreign policy which came up within the Party. As far as I know,
    Rosenberg was certainly not consulted about political decisions
    after the accession to power.”

This was also confirmed by the witness Von Neurath on 26 June 1946 in
this courtroom.

(4) Finally, I would further like to refer to the “brief report
concerning the activity of the Office of Foreign Affairs of the NSDAP”
(Document Number 003-PS, USA-603). Brief mention is made in it of the
“Near East” in such a harmless manner that no word need be said about
it. In the confidential reports 004-PS and 007-PS nothing is said either
about any preparations against the Soviet Union.

Administration in the East.

It would be an easy, too superficial, and therefore, unjust procedure if
one were to say that firstly the Eastern Territories were occupied in a
war of aggression, and therefore anything the German administration did
there was criminal; and secondly, that as Reich Minister for the
Occupied Eastern Territories, Rosenberg was the responsible minister,
and therefore he must be punished for all crimes which have occurred
there, at least for what happened within the scope of the jurisdiction
and authority of the administrative bodies. I will have to demonstrate
that this conception is not correct for legal and factual reasons.

Rosenberg was the organizer and the highest authority of the
administration in the East. On 17 July 1941 he was appointed Reich
Minister for the Occupied Eastern Territories. Acting on instructions,
he had performed preparatory work before that time on questions
concerning Eastern Europe by contacting the Reich agencies concerned
(Document Number 1039-PS; US-146). He planned and set up his office for
dealing centrally with questions concerning Eastern Europe (Document
Number 1024-PS; US-278). He had provisional instructions for the Reich
Commissioners drawn up (Document Number 1030-PS; US-144); he delivered
the programmatical speech of 20 June 1941 (Document Number 1068-PS;
US-143); above all, he took part in the Führer conference of 16 July
1941 (Document Number L-221; US-317).

In the presence of Rosenberg, Lammers, Keitel, and Bormann, Hitler said
at that time that the real aims of the war against Russia should not be
made known to the whole world, that those present should understand
clearly that “we will never withdraw from the new Eastern Territories;
whatever opposition appears will be exterminated; never again must a
military power develop west of the Urals; nobody but a German shall ever
bear a weapon.” Hitler proclaimed the subjection and the exploitation of
the Eastern Territories, and in making these statements he placed
himself in opposition to what Rosenberg had told him before—without
being contradicted by Hitler—concerning his own plans for the East.

Thus Hitler probably had a program of enslavement and exploitation.
Nothing is so natural, and nothing easier than to say: Even before
Rosenberg took over his ministry he knew Hitler’s aims for the East;
namely, to rule it, to administer it, to exploit it. Therefore he is not
only an accomplice in a crime of conspiracy against peace; he is also
jointly responsible for the Crimes against Humanity perpetrated in the
Eastern Territories, since Rosenberg held the complete power, the
highest authority in the East.

I shall deal later, _de jure_ and _de facto_, with the question of
Rosenberg’s automatic responsibility in his capacity as supreme chief of
the Eastern Territories. First I would like to consider the question of
his individual responsibility. One might deduce it from two reasons:

First, because he allegedly participated in the preparation of the war
of aggression against the Soviet Union; I have already stated that this
assertion is not correct; Rosenberg has neither ideologically nor
actually participated in the preparations of the war of aggression.

Secondly, because he supported Hitler’s plan of conquest by making
plans, delivering speeches, and organizing the administration. When a
minister or general, following the instructions of the head of the
State, elaborates plans or takes preparatory measures of an
organizational nature, for later eventualities, this activity cannot be
considered as criminal even when the interests of other countries are
affected thereby and even when the plans, preparations, and measures are
intended for war. Only when the minister or general in question directs
his activity toward things which have to be considered as criminal
according to sound common sense and an international sense of decency
and justice can he be held individually responsible. Rosenberg has
consistently proved by word and deed that the traditional conceptions of
right are his conceptions also and that he desired to enforce them. But
his position was particularly difficult since his supreme chief finally
exceeded all limits in his ideas, aims, and intentions and since other
strong forces like Bormann, Himmler, and Gauleiter Erich Koch were also
involved, who frustrated and sabotaged Rosenberg’s good and fair
intentions.

Thus we witness the strange spectacle of a minister in office who partly
cannot understand or approve, partly is totally unaware of the
intentions of the head of the State; and on the other hand that of the
head of a state who appoints a minister to take office, who is certainly
an old and loyal political fellow combatant, but with whom he has no
longer any spiritual contact whatsoever. It would be wrong to judge such
a situation simply according to democratic conceptions of the
responsibility of a minister. Rosenberg could not simply resign, yet he
felt inwardly the duty of fighting for the point of view which appeared
to him right and decent.

In his speech of 20 June 1941 Rosenberg said that it was the duty of the
Germans to consider that Germany should not have to fight every 25 years
for her existence in the East. He by no means, however, desired the
extermination of the Slavs, but the advancement of all the nations of
Eastern Europe and the advancement, not the annihilation, of their
national independence. He demanded (Document Number 1058-PS; Exhibit
USA-147) “friendly sentiments” toward the Ukrainians, a guarantee of
“national and cultural existence” for the Caucasians; he emphasized
that, even with a war on, we were “not enemies of the Russian people,
whose great achievements we fully recognize.” He advocated “the right of
self-determination of people”—one of the first points of the whole
Soviet revolution. This was his idea, tenaciously defended till the end.
The speech in question also contains the passage which the Prosecution
holds against him in particular, that the feeding of the German people
during these years will be placed at the top of German demands in the
East and that the southern territories and the North Caucasus would have
to make up the balance in feeding the German people. Then, Rosenberg
continues literally:

    “We do not see at all why we should be compelled to feed the
    Russian people also from these regions of surplus. We know that
    this is a bitter necessity which lies beyond any sentiment.
    Without a doubt extensive evacuation will be necessary, and
    there are very hard years ahead for the Russians. To what extent
    industries are to be kept up there is a question reserved for
    future decision.”

This passage comes quite suddenly and all by itself in the long speech.
One feels distinctly that it has been squeezed in; it is not Rosenberg’s
voice; Rosenberg does not proclaim here a program of his own but only
states facts which lie beyond his will. In the directives of the eastern
ministry (Document Number 1056-PS) the feeding of the population, as
well as supplying it with medical necessities, is described as being
especially urgent.

On the contrary, the true Rosenberg emerges in the conference of 16 July
1941 when, regarding Hitler’s plans, he called attention to the
University of Kiev and to the independence and cultural advancement of
the Ukraine and when he took a stand against the intended full power of
the Police and above all against the appointment of Gauleiter Erich Koch
in the Ukraine (Document Number L-221).

One will contend: What is the use of opposition and protests, what is
the use of secret reservations and of feigned agreement with Hitler’s
intentions—Rosenberg did co-operate all the same. Therefore he is
responsible too. Later on I will outline in detail how and to what
extent Rosenberg took part in the policy in the East, what things he did
not do and how he opposed them, what he planned and desired himself in
order to defend himself against the grave charge of being responsible
for the alleged exploitation and enslavement of the East. Here I would
only like to point out the following: It was in no way a hopeless task
to begin by accepting even Hitler’s most passionate statements without
contradiction in the hope and with the intention of nevertheless
attaining a different result later on. In opposition to Hitler’s
statement: “No other than a German may ever bear weapons in the East,”
it was not long, for example, before, on Rosenberg’s recommendation,
legions of volunteers were formed from the peoples of the East; and in
opposition to Hitler’s wish, an edict of tolerance was issued at the end
of 1941 for the churches of the East (Document Number 1517-PS).

If, at first, Rosenberg could achieve nothing for the autonomy of the
eastern nations, he still adhered to his plans for the future in this
respect too. First he took care of the urgent agrarian question. An
agrarian program was drawn up, which it was possible to present to the
Führer on 15 February 1942, and which was authorized by him in unchanged
form. It was not an instrument of exploitation, but an act of liberal
formation of the agrarian constitution in the midst of the most terrible
of wars. Right in the middle of the war the eastern countries not only
received a new agrarian constitution but also agricultural machinery.
The witness Professor Dencker, in his affidavit, has borne witness to
the following deliveries to the occupied Soviet territories, including
the former border states:

                Tractors, 40-50 HP         about     7,000
                Threshing machines         about     5,000
                Agricultural implements    about   200,000
                Gas generators for German
                  and Russian tractors     about    24,000
                Harvesters                 about    35,000
                Total Cost: about 180,000,000 marks.

I do not think one can say that these deliveries were made with a view
to exploitation. So in this, too, Rosenberg accomplished a piece of
constructive work that was really a blessing. In the following I will
first treat the question of Rosenberg’s automatic responsibility as
minister for the Eastern Territories; that is, the question of his
criminal liability on the grounds of his official position.

On 17 July 1941, Rosenberg was appointed Reich Minister for the Occupied
Eastern Territories. Two Reich Commissariats were set up as supreme
territorial authorities: “Ostland” (Esthonia, Latvia, Lithuania, and
White Ruthenia) under Reich Commissioner Lohse, and “Ukraine” under
Reich Commissioner Koch. The Reich Commissariats were divided into
general districts and regions. Right from the beginning the eastern
ministry was not conceived as an administrative authority built on a
large scale but as a central office, a supreme authority which was to
confine itself to over-all instructions and fundamental directives and
in addition was to insure the supply of material and personnel. The
actual governing was the duty of the Reich Commissioner; he was the
sovereign in his territory.

Moreover, it is of special importance that Rosenberg, as minister for
the East, was not at the head of the whole eastern administration, but
that several supreme authorities existed at the same time. Göring, as
Delegate for the Four Year Plan, was responsible for the control of the
economy in all occupied territories and in this respect had authority
over the minister for the East, for Rosenberg could only issue economic
decrees with Göring’s agreement. The Chief of the German Police,
Himmler, was solely and exclusively competent for police security in the
Occupied Eastern Territories; there was no police division at all in the
ministry for the East, nor in the Reich Commissariats. Rosenberg’s
competence was furthermore undermined by Himmler as Reich Commissioner
for the Preservation of German Nationality and by Speer, on behalf of
whom a Führer decree detached all technical matters from the eastern
administration. It was further weakened by Goebbels who claimed for
himself the control of propaganda in the Occupied Eastern Territories as
well. Later on I shall come to the important question of labor
mobilization, which was put under the authority of Sauckel.
Nevertheless, Rosenberg was the minister responsible for the Occupied
Eastern Territories. In view of this, the following must be emphasized:

In this Trial Rosenberg is not made responsible from the political
standpoint, since the High Tribunal is no parliament; neither is he made
responsible from the point of view of constitutional law, for the High
Tribunal is not a supreme court of judicature. The liability of the
defendant with respect to civil law is not in question either, but only
his criminal liability, his responsibility for his own alleged crimes
and for the crimes of others. I do not need to outline in more detail
the fact that in order to establish criminal liability and to condemn
it, it must be proved that the defendant illegally committed acts
punishable by law and that he may only be punished for failure to act,
that is, for an omission, if he had the legal duty to act and if it was
due to his inactivity that the crime occurred, always assuming that the
actual possibility existed of his preventing the crime.

The fact seems to me of decisive importance that Rosenberg although
Minister for the Occupied Eastern Territories, was not a supreme ruler.
Supreme rulers were the Reich Commissioners of the gigantic territories
“Ostland” and “Ukraine.” The lines along which these territories were to
be constitutionally remodeled were not yet visible, but one thing was
certain: The Reich Commissioner was the highest authority. For instance,
it was he who, on the most important measures—like shooting of
inhabitants of a region for acts of sabotage—had the right to make the
ultimate decision. I should like to insert that in practice in these
cases the Police had exclusive competence. The Reich, that is, other
authorities, had the right to fundamental legislation and over-all
supervision. By a slight change in the well-known remark of Benjamin
Constant, the French professor of constitutional law, “_Le roi règne,
mais il ne gouverne pas_,” one may define in the following way
Rosenberg’s position as Minister for the Occupied Eastern Territories:
“_Le ministre gouverne, mais il ne règne pas._” As in certain dominions
of the British Empire, there existed a sovereignty of the Reich
Commissioner with a central over-all supervision by the minister for the
East. Today nobody would think of summoning the competent British
minister before a tribunal because a governor in India had allowed a
native village to be bombed and burned down.

And so I come to my conclusion that in Rosenberg’s case there exists no
automatic criminal responsibility for the nonprevention of crimes in the
East, if only because, although he had authority of supervision, he was
not sovereign; the two Reich Commissioners had the supreme authority.

The question must furthermore be asked and briefly examined whether the
defendant is individually guilty of the criminal exploitation and
enslavement of the nations of the East and perhaps of further crimes.
What was his attitude, what were the general lines and general trends of
his policy, what did he do positively, and what did he prevent or at
least try to prevent?

In the Baltic countries, national administrations or directorates were
installed under German supervision. The German administration was
compelled by the Reich Minister for the Occupied Eastern Territories to
show great understanding for all desires which could be fulfilled and
strive for good relations with the Baltic countries; the Baltic
countries had a free legal, educational, and cultural system and were
only limited with respect to questions concerning politics, economy, and
the police. After the war of 1914-18 agrarian reform in the Baltic
states was carried out almost exclusively at the expense of the
700-year-old German holdings. Nevertheless Rosenberg, as minister for
the East, made a law returning to private ownership the farms which had
been made collective by the Soviet Union since 1940 and, by this
restitution of soil which had originally been taken away from German
proprietors, showed the greatest possible good will of the German Reich.
This, as well as the already-mentioned agrarian program, has been
expressly confirmed by the witness Riecke.

In the General District of White Ruthenia independent administration was
initiated under Reich Commissioner Kube. The White Ruthenia Central
Committee was founded, as well as a White Ruthenian relief system and a
White Ruthenian youth organization. When a White Ruthenian youth
delegation returned from a visit to Germany, Kube said that he would
continue to act as a father to White Ruthenian youth; the following
night he was murdered, yet this policy was not changed.

I should like to observe here in passing that the actual Russian
territories between Narva and Leningrad and around Smolensk remained all
the time under military administration; likewise the districts around
Kharkov and the Crimea.

As far as the Ukraine is concerned, Rosenberg intended to give it
extensive central self-administrative sovereignty, as soon as possible,
similar to the directorates in the Baltic states and combined with a
pronounced advancement of the cultural and educational needs of the
people. After Rosenberg had originally considered himself entitled to
assume that Hitler agreed with this idea, another conception later came
to prevail, namely, that all forces should be directed toward the war
economy. Rosenberg managed to achieve and carry through one thing only:
The new agrarian program of 15 February 1942, which provided for a
transition from the collective economy of the Soviet Union to private
enterprise and then to ownership by the farmers. On 23 June 1943 the
property decree was issued as a complement to this. At first it was not
possible to carry this out because of Reich Commissioner Koch’s
opposition, and then military events brought everything to an end. A
further fundamental decree was based on a general adjustment of the
school system, which Rosenberg had ordered to be worked out because the
Reich Commissioner of the Ukraine declined to do it himself. Rosenberg
provided for elementary schools and higher technical schools; the Reich
Commissioner protested against this. On account of the conflict, which
became more and more acute, between Rosenberg and Reich Commissioner
Koch, Hitler in June 1943 issued the following written instruction: The
Reich Commissioner had no right to make any obstructions, but the Reich
Minister for the Occupied Eastern Territories should confine himself to
essential questions, and when issuing any orders should make it possible
for the Reich Commissioner of the Ukraine to express his opinion
beforehand, which practically meant Koch’s co-operation beside
Rosenberg.

During his examination of 8 April 1946 the witness Lammers described
Rosenberg’s peculiar constitutional position as Reich Minister for the
Occupied Eastern Territories and his political position, which became
constantly weaker. I would like to emphasize the following striking and
especially important declarations made by the witness: The authority of
the Reich Minister for the Occupied Eastern Territories was detracted
from by the Armed Forces, by Göring as the Delegate for the Four Year
Plan, by Himmler as Chief of the German Police, by Himmler as Reich
Commissioner for the Preservation of Germandom (resettlement measures),
by Sauckel as Plenipotentiary General for the Allocation of Labor, by
Speer in the field of armaments and engineering, and finally, through
differences of opinion, by Propaganda Minister Goebbels.

Furthermore, Rosenberg was limited by the fact that two Reich
Commissioners, Lohse and Koch, were appointed for the Occupied Eastern
Territories. The Higher SS and Police Leader was “personally and
directly” subordinated to the Reich Commissioner; but, as Lammers has
declared, in technical respects he could not take any orders from
Rosenberg or from the Reich Commissioner but only from Himmler.

Lammers said furthermore: Rosenberg always wished to pursue a moderate
policy in the East; he was without any doubt against a policy of
extermination and against a policy of deportation, which were widely
advocated in other quarters. He made efforts to rebuild agriculture
through the agrarian program, to put the educational system, church
affairs, the universities and schools in order. Rosenberg had great
difficulty in asserting himself, for especially the Reich Commissioner
for the Ukraine simply did not follow Rosenberg’s orders. Rosenberg
favored instituting a certain degree of independence in the eastern
nations; he particularly had at heart the cultural interests of the
latter. The differences of opinion between Koch and Rosenberg, says
Lammers, could have filled volumes of files. Hitler called Rosenberg and
Koch to him and decided that they should meet each month in order to
consult each other.

The witness Lammers said, quite rightly, that of Rosenberg as the
superior minister it was asking too much to have to come to an agreement
in each case with his subordinate, the Reich Commissioner. Subsequently
it was shown that in spite of the meetings they came to no agreement,
and finally it was Herr Koch who was right in the eyes of the Führer. As
Lammers says it was about the end of 1943 that Rosenberg was received
for the last time by the Führer, and even before that time he had always
had great difficulties in reaching the Führer. There had been no more
Reich Cabinet sessions since 1937.

Hitler’s ideas tended more and more in the direction of Bormann-Himmler.
The East became the ground for experiments.

To this group—as it is quite clear today, for the first time—it seemed
hopeless to look for understanding on the part of Rosenberg as to the
development of the Reich as they wished it. Rosenberg had no idea of the
extent of the fight waged against him. His quarrel with Reich
Commissioner Koch, the exponent of Himmler and Bormann, is proof of this
ignorance; but it is also complete proof of Rosenberg’s integrity.

On 14 December 1942 Rosenberg issued a set of instructions to the Reich
Commissioner of the Ukraine (Document Number 19-PS); his other
instructions have unfortunately not been found. In this, Rosenberg
requested the administrative chiefs to preserve decent attitudes and
views; he demanded justice and human understanding for the population,
which had always seen in Germany the supporter of legal order (Document
Number 194-PS); the war had brought terrible hardships, but every
offense should be fairly examined and judged, and should not be punished
to excess. It is also inadmissible that German authorities meet the
population with expressions of contempt. One can only show one is the
master through correct manner and actions, not by ostentatious behavior;
our own attitude must bring others to respect the Germans; those
administrative chiefs who have shown themselves unworthy of their tasks,
who have misused the authority they were given, and who by their
obnoxious behavior have shown themselves to be unworthy of our uniform,
must be treated accordingly and summoned before a court or removed to
Germany.

The echo which such decrees called forth in Koch is shown in his
memorandum of 16 March 1943 (Document Number 192-PS). Koch writes that
“it is a strange thought that not only must a correct attitude be
displayed toward the Ukrainians, but that we must even be amiable to
them and always ready to help.” Furthermore Rosenberg demanded esteem
for the highly-developed consciousness of the Ukrainian people and,
according to Rosenberg, a high degree of cultural self-administration
was desirable for the Ukraine; nations as big as the Ukraine could not
be kept in permanent dependence, and the eastern campaign was a
political campaign and not an economic raid. Here Koch, addressing
Rosenberg, refers in a cynical manner to the climax reached in the
relations of his organization with Ukrainian emigration. There are other
decrees of Rosenberg’s which are criticized by Koch. One of these is the
decree of 18 June 1942 concerning the acquisition by Rosenberg of
Ukrainian schoolbooks for a total of 2.3 million Reichsmark to be
charged to the budget of the Reich Commissariat without his previously
even getting in touch with Koch. One million primers, one million
spelling charts, 200,000 schoolbooks, 300,000 language books, and
200,000 arithmetic books were to be provided at a time when there was
hardly even the most necessary paper for German school children.

Koch goes on to say:

    “It is not necessary to point out repeatedly in the decrees
    issued by your ministry and in telephone communications that no
    coercion may be used in recruiting laborers and that the eastern
    ministry even demands to be informed of every instance in which
    compulsion has been used.”

In a subsequent decree Koch says he is blamed for having caused the
closing of vocational schools; and he also says that Rosenberg ordered
the General Commissioners to adopt a different school policy, thereby
overstepping his authority as Reich Commissioner. Koch then concludes
with a veiled threat that to him, as a veteran Gauleiter, the way to the
Führer could not be barred. So much challenging criticism of Rosenberg,
so much unintentional praise, and so much proof of the absolute decency
of his behavior and the far-sighted and statesmanlike direction of his
office as chief of the eastern administration!

One last document in the fight of Rosenberg against Koch is the report
regarding Reich Commissioner Koch and the timber region of Zuman of 2
April 1943 (Document Number 032-PS), regarding which Rosenberg gave
exhaustive information as a witness. In this very matter Rosenberg
displayed his conscientiousness particularly clearly.

And now we have again to unroll another scene before our eyes, because
the Prosecution attached specific importance to it: In July 1942,
Bormann wrote a letter to Rosenberg; Rosenberg replied, and a third
party, Dr. Markull, an associate of Rosenberg in his ministry, wrote a
commentary regarding it. According to Dr. Markull’s representation the
contents of Bormann’s letter, the original of which is not extant, was
the following: the Slavs should work for us; if of no use to us, they
ought to die; health provisions were superfluous; the fertility of the
Slavs was undesirable, their education dangerous; it would do if they
could count up to one hundred. Every educated person is a potential
enemy. We could leave them their religion as an outlet. As sustenance
they should receive only the barest necessities; we are the masters and
we come first.

To that letter by the closest collaborator of Hitler there could be only
one reply by Rosenberg: feigned consent and feigned compliance. In the
inner circle of the eastern ministry there arose considerable
apprehensions regarding this significant change in the attitude of its
chief, apprehensions which were expressed in Dr. Markull’s memorandum of
5 September 1942. Rosenberg as a witness has stated that there cannot
exist any doubt, when that document is read impartially, that he agreed
only for the sake of pacifying Hitler and Bormann. Rosenberg wanted to
insure himself against an attack from the Führer’s headquarters, which
he anticipated with certainty because he allegedly did more for the
eastern population than for the German people, because he required more
physicians than there were available for sick Germans, _et cetera_.

The Markull memorandum is the truest possible bona fide reflection of
Rosenberg’s personality and influence, since it shows the anxious
subordinate trying to conjure up the spirit of his minister as he had
come to know and to love him in his work, and to dispel an alien phantom
who seemed to have taken his place. It is stated there that such a train
of thought conformed with the policy of Reich Commissioner Koch, but not
with the decrees of the Reich Minister and the conception of at least 80
percent of the District Commissioners and specialists who were counting
on their minister and who considered that the eastern population should
be treated decently and with understanding, for it evinced a
surprisingly high capacity for culture, its efficiency in work was good,
and we were about to waste a precious stock of gratitude, love, and
confidence. The controversy between the minister and the Reich
Commissioner was well known among the high authorities of the Reich, and
it was no secret that the ministry was unable to carry out its policies
in opposition to the Reich Commissioners, who considered the eastern
ministry as entirely superfluous; the writings of Bormann would disavow
the entire policy of the eastern minister up to now, and one was given
the impression that Koch had been backed by Hitler in his opposition to
the minister. Since its foundation the ministry had had to register an
ever-increasing loss of power. The Higher SS and Police Leaders refused
to render to the General Commissioners the normal honors such as
reports, et cetera. One jurisdiction of the eastern minister after
another was being taken away by other highest Reich offices; in the
offices in Berlin it was openly said that the remodeling of the ministry
into a mere operations staff was to be expected. On the other hand, the
Reich Ministry for the Occupied Eastern Territories, due to the
personality of its leader, enjoyed the exceptional esteem of the public.

Dr. Markull implores the minister to stand by his original ideas, saying
that the unfortunate master complex should be as much avoided as the
opinion that the intelligentsia were alien to the masses. The influence
of spiritual forces should be taken into consideration. Germany should
prove a “righteous judge,” acknowledging the national and cultural
rights of nations. Such had been the ideas of the minister before, and
such they should remain.

Rosenberg’s attitude did not in fact change, since at that very time he
was working on the great School Program (Schulverordnung). Later on he
effected the reopening primarily of the medical faculties in colleges.
And then came the conflict with the Führer in May 1943.

On 12 October 1944 Rosenberg tendered his resignation through Lammers to
the Führer (Document Number Ro-14), because German eastern policy in
general and the political psychological treatment of eastern nations in
particular, were still contrary to the point of view which he had had
from the very beginning, namely, his plan of autonomy for the eastern
nations and the cultural development of their capacities as part of an
all-European conception of a family of nations on the continent. He now
inwardly broke down at seeing a great statesmanlike program destroyed.
All he could do in regard to the policy of enslavement and looting which
was going on in his country was merely to accept memoranda from his
colleagues in the ministry, or at best indulge in a futile paper war
with people like Koch. He had not been strong enough against the plans
which benighted forces wanted to carry out in the East; and he was
powerless against their influence, being in addition totally unaware at
that time of all the police and military orders which were presented
here to the Tribunal.

When Rosenberg once reminded Hitler of the creation of a university in
Kiev, Hitler apparently agreed; after Rosenberg had left and he was
alone with Göring, Hitler said, “This fellow has too many worries. We
have more important matters on our minds than universities in Kiev.” No
episode can illustrate better than all the documents the one theme:
Rosenberg and the reality in the East, and the other theme: Rosenberg as
the alleged inspirer of Hitler.

As Rosenberg did not receive any reply to his request for resignation,
he tried many times to talk to Hitler personally. It was all in vain.

On 11 December 1945 Mr. Dodd said:

    “The system of hatred, barbarism, and denial of personal rights
    which the conspirators had elevated to the national philosophy
    of Germany followed the National Socialist masters when they
    overran Europe. Foreign workers became the slaves of the master
    race, being deported and enslaved in millions.”

And on 8 February 1946 General Rudenko said:

    “In the long line of ruthless crimes committed by the
    German-Fascist troops of occupation, the forcible deportation of
    peaceful citizens into slavery and bondage in Germany takes a
    particularly important place.”

He said that Göring, Keitel, Rosenberg, and Sauckel were particularly
responsible for the inhuman and barbaric instructions, directives and
orders of the Hitler Government, whose purpose was the carrying out of
the deportation of Soviet people into German slavery.

I have already spoken of the formal and individual responsibility of
Rosenberg as Reich Minister for the Occupied Eastern Territories. I have
already explained, too, that in the field of labor employment it was not
Rosenberg but Sauckel who, as Plenipotentiary General for the Allocation
of Labor, was the highest authority and the responsible person, by
virtue of the Führer’s decree of 21 March 1942 (Document Number 580-PS).
Thus Sauckel in this field was Rosenberg’s superior.

He wrote to Rosenberg on 3 October 1942 (Document Number 017-PS):

    “The Führer has drawn up new and most urgent armament programs
    which require the speediest employment of two million additional
    foreign workers. For the execution of his decree of 21 March
    1942 the Führer has given me more authority for my further
    tasks, particularly empowering me to use my own judgment in
    taking all measures in the Reich and in the Occupied Eastern
    Territories in order to insure the organized employment of labor
    for the German armament industry under all circumstances.”

In his Program for the Allocation of Labor of 24 April 1942 (Document
Number 016-PS), he emphasized that the state and local labor offices are
in charge of all technical and administrative matters in connection with
labor employment which come under the exclusive competence and
responsibility of the Plenipotentiary General for the Allocation of
Labor. The defense of Sauckel is not my task. But may I point out that
he also did not take over his great and difficult task with a feeling of
hatred and intentions of enslavement. In his Program for the Allocation
of Labor just mentioned he says, for instance:

    “Everything has to be avoided which, beyond the shortages and
    hardships caused by war conditions, would aggravate and even
    cause unnecessary suffering to foreign male and female workers
    during their stay in Germany. It stands to reason that we should
    make their presence and their work in Germany, without any loss
    for ourselves, as bearable as possible.”

On that point Sauckel and Rosenberg shared the same opinion.

Neither is it my task to state and to prove that many hundreds of
thousands of foreign workers found good conditions in Germany, that in
fact numberless persons were better off here than in their fatherland. I
am only concerned with the bad conditions which have been charged to the
Defendant Rosenberg.

I come now to the “Central Agency for Nationals of the Eastern
Territories.”

Gentlemen of the Tribunal, several days ago I read the affidavit of Dr.
Albert Beil. Essentially it contains an authoritative statement of
whatever can be said about that subject. Therefore, I should like to
omit this subject, “Central Agency for Nationals of the Eastern
Territories,” and ask the Tribunal to consider it as having been
presented.

[sm type begins]2. Central Office for Nationals of the Eastern
Territories.[sm type ends]

[sm type begins]As the war became more and more intensified in regard to
totality and brutality, the German workers, and the Germans altogether,
did anything but live in a grand style; they too, as far as they had not
been drafted for the Army, were assigned to labor duties, had to do
heavy work for long hours, were separated from their families, had
frequently to be content with second-rate billets—especially because of
the increasing number of houses damaged by air attacks—and they, too,
were severely punished for refusal to work or defaulting.[sm type ends]

[sm type begins]The fact that the foreign workers were likewise victims
of this totality and brutality of the war and, admittedly, in some
respects even more so, does not incriminate Rosenberg either legally or
morally. He established, within his ministry, the Central Office for
Nationals of the Eastern Territories, which had neither police tasks nor
any other competencies of an administrative nature but was concerned
solely with the welfare of nationals of the Eastern Territories and
which employed trustees taken from among the eastern nations. In the
report of 30 September 1942 (Document Number 084-PS, US-199) this office
points out several inadequacies: That the accommodation, treatment,
food, and pay of the Eastern Workers called forth strong criticism;
that, though actually the situation was much better now (deadline 1
October 1942), the conditions for Eastern Workers were on the whole
still far from being satisfactory. Rosenberg is therefore asked to
discuss the matter with Hitler in order to have Hitler himself take
energetic measures; Himmler was to be made to rescind his general
regulations concerning the treatment of Eastern Workers; the Party
Chancellery and the Party to be reminded of their historical
responsibility for the millions of former Soviet citizens now guided by
Germany and instructed to co-operate in all matters concerning Eastern
Workers in the Reich with the Reich Minister; finally it was suggested
to extend the scope of the Central Office for Nationals of the Eastern
Territories as quickly as possible, so as to enable it efficiently to
look after the interests of the aliens from the occupied territories
living in the Reich, being, so to speak, the projected arm of the East
ministry and the representative of these people. In this sense, namely,
in the sense of social care and humane welfare, the eastern ministry was
active for the Eastern Workers.[sm type ends]

To refute the charge that Rosenberg was active as protagonist of the
system of hatred and barbarism, of denying human rights, and of
enslavement, I must add the following. Rosenberg received further
unfavorable reports, one being the report of 7 October 1942 about the
bad treatment of Ukrainian skilled workers (Document Number 054-PS,
US-198). Abuses in recruiting and during transportation were pointed
out; the workers were frequently dragged out of their beds at night and
locked up in cellars until the time of their departure; threats and
blows by the rural militia were a matter of course; food brought from
home was often taken by the militia; during transportation to Germany
neglect and transgressions on the part of the escorting units occurred,
_et cetera_.

Rosenberg had no authority whatsoever to intervene in those matters, yet
he tried to do so in a letter of 21 December 1942 to Sauckel; Rosenberg
first emphasized his fundamental accord with Sauckel; but after a few
tactical and polite _clichés_, he complained seriously and urgently
about the methods used in the employment of labor. I quote:

    “I must emphatically request, in view of my responsibility for
    the Occupied Eastern Territories, that in supplying the required
    quotas methods should be avoided which might one day cause me or
    my associates to be charged with connivance and with being
    responsible for the consequences.”

Rosenberg further states that he empowered the Reich Commissioner for
the Ukraine to make use, so far as required, of his sovereign rights and
to give attention to the elimination of recruiting methods which were
running counter to the interests of warfare and war economy in the
occupied territories. He, Rosenberg, and the Reich Commissioners could
not help being surprised that in numerous instances measures, which
should have been previously agreed upon with the civilian authorities,
were first learned of through the police or other offices. Without
co-ordination of their mutual wishes Rosenberg was unfortunately unable
to accept the joint responsibility for consequences resulting from these
reported conditions. In conclusion Rosenberg expressed the wish to put
an early end to such conditions for the sake of their common interest.

Rosenberg also tried personal consultations with Sauckel and got Sauckel
to promise that he would do everything to bring about a fair solution of
all these questions (conference of 14 April 1942). It was beyond
Rosenberg’s power and authority to do more. His secret opponent,
supported by higher authorities, was Reich Commissioner Koch, who was
indeed one of the chief culprits responsible for the cruel methods of
recruiting and employment of Eastern Workers, and whose influence
Rosenberg was unable to counteract.

When the prosecutor (Brudno, on 9 January 1946) charges the defendant
with protesting against these methods not for humanitarian reasons but
out of political expediency, I can only say that in my opinion one
cannot, without some sound reasons, simply maintain that the Defendant
Rosenberg is devoid of any human qualities.

As an example of the defendant’s particular bestiality, the so-called
“Hay Action” has been repeatedly pointed out by the Prosecution
(Document Number 031-PS). It concerned the intention of Army Group
Center to evacuate 40,000 to 50,000 juveniles from the area of
operations, as they represented a considerable burden to the area of
operations and were besides, for the most part, without any parental
supervision. Villages for children were to be established behind the
front lines under native supervision; one of these villages had already
proven its value. It was hoped that through the Organization Todt, being
a particularly appropriate organization due to its technical and other
possibilities, the juveniles might, in the main, be placed at the
disposal of German handicraft as apprentices, in order to employ them as
skilled workers after 2 years’ training. At first Rosenberg, as Reich
Minister for the Occupied Eastern Territories, was against this because
he feared that the action might be considered as a deportation of
children, while on the other hand, the juveniles did not represent a
considerable increase of military strength. The chief of the political
operations staff approached Rosenberg again, stating that Army Group
Center attached particular importance to the fact that the children
should enter the Reich, not by authority of the Plenipotentiary General
for the Allocation of Labor, but through the agency of the Reich
Minister for the East, as it was felt that only then could they be
assured of correct treatment. The Army Group wanted the action to be
carried out under the most correct conditions and asked for special
regulations to be issued with regard to mail facilities between them and
their parents, _et cetera_. In the event of a possible reoccupation of
the territory the eastern ministry could then let the children go back.
Together with their parents they would certainly form a positive
political element during the subsequent reconstruction of the territory.

Finally, as reason for the second request addressed to the minister, it
was stated in addition that the children, to be sure, would not
essentially contribute to strengthening the military power of the enemy
but that the important factor in this case was the long-range weakening
of his biological strength; not only the Reichsführer SS but also the
Führer had expressed themselves to this effect. Rosenberg finally gave
his consent to this action.

With regard to this it may be said: This concerned a field which was not
at all within the jurisdiction of Rosenberg’s administration; he did not
want to destroy a foreign element, even if biological weakening was
given him as a reason—a reason which he himself did not recognize.
Instead he wanted to have the children educated and trained and bring
them and their parents back to their homes later on. That is virtually
contrary to the crime with which the defendant is charged. Later on, in
the late summer of 1944, Rosenberg visited the Junkers plant in Dessau
where approximately 4,700 young White Ruthenian craftsmen were employed
and also visited a White Ruthenian children’s camp. The clothing of the
workmen was irreproachable; they were industrious, enjoyed the best
treatment, and got along very well with the German workers. As Rosenberg
was able to see for himself, the young people were taught languages and
mathematics by Russian teachers. The children were cared for in their
forest camp by White Ruthenian mothers and women teachers. The figure of
40,000 moreover, was never attained, in fact, barely half of it.

The attempt of the Prosecution in this instance to appeal especially to
considerations of humanity in order to discredit the defendant cannot be
successful in my estimation. For this very example compels me to point
out the following in particular: We were in the midst of a war which was
being conducted with terrible intensity on both sides. Is not war in
itself “monstrous bestiality”? The “weakening of the biological strength
of nations” is truly a fitting expression for the goal and purpose of
the whole war, for that is what the thoughts and efforts of both
belligerent parties are aimed at. It would surely be unthinkable that
one should forget this in judging the actions of the defendants and that
one should wish to hold the defendants responsible not only for
unleashing the war, but in addition, for the fact that war in its very
essence constitutes a great crime on the part of mankind, both against
itself and against the laws of life.

The Prosecution contends that Rosenberg is guilty also insofar as it was
he who issued the inhuman and barbaric decrees which aimed at carrying
out the deportation of Soviet people into German slavery. This causes me
to discuss the question as to whether the compulsory labor decree of 19
December 1941 and Rosenberg’s other decrees concerning compulsory labor
for the inhabitants of the Eastern Territories, were contrary to
international law.

The Eastern Territories administered by Rosenberg were militarily
occupied during the war. Through this occupatio bellica Germany realized
complete domination and had the same sovereignty as over her own
territory. While according to previous conceptions of international law
the occupying power could act arbitrarily without consideration of
rights and laws, the recent evolution of international law eliminated
the principle of force and brought victory to the principles of humanity
and culture. Therefore the formerly unlimited might of the occupying
power was altered to limited rights. The Hague Rules of Land Warfare
stipulated in particular the legal obligations of the occupying power.

On the other hand, it is not true to say that the Rules of Land Warfare
specify only certain privileges for the occupying power. They merely set
a limit to the basically unlimited right of the occupying power to
exercise all powers deriving from territorial sovereignty over an
occupied territory.

THE PRESIDENT: Would that be a convenient time to break off?

      [_The Tribunal adjourned until 10 July 1946 at 1000 hours._]




                              ONE HUNDRED
                          AND SEVENTY-FIFTH DAY
                         Wednesday, 10 July 1946


                           _Morning Session_

THE PRESIDENT: The Tribunal will sit in closed session this afternoon
and will not sit in open session after 1 o’clock.

DR. THOMA: Mr. President, may it please the Tribunal, with regard to the
question of the justification of the decree concerning the compulsory
labor service of the inhabitants of the Eastern Territories, I should
like to continue on Page 33.

Thus the following principle recognized by international law is
indicated:

Measures undertaken by an occupying power in occupied territory are
legal as long as they are not in opposition to a proven stipulation of
the international rules of warfare. The occupying power is therefore
assumed to be entitled to the full exercise of all powers derived from
territorial sovereignty over an occupied territory. According to the
uniform opinion of experts on international law the occupying power acts
by virtue of an original law of its own, guaranteed and defined as to
content solely by international law, in the interest of its own conduct
of the war as well as for the protection of the civil population in the
occupied territory. I quote Heyland from _Handbuch des Völkerrechts_.

    “The inhabitants of the occupied territory no longer have a duty
    of allegiance to the enemy sovereign but only to the occupying
    power; the will of the occupying power rules and decides in the
    occupied territory; the occupying power is the executor of its
    own will; its own interests alone are decisive for the exercise
    of its sovereign rights and, therefore, it is at liberty to act
    against the interest of the enemy state.”

In view of Article 52 of the Hague Rules of Land Warfare the right to
conscript labor in the occupied territory is acknowledged. It is
stipulated here that labor services may be demanded from the inhabitants
of the occupied territory; the demand must be limited to the
requirements of the occupation forces; it must be in proportion to the
resources of the country and must be of such a nature as not to compel
the population to participate in military operations against their own
country. In these stipulations I cannot discern any prohibition of labor
conscription in occupied territories; on the contrary, I consider that
an approval of compulsory labor service can be clearly deduced from
them. The employment of such labor in war industry is undoubtedly in
accordance with the requirements of the occupation forces and, in my
estimation, it is equally beyond doubt that this constitutes no
commitment to military operations. The Rules of Land Warfare contain no
stipulations as to whether labor service may be demanded only in the
home country or whether the conscript may be transported into the native
land of the occupying power for the purpose of rendering labor services
there. Thus, the general principle holds good that the occupying power
is assumed to be entitled to exercise to the utmost extent all powers
deriving from territorial sovereignty.

If one takes the correct view that the international rules of warfare
should tend to humanize war by limiting the rights of the belligerents
and that the trend in this direction should be continued, one must
consider on the other hand that the stern reality of war tends toward
the opposite direction.

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is
your contention that the Hague Rules authorize the deportation of men,
women, or children to another country for the purpose of labor service.

DR. THOMA: Mr. President, I propose to speak about the interpretation of
the Hague Rules of Land Warfare and I am dealing here with the question
as to whether it is permissible to transport inhabitants of the country
in order to meet the requirements of the occupying forces. I have stated
my position here that laborers can also be transported into the country
of the occupying power. About children, of course, I have said nothing.
I did not say anything about Jews either. I only spoke about persons
able to work, who were required to work in accordance with the
necessities of the occupying power, and I said it was admissible for
them to be transported into the home country of the occupying power. I
leave this problem to the discernment of the Tribunal.

THE PRESIDENT: The Tribunal would like to have any authorities in
international law which you have to cite for that proposition.

DR. THOMA: Mr. President, I shall mention some more quotations, more
detailed scientific quotations concerning this problem. I have already
quoted in that regard. I have repeatedly quoted Heyland’s _Handbuch des
Völkerrechts_, published by Stier-Somlo, and I shall give more
quotations.

THE PRESIDENT: Will you tell me what language that book is in?

DR. THOMA: In German, Mr. President; it is the _Handbuch des
Völkerrechts_, published by Stier-Somlo, 1923.

Present-day warfare is no longer what it was in 1907. War has developed
into total war, a life-and-death struggle of annihilation, in which the
very last physical and moral forces of the nation are mobilized, and the
loss of which, as is shown by the example of Germany, means
unconditional surrender and the total destruction of her existence as a
State.

Can one maintain, in view of this fact, that Germany, in this struggle
of life and death, should not have been granted the basic right of
self-preservation recognized by international law?

I refer to Strupp, _Handbuch des Völkerrechts_, published by
Stier-Somlo, Stuttgart 1920, Part III, “Violations of International
Law,” Page 128 _et sequentes_.

There is no doubt that the very existence of the State was at stake;
that is, it was an emergency which justified the compulsory employment
of labor, even if it had not been permissible according to international
law. It is inherent in that great anomaly called war that, as soon as
the state of war has been proclaimed, international law is in a large
measure set aside in the interest of the objective of the war, the
overpowering of the enemy.

I quote Strupp, as above, Page 172.

    “The development of civilization has seen a progressive
    moderation of the conception according to which everything is
    permissible in war until the enemy is destroyed; nevertheless
    the rules of warfare constitute even today a compromise between
    the demands of unrestrained military necessity and progressive
    humanitarian and civilized views.

    “One thing, at any rate, is certain, namely, that the existence
    of a genuine emergency may be pleaded, even under the
    stipulations of the Hague Rules of Land Warfare. During the
    negotiations preceding the formulation of Article 46 of the
    Hague Rules, the following was stated literally and without
    opposition in the plenary session of the Conference:

    “‘The restrictions might affect the liberty of action of the
    belligerents in certain extreme emergencies,’ indicating that
    for extreme contingencies, therefore, a state of emergency may
    be pleaded. It is recognized international law that even an
    aggressor must not be denied the right of pleading a state of
    emergency in case his existence is directly threatened.”

In connection with the chapter concerning the eastern administration, I
should like, without pointing out specifically all that the defendant
has said during his testimony concerning accusations of the Soviet
Prosecution, in particular the reports of the state commissions and the
Molotov reports (Documents USSR-39, 41, 51, 89, and record of 16 April
1946), to express a hope that the factual corrections made by the
defendant will be duly evaluated by the Tribunal.

Now I come to a new subject: Contrary to the assumption of the
Prosecution, Rosenberg was in no instance the instigator of a
persecution of Jews, any more than he was one of the leaders and
originators of the policy adopted by the Party and the Reich, as the
Prosecution claims (Walsh, on 13 December 1945, Volume III, Page 539).
Rosenberg was certainly a convinced anti-Semite and expressed his
conviction and the reasons for it both verbally and in writing. However,
in his case anti-Semitism was not the most outstanding of his
activities. In his book _Blood and Honor_, speeches and essays between
1919 and 1933, out of 64 speeches, for example, only one had a title
referring to Jewry. The same applies to the other two volumes of his
speeches. He felt his spiritual ancestors to be the mystic Meister
Ekkehart, Goethe, Lagarde, and Houston Stewart Chamberlain;
anti-Semitism was for him a negative element, and his chief and most
positive efforts were directed toward the proclamation of a new German
intellectual attitude, and a new German culture. Because he found this
endangered after 1918, he became an opponent of Jewry. Even such
different personalities as Von Papen, Von Neurath, and Raeder now
confess to their belief that the penetration of the Jewish element into
the whole of public life was so great that a change had to be brought
about. It strikes me as very important, however, that the nature of
Rosenberg’s anti-Semitism was intellectual above all. For example, at
the Party Rally of 1933 he explicitly mentioned a “chivalrous solution”
of the Jewish question. We never heard Rosenberg use expressions like
“We must annihilate the Jews wherever we find them; we shall take
measures that will insure success. We must abandon all feelings of
sympathy.” The Prosecution itself quotes the following as an expression
of the program Rosenberg set up for himself (Volume III, Page 529):

    “After the Jews have been ousted as a matter of course from all
    official positions, the Jewish question will find a decisive
    solution through the setting up of ghettos.”

GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr.
President, rather reluctantly I interrupt counsel for the defense, and I
do not like to take the time of the Tribunal, but what I just heard is
going beyond any permissible limits. When the defendants sitting in the
dock tried to express their Fascist views, this was deemed inappropriate
and cut short by the Tribunal.

I think that it is absolutely inadmissible that defense counsel should
use this place to promote antihuman propaganda; I cannot understand the
contention of the lawyer who alleges the existence of a noble, spiritual
anti-Semitism which Rosenberg advocates and that Rosenberg’s belief in
gathering all Jews in ghettos was chivalrous. Please note that the
lawyer is not quoting any Nazi leader but expresses his own opinion, and
I protest against the use of the International Military Tribunal for the
spreading of Fascist propaganda. I ask the Tribunal to consider this
objection of mine and to take appropriate action.

DR. THOMA: May it please the Tribunal—may I make an answer to that?

THE PRESIDENT: Dr. Thoma, we don’t think it is necessary to trouble you.
The Tribunal thinks—there may be, of course, differences of opinion as
to the use of words in the course of your argument, but they see no
reason for stopping you in the argument that you are presenting to the
Tribunal.

DR. THOMA: Thank you, My Lord.

May it please the Tribunal, after what General Rudenko has said, I
should like to make one statement. In my speech I have tried to argue
upon the statements of the Prosecution and nothing else. I would like to
say something else. The words “chivalrous solution of the Jewish
question” were not my expression; I just quoted that as a statement made
by Rosenberg a long time before he came into this Court. The Prosecution
quotes the following as Rosenberg’s statement of a program: “The Jewish
question...” and so on; I have already read that.

It was not a mere question of chance that Rosenberg did not take part
in, the boycotting of Jews in 1933, that he was not called upon to work
out the laws against the Jews in 1933, 1934, 1935, and so on
(expatriation, prohibition of marriages, withdrawal of the right to
vote, expulsion from all important positions and offices). Above all, he
never took part in the action of 1938 against the Jews, nor in the
destruction of synagogues, nor in anti-Semitic demonstrations. Neither
was he the instigator in the background who sent out, or ordered, lesser
people to commit certain actions. To be sure, Rosenberg was a true
follower of Hitler, who took up Hitler’s slogans and passed them on. For
example, the motto, “The Jewish question will be solved only when the
last Jew has left Germany and the European continent,” and once the
slogan of “Extermination of Jewry.”

Exaggerated expressions were always part of the National Socialist
weapons of propaganda. A Hitler speech was hardly imaginable without
insults to his internal or external political opponents, or without
threats of extermination. Every one of Hitler’s speeches was echoed a
million times by Goebbels down to the last speaker of the Party in a
small country inn. The same sentences and words which Hitler had used
were repeated, and not only in all the political speeches, but in the
German press as well, in all the editorials and essays, until, weeks or
months later, a new speech was given which brought about a new echo of a
similar kind.

Rosenberg was no exception. He repeated, as everyone did, all of
Hitler’s slogans, including that of the “solution of the Jewish
question,” and once also that of the “extermination of Jewry.”
Apparently, like Hitler’s other supporters, he gave as much or as little
thought to the fact that in reality none of those phrases were clear but
that they had a sinister double meaning and, while they might have meant
real expulsion, they might also have implied the physical annihilation
and murder of the Jews.

May I remind the Tribunal at this point that Rosenberg, during his
testimony, made a reference to a speech of the British Prime Minister in
the House of Commons in September 1943, in which speech it was stated
that Prussian militarism and National Socialism had to be exterminated
root and branch. No German interpreted that literally, and I believe no
one interpreted it to mean that German soldiers and the National
Socialism had to be exterminated physically.

Aside from the knowledge and will of the German people, and aside from
the knowledge and will of the majority of the leadership of the
Party—that is to say, known only to Bormann, Himmler, and
Eichmann—there was hatched and carried out, from 1941 onward, a mass
crime which surpassed all human concepts of reason and morality. The
“Jewish question” was developed even further and brought to a so-called
“final solution.”

The Tribunal will have to decide the question whether Rosenberg, the
specially characteristic exponent of the Party, the Reich Minister for
the Occupied Eastern Territories, is also responsible for the murder of
the Jews, and particularly for the murder of Jews in the East; that is,
is he a murderer of Jews? Or must it be recognized and admitted that,
although he stands but a hair’s breadth from the abyss, it was, after
all, external circumstances which led up to it all, and that these
circumstances were outside his sphere of responsibility and guilt?

I believe I can say that Rosenberg never aimed, either openly or in
secret, at the physical extermination of the Jews. His reserve and
moderation were certainly no mere tactics. The slipping of anti-Semitism
into crime took place without his knowledge or will. The fact in itself
that he preached anti-Semitism justifies his punishment as the murderer
of Jews as little as one could hold Rousseau and Mirabeau responsible
for the subsequent horrors of the French Revolution.

Furthermore, no matter how much the first impression might lead to it,
criminal guilt on his part cannot be deduced from his position as Reich
Minister for the Occupied Eastern Territories. As already stated, the
“responsible minister” cannot simply be held responsible for criminal
acts committed in his sphere or his territory. Criminal responsibility,
according to the German Penal Code, Paragraph 357, exists only if an
official knowingly assents to the criminal actions of his subordinates,
and if—the commentaries furnish this supplement—the superior is in a
position to prevent the action.

I should like to take up the question of his responsibility on the
grounds of the documents submitted for this purpose.

(1) The action taken against the Jews at Sluzk (Document Number
1104-PS).

On 27 October 1941, a horrible slaughter of Jews took place in Sluzk,
committed by the four companies of a police battalion, because the
commander received an order from his superior to clear the city of all
Jews without exception. The district commissioner immediately made
vigorous protests, demanded that the action be stopped at once, and gun
in hand kept the police officers in check as far as he was able. He
reported to the General Commissioner of White Ruthenia, Kube, at Minsk,
and the latter suggested to the Reich Commissioner Ostland, Lohse, that
the officers implicated be punished for this “unheard-of bestiality.” He
in turn reported to the Reich Minister for the East, with the request
that immediate measures be taken at higher levels. The Reich Minister
for the Occupied Eastern Territories sent the entire report to Heydrich,
the Chief of the Security Police and of the SD, requesting further
action. Due to an ingenious system according to which the Police were
not responsible to the competent administrative chief and were not even
obliged to report, Rosenberg could not take any further steps either in
this or in similar cases. He was not head of the Police, and could only
hope that the transmission of the report to Heydrich would be sufficient
to stop what he considered to be regional excesses of the Police.

It can be seen from the indignation of all the administrative offices
over the reported incidents that none of them knew that it was no
question of excesses, but of an action ordered by Heydrich and Himmler.
Even though Rosenberg violently disliked Heydrich and Himmler, not even
he could suspect anything of this kind.

(2) Also from October 1941 dates Document 3663-PS in which the Reich
Minister for the Occupied Eastern Territories, for whom Dr. Leibbrandt
signed, calls for a report by the Reich Commissioner Ostland, because a
complaint has been made by the Reich Security Main Office that the Reich
Commissioner Ostland had prohibited executions of Jews in Libau. To this
the addressee replied:

    “I prohibited the execution of Jews in Libau because there was
    no justification for the way in which it was carried out.”

This is followed by a request for further instructions. Regarding this
document—which is signed by the departmental chief Leibbrandt, and
which in no way points to any knowledge on the part of the Defendant
Rosenberg—I wish to make the following provisional brief statement:

It is not conceived as a reproach by the Reich Minister for the East
because the executions of Jews were discontinued, but it simply
represents the transmittal of a complaint by the Reich Security Main
Office, adding a request to report. It is to be presumed that the reason
for the complaint was that the Reich Commissioner Ostland encroached on
the competency of the Reich Security Main Office and the demand for a
report was presumably issued in that sense. In a letter of 18 December
1941, the Reich Minister, in a letter also signed “By order: Bräutigam,”
asked the Reich Commissioner Ostland to settle directly any questions
which might arise with the Higher SS and Police Leader.

To identify the letter “R” as Rosenberg’s initial, because the
Prosecution obviously was more than doubtful about Rosenberg’s knowledge
of matters, turned out to be equally unfortunate. This “R” is not
Rosenberg’s.

(3) Document Number 3428-PS concerns a letter of the General
Commissioner for White Ruthenia to the Reich Commissioner for the East.
It is a shocking document about the mass extermination of Jews in White
Ruthenia; however, there is nothing of interest in it for the case
against Rosenberg, because those horrible events could be attributed to
him only if he knew of them, and in neglect of his duty failed to
intervene. There is no actual proof to found a supposition of such
knowledge. The claim that these documents were found in Rosenberg’s
possession cannot be in accordance with the actual facts, for they show
the Reich Commissioner in Riga as the addressee.

(4) In the “Memorandum for the Führer of 18 December 1941” (Document
Number 001-PS) the defendant suggested the following, which I must quote
literally:

    “The assaults against members of the German Armed Forces have
    not stopped, but have gone on. It seems to be an obvious plan to
    disturb German-French co-operation, to force Germany to take
    measures of retaliation, thereby bringing about a new defensive
    attitude on the part of the French against Germany. My
    suggestion to the Führer is that instead of killing 100
    Frenchmen, he should have 100 or more Jewish bankers, lawyers,
    _et cetera_, shot.”

It is not my task here to discuss how far it is admissible to shoot
hostages, but one thing is certain, that Rosenberg was convinced such a
measure was admissible. In that case, however, his suggestion must be
considered in that light, and can by no means be judged as an
independent incitement to murder. Besides, the suggestion had no
results. In his reply of 31 December 1941, Lammers, acting on behalf of
the Führer, merely referred to the suggestion of utilizing the furniture
and fittings from Jewish houses, and not to the shooting of hostages.
Therefore, Rosenberg made no more reference to it.

At this point I should like to interpolate the following: The French
prosecutor charged Rosenberg, when the latter was in the witness box,
with the fact that this was murder. Gentlemen of the Tribunal, it was
not murder, because no execution took place. But neither was it
incitement to murder. One can only incite someone who still has to be
persuaded. However, if the man who commits the act is already prepared
for anything, is an _omni modo facturus_, then he can be incited no
more, and there only remains the offense of a suggestion of a criminal
act, which, according to German law, must be judged as an offense to
receive only slight punishment, because it has had no consequence.

Just at this point I should like to recall that Rosenberg testified as a
witness that on one occasion a court sentenced a district commissioner
in the East to death for having extorted valuables from a Jewish family,
and that that sentence was carried out. Please do not consider it an
improper argument of the defense when I say: Does that not prove that
Rosenberg abhorred criminal acts against the Jews?

(5) Document Number Rosenberg-135, Exhibit Number USSR-289, refers to
the report of the General Commissioner of White Ruthenia in Minsk, dated
1 June 1943, on the subject of what happened in the prison of Minsk as
regards gold fillings. This was addressed to the Reich Commissioner
Ostland, who forwarded the report on 18 June 1943 with the utmost
indignation. At his hearing before the Tribunal on 16 April 1946 the
defendant already made a statement on this point. I should like to
repeat this briefly now: The defendant had returned on 22 June 1943 from
an official visit to the Ukraine and found a pile of notices about
conferences, a number of letters, and above all the Führer decree from
the middle of June 1943, in which Rosenberg was instructed to limit
himself to the fundamentals of lawmaking and not to bother about
details. Herr Rosenberg did not read the letter concerned, but he has to
surmise—he cannot remember this—that the letter was explained to him
by his office, and presumably in the course of the reading he was
informed of many documents and learned that there was again serious
trouble between the Police and the civilian administration, and it is
probable that Rosenberg said: Turn that over for investigation to
Gauleiter Meyer or to the liaison officer. Otherwise the terrible
details would certainly have remained in Rosenberg’s memory.

Nobody doubts for a moment that the horrible crimes shown in these
documents and all the other frightful things not covered in the
documents, but which actually happened, call for atonement. Nobody
doubts that not only the lesser henchmen acting on higher orders shall
be punished, but also above all those who issued the orders, and those
responsible for the crimes. Rosenberg did not issue an order to murder
Jews; that much is clear. Is he, in spite of this, responsible for the
frightful murders?

There is no trace of the defendant’s handwriting on any of the murder
documents. Nor has it been determined in any case that he knew anything
about what went on. Can we condemn Rosenberg on the basis of his
presumed and probable knowledge? Rosenberg has by no means the intention
of playing a false and cowardly game of hide-and-seek behind his
advisers and officials. But let us remember how cunningly the so-called
executions of the Jews were kept secret, not only from the public, but
even from Hitler’s closest collaborators.

Is it not possible, and even credible, that they were playing a game of
hide-and-seek even with Rosenberg? The thoughts and intentions of none
of the other NSDAP leaders were revealed so openly and clearly to all
the world as particularly those of the author Rosenberg. Of none other
could one be so sure that he would turn with indignation from inhuman
and criminal acts.

But let us go one step further and assume that Rosenberg had full
knowledge of this greatest crime. It is not proved, but one could
imagine it and surmise it. Is he then responsible, too? Peculiar, even
subtle, as we well know, was the departmental authority, and the
responsibility which went with it, in the eastern countries. The entire
police system had been taken from Rosenberg’s sphere of influence, at
the highest level of which was Himmler, and under him Heydrich. Of their
orders and measures Rosenberg naturally had no knowledge and no idea.

The lower echelons of police leaders and police agencies were in effect
subordinate and responsible to their police superiors and no one else.
It was quite immaterial whether or not Rosenberg knew anything of the
measures taken by the Police; he could change them as little as any
other of his fellow citizens in the Third Reich. One might say: Yes, he
could have remonstrated with Himmler or Hitler; he could have resigned.
Of course, he could have done so. The decisive point, however, is not
whether he could have done it; the question is whether he would have
achieved anything by doing so—that is to say, whether he could have
prevented the execution; for only in such a case could his
responsibility be affirmed on the basis of his failure to act, and only
in such a case could one speak of causality without which criminal
responsibility is unthinkable.

One might further claim, still under the assumption of Rosenberg’s
knowledge of matters, that Rosenberg could at least have taken steps
against the Reich commissioners, who were obviously involved in these
matters. We know that the administrative organization and the dividing
up of final authority in the East were vague, to say the least. The
Reich commissioners were sovereign masters in their own territory, who
had the final decision in the shooting of hostages and in other
retaliatory measures of far-reaching consequence. And what was the
actual extent of their authority? In case the Reich Commissioner was
dissatisfied with Rosenberg—and mostly he was dissatisfied—he went to
Hitler. Does anyone really believe that if Rosenberg disagreed with Koch
as regards the execution of Jews, he would have been upheld by Hitler if
he had approached him? Here again, there is a lack of that causality
which is indispensable for a legal condemnation.

I come now to the Einsatzstab Rosenberg, the Operational Staff
Rosenberg.

No less than three prosecutors have taken the stand in this Trial
against Rosenberg, and have accused him of wholesale stealing of objects
of art and science in the East and West (Storey, 18 December 1945;
Gerthoffer, 6 February 1946; Smirnov, 15 February 1946). First I must
take exception to some obvious exaggerations and injustices, that is,
the assertion that the activities of the special staff in the West
extended to public and private property without distinction (Volume VII,
Page 55), and that the objects of art Germany appropriated amount to
more than the combined treasures of the Metropolitan Museum in New York,
of the British Museum in London, of the Louvre in Paris, and of the
Tretjakov Gallery. Further, I must declare the statement incorrect that
the “looting program” of Rosenberg was intended to rob the occupied
countries of their entire centuries-old possessions of art and science.
Finally, the Prosecution contrasts Rosenberg’s actions to the looting of
art treasures in former wars. It says that while egotism, conceit,
taste, and personal inclination used to be the underlying motives of
such looting, the National Socialists primarily had the criminal
intention of storing up reserves of valuables (Volume VII, Page 65). I
think it unnecessary to refer to the looting of art treasures in former
times as far back as Napoleon, because the concepts of international law
and regulations have changed in the meantime, but I should like to
mention two things:

First, how many of the most famous objects of art in the most famous
galleries of the world got there through the channels of war and how
many got there in a peaceful way?

Second, I am prepared to accept the fact that the Prosecution denies
Rosenberg’s delight in art, or joy in the possession of art treasures as
a possible motive for his actions, because Rosenberg was no robber, no
plunderer, of art. He had no intention of appropriating the objects of
art for himself or for someone else.

What were the actual facts? Rosenberg’s operational staff was active in
the East and in the West. It had two tasks: First, to search libraries,
archives, _et cetera_, for material suitable for the proposed
“university” of the Party, to confiscate this material and take it away
for the purpose of research, and secondly, to seize objects of cultural
value which were in the possession of or which belonged to Jews, or
which had no owner or were of a doubtful origin. The Prosecution says:
“The true and only motive, the true and only purpose of this ‘seizure’
was robbery and looting; there could be no question of intentions of
mere ‘safeguarding.’”

On 20 August 1941 Rosenberg wrote to the Reich Commissioner Ostland that
he wished distinctly to prohibit the transfer of any kind of art
treasure from any place whatsoever without the approval of the Reich
Commissioner (Document Number 1015(c)-PS). On 30 September 1942 the
Commander-in-Chief of the Army issued an order (Document Number
1015(n)-PS) in agreement with Rosenberg to the following effect:

    “Apart from exceptional cases when it is urgent to safeguard
    endangered objects of cultural value, it is desired that for the
    time being such objects be left where they are.”

Later on, it says:

    “The troops and all military commands within the operational
    area are now as before directed to spare valuable cultural
    monuments as far as possible and to prevent their destruction or
    damage.”

In the report of the Special Staff for Creative Arts (report on work
carried out between October 1940 and 1944, Document Number 1015(b)-PS)
it is stated that in the Occupied Eastern Territories the activities of
the Special Staff for Creative Arts were restricted to the scientific
and photographic registration of official collections, and that the
safeguarding and protection of these was carried out in co-operation
with the military and civilian agencies. It says further that in the
course of vacating the territories, several hundred valuable icons and
paintings, _et cetera_, were saved and, with the co-operation of the
individual army groups, were brought to a place of safekeeping in the
Reich. Finally, on 12 June 1942 Rosenberg sent out the following decree
in a circular letter to the highest Reich authorities, which reads:

    “In the Occupied Eastern Territories a number of offices and
    individuals are engaged in the safeguarding of objects of
    cultural value. They work from various approaches to the subject
    and independently of each other. It is absolutely essential for
    the administration of these territories that a survey be made of
    the existing objects of cultural value. Furthermore it must be
    endeavored, as a general rule, to leave them where they are for
    the time being. To this end I have set up a central office for
    the registration and safeguarding of objects of cultural value
    in the East as a special division within my ministry.”

Thus Rosenberg, as can be proved, proceeded from the point of view that
objects of cultural value had to remain in the country and only through
the retreat of the German troops were a few hundred valuable icons and
paintings brought into Germany.

In time of war, objects of cultural value, both mobile and immobile, are
as exposed to the danger of destruction as are any other objects of
value. Rosenberg stopped all unnecessary destruction, theft, and
removal; he centralized the safeguarding of objects of cultural value
and had all necessary actions taken through his operational staff in the
East and the West (for example, see Abel’s report on the library at
Minsk, Document Number 076-PS). It is quite in accordance with the
conception of international law (I quote Scholz, _Privateigentum im
besetzten und unbesetzten Feindesland_, Berlin 1919, Page 36) that care
should be taken on the part of the occupying powers not only to protect,
but to safeguard and salvage protected objects of art as far as the war
situation permits. It is even considered a cultural duty for the
occupying power to remove particularly valuable objects of art from the
combat zone and place them in safety as far as possible. Under certain
circumstances the concept of international law may render it the
cultural duty of the occupying power to bring into his own country for
reasons of salvage objects of special scientific and artistic value.
This is not an inadmissible “seizure” (Article 56, Paragraph 2, Rules of
Land Warfare), because this term could only apply to acts which are
anti-cultural, not to acts which are procultural. (See Scholz, as above,
Page 37).

Finally, I want to refer to Document Number 1109-PS, a report according
to which scientific institutes that had been saved were ready to be
taken back to the Ukraine immediately after the hoped-for re-entry of
the troops. I consider it completely impossible to read anything about
looting into this clear text.

Certainly, in the East great quantities of cultural objects of
considerable value were destroyed by direct military actions, or by
wanton destruction, or looting. It would be a fundamental
misconstruction of the true facts of the case, and a great injustice, if
these losses should be charged to the account of the Einsatzstab and its
chief, for his efforts went exactly in the opposite direction.

In the West (I refer to the testimony of the witness Robert Scholz of 19
June 1946, Document Number Rosenberg-41), the case was different but, in
my opinion, here also the defendant cannot be charged with looting and
robbing objects of art. When in the summer of 1940 the inhabitants of
Paris, with the exception of the Jews, had once more returned, somebody
conceived the idea of searching the now ownerless apartments, houses,
and palaces for books and libraries and of taking to Germany whatever of
this scientific material was of interest. From various branches of the
Armed Forces came the report that especially in Jewish-owned palaces
there were collections of objects of art which one could not guarantee
to remain intact in case of a long occupation. Thereupon, Rosenberg made
the proposal that his Einsatzstab be allowed to direct its attention to
objects of art and to take them into its custody, which was then ordered
by Hitler. What did the Einsatzstab do with these objects of art? It set
up an accurate card index containing the names of the particular owner
of each picture, photographed the art objects, scientifically appraised
them, repaired them expertly insofar as was necessary, packed them
carefully and shipped them to the Bavarian castles of Neuschwanstein and
Chiemsee. Because of the danger of air raids, they were then stored in
an old Austrian mine. Rosenberg attached great importance to keeping
separate the objects cared for by the Einsatzstab, and not to have them
mixed with the large-scale purchases which Hitler made for the proposed
gallery in Linz.

Was that looting, robbery, theft? Looting is the indiscriminate and
wanton carrying-off of objects in situations involving general distress
and danger. Robbery is carrying off by force. Theft is carrying off
without force. In all cases intent must exist to appropriate the object
illegally for oneself or somebody else. What intent did Rosenberg have?
He never denied that he and his co-workers had hopes of the pictures
remaining in Germany. Perhaps as compensation or as a security for the
peace negotiations, but in any case his intent was only directed at
confiscating and safeguarding the objects and it has been proved that
the question of what should be done with the confiscated items was left
open until the end and that no decision was made on it. It is absolutely
certain that Rosenberg did not have the intention of appropriating the
things for himself or anybody else. If Rosenberg had been a plunderer of
objects of art, he certainly would not have had exact notations made
concerning dates and place of confiscation and names of the owners. As a
precaution, however, I should also like to point out that because of the
flight of their owners the objects were virtually ownerless, and that
the question of the lack of a possessor and of the legality of their
acquisition by Rosenberg cannot be judged by normal circumstances, but
must be judged according to the extraordinary circumstances of the war.
If the Prosecution claims that public and private objects of art were
stolen at random, I should like to reply to the statement that only
Jewish possessions, and indeed the specified ownerless objects were
confiscated. Above all it is not true that state-owned property was also
touched. Finally he did not act on his own responsibility but in
carrying out a governmental order, and I want to ask that the fact be
not overlooked that Rosenberg acted without any egotistical motive. Not
a single picture passed into his private possession; he did not gain a
single Reichsmark from this transaction involving millions, and after
all, all the artistic and cultural property has been found again. I
would like to thank the French Prosecution for having acknowledged this
fact here publicly.

Göring supported the work of the Einsatzstab and, as he admits,
“diverted” some objects for his own use, with the Führer’s approval.
This disturbed Rosenberg because the Einsatzstab was in his name, and he
declared that as a matter of principle he did not want to give anything
even to the museums, that his task was purely one of registration and
safeguarding. The Führer should have the final decision on these works
of art. Rosenberg could not undertake anything against Göring, but he
ordered his deputy Robert Scholz at least to make an accurate inventory
of what was given to Göring, and to have the latter sign a receipt,
which he did. Thus, most certainly it cannot be proved that Rosenberg
had the intention of illegally appropriating the objects of art for
himself or for somebody else. Furthermore, Robert Scholz confirmed that
Rosenberg also forbade all his assistants to acquire any objects of art
or culture even by virtue of an official appraisal (Document Number
Rosenberg-41).

The Prosecution says that with the Rosenberg Einsatzstab a gang of
vandals broke into the European House of Art in order to plunder in a
barbarous way. If one contemplates the tremendous work of drawing up an
inventory, of cataloging, of restoration, and of scientific appraisal,
and if one finally bears in mind that all these treasures were most
carefully stored away, and certainly came through the war better than
would have been the case if the German authorities had not taken care of
them, then I believe that, objectively speaking, one can use any term
but that of “vandalism.”

THE PRESIDENT: I think this would be a good time to break off.

                        [_A recess was taken._]

DR. THOMA: Rosenberg is also especially charged with looting furniture.
He allegedly ransacked the contents of 79,000 Jewish-owned homes, among
them 38,000 in Paris, and took the loot to Germany. Unquestionably,
these measures were taken for the benefit of air-raid victims; in the
cities which had been destroyed by air warfare new homes were set up for
the homeless. It was in line with National Socialist mentality and it
must certainly be morally condemned that the confiscation was limited to
Jewish property. The essential question, however, is whether the
confiscation was at all legal. In all my statements I have avoided
trying to excuse a weak legal position with a state of military
emergency, and I do not wish to do it at this point either, for, as an
expert on international law states, “The state of emergency is the lever
by means of which the entire body of martial law can be torn from its
hinges.” In this case, does not the justification of national and
military necessity exist, did not air warfare bring intense and general
distress to Germany?

One might object that such distress could have been ended by
unconditional surrender. In my opinion, however, the above-mentioned
justification cannot be denied to the defendant by this reference to
unconditional surrender, entailing the Reich’s abandonment of its own
existence, its independence, and its own vital interests. The
appropriation of enemy private property took place in application of a
right of requisitioning, which was extended beyond the legal terms of
martial law and justified by the state of emergency. I venture to assert
that his procedure of confiscating furniture, in view of the devastating
effects of air warfare against Germany, was not contradictory to “the
customs among civilized peoples,” “the laws of humanity,” and “the
demands of the public conscience” (Marten’s clause in the preamble to
the agreement concerning the Laws and Customs of Land Warfare; see
Scholz, in the afore-mentioned book, Page 173).

May it please the High Tribunal, I shall now pass on to the Norway
operation. The Prosecution characterizes Rosenberg and Raeder as the
most energetic conspirators in the Norway operation, and later in the
same matter calls Rosenberg a “dealer in high treason.” The opinion of
the Prosecution and also the assumption of the present Norwegian
Government (Norwegian Report of 13 October 1945, Document Number TC-56)
are obviously to the effect that the Party’s Foreign Political Office,
of which Rosenberg was the head, and Quisling had plotted the war
against Norway in mutual conspiracy. I believe that of all the charges
against Rosenberg hitherto dealt with, none has less foundation than
this one. On the basis of the few documents which have been submitted to
the Court, in my opinion the case could doubtlessly be cleared up in
favor of the defendant.

There existed a Foreign Political Office of the Party, which had the
task of informing foreign visitors about the National Socialist
movement, of referring any suggestions to the official offices, and
otherwise of functioning as a central office of the Party for questions
of foreign policy. The special interest, and I may say the special
sympathy, of the leading men of the Party and the State was directed
toward the Scandinavian countries. It was specifically in this direction
that the Foreign Political Office placed the main emphasis on the field
of cultural policy. The already existing “Nordic Society” was expanded,
the birthdays of great Scandinavian scientists and artists were observed
in Germany, a great Nordic music festival was held, and so forth. The
relations took on a really political note only with the appearance of
Quisling, whom Rosenberg had seen for the first time in 1933 and who
then, in 1939, 6 years later, looked up Rosenberg again after the
convention of the Nordic Society in Lübeck; the former spoke of the
danger of European entanglements and expressed the fear that Norway was
in danger of being drawn into them. He then feared above all a
partitioning of his country in such a manner that the Soviet Union would
occupy the northern and England the southern part of Norway.

Quisling again came to see Rosenberg in Berlin in December 1939. The
latter arranged for a conference with the Führer. Hitler declared that
he would by far prefer to have Norway remain completely neutral and that
he did not intend to extend the theater of war and involve more nations
in the conflict, but he would know how to defend himself against a
further isolation of Germany and further threats against her. In order
to counteract the increasing activity of enemy propaganda, Quisling was
promised financial support of his movement, which was based on the
pan-Germanic idea. The military treatment of the questions now taken up
was assigned to a special military staff; Rosenberg was to deal with the
political aspect, and he appointed his assistant Scheidt to maintain
liaison. Hagelin, a Norwegian confidential agent of Quisling’s, in
January 1940 gave Rosenberg some more disturbing reports on the feared
violation of neutrality by the Norwegian Government, and Rosenberg
passed them on to Hitler. After the _Altmark_ incident, Hagelin, who
moved in Norwegian Government circles, intensified his warnings to the
effect that the Allies had already begun to examine the Norwegian
seaports for disembarkation and transportation possibilities; in any
case, the Norwegian Government would be satisfied with protests on
paper, and Quisling was indicating that any delay in undertaking a
counteraction would mean an exceptional risk. Rosenberg again handed the
reports immediately to Hitler. If he had not done so that would have
been downright treason to his country. The German counterblow followed
on 9 April 1940, and Rosenberg learned about it from the radio and the
newspapers like any ordinary citizen. After his above-mentioned report,
which he made in the line of duty, Rosenberg, did not participate in
either diplomatic or military preparations.

Should there still be any doubt that in the Norwegian case Rosenberg was
only an agent who forwarded information to Hitler, and not an
instigator, conspirator, or traitor, I should like to refer to two
documents. First, to Document Number C-65, Rosenberg’s file note
concerning Quisling’s visit. Obviously, it is the information on
Quisling which Hitler had requested from Rosenberg. If Rosenberg had
been on closer terms with Quisling, he certainly would have been only
too glad to inform Hitler about it. Rosenberg had only heard of a
fantastic and impracticable plan of Quisling’s for a _coup d’état_
(occupation of important central offices in Oslo by sudden action,
supported by specially selected Norwegians who had been trained in
Germany, afterward having the German fleet called in by a newly formed
Norwegian Government). However, an earlier report of Quisling appeared
less fantastic to Rosenberg; according to this—names being
given—officers of the Western Powers traveled through Norway as
consular officials, ascertained the depth of the water in ports of
disembarkation, and made inquiries into the cross-sections and
clearances of railway tunnels. This was the true and only reason for
everything Rosenberg did in the Norwegian matter.

The second document is the report concerning “The Political Preparation
of the Norway Operation” (Document Number 004-PS, Exhibit Number
GB-140), a report from Rosenberg to Hess of 17 June 1940. In this
interdepartmental report there is also nothing which deviates from
Rosenberg’s own trustworthy statement and which would allow him to
appear as an instigator of war and of high treason. Rosenberg was not
called into any political or military discussion concerning Norway.
Thus, what criminal act did Rosenberg commit? Was it criminal that he
tried “to gain influence in Norway” (Document Number TC-56), or that
with his knowledge the Foreign Office gave subsidies to Quisling?
Finally, I should also like to point out that later on, after the
operation had succeeded, Rosenberg was in no way entrusted with an
office or function with regard to Norway; that even the appointment of a
Reich Commissioner for Norway was carried out without consulting him.

I shall not deal with the case of Minister Goga, which I have set forth
in detail, but I ask the High Tribunal to consider it as having been
dealt with. Now I turn to the topic: Persecution of the Church.

The Prosecution maintains that Rosenberg, together with Bormann, issued
the orders for religious persecutions and induced others to participate
in these persecutions. However, not a single order of that kind is
known. There were presented only letters by Bormann, partly to
Rosenberg, partly to others, from which no charges against Rosenberg can
be drawn. On the contrary Rosenberg was repeatedly reproached, as on one
occasion when in the presence of Hitler he praised a book by Reich
Bishop Müller (Document Number 100-PS); another time when Rosenberg gave
Reich Bishop Müller instructions to work out directives for thoughts
regarding religious instruction in schools (Document Number 098-PS);
once again when Rosenberg sponsored a strictly Christian work by General
Von Rabenau.

As a witness Rosenberg himself declared (Volume XI, Page 461) that he
had opposed propaganda advocating withdrawal from the Church and had
never called for state and police measures against his opponents in the
fields of theology and research, and particularly that he had never used
the Police for suppressing those who were opponents of his book _The
Myth of the 20th Century_. In December 1941, as Reich Minister for the
Occupied Eastern Territories, he issued an edict for Church toleration
(Documents Number 1517-PS and 294-PS). Rosenberg had nothing to do with
arrests, the deportation of priests, and persecution of the Church. He
had no part either in the negotiations with the Vatican over the
Concordat or in the assignment of the Protestant Reich Bishop; neither
did he take any part in measures which were hostile to the Church, and
which were later carried out by the Police. He never participated in any
other administrative or legislative anticlerical measures.

In my opinion it is quite impossible, for lack of documentary evidence,
to construe from what Rosenberg thought and said about religious and
philosophical matters—which I will quote presently—that he conspired
toward a political suppression of religion by force. The only document
(Number 130-PS) pointing in this direction was withdrawn by the American
Prosecution itself before I was obliged to draw attention to its being a
pamphlet directed against Rosenberg.

His book _The Myth of the 20th Century_, which is allegedly written for
the reshaping of the denominations in the direction of a Germanic
Christianity, is moreover chiefly addressed to those who had already
broken with the Church. “No consciously responsible German,” says
Rosenberg at one place in it, “should suggest withdrawal from the
Churches to those who are still believing members thereof” (Document
Number Rosenberg-7, Document Book 1, Page 122), and once again: “Science
would never have the power to dethrone true religion” (see as above,
Page 125). His writings are not addressed to the faithful churchgoers of
today in order to hinder them in the course of their chosen spiritual
life, but to those who have already discarded their religious faith
(Document Number Rosenberg-7, Document Book 1, Page 125). In his
speeches he upheld the view that the Party is not entitled to establish
norms in metaphysical matters which contest immortality, et cetera.
After he had been assigned to supervise ideological education, he said
explicitly in his Berlin speech of 22 February 1934: “No National
Socialist is allowed to engage in religious discussions while wearing
the uniform of his Movement,” and he declared at the same time that “all
well-disposed persons should strive for the pacification of the entire
political and spiritual life in Germany” (Document Number
Rosenberg-7(a), Document Book 1, Page 130). That in this respect, too,
things developed along different lines is not due to the desire or
influence of Rosenberg.

Moreover, I need make only brief allusion to the fact that it is a
question of the 1000-year-old problem of relations between the clerical
and so-called temporal powers. The struggle of emperors, kings, and
popes in the Middle Ages; the French Revolution with the shooting of
priests; Bismarck’s clerical controversies; the secular legislation of
the French Republic under Combes; all those were things, which from the
standpoint of the Churches ...

Mr. President, may I make a brief statement by way of explanation? I
wanted to say that I have concluded this topic, that I do not wish to
concern myself with the problem of Church persecutions any further. I
have finished with it. I am coming to the topic of ideology and general
politics.

Ideology and education have been nothing but a means of obtaining power
and consolidating that power; uniformity of thinking has played an
important part in the program of the conspiracy; the formation of the
Armed Forces has only been possible in conjunction with the ideological
education of the nation and Party—so says the Prosecution (Brudno, on 9
January 1946). And continuing its attacks against Rosenberg, the
Prosecution proceeds by saying that Rosenberg’s ideas formed the
foundation of the National Socialist movement, and that Rosenberg’s
contribution in formulating and spreading the National Socialist
ideology gave foundation to the conspiracy by shaping its “philosophical
technique.”

I think that one will have to take care, in judging Rosenberg’s case,
not to yield to certain primitive ways of thinking and become a victim
of them: First of all an exaggeration of the conception of ideology and
the inexact use of that concept. At best it was a political philosophy
which was hand in glove with Hitler’s political measures and which
Hitler himself preached in his book _Mein Kampf_, but it was not an
ideology in an all-embracing sense. It is true that National Socialism
endeavored to create a spiritual philosophy and an ideology of its own,
but it had not reached that stage yet by far. Rosenberg’s book _The Myth
of the 20th Century_ is an attempt in that direction, being a personal
confession, without any suggestion of political measures. Therefore, his
philosophy cannot have formed the ideological basis of National
Socialism. In addition there is a total lack of proof that a straight
spiritual line, a clear spiritual causal connection, exists between the
conceptions of Rosenberg and the alleged and actual crimes.

If one goes to the trouble of looking through the book, _The Myth of the
20th Century_, one will immediately observe that though there is some
philosophizing in the National Socialist way, it would be, however, pure
fiction to affirm that there is any dogmatic formulation of a tangible
program in this book, or that it is a foundation for the activities of
the responsible leaders of the Reich in this World War. Another mistake
of National Socialism was perhaps the boundless unification and
simplification: people were made uniform; thinking was made uniform;
only one uniform type of German was left. There was also alleged to be
only one National Socialist way of thinking, and only National Socialist
ideology. But in spite of this, as we see today, the leaders were
frequently of different opinions on essential questions. I will recall
the question of the policy in the East. Here too, there seems to be
danger of accepting this way of thinking, of observing everything
through the spectacles of uniformity, and of saying: One idea, one
philosophy, one responsibility, one crime, one punishment. Such a
simplification, apart from its primitive nature, would certainly also
constitute a great injustice toward the Defendant Rosenberg.

Finally, when one hears how the Prosecution attacks “Germanic
Christianity,” the “heathen blood myth,” making much of Rosenberg’s
expression, “the Nordic blood is the mystery which has superseded and
overpowered the old sacraments,” one feels inclined to close one’s eyes
for a moment and to picture oneself attending a session of the
Inquisition in the Middle Ages where they are about to sentence
Rosenberg to the stake as a heretic. Yet nothing must be farther from
the Tribunal’s mind than to harbor thoughts of intolerance, since here,
in spite of all attempts by some of the prosecutors, it is not
ideologies but crimes which are involved.

In the Defendant Rosenberg’s case it is a question of whether by his
teachings he was guilty of preparing and promoting crimes. The
Prosecution has brought forth arguments to this end, but have not proved
it, while I can prove the opposite merely by pointing to Rosenberg’s
activities in the East. Had he been the bearer and apostle of a criminal
idea, he would have had an opportunity, such as no criminal has ever yet
had in world history, to indulge in criminal activities. I have stated
explicitly that in his case it was just the opposite. So when the bearer
and apostle of an idea himself has the greatest of opportunities and yet
in practice himself behaves morally, then his teachings cannot be
criminal and immoral either. Above all, he cannot then be punished as a
criminal on the basis of his teachings. What criminally degenerate
persons practiced as alleged National Socialism cannot be laid to the
charge of Rosenberg. Moreover, Rosenberg’s speeches in three volumes,
which express what he taught in the course of 8 years, bear witness to
the honorable nature of his endeavors.

Thus, if we relinquish the false conception of uniformity: One party,
one philosophy, one ideology, one crime—and we will have to, in view of
the indisputable fact that Rosenberg himself never pursued a policy of
extermination, destruction, and enslavement in the East—we shall have
to admit that the facts of the terrible central executive orders and of
Rosenberg’s philosophy are not identical, and on these grounds alone the
conclusions of the Prosecution are invalid.

Karl Marx teaches that historical events and political social reality
are conditioned by the mere casual play of materialistic forces. Whether
Marx in addition acknowledges the independent influence of man and ideas
on history is at least doubtful. On the other hand, Rosenberg stresses
emphatically the influence and the necessity of the highest ideas in the
history of peoples. But Rosenberg does not overlook the fact that every
event in history is the result of a totality of acting forces. The will,
the passions and the intelligence of the people involved work together
to form a historical process which cannot be calculated in human terms.
It has already been pointed out that, just as little as Voltaire’s and
Rousseau’s ideas can be recognized as the causes of the French
Revolution, and the slogans of “Liberty, Equality, and Fraternity” be
taken as the cause of the Jacobinic terror, as little as one can say
that Mirabeau and Sièze had wanted or plotted such a blood bath, so
little can one ascribe to Rosenberg as his moral or even criminal guilt
that which National Socialism became during its development through the
decades. In other words, I believe it is as unjust as it is unhistorical
to ascribe today, in retrospect, the negative aspects of National
Socialism, which were connected with the terrible collapse, to a plan
desired from the outset and emanating from Rosenberg’s ideas.

Therefore, in considering Rosenberg’s work the mistake of a
standardization which does not correspond to reality is added to the
further mistake of mechanization; there is neither a mechanical man nor
mechanical history. And, finally, the construction of the Indictment is
also an absolutely negative one; it views the defendant from the
standpoint of political polemics and is impressed by the excitement of
people in these excited times. I must briefly take exception to this
distortion of the defendant’s mental traits.

The spiritual state of the period after the first World War and even of
the preceding period, which gave birth to the defendant’s ideas, are
known to all of us only too well: The turmoil in the spirit and soul of
man brought about by the technical age, his hunger and thirst for a new
spirit and a new soul; liberty was the slogan and a “new beginning” the
impulse which directed the will of youth. Its longing and enthusiasm
were aimed at nature. The thoughts and wishes of this generation were
led into political paths by the contrast between rich and poor, which
youth considered unjust and sought to bridge through socialism and the
fellowship of the people. In Germany the development along political
lines was given further impetus by the national misfortune of 1918-19
and the Treaty of Versailles, which was likewise felt to be unjust. The
idea of building German history through the union of nationalism and
socialism glowed unconsciously in the hearts of millions, as the
undisputed tremendous success of National Socialism proves. The
spiritual foundation was the desire for external and internal
self-assertion and love for one’s fellow countrymen and for the people
themselves, who had had to suffer so much torment and misery in history.

The desire for self-assertion and love for one’s own people, together
with the whole system of National Socialist ideas, then developed in an
inexplicable manner into a furious conflagration. The most primitive
considerations of common sense were eliminated just as in a delirium; in
complete delusion everything was risked and everything was lost.

The searching questions which present themselves to Rosenberg time and
time again are whether he could have done more for what he thought and
upheld as just and worthy; where he neglected essential things; where he
fell short of requirements; what negative symptoms, insofar as he had
knowledge of them, he should have paid more attention to. Can such
questions, which every person asks when he is crushed by disaster, be
considered as evidence for his objective guilt? I do not think so. On 17
January 1946 the French Chief Prosecutor, M. de Menthon, stated the
following, which I quote (Volume V, Pages 378, 379):

    “We are rather facing systematic criminality which directly and
    necessarily derives from a monstrous doctrine with the full will
    of the leaders of Nazi Germany. The crime against peace, which
    was undertaken, is immediately derived from the National
    Socialist doctrine.”

To refute this assertion I must briefly present this doctrine. I have
classified the National Socialist ideology—in accord, I believe, with
scientific opinions—under the so-called new romanticism. This trend,
which was grounded in fate and the necessities of history, had gone
through the whole civilized world since the turn of the century as a
reaction against rationalism and the technical age. It differs from the
old romanticism in that it adopts the naturalistic and biological
consideration of man and history. It is borne up by a confident faith in
the value and meaning of life and the whole of reality. It does not
glorify sentiment or intellect, but the innermost motives of man—heart,
will, and faith. This philosophy receives its National Socialist stamp
through the emphasis which is placed upon the mysterious importance of
peoples and races for all human experience and activity. It is in the
people, in the common possession of blood, history, and culture, that
the real roots of strength are thought to be found. Only by
participating in the movements of a people and its strength does the
individual serve himself and his generation.

Rosenberg’s scientific contribution to the racial ideology consists in
his description of the rise and fall of great historical figures, who
sprang from races and peoples and set up definite standards in all
spheres: language, custom, art, religion, philosophy, and politics.
According to Rosenberg the efforts of the twentieth century to establish
a form for itself are a struggle for the independence of the human
personality. In Rosenberg’s opinion, its essence is the consciousness of
honor. The myth of national honor is at the same time the myth of blood
and race, which produce and support honor in its highest form.
Therefore, the struggle for honor in its highest form is also a
spiritual struggle with other systems and their maximum values. Thus,
intuition stands against intuition, will against will.

Rosenberg expresses this thought in the following manner (_The Myth of
the 20th Century_, Introduction, Pages 1 and 2):

    “History and the task of the future no longer mean a struggle
    between classes, no longer a struggle between Church dogma and
    dogma, but the dispute between blood and blood, race and race,
    people and people. And this means: A struggle between
    psychologies.”

Consequently, Rosenberg had, in any case, no ideas of genocide as
Raphael Lemkin expounds in _Axis Rule in Occupied Europe_, Page 81,
where he ends the above quotation after the words “race and race, people
and people,” but he believed in a struggle between psychologies, in
other words, spiritual controversy.

I mention this spiritual trend in order to explain the peculiar fact in
National Socialism that political considerations born of the intellect
often gave way before the pathos of will and faith. In Rosenberg’s case
this danger did not appear so much since in making everything revolve
around the “soil,” that is, the fatherland, and its history and
peasantry as the force from which springs the essence of a race, he
remains in the sphere of life’s realities. Perhaps unaware of it
himself, he was nevertheless borne upward by this current. The question
arises as to what effects this ideology had on political life.

It is clear that the emphasis on will and faith gave special weight to
political demands. After the Treaty of Versailles the political demands
of Germany were aimed at recovering freedom and equality among the
peoples as a still fettered great power. This had been the objective of
German statesmen even before Hitler. The other great powers had certain
misgivings about recognizing Germany again as such. Rosenberg fought to
remove these misgivings. His weapon was his pen. The Tribunal has
allowed me to present in evidence a group of excerpts from Rosenberg’s
speeches and writings. I submitted it in my Document Book 1, Volume II.
In view of the quantity of material and of my intention to submit only
the most important matter, I depend on the Court’s being familiar with
my document book.

In the first place I wish to call attention to the effect which these
works had on German youth. I may recall the witness Von Schirach’s
testimony. I repeat verbally:

    “At conventions of youth leaders, at which he spoke once a year,
    Rosenberg chiefly chose educational, character-building
    subjects. I remember, for instance, that he spoke on loneliness
    and comradeship, personality and honor, and so forth. At these
    conventions of leaders he did not deliver any speeches against
    Jews. As far as I remember, he did not touch on the religious
    problem of youth either, in any case not to the best of my
    memory. Mostly I heard him talk on such subjects as I have just
    mentioned before.”

The attitude of youth was actually better than before the taking over of
power. Idleness, the root of all evil, had ceased and had been replaced
by work, the fulfillment of duty, the aiming at ideals, patriotism, and
the will to get ahead. It was a fatality here too, that through Hitler’s
policy these values were directed in the wrong manner.

The charges by the Prosecution that Rosenberg was the advocate of a
conspiracy against peace, of racial hatred, of the elimination of human
rights, of tyranny, of a rule of horror, violence, and illegality, of
unbridled nationalism and militarism, of a German master race, I could
already refute by pointing to the excerpts from _The Myth of the 20th
Century_, which the Prosecution itself has submitted as evidence for the
truth of its assertions. In reply to this, in order to refute this
assertion by the Prosecution, I want to point in particular to the
following facts: To prove Rosenberg’s honest struggle for the peaceful
existence of nations side by side I wish to refer to his speech in Rome
in November 1932 before the Royal Academy of Rome (reproduced in _Blood
and Honor_, Document Book 1, Page 150). In his speech in Rome Rosenberg
pointed to the fateful significance of the four great powers and
proclaimed—I quote his words:

    “Therefore he who strives in earnest to create a Europe which
    shall be an organic unit with a pronounced multiplicity of form
    and not merely a crude summation, must acknowledge the four
    great nationalisms as given to us by fate and must, therefore,
    seek to give fulfillment to the force radiating from their core.
    The destruction of one of these centers by any power would not
    result in a ‘Europe,’ but would bring about chaos in which the
    other centers of culture would also have to perish. In reverse
    it is only the triumph of the radiations in those directions
    where the four great forces do not come into conflict with each
    other which would result in the most dynamic force of creative
    being and organic peace, not an explosive forced situation such
    as prevails today, whereby it would guarantee to the small
    nations more security than appears possible today in the
    struggle against elementary force.”

To this line of thought Rosenberg, as Chief of the Foreign Political
Office of the Party, remained true. Unfortunately, he could only work
for it through his words. No witness could confirm in this courtroom
that Rosenberg had any influence on actual foreign policy, whether it
was directed by Neurath, Ribbentrop, Göring, or Hitler himself. Neither
in the Austrian, nor in the Czech, nor in the Polish, nor in the Russian
subject matter has his name been mentioned in connection with the charge
of participation in aggressive wars. Everywhere he was placed before
accomplished facts. In the war against the Soviet Union he received his
orders only when the war against Russia had already been established as
an acute possibility. He did not stir up the Norwegian campaign, but
passed on personal information in accordance with his duty.

Now, as regards Rosenberg’s speeches and writings on the problems of
general foreign policy, he advocated the Anschluss of the Austrians, who
had been forcibly excluded from the Reich, as a demand born of the right
to self-determination which had been proclaimed by the Allies
themselves. The revision of Versailles was a postulate of justice
against a violation of the Treaty of 11 November 1918. To advocate the
German Armed Forces was, in view of the nondisarmament of the other
powers, a defense of the solemnly promised equality of rights.

I shall now take up the charge of racial hatred.

Rosenberg’s opinions in regard to the race question were the result of
racial research of international scientists. Rosenberg repeatedly
asserts (I refer again to the opinion stated in Document Book 1, Volume
II) that the purpose of his racial political demands was not contempt of
race, but respect for it. I quote Page 70:

    “The leading moral idea of an approach to world history based on
    the laws of heredity belongs to our times and to our generation,
    being in full accord with the true spirit of the modern eugenics
    movement with regard to patriotism, that is, the upholding and
    expansion of the spiritually, morally, intellectually, and
    physically best hereditary forces for our fatherland: only in
    this way can we preserve our institutions for all future times.”

These words embody the main theme of his demands, though their
originator was not Rosenberg, but Henry Fairfield Osborn, Professor at
Columbia University, who wrote them in discussion of the book by his
colleague in science, Madison Grant, _The Decline of the Great Race_.
This research, long before the existence of the Third Reich, led to
eugenic legislation in other countries, in particular to the American
Immigration Law of 26 May 1924, which was aimed at a strong reduction of
immigrants from southern and eastern Europe while favoring those from
the north and west of Europe.

I do not think I have to say that I am not hereby defending the murders
of those mentally diseased in Germany as an alleged eugenic measure.
With this measure, too, Rosenberg did not have the slightest connection.

For Rosenberg it was a question of the spiritual strengthening and
consolidation of the German nation, indeed of the Aryan race. He would
like to have his ideology considered in that light, above all _The Myth
of the 20th Century_. His preaching of the significance of race in
history did not call—I stress this again—for race contempt, but for
consideration and respect of race, and demanded the acknowledgment of
the racial idea only by the German people, not by other nations. He
considered the Aryan nations as the leading ones in history. And if in
doing so he underestimated the significance of other races, as for
instance the Semitic ones, he, in his praise of Aryan races, did not
think of the German nation alone, but of the European nations in
general. I refer to his speech in Rome of November 1932.

I am keeping within the framework of historical truth in pointing to the
fact that anti-Judaism is not an invention of National Socialism. For
thousands of years the Jewish question has been the minority problem of
the world. It has an irrational character which can be understood to
some extent only in connection with the Bible. Rosenberg was a convinced
anti-Semite, who in writing and speech gave expression to his
convictions and their foundations. I have already emphasized that even
such different personalities as Von Papen, Von Neurath, and Raeder are
still of the opinion that the predominance of the Jewish element in the
entire public life had reached such proportions that a change had to
come about in this respect. The concrete result of that predominance,
the fact that the Jews in Germany when attacked knew how to repay in
kind, sharpened the anti-Semitic fight before the accession to power.

I wanted to present to the Tribunal a selection of Jewish literary
attacks on the national feeling at that time, but the Tribunal ruled
that my application was irrelevant; as these writings were not
introduced as evidence I cannot speak about them. It is, however, an
injustice to Rosenberg to assert that blind hatred of the Jewish race
had goaded him into that controversy. He had before his eyes concrete
factual evidence of the disintegrating activities of Jews.

It appeared as if the Party program of placing Jews under a generous law
of aliens would be realized. It is true that Goebbels at that time
arranged a one-day boycotting of Jewish stores. Rosenberg, however, in
his speech of 28 June 1933, the anniversary of the Versailles Treaty, in
the assembly hall of the Reichstag in the Kroll Opera House, declared
that it was no longer necessary that in the capital of the Reich 74
percent of all lawyers should be Jews, and that 80 to 90 percent of the
physicians in Berlin hospitals should be Jewish; about 30 percent of
Jewish lawyers in Berlin would suffice amply. In his speech at the Party
Rally in September 1933 Rosenberg stated in addition, and I quote:

    “In the most chivalrous way, the German Government has excluded
    from the percentage stipulations those Jews who have fought for
    Germany at the front, or who have lost a son or a father in the
    war” (Document Book 1, Page 153a).

In his speech at the Kroll Opera House Rosenberg gave the reason for
this measure, saying that there was no intention thereby to discriminate
against a whole people, but that it was necessary for our younger German
generation, who for years had had to starve or beg, now to be able to
obtain bread and work too. But despite his strong opposition to the Jews
he did not want the “extermination” of Jewry, but advocated as the
nearest aim the political expatriation of Jews, that is, through
classifying them by law as aliens and giving them protection as such. In
addition, he granted to the Jews a percentage access to nonpolitical
professions, which still by far exceeded the actual percentage of Jews
in the German population. Of course, his final aim was the total
emigration of the Jews from Aryan nations. He had no understanding and
appreciation of how great a loss to the Aryan nations themselves such an
emigration would be in cultural, economic, and political respects. But
one will have to admit that he believed that such an emigration would
prove useful for the Jews themselves, first, because they would be set
free from all anti-Semitic attacks, and also, because in their own
settlement area they might live unhampered and according to their own
ways.

The dreadful development which the Jewish question took under Hitler,
which he justified as being a reaction against the policy pursued by
emigrants, was never more regretted by anyone than by Rosenberg himself,
who blames himself for not having protested against the attitude of
Hitler, Himmler, and Goebbels as firmly as he protested against Koch’s
actions in the Ukraine. Nor does Rosenberg hesitate to admit that his
suggestion to Hitler to shoot 100 Jews instead of 100 Frenchmen after
the recurring murders of German soldiers was an injustice born of a
momentary feeling—despite his belief in its formal
admissibility—because, from the purely human standpoint, the real basis
for such a suggestion was lacking, namely, the active participation of
those Jews.

I have returned to this case again, as in my opinion it is the only
instance where Rosenberg desired retribution by the death of Jews. On
the other hand, one must insist with the greatest emphasis that there is
no proof of Rosenberg’s having been aware of the extermination of five
million Jews. The Prosecution accuses him of making preparations for an
anti-Semitic congress as late as 1944, which did not take place only
because of the course of the war. What point could such a congress have
had, had Rosenberg known that the majority of the Jews in Europe had
been exterminated already?

Rosenberg had no faith in democracy, because in Germany it led to a
splitting up into numerous parties and a constant change of government,
and finally made the formation of an efficient government impossible.
Another reason for his not having faith in democracy was that non-German
democratic powers did not stand by their democratic principles in
certain cases where they might have been of benefit to Germany, for
instance in 1919, when Austria was willing to be incorporated in
Germany, and later on at the plebiscite in Upper Silesia. But Rosenberg
did not for that reason turn toward tyranny. In connection with
Paragraph 25 of the Party Program he said in his comments, on Page 46:

    “This central power”—referring in this case to the Führer’s
    power—“should have as advisers representatives of the people as
    well as those councils which had evolved in the course of time”
    (Document Book 3, Page 6).

And in his speech in Marienburg on 30 April 1934 on the state of the
German Order, he said that the National Socialist State must be “a
monarchy on a republican foundation.” I quote:

    “From that standpoint the State will not become a deified end in
    itself, neither will its leader become a Caesar, a God, or a
    deputy of God” (Document Book 1, Page 131).

In his speech on German law of 18 December 1934, Rosenberg stressed:

“In our eyes the Führer is never a tyrannical commander” (Document Book
1, Page 135). Only in such terms was a protest against the development
of tyranny possible.

The development passed over Rosenberg and degenerated. Rosenberg himself
learned this while acting as Minister for the East. Rosenberg was an
idealist, but he was not the unscrupulous man who inspired the State and
the Führer to commit crimes. I believe, therefore, that he should not be
included in Mr. Justice Jackson’s Indictment (Page 8), where it says
that Rosenberg belonged to those men in Germany who have been “the very
symbols of race hatred, of the rule of terror and violence, of arrogance
and cruel power.”

In looking through Rosenberg’s writings one finds, on the contrary,
statements and expressions which give a decided impression of tolerance.
He says, for example, in his Myth, of the national Church which he
aspired to:

    “The German Church cannot pronounce compulsory dogmas which
    every one of its followers is compelled to believe at the very
    risk of losing his everlasting salvation.”

In his speech on ideology and dogma at the University of
Halle-Wittenberg, he called for tolerance toward all denominations with
a demand for “inner respect for every genuine denomination.” In his
speech on German intellectual freedom of 6 July 1935 he also spoke up
for the freedom of conscience. No document was presented which contained
a request by Rosenberg for criminal persecution of one of his numerous
ideological opponents, although he might easily have been prompted to do
so by their sharp attacks on his opinions.

Further, the Prosecution accused him of promoting militarism. Rosenberg
was indeed an admirer of the soldier’s profession and a soldierly
attitude toward life, but he also admired the peasant’s standards as the
basis of the national character. He advocated the creation of a people’s
army, both as the outward expression of Germany’s capacity as a
political ally and for the purpose of training and educating the people
at home. However, he denies having contemplated world conquest. On this
point I can refer to his speech on Germany’s Position in the World of 30
October 1933. There he offered peace to Russia on the occasion of the
German withdrawal from the League of Nations (Document Book 1, Page
147). I shall quote this passage, for it also proves that National
Socialism did not desire to interfere in the affairs of other countries:

    “We are ready at any time to maintain absolutely correct
    relations with Soviet Russia, because naturally we do not
    necessarily want to modify an ideology in the field of foreign
    policy and foreign relations.”

In the same speech he emphasizes that the avowal of an ideology he
describes as racial science is “not meant to be an expression of racial
hatred, but an expression of racial respect” (_Blood and Honor_, Page
377).

Mr. Justice Jackson called Rosenberg’s nationalism a “wild” one.
Rosenberg was passionate, but he wanted thereby to overcome class
conflict in the nation, which threatened its existence. For a clearer
understanding of the facts it may also be said ...

THE PRESIDENT: Dr. Thoma, the Tribunal would like you to finish your
speech before lunch, if you could possibly summarize some parts of it. I
don’t know whether that is possible.

DR. THOMA: I shall try to do that, Mr. President.

I once more refer to Mr. Jackson’s statement that Rosenberg’s
nationalism, or militarism, was “wild.” In this connection I should like
to refer only to the fact that such nationalism was a compensatory
symptom, which is easily found in a conquered country.

The accusation dealing with anti-Christianity and neopaganism is
something which I have already mentioned, and I should just like to
refer to it. I have dealt with the term “master race,” mentioning the
fact that these words are not found in Rosenberg’s works at all.

Concerning the Party Program, I stated that Rosenberg did not draft it,
but only supplied a commentary upon it, and that it is not a question of
what is contained in the Party Program, but rather with what its effect
was. I referred to the witness Funk, who stated that his first action
and his first program as Minister of Economics had no reference at all
to the Party Program, but was simply democratic and liberal.

The Party Program was adhered to neither in a positive nor a negative
sense. The government was carried on just as in other states, on the
basis of general necessity.

May it please the Tribunal, I shall turn to the charge that Rosenberg
was the delegate of the Führer for the supervision of all education and
spiritual ideology within the NSDAP. During the reading of the affidavit
by Dr. Eppe I pointed to the fact that Rosenberg, as head of this
office, had no executive power, and that Rosenberg interpreted the
duties of his office in such a way that he published magazines on all
cultural and scientific topics, especially the _NS Monatshefte_, the
polemic political contents of which, after 1933, were more and more
superseded by historical, scientific, and cultural subjects. On the
basis of all the literature at our disposal it is not in accordance with
the facts that Rosenberg interpreted his position as one from which to
sow hatred. After 1933 he mainly endeavored to intensify and promote new
definite talent. I have said in addition that this nonpolitical office
concentrated its efforts on exercising a regulating and guiding
influence on all noble and cultural values which manifested themselves.

May it please the Tribunal, I shall now turn to the topic: “Morality as
a basis of the Indictment.” I should like to ask the High Tribunal, even
though I do not propose to read this passage, to consider it as having
been presented by me. I refer to Pages 82a through 82g, and I should
like to ask the High Tribunal for permission not to read this matter and
yet to have this matter considered as having been submitted in its
entirety and read into the record. I shall now sum up ...

THE PRESIDENT: Dr. Thoma, all the speech will be taken as being
presented to the Tribunal. By your summarizing it, you are not excluding
it from the record of the Tribunal. The Tribunal will take note of it
all.

DR. THOMA: Thank you, Mr. President.

I shall now sum up in conclusion, and I should like to point out the
following:

[sm type begins]... that he is to be understood as a phenomenon of
psychic compensation, as often appears in a conquered people. In
addition, Germany, situated in the middle of Europe, was always exposed
to so many political and military dangers that military circles in
Germany, particularly after the entrance into the Ruhr in 1923, were
necessarily particularly sensitive on national questions. As a German
Balt he was brought up in a national way of feeling that led him to
expect more of self-assertion and mobilization for defense than of the
disappointments resulting from the international negotiations carried on
up to that time. He was always ready for an understanding based on equal
representation (Document Number 003-PS, Exhibit Number USA-603).[sm type
ends]

[sm type begins]Rosenberg has been further reproached with
anti-Christianity and neopaganism. It is true that this reproach was not
brought against his theory, but in connection with the persecution of
the Christian religion in all its forms which later resulted. Rosenberg
was an opponent of Christianity in its—as he sees them—present
historical forms, just as he was of Jewry. In place of Christianity he
strove for an idealistically, racially, and ethnically, conditioned
religion, an emotional religion of blood and soil.[sm type ends]

[sm type begins]He thereby attacked both Christianity and Jewry
theoretically, and hoped that the Christian Churches would gradually
become extinct among the German people; yet it will always have to be
admitted that Rosenberg staged no violent persecution. He carried on
this battle with intellectual weapons. Here, too, since he expected
freedom of conscience for himself, he advocated freedom of conscience
for others, and pointed out that with his _Myth_ and his new
religiousness he did not wish to confuse Church believers but to create
new spiritual ties for those, too, who had ceased to be believers in the
Church.[sm type ends]

[sm type begins]The term “master race,” to my knowledge, does not appear
in Rosenberg’s writings, nor does it fit into Rosenberg’s ideology,
which proceeds from the race as a general law. Therefore, Rosenberg
speaks of the Nordic, Mediterranean, Dinaric race, in relation to races
which are biologically different, not in the sense of an arrogant
judgment as to value, but in the sense of racial facts, in the sense of
honoring the entire human race of Europe.[sm type ends]

[sm type begins]As far as the Party Program is concerned, despite the
assertions of the Prosecution, it was not he, Rosenberg, who designed
it. Like so many other things, the meaning and action of the Party
Program has also been overestimated and exaggerated. It was one of the
first deeds of the National Socialist Government to design a
reconstruction program, of which the Defendant Funk said that almost any
other liberal or democratic government could accept it also. In place of
breaking up capital investment, the reinstatement of a sound money and
credit system was demanded. I could go on quoting a number of examples,
for instance the program of aliens’ status for Jews, which was not
carried out. The Party Program was never adhered to subsequently either
in the positive or the negative sense. Rules were simply enacted as in
other states, too, based on the necessities of the moment.[sm type ends]

[sm type begins]The entire ideology of the journalist and author
Rosenberg becomes intensified and is rendered more menacing to peace,
according to the Prosecution, by the fact that Rosenberg was nominated
the deputy of the Führer for the supervision of the entire intellectual
and ideological education of the NSDAP. How did this assignment come
about and what were the circumstances concerning it? On the basis of his
previous experience in the educational work of the Party, its
organizational leader asked Rosenberg whether he would not undertake a
common intellectual project. Rosenberg answered in the affirmative, if
the Führer so desired. Thereupon, on 24 January 1934, the Führer
appointed him chief of that office. It was a Party office and had
nothing to do with the schools, as is erroneously assumed. The office
had no right to issue directives to Reich offices; even any
correspondence with them had to be sent via the Party Chancellery.
Neither did it have any right to suppress books, et cetera. Even a right
to issue directives to the Party was not granted, the more so since the
branch school directors were also subordinated to the Reich leaders (SA,
SS, HJ). Therefore, from the very beginning Rosenberg did not consider
his work as representing the tasks of an intellectual police, but as an
executive and unifying work, as the central point of the expression and
realization of the factual and personal power of conviction and
initiative.[sm type ends]

[sm type begins]He had no offices in the various Gaue, not even
individual representatives; he agreed to the Gau education leader as his
deputy at the same time, in order to maintain a connection with
practical education in the country.[sm type ends]

[sm type begins]The office had many things to review in the course of
time, yet it remained limited in extent. It became subdivided into
various spheres of work; teaching and education proper, cultivation of
literature, the arts, cultural and general problems. About twice a year,
for the purpose of comparing tuition experiences, Rosenberg called
together the so-called “Working Community for the Instruction of the
Entire Movement.”[sm type ends]

[sm type begins]In it were represented the educational deputies of the
political leadership and its various subdivisions. They reported on
their work and expressed their suggestions. On the basis of these
suggestions, Rosenberg frequently lectured in the Gaue on appropriate
topics, and likewise induced his collaborators to handle such questions
in all the subdivisions. These are the two educational meetings which
the Prosecution mentioned by reason of their alleged “broad influence on
the community schools” as an indication of criminal activity (Volume V,
Page 48). This generally executive work found expression particularly in
the periodicals of the offices of Rosenberg’s department; primarily in
the N. S. _Monatshefte_, which after 1933 acquired a gradually
increasing polemical political content in the interest of handling
historical, cultural, and scientific topics. _Die Kunst im Deutschen
Reich_ achieved special significance by simply offering the most
beautiful examples in the way of contemporary plastic art, excellently
presented without discussion. The _Bücher Kunde_ offered a monthly cross
section of writings and literary contributions. The monthly periodical
_Musik_ devoted itself above all to serious art, the cultivation of the
German classics, and without any pettiness toward new creations. The
journal _Germanisches Erbe_ published contributions on research in early
history, the _Deutsche Volkskunde_ was devoted to games, folk songs,
peasant customs. _Deutsche Dramaturgie_ described the ambitions and
problems of the contemporary theater.[sm type ends]

[sm type begins]Besides this there were special exhibitions of the
lifework of great artists in Rosenberg’s exhibition building in Berlin,
and book exhibitions in various cities.[sm type ends]

[sm type begins]It is simply not true if the Prosecution declares that
Rosenberg used his assignment to disseminate hatred. The essence of his
entire work after 1933 went toward a profounder and large-scale
promotion of new positive talents.[sm type ends]

[sm type begins]Political polemics in these seven years had almost
entirely disappeared. But for the difficulties in the language, one
would find, in glancing through the journals and speeches, an honest
great effort, whether Rosenberg spoke to youth or to the technicians,
teachers, lawyers, workers, professors, women, at meetings of
historians, or before the Northern Society.[sm type ends]

[sm type begins]The heads of his offices were instrumental in publishing
and promoting valuable works of art: Classics of music, history of the
German ancestry, world political libraries, development of German
peasantry, and others. In the present impassioned days one is not
interested to know of this side of somebody’s lifework, and therefore I
only touch upon it; but I wish to emphasize that it was just that which
seemed to Rosenberg, since 1933, to constitute the essential part of his
work, and similarly he intended to devote himself in his old age
entirely to scientific-cultural research and teaching. I shall permit
myself a few more words about this later.[sm type ends]

[sm type begins]Contrary to some opinions which at first appeared
necessary, although some Individuals may perhaps have looked upon them
as rather petty, Rosenberg advocated at the universities of Munich and
Halle the right of examining new problems of our times as well as the
independence of scientific thinking. He declared that we would have to
“feel that we were the intellectual brothers of all those who once in
mediaeval times raised the flag for this free research” (Document Book
1, Page 134). Against certain attempts to identify certain scientific
physical theories with the Party, he protested in an official
declaration which rejected this danger of hairsplitting. “It is not the
task of the National Socialist movement,” he said in a speech about
Copernicus and Kant on 19 February 1939, “to make any regulations for
research other than necessarily connected with our philosophy of life”
(Document Book 1, Page 173).[sm type ends]

[sm type begins]When a certain trend toward mass statistics, peak
figures for the number of visitors, et cetera, developed in the
otherwise desirable progress achieved by the German Labor Front, he made
a determined stand in favor of emphasis on the personal element. He
rejected this idea of “mass production” in an address to youth with the
words: “One cannot receive art and culture like mass-produced,
ready-made clothes in a department store” (Document Book 1, Page 155).
Today poisoning of this youth is imputed to him, but on the contrary he
asked (Document Book 1, Page 161) for comprehension in teaching on the
part of everybody to whose care young people are entrusted, and he
decidedly rejected any orders in the intellectual field.[sm type ends]

[sm type begins]With regard to any form of collectivism, as has already
been mentioned, he impressed on youth the importance of comradeship, but
emphasized the personal element and the right to solitude. When on the
grounds of certain occurrences many voices criticized the teaching
class, Rosenberg began to fear lest general discrimination against the
profession might develop. He took a stand against this danger in two
speeches: at a great meeting in October 1934 at Leipzig, and later at
the conference of the N.S. Teacher’s League at Bayreuth (Document Book
1, Page 162), where he declared that the National Socialist movement
would step in and see that the teaching class be respected, just as it
would have done for all other professions.[sm type ends]

[sm type begins]By these brief allusions I mean to say that Rosenberg,
as a regulating and leading intellectual force, advocated high cultural
values and the rights of personality in a manner rendered convincing by
his attitude and motives. Throughout the whole Party it was no secret
that this activity involved profound opposition to the Propaganda
Minister. Rosenberg from the very beginning considered it a calamity
that culture and propaganda should be associated in one ministry. For
him art was a creed, propaganda a form of tactics.[sm type ends]

[sm type begins]As things at first could not be changed, Rosenberg
emphasized his attitude to the outside world by not attending a single
annual meeting of the Reich Chamber of Culture, in the firm hope that at
some later day another conception would win through.[sm type ends]

[sm type begins]Many things Rosenberg said did not fail to have their
effect and certainly prevented some harmful actions, but more, and
probably the most important, did not succeed because the legislative and
executive powers in the State lay in quite different hands, and these
finally, due to the war and in spite of the will to sacrifice, brought
about not the development of the National Socialist idea but its
degeneration. Moreover, this happened to an extent which Rosenberg could
not foresee.[sm type ends]

[sm type begins]It was seen that the foundations for the spiritual
education of the Party were not sufficient, and round about 1935 there
developed a wish to create a serious place for research and study. This
desire led to the idea later known as “high school,” which was intended
to take the form of an academy. Rosenberg considered the creation of
this academy as a task for his old age. Since it would have taken years
to provide tuition material and to choose suitable personnel, the Führer
authorized Rosenberg at the end of January 1940 to carry on the
preparatory work he had started on official orders. Thus, contrary to
what the Prosecution asserts, (Volume V, Page 48) the “high school” had
nothing to do with Rosenberg’s “Einsatzstab,” which was not even planned
at that time.[sm type ends]

[sm type begins]Mr. Justice Jackson, in his fundamental speech of 21
November 1945, expressed the desire, that this Trial should appear to
posterity as the fulfillment of the human yearning for justice. Mr.
Jackson furthermore declared that he had brought the Indictment because
of conduct which according to its plan and intention meant injustice
from the moral and the legal standpoint. In his report of 7 June 1945
Mr. Justice Jackson outlined that by this Trial those actions are to be
punished which since time immemorial have been considered as crimes and
are designated as such in any civilized legislation. The most difficult
problem, the greatest task, and the most tremendous responsibility for
the Tribunal lies concentrated in this single point: What is justice in
this Trial?[sm type ends]

[sm type begins]We have no code of laws, we have, however astonishing it
may sound, not even any fixed moral concepts for the relations of
nations among each other in peace and war. Therefore the Prosecution had
to be satisfied with the general terms “civilized conception of
justice,” “traditional conception of legality,” “conception of legality
built on sound common sense with regard to justice”; they have spoken of
“human and divine laws” (Volume VII, Page 78); the Hague Land Warfare
Rules refer in their preamble to the “laws of humanity” and to the
“demands of the public conscience.”[sm type ends]

[sm type begins]The basis of justice is without any doubt a morality,
the moral law; thus if we wish to determine what injustice among nations
is, what is contrary to the idea of justice among nations according to
international law, then we must broach the question of morality. The
answer will be: everything is moral which our conscience accepts as
being moral.[sm type ends]

[sm type begins]But what is the original cause of moral discrimination:
desire and happiness of the individual; or progress, improvement,
preservation of the life of an individual, of a people, of humanity; or
virtue; or duty?[sm type ends]

[sm type begins]How can we recognize what is good and what is bad? By
intuition, or by experience, or by authoritarian and religious
education? What is good and bad in the actions of a State, what is good
and bad in the mutual relationship between nations? Does a difference
exist between national morals and private morals? Can the State commit
any injustice at all? From Saint Augustine through Machiavelli and
Nietzsche to Hegel, Tolstoy, and the pacifist thinkers, yearning
humanity has received the most different answers to this question.[sm
type ends]

[sm type begins]And furthermore: Have fixed moral laws existed since
time immemorial or have changes in the ideals of nations brought about
changes in morals, too? What is the situation with regard to this
today?[sm type ends]

[sm type begins]I have already said once that, according to my opinion,
war itself is a brutality and a great crime of humanity against itself
and the laws of life. An essentially different question is whether this
conviction has already entered the conscience of humanity. We consider
ourselves far above the moral level of former nations and ages, and are,
for example, surprised to find that the highest representatives of Greek
morality such as Plato and Aristotle consider abandoning of children and
slavery to be absolutely right, or that in certain parts of East Africa
even today only robbery and murder give a man the stamp of heroism; on
the other hand it is absolutely compatible with our present-day idea of
morality that human beings are killed by hundreds of thousands in war
and that the products of human welfare and culture are wantonly
destroyed. Neither in a moral nor in a legal sense is this considered as
unjust.[sm type ends]

[sm type begins]If the Prosecution now charges the defendant with a
wrong in the moral or legal sense, it is its duty to present the
prerequisites for a punishment of the defendant, in such a way as to
convince the Court, for, according to the hitherto existing moral
concepts of nations, killing in war is not murder within the meaning of
the penal codes of the individual countries, and the measures of a
sovereign country in war or in peace have never been interpreted as an
offense within the meaning of these penal codes or as punishable and
immoral acts by the legal convictions of civilized humanity.
Christianity teaches us to return good for evil and to love one’s
enemies; this has been a world religion for 2,000 years, but many people
today will laugh outright if one should venture to claim certain
principles for the relations of nations between each other. In the face
of the yearning of humanity the Prosecution now desires to aid its
progress, even if only step by step, in this direction; it seeks to
achieve the end that “unequivocal rules” shall emerge from this Trial;
its mistake however, is that it wants to explain “traditional opinions
of justice” and civil criminal laws as the contents of a public
conscience which hardly exists any longer, compliance with which cannot
in any case be demanded retroactively of the defendants.[sm type ends]

[sm type begins]It is certainly very true that a profound change is
commencing today in the moral thinking of humanity, a regeneration of
the moral law of nations, and that this Trial before the High Tribunal
marks the beginning of this new era. However, it appears to me very
doubtful whether it is proper to impress a new kind of justice upon the
conscience of mankind by making an example of the defendants.[sm type
ends]

[sm type begins]It is easy to speak of human and divine laws, or of the
demands of public conscience, but we become greatly embarrassed for an
answer to the question: What is the substance and content of private
morality, when is an act immoral according to private morality? In their
concern over what is good or evil, some rely on religion, others have
been taught wisdom by experience and education, still others find an
explanation in the philosophers.[sm type ends]

[sm type begins]The State has in recent times taken up the moral
education of its citizens in increasing measure, not only through
criminal laws but also through “political education” or whatever other
name is used for it. Not only did the National Socialist State have a
great advantage here over the liberal states, but so do all totalitarian
states of the world: They have hammered moral principles into the minds
of their citizens, both of a private and public nature. They have
proclaimed moral ultimate values, such as fidelity, honor, and
obedience. By this means reflection concerning private and public morals
is made easier for the individual citizens and they are obliged by force
to uphold these ultimate values in the prescribed form. The German
people, who had become tired and resigned as a result of continual
warlike disputes and religious upheavals, willingly followed National
Socialism, even when the latter’s ethics were exalted to a faith; it
took this leap into the unknown, not with the idea of being taught by
this means to deceive people, to enslave them, to rob them, to kill
them, to torture them (see Volume VII, Page 78), but because it was in
search of moral elevation, an authoritative moral leadership in its
material and spiritual distress, and because nothing else was offered to
it, especially not by a liberal world conscience which did not know how
to make the fundamental principle of humanity a reality. The National
Socialist ethical conceptions were taught to Germans as _summum bonum_,
as the highest idea, and they believed the idea to be moral and good.
Then National Socialism came into conflict not only with ideologies, but
also with the plans of power of other states, because it could not find
the formula which would include not only perfection and life for
Germany, but also the interests and justice for all nations of the
world. To try to construe out of such inadequacy of a national ethical
idea, however inefficient, a punishable action, a conspiracy, is not
admissible in my opinion, if only because uniformly acknowledged
national morality has not yet developed, and unlimited national egotism
has not yet been dethroned and is still considered the highest moral
instance of the State.[sm type ends]

[sm type begins]It might be objected that the Germans should only have
followed the teachings of their great philosopher Kant in thought and
action, according to his “categorical imperative”: Act in such a way
that the maxim of your will could always serve as a principle for
general legislation! Then they would and should have recognized the
moral instability of National Socialist teachings. To that I can answer
with the words of the great English philosopher, John Locke, who says on
the question of what is good or evil in his _Essay Concerning Human
Understanding_; Book 2, Chapter XXVIII, Paragraph 6: “God has ordained
it in such a manner that certain activities produce general happiness,
preserve society, and even reward the doer. Man has discovered this, and
has established it as a practical rule. With that rule are connected
certain rewards and punishments either by God Himself (reward and
punishment of infinite size and duration in the Beyond) or by mortals
(legal penalties, social approval or condemnation, loss of honor); good
and evil which are not the natural effect and results of the actions
themselves. Then men look to those rules or laws, be they divine or made
by the State, and the laws of usage or of private opinion, and measure
their actions by them. They judge the moral value of their actions
according to whether they conform with the rules or not. Moral good or
evil therefore amounts only to conforming or not conforming our action
with a law which by the will and power of the legislator determines for
us what is good and evil.”[sm type ends]

[sm type begins]Therefore good and evil has been and still is today what
the authorities want or do not want. Christianity for centuries has been
preaching not only to Germans but to all nations of the world: “Let
every man be subject to the authority above him.” And the authorities do
not move beyond conscience and morality so long as the expansion of
national egotism is not opposed by clear laws and commandments and
irrefutable legal convictions.[sm type ends]

[sm type begins]The highest good, _summum bonum_, in international
morals of nations has not yet been mandatorily codified. There does not
exist any authoritative idea for the community of nations. Instead of
discussions on individual ethics and individual criminality, the
Prosecution should have submitted its accepted principles and criteria
as international common law, which was not done.[sm type ends]

[sm type begins]Therefore, with regard to the standpoint of the
prosecuting authorities as to the personal responsibility of acting
statesmen, I feel impelled to look upon this as a totally new philosophy
and one which is very dangerous in its consequences.[sm type ends]

[sm type begins]Apart from the misdeeds of the individual, which do not
satisfy even the minimum of moral conceptions, the ethical conceptions
of National Socialism and the actions resulting from them, insofar as
they are an expression of National Socialist ethics, cannot be subjected
to the judgment of a human forum, since they are an event of world
history. And the fate and guilt of the Defendant Rosenberg likewise
cannot be judged conclusively within the framework of this Trial. As to
the question of deciding the criminal guilt of the defendant, that is
the hard task of the High Tribunal; but his potential historical guilt
cannot and will not be judged by the Tribunal. Rosenberg, like all
persons of historical importance, has acted according to his character
and spirit, thereby perhaps becoming guilty in the eyes of history. The
more freedom of action a given personality has in his will, the clearer
the importance of conditions and the one-sidedness of all human
activities becomes, and out of an insignificant guilt there grows,
particularly in historical personalities, an enormous power which
decides the fate of many, and which remains a gloomy foreboding for
whoever lets it loose.[sm type ends]

[sm type begins]Goethe once said: “The doer never has a conscience; no
one feels his conscience but the observer.” But this maxim can never
mean that a person must not move and act to the best of his knowledge
and conscience, and particularly for his country’s sake. And we all know
that in reality nobody is capable of attaining the good he is striving
for. Just as his knowledge, so will his actions always be incomplete:
Any action we accomplish as free beings is an infringement on the
operating forces of the universe, which we are never able to assess.[sm
type ends]

Rosenberg was caught up in the destiny of his nation in a period of
severe foreign political oppression and internal dissension. He
struggled for cultural purity, social justice, and national dignity, and
rejected vehemently all elements which did not admit these high values
or consciously attacked them in an irreverent manner. With respect to
foreign policy he stood for an agreement between the four central powers
of the European continent, in full realization of the grave consequences
of a lost war. He acted in all loyalty and respect toward a personality
who appeared to give political shape and increasing power to his ideals.
After the political victory at home, Rosenberg proposed that the
polemics and other aspects of the period of struggle be subdued. He
stood for a chivalrous solution of the existing Jewish problem, for
spiritual and cultural instruction of the Party on a high plane and,
contrary to the statements of the Prosecution, he opposed any form of
religious persecution. He can hardly be reproached for emphasizing a
definite religious-philosophical conviction of his own.

The practical application of many of his views was practiced to an
increasing degree by authoritative agencies of the Party, although later
they were disregarded, especially after the outbreak of the war.
Finally, as has been discovered now, they were often turned into the
opposite of what Rosenberg fought for.

Until 17 July 1941 Rosenberg was excluded from participation in any
national legislation. Considered from the point of view of personal
responsibility, all his speeches and writings up to that time come
within the scope of unofficial journalistic activity which every
politician and writer must admittedly be free to engage in—a freedom
which the Tribunal has fundamentally acknowledged with regard to all
utterances by the statesmen of other countries during the unofficial
period of their career. It seems to be all the more significant that
Rosenberg as a private citizen did not call for war or for the
commission of any inhuman or violent acts.

As Minister for the East he advocated a generous solution in accordance
with the understandable national and cultural aspirations of the eastern
European peoples. He fought for this concept as long as there were any
prospects for its realization. Ultimately realizing that Hitler refused
to be persuaded, he requested his dismissal. The fact that Rosenberg
could not prevent many outrages from happening in the East cannot be
charged against him in the criminal sense. Neither the Armed Forces nor
the Police nor the Allocation of Labor were subject to his authority.
Whenever injustices or excesses came to his knowledge, he did everything
he could to counteract them.

For almost a whole year, Rosenberg endeavored to keep labor recruiting
on a voluntary basis. Later, when several age groups were drafted, he
protested against every abuse by executive agencies and always demanded
redress. Quite apart from the legitimate requirements of the occupation
power, his labor legislation for the Eastern Territories was necessary
for the establishment of order and the repression of arbitrary measures
as well as of dangerous idleness, increasing sabotage, and the growing
number of murders. There was a war on and it was a war area, not a
postarmistice period, much less one following final capitulation.

So far as he was informed of things and commanded any influence,
Rosenberg fought for his convictions. The fact that adverse powers
became stronger than he was cannot be brought up as a charge against
him. One cannot punish offenses, and at the same time punish those who
revolted against them. In view of the terrible extermination orders
which have now been disclosed, it is certainly possible to raise the
point whether Rosenberg could not have exerted much stronger opposition.
To expect this would, however, suppose an earlier knowledge of things
which he only learned about after the collapse. Should he be charged
with any carelessness it must not be forgotten that he felt it to be his
duty to serve the Reich engaged in the struggle for its existence, and
that terrible injuries were also inflicted upon the German nation,
injuries which Rosenberg was equally unable to recognize as war
necessities.

His official tasks, as for example the duties of the Einsatzstab in the
West and East, were carried out by Rosenberg without compromising his
personal integrity. The requisitioning of artistic and cultural objects
he always carried out provisionally, subject to final decisions by the
supreme authority and, as far as was at all possible, with proper
identification of the proprietor. Moreover, in the use of unclaimed
furniture for the benefit of air-raid victims in Germany, provision was
made for the subsequent indemnification of the owners based upon a
precise inventory.

In considering his entire personality we see that Rosenberg followed
with faith and devotion an ideal of social justice combined with
national dignity. He fought for it openly and honorably, went to prison,
and risked his life for it. He did not step in only when National
Socialism afforded the opportunity to begin a career, but at a time when
it was dangerous and asked only for sacrifice. In his speeches after
1933 he took his stand in favor of deeper spiritual formation, a new
cultural education, personality values, and respect for every form of
honest work. He accepted the gloomy days of that time as unfortunate but
inevitable accompanying phenomena of a revolution otherwise acclaimed as
having passed without bloodshed, without having in fact learned of the
secret details. He fully believed that good forces and ideas would
prevail over these other human imperfections. During the war he was at
the service of the Reich in accordance with his duty.

For 25 years, throughout the revolution and the events of the war, he
maintained his personal integrity and untainted character. He had to
witness with deep sorrow that a great idea, in the hands of those
possessed with the lust for power, was gradually abused, and in 1944, at
Party meetings, he protested against this abuse of power entrusted to
its holders. During this Trial he had to his dismay and horror to look
upon the evidence of the degeneration of his life’s ideal; but he knows
that his aspirations and the aspirations of many millions of other
Germans have been honorable and decent. Today he still adheres to his
honorable, honest, and humanly irreproachable conduct and, full of
sorrow for the wounds inflicted upon all nations and for the downfall of
the Reich, he awaits the sentence of a just Tribunal.

      [_The Tribunal adjourned until 11 July 1946 at 1000 hours._]




                              ONE HUNDRED
                          AND SEVENTY-SIXTH DAY
                         Thursday, 11 July 1946


                           _Morning Session_

THE PRESIDENT: The Tribunal will adjourn this afternoon at four o’clock
to sit in closed session.

Dr. Seidl, will you present the case of the Defendant Frank?

DR. ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords.
The Defendant Dr. Hans Frank is accused in the Indictment of having
utilized his posts in Party and State, his personal influence, and his
relation with the Führer, for the purpose of supporting the seizure of
power by the National Socialists and the consolidation of their control
over Germany. He is also accused of having approved, led, and taken part
in the War Crimes mentioned in Count Three of the Indictment, as well as
in the Crimes against Humanity mentioned in Count Four, particularly in
the war crimes and crimes against humanity committed in the course of
the administration of occupied territories.

As I have already explained in the case of the Defendant Hess, the
Indictment fails to adduce any facts in substantiation of these
accusations. It is similar in the case of the Defendant Frank; here
again the Indictment contains no statement of factual details to
substantiate the accusations. Like all the other defendants, the
Defendant Frank is accused of having taken part in a common plan which
is alleged to have had as its object the planning and waging of wars of
aggression and the commission in the course of these wars of crimes
which infringe upon the laws and customs of war.

The evidence has shown that the Defendant Frank joined the National
Socialist Party in the year 1928. Both before and after the assumption
of power by the National Socialists he was concerned almost exclusively
with legal questions. The Reich Law Department was under his control as
Reichsleiter of the Party until the year 1942. After Adolf Hitler’s
appointment as Chancellor, Frank became the Bavarian Minister of
Justice. In the same year he was appointed Reich commissioner for the
co-ordination of legal institutions. This task consisted in the main of
transferring to the Reich Ministry of Justice the functions of the
administrative legal departments of the component states of the Reich.
That was completed by the year 1934. When the affairs of the Bavarian
Ministry of Justice had been transferred to the Reich, the office of the
Defendant Frank as Bavarian Minister of Justice came to an end. In
December 1934 he was appointed Reich Minister without Portfolio. In
addition he became, from 1934 onward, President of the Academy for
German Law, which he himself had founded, and President of the
International Chamber of Law. Finally, he was the Leader of the National
Socialist Lawyers Association.

This list of the various posts held by the Defendant Frank in Party and
State would alone be sufficient to show that his work was almost
exclusively concerned with legal matters. His tasks were in the main
confined to the execution of Point 19 of the Party Program, which
demanded a German common law. And in actual fact almost all speeches and
publications by the Defendant Frank, both before and after the
assumption of power by the National Socialists, dealt with legal
questions in the widest sense of the term.

In the course of his examination in the witness box, the Defendant Frank
testified that he had done everything he could to bring Adolf Hitler to
power and to carry out the ideas and the program of the National
Socialist Party. But whatever the defendant undertook in this respect
was done openly.

The aims of the National Socialists before they assumed power can be
expressed in a few words: Liberation of the German people from the
shackles of the Versailles Treaty; elimination of the mass unemployment
which had arisen in consequence of that treaty and the unreasonable
reparations policy of Germany’s former enemies; counteraction against
the symptoms of degeneracy—political, economic, social, and
moral—connected with that unemployment; and finally, the restoration of
the sovereignty of the Reich in all spheres.

The Prosecution was unable to produce any evidence to show that the
revision of the Versailles Treaty was, if necessary, to be carried out
by violent means and by war. The political, military, and economic
situation in which Germany found herself before the assumption of
power—a situation in which it could only be a question of eliminating
the terrible consequences of the economic collapse and of enabling seven
million unemployed again to play their part in the economic
process—could not but make any serious thought of a war of aggression
appear futile.

Moreover, the evidence brought forth nothing to show the existence of
the common plan as stated in Count One of the Indictment, as far as one
understands thereby a definite and concrete plan among a narrow uniform
circle of persons. The evidence, in particular the testimony given by
the witness Dr. Lammers and the defendant himself in the witness box,
has shown on the contrary that Frank did not belong to the circle of
Hitler’s closer collaborators. The Prosecution was unable to present to
the Tribunal a single document dealing with important political or
military decisions with which the Defendant Frank was connected. In
particular, the Defendant Frank was not present at any of the
conferences with Hitler which the Prosecution considers especially
important in proving the alleged common plan, the minutes of which
conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to
34.

The only statute which is important in this connection is the Law on the
Reintroduction of General Conscription of 16 March 1935. The facts have
already been explained, and will be further enlarged upon, which led to
the promulgation of that law and why it cannot be looked upon as an
infringement of the Versailles Treaty. The Defendant Frank signed that
law in his capacity as Reich Minister, as did all the other members of
the Reich Government. That law, which had as its object the
restoration—at least in the military sphere—of the sovereignty of the
German Reich, did no harm to any other nation. Nor did the content of
that law, or the circumstances which led to its enactment, admit the
conclusion that it was part of a common plan with the object of
launching a war of aggression.

The German people had been obliged to realize, during the preceding 17
years, that the voice of a nation without military power, and in
particular a nation in Germany’s geographical and military situation,
cannot make itself heard in the concert of nations if it has not at its
disposal adequate instruments of power. The Government of the Reich
faced the consequences of this realization after equality of rights had
been promised the German people over and over again for 14 years and
that promise had not been kept, and in particular after it had become
clear in the years 1933 and 1934 that the Disarmament Conference would
not be capable of fulfilling its appointed functions. For the rest, I
refer to the proclamation of the Reich Government to the German people,
which was issued in connection with the publication of that law.

Further, the work of the Defendant Frank, even after the assumption of
power and up to the beginning of the war, was confined almost
exclusively to the execution of tasks connected with the leadership of
the Academy for German Law and the National Socialist Lawyers
Association. The objects of the Academy for German Law are apparent from
the law concerning its establishment of 11 July 1933. It was intended to
encourage the reform of German legal procedure and, in close and
constant co-operation with the appropriate legislative authorities, to
put the National Socialist program into practice in the whole sphere of
law. The academy was under the supervision of the Reich Minister of
Justice and the Reich Minister of the Interior. The function of the
academy was to prepare drafts of statutes; legislation itself was
exclusively restricted to the Reich ministries for the various
departments.

One of the tasks of the academy was to exercise the functions of the
legal committees of the former Reichstag. In actual fact the work of the
academy was done almost exclusively in its numerous committees, which
had been established by the defendant. Acceptance into the academy was
not dependent on membership in the Party. Most of the members of the
academy were legal scholars and eminent legal practitioners who were not
Party members. Moreover, it is well known that the Academy for German
Law kept up close relations with similar establishments abroad and that
numerous foreign scholars gave lectures in the academy. These facts
entirely exclude the assumption that the academy could have played any
important part in the common plan alleged by the Prosecution. The same
is true of the position of the Defendant Frank as leader of the National
Socialist Lawyers Association.

Adolf Hitler’s attitude toward the conception of a State founded on law,
insofar as any doubt could still have been entertained about it, has
become perfectly clear through the evidence presented at this Trial.
Hitler was a revolutionary and a man of violence. He looked on law as an
impeding and disturbing factor in the realization of his plans in the
realm of power politics. Incidentally, he left no doubt about this
attitude of his and discussed the subject of the State founded on law in
a number of speeches. He was always very reserved in his dealings with
lawyers, and for this reason alone it was impossible from the outset
that any close association could have developed between him and the
Defendant Frank. The Defendant Frank considered it his life’s work to
see the conception of the State founded on law realized in the National
Socialist Reich and, above all, to safeguard the independence of the
judiciary.

The Defendant Frank proclaimed these principles as late as 1939, before
the outbreak of war, in a great speech he made before 25,000 lawyers at
the final meeting of the Congress of German Law at Leipzig. Among other
things he declared on that occasion:

    “First, no one should be sentenced who has not had an
    opportunity of defending himself.

    “Second, no one shall be deprived of his property, provided that
    he uses it unobjectionably from the point of view of the
    community, except by judicial sentence. Legal properties in this
    sense include honor, freedom, life, and earnings.

    “Third, an accused person, no matter under what procedure, must
    be enabled to procure someone to defend him who is capable of
    making legal statements on his behalf; and he must have an
    impartial hearing according to law. If these principles are
    applied to their full extent, then the Germanic ideal of law
    will be fulfilled.”

These principles constitute a definite repudiation of all methods
employed in a police-ruled State and imply, moreover, the definite
rejection of the system of concentration camps. The Defendant Frank had
actually spoken against the establishment of concentration camps before
the date indicated. The evidence has shown that in the year 1933, in his
capacity as Bavarian Minister of Justice, he was opposed to the
concentration camp at Dachau, that he urged the application of the
so-called legality principle, that is, the prosecution of all offenses
by the State, even in these camps, and that, over and above this, he
demanded the dissolution of the concentration camp at Dachau. That this
last point is a fact is shown by the evidence given by the witness Dr.
Stepp, who was questioned elsewhere.

The Prosecution also appears to see in the sentence, “Right is what
benefits the people,” an indication of the participation of the
Defendant Frank in the alleged common plan. Such a conclusion could only
be drawn in complete misapprehension of the idea which the Defendant
Frank wished to express by means of this sentence. This was merely a
challenge to the exaggeratedly individualistic legal idea. In the same
way as by the phrase, “The common good before one’s own,” the sentence
quoted is intended to express the demand for a legal system which, to a
greater extent than in previous years, should take account of common law
and socialist tendencies. It is in reality nothing more than a different
way of saying: _Salus publica suprema lex_.

These material differences alone would have been sufficient to make it
unthinkable that the Defendant Frank could have belonged to the inner
circle of Hitler’s collaborators. The differences of outlook in regard
to the functions of law were bound to become more pronounced in the
course of the war. It could therefore cause no surprise that after the
death of the former Reich Minister of Justice, Dr. Gürtner, it was not
the Defendant Frank who was appointed his successor, but the President
of the Peoples’ Court, Dr. Thierack.

Summing up, it may be said that there is no factual foundation for the
assumption that the Defendant Frank participated in a common plan, a
common plan which had as its object the waging of an aggressive war and
in connection therewith the commission of crimes against the rules of
war. Before I turn to the points of accusation brought against the
Defendant Frank within the framework of his career as Governor General,
I will refer shortly to his responsibility under penal law as a member
of the organizations accused of criminality.

So far as Frank’s responsibility as member of the Reich Government is
under investigation, I can here in the main refer to the statements
which I shall later make in the case of the Defendant Hess. The only
difference lies in the fact that whereas Hess, too, was only Reich
Minister without Portfolio, he had—as the Führer’s Deputy under the
Führer’s decree of 27 July 1934—a considerable influence on the
preparation of laws. That, however, was not the case with the Defendant
Frank. Frank had hardly any influence at all on the legislation of the
Reich. That is why he was cosignatory of so extraordinarily few Reich
laws. With the exception of the law of 16 March 1935, by which general
conscription was reintroduced, his name is to be found under none of the
laws which the Prosecution has presented to the Tribunal as relevant to
the proof of the criminal nature of the Reich Government as an
organization.

The Defendant Frank, in his capacity as Reichsleiter and Leader of the
Reich Law Department, was also a member of the Leadership Corps of the
National Socialist German Workers’ Party. An investigation of this point
of accusation seems all the less called for since in this respect no act
can be attributed to the Defendant Frank which fulfills the requirements
of any penal law. For the rest, here too I can refer to my statements in
the case of the Defendant Hess.

In Appendix A to the Indictment it is alleged that the Defendant Frank
was a general of the SS. The evidence has shown that Frank at no time
belonged to the SS and that he did not even have the honorary rank of a
general of the SS. On the other hand, he was an Obergruppenführer in the
SA. With respect to the application made by the Prosecution to declare
that organization as criminal, too, the same may be said as in the case
of the application to declare the Leadership Corps criminal. The Charter
and the Prosecution here again depart from the principle which hitherto
has been considered an indispensable component of any modern criminal
law practice, namely, that no punishment is admissible unless guilt has
been established in every individual case.

I now pass to the points of accusation in connection with the career of
the Defendant Frank as Governor General. When the Polish Government had
left the country after Poland’s military collapse, the German occupying
forces were faced with the task of building up an administration without
the help of any parliamentary, representation or any representatives of
the former Polish State. The difficulties arising out of this situation
were bound to be all the greater because, in spite of the comparatively
short time that the war had lasted, the war damage, especially to the
communications system, was not inconsiderable. Above all, however, the
establishment of an orderly administration was rendered more difficult
by the fact that the homogeneous economic area of the former Polish
State was divided into three parts. Of the 388,000 square kilometers
which made up the territory of the former Polish State, about 200,000
were taken over by the Soviet Union and 97,000 formed the Government
General, while the rest was incorporated in the German Reich. A change
came on 1 August 1941. On that date Galicia was annexed to the
Government General as a new district, whereby the territory of the
Government General was increased to an area of approximately 150,000
square kilometers with about 18 million inhabitants. This frontier
delimitation made it all the more difficult for the administration, as
the agricultural excess production all went to the Soviet Union, while
on the other, hand important industrial cities such as Lodz, and above
all the coal fields of Dombrowa, fell to the Reich.

Directly after the military collapse of Poland, a military government
was set up to cover the four military districts of East Prussia, Posen,
Lodz, and Kraków, Commander Von Rundstedt being placed at the head of
that government. The Defendant Frank became Supreme Chief of
Administration (Oberverwaltungschef). The military government ended on
26 October 1939 with the coming into force of the decree of the Führer
and Reich Chancellor concerning the administration of the occupied
Polish territories under the date of 12 October 1939. Under this decree
the Defendant Frank was appointed Governor General for the occupied
Polish territories which were not incorporated in the Reich and which
shortly afterward became known as the Government General.

As the time at my disposal is short, I will not go into detail on the
question as to whether the administration of the territories of the
former Polish State, jointly designated as the Government General,
should have conformed to the principle of _occupatio bellica_
(occupation of enemy territory), or whether it should not rather be
assumed that the principles of debellatio (complete subjection and
incorporation in a foreign state) were applicable in that case.

I come now to the question of the powers vested in the Defendant Frank
by virtue of his office of Governor General. According to Article 3 of
the Führer’s decree of 12 October 1939 the Governor General was directly
subordinate to the Führer. The same provision placed all branches of the
administration in the hands of the Governor General. In actual fact,
however, the Governor General had by no means such wide powers as it
would seem at first sight. The Führer’s decree itself provided in
Article 5 that the Ministerial Council for the Defense of the Reich
could also make laws for the territory of the Government General.

The Delegate for the Four Year Plan had the same power. Article 6
provided that, moreover, all supreme Reich authorities could issue
decrees necessary for planning within the German living space and
economic area and that these would be effective also for the Government
General.

Apart from this limitation of the authority of the Governor General as
provided in the Führer decree of 12 October 1939, other powers were
conferred at a later date which no less impaired the principle of
uniform administration. That is particularly true of the position of the
Plenipotentiary General for the Allocation of Labor. I refer at this
point to the appropriate documents presented by the Prosecution and the
Defense, in particular to the Führer’s decree of 21 March 1942, in which
it is expressly provided that the powers of the Plenipotentiary General
for the Allocation of Labor extend to the territory of the Government
General. The whole armament industry in the Government General was at
first in the hands of the OKW, but after the establishment of the Reich
Ministry for Armaments and War Production it came under the jurisdiction
of the latter.

The evidence has shown that in other directions, too, the principle of
uniform administration was extensively infringed upon. For this I refer
to the statements of the witnesses Dr. Lammers and Dr. Bühler and to the
content of the documents submitted by me, especially Document USA-135.
This deals with the directives in “special matters concerning
instructions Number 21 (Case Barbarossa),” in which it is expressly
provided that the commander-in-chief of the Army shall be entitled “to
order such measures in the Government General as are necessary for the
execution of his military duties and for safeguarding the troops” and in
which the commander-in-chief is empowered to delegate his authority to
the army groups and armies.

All these infringements of the principle of a uniform administration of
all special powers, however, pale beside the special position allotted
to the Reichsführer SS Himmler also in respect of the territory of the
Government General. The evidence, and particularly the testimony of Dr.
Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939
when the defendant was appointed Governor General, a secret decree was
issued in which it was provided that the Higher SS and Police Leader,
East was to receive his instructions direct from the Reichsführer SS and
Chief of the German Police, Himmler. Similarly, it is provided in the
decree of the Führer and Reich Chancellor for the Preservation of German
Nationality that the Reichsführer SS shall be directly empowered to
effect the planning of new German settlement areas by means of
resettlements. These two decrees conferred on the Reichsführer SS
Himmler powers which, from the very first day of the existence of the
Government General, tended to confront its administration with almost
insurmountable difficulties. It was very soon evident that the general
administration under the Governor General had at its disposal no
executive organs, in the true meaning of the term. Since the Higher SS
and Police Leader, East received his instructions and orders direct from
Reichsführer SS Himmler and refused to carry out instructions emanating
from the Governor General, it was very soon seen that in reality there
were two separate authorities ruling over the Government General. The
difficulties which thus arose were bound to become all the greater, as
Higher SS and Police Leader Krüger, who for no less than 4 years was
Himmler’s direct representative in the Government General, did not even
inform the administration of the Government General before carrying out
police measures.

It is a well-known experience in the life of any state that an
administration lacking executive police organs is in the long run not
capable of carrying out its appointed functions. This is true even under
normal conditions, but it must be all the more pronounced in the
administration of occupied territory. If we remember, moreover, that not
only did the Reichsführer SS Himmler issue his instructions direct to
the Higher SS and Police Leader, ignoring the Governor General, but that
over and above this the Offices III, IV, V, and VI of the RSHA also gave
direct orders to the Commander of the Security Police and the SD in
Kraków, we can well assess the difficulties with which the civil
administration of the Government General had to wrestle day by day.

Under these circumstances the Governor General had no choice but to make
every attempt to reach some form of co-operation with the Security
Police, unless he was prepared to relinquish any hope of building up a
civil administration in the Government General. And in fact the history
of the administration of the Government General—which lasted for over 5
years—is for the greater part nothing but a chronicle of uninterrupted
struggles between the Governor General and the administration on the one
hand, and the Security Police with the SD as represented by Reichsführer
SS Himmler and the Higher SS and Police Leader, East, on the other.

The same applies to the activity of Himmler and his organs in the field
of resettlement. As Reich Commissioner for the Preservation of German
Nationality, Himmler and his organs carried out resettlement measures
without even establishing previous contact with the administration of
the Government General or informing the Governor General.

The numerous protests of the Governor General, addressed to Dr. Lammers,
the Reich Minister and Chief of the Reich Chancellery, with regard to
the measures taken by the Reichsführer and the Higher SS and Police
Leader, East, and the difficulties they put in the way of the
administration of that territory, have been established by the evidence.
These protests led in the year 1942 to an attempt at redirecting the
relationship between the administration and the Police. In retrospect,
it can be said today as a result of the evidence that even this attempt
was only utilized by Himmler and the Security Police to undermine
internally and externally the position of the Governor General and his
civil administration.

By a decree of the Führer dated 7 May 1942 a State Secretariat for
Security was established in the Government General, and the Higher SS
and Police Leader was appointed State Secretary. According to Article II
of this decree, the State Secretary for Security also became the
representative of the Reichsführer SS in his capacity as Reich
Commissioner for the Preservation of German Nationality. The decisive
provision of this decree is contained in Article IV, in which it is
stated verbatim:

    “The Reichsführer SS and Chief of the German Police can issue
    direct instructions to the State Secretary for Security in
    matters pertaining to security and the preservation of German
    nationality.”

Herewith, the contents of the secret decree issued in 1939 on the
establishment of the Government General—which also provided that the
Higher SS and Police Leader, East was to receive his instructions direct
from the Berlin central offices and particularly from the Reichsführer
SS in person—was expressly, and now publicly, confirmed. It is true
that Article V of the Führer decree of 7 May 1942 provided that in cases
of difference of opinion between the Governor General and the
Reichsführer SS and Chief of the German Police the Führer’s decision was
to be obtained through the Reich Minister and Chief of the Chancellery.

The Chief of the Reich Chancellery, Lammers, was interrogated on this
subject when he appeared as a witness before this Tribunal. He testified
that insofar as he found it possible at all to gain the Führer’s ear in
these matters, the latter on principle invariably approved Himmler’s
view. This is not surprising if we remember Himmler’s position in the
German governmental system, particularly during the later war years.
This deprived the Defendant Frank of the last possibility of influencing
in any way the measures taken by Himmler and the Higher SS and Police
Leader, East.

In consequence of Article I, Paragraph 3, of the Führer decree of 7 May
1942 the scope of duties of the State Secretary for Security had to be
newly defined. Both the Higher SS and Police Leader and, backing him,
the Reichsführer SS attempted to bring as wide a field as possible under
their jurisdiction in connection with the new regulation of the
competence of the State Secretariat; on the other hand, the Governor
General, in the interest of the maintenance of some sort of order in the
administration, naturally tried to obtain control of at least certain
departments of the Regular Police and the Administration Police. There
is no doubt at all that it was the Police that emerged the victor in
these struggles.

On 3 June 1942 the Governor General was obliged—in a decree concerning
the delegation of duties to the State Secretary for Security—to declare
himself willing to transfer to the State Secretary all the departments
of the Security Police and the Regular Police. I have submitted this
decree to the Tribunal (together with its two Appendices A and B) in the
course of the evidence as Exhibit Number Frank-4. The two appendices
list all the functions of the Regular and Security Police that have ever
existed in the German police system. In Appendix A, which covers the
departments of the Regular Police, there are 26 headings in which not
only all the departments of the Regular Police are transferred to the
State Secretary for Security, but over and above that, almost all the
departmental functions of the so-called Administration Police. I will
only mention Heading 18 as one example among many. This transfers to the
Regular Police, and thereby to the Higher SS and Police Leader, all
matters connected with price control. What is true of the Regular Police
applies in even greater measure to the departments of the Security
Police. No change as compared with the earlier situation was brought
about by placing under the jurisdiction of the Higher SS and Police
Leader the whole of the Political and Criminal Police, political
intelligence, Jewish affairs, and similar departments; these
competencies were already his as leader of the Security Police and the
SD, and were made entirely independent of the administration of the
Government General under the secret decree of 1939. Departments were
also transferred to the State Secretary for Security which had only the
remotest connection with the tasks of the Security Police, for example,
matters such as the regulation of holidays and so on.

Of considerable importance are the two last headings in the Appendices A
and B, in which it is expressly provided that at conferences and
meetings, particularly with the central Reich authorities, on all
matters pertaining to the Regular and Security Police, the Government
General—not the Governor—should be represented by the Higher SS and
Police Leader. Therewith any competency possessed by the Governor
General, even in regard to comparatively unimportant branches of the
Administration Police, was transferred to the organs of Reichsführer SS
Himmler, and the Government General was thus deprived of even the last
remnants of an executive of its own.

Only by considering these facts and the development of the conditions
obtaining between administration and police in the Government General is
it possible to form an even approximately correct appreciation of the
events in the Government General, which form part of the subject of the
Indictment in this Trial.

Your Lordships, the Prosecution seeks to prove its accusations against
the Defendant Dr. Frank in the main by quotations from the defendant’s
diary. In this connection I have the following basic observation to
make.

That diary was not kept personally by the Defendant Frank but was
compiled by stenographers who were present at Government conferences and
other discussions of the Governor General. The diary consists of 42
volumes with no less than 10,000 or 12,000 pages of typescript.

With one exception, the entries do not represent the outcome of
dictation by the defendant, but take the form of stenographers’
transcripts. For the greater part—and this is evident from the diary
itself—the authors of this diary did not record the various speeches
and remarks word for word, but made a summarized version in their own
words. The entries in the diary were not checked by the defendant,
nor—again with one single exception—were they signed by him. The
attendance lists stapled into several volumes of the diary—they are
only contained in such volumes as relate to Government
conferences—cannot be looked upon as a substitute for a confirmatory
note.

Moreover, the evidence has clearly established that very many entries in
the diary were not made on the basis of personal observations but came
about through the fact that the author was told by participants about
the subjects of Government meetings or other conferences after they had
taken place, and then expressed it in the diary in his own words.
Moreover, by an examination of the diary it can easily be ascertained
that the entries cannot be considered complete.

All these facts bring us to the conclusion that the material evidential
value of this diary must not be overestimated. The evidential value of
this diary can in no way be compared with the evidential value of
entries made personally by the person concerned.

Above all, however, it seems to me essential to point out the following:
The contents of any document are of material evidential value only
insofar as the document is appreciated in its entirety. The diary of the
Defendant Frank with its 10,000 or 12,000 pages is one uniform document.
It is improper to put in as evidence certain individual entries without
showing the context in which alone some of them can be understood. But
it is particularly improper—and this infringes upon the principles of
any presentation of evidence—to select from some uniform whole, such as
a long speech, a few sentences and put them in as evidence. In Document
Book Number 2, I have listed a few examples of this and hereby refer to
them.

As the Defendant Frank himself rightly pointed out in the witness box,
the diary is a uniform whole; only in its entirety can it be probative
and form part of the presentation of evidence. I have read through that
diary of more than 10,000 pages and can only confirm his opinion. And
that was why I did not use individual entries in presenting my evidence
but put in the whole diary.

If I myself, in presenting evidence, have read certain single entries
from the diary and if in the course of my present address I shall quote
a few more passages from it, then, just as in the case of the extracts
put forward by the Prosecution, their evidential value can certainly be
gauged only within the framework of the whole diary.

The following may also be looked upon as having been established by the
evidence: As the diaries show, and as is evident in particular from the
testimony given by the witnesses Bühler, Böpple, and Meidinger, the
Defendant Frank in his capacity as Governor General often made two or
three improvised speeches in the course of one day. The extracts from
the diary presented by the Prosecution consist, for the most part, of
single sentences from such speeches. If we take into consideration both
the temperament of the defendant and his habit of expressing himself in
an incisive manner, then that is another reason which tends to reduce
the probative value of these extracts from the diary. And we actually do
find many diary entries which flatly contradict other entries on the
same subject occurring a little earlier or later.

In connection with the many speeches made by the Defendant Frank, the
following must not be left out of consideration and may also be looked
upon as established by the evidence: It was a foregone conclusion that
the Defendant Frank, as an avowed champion of the idea of a State
founded on law and of the independence of the judiciary, would come into
increasingly sharp conflict with the representatives of the police-state
system; this developed to an even greater degree in the course of the
war, both within the Reich and in occupied territory. The
representatives of the police state, however, were Reichsführer SS
Himmler and, for the area of the Government General, the Higher SS and
Police Leader, East, above all and in particular SS Obergruppenführer
and General of Police Krüger. The relation between the Defendant Frank
on the one hand, and Reichsführer SS Himmler and his representative,
Obergruppenführer Krüger, on the other, had been extremely bad even at
the time the Government General was established. They deteriorated still
more as the divergence of outlook concerning the tasks of the Police
came ever more openly to the fore; and the Defendant Frank was forced to
lodge increasingly strong protests with the Chief of the Reich
Chancellery, Dr. Lammers, and the Führer himself regarding the violent
measures taken by the Security Police and the SD.

As I have already mentioned, the Governor General, lacking an executive
of his own, had no choice but to make repeated attempts to co-ordinate
the work of the general administration with that of the Police, in order
to be in a position to carry out any administrative work at all.
Obviously these objectives demanded—at least on the face of things in a
certain degree—a conciliatory tendency toward the general attitude of
the Security Police and, above all, of the Higher SS and Police Leader,
East. Moreover, the evidence has further established that the tension
existing between the Governor General and the Higher SS and Police
Leader often reached such a degree that the Defendant Frank could not
but feel himself menaced and—to quote the words of the witness
Bühler—was no longer a free agent and master of his own decisions.

The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no
doubt on this point. Quite rightly, therefore, the witness Dr. Bühler
also pointed out that the Defendant Frank expressed himself with
particular vehemence when the Higher SS and Police Leader or the
commander of the Security Police and the SD were present at conferences,
while his utterances were made on quite a different note when he was
speaking to an audience composed only of members of the administration.
Even a cursory inspection of the diary will confirm this. All these
circumstances must be taken into consideration in assessing the
substantive evidential value of the Defendant Frank’s diary.

It should also be noted that these diaries constituted the only personal
property that Frank was able to rescue from the castle at Kraków. On his
arrest he handed over all the diaries to the officers who took him into
custody. It would have been an easy matter for him to destroy these
documents.

Your Lordships, I now turn to the individual accusations brought against
the defendant, and their legal aspects. The Defendant Frank is accused
of having approved of, and participated in, War Crimes and Crimes
against Humanity in the administration of occupied territory.

As the law stands, it rests on the principle that only a sovereign
state, not an individual, can be a subject of international law. To make
international law binding on an individual, such law itself would have
to lay down that a certain set of facts constitutes a wrong and that the
rule thereby established is applicable to an individual creating such a
set of facts. Only in that way can individuals, who under the law as it
stands are subject only to the criminal law applying in each state, by
way of exception be directly bound by international law.

Deviating from this rule, existing international law permits, in
exceptional cases, a state to punish the national of an enemy state who
has fallen into its power, if before his capture he has been guilty of
infringing the rules of war. But even here punishment is excluded if the
deed was not committed on the person’s own initiative, but can only be
attributed to his state of allegiance. Moreover, the conception of war
crimes and their factual characteristics are the subject of great
controversy both in judicial decisions and in legal literature.

Nor do the Hague Rules on Land Warfare, which form the Appendix to the
IVth Convention on the Laws and Customs of War on Land and purport to be
a codification of certain subject matter of the laws of war, list any
facts which could be interpreted as a basis for the criminal liability
of individuals. In Article 3 of this convention it is, on the contrary,
expressly provided that not individuals but the state which infringed
the rules may, under certain circumstances, be liable to pay an
indemnity and is also responsible for all acts done by persons belonging
to its armed forces.

In connection with the Hague Rules for Land Warfare of 1907 the
following should also be noted: The principles therein enunciated were
evolved from the experience of wars in the 19th century. Those wars were
confined in the main to the armed forces directly concerned therein.

Now the first World War already overstepped this framework, and not only
in respect of the geographical extent of conflict. On the contrary, the
war became a struggle for extermination of the nations involved, a
struggle in which each belligerent party utilized the whole of its war
potential and all its material and imponderable resources. War technique
having meanwhile been considerably perfected, the second World War was
bound altogether to destroy the framework set up for the conduct of war
by the Hague Rules for Land Warfare. That can be seen at a glance—the
condition of Europe today reveals it. If we remember in addition that in
Germany alone the greater part of almost every city has been destroyed
as a result of bombing raids; and not only that, but that considerably
more than a million civilians thereby lost their lives and that in a
single major raid on the city of Dresden almost 300,000 people were
killed, then it will be possible to realize that the Hague Rules for
Land Warfare, at any rate in respect of many activities coming under the
rules of war, can no longer be an adequate expression of the laws and
customs to be observed in waging war. But if any doubt should exist on
this subject, then that doubt will certainly be removed on contemplation
of the consequences of the two atom bombs which razed Hiroshima and
Nagasaki to the ground and killed hundreds of thousands of people.

Taking these circumstances into consideration, it is not possible to
adduce the provisions of the Hague Rules for Land Warfare, even
indirectly or by way of analogy, to establish individual criminal
liability. Seeing that this is the case, it must be looked upon as
impossible to give a clear and general definition of the factual
characteristics of so-called war crimes. Referring to the fact that even
Article 6 of the Charter of the International Military Tribunal only
purports to furnish a list of examples, it will be realized that the
question as to whether a certain line of conduct amounts to the
commission of a war crime or not can only be answered on the merits of
each particular case, and then only if all the circumstances are taken
into consideration.

In the course of the presentation of evidence for the personal
responsibility of the Defendant Frank, the Prosecution submitted as
Exhibit USA-609 (864-PS) minutes of a conference held by the Führer with
the Chief of the OKW on the future form of Polish relations to Germany.
This conference took place on 17 October 1939. It is alleged that these
minutes alone, by which the administrative goals of the Defendant Frank
in the Government General are said to be established, reveal a plan or
conspiracy at variance with the laws of warfare and humanity. This is an
inadmissible conclusion, at least insofar as the Defendant Frank is
concerned.

The Prosecution was unable to prove that the Führer entrusted the
Defendant Frank with a task in conformity with the administrative aims
demanded in that conference. Moreover, this seems very unlikely, because
the directives laid down at that conference dealt mainly with measures
which could not be carried out by the general administration, but only
by the Security Police, the SD, and the other organs and offices under
Reichsführer SS Himmler. In this connection special mention should also
be made of the powers vested in Reichsführer SS Himmler before the date
of that conference in his capacity of Reich Commissioner for the
Preservation of German Nationality. Actually, there is at the end of
Exhibit USA-609 a reference to a commission with which Himmler was
charged. In consideration of the fact that the Defendant Frank, in the
course of a short interview with Hitler about the middle of September
1939, had been told to take over the civil administration of occupied
Polish territory as Chief of Administration and had not seen Hitler for
a very long time after that, it can safely be assumed that the
directives laid down at the conference between Hitler and the Chief of
the OKW were intended, not for the Defendant Frank, but for Reichsführer
SS Himmler, who was the only person to have the necessary executive
organs at his disposal.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

DR. SEIDL: Mr. President, My Lordships, another document to which the
Prosecution has referred and which is also alleged to show the
criminality of the administrative aims of the Defendant Frank is Exhibit
Number USA-297, which is EC-344(16). The content of this document is a
discussion which the Defendant Frank is said to have had on 3 October
1939 with a certain Captain Varain. The Defendant Frank testified in the
witness box that he had never made any such or similar statements to an
officer. Moreover, a comparison of the dates shows that this
conversation, even if it should have taken place, can have no connection
with the subject of the conference between the Führer and the Chief of
the OKW, the latter not having been held until 17 October 1939, that is,
at a later date.

Not within the framework of the evidence presented in connection with
the personal responsibility of the Defendant Frank, but in connection
with the accusation of so-called Germanization, a document was submitted
with the Exhibit USA-300, 661-PS. This is a memorandum entitled “Legal
Aspects of German Policy toward the Poles from the Ethno-Political Point
of View.” According to a note on the title page, the legal part of this
was to serve as a model for the Committee of the Academy for German Law
which dealt with legal nationality questions. This document can have no
probative value in connection with the personal responsibility of the
Defendant Frank. He testified in the witness box that he had given no
instructions for the writing of that memorandum and that he was not
aware of its contents. Over and above this, it would seem that no
substantive evidential value can be attached to that document within the
scope of this whole Trial. Nor is it evident, from the memorandum, who
wrote it or who gave instructions that it should be written. Its whole
form and content would seem to show that it is not an official document,
but rather the work of a private individual. It was stated to have been
found at the Ministry of Justice in Kassel. But in actual fact there has
been no Ministry of Justice at Kassel for many decades. All these
circumstances would seem to indicate that the material probative value
of this document is, to say the least, extremely small.

But whatever the evidential value of minutes of conferences that took
place in the year 1939 on the occasion of the establishment of the
Government General, the following should be pointed out:

In judging the conduct of the Defendant Frank it is not of such
essential importance to know what Hitler, he himself, or other persons
said on one occasion or another, but what policy the Defendant Frank
actually pursued toward the Polish and Ukrainian peoples. And here there
can be no possible doubt—on the basis both of the general result of the
evidence and, in particular, of entries in the diary of the defendant
himself—that he repudiated all tendencies and measures designed to
effect Germanization. That is shown with great clarity by the extracts
from the diary which I have submitted to the Tribunal. Thus on 8 March
1940 he declared at a meeting of department chiefs, that is, to an
audience of men who as leaders of the various main departments were
deputed to put his directives into practice:

    “I have been charged by the Führer to look upon the Government
    General as the home of the Polish people. Accordingly no
    Germanization of any sort or kind is possible. In your
    departments you will please see that the two-language principle
    is strictly observed; you will also point out to district and
    provincial officers that no violence is to be used in opposing
    such safeguarding of Polish national existence. We have in a
    certain sense herewith taken over on trust from the Führer the
    responsibility for Polish national life.”

This declaration alone makes it apparent that the directives laid down
in the conference between Hitler and the Chief of the OKW on 17 October
1939, as contained in Exhibit USA-609, 864-PS, cannot possibly have been
made the subject of the duties with which the Defendant Frank was
charged. On the other hand, in view of the entire activities of the
Higher SS and Police Leader, East from the first day of his appointment,
it can safely be assumed that it was Reichsführer SS Himmler whom Hitler
charged with carrying out the directives laid down at his conference
with the Chief of the OKW.

A diary entry of 19 February 1940 is on the same lines; in this the
Defendant Frank advocates the formation of a Polish government or
regency council.

On 25 February 1940, at a service conference of officials of the
District of Radom, the Defendant Frank gave out, in program form, his
directives regarding general administration. On this occasion the
Defendant Frank said among other things:

    “1. The Government General comprises that part of the occupied
    Polish area which is not a component part of the German Reich
    ...

    “2. The Führer has decreed that this territory shall be the home
    of the Polish people. The Führer and Field Marshal Göring have
    impressed on me over and over again that this territory is not
    to be subjected to Germanization.

    “3. In accordance with the instructions we have received under
    the Führer’s decree Polish laws will remain in force here.”

On 7 June 1942 the Defendant Frank stated word for word as follows:

    “It is not as rulers by violence that we come and go in this
    country. We have no terroristic or oppressive intentions. Welded
    into the interests of Greater Germany, the living rights of the
    Poles and Ukrainians in this territory are also safeguarded by
    us. We have not taken away from the Poles and Ukrainians either
    their churches, their schools, or their education. We Germans do
    not wish to denationalize by violent means. We are sufficient
    unto ourselves, and we know that people must be born into our
    community and that it is a distinction to belong to it. And that
    is why we can look the world in the face in this our task.”

These examples could be amplified by many more, which all show clearly
that the measures taken, at any rate by Frank, were intended to care for
the Polish nation and that he repudiated any terror policy.

I now come to the so-called “peace-enforcing action.” When the campaign
against Poland had ended in September 1939 that did not mean that all
resistance had ceased. Very soon afterward new centers of resistance
sprang up; and when on 9 April 1940 German troops occupied Denmark and
Norway and on 10 May 1940 the German western army had begun their
attack, the leaders of the Polish resistance movement believed that, in
consideration of the general political and military situation, the time
for action had come. This resistance movement was all the more dangerous
because dispersed but not inconsiderable remnants of the former Polish
Army were active in it. A large number of entries in the diary of the
Defendant Frank show that the security situation deteriorated from day
to day during that period. Here for instance is an entry for 16 May
1940:

    “The general war situation requires that the most serious
    consideration be given to the internal security situation of the
    Government General. A large number of signs and actions lead to
    the conclusion that there exists a widely organized wave of
    resistance on the part of the Poles in the country and that we
    are on the threshold of violent happenings on a large scale.
    Thousands of Poles are already organized in secret circles; they
    are armed and are being incited in the most seditious manner to
    commit all kinds of violence.”

In consideration of this menacing general situation, the order was
given—as the diary shows, by the Führer himself—that in the interest
of the maintenance of public security all measures were to be taken to
suppress the imminent revolt. That order was given through Himmler to
the Higher SS and Police Leader. The administration of the Government
General at first had nothing to do with it. It intervened, however, in
order as far as possible to prevent the Security Police and the SD from
taking violent measures and to make sure that innocent people should
under no circumstances lose their lives.

The testimony given by the Defendants Frank and Seyss-Inquart in the
witness box and the evidence given by the witness Dr. Bühler have shown
that the efforts made by the administration of the Government General
were so far successful in that all the members of the resistance
movement rounded up by this special action were brought before a
drumhead court-martial introduced by a decree issued in 1939; and
moreover, the decisions of this court were not carried out before being
submitted to a Board of Pardon which in many cases modified the
sentence. The chairman of this Board of Pardon, until his appointment as
Reich Commissioner for the Netherlands, was the Defendant Dr.
Seyss-Inquart. As his testimony revealed, no less than half the death
sentences pronounced by the summary court were commuted to imprisonment
by the Board of Pardon. For the rest, in regard to the so-called
peace-enforcing action, I refer to the oral testimony and to the
extracts from the diary of the Defendant Frank which I read into the
record.

Within the scope of the charges against him personally, the Defendant
Frank is accused of having supported the resettlement plans of the Reich
Commissioner for the Preservation of German Nationality (Himmler) and of
having thereby also committed a war crime. There is no question but that
resettlement, even when carefully planned and well prepared, means great
hardship for those who are affected by it; in many cases a resettlement
means the destruction of a person’s economic existence. Nevertheless, it
seems doubtful whether resettlement constitutes a War Crime or a Crime
Against Humanity, for the following reasons:

Germany today is being flooded with millions of people who have been
driven from their homes and who own no property but what they carry with
them. The misery thereby caused, which is bound to increase to an
immeasurable degree in consequence of the devastation wrought by the
war, is so terrible that the bishops of the Cologne and Paderborn
ecclesiastical districts were moved on 29 March 1946 to bring this state
of affairs to the attention of the whole world. Among other things they
said:

    “Some weeks ago we found occasion to comment on the outrageous
    happenings in the East of Germany, particularly in Silesia and
    the Sudetenland, where more than 10 million Germans have been
    driven from their ancestral homes in brutal fashion, no
    investigation having been made to ascertain whether or not there
    was any question of personal guilt. No pen can describe the
    unspeakable misery there imposed in contravention of all
    consideration of humanity and justice. All these people are
    being crammed together in what remains of Germany without means
    for earning a livelihood there. It cannot be foreseen how these
    masses of people who have been driven from their homes can
    become other than peace-disturbing elements.”

My Lords, I am not mentioning this in order to point out the enormous
dangers connected with such measures, dangers which must arise, if only
out of the fact that in view of her planned deprivations of territory,
Germany—with an area reduced by 22 percent as compared with 1919—will
have to feed a population increased by 18 percent and that in future
there will be 200 inhabitants to the square kilometer. I am, further,
not pointing to this state of affairs to show that if the present
economic policy is continued and the so-called industrial plan is
maintained, Germany is heading for a catastrophe the consequences of
which cannot be confined to the German people. The evidential relevance
of these facts is however shown by the following:

Millions of Germans were driven from their ancestral homes in accordance
with a resolution taken at Potsdam on 2 August 1945 by President Truman,
Generalissimo Stalin, and Prime Minister Attlee.

GENERAL RUDENKO: ML President, excuse me for interrupting the
defendant’s counsel, but it seems to me that his legal considerations
and the criticism of the decisions taken at Potsdam have no bearing on
the present case.

DR. SEIDL: Mr. President, may I briefly define my attitude on this?

As far as I am concerned, I do not wish to criticize the decisions of
the Potsdam Conference. However, I am anxious to find out whether,
employing the rules of the Charter, a certain conduct which has been
alleged on the part of the Defendant Frank constitutes evidence for War
Crimes or Crimes against Humanity. It is only within the framework of
investigating that question that I find myself forced to go into the
decisions of the so-called Potsdam Conference and bring them up in my
argument.

THE PRESIDENT: Dr. Seidl, the Tribunal considers that your references to
the Potsdam Declaration are irrelevant, and the objection of General
Rudenko is therefore sustained. You are directed to go on to some other
part of your argument.

DR. SEIDL: Mr. President, I presume that the Tribunal have the
translation of my presentation at hand. I am not quite clear about the
question as to whether the final conclusion, which appears on Page 38,
is also affected by the decision of the Tribunal which you have just
announced.

THE PRESIDENT: It is affected by that, and I think you can pass on to
Page 40, where you begin to deal with the subject of the Jews. That is
the second paragraph on Page 40.

DR. SEIDL: Very well, Mr. President.

The Defendant Frank is further accused of having approved and carried
out a program for the extermination of Jews of Polish nationality,
thereby infringing upon the laws of war and humanity.

It is true that in a number of speeches given by the Defendant Frank in
his capacity as Governor General, he revealed his point of view on the
Jewish question. The extracts from the diary submitted by the
Prosecution in connection with this matter comprise practically
everything relevant thereto in the Defendant Frank’s diary of 10,000 or
12,000 typed pages. Nevertheless it shall not be denied that the
Defendant Frank made no secret of his anti-Semitic views. He spoke in
detail on this question when giving his testimony in the witness box.

But the question of the importance to be attached to the diary entries
submitted by the Prosecution is quite another matter. Almost all of them
consist of statements made by the Defendant Frank in speeches, but there
has not even been an attempt by the Prosecution to prove the existence
of a causal connection between these statements and the measures carried
out against the Jews by the Security Police.

As a result of the evidence, in particular of the testimony given by the
witnesses Dr. Bilfinger and Dr. Bühler, it can be looked upon as
certain—in connection with the secret decree concerning the
jurisdiction of the Security Police and the SD, of the year 1939, and
the decree concerning the transfer of certain tasks to the State
Secretary for Security—that all the measures concerning Jews in the
Government General were carried out exclusively by Reichsführer SS
Himmler and his organs. That is true for both the initiation and the
organization of ghettos and the so-called final solution of the Jewish
question.

In regard to the latter it may be said here, on the basis of the
testimony given by the witnesses Wisliceny and Hoess and of the
documents presented by the Prosecution, that these measures were
undertaken on Hitler’s express orders and that only a small circle of
persons was concerned in their execution. This small circle was confined
in the main to a few SS leaders of Department IVA, 4b of the RSHA and
the personnel of the concentration camps that had been selected for the
purpose.

The administration of the Government General had nothing to do with
these measures. The above facts also show that the anti-Semitic
statements by the Defendant Frank as submitted by the Prosecution have
no causal connection with the so-called final solution of the Jewish
question. Since a causal link must be established before the question of
illegality and guilt can even be considered, it does not seem necessary
to dwell further on the matter—all the less because the factual
elements of any punishable offenses can only be said to exist if at
least an attempt has been made, that is, if the commission of the
offense has at least been begun. Under the principles derived from the
criminal law of all civilized nations, the statements contained in the
diary of the Defendant Frank do not even constitute preparatory acts. In
consideration of the tense and sometimes extremely frangible
relationship between the Government General, on the one hand, and the
Reichsführer SS Himmler and the Higher SS and Police Leader Krüger, on
the other, it would also seem to be impossible to look upon the
statements of the Defendant Frank as acts of incitement or complicity.
The evidence has shown on the contrary that all the efforts of the
Defendant Frank to investigate successfully the rumors about the
elimination of the Jews, at least within his own administrative
district, failed completely. Only to complete the picture need it be
mentioned that the Concentration Camp of Auschwitz was not in the
Government General, but in that part of Poland which was annexed to
Upper Silesia. For the rest it cannot be clearly seen whether the
erection and administration of concentration camps is in itself to be
looked upon as fulfilling the requirements of a war crime or a crime
against humanity, or whether the Prosecution considers the establishment
of such camps solely as part of the so-called common plan. Setting aside
the crimes committed in the concentration camps and considering the
nature of concentration camps to be that in which people are confined
for reasons of state and police security on account of their political
opinions and without an opportunity of defending themselves in an
ordinary court of law, it appears at least doubtful whether an occupying
power should not have the right to take such necessary steps as this in
order to maintain public order and security. Apart from the fact that it
was not National Socialists and not Germans at all who first established
such camps, the following must be mentioned:

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

DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States):
Mr. President, we raise an objection. This matter is completely
irrelevant.

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

DR. SEIDL: Mr. President, I beg you to overrule the objection by the
Prosecution, and I should like to say the following: I am not interested
in criticizing an occupying power; I am only concerned with the question
of whether certain conduct of which the Defendant Frank has been accused
by the Prosecution constitutes the evidence of a criminal act.

I base my case on the assumption that what is proper for one occupying
power must, under similar circumstances, be allowed for another
occupying power, especially when it is a question of accusations made
against the defendant concerning actions carried out during the war,
while, the state of war with Germany having ceased on 8 May 1945 at the
very latest, these urgent reasons now perhaps no longer exist to that
extent.

THE PRESIDENT: The Tribunal sustains the objection. There is no evidence
of the statements which you have made. And in any event, the Tribunal
considers them entirely irrelevant.

DR. SEIDL: I assume, Mr. President, that in that case I may continue
with the last paragraph on Page 44.

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

DR. SEIDL: It is not necessary to go into this matter in more detail
here, because the evidence has shown that it was the Defendant Frank who
from the first day of the National Socialists’ assumption of power
fought against the police-state system and, above all, decried the
concentration camps as an institution which could in no way be made to
harmonize with the idea of a state founded on law. In this connection I
refer to the testimony given by the witness Dr. Stepp, to the
defendant’s own statement, and above all to the extracts from the
defendant’s diary which I put in evidence. The evidence has further
shown that the establishment and administration of the concentration
camps lay within the sphere of Reichsführer SS Himmler’s organization.
The camps, both in Reich territories and in all areas occupied by German
troops, were exclusively under the command of the SS-WVHA or the
Inspector General of the Concentration Camps. Neither the Governor
General nor the general administration of the Government General had
anything to do with these camps.

A further point of accusation against Frank is the charge that he
supported violence and economic pressure as a means of recruiting
workers for deportation to Germany. It is true that during the recent
war many Poles came to work in Germany. But in this connection the
following should be noted:

Even before the first World War, hundreds of thousands of Poles came to
Germany as vagrant workers. This stream of vagrant workers continued to
flow also during the period between the first and the second World Wars.
In consequence of the unfortunate demarcation line, the Government
General became an area that was distinctly overpopulated. The
agricultural excess production areas had fallen to the Soviet Union,
whereas important industrial areas were incorporated into the Reich.
Under these circumstances, and because there were no riches to be found
in the soil, the only valuable means of production lay in the working
capacity of the population. And this—at any rate for the first few
years—could not be utilized to a sufficient extent, because the other
production factors were lacking. In order to avoid unemployment, and
above all in the interest of maintaining public order and security, the
administration of the Government General was bound, if only for reasons
of State policy, to try to transfer as many workers as possible to
Germany.

There can indeed be no doubt that during the first years of the
administration most of the Polish workers went to the Reich voluntarily.
When later, in consequence of the continuous bombing raids, not only
Germany’s cities but also her factories crumbled to ruins and a not
inconsiderable part of Germany’s capacity for the production of war
materials had to be removed to the Government General for reasons of
security, the aim of the Defendant Frank necessarily was to put a stop
to any further transfer of labor. Over and above this, however, the
Defendant Frank had from the very beginning opposed all violent measures
in recruiting labor and solely for security reasons and in order not to
create new centers of unrest had insisted that no compulsory measures
were to be used and only propagandistic methods employed. That is
established by the testimony of the witnesses Dr. Bühler and Dr. Böpple,
and also by a large number of entries in the diary. In my presentation
of evidence I have already referred to several of them. Thus, for
example, the Defendant Frank said, among other things, on 4 March 1940:

    “... I refuse to issue the decree demanded by Berlin
    establishing compulsory measures and threatening punishment.
    Measures that, viewed from the outside world, create a sensation
    must be avoided under all circumstances. There is everything to
    be said against the removal of people by violence.”

On 14 January 1944 he made a similar statement to the Commander of the
Security Police. I quote:

    “The Governor General is strongly opposed to the suggestion that
    police forces should be used in recruiting labor.”

These quotations could be amplified by many more.

I refer further to the evidence presented by me in respect to the
treatment of Polish workers in Germany. The Defendant Frank continuously
and repeatedly pleaded for better treatment of the Polish workers in the
Reich.

For the rest, the legal position in the matter of recruiting foreign
labor does not appear to be quite clear. I do not intend to go further
into the legal questions pertaining to this matter. The defense counsel
for the Defendant Sauckel will go into this matter fully and I just wish
to say the following:

In the literature of international law it is undisputed that the
conception of vital stress (Notstand) as recognized in criminal law
would, in international law, too, preclude illegality in the case of a
given violation of law. If the vital interests of a State are
endangered, that State may, these interests being preponderant,
safeguard them if necessary by injuring the justified interests of a
third party. Even those writers who deny the application of the “vital
stress” theory to international law—they are in the minority—grant the
threatened State the “right to self-preservation” and therewith the
right to enforce “necessities of state” even at the cost of the just
interests of other States. It is a recognized principle of international
law that a State need not wait until the direct threat of extinction is
at its very threshold. There can be no doubt that after the entry into
the war of the United States, with which for all practical purposes the
productive capacity and the military might of almost the whole world
were gathered together to overthrow Germany, the German Reich was faced
with a situation which not only threatened the State as such with
extinction but over and above that placed the bare existence of the
people in jeopardy. Under these circumstances the right of the State
leadership to make use of labor forces, even those in occupied
territory, in this defensive struggle had to be acknowledged.

In addition, the following should not be passed over: The Prosecution
alleges that many, if not most of the foreign workers were brought to
Germany by force and that they were then obliged to do heavy labor under
degrading conditions. However one may look upon the evidence on this
question, the fact cannot be ignored that there are hundreds of
thousands of foreign workers still living in Germany who were allegedly
deported thither by force. They refuse to return to their homes,
although no one now attempts to hinder them. Under these circumstances
it must be assumed that the force cannot have been as great, nor the
treatment in Germany as bad, as is alleged by, the Prosecution.

Another allegation refers to the closing of the schools. It may be left
out of account whether international law recognizes any criminal
classification which would make the closing of schools appear as a war
crime or a crime against humanity. In time of war this would seem to be
all the more unlikely as it is well known that schooling in wartime was
considerably reduced, not only in Germany, but also in many other
belligerent countries. There is all the less reason to investigate this
question more thoroughly, as the evidence has shown that the schools
were for the most part already closed when the defendant assumed office
as Governor General. During his whole period of office he left no means
untried to reactivate, not only the elementary and vocational, but also
the higher forms of school. In this connection I will only mention the
university courses which he initiated.

The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree
issued by the defendant to combat attacks against German reconstruction
work in the Government General, dated 2 October 1943. There is no
question but that this decree setting up a drumhead court-martial is not
in conformity with what must be demanded of court procedure under normal
circumstances. However, this decree can only be judged correctly if the
circumstances which led to its promulgation are taken into
consideration.

In general it should first be said that the reconstruction work of the
administration of the Government General had to be carried on in a
difficult territory and under circumstances which must be among the most
difficult that have ever fallen to the lot of any administration. After
the collapse of the Polish State, the German administration found, so to
speak, a vacuum in which to organize and administer. In all spheres of
administration they had to start completely afresh. If, in spite of the
difficulties, they succeeded fairly quickly in repairing the war damage,
particularly in the communications system, then that is incontestably to
their credit.

The year 1940 was, however, to prove the only one in which the work of
restoration in the area of the Government General could be carried out
under fairly normal conditions. As the year 1941 began, the Germans
proceeded to concentrate their troops for action against the Soviet
Union and therewith initiated a period of immense strain for the
administration of the Government General. The Government General became
the greatest repair workshop and the greatest military transit territory
that history has ever known. This carried in its train an increasing
deterioration of the security situation. The resistance movement began
to reorganize on an intensified scale. But the menace inherent in the
security situation developed to a still more alarming degree when the
German armies were forced to arrest their progress in Russia and
when—after the catastrophe of Stalingrad—their march forward was
transformed into a general retreat. In the course of the year 1943, the
activities of the resistance movement and in particular of the numerous
guerrilla bands, in which thousands of lawless elements were grouped,
reached extremes that represented a danger to any kind of orderly
administration. The administration of the Government General was forced
again and again to deal with this matter. Thus on 31 May 1943 a service
meeting of the authorities of the Government General was held to deal
with the security situation. At that meeting the President of the Chief
Department Internal Administration felt obliged to state among other
things—I quote from the diary:

    “... In their activities the guerrilla bands have revealed an
    increasingly well-developed system. They have now gone over to
    the systematic destruction of institutions belonging to the
    German administration; they steal money, procure typewriters and
    duplicating machines, destroy quota lists and lists of workers
    in the communal offices, and take away or burn criminal records
    and taxation lists. Moreover, raids on important production
    centers in the country have multiplied, for instance, on
    sawmills, dairies, and distilleries, as also on bridges, railway
    installations, and post offices. The organization of the
    guerrillas has become strongly military in character.”

In the course of the summer and autumn of the year 1943, the increasing
activities of the partisans and the improvement in their military
organization and equipment so endangered security in the Government
General that it might perhaps under the circumstances have been better
to turn over its entire administration to the appropriate army
commanders and to proclaim a state of emergency. It is indeed not
possible to describe conditions then existing in the Government General
as anything else but a state of war. It was the period when at any
moment the possibility had to be taken into account that a general
revolt would break out over the whole country.

All this notwithstanding, the Defendant Frank even then made every
effort under all circumstances to thwart any violent measures by the
Security Police and the SD. It was in order to exercise at least a
modifying influence on the Security Police and the SD and to have at
least some guarantee against excesses that the Defendant Frank agreed to
the order dated 9 October 1943 setting up a drumhead court-martial.

It is quite obvious from the content of this decree that its main
purpose was to serve as a general preventive. It was meant as a
deterrent to the guerrillas, and there can be no question but that in
this it was temporarily successful. For the rest, the evidence has shown
that even while this drumhead court-martial order was in operation, the
Boards of Pardon continued to act and that many sentences passed by the
drumhead court-martial were reversed by the boards.

In the course of the present Trial repeated mention has been made of the
report by SS Brigadeführer Stroop concerning the destruction of the
Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). Both that
report and a number of other documents reveal that all the measures in
connection with the Warsaw Ghetto were undertaken exclusively on the
direct instructions of Reichsführer SS and Chief of the German Police
Himmler. I refer in this connection to the affidavit of SS Brigadeführer
Stroop of 24 February 1946, submitted by the Prosecution as Exhibit
Number USA-804 (3841-PS) and to the affidavit of the same date given by
the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske.
That is Exhibit Number USA-803 (3840-PS). These documents show quite
clearly that those measures, like all others within the competence of
the Security Police and undertaken on direct orders from either
Reichsführer SS Himmler, the Higher SS and Police Leader, East, or on
instructions from the RSHA, were carried out exclusively by the Security
Police and the SD and that the administration of the Government General
had nothing to do with them.

The Soviet Prosecution has also put in evidence as Exhibit USSR-93,
under Article 21 of the Charter, the Report of the Polish Government.
That report makes no distinction between the areas which were
incorporated in the Reich and the territories of the former Polish State
which were grouped together in the Government General. But particularly
in view of the fact that the report makes no substantial statements as
to the personal responsibility of the Defendant Frank, it does not seem
necessary to delve further into this voluminous document. Like the
Indictment itself, the report constitutes an accusation of a general
nature; it does not deal in detail with the results of investigations
and with evidence which might justify the conclusions drawn in the
report. The objections to be raised to the report must appear all the
more valid, since, to take only one example, in Appendix (1) of the
report directives for cultural policy are appended which obviously
purport to represent instructions given by the Governor General or his
administration. Actually, however, nothing of the kind is to be found
either in the _Official Gazette_ of the Government General or in any
other documents. The witness Dr. Bühler stated during his interrogation
that the administration of the Government General had never issued such
or similar directives. In consideration of this alone, it would seem at
most admissible to attach substantive probative value to this Exhibit
USSR-93 only insofar as the statements therein made are confirmed by
genuine documents and other unobjectionable evidence.

According to the Indictment, and in particular according to the
statements in the trial brief presented by the Prosecution, the
Defendant Frank is also alleged to be responsible for the
undernourishment of the Polish population. Actually, however, the
Prosecution is unable to produce any evidence to show that in the area
governed by the Defendant Frank either famine occurred or epidemics
broke out. The evidence has revealed on the contrary that the efforts of
the Defendant Frank in the years 1939 and 1940 were successful in
inducing the Reich to deliver no less than 600,000 tons Of grain. That
made it possible to overcome the food difficulties caused by the war.

It is true that in the following years the Government General
contributed in no small degree to the war effort by itself delivering
grain. But it must not be overlooked that these deliveries were made
possible by an extraordinary increase in agricultural production in the
Government General. And this was in its turn made possible by a
farseeing economic policy, especially by the distribution of
agricultural machinery, seed corn, and so on. Nor should it be forgotten
that the deliveries of grain by the Government General from the year
1941 onward also served to feed the Polish workers placed in Reich
territory and that in general these grain deliveries were utilized to
maintain the internal balance between the European economic systems. In
principle, however, the following should be said concerning this
question:

In a number of points of accusation the Prosecution has leveled
reproaches against the administrative activities of the Defendant Frank
in his capacity as Governor General without making an attempt to give an
even approximately adequate description of the general work of the
defendant and without pointing out its inherent difficulties. There can
be no question but that such an attitude transgresses the fundamental
rules of any criminal procedure. It is a recognized principle derived
from the criminal law principles of all civilized states that a uniform
natural process must be judged in its entirety and that its evaluation
must take into account all the circumstances of the case that are in any
way fit for consideration by the court when passing judgment. This would
seem to be all the more necessary in the present case, as the Defendant
Frank is accused of having pursued a long-term policy of oppression,
exploitation, and Germanization.

My Lords, if the Defendant Frank had in truth had any such intentions,
then he could certainly have attained his goal in far simpler fashion.
It would not have been necessary to issue hundreds of decrees every
year, decrees which for example for the year 1940 reached the
proportions of this volume that I hold here in my hand. The Defendant
Frank, from his first day of office, set himself to integrate the entire
economic policy in a manner which one can only term constructive.
Certainly he did this partly in order to strengthen the production
capacity of the German nation engaged in a struggle of life and death.
But at the same time there can be no doubt that the success of these
measures also benefited the Polish and Ukrainian peoples. I do not
intend to go into this matter in detail. I will only ask the Tribunal in
this connection to take notice of the report given by the Chief of
Government on the occasion of the fourth anniversary of the existence of
the Government General on 26 October 1943. I have included this report
in the document books I put in evidence. It is in Volume IV, Page 42.
The report gives a concise summary of the measures taken and the
successes achieved by the administrative acts of the defendant during
these 4 years in all fields of industrial economy, in agriculture,
commerce, and transport, in the finance and credit system, in the sphere
of public health, and so on. Only in consideration of all these facts is
it possible to form an approximately correct estimate of the whole
position. For the sake of completeness I will add that the defendant by
his administration succeeded in reducing the danger of epidemics—in
particular typhus and typhoid—to a degree which had been found
impossible in this area in the preceding decades.

If much of what had been achieved by the Defendant Frank in the
Government General was destroyed in the subsequent fighting, that can
certainly furnish no grounds for reproach against the general
administration, which had nothing to do with military measures.

My Lords, I am certainly not going to deny that in the course of the
recent war terrible crimes were committed in the territory known as the
Government General. Concentration camps had been established in which
mass destruction of human beings was carried out. Hostages were shot.
Expropriations took place; and so on. The Defendant Frank would be the
last to deny this; he himself waged a 5 year struggle against all
violent measures. The Prosecution has put in evidence, as Exhibit Number
USA-610 (437-PS), a memorandum which Frank addressed to the Führer on 19
June 1943. In this memorandum, on Page 11, he listed nine points in
which he sharply condemned all the evils which had arisen in consequence
of the violence practiced by the Security Police and the SD and of the
excesses committed by various Reich authorities, against which all his
efforts had proved unavailing.

These nine points are in the main identical with the points of
accusation against Frank. The content of the memorandum of 19 June 1943,
however, shows very plainly that the defendant denies responsibility for
these abuses. It reveals, on the contrary, quite clearly that neither
the defendant nor the general administration of the Government General
can be held responsible for the said evils but that the whole
responsibility must be borne by the institutions mentioned above, in
particular the Security Police and the SD, or the Higher SS and Police
Leader, East. If the Defendant Frank had had the instruments of power
wherewith to abolish the evils he condemned, it would not have been
necessary for him to address that memorandum to Hitler at all. He would
then himself have been able to take all necessary steps. In addition to
this the evidence has shown that that memorandum of 19 June 1943 was not
the only one addressed to the Führer on the matter. It is clear from the
testimony of the witnesses Dr. Lammers and Dr. Bühler and the
defendant’s own statements in the witness box that from the year 1940
onward he sent protests and memoranda at regular intervals of a few
months both to Hitler personally and to the Chief of the Reich
Chancellery. These written protests were invariably on the subject of
the violent measures taken and the excesses committed by the Higher SS
and Police Leader and the Security Police, including the SD. But none of
the protests met with success.

As can also be said on the basis of the evidence, the Defendant Frank
continually made suggestions to Hitler on the subject of improving
relations between the administration of the Government General and the
population. The memorandum of 19 June 1943 is also cast in the form of a
comprehensive political program. It includes, moreover, all the
essential points of protest contained in a memorandum presented in
February 1943 to the Governor General, at his own desire, by the leader
of the Ukrainian Chief Committee. This latter memorandum was put in
evidence by the Prosecution as Exhibit Number USA-178 (1526-PS). Such
suggestions were also consistently rejected by Hitler.

Under these circumstances it is pertinent to ask what else the Defendant
Frank could have done. Certainly he should have resigned. But that too
he did. He offered his resignation no less than 14 times, the first time
as early as 1939. His resignation was rejected by Hitler as often as it
was tendered. But the Defendant Frank did more. He approached Field
Marshal Keitel with the request that he be allowed to rejoin the Armed
Forces as a lieutenant. That was in the year 1942. Hitler refused his
consent to that too. These facts allow of only one conclusion, namely,
that Hitler saw in the Defendant Frank a man behind whose back he (with
the help of Himmler and the organs of the Security Police and the SD)
could carry out the measures he considered requisite for attaining the
aims of his power policy.

My Lords, when it became more and more obvious that Hitler and
Reichsführer SS Himmler were about to abolish the last remnants of a
State founded on law; when it became increasingly apparent that the
power of the Police knew no bounds and that a police state of the purest
water was in process of development, the Defendant Frank came forward
and addressed four great speeches to the German public with a last
appeal on behalf of the idea of a State founded on law. He did that when
Hitler stood at the summit of his power. He addressed this appeal to the
German public at a time when the German forces were marching on
Stalingrad and into the Caucasus, when the German Panzer Armies in
Africa stood at El Alamein, barely 100 kilometers from Alexandria. In
the course of the evidence I read some extracts from these great
speeches which the Defendant Frank made in Berlin, Heidelberg, Vienna,
and Munich. Those speeches contained a clear repudiation of every form
of police state and championed the idea of the State founded on law, of
the independence of the judiciary, and of law as such. These speeches
found a tremendous echo among lawyers, but unfortunately not in wider
circles. Nor in particular were they echoed by the men who alone would
have possessed the power to ward off the threatening catastrophe.

The consequences of this attempt to avert the extinction of the idea of
the State founded on law by a last great effort are well known. The
Defendant Frank was deprived of all his Party offices: he was dismissed
from his post as President of the Academy for German Law. The leadership
of the National Socialist Lawyers Association was conferred on the Reich
Minister of Justice, Thierack. Frank himself was forbidden by Hitler to
speak in public. Although the Defendant Frank again on this occasion
sent in his resignation as Governor General, Hitler refused to accept
it, as he had always done before. The reason for this, as given in a
letter from the Reich Minister and Chief of the Reich Chancellery to the
Defendant Frank, was that considerations of foreign policy had caused
the Führer again to refuse this latest request of Frank to be allowed to
resign. According to everything that has emerged from the evidence in
this Trial it may be looked upon as certain that it was not only, and
probably not even mainly, for such reasons that Hitler refused to accept
Frank’s resignation.

The decisive factor was obviously the consideration that it was better
policy not to let the Security Police and Reichsführer SS Himmler’s
other organs fulfill their appointed task openly, but rather to let them
continue their work under cover while maintaining a general civil
administration under the Governor General.

Naturally this open breach between the Defendant Frank, on the one hand,
and Hitler and the State Police system represented by Reichsführer SS
Himmler and the Higher SS and Police Leader, East, on the other, could
not fail to have repercussions on the position of the defendant in his
capacity as Governor General. Still more than before the various Reich
authorities now began to interfere in the administration of the
Government General. Above all, however, it was quite clear from the
summer of 1942 onward that the Higher SS and Police Leader, East,
together with the organs of the Security Police and SD subordinated to
him, took no more notice at all of any instructions issued by the
Governor General and the general administration.

Both in the Government General and in the Reich itself legal
institutions receded more and more into the background. The State was
transformed into an unadulterated police state, and developments took
the inevitable course which the Defendant Frank had foreseen and
feared—the course which on 19 November 1941 he had outlined at a
congress of the principal section chiefs and Reich group leaders of the
National Socialist Lawyers Association in the following words:

    “Law cannot be degraded to a position where it becomes an object
    of bargaining. Law cannot be sold. It is either there or it is
    not there. Law cannot be marketed on the stock exchange. If the
    law finds no support, then the State too loses its moral stay
    and sinks into the depths of night and horror.”

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

              [_The Tribunal recessed until 1410 hours._]




                          _Afternoon Session_

THE PRESIDENT: Dr. Pannenbecker.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President,
Gentlemen of the Tribunal:

The American Prosecution, through Dr. Kempner, has charged Defendant
Frick with criminal actions according to Article 6, Items a, b, and c of
the Charter. I should like first to examine the question as to whether
Article 6 of the Charter, with its list of criminal acts, is to be
considered as the authoritative expression of material penal law which
would lay down, in a manner irrevocably binding on, and not subject to
revision by the Tribunal, what actions are to be regarded as punishable;
or whether Article 6 of the Charter concerns a rule of procedure
defining the competence of this Tribunal for specific subject matters.

THE PRESIDENT [_Interposing_]: Perhaps it will be for the convenience of
the interpreters if I say that we might, as it is now nearly half past
2, sit without a break until 4 o’clock, when we rise.

DR. PANNENBECKER: The latter interpretation was implied in the
Prosecution’s presentation of the case by Sir Hartley Shawcross’ remark
that although Article 6 of the Charter fills a gap in international
penal procedure, the material penal law to be applied to the defendants
has already been previously standardized by positive laws. Part II of
the Charter, beginning with Article 6, is accordingly entitled:
“Jurisdiction and General Principles,” and it may be inferred therefrom
that Article 6 is intended to establish a ruling as to the competence of
this Tribunal as to procedure in specific groups of crimes.

Sir Hartley Shawcross’ statements were directed against the objection
that it is inadmissible and in contradiction with a basic legal
principle to punish someone for an act which had not yet been forbidden
at the time it was committed; an objection which has as a basis the
conception that the Charter has created new material penal law with
retroactive effect. It should be examined whether the prohibition of
retroaction of penal laws is a legal principle of such importance that
it should not be infringed. I need not state to this Court the reasons
why this legal principle found general recognition in all civilized
countries as a prerequisite and basic precept of justice.

In contrast to this, the Prosecution has in its speech charged the
defendants with the fact that they themselves had continuously
disregarded law and justice, and inferred from this that the defendants
in this Trial could not appeal to such a legal principle. I do not
believe, however, that such an argument can be decisive in this Trial.
The Prosecution has replied in the negative to the further question of
whether it would not have been right to pay back in the same coin and
not allow the defendants of this Trial any possibility at all to defend
themselves in a proper legal procedure. Such a course of simply
exercising the power of the victor over the defendants has purposely not
been assumed by the signatory powers for reasons presented in detail by
the Prosecution. On the contrary, Sir Hartley Shawcross has appealed to
the Tribunal to apply in this procedure—I quote—“the undisputed
principles of international custom.”

If, however, it is intended to proceed in such a manner, then an
examination must take place in keeping with the same principles of law,
to determine the question whether the deeds with which the defendants
are charged can be regarded as criminal acts for which punishment is
possible according to the recognized principles of international custom.
It is not, according to these principles, an argument if the use of a
legal principle as fundamental as the prohibition of retroaction in
penal law is in actual application to be made dependent on whether or
not the defendants concerned themselves with law and justice. The
decision of the signatory powers to subject, on the basis of
considerations which have been seriously weighed, the conduct of the
defendants to a proper trial recognizing all legal principles of
international custom, therefore signifies not only the observance of
legal procedure with all assurances of fair trial, but such a decision
by the signatory powers also signifies adherence to the fundamental
principles of a material guarantee of justice, of which the prohibition
of retroactive penal laws is one.

In this connection I should like to point out that the decreeing of the
retroactive validity of penal laws, when so ordered by the National
Socialist Government for certain individual cases, to which Dr. Stahmer
has already referred, shocked the entire civilized world. At that time,
the violation of such a principle of law was generally condemned as a
deplorable retrogression in civilization. I also ask the Tribunal to
recall that one of the first measures taken by the occupation powers for
deliverance from the National Socialist abuse of the law was to declare
void any laws which had a retroactive effect on the material penal
legislation.

In view of this situation there exist valid reasons, I believe, why
Article 6 of the Charter should, in accordance with its heading, be
regarded as a ruling on the jurisdiction of this Tribunal, all the more
so as the signatory powers have already and with so much emphasis
insisted on a renewed strict and uniform observance of the prohibition
against retroactive penal laws.

On the basis of such an interpretation, whereby Article 6 establishes
the jurisdiction of this Tribunal, it would be for the Tribunal by its
own examination not only to determine whether the charges on which the
Indictment is based are proved, but also to rule on the legal question
as to whether, for the facts established in each case by the
Prosecution, there exists a criminal law which makes punishment
possible. To revert in this way to provisions of material criminal law
in existence at the time the act was committed does not mean that it
would be impossible for this Tribunal to call the accused to account for
offenses which are punishable under all circumstances. There are,
however, a number of restrictions resulting from this which in the
opinion of the Defense it would be better to accept rather than violate
a principle so essential to just procedure as is the prohibition of
retroaction in criminal laws. I am therefore of the opinion that it is
entirely possible, and not incompatible with the necessity for just
expiation for war crimes, to interpret Article 6 in accordance with its
heading as a ruling on the jurisdiction of this Court, but not as new
material criminal law.[1] The next remarks concern themselves with the
conspiracy, a matter which has been dealt with by Dr. Stahmer to such an
extent that I can omit these pages. I continue now on Page 7 with the
summary.

The Charter does not impose the interpretation that a defendant is
responsible also for such acts of commission as exceed the measure of
his participation in the common plan. The wording of the Charter, “in
the execution of a common plan,” does not contradict the interpretation
that the Charter establishes liability for acts of commission which
remained within the scope of the said plan. To that extent the
assumption of liability for the actions of others complies with a demand
of justice, but beyond that it would violate essential legal principles.
The Defense therefore advocates the concept that, as far as the actions
of others are concerned, for which a defendant is to be made liable,
proof must be required that these actions, in the manner of their
execution, corresponded to the intention of the defendant. To give an
example:

The participation of a defendant in rearmament against the regulations
of the Versailles Treaty does not in itself justify the assumption that
that defendant also desired a war of aggression which was later on
planned by others in the further plan of restoring military power to the
German people.

I should now like to turn to the various categories of crimes of which
the Defendant Frick is accused, taking first of all the assertion of the
Prosecution that the defendant participated in the planning and
preparation of wars of aggression. With regard to the problem as to
whether a war of aggression is a criminal offense according to the
concepts of law for the period in question, I refer, in order to avoid
repetition, to the statements of Professor Jahrreiss, with which, in
behalf of the Defendant Frick, I fully concur.

By virtue of these convincing statements, there exists only one
possibility of punishing co-operation in a war of aggression as a
criminal offense capable of being perpetrated by individual persons,
namely, when, contrary to the statement of Sir Hartley Shawcross, the
Charter is applied as a standard of material penal law which has for the
first time defined, with retroactive effect, a war of aggression as a
criminal offense by individual persons. From the point of view of the
other interpretation, which regards Article 6 of the Charter as a
procedure regulating the jurisdiction of this Court, the Defense holds
that the deduction is cogent that the Court is indeed declared competent
to judge offenses against peace, but that the criminal guilt of the
individual defendants is not proved therewith because one condition for
this is lacking, namely, the possibility of establishing that the
defendants have offended against a principle of generally valid
international custom or a principle of national law which defined the
war of aggression at the time it took place and declared it punishable
as a crime of which a single individual could be guilty.

As it happens, the statesmen, during the period between the two World
Wars, have neglected to establish adequate measures of general validity,
by which it would have been made clear that anyone who, after the first
wholesale slaughter of peoples, organized a second World War, would go
about with a rope around his neck. The statements of the Prosecution,
that such rules of international law are necessary, appear to be
absolutely convincing, but the fact cannot be overlooked that such rules
were nevertheless not created by the statesmen of that period at the
right time. A missing rule of law, fashioned to fit a special case,
cannot be replaced subsequently by an order of procedure or by the
sentence of a Court whose task is to apply the general law, but not to
create it for a single special case.

I shall now turn to the actual statements of the Prosecution concerning
the participation of the Defendant Frick in the planning and preparation
of wars of aggression.

The Prosecution sees such activity already in Frick’s earliest
co-operation with the Party, which he continued until the year 1933, in
order to bring Hitler to power. The Prosecution appraises in a similar
way the subsequent activity of Frick after the taking over of the
Government by Hitler, when he helped to consolidate the power of the
Party and its leaders through measures of domestic policy, especially by
his participation in the legal measures by which armed forces were
created, and finally by his collaboration in measures by which direct
preparations were made in case of war.

Proceeding from the interpretation that only deliberate participation by
the defendant in the preparation of a war of aggression is of penal
significance, I shall not take up the question as to whether the
Prosecution has proved that Frick was aware that his collaboration in
the advancement of the Party and its aims constituted a preparation for
war, and intended it as such, and therefore helped to bring the war
about.

In this connection the Prosecution has made the assertion that Hitler
and his Party from the very beginning openly pursued the aim of bringing
about a change in Germany’s situation in foreign politics by means of
war. On the basis of this statement the Prosecution has declared that no
special proof is necessary that in working for Hitler and his Party each
of the defendants also knowingly collaborated in the preparation of a
war of aggression.

As proof of the fact that Hitler and his Party had from the beginning
planned a war of aggression, the Prosecution refers to the Party
Program, which names as one of its aims the abolition of the Treaty of
Versailles. No word is said, however, in the Party Program that this aim
should be achieved by force of arms. In the Party Program, as the
testimony of the Defendant Von Neurath has also shown, among other
things, there is nothing to prove an intention existing from the very
beginning to wage a war of aggression. Nor is anything different found
in the other official publications of the Party from the time previous
to Hitler’s assumption of the Government. Because as the Party did not,
on the basis of its official publications, reveal any intention of
bringing about the revision of the Versailles Treaty by force of arms,
it was even before 1933 authorized outside the territory of the Reich,
as for example in 1930 in Danzig, when it received the sanction of the
then High Commissioner of the League of Nations and of the Polish
Resident General.

From the time of his assumption of power on 30 January 1933 Hitler, as
responsible head of the Government, adopted a quite unequivocal attitude
with regard to the ways and aims of his foreign policy, both in official
speeches and discourses as well as in private conversations.
Unchangingly, and upon every occasion that presented itself after his
assumption of power, he stressed his absolute desire for peace and his
abhorrence of war, and he always defended this attitude with convincing
reasons. He repeated again and again that he intended to obtain certain
revisions of the Versailles Treaty by peaceful means only. I need not
repeat the quotations to that effect from Hitler’s speeches, which were
read by the Prosecution to prove how Hitler deceived the world, and the
people he ruled, by his peace talks. And the world, including the German
people, took these speeches which he, as responsible head of the
Government, made again and again, quite seriously. In the face of that,
warning voices which at an early stage were convinced that Hitler wanted
war, remained a hopeless minority throughout the world.

The Prosecution has repeatedly alluded to this world belief which took
Hitler’s assertions of peaceful intentions seriously, and the best proof
of this delusion about peace even among the foreign statesmen, who also
knew the Party Program, would certainly appear to lie in the fact that
these statesmen neglected to so vast an extent to arm against Hitler’s
war of aggression, in which nobody in Germany and in the world believed
seriously except those who were directly initiated into Hitler’s most
secret plans. From the Party Program and from isolated wild speeches
made before 1933 during the period of parliamentary opposition, it is
not possible to prove a continuous preparation for a war of aggression
since the twenties, which is alleged to have been discernible to anybody
who took a glance at the Party Program.

The Prosecution contends further that even if the warlike intentions
were not discernible in a general way at first, the intention of Hitler
to prepare a war of aggression must have been clearly visible to the
Defendant Frick on account of the duties which he had to fulfill after
30 January 1933 in his capacity as Reich Minister of the Interior. These
duties included measures for the strengthening of the internal political
power of Hitler and his Party. The Prosecution referred in this
connection to the collaboration of Frick in the legal decrees by means
of which the opposition against Hitler’s system of government was
destroyed in parliament and in the country; further, to the legislative
measures which eliminated real self-government in the cities and
communities, and to legislative and administrative decrees by which
opponents of the National Socialist system were excluded from taking any
part in the business of the State and in economic life.

The Prosecution has submitted that without these measures Hitler could
not have conducted another war, for the beginning of which the complete
destruction of opposition in the country was said to be a necessary
prerequisite—particularly the establishment of Hitler’s absolute
dictatorship. Yet in all the measures I have enumerated, a direct
connection with the preparation for war is lacking. For these measures
had equal meaning and significance, unconnected with a subsequent war,
merely as projects of a National Socialist domestic policy. It has not
been proved that beyond that the Defendant Frick was informed of
Hitler’s more far-reaching plans, namely, after consolidating his power
at home to pursue the aims of the Party’s foreign policy not by peaceful
but by military means.

By establishing retrospectively that the strengthening of Hitler’s inner
political authority was a necessary condition for his intentions for war
as revealed later, nothing is achieved unless proof is forthcoming that
Hitler had from the beginning aimed at power in the domestic sphere only
as a first step toward the waging of wars, and that Frick was aware of
this when he took part in the measures of domestic policy of which he is
accused. Otherwise, as purely domestic measures, they do not come under
the jurisdiction of this Tribunal according to the provisions of the
Charter.

But there is no such evidence, and it is much rather to be assumed that
Frick, as a typical official connected with domestic politics,
considered his measures as absolutely independent acts which had nothing
whatsoever to do with the solutions by force of questions of foreign
policy. Nor can another view of the situation be derived from the
measures dealing directly with Germany’s rearmament, that is, the
reintroduction of general conscription and the occupation of the
demilitarized zone of the Rhineland. In his capacity as Reich Minister
of the Interior, Frick issued the orders of the civil administration for
the mobilization of men liable for military service, and consequently he
himself also signed the Armed Forces Law.

Yet even these measures in themselves were not to be recognized as
preparation for a war of aggression. The reintroduction of compulsory
military service and the assumption of military sovereignty over the
demilitarized Western Zone were explained by Hitler himself, to his
collaborators and the world, by arguments whose soundness was then
widely accepted, and after the first shock many foreign statesmen still
believed in Hitler’s well-founded assurances of peace, and advocated the
opinion that there was no reason to fear any belligerent intentions on
the part of Hitler.

To be sure, Hitler personally declared to his Commanders-in-Chief on 23
November 1939 that he had created the Armed Forces in order to make war.
I refer to Document 789-PS; Exhibit Number USA-23. But Hitler previously
cleverly obscured this intention by another argument which at that time
still found credence in Germany and abroad, and—as proved by the
evidence—even those collaborators in his own Cabinet who had not been
initiated into his secret plans believed in it.

Thus it is that several defendants refer to the fact that they approved
of the reconstruction of the German Armed Forces in the face of the
provisions of the Versailles Treaty, but that they did not want a war
and did not consider that by their collaboration they were participating
in the planning of a war of aggression. As for the Defendant Frick, the
view of the defense is that there is no proof that Hitler had informed
him of his plans for war, and therefore his collaboration in the
measures concerned with the reconstruction of the German Armed Forces
cannot be charged against him as intentional collaboration in the
planning of wars of aggression. A similar situation arises with regard
to the defendant’s activity in organizing the civil administration in
general for the eventuality of war, a task entrusted to the defendant as
Plenipotentiary for Administration of the Reich by the second Reich
Defense Law dated 4 September 1938.

I beg to point out again that the position of Plenipotentiary for
Administration of the Reich was created only by this second Reich
Defense Law of 4 September 1938, and thus was not included in the first
Reich Defense Law of 21 May 1935.

To be sure, long before, even before 1933, experts from the various
ministries held conferences dealing with the subject of Reich defense,
meeting at irregular intervals after 1933 as the Reich Defense
Committee, as shown in the documents submitted by the Prosecution. These
meetings had nothing to do with an agreement to wage a war of
aggression. They dealt with general questions of Reich defense, as is
customary also in other countries. By the Reich Defense Law of 21 May
1935, the organization for Reich defense was more closely co-ordinated,
particularly by the appointment of a Plenipotentiary for War Economy,
and at his interrogation the Defendant Schacht explained in detail that
the purpose in creating that position was not preparation for a war of
aggression (according to the duties and regulations to be found in the
first Reich Defense Law) but the organization of the economy for defense
in the event of a war of aggression by other states.

The same holds true with regard to the position of Plenipotentiary for
Reich Administration as created by the second Reich Defense Law of 4
September 1938, which was conferred on the Defendant Frick by virtue of
his position as Reich Minister of the Interior. This position signified
the co-ordinated establishment of the entire civil administration for
the purpose of Reich defense. Regardless of whether, according to
documents which have been submitted to the Tribunal, Hitler already
wanted war at the time when he authorized the second Reich Defense Law,
it is nevertheless relevant for the defense of the defendant whether
Frick at that time was able to recognize the aggressive intentions of
Hitler from the law itself and from his preliminary work thereon or from
other evidence or information which was communicated to him then. From
the law itself it cannot be discerned that Hitler’s intention was to use
it in the sphere of civil life as an instrument of preparation for a war
of aggression.

The kind of tasks which were given to the Defendant Frick in his
capacity as Plenipotentiary for Reich Administration had to do merely
with the concentration of domestic administration of Germany in case of
a possible war or threat of war, and nothing else can be seen from
Document Number 3787-PS (Exhibit Number USA-782), which was submitted
subsequently.

The law is so formulated that it always refers only to the defense of
the Reich in case of war. It speaks about the “state of defense” and
mentions the case of a “surprise threat to the Reich territory,” in the
event of which certain measures must be taken. Beyond this the law does
not vouchsafe any hint, which would be in keeping with Hitler’s
oft-repeated principle not to divulge any more of his plans than the
person concerned had to know for his own work—a principle which he
strictly adhered to even with his closest collaborators. In view of this
principle it should not be assumed, nor has it been at all proved, that
when the order for this law was given to the Ministry of the Interior
any other information was imparted than the necessity for taking
precautionary measures, by concentrating the full strength of the
domestic administration of the country, against a surprise threat to
Reich territory through a possible attack by other states.

It is not necessary for me to state in detail that such a measure cannot
be considered as a premeditated preparation for a war of aggression when
it had been explained to the competent authorities of the domestic
administration that it was essential for the defense of the Reich
against the threatening attack by another state. Hitler knew very well
how to hoodwink all those who had no need to know about his secret
plans, yet nevertheless should understand the reasons for the armament
and the organization of the state ordered by him for the eventuality of
war.

I will deal now very briefly with some further documents bearing on the
activity of the Defendant Frick as Plenipotentiary for Reich
Administration. Frick, in his speech of 7 March 1940, referred to this
position—Document Number 2608-PS, Exhibit Number USA-714—and stated
that the planned preparation of the administration for the possible
event of war had been already effected during peacetime by the
appointment of a Plenipotentiary for Reich Administration. This speech
therefore merely confirms that which is already revealed by the text of
the law. The same applies to Document 2986-PS, Exhibit Number USA-409,
an affidavit by the defendant to the same effect. Therefore, according
to this law, the position of the Plenipotentiary for Reich
Administration, combined with the appointment of a Plenipotentiary for
Economy and the post of Chief of the OKW, cannot be described as a
“triumvirate” holding governmental authority in Germany. Nothing has
ever become known either inside or outside Germany of a government by
such a triumvirate, and the witness Lammers has also referred to the
strictly subordinate tasks performed by these persons by means of
ordinances—tasks which had nothing to do with the preparation of a war
of aggression.

Another field of the defendant’s activity is likewise appraised by the
Prosecution as participation in preparation for a war of aggression,
namely, Frick’s work for the Association for Maintaining Germanism
Abroad. I refer to Exhibit Number Frick-14 and Document Number 3258-PS,
the latter submitted as Exhibit Number GB-262. Both documents reveal
that Frick supported the said association as a union for the fostering
of German cultural relations abroad and promoted its cultural efforts.
It cannot, however, be gathered from the documents that Frick engaged in
any capacity whatsoever for the furtherance of the aims of a so-called
“Fifth Column” abroad. Another document from which the Prosecution
deduced the approval of the policy of aggressive war by Frick is the
affidavit of Messersmith, Document Number 2385-PS, Exhibit Number
USA-68. This affidavit has been characterized by several defendants as
inaccurate, and the Defendant Schacht in particular showed at his
examination that in essential points it cannot be correct at all. The
Prosecution was not able to produce the witness for cross-examination. I
object on behalf of Frick against any use of the affidavit, all the more
so since an additional clarifying interrogation of the witness through a
written questionnaire only led to the result that the witness, by using
general phrases, avoided giving concrete answers to the questions put to
him. The answers to the questionnaire show plainly enough that
Messersmith cannot make concrete statements at all and that in his
affidavit he obviously was considerably deceived himself as to the
extent of his memory.

I do not believe that his affidavit, which has been refuted in essential
points, can be made use of for passing legal judgment. As to the
question whether the Defendant Frick participated in conscious
preparation for a war of aggression, the Prosecution further submitted
Document D-44, Exhibit Number USA-428. From this document it is seen
that the Reich Ministry of the Interior is supposed in the year 1933 to
have issued a directive that official publications were not to be drawn
up in a form which might enable people abroad to infer an infraction of
the Versailles Treaty from such publications. This document does not
reveal whether by these directives actual treaty violations were to be
masked or whether it was only a question of avoiding the appearance of
treaty violations.

The same problem applies to Document 1850-PS, Exhibit Number USA-742.
This contains the minutes of a conference between the Leadership of the
SA and the Reich Defense Minister, who proposed to the SA in 1933 that
budgetary funds of the Reich should be set aside by the Reich Ministry
of the Interior for the military training of the SA. The document does
not throw any light upon the attitude of the Reich Ministry of the
Interior toward this proposal, and even if it had accepted it, this
again would have proved only that the Reich Ministry of the Interior
furthered the restoration of the Armed Forces, a fact which anyhow is
already proved.

Thus, none of these documents furnishes proof that the Defendant Frick
recognized as preparation for a war of aggression the measures ordered
by Hitler as necessary for the defense of the Reich.

It is true that during the war, in 1941, a few days before the outbreak
of the war with the Soviet Union, a conference took place between the
Defendant Rosenberg and representatives of various ministries concerning
measures in case of a possible occupation of parts of the Soviet Union.
This is shown in Document 1039-PS, Exhibit Number USA-146, Rosenberg’s
report concerning these discussions, in which it is stated that
negotiations took place with “Reich Minister Frick (State Secretary
Stuckart).” This parenthesis means that the Reich Ministry of the
Interior was represented in these negotiations by State Secretary
Stuckart, therefore that Frick did not personally participate in the
negotiations. As the negotiations took place only a few days before the
beginning of the war in the East, it is not proved by the document that
Frick himself was informed about the negotiation before the beginning of
the war which, as it is generally known, was afterward proclaimed by
Hitler as a necessary measure of defense against an imminent attack by
the Soviet Union. It has been made clear by abundant evidence in this
Trial how far Hitler kept his true aggressive intentions secret, and how
well he knew how to cover up the true aim of all his political measures
for years with thousands of convincing reasons to justify the individual
measures of his policy of aggression.

There was a very small circle of collaborators whom Hitler informed
about his war plans, but this circle was not selected according to the
position of the person concerned in the Cabinet, or according to his
position in the Party hierarchy, but exclusively from the point of view
of whether it was necessary for the person concerned, with respect to
his own tasks in the field of preparations for the war, to know the
aggressive character of Hitler’s general policy or even his detailed
plans of aggression. Document 386-PS, Exhibit Number USA-25, shows how
systematically the principle of secrecy was kept, even as regards the
older members of the Party and the administrators of important
departments in the Reich Cabinet. Whoever, such as the Minister of the
Interior, had merely to carry out measures within the framework of
preparations for war which could well be similar to tasks of a purely
defensive character was, in accordance with Hitler’s principle, not
informed of the latter’s aggressive intentions. For this reason, the
presence of the Defendant Frick is not shown in even a single one of
these secret conferences in which Hitler informed a circle of selected
men about his plans for foreign policy and his war aims. In the Document
386-PS just mentioned, Hitler especially emphasized and gave reasons for
the exclusion of the Reich Cabinet as a body to which such plans should
be made known.

In another record concerning a similar conference—Document L-79,
Exhibit Number USA-27—the additional principle is laid down that no one
should be told anything concerning the war plans who does not need to
know these plans for his actual work.

Frick’s name is not only missing from the list of those present at
Hitler’s conferences on his policy of aggression which took place before
the war, but the same applies also to the numerous conferences
concerning Hitler’s further war aims and aggressive intentions which
were held during the war. The Defendant Frick was no more informed of
the later attacks or included in their preparation, as is shown by the
list of those present at Hitler’s lectures concerning his plans, which
have in part been submitted here.

Frick, purely an expert in domestic administration who was not
considered competent for military questions and questions of foreign
policy, was deemed good enough to organize the civilian administration
for the eventuality of any possible war, but in Hitler’s opinion, his
foreign policy and military plans were none of Frick’s business.
However, the Prosecution asserts further that after the conquest of
foreign territories and their occupation, the Defendant Frick regulated
the administrative policy in those territories and that he is
responsible for it. The Prosecution considers this activity, of the
defendant, according to Article 6, Letter (a) of the Charter, as
“participation in the execution of wars of aggression.” According to the
submission of the Prosecution, Frick exercised an over-all control of
the occupied territories, especially in his capacity as chief of the
Central Office for the occupied territories. On the basis of the same
function, he is deemed to be responsible for all War Crimes and Crimes
against Humanity which were committed in the occupied and incorporated
territories before and during the war, up to his dismissal as Reich
Minister of the Interior on 20 August 1943.

It is a question of legal interpretation whether the activity in the
administration of occupied territories, pursuant to Article 6, Letter
(a) of the Charter, is to be considered as the “execution of wars of
aggression,” or whether criminality comes into consideration only under
the point of view of crimes against the rules of war or against
humanity. In deciding this question it appears important to me that it
is not one of the tasks of an official of a civil administration to
examine, after the conclusion of military operations, whether it is a
case of legal or illegal occupation according to the standards of
international law. An obligation for such an examination would be an
exaggerated demand to make of the department of the civil administration
or the administrative chief, whose activity cannot be described as
illegal on the grounds that the territory administered by him had been
annexed a short or even long time ago in violation of the regulations of
international law. There is no obligation for such examination in the
practice of civil administration. The Charter moreover does not demand
such an interpretation because, when naturally construed, the military
operations themselves might be understood to constitute an execution of
wars of aggression, but not the later civil administration of conquered
territories.

The punishment of crimes which occurred in the administration of the
occupied territories would not be made impossible through such an
interpretation. In any case these crimes are subject to punishment as
Crimes against Humanity or against the rules of war according to the
Charter. And now mention must be made of those territories in particular
for which the Defendant Frick bears a responsibility.

First of all there are the territories which were incorporated in
accordance with constitutional law into the commonwealth of the German
Reich, which are therefore called “incorporated territories.” By their
constitutional incorporation these territories came under the
administration of the Reich, but only to that extent did they come under
the authority of the Reich Minister of the Interior, in that the
Defendant Frick bears the constitutional responsibility of a minister
for the internal administration of these territories up to 20 August
1943. In the East, this mainly concerned the territories of West
Prussia, Posen, and Danzig, in other words, the so-called returned
Eastern territories which belonged, until the Versailles Treaty, to the
commonwealth of the German Reich. In the East, the Memel district
received the same constitutional treatment; in the West, the
Eupen-Malmedy district; and in the Southeast, the Sudetenland.
Furthermore the country of Austria was incorporated into the
commonwealth of the German Reich. For all those territories Frick has a
share in the laws and administrative measures brought about by the
incorporation. He bears the usual responsibility of a Minister of the
Interior for the domestic administration of these territories up to the
time of his dismissal in August 1943. For the territory of Bohemia and
Moravia on the other hand there existed a special Protectorate
Government, which was described as autonomous in the decree concerning
the establishment of the Protectorate—Document 2119-PS—and was
therefore not controlled by the Reich Ministry of the Interior. In a
similar way, an administration not dependent on the Reich Ministry of
the Interior existed in the Polish territories, which were collectively
designated “Government General” and were put under the jurisdiction of a
“Governor General.” In contrast to the so-called “incorporated Eastern
territories,” the Reich Ministry of the Interior had no right to issue
orders or to handle administrative matters in the Government General, as
can be seen from Document 3079-PS which contains Hitler’s decree
concerning the administration of the occupied Polish territories. The
same appears from numerous other documents, among them Document
USSR-223, the Frank diary, in which he states that no Reich central
offices are authorized to intervene in the government of his territory.

The same applied to all other occupied territories for which a special
administration was established under any legal form. These separate
administrations were not dependent on the corresponding departmental
ministries in the Reich, but were under the jurisdiction of the
administrative chief for the corresponding territories, who was himself
directly subordinate to Hitler.

This applies to the occupied Soviet Russian territories, the entire
administration of which was under the jurisdiction of a Reich Minister
for the Occupied Eastern Territories. The same applies to Norway, where
a Reich Commissioner was appointed. In a similar way, a Reich
Commissioner was appointed for the Netherlands, who was also independent
of the Reich Ministry of the Interior and was directly subordinate to
Hitler. In Luxembourg, Alsace, and Lorraine, there were chiefs of civil
administrations who were also not dependent on the Reich Ministry of the
Interior, while in Belgium and northern France there was a military
administration of which the same was true.

In the same way the administrative chiefs of the territories which were
occupied in the Southeast of Europe were completely independent of the
Reich Ministry of the Interior. For part of the occupied territories
there exists, in the decrees issued at the time concerning the creation
of a separate civil administration, a stipulation that the Reich
Minister of the Interior was designated the central agency, and from
this formulation the Prosecution has deduced a responsibility of the
Defendant Frick for the administration of all the territories, as is
Stated in the Indictment.

The actual tasks of the central agency can be seen from the order
concerning the establishment of a central agency for Norway—Document
3082-PS, or Number 24 in the Frick document book. The witness Dr.
Lammers has given a further explanation of the tasks. At that time it
was the primary task of the central agency to put personnel at the
disposal of the chiefs of the civil administrations in the occupied
territories on request. Therefore, if a civil official was needed for
any district, the administration of the district concerned applied to
the central agency in the Reich Ministry of the Interior, which then put
some official from the Reich at the disposal of the chief of the civil
administration. The Reich Ministry of the Interior was especially fitted
for this, as it had at its disposal numerous officials of the domestic
administration in Germany.

But the transfer of an official from his own department to another
office, which will alone give orders to that official from that moment
on, does not establish responsibility for the further activity of that
official in his new department, to whom the Reich Ministry of the
Interior could issue no orders whatsoever. To take as an example: If the
Minister of Justice transfers one of his officials to the Foreign
Minister, naturally only the Foreign Minister is responsible for the
further activity of this official. This activity of the central agency
therefore does not justify the assumption of responsibility by Frick for
the administration of the occupied territories.

The requisitioning of officials for the occupied territories was
concentrated in the Reich Ministry of the Interior. That is, as the
examination of the witness Lammers indicated—and I quote from the
above-mentioned Document 3082-PS—“the unified co-operation adapted to
the needs of Norway, of the supreme Reich authorities with one another
and with the Reich Commissioner.”

In like manner, the hearing of evidence for the Defendants Rosenberg,
Frank, and Seyss-Inquart, who functioned as chiefs of civil
administrations in the occupied territories, has on no occasion revealed
any co-operation of any kind with the Defendant Frick either in his
capacity of Reich Minister of the Interior or Director of the Central
Agency in this Ministry.

Now, the Prosecution has referred to several documents in order to prove
that the Defendant Frick exercised extensive control over all occupied
territories. Actually, however, those documents do not reveal an
administrative activity of any greater extent than I have just stated.
Document 3304-PS gives proof of an administrative activity for the
incorporated Eastern Territories. This coincides with my statement that
the incorporated Eastern Territories, in their internal administration,
were subject to the Reich Ministry of the Interior by virtue of their
constitutional incorporation into the German Reich. The document,
however, bears no reference to the administration of the Occupied
Eastern Territories, that is, the Government General or to the occupied
Soviet Russian territories.

The other document submitted, 1039-PS, Exhibit Number USA-146, proves
the transfer of administrative personnel from the department of the
Reich Ministry of the Interior to the Reich Minister for the Occupied
Eastern Territories, a typical task of the Central Agency which I have
already discussed. The Prosecution has submitted further documents which
reveal that the Reich Ministry of the Interior had a hand in the
bestowal of German citizenship. Even this does not, however, prove any
administrative authority of the Defendant Frick for the occupied
territories, but merely a typical activity of a Minister of the Interior
whose department is competent for the general regulations concerning
German citizenship, including cases where persons living outside the
Reich territory are involved. This activity of the Minister of the
Interior can also furnish no proof of an extensive administrative policy
and a general responsibility of the Defendant Frick for the
administration of the occupied territories. In particular, in the
occupied territories which were not incorporated into the Reich
territory, Frick had no authority or competence whatsoever as far as the
tasks of the Police were concerned.

Hitler directly commissioned Himmler to carry out police work in the
occupied territories—see Document 1997-PS, Exhibit Number USA-319,
Hitler’s decree concerning police security measures for the Eastern
Territories, for which Himmler was directly responsible. The same is
revealed by Document 447-PS, Exhibit Number USA-315, a directive of the
OKW dated 13 March 1941, to the effect that the Reichsführer SS in the
Occupied Eastern Territories is charged with special duties in the
execution of which he will act independently and on his own
responsibility. The same applies to the police tasks in the other
occupied territories, which were assigned either to the Reichsführer SS
Himmler or to the SS and police leaders who took their orders only from
Himmler, although in many cases they were ostensibly assigned to the
civil administrative chief in question, such as for example the Governor
General in Poland (see excerpt from Frank’s diary in the Frick document
book under Number 25, also USSR-223). In no case, therefore, were police
tasks in the occupied territories under the Defendant Frick’s
jurisdiction. Consequently, the Defendant Frick bears no responsibility
for crimes against the laws of war and against humanity in the occupied
territories, since in these territories he could neither order crimes
nor prevent them.

Concerning the territory of the German Reich I must now examine the
claim of the Prosecution as to the responsibility of the Defendant Frick
for all the police measures, including the Gestapo, as well as for the
establishment and administration of concentration camps. May I first
refer to the documents submitted by me in evidence, which reveal that
the Police, including the political police, was in 1933 still the
concern of the individual states within the Reich, such as Prussia,
Bavaria, _et cetera_.

In Prussia, the Secret State Police (Gestapo) and the concentration
camps were established and administered by Göring in his capacity as
Prussian Minister of the Interior. The tasks of the political police
were then transferred by a Prussian law, dated 30 November 1933, to the
office of the Prussian Prime Minister, which was also administered by
Göring. So when the offices of the Reich and the Prussian Minister of
the Interior were merged, in the spring of 1934, Frick did not assume
the tasks of the political police which still remained incumbent upon
Göring in his capacity as Prime Minister.

A similar regulation prevailed in the other states, where Himmler was
gradually given the duties of special deputy for the political police.
During this period, the Reich Minister of the Interior had only the
right of so-called “Reich supervision” over the states, which Frick made
use of for the enactment of general instructions and legal ordinances;
and this is the only point where Frick, as Minister of the Reich, could
exercise any influence on the affairs of the political police and
concentration camps.

Frick made use of this possibility, in accordance with his basic
attitude as confirmed by the witness Gisevius, to prevent and repress
arbitrary actions by the political police as far as was in his power in
the circumstances then prevailing. He endeavored, by the enactment of
provisions of law and procedure, to restrict the arbitrary practices of
the political police in the states.

I refer to Document 779-PS, submitted by me as Exhibit Number Frick-6.
This is a decree dated 12 April 1934, containing restrictive provisions
of this sort under a significant preamble—which I quote: “In order to
remedy abuses occurring in the infliction of protective custody.” This
is followed by directives to the governments of the states forbidding
the application of preventive custody in numerous cases where it had
previously been improperly ordered by the Gestapo. In this struggle of
Frick against arbitrary actions by the political police in the states,
the police had, it is true, ultimately come out better because they were
under the direction of Göring and Himmler, with whom the “bureaucrat”
Frick—as Hitler disdainfully called him—could not compare as regards
influence in the Party and State. For that reason the political police
in the states in practice frequently disregarded Frick’s ordinances. But
Frick did not stand by idly as long as there was reason to hope that
through his intervention the unrestrained practices of the political
police in the states could be directed into orderly and legally
regulated channels. I refer to Document 775-PS, Exhibit Number Frick-9,
a memorandum from Frick to Hitler which clearly and unequivocally calls
a spade a spade, mentioning legal insecurity, unrest, and embitterment,
and severely criticizing individual cases of misuse of the right to
order protective custody by the political police of the states. Here I
would insert that the same document also proves that in the struggle
over the churches, the defendant clearly took their side. This is also
proved by Exhibit Number Neurath-1.

In his testimony the witness Gisevius refers to an additional memorandum
which he himself drew up for Frick as a further attempt to restrain
through severe criticism and by suggestions for legal control the
arbitrary practices of the political police in the states. All of these
attempts failed because Frick’s political influence was too
insignificant and he could not assert himself against Göring and
Himmler, and because at the time Frick himself could not yet see that
the practices of Göring and Himmler were essentially in harmony with
what Hitler actually wanted himself. Thus the documents submitted by the
Prosecution, taken in conjunction with the evidence offered by the
Defense, show that in the domain of the political police and in ordering
protective custody, Frick had a certain competency at a time when the
police was still a service administered by the individual states. This
evidence also shows that during that time Frick’s jurisdiction was very
limited and it further shows that Frick, acting within the bounds of his
competency, took action solely in order to intervene against the terror
and arbitrary actions of the Gestapo through general instructions and
through repeated complaints in individual cases, so that the conclusion
is not justified that Frick in any way actively participated in the
Gestapo’s measures of terror and violence.

At a later period the legal situation changed. With Hitler’s decree of
17 June 1936—Document 2073-PS, Document Book Frick Number 35—police
tasks for the entire Reich were combined and uniformly transferred to
Himmler, whose department was formally made a part of the Ministry of
the Interior under the title “Reichsführer SS and Chief of the German
Police in the Reich Ministry of the Interior.”

The question now is whether this new regulation conferred on Frick, in
his capacity as Reich Minister of the Interior, any authority of command
or any right to issue instructions which could be enforced with regard
to the political police, its offices and its functionaries. When
Himmler, in accordance with his own wish, which he could gratify because
of his influence on Hitler, was appointed Police Chief for the entire
Reich, there did not exist in Germany a police or security ministry,
properly speaking.

This is the reason why the uniform direction of the police through
Himmler in person was formally attached to the Reich Ministry of the
Interior. But Himmler wanted to be more than a department chief in the
Ministry of the Interior. Therefore a position entirely novel in German
administrative law was created for him and his purposes. The entire
sphere of the police was separated from the rest of the activities of
the Ministry of the Interior and placed under Himmler’s special
jurisdiction under a newly created title of office which, as a
government office, contained the words “Reichsführer SS,” thereby making
it possible for Himmler to carry out political police tasks under a
title of office characterizing him as Reichsführer SS and in that
capacity giving him independence from any instructions issued by a
minister of state.

In order to accentuate further the independence of his office within the
bureaucratic hierarchy as well, Himmler was given the additional right
from the very beginning to represent police matters before the Cabinet
independently and on his own responsibility, like any Reich minister;
this is also shown in the decree concerning his appointment, Document
2073-PS. This decree is a typical example of the overlapping of
competencies which Hitler favored to excess in his government system.
Himmler became part of the Ministry of the Interior and, as an official
of the Ministry of the Interior, was formally bound to abide by
instructions of the Minister. However, he was also an independent Chief
of Police with the right to represent before the Cabinet on his own
responsibility matters pertaining to the Police, thus excluding Frick in
that respect. In addition to that, his orders simultaneously carried the
authority of the Reichsführer SS, in which Frick had no authority at all
to interfere.

In actual effect this involved arrangement also enhanced the tremendous
influence of Himmler on Hitler. In keeping with his convictions, and to
safeguard a well-ordered state apparatus, Frick repeatedly tried to
intervene through general instructions intended to restrain the
arbitrary acts of the political police. As late as 25 January 1938 he
tried through a decree to curtail the admissibility of protective
custody and he forbade it in a number of cases of improper application.
I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which
under Number 36 appears in the Frick document book. He prohibited
protective custody in lieu of, or cumulative to, a legal penalty,
forbade its application by police authorities of the intermediate or
subordinate levels, and gave orders that the accused should be heard
before arrest. He decreed periodical examination of the reasons for the
continuance of confinement and on principle forbade the protective
custody of foreigners, whom the Police had authority only to expel from
the Reich in case of acts endangering the State.

An obvious argument is that the Gestapo in practice disregarded all
these instructions of Frick and that Himmler and his subordinates
maintained an absolute reign of terror and violence. This is correct and
has been confirmed in detail by the witness Gisevius. But something else
appears of importance to me in the defense of Frick: To show that Frick
himself disapproved of such arbitrary acts and that he tried to do all
in his power to prevent them. Finally, however, Hitler forbade even
this. He informed him through Lammers—as confirmed by the latter as
witness—that he was not to concern himself with police matters, that
Himmler could manage that better by himself and that the Police was
doing well under Himmler.

Thus Himmler finally got complete control of the Police, and he gave
outward expression to this by later dropping, with Hitler’s consent,
from his official title, the words “in the Reich Ministry of the
Interior,” simply referring to himself as “Reichsführer SS and Chief of
the German Police,” which is also shown in the testimony of the witness
Lammers.

I believe that, in view of the circumstances, the problem of the
Defendant Frick’s criminal responsibility for the political police and
their arbitrary measures is not established by the fact that the entire
Police was formally incorporated in the Reich Ministry of the Interior
after the year 1936, since it has been proved! that Frick himself did
not participate in arbitrary acts, but on the contrary tried again and
again to intervene against such arbitrary practice with all the power he
possessed, which however was no match for the personality of Himmler and
his influence with Hitler.

In order to insure fair judgment, I request that the actual situation as
to power of command and authority, and not the purely superficial
circumstances of a formal incorporation of the tasks involved in the
Reich Ministry of the Interior, be taken into account.

I insert the following here: The Prosecution, during their presentation
on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in
connection with that document that it proved that the political police
were not only formally incorporated in the Ministry of the Interior, but
that Frick was in fact responsible for the measures of the Police.
Actually the document shows only that Frick as Minister of the Interior
was officially contacted in the matter of the sterilization of those
suffering from so-called hereditary diseases. The document has nothing
to do with any measures of the Police, least of all with any measures of
the political police. Moreover there is no information in it regarding
Himmler’s position in the Ministry of the Interior.

Now I will continue with my plea: In this connection, I must briefly
deal with the reference of the Prosecution to the fact that Hitler’s
decree concerning the appointment of Himmler as Chief of the German
Police—Document 2073-PS—had been countersigned by Frick himself.

I believe that the relationship between Frick and Himmler, as well as
their divergent relations to Hitler, are sufficiently clear to justify
the conclusion that the appointment of Himmler simply amounted to an
agreement between Hitler and Himmler, to which Frick would have objected
in vain. We are confronted with the same problem which applies to so
many defendants, namely, that of the formal countersigning of an order
issued by Hitler, which was then signed as a matter of form by the head
of a department, although that department head had no influence on the
order and could not have prevented it, especially as it would have had
full constitutional effect as a Führer decree without the minister’s
additional signature.

I now have to deal with several documents which the Prosecution consider
to have a bearing on actual activity by the Defendant Frick within the
sphere of tasks of the political police. I have already dealt with
Document 3304-PS, to which the Prosecution referred in this connection.
It concerns an ordinance on the assignment of a Higher Police Leader to
the Reichsstatthalter (Reich Governor) in the Eastern territories which
were incorporated into the commonwealth of the German Reich, and hence
deals with the administrative organization of the Reich Governor’s
office in a part of the Reich. This decree therefore falls within the
scope of the general competence of the Ministry of the Interior, and
accordingly does not furnish proof of any specific police activity.
Moreover, this decree has nothing to do with any arbitrary acts of the
Gestapo.

On the same lines in the decree of 20 September 1936—Document
2245-PS—concerning the appointment of police experts in the Prussian
provincial administrations, which were also subordinate to the Reich
Ministry of the Interior as offices of the general internal Reich
administration, the assignment of a police expert to the office of
general administration in the province is a measure of internal Reich
administration. This measure, too, had no connection with arbitrary acts
of the Gestapo, and more particularly it does not prove that the
defendant issued any instructions to the Gestapo.

The situation is no different with respect to the documents which have
been appraised by the Prosecution as demonstrating the participation of
the defendant in the establishment and administration of concentration
camps, or as a sign of approval of terror methods used by the Gestapo.
In their statement of 22 November 1945, the Prosecution referred to
Document 2533-PS as proof of the approval of these arrangements by the
Defendant Frick. I need not go further into the contents of the
document; it represents an article by the Defendant Frank in the journal
of the Academy of German Law, of which Frick has erroneously been called
the author by the Prosecution.

A further document does not, in the opinion of the Defense, contain
sufficient evidentiary value to be utilized in giving legal judgment. I
have in mind Document 2513-PS, Exhibit Number 235, which contains an
excerpt from a speech which Frick allegedly made in the year 1927. But
the excerpt is taken from a provincial Social Democrat newspaper, a
small paper opposed to Frick, the reporter thus having no authentic copy
of the speech at his disposal—and we all know what mistakes and
misunderstandings are apt to be contained in such short reports, the
wording of which cannot be checked by the speaker himself. Thus this
document, according to which Frick is said to have stated that history
is written not only with the ballot, but with blood and iron, is not a
reliable source.

The Prosecution refers to dealings concerning the expropriation of land
in order to extend the grounds of the Auschwitz Concentration Camp. The
general domestic administration is competent for expropriation matters,
and for this reason an official from the Ministry of the Interior was
called into negotiations, who stated, however—Page 2 of the English
translation of the document—that he was not authorized to dispose of
the freehold of the land. Thus one cannot from this document either
construe any political police activity on the part of the defendant, or
an approval of the concentration camp system. Finally, in this
connection the Prosecution states that the Defendant Frick personally
visited the Oranienburg and Dachau Concentration Camps. The defendant
does not deny the visit to Oranienburg in 1938, about which witness
Hoess testified. At that time, as witness Hoess himself testified, the
outward aspect of the camps was still generally that of a military
training area. In any case, an official visitor to a camp at that time
could not observe any indication of murder, ill-treatment, or similar
crimes, so that such a visit is not a decisive argument for knowledge of
crimes in the concentration camps.

On the other hand, Frick never visited the Dachau Concentration Camp,
contrary to the testimony of the witness Blaha. I refer to the testimony
of Gillhuber in regard to this, who as the constant companion of Frick
must have known about such a visit if it had taken place. I take the
liberty of pointing out that the two other constant companions of Frick
were also named by me as witnesses, but in agreement with the
Prosecution were considered by the Tribunal as unnecessary on the
grounds that one of the companions would be sufficient as a witness.

Before concluding this chapter, I still have to go into the matter of an
allusion made by the Prosecution which described Frick at one time as
the Chief of the Reich Security Main Office. I beg to refer to the
testimony of the witness Ohlendorf, who stated to the Court that the
Reich Security Main Office (RSHA) was a creation of Himmler, who
combined in this office his state police tasks and his functions as
Reichsführer SS, with which Frick had no connection of any kind, much
less any powers of command. The sole chief of this office was thus
Himmler himself.

I must go further into the charges which are made against the Defendant
Frick with respect to the persecution of members of the Jewish race.
Frick did collaborate in legal measures, particularly the Nuremberg
Laws, and in administrative measures which he regarded as an expression
of a National Socialist racial policy. On the other hand there is no
proof that Frick himself shared in or knew of the measures of physical
extermination which, on Hitler’s direct orders, were carried out by
Himmler and his organizations and kept absolutely secret from those who
themselves had no part in these frightful events. Further, in his
capacity as Minister of the Interior, the defendant is also accused of
collaboration in the killing of the sick and insane. Hitler’s basic
order is contained in Document 630-PS, Exhibit Number USA-342. This
document shows that Hitler did not give an order for this to any
government office but to two separate individuals, namely, Bouhler and
Dr. Brandt, so that this was quite outside the ministries’ authority.
Moreover, contrary to all rules, Hitler did not sign this order himself
in an official capacity as Führer and Reich Chancellor, but used private
stationery with the heading “Adolf Hitler.” This shows, a fact that the
witness Lammers has confirmed, that Hitler did not give an order for
these measures to the Ministry of the Interior or some other government
office, but to two of his Party comrades, and the Party emblem is the
only sign on this stationery. On the other hand, the documents submitted
by the Prosecution prove that complaints were made which also reached
the Ministry of the Interior, but they do not prove that, in
contradiction to Document 630-PS, Frick personally was contacted on the
subject of measures for the killings, or that he could have prevented
them.

After his dismissal as Minister of the Interior on 20 August 1943 Frick
was appointed Reich Protector of Bohemia and Moravia. Here he was given
a task which from the start was definitely limited in its competence.

I refer to Document 3443-PS, which is also included as USSR-60 and under
Number 29 in the Frick document book, and to 1366-PS, submitted by me as
Exhibit Number Frick-5a. Furthermore, I refer to the testimony of the
witness Lammers. The office of the Reich Protector was originally the
unified representation of Reich authority in the Protectorate. In actual
practice, however, its authority passed more and more to Frank, the
Reich Protector’s State Secretary at that time.

With the appointment of Frick in August 1943 through a Führer decree
which was not made public, the executive authority was now formally
transferred to Frank, who from that date received the official title of
“The German Minister of State in Bohemia and Moravia.” From that time on
the Reich Protector retained essentially the right of representation and
the right of pardon, improper use of which by Frick has been neither
maintained nor proved by the Prosecution. On the other hand Frank, as
“German Minister of State” according to the above-mentioned Führer
decree, derived his executive authority directly from Hitler by whom he
had been directly appointed, and from whom he received his instructions
without Frick’s interpolation, Frick being in no way competent to
exercise any influence thereon. Considering this state of affairs, the
Defendant Frick cannot be incriminated by Document 3589-PS, Exhibit
Number USA-720.

I now come to the Prosecution’s charge that Frick, by his membership in
certain organizations, is responsible for certain criminal actions. The
SS was one of these organizations mentioned by the Prosecution, to
which, however, Frick never belonged. Thus he was never a general in the
SS, as stated by the Prosecution. I would assume this to be merely an
error on the part of the Prosecution. In any case, the Prosecution did
not submit any form of proof. Frick was likewise never a member of the
SA, as shown—probably by mistake—in the chart indicating the
defendants’ membership in various organizations. For this too, there is
no proof.

The Prosecution has further charged Frick with being the supreme head of
the Gestapo, and therefore designated him as a member of this
organization, with the argument that since the appointment of Himmler in
1936 as Chief of the German Police the Gestapo has been formally
incorporated into the Reich Ministry of the Interior. But the Gestapo
had its own chief in the person of Himmler, from whom alone it took
orders, and Himmler’s formal subordination to the Minister of the
Interior does not make the latter a member of that organization, which
was exclusively under Himmler’s orders.

The Defendant Frick is further charged, in his capacity as Reichsleiter,
with membership in the Political Leadership Corps. My colleague, charged
with the defense of this organization, will in his turn deal with the
character of this organization. As to the Defendant Frick, I have only
to point out that he held the formal position of a Reichsleiter in his
role as chairman of the Reichstag faction of the NSDAP. The Reichstag
itself having lost all political importance after 1933, which requires
no further explanation, this position of Frick’s was in practice equally
unimportant and could not be compared with the position of a
Reichsleiter who administered important political departments.

Finally Frick, as Reich Minister, was a member of the Reich Cabinet.
With regard to the character and the authority of this organization I
also refer first of all to the statements, which are yet to follow, of
my colleague who has been appointed defense counsel for this
organization.

I refer here only to the testimony of Lammers and Gisevius, and further
to the excerpt from the book of this latter witness, which I have
submitted as Exhibit Number Frick-13 as evidence of the position and
authority which the Reich Cabinet had with respect to the dictatorial
practices of Hitler. From all this, the Defendant Frick appears as a
person who certainly took action politically to bring Hitler to power,
and who temporarily exercised a decisive influence on internal policy
after his goal had been achieved. All his measures, however, had inner
political aims; they were not intended to have anything to do with the
foreign political aims of a war of aggression, much less with Crimes
against Peace or against the rules of warfare—and, as also specified by
Article 6 of the Charter, only in such cases would this Court have
jurisdiction, as stated by the Prosecution itself.

When Frick realized later that the policy was taking a course of which
he could no longer approve, he tried to exert all his influence to bring
about a change. But he had perforce to find out more and more clearly
that Hitler would not listen to his remonstrances and complaints. On the
contrary, he was forced to realize that these complaints destroyed
Hitler’s confidence in him, and that he preferred to be advised by
Himmler and similarly minded persons, so that finally, after the year
1937, Frick was no longer received by Hitler when he wanted to present
complaints. Frick then gave up such hopeless attempts to bring about a
change in the situation. Things would not have been altered by his
resignation either, which the evidence has shown he repeatedly tendered
in vain. Thus his tragedy lies in his entanglement in a system, in the
first steps of which he had participated enthusiastically and the
development of which he had imagined would be quite different. In any
case, it appears important to me, in judging his personality and his
actions, that even this presentation of evidence, which has gone on for
months, has not given any proof of the personal participation of the
defendant in any crime.

It is not without reason that John Gunther in his book _Inside Europe_,
which I have presented to the Tribunal as evidence, describes precisely
the Defendant Frick as “the only honest Nazi.” At the same place Gunther
goes on to call him a “bureaucrat through and through.” Hitler himself
kept calling him the “pen pusher” (“Paragraphenschuster”) because
Frick—which was typical of him—did not become acquainted with him at
some public meeting, but in his office in the police department in
Munich in the year 1923.

This man felt enthusiasm for Hitler’s suggestive power, so lacking in
himself, a Hitler who with big words appealed to his heart, his honor,
and his patriotism. It was Hitler who made him proud of being able to
participate in the reconstruction of a German nation which, through
powerful armed forces, was to be in a position to play a peaceful yet
active role in world politics.

And it was again Hitler who knew how to make his program appear to the
bourgeois official Frick as the only way to forestall Bolshevik rule in
Germany—this and many more superficial truths, twisted statements, and
devices of propaganda which fooled so many people who fell for the
suggestive power of Hitler, not realizing in time that they had
subordinated themselves to the hypnotic will of a criminal, who was
prepared to overthrow the pillars of civilization for his aims and who
finally would leave Germany a monstrous spiritual and material field of
rubble, for the removal of which I pray that this Trial may also
contribute through a sentence in accordance with law and justice.

THE PRESIDENT: Dr. Marx.

DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen of the
Tribunal, Mr. President.

I begin the speech for the defense of Julius Streicher.

When in May of the past year the final battles of the greatest and most
horrible war of all time came to an end, the Germans were slow to rise
again from the stupor in which they had, for the most part, spent the
last months of the war. Like all the peoples of Europe they had suffered
unspeakably for years. The last months in particular, with their hail of
bombs, had brought so much misery to both the country and the people
that it almost surpassed human endurance. This terror was increased by
the knowledge that the war was lost, and by the fear of the uncertain
fate which the occupation period would bring. And when finally the
period of first anxiety had passed, when the German people were slowly
beginning to breathe again, paralyzing horror spread once more.

Through the press and radio, through newspapers and motion pictures,
knowledge was spread of the atrocities which had taken place in the
East, on the steppes and in the concentration camps. Germany learned
that people, men of its own blood, had slaughtered millions upon
millions of innocent Jewish people. Most people felt instinctively that
these deeds would necessarily be the greatest of all the accusations the
world had to level against Germany.

The question of whether the German people in its totality had known and
approved of these actions was, and is, the truly fateful question. It is
the touchstone by which the decision must be made as to whether or not
Germany will ever be able to return again as a nation with equal rights
into the common cultural and spiritual sphere of the world. As in every
case of guilt, there immediately arose here also the question as to who
was responsible, and the search for that individual. Who had ordered
these atrocities, who had carried them out, and how could such
inconceivable things have happened at all, the like of which cannot be
found in history even in the earliest days?

During all this asking and guessing, the news arrived that the former
Gauleiter of Franconia and publisher of Der Stürmer, the present
Defendant Julius Streicher, had fallen into the hands of the American
troops. From the echo this news aroused in the press, which was
exclusively directed and published by the occupying power, as well as in
the radio news, it was to be gathered that the world was of the opinion
that in the person of Julius Streicher not only had one of the numerous
anti-Semitic propaganda agents of the Third Reich been taken prisoner,
but in short Enemy Number One of the Jews.

Throughout the rest of the world the opinion evidently prevailed that in
the person of Julius Streicher not only the most active propaganda agent
for the persecution and extermination of the Jews had been seized, but
that he had also participated to the highest degree in carrying out
these acts of extermination. He was said to have been, as one heard, not
only the greatest hater of the Jews and the greatest preacher of
extermination of the Jews, but also the person to whose direct influence
one could trace back the extermination of European Jewry.

It is only from this angle that it can be explained why the Defendant
Streicher should sit here in the dock, together with the other
defendants, among those chiefly responsible for the National Socialist
system. For neither by virtue of his personality nor measured by his
offices and positions does he belong to the circle of leaders of the
NSDAP or to the Party’s decisive personalities. This view was probably
also held in the beginning by the Prosecution, but was abandoned by them
at an early stage, for the written Indictment already no longer charged
the Defendant Streicher with any personal and direct part in the
abominable mass murders. Rather did it state that there was less guilt
with which he would be charged than in the case of any of the other
defendants; only his propaganda, his activities by the written and
spoken word, were made the subject of the accusation against him.

As far as particulars are concerned, the Counts of the Indictment
against the Defendant Streicher were summed up as follows:

I. Support of seizure of power and consolidation of power of the NSDAP
after the latter’s entry into the Government.

II. Preparation of aggressive wars by propaganda aimed at the
persecution of the Jews.

III. Intellectual and spiritual preparation and education to encourage
hatred against the Jews,

(a) in the German people,

(b) in the German youth, and

(c) in the active extermination of Jewry.

Without Julius Streicher, no Auschwitz, no Mauthausen, no Maidanek, no
Lublin—thus the Indictment may be summed up briefly.

As far as Count One of the Indictment is concerned, the defendant does
not deny that as regards the Party’s later seizure of power he supported
and promoted it with all his might from its earliest inception. His
support went to the extent of placing a whole movement which he had
built up personally in Franconia at the disposal of Adolf Hitler’s Party
which was small after the first World War, as one can imagine, and
limited to southern Bavaria only. Furthermore, after Hitler’s release
from the fortress of Landsberg, he immediately joined him again and
subsequently championed his ideas and goals with the greatest
determination.

THE PRESIDENT: I think this is a good time to break off. The Tribunal
will adjourn.

      [_The Tribunal adjourned until 12 July 1946 at 1000 hours._]

                                 NOTES

-----

[1] Proceeding from this interpretation of the Charter there arises the
need for a discussion on how the Indictment is to be construed with
respect to the conspiracy charged therein. This construction is based on
the legal concept of Anglo-American law which determines the
responsibility of a plurality of persons differently and in a more
far-reaching way than the German penal code, which contains the
principles of law to which the accused were subject at the time when
they committed the deed. The German penal code also provides that a
person can be held responsible for offenses committed by others provided
he participated in a common plan which was later carried out by others.
But the German penal code places decisive weight on determining the
extent to which the acts committed at a latter date correspond to the
common plan. Since in the serious crimes which are being prosecuted
before this Court the determination of the form of guilt in the original
plan is necessary in order to permit punishment, later acts of
commission by others can be charged against a defendant only to the
extent to which they corresponded to arrangements to which the defendant
deliberately agreed. A defendant who participated in certain plans
cannot be held responsible for subsequent plans of a wider scope, or for
acts of commission which far exceeded the original plans without his
co-operation.

Responsibility for subsequent plans and acts of commission can be
established according to German law only if it can be proved that the
defendant, without participating in those subsequent plans and actions,
at the time of his original participation recognized and approved this
manner of development and execution and, in other words, deliberately
encouraged it.

To revert to the example of the Prosecution:

He who participates’ in the plan for robbing a bank is responsible if
this plan is carried out, even though he does not personally participate
in the execution. But a person does not at the same time become guilty
of premeditated murder if the active members subsequently and without
his participation discuss murdering the guard or in case one of the
members should shoot one of the guards without prior agreement, because
the latter has caught him in the act.

Nobody can be convicted of premeditated murder if he did not participate
in a plan to commit murder, unless it can be proved that when he
participated in the plan for robbing the bank such killing of a guard
was already contemplated and that in spite of this he approved the plan
for the bank robbery. In that case he, too, would have deliberately
contributed to the murder. In other words, according to the provisions
of German substantive criminal law there does not exist a liability for
so-called excesses of the immediate culprits or for an unforeseen
development of plans not originally conceived on such a wide scope, so
that a more far-reaching interpretation in line with the concept of
conspiracy in Anglo-American law, which at the time when the accused
committed their deed did not exist, would violate the principle which
prohibits retroactive application of penal laws.




                              ONE HUNDRED
                         AND SEVENTY-SEVENTH DAY
                          Friday, 12 July 1946


                           _Morning Session_

THE PRESIDENT: The Tribunal will adjourn today at 4 o’clock.

DR. MARX: Mr. President, with the permission of the Tribunal I shall now
continue with the presentation of the final plea for the Defendant
Streicher. Yesterday I had come to the point where the individual
accusations against Streicher had been summarized, and I had taken
liberty of explaining that these accusations are subdivided into three
different paragraphs:

1. Support of seizure of power and consolidation of the power of the
NSDAP after its entry into the Government.

2. Preparation of aggressive wars by propaganda aimed at the persecution
of the Jews.

3. Intellectual and spiritual preparation and education of the German
people and German youth to effect the destruction of Jewry and to
encourage hatred of the Jews.

With respect to Count One of the Indictment, the defendant does not deny
that, with regard to the Party’s later seizure of power, he supported
and promoted it with all his might from the very beginning. His support
went to the extent of a whole movement which he had built up personally
in Franconia and which he put at the disposal of Adolf Hitler’s Party,
which was quite small after the first World War and limited to Southern
Bavaria only. Furthermore, after Hitler’s release from the fortress of
Landsberg he immediately joined him again and subsequently championed
his ideas and aims with the greatest determination.

Until 1933 the defendant’s activity was limited to propaganda for the
NSDAP and its aims, particularly in the field of the Jewish question.
Nothing criminal can be seen in this attitude of the defendant as such.
Participation in a party within a state which allows such an opposition
party can be regarded as criminal only if, first of all, the aims of
such a party are objectively criminal and if, subjectively, a member of
such a movement knows, approves of, and thereby supports, these criminal
aims.

The foundation of the entire charges against all the defendants lies in
this very fact that the NSDAP is accused of having had criminal aims
from the very beginning. According to the assertion of the Prosecution,
the members of this Party started out with the plan of subjugating the
world, of annihilating foreign races, and of setting the German master
race above the whole world. They are accused of having harbored the will
to carry out these aims and plans from the very outset by means of
aggressive wars, murder, and violence. If, therefore, the Defendant
Streicher’s mere participation in the NSDAP and his support of it are to
be ascribed to him as a crime, it must be proved that the Party had such
plans and that the defendant knew and approved of them.

The gentlemen who spoke before me have already demonstrated sufficiently
that a conspiracy with such aims did not exist. Therefore I can save
myself the trouble of making further statements on this subject and I
can refer to what has already been set forth by the other defense
counsel. I have only to deal with the point that the Defendant Streicher
did not in any case participate in such a conspiracy, if the latter
should be considered by the High Tribunal to have existed.

The official Party Program strove to attain power in a legitimate way.
The aims advocated therein cannot be considered as criminal. Thus, if
such aims did actually exist, they could only—by the very nature of a
conspiracy—be known in a restricted circle.

The Party Program was not kept secret but was announced at a public
meeting in Munich, so that not only the whole public of Germany but also
that of the entire world could be informed about the aims of the Party.
Therefore that element supplied by secret agreement towards a common
aim, which is usually the characteristic sign of a conspiracy, is not
present.

The evidence too, has shown nothing to the effect that already at that
time there existed a plan for a war of revenge or aggression connected
with the previous or simultaneous extermination of the Jews. If,
nevertheless, a conspiracy should have existed, the latter would have
confined itself to the restricted circle which revolved exclusively
around Hitler. But the Defendant Streicher did not belong to that
circle. None of the offices he occupied provides the least proof of
that. As an old Party member he was just one among many thousands. As
honorary Gauleiter, as honorary SA Obergruppenführer, he was also only
an equal among equals. Thus one cannot find in any of the offices he
held any connection or complicity with the innermost circle of the
Party. It is also impossible to discern after the end of 1938 any
personal relations with the leading men of the Movement, either with
Hitler himself or with the Defendant Göring, or with Goebbels, Himmler,
or Bormann.

The Prosecution did not offer any evidence on this point, nor did the
proceedings produce any proof to that effect. Of all the material
presented during all these months of the Trial, nothing can be taken as
even a shadow of proof that the Defendant Streicher was so closely
connected with the supreme authority of the Party that he could have, or
even must have, known its ultimate aims.

In the Jewish question too the final aims of the Party—the effects of
which were manifest in the concentration camps—were not, before the
seizure of power and for several years after, formulated and determined
as they appeared in the end. The Party Program itself provided for Jews
to be placed under aliens’ law, and so the laws issued in the Third
Reich followed this line. Only later on, it may be added, the program in
this as in many other points became more radical and finally went
haywire altogether under the influence of the war. But any proof that
the Defendant Streicher knew other aims than those of the official Party
Program has not been offered. Consequently it has not been proved that
the defendant supported the seizure of power of the Party in cognizance
of its criminal aims; and only on such a basis could a penal charge be
brought against him.

The fact that the defendant, as Gauleiter, further endeavored to
increase and maintain the power of the Party after the seizure of power
is not disputed by him. But here, too, the defendant’s conduct can only
be considered punishable if he knew at that time the objectionable aims
of the Party. As a matter of actual fact it must be said here that the
Defendant Streicher, in contrast to almost all the other defendants, did
not remain in his position until the end, not even until the war.
Officially he was dismissed in 1940 from his position of Gauleiter, but
actually and practically he had been without any influence and power for
more than a year before that time. But as long as he could still work
within the modest framework of his capacity of Gauleiter, no criminal
plans of the NSDAP were recognizable. In any case not for anybody who,
like the Defendant Streicher, was outside the close circle surrounding
Adolf Hitler.

Count Two of the Indictment brought against the Defendant Streicher,
namely, the persecution of Jews as a means of preparation for a war of
aggression, can be included here. Up to 1937 the existence of a plan for
a war of aggression was in no way recognizable. In any case, if Hitler
had had any intentions in that direction, he did not allow them to be
recognized from the outside. If, however, anybody had been taken into
his confidence at that time, it would have been the leading men in
politics and the Armed Forces, who belonged to the closest circle around
him. To those, however, the Defendant Streicher by no means belonged. It
is especially significant here that at the outbreak of the war Streicher
was not even appointed Wehrkreiskommissar (Commissioner of Military
Administrative Headquarters) of his Gau. The individual conferences from
which the Prosecution derives the evidence for the planning of the war
which broke out later in no case ever saw the Defendant Streicher as
participant. His name does not appear anywhere, neither in any written
decree, nor in any minutes. Consequently no proof has been offered that
Streicher knew of such alleged plans for waging war. This does away with
the accusation that he preached hatred against the Jews in order to
facilitate thereby the conduct of the war planned for some later time.

In this connection I should add that one of the main points in the
program of the NSDAP was the slogan, “Get rid of Versailles!” The
defendant adopted this point of the program which, however, does not
mean he envisaged a repeal of the treaty by means of war.

Even the former democratic German governments, in the course of their
negotiations with their former opponents in the World War, stressed the
fact at all times that the Versailles Treaty presented no proper basis
for permanent world peace and particularly for economic adjustment. Not
only in Germany but everywhere in the rest of the world clear-thinking
economic circles were against the Versailles Treaty. We may point
especially to the United States of America as an example of this.

Almost all political parties in Germany, irrespective of their other
aims, agreed that the Treaty of Versailles should be revised. Neither
was there any difference of opinion over the fact that such revision was
possible only on the basis of an agreement. Even to consider any other
possibility of solution would have seemed Utopian, for the German Reich
lacked all military power. The NSDAP also strove, at any rate as far as
could be seen from outward signs, to find a solution to the problem in
this way. To support such an aim, however, cannot be looked upon as a
violation of treaty obligations and, therefore, cannot be made the
object of a charge against the defendant. No proof has been offered that
he thought of warlike complications or that he desired them.

I now come to the matter of the defendant’s attitude in the Jewish
question. He is accused of having incited and instigated for decades the
persecution of the Jews and of being responsible for the final
extermination of Europe’s Jewry. It is clear that this accusation
constitutes the decisive point of the Indictment against Julius
Streicher and perhaps the decisive point of the total Indictment, for in
this connection the attitude of the German people to this question must
be tried and judged as well. The Prosecution takes the point of view
that there is just as little doubt as to the responsibility of the
defendant as there is doubt about the guilt in which the German people
are involved. As evidence of this the Prosecution put forward:

(a) The speeches by Streicher before and after the seizure of power,
particularly one speech in April 1925, in which, he spoke about the
extermination of the Jews. Herein, in the prosecutor’s opinion, is the
first evidence to be seen regarding the final solution of the Jewish
question planned by the Party, namely, the extermination of all Jews.

(b) Active assertion of the person and authority of the defendant,
especially on “Boycott Day,” 1 April 1933.

(c) Numerous articles published in the weekly paper, _Der Stürmer_,
among them especially those dealing with ritual murder and with
quotations from the Talmud. He is said to have knowingly and
intentionally described therein the Jews as a criminal and inferior race
and created and wished to create hatred of these people and the wish to
exterminate them. The defendant’s reply to these points is as follows:

He states that he worked merely as a private writer. His aim was to
enlighten the German people on the Jewish question as he saw it. His
description of the Jews was merely intended to show them as a different
and a foreign race and to make it clear that they live according to laws
which are alien to the German conception. It was far from his intention
to incite or inflame his circle of listeners and readers. Moreover, he
always only propagated the idea that the Jews, because of their alien
character, should be removed from German national and economic life and
withdrawn from the close association with the body of the German people.

Further, he always had in mind an international solution of the Jewish
question; he did not favor a German or even European partial solution
and rejected it. That was why he suggested, in an editorial in _Der
Stürmer_ in the year 1941, that the French island of Madagascar should
be considered as a place of settlement for the Jews. Consequently, he
did not see the final solution of the Jewish question in the physical
extermination of the Jews but in their resettlement.

It cannot be the aim of the Defense to go into further details of the
defendant’s actions as a writer and speaker, particularly with regard to
_Der Stürmer_ and his reply to the accusations raised against him. His
ideology and convictions shall not be explained, excused, or defended,
nor his manner of writing and speaking either. Examination and judgment
in this respect rest with the Tribunal alone. This much only shall be
said, that between the defendant’s actions and the expressions
frequently employed by him there is an antithesis which cannot be
bridged. It may be stated that the defendant never, when in charge of an
anti-Jewish undertaking, had coercive measures used against the Jewish
population, as might necessarily be expected of him if the accusations
made by the Prosecution were true.

I consider it my duty as defense counsel to broach and examine the
question as to whether the Defendant Streicher with his speeches, his
actions and his publications, not only strove towards the result alleged
by the Prosecution but actually attained it. The question therefore
should be examined as to whether Streicher actually educated the German
people to a degree of anti-Semitism which made it possible for the
leadership of the German nation to commit such criminal acts as actually
occurred. Furthermore, it must be examined whether the defendant filled
German youth with hatred against the Jews to the extent that is charged
by the Prosecution. Finally, the question must be examined whether
Streicher actually was the man who spiritually and morally prepared the
executive organs for their active persecution of the Jews.

At the beginning of this exposition it appears important to point out
that a great many of _Der Stürmer_ articles, from which the Prosecution
endeavors to deduce an incitement to stamp out and annihilate the Jews,
were not written by Streicher himself, but by his collaborators,
especially by the Deputy Gauleiter, Karl Holz, who was well known for
extremely radical tendencies. Even though the Defendant Streicher bears
formal responsibility for these articles, which responsibility he
expressly assumed before the Tribunal, this aspect nevertheless appears
very important for the extent of his criminal responsibility.

Further it may be said in this connection that, according to the
unrefuted statement of the defendant, the most caustic articles were
written in reply to articles and writings in the foreign press, which
contained very radical suggestions for the destruction of the German
nation—also, no doubt, due to the existing war psychosis.

The Defendant Streicher—and this cannot be denied and shall not be
defended—continually wrote articles in _Der Stürmer_ and also made
speeches in public which were strongly anti-Jewish and at least aimed at
the elimination of Jewish influence in Germany. During the first years
Streicher found a comparatively favorable soil for his anti-Jewish
tendencies. The first World War ended with Germany’s defeat, but wide
circles did not wish to admit the fact of a military victory of
Germany’s opponents of that time. They attributed this defeat
exclusively to a breakdown of national defense and resistance from
within and depicted Jewry as being the main culprit for this inner
undermining. In doing this they intentionally overlooked the mistakes
which had been committed by the Government of that time before and
during the war with respect to domestic and foreign policy, as well as
the errors of strategy. A scapegoat was sought on which to lay the blame
for the loss of the war, and it was thought to have been found in the
Jews. Jealousy, envy, and also disregard of personal shortcomings
accomplished the rest in influencing feelings unfavorably toward the
Jewish population. In addition to that came the inflation and in the
following years the economic depression with its steadily increasing
misery which, as experience shows, makes any nation ripe for any form of
radicalism.

On this ground and in this setting _Der Stürmer_ developed. For these
reasons it first met with a certain amount of interest and attracted a
considerable number of readers. But even in the last years before the
seizure of power it did not have great influence; its distribution
hardly went beyond Nuremberg and its close vicinity. By means of attacks
on persons known locally in Nuremberg and in other places, it managed to
arouse in these localities, from time to time, a certain amount of
interest and thereby to extend its circle of readers. Certain parts of
the population were interested in the propagation of such scandal and
for that reason subscribed to _Der Stürmer_.

But criminal action can only be seen here—and this is presumably the
opinion of the Prosecution also—if this type of literary and oral
activity led to criminal results. Now, was the German nation really
filled with hatred for the Jews by _Der Stürmer_ and by Streicher’s
speeches in the sense and to the extent asserted by the Prosecution?

The Prosecution submitted the evidence on this point in a very brief
manner. It draws conclusions, but it has not produced actual proof. It
alleges the existence of results, but cannot produce evidence for that
assumption. The prosecutor has maintained that without Streicher’s
incitements over a number of years the German people would not have
sanctioned the persecution of the Jews and that Himmler would not have
found among the German people anyone to carry out the measures for the
extermination of the Jews. If, however, the Defendant Streicher is to be
made legally responsible for this, then not only must it be proved that
the incitement as such was actually carried through and results achieved
in this direction; but—and this is the decisive point—conclusive proof
must be produced that the deeds which were done can be traced back to
that incitement. It is not the question of the result obtained which
must primarily and irrefutably be proved but the causative connection
between incitement and result. Now, how is the influence of _Der
Stürmer_ upon the German people to be estimated, and what picture
unfolds in the handling of the Jewish problem during the years between
1920 and 1944?

It is easy to recognize here three stages of development. The first
period comprises the time of the defendant’s activity between 1922 and
1933; the second that between 1933 and 1 September 1939, or February
1940; the third, the time from 1940 to the collapse.

With regard to the first period, it would show a considerable lack of
appreciation of the tendencies which had already existed in Germany for
a long time and thereby a completely groundless exaggeration of
Streicher’s influence, if no mention were made of the fact that long
before Streicher there was already a certain amount of anti-Semitism in
Germany. For instance a certain Theodor Fritsch had touched on the
Jewish question in his journal _Der Hammer_ long before Streicher’s
time, referring especially to the alleged menace offered by the
immigration of Jewish elements from the East, which might overflow the
country and acquire too much control in it.

Immediately after the end of the first World War the so-called “German
National Protective and Defensive League” (Deutsch-Völkischer Schutz-
und Trutzbund) appeared on the scene, which in contrast to _Der Stürmer_
and the Movement brought into being by Streicher, extended over the
whole of Germany, setting as its aim the repression of Jewish influence.
Anti-Semitic groups existed in the South as well as in the North long
before Streicher. In comparison with these large-scale efforts, _Der
Stürmer_ could only have a regional importance. This alone explains why
its influence was never at any time or in any place of great importance.

It is a decisive fact, however, that the German nation in its totality
did not let itself be influenced by all these groups either in its
business relations or in its attitude towards Jewry and that even during
the last years before the NSDAP came to power no violent actions against
the Jews were committed anywhere by the people. However, when towards
the end of the second decade after the first World War a considerable
increase of the NSDAP became noticeable, this was not due to
anti-Semitic reasons but to the fact that the prevailing confusion in
the various parties had been unable to point to a way out of the
ever-increasing economic misery. The call for a strong man became ever
more urgent. The conviction became more and more firmly rooted among the
broad masses that only a personality who was not dependent on the change
of majorities would be able to master the situation.

The NSDAP knew how to exploit this general trend for its own ends and to
win over the nation, sunk in despair, by making promises in all
directions. But never did the masses think, when electing the NSDAP at
that time, that its program would produce developments as we have
witnessed.

With the seizure of power by the NSDAP in 1933, the second epoch was
introduced. The power of the State was exclusively in the hands of the
Party and nobody could have prevented the use of violence against the
Jewish population. Now would have been just the right moment for the
Defendant Streicher to put into effect the baiting the Prosecution has
alleged. If by that time wide circles of the population, or at least the
veteran members of the NSDAP, had been trained to be radical Jew haters,
as stated by the Prosecution, acts of violence against the Jewish
population would necessarily have taken place on a greater scale due to
that feeling of hatred. Pogroms on the largest scale would have been the
natural result of a truly anti-Semitic attitude of the people. But
nothing like that happened. Apart from some minor incidents, evidently
caused by local or personal conditions, no attacks on Jews or their
property took place anywhere. It is quite clear that a feeling of hatred
for the Jewish people did not prevail anywhere at least up to 1933, and
the charge brought by the Prosecution against the defendant that ever
since the very outset of his fight he successfully educated the German
people to hate the Jews can thus be dropped.

The year of the seizure of power by the NSDAP also put _Der Stürmer_ to
a decisive test. Had _Der Stürmer_ been considered by the broad masses
of the German people as the authoritative champion against the Jews and
therefore indispensable for that fight, an unusually large increase in
the circulation would have followed. No such interest was, however,
shown. On the contrary, even in Party circles demands were made that
_Der Stürmer_ should be discontinued entirely; or at least that its
illustrations, style, and tone should be altered. It became more and
more clear that the already small interest in Streicher’s Jewish policy
was steadily declining. It must be added that with the seizure of power
by the Party the total press apparatus came under the control of the
Party, which immediately undertook to co-ordinate the press, that is, to
direct it from a central office in the spirit of the National Socialist
policy and ideology. This was done through the Minister of Propaganda
and the Reich Press Chief via the official “National Socialist
Correspondence.” Particularly Dr. Goebbels, the Minister of Propaganda,
described by various witnesses such as Göring, Schirach, Neurath, and
others as the most bitter advocate of the anti-Semitic trend in the
Government, is said to have given each week to the entire German press
several anti-Jewish leaders, which were printed by more than 3,000
dailies and illustrated papers. If in addition we take into account that
Dr. Goebbels was making broadcasts of an anti-Semitic nature, we need no
further explanations for the fact that the interest in a one-sided
anti-Semitic journal should diminish and that is what actually happened.

It is particularly significant that at that time it had been repeatedly
suggested that _Der Stürmer_ should be suppressed altogether. This is
brought out clearly in the testimony given by Fritzsche, on 27 June
1946, who stated in addition that neither Streicher nor _Der Stürmer_
had any influence in the Ministry of Propaganda and that he was
considered so to speak as nonexistent. It may have been for the same
reason that _Der Stürmer_ was not even declared a press organ of the
NSDAP and was not even entitled to show the Party symbol. It was looked
upon by the Party and State administration, in contrast to all papers
which were considered to be of any importance, as a private paper
belonging to a private writer.

The firm which published _Der Stürmer_, and which belonged at that time
to a certain Härdel, was not inclined, however, to accept so quietly the
dwindling of its circle of readers, for it was now aided by the fact
that Streicher had become the highest leader in Franconia; and it knew
how to make the most of this circumstance. Already at that time pressure
was exerted on many sections of the population to prove their loyal
political attitude and trustworthiness by subscribing to _Der Stürmer_.
The witness Fritzsche also has alluded to this circumstance, stating
that many Germans only decided to subscribe to _Der Stürmer_ because
they thought it would be a means of paving the way for their intended
membership in the Party.

So as not to give a false impression of the circulation figures of _Der
Stürmer_ during the years between 1923 and 1933, the following analysis
will show the different stages of its development.

In the years 1923 to 1933 _Der Stürmer_ was able to increase its
circulation from some 3,000 to some 10,000 copies, and this in turn went
up to some 20,000 shortly before the seizure of power. On the average,
however, between 1923 and 1931 the circulation was only some 6,000
copies. Following the seizure of power, by the end of 1934 it had
reached an average of some 28,000 copies. It was not until 1935 that
_Der Stürmer_ became the property of the Defendant Streicher who,
according to his statement, bought it from the widow of the previous
owner for 40,000 RM—a not very considerable sum. From 1935 on the
management of the business was taken over by an expert, who succeeded by
clever canvassing in increasing the circulation to well over 200,000
copies; and this figure was later increased still further until it more
than doubled. The relatively low circulation figures for _Der Stürmer_
up to the beginning of 1935 show that, despite the Party’s rise to
power, popular interest in _Der Stürmer_ existed only to a small extent.
The extraordinary increase in the circulation which began in 1935 is to
be traced to the adroit canvassing methods already mentioned which were
carried out by the new director Fink. The use of the Labor Front, as
explained by the proclamation of Dr. Ley in Number 36 of _Der Stürmer_,
1935—which copy, Mr. President, I have taken the liberty of submitting
as an exhibit—and the acquisition thereby of many thousands of forced
subscribers must be ascribed to the personal relations of the manager
Fink with Dr. Ley.

In that connection I further refer to a quotation from the _Pariser
Tageblatt_ of 29 March 1935 reproduced in _Der Stürmer_ of May 1935.
Here, too, it is stated that the increase of _Der Stürmer’s_ circulation
cannot be ascribed to the desire of the German people for such kind of
spiritual food. It is neither presumable nor probable in any way that
the compulsory subscription to _Der Stürmer_, forced on the members of
the Labor Front in such a manner, could have actually turned subscribers
into readers of _Der Stürmer_ and followers of its line of thought. On
the contrary, it is known that bundles of _Der Stürmer_ in their
original wrappings were stored in cellars and attics and that they were
brought to light again only when the paper shortage became more acute.

When, therefore, the Defendant Streicher wrote in his paper in
1935—Document Number GB-169—that the 15 years’ work of enlightenment
of _Der Stürmer_ had already attracted to National Socialism an army of
a million of “enlightened” members, he claimed a success for which there
was no foundation whatsoever. The men and women who joined the Party
after 1933 did not apply for membership as a result of the so-called
enlightenment work of _Der Stürmer_ but either because they believed the
Party’s promises and hoped to derive advantages from it or because by
belonging to the Party they wanted, as the witness Severing expressed
it, to insure for themselves immunity from political persecution. The
sympathy for the Party and its leadership very soon decreased in the
most marked manner. Thus the Defendant Streicher, too, lost authority
and influence to an ever-increasing extent even in his own district of
Franconia, at least from 1937 on. The reasons for this are sufficiently
known.

Toward the end of 1938 he saw himself deprived of practically all
political influence, even in his own district. The controversy between
him and Göring ended with the victory of the latter. Hitler, when
pressed to do so by the Defendant Göring, had dropped Streicher
completely, as the Commander-in-Chief of the Luftwaffe at that time was
naturally more important and far more influential than the Gauleiter,
Streicher. The defendant even had to submit to Aryanization as carried
out in the district of Franconia with its correctness being checked by a
special commission sent by Göring. In the course of the year 1939
Streicher was completely pushed aside and was even forbidden to speak in
public. At the outbreak of the war, in contrast to all other Gauleiter,
he was not even appointed to the position of Wehrkreiskommissar of his
own district.

During the last phase, in the war years, the Defendant Streicher had no
political influence whatsoever. As from February 1940 he was relieved of
his position as a Gauleiter and lived on his estate in Pleikershof, cut
off from all connections. Even Party members were forbidden to visit
him. Since the end of 1938 he had no connections whatsoever with Hitler,
by whom he had been completely cast off from that time on.

In what way now did _Der Stürmer_ exert any influence during the war
period? It can be said that during the war _Der Stürmer_ no longer
attracted any attention worth mentioning. The gravity of the times, the
anxiety for relatives on the battlefield, the battles at the front, and
finally the heavy air attacks completely diverted the German people’s
interest from questions dealt with in _Der Stürmer_. The people were
weary of the continuous repetition of the same assertions. The best
proof of how little _Der Stürmer_ was desired as reading matter can be
seen in the fact that in restaurants and cafés _Der Stürmer_ was always
available for perusal, whereas other papers and magazines were
permanently being read. The circulation figures decreased steadily and
unceasingly in those years. Certainly the influence of _Der Stürmer_ in
the political sphere no longer amounted to anything.

During the periods mentioned _Der Stürmer_ was rejected by large circles
of the population from the very outset. Its crude style, its often
objectionable illustrations, and its one-sidedness aroused widespread
displeasure. There can be no question of any influence being exercised
by _Der Stürmer_ upon the German people or even the Party. Although the
German people for years had been deluged with Nazi propaganda, or rather
because of that very fact, a journal such as _Der Stürmer_ could exert
no influence upon its inner attitude. Had the German people—as
maintained by the Prosecution—actually been saturated with the spirit
of fanatical racial hatred, other factors certainly would have been far
more responsible for it than _Der Stürmer_ and would have contributed
far more essentially to a hostile attitude towards the Jews.

But nothing of such nature can be established. The general attitude of
the German people was not anti-Semitic, at any rate, not in such a way
or to such a degree that they would have desired, or approved of, the
physical extermination of the Jews. Even official Party propaganda with
regard to the Jewish problem had exerted no influence upon the broad
masses of the German people, neither had it educated them in the
direction desired by the State leadership.

This is shown by the fact that it was necessary to issue a number of
legal decrees in order to segregate the German population from the
Jewish. The first example of this is the so-called Law for the
Protection of German Blood and German Honor of September 1935, by the
provisions of which any racial intermingling of German people with the
Jewish population was subject to the death penalty. The passing of such
laws would not have been necessary if the German people had been
predisposed to an anti-Semitic attitude, for they would then of their
own accord have segregated themselves from the Jews.

The law for the elimination of the Jews from German economic life,
promulgated in November 1938, was along the same lines. In a people
hostile towards the Jews, any trade with Jewish circles would have
necessarily ceased and their business would have automatically come to a
standstill. Yet in fact the intervention of the State was needed to
eliminate Jewry from economic life.

The same conclusion can be drawn from the reaction of the greater part
of the German populace to the demonstrations carried out against the
Jews during the night of 9-10 November 1938. It is proved that these
acts of violence were not committed spontaneously by the German people
but that they were organized and executed with the aid of the State and
Party apparatus upon instructions of Dr. Goebbels in Berlin. The result
and the effect of these State-directed demonstrations—which in a
cynical way were depicted for their effect abroad as an expression of
the indignation of the German people at the assassination of the
Secretary of the Embassy in Paris, Vom Rath—were different from that
visualized by the instigators of this demonstration.

These acts of violence and excesses based upon the lowest instincts
found unanimous condemnation, even in the circles of the Party and its
leadership. Instead of creating hostility towards the Jewish population
they roused pity and compassion for their fate. Hardly any other measure
taken by the NSDAP was ever rejected so generally. The effect upon the
public was so marked that the Defendant Streicher in his capacity as
Gauleiter found it necessary in an address in Nuremberg to give a
warning against exaggerated sympathy for the Jews. According to his
statement he did not do this because he approved of these measures but
only in order to strengthen by his influence the impaired prestige of
the Party.

Previously, as appears from the testimony of the witness Fritz Herrwerth
examined here, he refused SA Obergruppenführer Von Obernitz’s request to
take part personally in the demonstration planned and called it useless
and prejudicial. He publicly expressed this point of view later also,
during a meeting of the League of Jurists at Nuremberg. In doing so he
risked placing himself in open opposition to the official policy of the
State.

All these facts show that despite the anti-Jewish propaganda carried on
by the Government, actual hostility against the Jewish population did
not exist among the people themselves. Thus it is as good as proved that
neither Streicher’s publications in _Der Stürmer_ nor his speeches
incited the German people in the sense maintained by the Prosecution.
Therefore the general attitude of the German nation provides no proof of
incitement to hatred of the Jews having been successfully carried out by
the Defendant Streicher and leading to criminal results. The
Prosecution, however, has further supported its accusation by the
specific assertion that only a nation educated to absolute hatred of
Jews by men like the defendant could approve of such measures as the
mass extermination of Jews. Thereby the charge is made against the whole
of the German people that they knew about the extermination of the Jews
and approved of it; the severity and consequences of such a charge on
the whole future of the German nation is impossible to estimate.

But did the German nation really approve of these measures? A fact can
only be approved of if it is known. Therefore should this assertion of
the Prosecution be considered as proved, then logically it must also be
considered as proved that the German nation actually had knowledge of
these occurrences. However, evidence in this respect has shown that
Reichsführer SS Himmler, who was entrusted by Hitler with the mass
assassinations, and his close collaborators shrouded all these events in
a veil of deepest secrecy. By threatening with the most severe
punishments any violations of the rule of absolute silence which was
imposed, they managed to lower before the events in the East and in the
extermination camps an iron curtain which hermetically sealed off those
facts from the public.

Hitler and Himmler prevented even the corps of the highest leaders of
the Party and State from gaining any insight and information. Hitler did
not hesitate to give false information to even his closest
collaborators, like Reich Minister Dr. Lammers, who was heard here as a
witness, and to make him believe that the removal of the European Jews
to the East meant their settlement in the Eastern Territories but by no
means their extermination. However much the statements of the defendants
may diverge on many points, in this connection they all agree so
completely with one another and with the statements of other witnesses
that the veracity of their testimonies simply cannot be questioned. If
it was not possible for even the Defendant Frank in his capacity as
Governor General of Poland to get through to Auschwitz, because without
Hitler’s special consent even he was denied entrance, then this fact
speaks for itself.

If even the leading personalities of the Third Reich, with the exception
of a very small circle, were not informed and if even they had at best
very vague information, then how could the general public have known
about it? Under these circumstances the possibilities for finding out
what was going on in the camps were extremely slight.

For the majority of the people, foreign news did not exist as a source
of information. Listening to foreign radio stations was punishable with
the heaviest penalties and therefore did not take place. And if it did,
the news broadcast by foreign radio stations concerning events in the
East, although, or rather because, it corresponded to facts, was so
crass, so horrible beyond any human understanding, that it was bound to
appear to any normal individual, as in fact it did, as intentional
propaganda. Germany could only gain factual knowledge of the
extermination measures against the Jews from people who either were
working in the camps themselves or came in contact with the camps or
their inmates or from former concentration camp inmates.

There is no need to explain that members of the camp personnel who were
concerned with these happenings kept silent, not only because they were
under stringent orders to do so, but also in their own interest.
Furthermore, it is known that Himmler had threatened the death penalty
for information from the camps and for spreading news about the camps
and that not only the actual culprit but also his relatives were
threatened with this punishment. Finally, it is known that the
extermination camps themselves were so hermetically sealed off from any
contact with the world that nothing concerning the events which took
place in them could penetrate to the public.

The prisoners in the camps who came into contact with fellow-workers in
their work kept silent because they had to. People who came to the camps
were also under the threat of this punishment insofar as they could
obtain any insight into things at all, which was all but impossible in
the extermination camps. From these sources, therefore, no knowledge
could come for the German people.

But the order for absolute silence was compulsory to a still greater
measure for every concentration camp inmate who had been released.
Hardly anybody ever came back to life from the actual murder camps; but
if, once in a while, a man or woman was released, in addition to the
other threatened punishments the threat of being sent back to the camp
hung over them if they violated the order for silence. And this renewed
detention would have meant gruesome death.

It was therefore nearly impossible to learn from released concentration
camp prisoners positive facts concerning the occurrences in the camps.
If this was the case with regard to normal concentration camps in
Germany, it applied in a still greater measure to the extermination
camps. Every lawyer who, as I did, defended people before detention in a
concentration camp and who was visited by them again after their
release, will be able to confirm that it was not possible, even in such
a position of trust and under the protection of professional legal
secrecy, to get former concentration camp inmates to talk.

If men such as Severing, who testified here—a Social Democrat of long
standing, who was highly trusted by his party comrades and who was,
because of this, in touch with many former concentration camp
inmates—came to know of the real facts connected with the extermination
of the Jews only very late and even then to a very restricted extent,
then such considerations must apply even more to any normal German.

It can be derived with absolute certainty from these facts that the
leaders of the State, that Hitler and Himmler, wanted under all
circumstances to keep secret the extermination of the Jews; and this
forms the base for another argument—in my opinion, a cogent
one—against the anti-Semitism of the German people asserted by the
Prosecution. If the German people had indeed been filled with such
hatred of Jewry as the Prosecution affirms, then such rigorous methods
for secrecy would have been superfluous.

If Hitler had been convinced that the German nation saw in the Jews its
principal enemy, that it approved of and desired the extermination of
Jewry, then he would obviously have published the planned and also the
effected extermination of this very enemy. As a sign of the “total war”
constantly propagandized by Hitler and Goebbels, there would indeed have
been no better means to strengthen the faith in victory and the will of
the people to fight than the information that Germany’s principal enemy,
these very Jews, had already been annihilated.

So unscrupulous a propagandist as Goebbels certainly would not have
failed to use such a striking argument if he could have based it on the
necessary presupposition, that is, the German people’s absolute
determination to exterminate the Jews. However, the “final solution” of
the Jewish question had by all possible means to be kept secret even
from the German people who had for years been subjected to the heaviest
pressure by the Gestapo. Even leading men in the State and the Party
were not allowed to be told of it.

Hitler and Himmler were evidently themselves convinced that even in the
midst of a total war, and after decades of education and gagging by
National Socialism, the German nation—and above all its Armed
Forces—would have reacted most violently on the publication of such a
policy against the Jews. The policy of secrecy followed here cannot be
explained by any considerations of the enemy nations. In the years 1942
and 1943 the whole world was already engaged in a bitter war against
National Socialist Germany.

An intensification of this struggle seemed hardly possible, at any rate
not by the mere publishing of facts which had long since become known
abroad. Apart from this, considerations of making a still worse
impression on the enemy countries could hardly influence men such as
Hitler, Goebbels, and Himmler.

If they had expected to achieve even the slightest tangible results by
proclaiming to the German people the extermination of the Jews, they
would certainly not have omitted to proclaim it. On the contrary, they
would have tried in every way to strengthen by this means the German
people’s faith in victory. The fact that they did not do this is the
best proof that even they did not consider the German people radically
anti-Semitic, and it is also the best proof that there can be no
question of such anti-Semitism on the part of the German people.

I may therefore sum up by saying that all this stands in contradiction
to the Prosecution’s assertion that the Defendant Streicher brought up
the German people to hate the Jews to an extent which made them approve
of the extermination of Jewry. Therefore, even if the defendant by means
of his proclamations had aimed at achieving such an end he was not
successful.

In this connection, light must also be thrown upon the part attributed
by the Prosecution to the Defendant Streicher, namely that he had
educated German youth in the spirit of anti-Semitism and had inculcated
the poison of anti-Semitism so deeply into their hearts that these
pernicious effects would be felt long after his death.

The main reproach made against the defendant in this connection is based
on the fact that young people, as a result of Streicher’s education in
hatred toward the Jews, are supposed to have been ready to commit crimes
against Jews which otherwise they would not have committed, and that
youth thus educated might be expected to perpetrate such crimes in the
future too. Here the Prosecution relies mainly on the juvenile
literature published by Der Stürmer and some announcements addressed to
youth which appeared in this paper.

Far be it from me to gloss over these products or to defend them.
Evaluation of them can and must be left to the Tribunal. In accordance
with the basic principle of the Defense, the only question to be taken
up here will be whether or not the defendant in any way influenced the
education of youth in a manner to promote criminal hatred of Jews.

As for the books which have been mentioned here, it must be said that
German youth scarcely knew of their existence—much less did they read
them. No evidence has been produced in support of the Prosecution’s
assumption to the contrary. The healthy common sense of German youth
refused such stuff. German boys and girls preferred other reading
material. It may be emphasized in this connection that neither the text
nor the illustrations in these books could attract youth in any way.
They were, on the contrary, bound to be shunned.

Of special importance in regard to this point is the fact that,
Defendant Baldur von Schirach, the man responsible for educating the
whole body of German youth, testified under oath that the
afore-mentioned juvenile books published by this company were not
circulated by the Hitler Youth Leadership and did not find a circle of
readers among the Hitler Youth. The witness made the same assertions in
regard to _Der Stürmer_. One of his closest co-workers, the witness
Lauterbacher, stated in this connection that _Der Stürmer_ was actually
banned for the Hitler Youth by the Defendant Von Schirach. It is clear
that the very style and illustrations of _Der Stürmer_ were ill-adapted
to attract the interest of young persons or to offer them ethical
support. The step taken by the Reich Youth Leadership is therefore quite
understandable.

Although some of _Der Stürmer_ articles submitted by the Prosecution
seem to indicate that _Der Stürmer_ was read in youth circles and
produced a certain effect there, it must be borne in mind that these
were typical commissioned articles, that is, commissioned for propaganda
purposes. There is no evidence whatsoever to support the Prosecution’s
assertion that German youth harbored criminal hate toward Jews.
Therefore, neither the German people nor its youth ...

THE PRESIDENT: Dr. Marx, perhaps this would be a convenient time to
break off.

                        [_A recess was taken._]

DR. MARX: One might now be tempted to assume that _Der Stürmer_
exercised a particularly strong influence upon the Party organizations,
the SA and SS; but this was not the case either. The SA, the largest
mass organization of the Party, rejected _Der Stürmer_ just as did the
mass of the people. Its publications were _Der SA-Führer_ and _Die SA_.
The mass of the SA took these as the foundation of their ideology. These
publications do not contain even one article from the pen of the
Defendant Streicher. If the latter had really been the man the
Prosecution believes him to be, the most authoritative and influential
propagandist of anti-Semitism, he would of necessity have been called
upon to collaborate in these publications, which were issued to instruct
the SA on the Jewish question. A publication intended to provide
ideological instruction could never have dispensed with the
collaboration of such a man.

The fact that not one word by Julius Streicher himself ever appeared in
these papers demonstrates afresh that the picture drawn of him by the
Prosecution does not correspond in any way with the actual facts. The
Defendant Streicher could gain no influence over the SA through his
paper and the columns of _Der SA-Führer_ and _Die SA_ were closed to
him. Even the highest SA leaders refused to advocate his ideas. The SA
Deputy Chief of Staff, SA Obergruppenführer Jüttner, testifying before
the commission on 21 May 1946, made the following statement in this
connection:

    “At a leader conference, the former SA Chief of Staff, Lutze,
    stated that he did not want propaganda for _Der Stürmer_ in the
    SA. In certain groups _Der Stürmer_ was even prohibited. The
    contents of _Der Stürmer_ disgusted and repelled most of the SA
    men. The policy of the SA with regard to the Jewish question was
    in no way directed at the extermination of the Jews; it aimed
    only at preventing a large-scale immigration of Jews from the
    East.”

The ideology of _Der Stürmer_ was thus rejected on principle by the
individual SA man as well as by the SA leaders, and there is therefore
no question of Streicher’s having influenced the SA.

Not only was the Defendant Streicher not asked to collaborate in SA
publications, but his articles did not appear in any other newspapers
and publications. He was given no chance of contributing either to the
_Völkischer Beobachter_ or to other leading organs of the German press,
although the Propaganda Ministry intended enlightenment on the Jewish
question to form one of the noblest tasks of the German press.

The Defendant Streicher was given no opportunity, either by the State
leadership or by the Propaganda Ministry, of impressing his ideas upon a
wider circle. The Defendant Fritzsche, the man who shared the decisive
authority in the Propaganda Ministry, testified that Streicher never
exerted any influence upon propaganda and that he was completely
disregarded. In particular, he was not entrusted with radio talks,
although talks given over the radio would have had much greater effect
on the masses than an article in _Der Stürmer_, which necessarily
reached only a limited circle. The fact that even the official
propaganda of the Third Reich made no use of the Defendant Streicher
makes it clear that no results could be expected from his activities,
and that, in fact, he had no influence at all. The official leaders of
the German State recognized Streicher for what he actually was, the
insignificant publisher of an entirely insignificant weekly. It must be
stressed once more as clearly as possible that the fundamental attitude
of the German people was no more radically anti-Semitic than that of
German youth or the Party organizations. Success in instigating and
inciting to criminal anti-Semitism is, therefore, not proven.

I now come to the last and decisive part of the accusation, that is, to
the examination of the question: Who were the chief persons responsible
for the orders given for the mass-extermination of Jewry; how was it
possible that men could be found who were ready to execute these orders;
and whether without the influence of the Defendant Streicher, such
orders would not have been given or executed.

The main person responsible for the final solution of the Jewish
question—the extermination of Jewry in Europe—is without doubt Hitler
himself. Though this greatest of all trials in world history suffers
from the fact that the chief offenders are not sitting in the dock,
because they are either dead or not to be found, the facts ascertained
have nevertheless resulted in cogent conclusions concerning the actual
responsibility.

It can be considered as proved beyond any doubt that Hitler was a man of
unique and even demoniacal brutality and ruthlessness who, in addition,
later lost all sense of proportion and all self-control. The fact that
his chief characteristic was ruthless brutality became apparent for the
first time in its force when the so-called Röhm Putsch was suppressed in
June 1934. On this occasion Hitler did not hesitate to have his oldest
fellow combatants shot without any kind of trial. His unrestrained
radicalism was further revealed in the way in which the war with Poland
was conducted. He ordered the ruthless extermination of leading Polish
circles merely because he feared an antagonistic attitude toward Germany
on their part. The orders which he gave at the beginning of the Russian
campaign were still more drastic. At that time he already ordered
partial operations for the extermination of Jewry:

These examples show beyond doubt that respect for any principle of
humanity was alien to this man. Furthermore the proceedings, by the
depositions of all the defendants, have clearly established the fact
that in basic decisions Hitler was not open to any outside influence.

Hitler’s basic attitude toward the Jewish question is well known. He had
already become an anti-Semite during the time he spent in Vienna in the
years before the first World War. There is, however, no actual proof
that Hitler from the very beginning had in mind such a radical solution
of the Jewish question as was finally effected in the annihilation of
European Jewry. When the Prosecution declares that from the book _Mein
Kampf_ a direct road leads to the crematories of Mauthausen and
Auschwitz, this is only an assumption; and no evidence for it has been
given. The evidence rather suggests the fact that Hitler also wanted to
see the Jewish problem in Germany solved by way of emigration. This
thought, as well as the position of the Jewish part of the population
under the laws governing aliens, formed the official State policy of the
Third Reich. Many of the leading anti-Semites considered the Jewish
question as settled after the laws of 1935 had been promulgated. The
Defendant Streicher shared this opinion. The stiffening of Hitler’s
attitude to the Jewish question cannot be traced back beyond the end of
1938 or the beginning of 1939. Only then did it become apparent that in
case of war—which he believed was propagated by the Jews—he was
planning a different solution. In his Reichstag speech on 30 January
1939 he predicted the extermination of Jewry should a second World War
be let loose against Germany. He expressed the same ideas in a speech
made in February 1942, on the occasion of the 20th anniversary of the
day on which the Party was founded. And, finally, his testament, too,
confirms his exclusive responsibility for the murdering of European
Jewry as a whole.

Though Hitler had adopted an increasingly implacable attitude on the
Jewish question ever since the beginning of the war, there is nothing to
show that he visualized the extermination of the Jews in the early
stages of the war. His final resolution to this effect was undoubtedly
formed when Hitler, probably as early as 1942, saw that it was
impossible to secure a victory for Germany.

It can be assumed almost with certainty that the decision to exterminate
the Jews originated—as did almost all of Hitler’s plans—exclusively
with himself. It cannot be ascertained with certainty how far others who
were closely attached to Hitler brought their influence to bear on him.
If such influence did exist, it can only have come from Himmler,
Bormann, and Goebbels. It can at least be stated beyond any doubt that
during the decisive period from September 1939 to October 1942 Streicher
did not influence him, nor, under the circumstances, could he have done
so. At that time Streicher was living—deprived of all his offices and
completely left in the cold—at his farm at Pleikershof. He had no
connection with Hitler either personally or by correspondence. This has
been proved beyond all doubt by the statements made by the witnesses
Fritz Herrwerth and Adele Streicher, and by the statement under oath of
the defendant himself. It cannot, however, be maintained in earnest that
his reading of _Der Stürmer_ moved Hitler to give orders for wholesale
murder. This should make it clear that the Defendant Streicher had no
influence whatever on either the man who made the decision to
exterminate Jewry, or on the orders issued by him.

In October 1942 Bormann’s decree ordering the extermination of Jewry was
issued (Document 3244-PS). It has been established beyond all question
that this order came from Hitler and went to Reichsführer SS Heinrich
Himmler, who was charged with the actual extermination of the Jews. He
for his part charged the Chief of the Gestapo, Müller, and his
commissioner for Jewish affairs, Eichmann, with the final execution of
the order. These three men are the three who are chiefly responsible,
next to Hitler. It has not been proved that Streicher had any
possibility of influencing them, or that he did actually influence them.
He states—and there is no proof to the contrary—that he never knew
either Eichmann or Müller, and that his relations with Himmler were
slight and far from friendly.

Casually it might be mentioned that Himmler was one of the most radical
anti-Semites of the Party. From the beginning he had advocated a
merciless fight against the Jews; and in any case, judging by what we
know of him, he was not the man to allow himself to be influenced by
others in matters of principle. Apart from that, however, a comparison
of the two personalities shows that Himmler was in every way the
stronger and superior man of the two, so that for this reason alone the
exertion of any influence by the Defendant Streicher on Himmler may be
ruled out. I believe I may refrain from further illustration of this
point.

I now come to the question of whether the activity of the Defendant
Streicher had a decisive influence on the men who actually carried out
the orders; that is, on members of the Einsatzgruppen on the one hand,
and on the execution Kommandos in the concentration camps on the other;
and whether any spiritual and intellectual preparation was necessary to
make these men willing to execute such measures.

In his speeches in Nikolaev, Posen, and Kharkov—which have often been
mentioned here—the Reichsführer SS stated unequivocally not only that
he besides Hitler was responsible for the final solution of the Jewish
question, but also that the execution of the orders was only made
possible by the employment of forces which he himself had selected from
among the SS. We know from Ohlendorf’s testimony that the so-called
Einsatzgruppen consisted of members of the Gestapo and the SD, companies
of the Waffen-SS, members of the police force with long service records,
and indigenous units.

It must be stated as a matter of principle that the Defendant Streicher
never had the slightest influence on the ideological attitude of the SS.
The extensive evidence material of this Trial contains no shadow of
proof that Streicher had any connections with the SS. The alleged Enemy
Number One of the Jews, the great propagandist of the persecution of the
Jews—as he has been pictured by the Prosecution—the Defendant
Streicher never had the opportunity of writing for the periodical _Das
Schwarze Korps_ or even for the _SS Leithefte_. These periodicals alone,
however, as the official mouthpieces of the Reichsführer SS, determined
the ideological attitude of the SS. These SS periodicals also determined
their attitude toward the Jewish question. In these circles _Der
Stürmer_ had just as small a public; it was rejected, just as it was in
other circles. Himmler himself rejected Streicher ironically as an
ideologist. Therefore the Defendant Streicher could not have had any
influence on the ideology of the SS members of the Einsatzgruppen, much
less on the old members of the Police, and least of all on the foreign
units. Nor could he dictate the ideology of the execution squad’s in the
concentration camps. Those men originated for the most part from the
Death’s Head Units, that is the old guard units, of whom the above
statement is true to a greater degree. Added to this is the fact that
the experienced members of the Police, as well as the SS men with long
service records, were trained in absolute obedience to their leaders.
Absolute obedience to a Führer command was a matter of course for both.

Even those experienced police force members, however, accustomed as they
were to absolute obedience, even the veteran SS men, could not simply be
charged by Himmler with carrying out the executions of the Jews. Rather
did he have to select men whom he trusted to lead these execution squads
and to make them personally responsible for their assignments, pointing
out explicitly that he would take all responsibility and that he himself
was only passing on a definite order from Hitler.

Even these men, whom the Prosecution alleges to have been the elite of
Nazism, were so far from being enemies of the Jews in the meaning of the
Indictment, that the entire authority of the head of State and Führer,
and of his most brutal henchman, Himmler, was required to force upon the
men responsible for carrying out the execution orders the conviction
that their order was based on the will of the authoritarian head of the
State; an order which, according to their conviction, had the power of a
fundamental State law and therefore was above all criticism.

The men charged to carry out the annihilation, therefore, obeyed their
orders not for ideological reasons and not because they were incited to
do so by Streicher, as the Prosecution contends, but solely in obedience
to an order from Hitler transmitted to them through Himmler, and knowing
that disobedience to a Führer order meant death. In this respect, too,
therefore, Streicher’s influence has not been proved.

The accusations brought against the defendant by the Prosecution are
herewith exhausted. But, in order to reach a conclusion and to form a
judgment of the defendant which will take the actual findings fully into
account, it seems advisable to give once more a short account of his
personality and his activities under the Hitler regime.

The Prosecution considers him to be the leading anti-Semite and the
leading advocate of a ruthless determination to annihilate Jewry. This
conception, however, does justice neither to the part played by the
defendant and the influence actually exercised by him, nor to his
personality. The manner of the defendant’s employment in the Third Reich
and the way in which he was called upon to co-operate in the propagation
and final solution of the Jewish question shows the Prosecution’s
conception to be false. The only occasion on which the defendant was
called upon to take an active part in the fight against Jewry was in his
capacity as chairman of the Action Committee for the Anti-Jewish Boycott
Day on 1 April 1933. His attitude on that day is in direct opposition to
his violent utterances in _Der Stürmer_ and makes it evident that the
passages in his paper which have been attacked were pure propaganda.
Although on that day he could have drawn upon the whole power of State
and Party against Jewry, he was content to order that Jewish places of
business be marked as such and put under guard. In addition, he gave
explicit instructions that any molestation of the Jews or acts of
violence, or any damage to Jewish property, was forbidden and would be
punished. In the later stages no further use at all was made of the
defendant. He was not even consulted on the ideological basis for the
settlement of the Jewish question. He was unable to voice his ideas in
the press or over the air. He was not asked to write on the
clarification of the Jewish question either in the _Schulungsbriefe_ of
the Party or the periodicals belonging to the organizations.

Not he but the Defendant Rosenberg was charged by Hitler with the
ideological training of the German people. The latter was responsible
for the Institute for Research into the Jewish Question, set up in
Frankfurt, and not the Defendant Streicher; in fact, the latter was not
even considered as a collaborator in this institute. The Defendant
Rosenberg was commissioned with the arrangement of an Anti-Jewish World
Congress in 1944. It is true that this assembly did not take place, but
it is significant that the plans made for it did not include the
participation of the Defendant Streicher.

The whole of the anti-Jewish laws and decrees of the Third Reich were
drafted without his participation. He was not even called in to draft
the racial laws proclaimed at the Party rally in Nuremberg in 1935. The
Defendant Streicher did not take part in a single conference on even
moderately important questions in either peace or wartime. His name does
not appear on any list of participants or on any minutes. Not even in
the course of the discussions themselves is one single reference made to
his name.

The fight against Jewry in the Third Reich grew more and more embittered
from year to year, especially after the outbreak of war and during its
course. In contrast to this, however, the influence of the Defendant
Streicher yearly grew weaker. Already by 1939 he was almost entirely
pushed aside and had no relations with Hitler or other leading men of
State and Party. In 1940 he was relieved of his office as Gauleiter and
after that he played no further part in political life.

If the Defendant Streicher had really been the man the Prosecution
believes him to be, his influence and his activity would have increased
automatically with the intensification of the fight against the Jews.
His career would not have ended, as it actually did, in political
powerlessness and banishment from the scene of action, but with the
commission to carry out the destruction of Jewry.

It cannot be denied that by writing _ad nauseam_ on the same subject for
years in a clumsy, crude, and violent manner, the Defendant Streicher
has brought upon himself the hatred of the world. By so doing, he has
created a strong feeling against himself which led to his importance and
influence being rated far higher than they actually were, for which he
now runs the risk of having the extent of his responsibility similarly
misjudged.

The defense counsel, who in this case had a difficult and thankless
task, had to limit himself to presenting those aspects and facts which
allow the true significance of this man and the role he played in the
tragedy of National Socialism to be recognized. But it cannot be the
task of the Defense to deny indisputable facts and to defend acts for
which absolutely no excuse exists.

The fact remains, therefore, that this defendant took part in the
demolition of the main synagogue of Nuremberg, and thus allowed a place
of religious worship to be destroyed. The defendant states as an excuse
that his aim in so doing was not the demolition of a building meant for
religious worship, but the removal of an edifice which appeared out of
place in the Old Town of Nuremberg, and that his opinion had been shared
by art experts. The truth of this was proved by the fact that he left
the second Jewish house of worship untouched until it finally, and
without his connivance, went up in flames during the night of 9 to 10
November. However that may be, the defendant shows the same lack of
scruple here as he does in his other actions. He must account here for
his actions in this connection alone; the Defense cannot shield him. But
here, too, the fact that the population of Nuremberg disapproved of
these actions clearly and unmistakably must be stressed. It was clear to
any impartial observer that the people viewed such actions with icy
detachment and that only brute force could compel them to tolerate such
measures and to look on at such senseless proceedings.

It is just as impossible for the Defense to express any opinion on the
revival of the ritual murder myth. No interest whatsoever was taken in
these articles; but their tendency is obvious. The only point in the
defendant’s favor, apart from the good faith with which we must credit
him, is the fact that the author of these articles was not himself, but
Holz; he must, however, put up with the charge that he allowed it to
happen.

It must appear incomprehensible that the defendant continued to play a
part in the publication of _Der Stürmer_ long after he had been
politically crippled and vanished from the scene of action. This very
fact reveals his one-track mind better than anything else.

When the Prosecution accuses the defendant of having aimed at the
physical annihilation of the Jews and prepared the way for this later
result by means of his publications, I would like to refer to the
statements given by the defendant under oath at his interrogation, to
which I am here referring in their entirety.

The defendant claims that in the long series of articles published by
_Der Stürmer_ since its foundation there were none demanding actual
deeds of violence against the Jews. He also claims that among the
issues, of which there were over one thousand, only about 15 were found
to contain expressions which could form the basis for a charge against
him in the meaning of the Indictment.

On the contrary, the defendant argued that his articles and speeches had
always shown an unmistakable tendency to achieve a solution of the
Jewish problem in its entirety throughout the world, since any kind of
partial solution would serve no useful purpose and failed to reach the
heart of the problem. Basing himself on this very point of view he had
always expressed himself unequivocally as opposed to any kind of
violence, and he would never have approved of an action such as that
finally carried out by Hitler in such a gruesome manner.

This must raise serious doubts as to whether the defendant can be proved
to have agreed with the mass murders practiced on Jewry, and I leave
this decision to the Tribunal. In any case, he himself refers to the
fact that he had no reasonably certain knowledge of these wholesale
murders until 1944, a fact corroborated by the statements of the
witnesses Adele Streicher and Hiemer.

He considered the articles published in the _Israelitisches Wochenblatt_
as propaganda and consequently did not believe them. In this connection,
the fact that up to the autumn of 1943 he did not in any article express
satisfaction concerning the fate of Jewry in the East is in his favor.
Although he did write then on the disappearance of the Jewish reservoir
in the East, there is nothing to show that he had any reliable source of
information at his command. He might, therefore, very well have believed
that this process of disappearance was not identical with physical
annihilation but might represent the evacuation of the Jewish population
assembled there to neutral countries or the territory of the Soviet
Union. As no evidence has been presented to show that the defendant had
received hints from any quarter in regard to the intended extermination
of Jewry, he could not have conceived of such a diabolical occurrence
which appears to be utterly inconceivable to the human mind. And it
certainly cannot be assumed that the mental capacity of the defendant
should have enabled him to foresee a solution of the Jewish question
such as could only have originated in the brain of a person who was no
longer in his right senses.

The defendant describes himself as a fanatic and seeker of truth. He
professes to have written nothing and to have expressed nothing in his
speeches which he had not taken from some authentic source and properly
confirmed.

There is no doubt that he was a fanatic. The fanatic, however, is a man
who is so possessed or convinced of an idea or illusion that he is not
open to any other consideration, and is convinced of the correctness of
his own idea and no other. A psychiatrist might regard it as a sort of
mental cramp. Fanaticism of any kind is not far removed from maniacal
obsession. As a rule it goes along with considerable overestimation of
oneself and overevaluation of one’s own personality and its influence on
the world around it.

Not one of the defendants here on trial shows such a wide discrepancy
between fact and fancy as does the Defendant Streicher.

The Prosecution showed him as he appeared to the outside world. What he
really was—and is—has been shown by the Trial. But only actual facts
can form the basis for the judgment. Base your judgment also, Gentlemen,
on the fact that the defendant in his position as Gauleiter of Franconia
also showed many humane characteristics—that he had a large number of
political prisoners released from concentration camps, which even caused
criminal proceedings to be started against him. It should also be borne
in mind that he treated the prisoners of war and the foreign laborers
working on his estate very well in every respect.

Whatever the judgment against the Defendant Streicher may be, it will
concern the fate of a single individual. It seems to be established,
however, that the German people and this defendant were never in
agreement on this essential question. The German people always
disapproved of the aims of this defendant as expressed in his
publications, and retained its own opinion of and attitude toward the
Jews.

The Prosecution’s assumption that the tendentious articles in _Der
Stürmer_ found an echo or a ready acceptance among the German
population, or even produced an attitude which would readily accept
criminal measures, is herewith fully refuted.

The overwhelming majority of the German nation preserved their sound
common sense and showed themselves disinclined toward all acts of
violence. The nation may therefore claim to be declared free of all
moral complicity in, and co-responsibility for, those crimes before the
public tribunal of the world, so as to be able again to take its place
in the ranks of the nations.

I leave the decision on the guilt or innocence of this defendant in the
hands of the High Tribunal.

THE PRESIDENT: I call on Dr. Sauter for the Defendant Funk.

DR. FRITZ SAUTER (Counsel for Defendant Funk): Gentlemen of the
Tribunal, I have the task of examining the case of the Defendant Dr.
Walter Funk. That is to say, I am to deal with a topic which
unfortunately is especially dry and prosaic. May I first make a short
statement.

I shall on principle refrain from making any statements on legal,
political, historical, or psychological matters which may be too
general, although the temptation to make such general statements,
particularly within the framework of these proceedings, may be
considerable. General statements of the kind have already been made in
abundance by my colleagues and will probably be still further
supplemented. Therefore, I shall limit myself to examining and
presenting to you from the point of view of the Defense the picture
which the evidence in this Trial shows of the personality of the
Defendant Funk, his actions, and their underlying motives.

Gentlemen of the Tribunal, the entire course of this Trial and the
particular evidence offered in his own case have shown that the
Defendant Funk did not play a decisive part in the National Socialist
regime at any time and in any of the cases indicted here.

Funk’s authority of decision was always limited by the superior powers
of others. The defendant’s statement, made during his personal
examination, that he was allowed to come up to the door, but was never
permitted to enter, has been shown by the evidence to be quite correct.

Funk was entrusted with tasks by the Party—as distinct from the
State—only during the last year prior to the seizure of power, that is,
in 1932. These, however, were of no practical significance, as they were
of very short duration. Funk was never appointed to any Party office
after the seizure of power. He was never a member of any Party
organization—SS, SA, or Corps of Political Leaders. Funk was a member
of the Reichstag for only a little more than 6 months shortly before the
seizure of power. Consequently he was not a member of the Reichstag when
the fundamental laws for the consolidation of National Socialist power
were passed. The Reich Cabinet passed the laws for which Funk is held
responsible, in particular the Enabling Act, at a time when Funk had not
yet been made a member of the Cabinet. At this, it will be remembered,
he did not become a member until the close of 1937 by virtue of his
appointment as Minister of Economics, that is, at a time when no further
Cabinet sessions were held. As Press Chief of the Reich Cabinet Funk had
neither a seat nor a vote in the Cabinet and could exert no influence
whatsoever upon the contents of the bills drafted. I refer to Lammers’
statement in this connection. The same applies to the racial laws, the
so-called Nuremberg Laws.

Funk’s relations with the Führer only became closer for a period of 18
months during which he had to give regular press reports to Hitler in
his capacity as Press Chief of the Reich Cabinet, that is, from February
1933 to August 1934, up to the death of Reich President Von Hindenburg.
Later, Funk reported to Hitler only on very rare occasions. In this
connection the witness Dr. Lammers makes the following statement:

    “Later he (Funk) only visited Hitler in his capacity of Reich
    Minister of Economics on very rare occasions. He was frequently
    not invited to attend conferences—even those to which he should
    have been invited. He complained to me about this frequently.
    The Führer often raised objections, saying that there were
    various reasons against Funk and that he himself viewed Funk
    skeptically and did not want him.”

That is the testimony given by Dr. Lammers on 8 April 1946. When asked
whether Funk had often complained to him about his unsatisfactory
position as Reich Minister for Economics and about the anxiety caused
him by conditions generally, Dr. Lammers replied:

    “I know that Funk was very much worried and that he wanted an
    opportunity to discuss his anxieties with the Führer. He was
    extremely anxious for an opportunity of reporting to the Führer
    in order to obtain information, at least, about the war
    situation.” (That was in 1943 and 1944). And Lammers continues:
    “With the best intentions in the world, Funk could not obtain an
    audience from the Führer, and I was unable to get him to the
    Führer.”

Funk explains the striking fact that he was invited to attend only four
or five Führer conferences during the whole of his ministerial activity
by saying that Hitler did not need him. Up to 1942 Hitler issued his
instructions in economic affairs to Göring, who in his capacity of
Delegate for the Four Year Plan was responsible for the entire economy.
From the beginning of 1942 Hitler also issued instructions to Speer, who
as Armament Minister had special authority to issue directives to all
branches of production and from 1943 personally directed the entire
production. Funk therefore never played the principal part in the
economy of the National Socialist Reich, but always only a subordinate
role. This was specifically confirmed by his Codefendant Göring in his
statement on 16 March:

    “Naturally, in view of the special powers delegated to me
    (Göring) he had to follow my directives in the field of economy
    and the Reichsbank. The responsibility for the directives and
    policy of the Minister for Economics and President of the
    Reichsbank Funk is entirely mine.”

In the session of 20 June the Defendant Speer also testified that in his
capacity as Armament Minister he reserved to himself from the very
beginning any authority of decision in the most important economic
spheres such as coal, iron and steel, metal, aluminum, and the
production of machinery. Prior to Speer’s commission at the beginning of
1942, electric power and building were entirely under the jurisdiction
of Armament Minister Todt.

For the greater part, the evidence submitted by the Prosecution in the
case of the Defendant Funk does not relate to acts personally committed
by Funk or instructions issued by him, but rather to the various and
widely differing positions which he occupied. On Page 29 of the trial
brief the Prosecutor himself declares that the argument offered against
Funk may be described as inferential. The Prosecution starts from the
assumption that judging by the positions which he had held Funk must
have had knowledge of the various events which form the subject of the
accusation. Generally speaking, the Prosecution refers to instructions
and directives issued by Funk personally only in the case of the
application instructions which he issued in November 1938 in connection
with the Four Year Plan decrees for the elimination of Jews from
economic life. I shall deal with this chapter separately at a later
stage.

Finally, Funk was not invited to attend political and military
conferences. His position was that of a technical minister with very
limited power of decision.

As Reich Minister for Economics Funk was subordinated to the Four Year
Plan, that is, to Göring. Later on, the Armament Minister became Funk’s
superior. And finally, as was shown by the testimony of Göring, Lammers,
and Hayler, the Ministry of Economics became a regular trade ministry,
which dealt mainly with the distribution of consumers’ goods and with
the technicalities of foreign trade. Similarly in the case of the
Reichsbank the Four Year Plan determined the use of gold and foreign
currency. The Reichsbank was deprived of its right to decide on the
credits to be granted to the Reich for the internal financing of the war
when Funk took over office as its President. Funk is thereby exonerated
of any responsibility for the financing of the war. The responsible
agency so far had always been the Reich Minister of Finance: In other
words, not Funk. Finally, as Plenipotentiary for Economics, Funk’s sole
task in August 1938 was to co-ordinate the civil economic resources for
such measures as would guarantee a smooth conversion from peace to
wartime economy. These consultations resulted in the proposals presented
by Funk to Hitler on 25 August 1939 in the letter which has been several
times quoted under Document Number 699-PS. At his examination Funk
stated that this letter did not portray matters with complete accuracy,
since it was a purely private letter, a letter of thanks for birthday
congratulations received from Hitler. This point will have to be taken
up again later, as the Prosecution particularly emphasized Funk’s
position as Plenipotentiary for Economics. The evidence shows that his
position as Plenipotentiary General was Funk’s most disputed position,
but also his weakest.

With regard to the occupied territories Funk had no decisive authority
whatsoever. All the witnesses interrogated on the point testified to
this. But all witnesses also confirmed that Funk always opposed the
spoliation of the occupied territories. He fought against German
purchases in the black markets; he opposed the abolition of the foreign
exchange relations with Holland, a measure intended to facilitate German
purchases in Holland; and, as we have heard from the witness Neubacher,
he organized exports to Greece from Germany and the eastern European
states, and even sent gold there. He also repeatedly opposed the
financial overburdening of the occupied territories especially in 1942
and 1944, and the raising of the occupation costs in France. He defended
the currency of the occupied countries against reported attempts at
devaluation. In the case of Denmark he even succeeded in raising the
value of the currency, in spite of all opposition. Furthermore, Funk
fought against the arbitrary stabilization of exchange when currency
arrangements were made with occupied countries. Germany’s clearing debt
was always recognized by Funk as a true commercial debt even with regard
to the occupied countries. This is shown especially by his proposal,
mentioned here, to commercialize this clearing debt by a loan to be
issued by Germany for subscription in all European countries. Funk was
also opposed to the overworking and especially to the compulsory
employment of foreign labor in Germany.

The Defendant Sauckel has already testified to this at his interrogation
here. The witnesses Hayler, Landfried, Puhl, and Neubacher, and the
Codefendant Seyss-Inquart, have all confirmed that these measures taken
by Funk had favorable results for the occupied countries. According to
these statements Funk always strove to keep order in the economic and
social life of the occupied territories and to preserve it as far as
possible from disintegration. He always disapproved and opposed radical
and arbitrary measures and favored agreements and compromises. Even
during the war Funk was always thinking of peace. This statement was
made by the witnesses Landfried and Hayler, who added that Funk was
repeatedly reproached for his attitude by the leading State and Party
offices. The Defendant Speer also testified at his interrogation that
during the war Funk had employed too many workers in the manufacture of
consumers’ goods and that it was for this reason that Funk had to hand
over the management of the consumers’ goods production in 1943.

That Funk revolted against the horrible “scorched earth” policy just as
Speer did has been proved to the Court by Speer himself, as well as by
the witness Hayler on 7 May 1946. This witness declared that he had
seldom seen Funk so much upset as he was when informed of this order for
destruction. Hayler testified that Funk, in his capacity of Reich
Minister of Economics and President of the Reichsbank, gave orders that
existing stocks should be protected from destruction as decreed, in
order to insure a supply of consumers’ goods necessary for the
population and to safeguard currency transactions in the German
territory which had been abandoned.

The aim of Funk’s economic policy—one might call it the mainspring of
his life work—was the formation of a European economic community based
on a just and natural balance of interest of the sovereign states. Even
during the war he relentlessly pursued this goal, although the
exigencies of war and the restraints imposed on development by the war
naturally impeded these efforts at every turn. Funk has given a graphic
description of the economic Europe which he envisaged and strove to
attain in some major speeches on economic policy. Extracts from some of
these speeches, many of which received a hearing even in neutral and
enemy countries, are included in the document book.

In judging the acts of the Defendant Funk, his whole personality must
naturally be taken into consideration to some extent in investigating
the motives from which he acted. Funk was never looked upon by the
German people—as far as he was known at all—as a Party man capable of
participating in brutal outrages, using methods of violence and terror
or amassing fortunes at the expense of others. He inclined rather toward
art and literature, which preference he shared with—for instance—his
friend Baldur von Schirach. Originally, as you have been told, he wanted
to study music, and in later years he preferred to have poets and
artists in his house rather than, men of the Party and the State. In
professional circles he was known and respected as an economist and a
man with a wide theoretical and historical knowledge, who had risen from
journalism and had been a brilliant stylist. His position as chief
editor of the distinguished _Berliner Börsenzeitung_ was on a sound
economic basis; by accepting the office of Press Chief in the Reich
Cabinet at the beginning of 1933, after Hitler’s assumption of power, he
even incurred a financial loss. Therefore, he was not one of those
desperados who were glad to get into a well-paid position through
Hitler. On the contrary, he made a financial sacrifice when he took over
the State office offered him, and it therefore seems perfectly credible
that he did this out of patriotism, out of a sense of duty toward his
people, and in order to put himself at the service of his country during
the hard times of distress.

In judging the personality and character of the Defendant Funk, it is
also significant that he never held or tried to obtain any rank in the
Party. Other people who took over high State offices in the Third Reich
were given the title of an SS Gruppenführer, or were given, for
instance, the rank of SA Obergruppenführer. Funk, on the contrary, was
only a plain Party member, from 1931 until the end of the Third Reich,
who carried out his State functions conscientiously, but made no effort
to obtain any honors within the Party.

The only incident with which the Defendant Funk was reproached in this
connection was the fact that he accepted an endowment in 1940, on his
fiftieth birthday. In itself, of course, that is not a punishable act;
but the Tribunal evidently evaluated it as a moral charge against the
defendant. Therefore, we shall briefly define our position with regard
to this. We remember how this endowment came about: The President and
Board of the Reich Chamber of Economics (Reichswirtschaftskammer), as
the highest representatives of German economic life, presented him on
his fiftieth birthday with a farmhouse in Upper Bavaria and about 110
acres of ground. This farmhouse, of course, existed for the time being
only on the paper of the presentation document and had still to be
built. This presentation was expressly approved by the head of the
State, Adolf Hitler; therefore it was not made secretly to the Reich
Minister of Economics, but quite officially, without any suppression or
secrecy in the matter.

The gift subsequently turned out to be an unfortunate one for Funk, as
the building proved much more expensive than had been expected and Funk
was required to pay a very high donation tax. Funk, who, up to that
time, had never incurred debts and whose finances had always been well
regulated, now found himself plunged into debt through this “gift” of a
farmhouse. Göring heard of it and came to Funk’s assistance with a
generous sum. When Hitler heard of Funk’s financial difficulties through
Minister Lammers, he had the cash necessary to settle Funk’s financial
troubles transferred to him in the form of a gift. With this Funk was
able to pay his taxes and his debts. He used the remainder to create two
public endowments, one for dependents of officials of the Reichsbank
killed in action, the other to the same end for the staff of the
Ministry of Economics. The farm was also to become an endowment at some
later date. Funk’s treatment of the matter shows his delicacy in this
respect too. Even though such an endowment could not be legally
disputed, he felt that it was better to avoid such endowments and to
make them over to the public, since he could not refuse to accept a gift
from the head of the State.

Mr. President, I now turn to a new subject. I would propose to have a
recess now.

THE PRESIDENT: The Court will adjourn now.

                [_A recess was taken until 1400 hours._]




                          _Afternoon Session_

THE PRESIDENT: The Tribunal proposes to go until 4 o’clock without a
break, if that is convenient.

DR. SAUTER: Gentlemen of the Tribunal, I have so far defined the
position of the Defendant Funk in general statements; I am now going to
deal with the criminal responsibility of the Defendant Funk on the
separate charges made against him.

The first point of the Indictment deals with the support of the seizure
of power by the Party, that is, the Defendant Funk’s Party activities
from 1931 up to the end of 1932. The Defendant Funk is alleged to have
helped the conspirators to seize power. This charge deals with the
activities of the Defendant Funk from the date of his joining the Party
in June 1931 up to the seizure of power on 30 January 1933. The
Prosecution maintains that Funk’s activities on behalf of the Party
during that period furthered the seizure of power by the National
Socialists. That is correct. The Defendant Funk himself, when
interrogated on 4 May, gave a detailed explanation of his reasons for
considering the National Socialist seizure of power the only possible
way of delivering the German people from the grave intellectual,
economic, and social distress of that time. The economic program of the
Party was, in his opinion, vague and mainly intended for propaganda. He
himself wanted to gain recognition for his own economic principles in
the Party, in order to work through the Party for the benefit of the
German people. Funk gave a detailed description of these principles
during his examination. They are based on the idea of private property,
which is inseparable from the conception of the varying capability of a
human being.

Funk demanded the recognition of private initiative and of the
independence of the creative businessman, added to free competition and
the leveling of social extremes. He aimed at the elimination of Party
and class warfare, at a strong Government with full authority and
responsibility, and at the creation of a uniform political will among
the people. His conversations with Adolf Hitler and other Party leaders
convinced him that the Party entirely accepted his principles and ideas.
In Funk’s opinion he cannot be blamed for his support of the Party in
its struggle for power. Funk believes that the discussions in this Trial
furnish absolute proof that the Party came to power quite legally. But
even the methods used by Funk to assist the Party cannot, in his
opinion, be condemned. In any case the role attributed to him by the
Prosecution does not fit the facts. The importance of Funk’s activities
is at times greatly overestimated by them; in many other instances their
judgment of these activities is completely false.

The evidence offered by the Prosecution consists mainly of references
and extracts from reference books, and especially from a book by Dr.
Oestreich, _Walter Funk—A Life for Economy_, which was submitted to the
Tribunal as Document Number 3505-PS, USA-653. The core of this evidence
is a “Program for Economic Reconstruction” by the Defendant Funk, which
is printed on Page 81 of this book and which the Prosecution calls “the
official Party declaration in the economic field” and “the economic
bible for the Party organization.” This so-called “Program for Economic
Reconstruction” forms the basis for the incorrect accusation made by the
Prosecution on Page 3 of the trial brief, to the effect that the
Defendant Funk assisted “in the formulation of the program which was
publicly proclaimed by the Nazi Party and by Hitler.”

This “Program for Economic Reconstruction,” which was read word for word
during the hearing of the Defendant Funk, actually did not contain
anything unusual, let alone revolutionary, or anything which was in any
way characteristic of the National Socialist ideology. The program
indicates the need for providing work, creating productive credits
without inflationary consequences, balancing public finances, as well as
the need for protective measures for agriculture and urban real estate,
and a redirection of economic relations with foreign countries. It is a
program which, as Funk said in his testimony, might be advocated by any
liberal or democratic party and government. The Defendant Funk only
regrets that the Party did not fully subscribe to these principles.
Later on his economic viewpoint involved him in constant difficulties
and disputes with various Party offices, especially with the German
Labor Front and the Party Chancellery, and with Himmler and most of the
Gauleiter. This is also confirmed by the witness Landfried, who
described these differences between Funk and the Party in detail in his
interrogatory. Funk had the reputation in the Party of being mainly a
liberal and an outsider. During that time, that is mainly in 1932, he
established relations between Hitler and some of the leading
personalities of German economic life. He also worked to promote
understanding for National Socialist ideas and to gain support for the
Party by trade and industry. By virtue of these activities he was
frequently described as Hitler’s economic adviser. But that was not a
Party office or a Party title.

In Document EC-440, USA-874, Funk states that Keppler, who was later
appointed State Secretary, was considered the Führer’s economic adviser
for many years before himself. By this reference Funk intended to show
that the designation “Economic Adviser to the Führer” was given by the
public to other persons also.

The period during which Funk was given Party assignments was a very
short one. That these activities were never of decisive importance may
be deduced from the fact that after the assumption of power Funk’s Party
activities ceased completely. In other fields, such as food and
agriculture, finance, and so forth, the Party incumbents who entered the
civil service as ministers or state secretaries, _et cetera_, retained
their Party office, which usually acquired greater importance. The
elimination of the sole Defendant Funk from every Party office as soon
as the assumption of power was complete shows clearly that the Party
leaders did not attach much value to Funk’s work in the Party.

In cross-examining the Defendant Funk the Soviet Russian Prosecution
showed him an article which had appeared on 18 August 1940 in the
magazine _Das Reich_ on the occasion of his fiftieth birthday
(USSR-450). In this article the author, an economist by the name of Dr.
Herle, emphasizes that Funk “as intermediary between the Party and
economic circles had become a pioneer working toward a new spiritual
attitude in German economic life.”

In this connection we may say that Funk never denied that he regarded it
as his task to construct an economic system with an obligation toward
state and community on the one hand, yet based on private ownership and
private initiative and responsibility on the other. Funk always
acknowledged and adopted the political aims and ideals of National
Socialism. The majority of the German people embraced these goals and
ideologies, as was proved by several plebiscites. Funk himself did not
suspect that all the good intentions and idealistic aims, so often
emphasized by Hitler when he came into power, would later crumble in the
blood and smoke of war and sink to such an inconceivable inhuman level.
Funk testified explicitly that he considered the authoritative form of
government—by which he meant the strong state, a responsible cabinet,
the social community, and an economic system with social obligations—a
prerequisite in order to overcome the grave intellectual and economic
crisis through which the German people were then passing. He always
expressly acknowledged that politics must have precedence over
economics.

On 30 January 1933, as Press Chief of the Reich Government, Funk took up
the State office of a Ministerial Director in the Reich Chancellery. Six
weeks later, however, the direction of press policy passed into the
hands of Dr. Goebbels, when the latter became Reich Minister for Public
Enlightenment and Propaganda; and the press department of the Reich
Government, which Funk was to have directed, was merged in the newly
established Ministry for Propaganda. For the time being he retained only
the right to make his press report personally to Reich President Von
Hindenburg and Reich Chancellor Adolf Hitler—until Hindenburg’s death.
Then this activity also came to a complete standstill, so that the
Office of Press Chief of the Reich Government existed only on paper.
This was also expressly confirmed by the Defendant Fritzsche during his
examination as a witness on 28 June.

The guilt of the defendant is inferred mainly from the fact that he was
a State Secretary in the Ministry of Propaganda. The hearing of evidence
has shown, however, that as State Secretary, Funk had nothing whatsoever
to do with actual propaganda work. He made no radio speeches, nor did he
speak at public meetings. Press policy, on the other hand, was dictated
by Dr. Goebbels in person even at that time.

Even at that time, however, Funk gave particular attention to the wishes
and complaints of the journalists. He protected the press against misuse
by official departments and made every effort to safeguard the
individuality of the press and to enable it to work in a responsible
manner.

All this has been established by a number of witnesses to whom I refer
on Pages 17 to 24; in particular by the witnesses Amann, Kallus,
Fritzsche, Oeser, and Roesen. The two latter witnesses have indeed
confirmed the fact that Funk as State Secretary in the Ministry of
Propaganda also worked energetically on behalf of Jews and such persons
as were oppressed and hindered in their spiritual and artistic work by
the legislation and cultural policy of the National Socialists. Funk did
so much on behalf of such people that he jeopardized his own official
position to such an extent that the Ministry actually considered him
politically unreliable.

[sm type begins]As to defendant’s activity in the Reich Ministry of
Propaganda, the Prosecution charges him as follows:[sm type ends]

    [sm type begins]“By means of such an activity in the Ministry of
    Propaganda the Defendant Funk participated in establishing the
    power of the conspirators over Germany, and is particularly
    responsible for the persecution of ‘political dissenters’ and
    Jews, for the psychological preparation of the people for war,
    and for the weakening of the strength of and will for resistance
    of the victims selected by the conspirators.”[sm type ends]

[sm type begins]Also in this point of the accusation, the guilt of the
Defendant Funk has been derived almost exclusively from the fact that he
occupied the position of a state secretary in the Ministry of
Propaganda. The hearing of evidence, however, has shown that Funk had
nothing to do with actual propaganda activity in his position as State
Secretary. Funk did not deliver any speeches, either through the radio
or in public meetings. The press policy was directed by Dr. Goebbels in
person ever since the Ministry had been established. However, Funk took
care, to a large extent, of the wishes and complaints of the
journalists. He protected the press against trespassing by Government
offices and tried to secure for the press an individual look and an
activity conscious of its responsibilities. This is expressed by the
digest from the book written by Dr. Paul Oestreich: _Walter Funk—A Life
for Economy_, Document 3505-PS, Exhibit USA-653, Document Book Funk
Number 4b.[sm type ends]

[sm type begins]Some of Funk’s wordings from that period of his activity
in the Ministry of Propaganda, as for example, the sentence “the press
is no barrel organ” and the saying “the press should not be the
scapegoat of the government” later have become all but household
words.[sm type ends]

[sm type begins]As State Secretary Funk had, on the whole, only
organizational and economic tasks, he managed the financial side of the
activity of the numerous organizations and institutes which were
controlled by the Ministry of Propaganda, such as, particularly, the
Reich Broadcasting Company, further the German Trade Publicity Council
(Werberat der deutschen Wirtschaft), the State-owned film combines, the
State-owned theaters and orchestras and the State-owned press agencies
and newspapers. As to art, and according to his artistic tastes, he
occupied himself with music and theater. In the direction of the
Ministry of Propaganda, a complete separation between political tasks on
the one hand and organizational and economic tasks on the other hand
took place. This has been stated in unison by all witnesses examined on
this point. Minister Dr. Goebbels in person directed the propaganda
policy, exercising complete, absolute and exclusive control. His
assistants herein were, not his State Secretary Funk, but his old
collaborators from the propaganda organization of the Party, who, for
the most part, were taken over by him in a personal union into the newly
created Ministry of Propaganda. Funk, however, did not belong to the
propaganda department of the Party, neither before nor after the
Ministry was established. The assertion of Mr. Messersmith in his
affidavit, submitted under Document 1760-PS, according to which Goebbels
had incorporated Funk into the Party organization, is erroneous, and can
obviously be attributed to the fact that Messersmith had, as an
outsider, no insight into the division of work within the Ministry of
Propaganda, and moreover, apparently identified readily the propaganda
activity of the Party with the propaganda of the State Ministry. This
has been confirmed by the questionnaire submitted by Messersmith, as
asked for by the Defendant Funk, on May 7th, 1946, (Document Book Funk,
Supplement Number 5). This questionnaire shows that Messersmith cannot
even state whether he had a conversation with the Defendant Funk a few
times or only once; furthermore, that he does not remember any more what
topic was discussed at that time, nor in what capacity Funk was present
at this meeting. With such vague and unreliable statements of a witness
nothing, of course, can be proven.[sm type ends]

[sm type begins]As a proof of the fact that Funk had nothing to do with
the actual propaganda activity and—as the Defendant Göring has asserted
here as a witness—did not play any important part at all in comparison
to Goebbels, I refer to the affidavit of the former Reichsleiter for the
press, Max Amann, of April 17th, 1946 (Document Book Funk, Exhibit 14).
At first, the Prosecution has submitted an affidavit sworn by this
witness, of December 19th, 1945 (Document 3501-PS); the statements
contained therein have been, in the new affidavit of April 17th, 1946,
supplemented and corrected in essential points. In this new statement,
submitted to the Prosecution and to the Defense, the witness Amann gives
evidence that also, according to his knowledge, Funk, as State Secretary
in the Ministry of Propaganda, had nothing to do with the actual
propaganda activity. For the rest, the witness confirms the statements
of the Defendant Funk, namely, that he (Amann) did not know in person
the distribution of activities and the interior management of the
Ministry, and that his statements are exclusively based op information
by other persons. The witness Heinz Kallus, on the other hand, worked
for some years as an official of the Ministry of Propaganda. Kallus,
too, confirms under oath in the answers, in the questionary addressed to
him (Exhibit Number Funk-18), that on the whole Funk was engaged in
administration and financial questions, and the same was testified by
the Defendant Hans Fritzsche during his examination as a witness before
this Tribunal on June 27th and 28th.[sm type ends]

[sm type begins]In the trial brief of the Defendant Funk, Page
9—Document 3566-PS—the Prosecution submitted the notes of an
SS-Scharführer Sigismund as evidence for the importance of the position
which Funk is supposed to have held in the Ministry of Propaganda. An
official of this Ministry, by the name of Weinbrenner, is supposed to
have declared to that SS-Scharführer that it was impossible to know whom
Minister Goebbels would entrust with the office of radio superintendent,
as Goebbels took most of the important decisions only in agreement with
Under Secretary Funk. Now, Dr. Goebbels did not as a matter of course
undertake the appointment to the leading post in broadcasting without
getting in touch with Funk, the chairman of the administrative board of
the Reich Broadcasting Corporation (Reichsrundfunkgesellschaft); this,
however, does not prove anything concerning the nature and the
significance of the activity of the Defendant Funk nor of the aims he
pursued thereby. After all, the Prosecution has been able to submit but
one single document bearing the signature of Funk as Under Secretary,
namely, the fixing of a date for the coming into force of a decree for
the execution of a law concerning the Reichskulturkammer, of November
9th, 1933 (Document 3505-PS); hereof the Prosecution deduces a
responsibility or, at any rate, a co-responsibility of the Defendant
Funk for the entire legislation for the control and co-ordination of the
cultural professions (Kulturberufe).[sm type ends]

[sm type begins]This conclusion appears to be wrong; quite apart from
the fact that the point in question is the fixing of a date for a decree
concerning execution, therefore a purely formal act, it must be
emphasized that this law was decided by the Reich Cabinet of which the
Defendant Funk at that time was not a member.[sm type ends]

[sm type begins]Funk stated in his examination that, during the entire
duration of his activity in the Ministry of Propaganda, he hardly gave
his signature more than three times representing Dr. Goebbels. For the
rest, the Defendant Fritzsche testified here as a witness, on June 28th,
1946, that the position of Dr. Goebbels’ long-time collaborator and
personal advisor Hanke, who later on became Under Secretary and
Gauleiter, corresponded far more to the usual position of an under
secretary in the Ministry, than the one of the Defendant Funk. It was
Hanke, too, who maintained the liaison of Minister Goebbels with the
section heads and advisers of the Ministry, a task adhering otherwise to
the under secretary in a ministry, but which was never entrusted to the
Defendant Funk, although he was an under secretary.[sm type ends]

[sm type begins]It is proven by the affidavit of the former
editor-in-chief of the _Frankfurter Zeitung_, Albert Oeser (Exhibit
Number Funk-1), and of the attorney-at-law Dr. Karl Roesen (Exhibit
Number Funk-2), as well as by the affidavits of the witness Heinz Kallus
(Document Funk-18), that the Defendant Funk, in his position as an under
secretary of the Ministry of Propaganda, energetically undertook to help
Jews and other persons who were oppressed and thwarted in their
intellectual or artistic activities by the National Socialist
legislation and cultural policy, and that he did this under heavy risks
to his own position.[sm type ends]

[sm type begins]Among the persons for whom Funk interceded were not only
Jewish editors, but also many prominent German artists, and the witness
Kallus (cf. his questionnaire in the Document Funk-18) mentions in this
connection the Jewish proprietors of a big Berlin directory publishing
firm, whom Funk had given permission to carry on with their business,
against considerable resistance of the competent section of the Ministry
and of the German trade publicity council (Werberat der deutschen
Wirtschaft). The witness Kallus stated further, that, owing to this
attitude toward the Jewish cultural workers, Funk was “suspect” to Dr.
Goebbels and to the chief of the press section, Berndt, who was known to
be particularly radical. Editor-in-chief Oeser explicitly states, as a
witness, in his affidavit (Document Book Funk Number 1) that he has made
his statements voluntarily to prove the “human attitude” of the
Defendant Funk, and gives the names of eight Jewish editors of the
_Frankfurter Zeitung_, whom Funk had given permission to carry on with
their profession. In this connection, Oeser further remarks: “He (Funk)
herewith proved his human understanding. Indeed, I have never heard from
him (Funk), in the course of our conversations, any inhuman utterances.
Owing to his (Funk’s) concessions, the endangered people obtained, in
part repeatedly, the possibility to hope and to work anew with us and to
prepare, without loss of income, their change of profession and their
emigration.” Oeser, a well-known economic journalist, who always kept
completely aloof from the Party, explicitly states that Funk, without
any doubt, exposed himself by his attitude toward the Jews.[sm type
ends]

[sm type begins]In the cross-examination of the Defendant Funk the
Prosecution referred to an affidavit, produced by the Prosecution, of an
editor called Franz Wolf; this witness expressed—Document 3954-PS,
Exhibit USA-377—the opinion that Funk may well have given those
exceptional permissions not out of human sentiments, but rather in order
to maintain the high standard of the _Frankfurter Zeitung_. By the way,
the author of the affidavit was actually one of the Jewish editors who
were given permission to further exercise their profession by Funk. The
assumption of the witness Wolf is in direct contradiction to the
positive statements of the witness Oeser. The Defendant Funk, too,
opposed this interpretation and has pointed out that at that time such
considerations were of no importance to him. In later years, when the
_Frankfurter Zeitung_ was to disappear, he had, so he said, used his
influence in order to insure the further publishing, out of material
considerations too, as this newspaper was, as an economic paper, highly
esteemed abroad and was the best commercial newspaper of the country.
However, this does not alter the fact that Funk had, at that time, used
his influence repeatedly and with success in favor of Oeser and his
collaborators, for purely humanitarian reasons.[sm type ends]

[sm type begins]The witness Kallus finally declared in his questionnaire
(Page 3 of Document Funk-18) that he remembers several occasions where
Funk made possible the emigration of Jewish people under tolerable
conditions. Kallus confirms hereby the statements of the witness Luise
Funk (Document Book Funk, Exhibit Number 3), according to which the
Defendant Funk often received, in the years when he was Under Secretary
of State in the Ministry of Propaganda, letters of thanks from Jews who
had emigrated at that time from Germany and who thanked Funk for having
given them facilities for liquidating their businesses and for having
procured them permission to take along abroad considerable parts of
their fortunes.[sm type ends]

[sm type begins]Evidence concerning this second part of the Indictment
has accordingly shown that Funk is guilty in the sense of this part of
the Indictment neither in his official capacity nor by his actions. He
has helped, as far as it was within his power, many Jews and many
individuals who were endangered and hindered in their cultural work, out
of their material and spiritual distress, although by doing so he
jeopardized his own position.[sm type ends]

Now, Gentlemen of the Tribunal, I turn to another subject—the charge
appearing under Point 4 of my brief, Page 24 onward, namely, that he
participated in the preparation of wars of aggression; a point which is
dealt with by Figure 4 of the Indictment. The accusation against the
Defendant Funk is: “that with full knowledge of the aggressive plans of
the conspirators he participated in the planning and preparation for
such wars.”

As evidence of this, the Indictment first of all points out that
Göring’s Ministry of Economics was brought under the Four Year Plan as
the “high command of the German war economy,” and was placed under
Funk’s command. The Indictment also states that according to the Law for
the Defense of the Reich of 4 September 1938 Funk, in his capacity as
Plenipotentiary for Economics, was explicitly charged with the
mobilization of German economy in case of war.

The Prosecution’s assertion that the Reich Ministry of Economics was
brought under the Four Year Plan before it was handed over by Göring to
Funk is quite correct, but the so-called “high command of the German
economy” was not in the hands of the Reich Minister of Economics, Funk,
but entirely in those of the Delegate for the Four Year Plan—that is,
the Codefendant Göring. Göring has confirmed the fact that Funk was
obliged to follow his instructions. In addition, the most important
branches of production were managed—as we have already shown—by
special plenipotentiaries of the Four Year Plan, who were under the
control of Göring and received their instructions from Göring—not from
Funk. The Reich Ministry of Economics itself was merely the office which
carried out the directives of the Four Year Plan. The Defendant Funk has
testified that some offices were only formally under his supervision and
functioned in reality as autonomous institutions of the Four Year Plan.

Funk’s position as Plenipotentiary for Economics was vigorously disputed
from the beginning. When the Defendant Funk was cross-examined, Document
EC-255 was submitted, a letter from the Reich War Minister, Von
Blomberg, to the Delegate for the Four Year Plan, Göring, dated 29
November 1937, wherein Blomberg proposes that the Defendant Funk, who
had just then, on 27 November 1937, been appointed Reich Minister of
Economics, should also be appointed Plenipotentiary for War Economy.
This was not, however, done.

Göring himself took over the Reich Ministry of Economics to begin with,
and only handed it over to the Defendant Funk in February 1938, 3 months
afterward. Then the High Command of the Armed Forces—more especially
the Army Economic Staff under General Thomas, whose name has been
mentioned repeatedly—requested that the Plenipotentiary for War Economy
should be bound in the future to follow the directives of the High
Command in all questions concerning supplies for the Armed Forces. In
this Document, EC-270, USA-840, the Economic Staff of the High Command
of the Armed Forces claims a right to direct the Plenipotentiary for War
Economy in nearly all his fields of activity.

The Defendant Funk tried by means of a conversation with Reich Marshal
Göring and a letter to Reich Minister Dr. Lammers to clarify his
position as Plenipotentiary for War Economy, and as such claimed to be
placed under the direct command of Hitler and not bound to abide by the
directives of the High Command of the Armed Forces. Göring and Lammers
concurred with Funk’s opinion. It must, however, be emphasized most
strongly that this did not affect Funk’s subordination to Göring, for
all the other supreme Reich offices and ministers directly subordinate
to Hitler’s command were also bound by the directives of the Delegate
for the Four Year Plan, that is, by Göring’s directives.

It is a remarkable fact that according to the Reich Defense Law of 4
September 1938—the Second Reich Defense Law—the Defendant Funk did not
become Plenipotentiary for War Economy, but Plenipotentiary for
Economics, without the word “War,” and that this act explicitly stated
that Funk was bound to comply with the demands of the OKW. The OKW,
therefore, won its battle against Funk in the end.

But the individual economic departments, which according to the Reich
Defense Law were under the direction of the Plenipotentiary for
Economics for his special assignments, were equally unwilling to
recognize him. In an interrogatory by the former State Secretary Dr.
Hans Posse, Funk’s deputy as Plenipotentiary for Economics (Document
3819-PS, USA-843) which was produced during the cross-examination of the
Defendant Funk, Posse states that the Plenipotentiary for Economics
“never really exercised any function.” The ministers and state
secretaries of the individual economic departments of finance,
agriculture, transport, _et cetera_, did not, according to Posse, wish
to be placed under Funk’s control, and even protested against it. Posse
also mentions the disputes which Funk had with the Four Year Plan. He
calls these conflicts “the struggle for power,” which in this connection
simply means the authority to make decisions concerning the other
economic departments. This was not a dispute between Göring and Funk;
that is untrue because obviously Funk as Plenipotentiary for the
Economics was still subordinate to Göring. Actually, this was a quarrel
among state secretaries. The individual economic departments declared
that they were subordinate to the Delegate for the Four Year Plan and
refused to recognize the right of the Plenipotentiary for Economics to
give them directives, since Funk himself was under the direction of the
Four Year Plan. The state secretaries of the Four Year Plan supported
the departments in their interpretation, and this lack of clarity and
the overlapping of competencies caused the authority to issue directives
to pass formally from the hands of the Delegate of the Four Year Plan a
few months after the outbreak of the war.

Questioned by the Prosecution as to whether he had been in the habit of
discussing important matters with Funk, the above-mentioned State
Secretary Posse replied: “Yes; but these discussions did not produce
results.” Posse confirms that the authority given to Göring was much
more extensive and that Göring finally dissolved the office of the
Plenipotentiary for Economics. According to Funk this happened as early
as December 1939, a few months after the outbreak of the war. Funk
retained only the formal right to issue decrees. This has also been
confirmed by Lammers. Therefore, the Codefendant Göring’s statement that
he was also of the opinion that Funk’s position as Plenipotentiary for
Economics could be described as having existed only on paper is quite
correct.

[sm type begins]Naturally the office of the Plenipotentiary for
Economics worked in continuous business relations with the other
economic departments, with the Four Year Plan, with the staff of the
department for defense economics of the German Supreme Command, and with
the Plenipotentiary for Administration, that is to say, the Reich
Minister of the Interior. As proof the Prosecution presented various
documents showing that at the meetings of the Deputy Plenipotentiary for
Economics and his staff, questions of finance, war production, labor,
and others were discussed. In this connection the office of the
Plenipotentiary once also treated the question of employing prisoners of
war in the industry, but this was an entirely theoretical discussion
(Document Number EC-488, USA Exhibit Number 842).[sm type ends]

[sm type begins]Why this General Staff economy work, which had to be
done in times of peace for the eventuality of war, should be
incriminating for the Defendant Funk is not clear. Besides, until August
1939 he personally did not take any interest in the details of these
questions. All this work of the Plenipotentiary for Economics consisted
of general preparations in case of war and did not apply to any special
war. However, when Funk’s proposition for changing over from peacetime
to wartime economy was worked out in co-operation with the other
economic departments in August 1939, the danger of war with Poland was
already pressing.[sm type ends]

Nowhere in the material presented by the Prosecution is there a single
indication of the fact that the Defendant Funk knew anything about
military and political conversations and preparations which had as their
object the planning of war—in particular, a war of aggression to be
waged by Germany. Funk was never invited to take part in any
conversations of this kind. He was, in particular, not present at the
well-known discussion with Göring on 14 October 1938, which was treated
exhaustively by the Prosecution on Page 24 of the trial brief. According
to the Prosecution, Göring during that meeting referred to an order
issued by Hitler for an unusual increase in armaments, especially
weapons of attack. The Prosecutor declared during the session of 11
January 1946 that at that meeting Göring addressed words to Funk which
were described as “the words of a man already at war.” Several documents
included in the Funk document book and submitted to the Tribunal prove,
however, beyond doubt that the Defendant Funk did not attend that
meeting at all, as he was in Sofia at the time in order to conduct
economic negotiations with Bulgaria. This exhibit, which the Prosecution
obviously intended to use as a main exhibit, is thereby invalidated. On
25 August 1939, the date of Funk’s letter to Hitler to which I referred
this morning, the German and Polish armies were already completely
mobilized and stood face to face with each other. He was, therefore,
compelled to act in that particular manner, and by that time he was no
longer able to cancel any of the preparations. All this is corroborated
by the diary kept by the witness Kallus and submitted in the Funk
document book under Number 18. The Defendant Funk stated here on the
witness stand:

    “It was naturally my duty as Plenipotentiary for Economics to do
    all I could to prevent the civilian section of the economy from
    being shattered in the event of war, and it was also my duty as
    president of the Reichsbank to increase as much as possible the
    Reichsbank’s reserves of gold and foreign currency.”

He goes on to say:

    “That was necessary on account of the general political tension
    at the time, and it was also necessary in case no war would come
    about but only economic sanctions which, in view of the
    political situation at the time, one could and must expect.”

Funk likewise says:

    “It was also my duty as Reich Minister of Economics to increase
    production.”

That is an exact quotation from the Defendant Funk’s testimony. On this
subject the witness Puhl, who was vice president of the Reichsbank,
states in his interrogatory of 1 May, which is in the hands of the
Tribunal, that the position of the Reichsbank in the last 7 months of
Funk’s presidency before the outbreak of the war had not been materially
strengthened, and that very little business had been done in the
exchange of foreign assets for gold since January 1939. The Reichsbank’s
cautious policy in regard to gold and foreign currency, according to
this witness, was in line with its customary practice.

Puhl’s statement is important for the correct understanding of the
reference made by Funk, in his letter to Hitler of 25 August 1939, to
the conversion of foreign assets into gold. During the period of Funk’s
presidency of the Reichsbank the transactions to which he alludes were
no longer of any importance. The exaggerated phrases used by Funk in his
letter to Hitler make the contents appear much more important than they
actually were.

Funk explained this fact during his examination by saying that this
letter was a private letter of thanks, that in those days every German
was under a very great strain owing to the tense political events
throughout Europe, and that he wanted to inform his Chancellor at this
moment when the country was in danger of war, that he, Funk, had also
done his duty. This was the first and only occasion on which Funk
actively exercised his functions as Plenipotentiary for Economics.

Here I must insert something which is based upon some minutes which the
Prosecution did not submit until the hearing of evidence had been
concluded; Document 3787-PS. These are the minutes of the second meeting
of the Reich Defense Council held on 23 June 1939. Funk, as
Plenipotentiary for Economics, attended that meeting of the Reich
Defense Council, which took place about 2 months before the beginning of
the war. The text of the minutes, however, leaves no doubt whatever that
they concern general, and therefore mainly theoretical, preparations for
any war. Furthermore, to appreciate this document it must be remembered
that during the war which broke out 3 months later the whole of the
Defendant Funk’s assignments in connection with the distribution of
labor was transferred to the Four Year Plan, since the main functions of
the Plenipotentiary for Economics were formally and completely
abolished, as I have previously shown, shortly after the outbreak of
war.

To continue with my brief—the Defendant Funk has explained in detail
during his examination that up to the very end he did not believe that
war would come, but that on the contrary he thought that the Polish
conflict would be settled by diplomatic means. The accuracy of this
statement is also confirmed by the witnesses Landfried, Posse, and Puhl,
the defendant’s three closest co-workers, in interrogatories submitted
to the Court (Exhibit Numbers Funk-16 and 17 and Document 3849-PS). The
danger of war with Russia came to Funk’s knowledge for the first time
when he heard of Rosenberg’s appointment as plenipotentiary for the
unified treatment of eastern European problems in April 1941. We
remember that at that time Lammers and Rosenberg gave the Defendant Funk
the same explanations, generally speaking, as those stated to the
Tribunal here by all the witnesses heard on this question. He was told
that the reason for the preparations for war against Soviet Russia was
that the Soviet Russians were massing considerable forces along the
entire border, that they had invaded Bessarabia, and that Molotov, in
his discussions on the subject of the Baltic Sea and the Balkans, had
made demands which Germany could not fulfill. As Rosenberg stated that
the assignment given him by Hitler also included economic measures, Funk
placed a ministerial director, Dr. Schlotterer, at Rosenberg’s disposal
as liaison official. Schlotterer later took over the direction of the
economic section of the Rosenberg Ministry and joined the Economic
Operations Staff East of the Four Year Plan. The Ministry for Economics
itself and Funk had practically nothing to do with economic questions in
the occupied East and concerned themselves merely with questions bearing
on German internal economy. The Ministry for Economics had no authority
whatever to make decisions in the Occupied Eastern Territories. During
his cross-examination the Defendant Funk was shown an extract from an
interrogation of 19 October 1945, dealing with the subject “Preparations
for War against Russia” (Document Number 3952-PS, USA-875). In this
interrogation Funk stated that the Defendant Hess asked him at the end
of April 1941 whether he, Funk, had heard anything about an impending
war against Russia. Funk replied: “I have not heard anything definite,
but there seems to be some discussion along that line.”

The explanation of this conversation at the end of April 1941 between
two men who were not informed of the facts may well be that at that time
Funk did not yet definitely know the reason for Rosenberg’s assignment,
but knew only of suspicions and rumors.

On 28 May 1941 Rosenberg had a meeting with Funk (Document 1031-PS). In
this meeting, as you may recall, they discussed the question of how the
monetary problem in the East might be regulated in the event of war
against Russia and the occupation of those territories by German forces.
Gentlemen, in my opinion it is quite natural that in view of an
impending war, even a war of defense, the authorities responsible for
money matters should discuss the question of the handling of these
matters in case enemy territory should be occupied. Funk was opposed to
any solution likely to give rise to speculation; and he described the
suggested rate of exchange for marks and rubles as entirely arbitrary.
He agreed with Rosenberg that the Russian territory should have its own
national currency as soon as conditions permitted. For the rest he
demanded further investigation of these problems, especially since the
matter could not be decided in advance.

Here too, therefore, Funk approached matters with his characteristic
caution and endeavored to find a solution which would create stable
conditions from the very start. If the necessity for printing ruble
bills to meet the most urgent demands for currency was mentioned in the
discussion with Rosenberg—though not by Funk—Funk did not see anything
either unusual or criminal therein. If the currency of a country has
been depleted, it is absolutely necessary for fresh money to be provided
by the power responsible for maintaining a stable monetary system. Who
made the banknotes was of no importance to Funk; the essential point for
him was by whom the banknotes were issued and in what quantity.
Moreover, the production of a new banknote requires months of
preparation, so that the execution of such a plan—which, as I said, was
in any case not Funk’s—could not have taken place until much later.

A few weeks after this discussion the war actually broke out. Funk knew
that there was danger of war with Russia. That Germany had long been
preparing for such a war was however as little known to him as the fact
that Germany would attack and thus wage a preventive war. Funk was
informed neither of the march into Austria nor of the negotiations in
regard to the Sudetenland—in September and October 1938 he was not even
in Germany—nor was he informed of the seizure of the remainder of
Czechoslovakia. In the case of Poland, he knew that the conflict was
acute, but nothing more; of Russia the same thing was true. But in both
cases he was informed even of this only a short time before the actual
outbreak of war. As far as wars with other countries were concerned,
Funk received no information whatsoever before the opening of
hostilities; he was only informed afterward.

All the facts I have mentioned form a clear indication that Funk knew
nothing of Hitler’s intentions with regard to foreign policy, and that
he had no knowledge whatsoever of the fact that Hitler was planning wars
of aggression. In the summer of 1939 Funk certainly devoted particular
attention to the conversion of German economy from a peacetime to a
wartime basis. But as an official of the Reich, Funk considered it to be
not only his right but also his duty to prepare the German people for a
defensive war and to take the necessary economic measures.

However, the Prosecution believes that it can eliminate all these doubts
by describing the Reichsregierung or the National Socialist Party as a
criminal organization which conspired against other nations, and whose
sole task was to plan and wage wars of aggression, to subjugate and
enslave foreign nations, and to plunder and Germanize other countries.
This deduction is erroneous, since those plans were devised and executed
only by Hitler himself and a few of the men closest to him, of the type
of Goebbels, Himmler, and Bormann. According to the evidence we have
heard, there can be no doubt that even the highest officials of the
State and the Armed Forces—and in particular Funk—were not informed of
these plans, but that these plans were concealed from them by a cunning
system of secrecy.

Any comparison with the secret societies mentioned by the Prosecution,
which in other countries banded together in criminal organizations, as
for example the Ku Klux Klan in America, is impossible for a further
reason. The Ku Klux Klan was organized from the start as a secret
society for the purpose of terrorizing and committing crimes. In 1871,
after scarcely 6 years of existence, it was expressly forbidden by the
North American Government through a special law, known as the Ku Klux
Klan Act. At that time the Government even imposed martial law on it and
fought it with every possible means. It was an organization with which
the Government and Congress of the United States never had any dealings.
A man like Funk would, of course, never have joined a secret society, a
criminal organization against which the Government was fighting.
However, the National Socialist Party in Germany was never a secret
organization, but was a party recognized by the Government and
considered lawful. The unity between this Party and the State was even
declared in a special Reich law. Since 1934 the leader of this Party was
at the same time the elected head of the Reich, and this head of the
State and his Government have been constantly and officially recognized
as a government by the entire world from 1933 on. It was due precisely
to this international recognition of Hitler by every foreign country—a
recognition which continued to be extended in part even during the
second World War—that Funk and millions of other Germans never doubted
the legality of the Government and that such doubts, if they ever
entered their minds, were immediately dispelled. Millions of German
officials and German soldiers assumed, just as Funk did, that they were
only doing their duty in not withholding from the head of the State the
recognition accorded to him by every country in the world.

[sm type begins]The foreign countries, their statesmen as well as their
general staffs, the press as well as the intelligence service of other
countries, were certainly better informed about the German situation and
also about the true aims of German politics than the German citizen who
had no access to foreign newspapers, who was not permitted to listen to
foreign radio stations if he did not want to land in jail or on the
scaffold, who for years lived as isolated as in jail and could not even
trust his neighbors and friends—not even his relatives—and dared not
talk things over with anybody. Even ministers knew no more about
Hitler’s true plans than any other fellow citizen and even of major
State affairs they mostly learned only afterward through the newspapers
or the radio. Who could have ever conceived the thought that foreign
states would maintain diplomatic relations with a criminal organization
and that official persons of foreign countries should recognize and call
upon a man in whom they saw the head of a band of conspirators?[sm type
ends]

As already mentioned, Funk has never denied that in his plans and
directives he naturally took into account the possibility of wars which
might some day have to be waged by Germany, just as it is part of the
duty of every general staff in the world to take such possibilities into
consideration. At that time Funk had every reason to do so in his
capacity as Minister of Economics and Reichsbank president; for the
world situation since the first World War had been so tense, and the
conflicting interests of individual nations had frequently appeared
insurmountable to such a degree that, unless he wanted to be accused of
neglecting or betraying the interests of his own people, every statesman
had to make the preparations necessary for waging war. A preliminary
activity of this kind is, therefore, not in itself of criminal
significance; and Funk has no doubt that during those years the
ministers of economics and bank presidents of other countries also
made—and had to make—similar preparations for the event of war. In the
case of Funk it is of no importance whether or not he for his part
ordered such preparations, but only whether or not he knew that Hitler
was planning aggressive wars and intended to wage such aggressive wars
in violation of existing treaties and in disregard of international law.

But Funk, as he declared under oath, did not know this, nor did he act
on this premise. Hitler’s constant affirmations of peace prevented such
a possibility from entering his mind. Today, of course, we know on the
basis of the actual events that followed and on the basis of the facts
established by these proceedings, that those peace assertions of
Hitler’s, which were still on his lips when he committed suicide, were
in reality only lies and deception. But at that time Funk regarded
Hitler’s protestations in favor of peace as perfectly genuine. It never
occurred to him at that time that he himself and the whole German nation
could be deceived by Hitler; he believed Hitler’s words just as did the
entire world, and thus he was the victim of that deception just as was
the entire world. If no blame attaches to foreign statesmen and generals
who believed Hitler’s protestations, although they certainly were better
informed on Germany’s rearmament than was Funk, the faith which he
himself had in the head of the State cannot be called a crime.

Gentlemen of the Tribunal, I have now examined the Prosecution’s
accusation that Funk had planned wars of aggression; and I turn to
another point of the Indictment, which concerns Funk’s activities in the
occupied territories and the charge of forced labor.

The Prosecution offered very little evidence against Funk on the subject
of forced labor or the slave-labor program. In the main he is held
responsible for the compulsory employment of foreign workers on the
grounds that he was a member of the Central Planning Board from autumn
1943 on. The first session of the Central Planning Board at which he was
present took place on 22 November 1943, that is to say, at an advanced
stage of the war, and after that he very rarely attended meetings. The
Defendant Speer testified to this, and it is also evident from the
minutes of the Board, which were very carefully kept. And I should like
to emphasize the fact that Funk never had anything to do with the
employment of labor either in his capacity as Minister of Economics or
as president of the Reichsbank. He was on principle opposed to taking in
too many workers from the occupied territories, especially by force,
because this interfered with the economic and the social life of these
territories. The Codefendant Sauckel and the witnesses Landfried and
Hayler have confirmed this, and it is also shown by the remarks made by
Funk himself at the meeting held in Lammers’ office on 11 July 1944
(Document 3819-PS), which was frequently quoted in Court. Here, for
instance, Funk expressed disapproval of ruthless raids to recruit
foreign workers.

If Funk sent representatives to the Central Planning Board, he did so
only to insure that the necessary raw materials were allocated to the
industries engaged in manufacturing consumer’s goods and goods for
export, but never to deal with questions of foreign labor, in which he
was not at all interested. Although the Prosecution, in cross-examining
the witness Hayler, on 7 May 1946, confronted him with a statement by
Funk during the preliminary interrogation of 22 October 1945, Document
Number 3544-PS, to the effect that he had “not racked his brain” over
these labor problems, it must also be stated on the part of the Defense
that in the next sentence of these minutes—in the same breath, so to
speak—Funk declared that he had always done his utmost to prevent
workers being taken away from their homeland, in this case France. This
second sentence, although not quoted by the Prosecution, seems to be of
special importance because it clearly reveals Funk’s disapproval of the
compulsory measures used in connection with the utilization of foreign
labor. The Defendant Speer, however, testified before the Tribunal on 20
June that the Central Planning Board made no plans at all for the
utilization of labor. Only occasional discussions on questions
concerning the utilization of labor took place here. The records
containing the actual results of the negotiations and decisions of the
Central Planning Board have not been introduced by the Prosecution. It
has been shown that Funk, who attended only a few of the meetings of the
Central Planning Board, never received the full notes but only the
minutes, which revealed nothing. Before Speer was responsible for
decisions on war production, and before Sauckel became Plenipotentiary
General for the Allocation of Labor—that is, before 1942—the question
of recruiting labor for production was dealt with by the Four Year Plan,
that is, by Göring and not by Funk. Later on applications for workers
required, as Speer has testified, were usually made by the industries
directly to the offices controlling the allocation of labor. While Funk
was still in charge of production in the Reich Ministry for Economics
and working in accordance with the directives of the Four Year Plan,
questions concerning the allocation of labor were not dealt with by the
Reich Ministry for Economics at all, but by the Plenipotentiary General
appointed under the Four Year Plan for the various branches of
industry—that is, by Göring—by means of direct negotiation with the
Plenipotentiary General for the Allocation of Labor. Speer clarified
this in connection with Document Sauckel Number 12. He also clarified
the fact that several branches of industry, such as overground and
underground construction not falling within the competency of the Reich
Minister of Economics, were cited in this document as belonging to it.

[sm type begins]Some other items had been rectified previously already
by Sauckel’s defense counsel. The various economic offices
(Wirtschaftsämter) likewise did not request manpower from the Reich
Ministry of Economics. They were, however, not offices of the Reich
Ministry of Economics, but were incorporated in the so-called
intermediate instance, that is, in the provincial authorities, or in the
Gauleitungen.[sm type ends]

[sm type begins]An important point in this connection is the
establishment of the fact that up to 1943, that is, up to the time in
which Funk was at all competent in questions of production, foreign
workers came to Germany through recruitment solely upon the basis of a
voluntary decision. With respect to this, I refer to the decree of the
Reich Minister for Labor promulgated on 30 July 1940, presented in
Funk’s book of documents under Number 12, in which the conformity with
obligations internationally agreed upon is specifically pointed out.[sm
type ends]

Finally it must be stated that Funk, at the time when he joined the
Central Planning Board, no longer had any production assignments and
could therefore no longer claim workers, so that in consequence he had
no further interest in this aspect of the Central Planning Board’s
activities.

[sm type begins]Regarding Funk’s attitude toward the economy of occupied
territory, and measures taken by him to insure the maintenance of
orderly economic conditions and especially of stable conditions of
currency, I refer to the questionnaires Landfried (Exhibit Number
Funk-16) and Puhl (Exhibit Number Funk-17), as well as to testimony of
the witnesses Hayler, Neubacher, and Seyss-Inquart. I will refer only to
Document 2263-PS, introduced by the Prosecution during cross-examination
of the Defendant Funk, a letter from the Under Secretary of the Ministry
of Economics to the Armed Forces High Command of 6 June 1942, in which
the transfer of 100 million Reichsmark from occupation money is
requested for purchases by Roges Raw Material Incorporated
(Rohstoffhandelsgesellschaft) on the black market in France.[sm type
ends]

[sm type begins]Here we deal with the purchases in occupied territories
mentioned before, resulting from instructions by the Four Year Plan.
These, however, represent exactly those purchases against which Funk
protested. His protests finally culminated in the decision of the
Delegate for the Four Year Plan (Göring) to prohibit any such further
purchases. As is known, Funk personally had no authority to issue
instructions for the occupied territories. Moreover such controlled
purchases by authorities must be looked upon in a different light from
the uncontrolled purchases of the various State, Party, and Armed Forces
agencies, against which Funk fought time and again (Questionnaire
Landfried, Document Book Number Funk-16).[sm type ends]

Summarily it must be said that the evidence submitted has proved beyond
doubt that the Defendant Funk took a great many measures to prevent the
exploitation of occupied territories and that the fact that he succeeded
in preventing the devaluation of currency in occupied countries was in
itself enough to protect them from suffering damage to an extent which
cannot be evaluated in detail.

With that, Gentlemen of the Tribunal, I leave this point of the
Indictment against Funk and turn to a further charge against him,
namely, his participation in the elimination of Jews from economic life
in November and December 1938, which forms Point 3 of the Indictment
against him.

Gentlemen, the charges which the Prosecution has made against Funk
contain many details with which, in view of the time at my disposal, I
am unable to deal fully. With regard to such details I shall refer to
statements made by Funk himself in this connection. First of all,
however, I must deal more fully with what seems to me the most important
of all the charges made against Funk, namely, that of playing a part in
the persecution of the Jews. The Defendant Funk considers this to be the
most important factor in his trial.

Gentlemen, no one in Germany has ever asserted that Funk was one of
those fanatical anti-Semites who took part in the pogroms against the
Jews or who approved of these proceedings and profited by them; Funk
always condemned such actions. This can be explained not only by his
natural disposition and the environment in which he grew up, but also by
his years of work as a journalist, mainly in connection with that
section of the press which dealt with economic policy and consequently
kept him in continuous touch with the Jewish circles of importance to
economic life. Experts in that field know, and still have respect for,
Funk who even at that time showed an attitude that was free of all
anti-Semitism, and friendly toward the Jews rather than hostile.

It is tragic to a certain extent that in spite of this the name Funk, of
all names, has been repeatedly connected in this Trial with the decree
of November 1933, as a result of which the Jews were eliminated from
economic life. Whether he liked it or not, all questions concerning the
treatment of Jews in the economic life of Germany were under the
jurisdiction of his department as Minister for Economics. As an official
it was his duty to issue the necessary executive instructions.

This was certainly particularly difficult for Funk, in view of his
tolerant attitude. At that time he had already been a civil servant of
the Reich Propaganda Ministry and the Ministry for Economics for 8
years, and yet, during all that time, the Prosecution could not cite a
single instance of any display of anti-Semitism on Funk’s part or any
evidence of his having urged or approved of the use of force, terrorism,
or injustice against the Jews. On the contrary, we know from the
statements of various witnesses that Funk repeatedly interceded for his
Jewish fellow citizens in the course of these years; that he looked
after them and tried in their interests to alleviate hardships, to
prevent encroachments on their rights, and to spare the lives and
careers of human beings, even if they were Jews or political opponents
of his own.

It is, therefore, not surprising that this man, with his wide experience
in the economic field, this man of far-reaching knowledge, with his
frankly tolerant views, was most painfully affected when on 10 November
1938 he had to witness the destruction of Jewish homes and shops in
Berlin, and when he received one report after another confirming the
fact that Goebbels and his clique, exploiting the indignation of the
populace over the assassination of a German by a Jew, were organizing
such pogroms throughout Germany, and that these outrages were leading
not only to the destruction of Jewish property, but also to the murder
of many Jews and to the persecution of many thousands of innocent
citizens.

The affidavit of this assistant, Ministerialrat Kallus (Document Book
Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5
November 1945 (Funk Document Book Number 3), prove clearly that Funk
condemned such excesses most severely, that he was incensed to the
extent of calling them filthy outrages even when addressing Dr. Goebbels
himself, and that he threatened to resign in the event of a repetition.
Even at that time he told the mighty Goebbels to his face that one
should be ashamed of being a German.

All this, Gentlemen, expressed the justified indignation of a man who
for years had made every effort to insure moderation toward Jews and
political opponents and had received many a letter of gratitude for so
doing—a man who had fought for years to prevent terrorism, to secure
for all his fellow citizens the rights to which they were entitled, and
to raise the standard of German economic life—and who now saw all his
efforts frustrated in a single night by the brutal fanaticism of a Dr.
Goebbels.

Funk himself, during his interrogation, gave us a vivid description of
how, ever since he entered office as Minister of Economics in February
1938, he had been subjected to continuous pressure by Goebbels and Dr.
Ley to eliminate the Jews from the economic life of the country in the
same way as they had been eliminated in 1933 from its cultural life.

The witness Dr. Hayler stated here that Himmler also found fault with
Funk for this. Funk himself testified to the difficulties which again
and again occurred during those years with workers stirred up by
propaganda, who were sometimes no longer willing to work under Jewish
managers, or did not dare to do so; and how, in these oppressive
conditions, numerous Jewish owners sold their businesses—frequently at
cut prices—to people who seemed to Funk as the Minister of Economics
entirely unfit to acquire or manage such businesses. Funk tried again
and again to stem this overwhelming development. He made continual
efforts to put a brake on this process of Aryanization; to provide for a
reasonable and just settlement for Jewish owners of businesses; and to
allow them to emigrate from Germany with their property. But Funk
realized more and more clearly every day that he was too weak to stop
this movement and that the radical elements around Dr. Goebbels and Dr.
Ley were gaining the upper hand, in which they were unfortunately able
to rely on Hitler’s authority. Hitler had allowed himself in the course
of time to be won over more and more to the policy of radical treatment
of the Jewish question by a few irresponsible advisers who are not
sitting in the dock today.

The events of 9 November 1938 burst like a bombshell into this fight
between Funk and other considerate people on the one side, and Goebbels
and Ley on the other. As Dr. Goebbels himself admitted later to
Fritzsche, they were aimed directly at the person of the Defendant Funk,
who was thus to be confronted with a _fait accompli_. As the witness
Landfried testified, Dr. Goebbels did in fact attain his ends through
this operation of November 1938. Goebbels was able to refer later to
Hitler’s own order for the Jews to be completely excluded from the
economic life of Germany, although Funk, as the minister concerned,
repeatedly made allusion to the relations with foreign countries upon
which the German Reich and its economy depended.

The orders necessary to carry out this program were given by Göring in
his capacity of Delegate for the Four Year Plan, on the direct orders of
Hitler. Funk never had any doubt that in this particular affair Göring
also was to a certain degree only a puppet, because he had always known
Göring to be a man who condemned extreme radicalism in this particular
question of the Jews. Funk’s views on this point were shared by wide
circles of the German people, and the fateful Göring meeting of 12
November 1938 (Document 1816-PS) proved this to be correct. This
document has been mentioned here repeatedly. At a meeting which preceded
that of 12 November 1938, Göring sharply condemned the acts of terrorism
which had occurred and declared to the Gauleiter present that he would
make every Gauleiter personally responsible for acts of violence
committed in his district. But what was the good of that?

In the course of the second meeting, the minutes of which were submitted
to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in
imposing his radical demands; and the course taken by this meeting
forced Funk to admit that the complete elimination of the Jews from
German economic life could no longer be delayed for the simple reason
that the circles in power had become far too fanatical. It became
evident to Funk that legislative measures were necessary if the Jews
were to be protected from further acts of terrorism, looting, and
violence and if they were to get any reasonable compensation. During the
Göring meeting of 12 November 1938, Funk repeatedly expressed his views
again, as is shown by the records. It was due to the efforts made by the
Defendant Funk, with the support of Göring, that Jewish businesses were
reopened for the time being, that the whole procedure was taken out of
the hands of the arbitrary local agencies and put on a legal basis
throughout Germany, and finally that in order to gain time in which to
carry out this action a definite date was set for its completion. Anyone
who reads carefully the minutes of the Göring meeting of 12 November
1938 will, in spite of their incorrect and incomplete formulation, be
able to find definite and repeated indications of Funk’s moderating
influence; namely, his insistence—repeatedly mentioned in the
minutes—on the reopening of Jewish stores, his proposal that the Jews
be allowed to retain at least their securities, and finally his attitude
to Heydrich’s demand that the Jews be placed in ghettos. The minutes of
12 November 1938 prove beyond doubt that it was Funk who opposed
Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews
could move closer together among themselves. The existence of 3 million
Jewish people among no less than 70 million Germans can be regulated
without ghettos.” This is a literal quotation.

Funk therefore wanted to save the Jews at least from being interned in
ghettos. It must be admitted that at that time Funk did not entirely
succeed in securing recognition for his point of view, so that the
proposal that the Jews should be allowed to retain their securities, for
instance, was turned down, although Funk pointed out, as the minutes
show, that to realize the Jewish securities would suddenly flood the
German stock market with securities to the value of 500 million
Reichsmark and would, therefore, have serious consequences for the
German stock market. The decisive question in judging the Defendant Funk
is not so much his success as the fact that he made an obvious effort to
save for the Jews all that could be saved in the circumstances; and we
must not lose sight of the fact that in all those measures Funk acted
only in his capacity as Minister of Economics, that is, as an official
who merely gave the order to execute a command which Göring as Delegate
of the Four Year Plan had issued on the orders of Hitler. Funk found
himself in exactly the same position of constraint, as, for example, the
Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time
had to order the punitive levy of 1,000 million Reichsmark to be paid by
the Jews, or the Reich Minister of Justice and the Reich Minister of the
Interior, both of whom issued similar executive instructions in their
respective spheres. The Tribunal must decide the difficult legal
question of whether a state official whose government has been legally
recognized by all the governments of the world is liable to legal
punishment for putting into effect a law—and I emphasize the word
“law”—passed in accordance with the legislative system of this state.
This legal problem is entirely different from the other question, dealt
with in the Charter and by the Prosecution, as to whether or not the
fact that an official order was given by a superior can serve as an
excuse. I might add here that I shall not discuss this legal question
because I shall leave it to the other members of the Defense. I shall
discuss only whether an official who puts into effect a law passed by
the internationally recognized government of his country thereby becomes
liable to punishment. That is an entirely different problem from the one
dealt with by the Charter.

Gentlemen, since this has not been dealt with before, I have to state
the following; I read at the bottom of Page 50: Our natural sense of
justice fully approves that a citizen, an official, or even a soldier,
cannot defend himself by reference to the official order given him by
his superior if this order obviously implies an illegal act, and
especially a crime; and if in the existing circumstances and in due
consideration of all the accompanying facts, the subordinate realizes,
or should realize, that the official order is contrary to the law.

If the latter condition exists, in other words, if the official order
obviously constitutes a breach of the law, it may in general be fully
approved that the subordinate is not accorded the right to refer to his
superior’s official order as an excuse and to maintain that he was only
carrying out that order. In that respect this stipulation of the Charter
contains nothing essentially new, but only the confirmation and further
development of legal principles which are recognized to a varying extent
in the penal codes of most civilized nations today. A certain amount of
precaution, however, seems to be indicated in this matter, for it should
not be forgotten, on the other hand, that obedience to the orders of a
superior—not obedience to the law, but to a superior—is, and must in
future remain the foundation of every government in all nations if the
orderly functioning of the state administrative apparatus is to be
secured; and that it would be dangerous for the civil servant to decide
for himself whether to keep his oath of allegiance.

But, Gentlemen, in our case something different is involved: We are
dealing here with the obedience of the citizen and especially of the
civil servant, such as Funk was at that time, to a national law, which
was legally promulgated in accordance with the constitutional rules of
this State. If we wish to find a just and correct answer to this
complicated juridical question, which so far has not been treated in
literature, it will be pertinent to disregard entirely conditions in
Germany and the present Trial, and to ask ourselves what decision would
be given in a case where a civil servant of a different country—not
Germany—carried out a law. Let us assume for instance, that some
foreign country embracing a minority promulgated, in accordance with its
constitution, a law exiling from its territory all members of this
minority, or confiscating for the benefit of the state the property of
such inhabitants, or turning over to the state or partitioning among
other citizens the large agricultural estates of such inhabitants. Let
us assume that such a case exists and let us ask ourselves: Does the
civil servant in this nation really commit a crime if he carries out
this lawful order? Is it really the duty of the official charged with
the execution of this law to refuse to obey the law and to declare that
in his personal opinion the law concerned is a crime against humanity,
or has he even the right to do so? In such a case, Gentlemen, would any
state today grant its civil servants permission to examine whether the
law proclaimed is contrary to the principles of humanity or to the
fluctuating norms of international law? What state would tolerate the
refusal of its civil servants for such a reason to execute a law already
proclaimed?

[sm type begins]Or another example: Let us assume that the laws of a
nation decree that certain new weapons are to be introduced into the
armed forces, or that more warships are to be built, or that some
preparations have to be made for war. Should an individual civil servant
really have the right to refuse the execution of the law, even perhaps
to sabotage its execution, and then to say, by way of explanation, that
in his personal opinion concerning international law it involved the
preparation of an aggressive war, consequently an international
crime?[sm type ends]

The Tribunal will have to decide these legal problems. But Funk may
point out in his own defense the fact that by reason of his entire
ideology and background it was especially painful to him to issue these
executive instructions, although he believed he was only doing his duty
as a civil servant.

In this connection I wish to remind you of Funk’s circular of 6 February
1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes
to his officials that it was their duty to “insure that it was carried
out in a correct manner in every respect” and where he already feels
impelled to disclaim personal responsibility for these measures by
expressly emphasizing: “How far and how rapidly the powers conferred by
the Four Year Plan are to be exercised will depend on the instructions
to be given by me in accordance with the directives of the Delegate for
the Four Year Plan.” This special reference made by the Defendant Funk
to the legal decrees of the Four Year Plan, which was authorized to
promulgate laws, originated in the defendant’s desire to express
formally and solemnly, and to establish for the future, the fact that in
issuing the executive instructions in 1938 he was a victim of his
obedience to the State, a victim of his loyalty to the laws of the State
to which he had sworn allegiance.

Funk’s circular of 6 February 1939, already mentioned on Page 19 of the
trial brief, clearly expresses the qualms of conscience which had
gripped Funk in those days, although he had not incriminated
himself—qualms which, during his interrogation by an American officer
on 22 October 1945, led to his complete nervous collapse, so that Funk
was unable to restrain his tears and told the interrogating officer:
“Yes, I am guilty; I should have resigned at that time.”

These same qualms of conscience gripped the defendant throughout the
entire Trial and are still haunting him; and we remember that in the
session of 6 May 1946, when this point was discussed, Funk was so deeply
shaken that he could hardly continue talking and finally declared here
before you, Gentlemen, that at that moment he fully realized that this,
meaning the atrocities of November 1938, was the starting point of the
chain of events leading to those horrible and frightful things of which
we have learned here, some of which he too had already heard of during
his imprisonment, and which culminated in Auschwitz. He felt, as he said
during his interrogation on 22 October 1945, “deep shame and heavy
guilt,” and he still feels it today; but he had put the will of the
State and the laws of the State above his own feelings and above the
voice of conscience since he, as a civil servant, was tied by duty to
the State. He felt these ties all the more strongly as these legal
measures were particularly necessary for the protection of the Jews in
order to save them from losing their rights completely, and from
suffering further despotism and violence. These are the very words of
the Defendant Funk; and they represent his actual feelings. Today Funk
still feels that it was a terrible tragedy that he of all people was
charged with these things—he who never during his entire life said a
spiteful word against a Jew, but had wherever he could always worked for
tolerance and equality for the Jews.

If during his interrogation on 22 October 1945 Funk said: “I am guilty,”
it need not be investigated here whether the defendant intended these
words to apply to his criminal guilt, or only to a moral guilt which he
saw in the fact that he had remained in an office which compelled him to
carry out laws incompatible with his own philosophy of life. Funk was
not in a position to decide for himself the complicated legal question
of whether an official of an internationally acknowledged state can be
punished at all if he only carries out laws passed in accordance with
the legal constitution of this state. For the Defendant Funk his “guilt”
did not lie in the fact that he had signed the executive instructions in
November 1938, since this had been his duty as an official, rather did
he consider himself guilty because he had remained a member of the
Government although he found the acts of terror which had occurred
intolerable, and abhorred them; he was not involved in the “conflict of
conscience,” of which he spoke when he was interrogated, because he
acted according to the laws which he considered necessary under the
conditions prevailing at the time. This conflict was a result of the
fact that he had not, in this difficult situation, listened to the voice
of his conscience and had not resigned his ministerial office. But the
decisive reasons for his attitude and his final decision to remain in
office in spite of his feelings about the matter were certainly not
material considerations. His reputation as a journalist and his
abilities as such would easily have enabled him to find another suitable
position. Much is to be said for the opinion that the Defendant was held
in office above all by the thought that his resignation would in no way
improve matters, but that on the contrary the administration would
become still more radical under an unsuitable and fanatical successor,
while by staying in office he might hope to alleviate much distress.

These considerations, which may have guided the Defendant Funk in the
first place, were certainly correct up to a point. His State Secretary,
Dr. Landfried, at least has testified that later on too Funk often
expressed serious misgivings concerning the action taken against the
Jews in November 1938 and showed very strong disapproval of all excesses
and infringements of the law committed by various Government agencies in
carrying out the action. Funk could talk openly to his confidant
Landfried, and he often complained to him that he had no power to
prevent such excesses. But, as he said to Landfried: “We of the Ministry
of Economics should take particular care to see that no one makes
illicit profits out of the Aryanization—that is, the transfer to
non-Jewish ownership—of business firms.” And Ministerialrat Kallus
described in his deposition of 19 April 1946 the various measures taken
at that time by Funk to protect the interests of Jewish owners. Kallus
also told us that Funk even made personal efforts to insure that his
orders were carried out by his subordinates in a proper manner.

Gentlemen, thus a sense of duty on the one hand, and humane feeling on
the other, were the motives which kept the defendant in office and thus
brought him into a situation where he is today charged with criminal
action.

Mr. President, I am now coming to a new subject and I have altogether
about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes
to 4.

THE PRESIDENT: Can you finish it by that time, Dr. Sauter?

DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes.
On further thought, Mr. President, it will take about half an hour.

THE PRESIDENT: We will adjourn at this time.

      [_The Tribunal adjourned until 15 July 1946 at 1000 hours._]




                              ONE HUNDRED
                         AND SEVENTY-EIGHTH DAY
                          Monday, 15 July 1946


                           _Morning Session_

MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent
today.

THE PRESIDENT: Would it be convenient to Counsel for the Prosecution and
the Defense if at 2 o’clock today we were to deal with those
interrogatories and affidavits which have come in since the last
applications were made?

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom):
My Lord, it would be perfectly convenient for the Prosecution.

THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the
Defense Counsel to deal with those matters at 2 o’clock?

DR. SAUTER: Certainly, Mr. President; I will inform the other defense
counsel that these applications will be discussed at 2 o’clock.

DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my
colleague, Dr. Sauter, that this should be done. But if this is done at
2 o’clock it will interrupt my final speech. I should be very grateful
if it could be done immediately after Dr. Sauter finishes his speech, so
that I could present my plea coherently. It would be very awkward if I
were interrupted.

THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately
after Dr. Sauter’s plea.

DR. SAUTER: May I speak now, Mr. President?

THE PRESIDENT: Yes, Dr. Sauter.

DR. SAUTER: May it please the Tribunal; before the adjournment on
Friday, I explained in conclusion the position and the attitude of the
Defendant Funk with respect to the Jewish question. On this occasion I
pointed out that in connection with the executive instructions issued
late in 1938 on the legal exclusion of the Jews from economic life, the
Defendant Funk acted only in his capacity as a Reich official and in the
performance of the duties of that office.

On Friday, I finished my statements in that respect with the words:

It was a sense of duty on the one hand, and humane feeling on the other,
which kept the Defendant Funk in office and thus brought him into a
situation where he is today charged with criminal action.

Now, Gentlemen of the Tribunal, I turn to the last chapter of my
appraisal of the Defendant Funk, of his motives and actions, and will
now deal with the gold deliveries by the SS to the Reichsbank, and with
the relation of the Defendant Funk to the concentration camp question.
That is to say, I am going to refer to Page 58 of the written speech
which has been submitted to you.

It is a peculiar tragedy in the life of the Defendant Funk that he was
not only forced by fate in the year 1938 to issue executive instructions
for laws which he always inwardly condemned and repudiated more than
anybody else, but that once again, in the year 1942, he became involved
in a particularly horrible manner with Jewish persecutions. I am
thinking now of the deposits made by the SS in the Reichsbank, that is
to say, the matter on which a film was shown here of the steel vault of
the Frankfurt Branch of the Reichsbank and about which two witnesses
have testified, namely, Vice President Emil Puhl and Reichsbank
Councillor Albert Thoms.

The Defendant Funk was already examined about this matter of the gold
deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS);
at that time, however, no details were disclosed to him, and Funk made
the same statement then as he did before this Tribunal, namely, that he
was only briefly told about the matter in question on a few occasions,
and that he had not attached any importance to it at all. That is also
the reason why the Defendant Funk could not at first recall those
happenings very well during the proceedings here. He did not know
anything more about them than he had already said.

Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this
matter would be brought up in the Trial, at any rate in the
cross-examination. And this was actually done by the American
Prosecution on 7 May 1946, who submitted an affidavit by the witness
Emil Puhl, Vice President of the Reichsbank, in which at first sight
Puhl appeared to make serious accusations against the Defendant Funk.
Now it is remarkable that since the beginning of this Trial the
Defendant Funk has repeatedly referred to this very witness Puhl for
various points, and that since December 1945 he has repeatedly requested
that the latter be interrogated. Measured by ordinary human standards,
Funk would certainly not have done this if he had had a bad conscience
and had reason to expect to be compromised in the most damaging way by
his own witness regarding the concentration camp matter. But the oral
examination of the witness Emil Puhl here before this Tribunal showed
beyond a doubt that Puhl could no longer in any way maintain the
incriminating statements in his affidavit, as far as the character of
the Defendant Funk and his knowledge of the particulars of the SS
deposits were concerned.

It is true that Funk, as he recalled after Puhl’s testimony (and
concerning this I submitted on 17 June 1946 a corrected copy of his
sworn testimony), was once asked by Reichsführer SS Himmler whether
articles of value which had been seized by the SS in the Eastern
Territories could be deposited in the vaults of the Reichsbank. Funk
answered this question in the affirmative and told Himmler that he
should delegate somebody to discuss the matter with Vice President Puhl,
and settle the details. Himmler at that time told Funk that his
Gruppenführer Pohl could do this and that the latter would get in touch
with Vice President Puhl. That was all that Funk at that time, I believe
in 1942, had discussed with Reichsführer SS Himmler and which he on that
occasion also repeated to his Vice President Puhl who was actually
directing the business of the Reichsbank and therefore responsible for
this affair.

There was nothing extraordinary in this question of Reichsführer SS
Himmler, at least nothing which Funk could recognize. For, as far as
Funk knew, the SS was at that time in charge of the entire police
service in the Occupied Eastern Territories. For that reason it often
had to confiscate valuables just as the ordinary police did in the
interior, that is, within Germany. Moreover, all gold coins, foreign
currency, _et cetera_, in the Occupied Eastern Territories had to be
turned in according to law, and these deliveries in the Eastern
Territories were naturally made to the SS, because there were no other
state offices equipped for that purpose. Funk also knew that the
concentration camps were under the direction of the SS and thought that
the valuables which were to be given to the Reichsbank by the SS for
safekeeping belonged very probably to that category of valuables which
the entire population was obliged to deliver.

Finally, as has been ascertained in the course of this Trial, the SS was
constantly just as much engaged in the fighting in the East as the Armed
Forces, and like the latter the SS had also collected so-called booty in
the abandoned and destroyed towns of the East and delivered it to the
Reich. Therefore, there was nothing at all extraordinary for Funk in the
fact that the SS possessed gold and foreign currency and brought it in
for delivery in the regular way.

Now, the essential point in this whole business is the question whether
the Defendant Funk knew or saw that among the objects delivered by the
SS there were unusual quantities of gold spectacle frames, gold teeth,
and similar objects which had come into the hands of the SS not through
legal but criminal confiscations. If—and I emphasize, Gentlemen, if—it
could be proven that the Defendant Funk had seen such objects in the
deposits of the SS, this would naturally have caused him some surprise.
But we heard the witness Puhl say in the most positive way that the
Defendant Funk had no knowledge of this and, indeed, that Vice President
Puhl himself knew no further details about it. In any case Funk never
saw what particular gold objects and what quantities the SS delivered.

Now, it has been said against Funk that he himself entered the vaults of
the Berlin Reichsbank several times, and from this one felt entitled to
draw the conclusion that he must have seen what objects had been
delivered to the Reichsbank by the SS. This conclusion is obviously
wrong because the evidence shows that during the entire period of the
war Funk went to the vaults of the Reichsbank only a very few times for
the purpose of showing these vaults and the bullion of the Reichsbank
stored there to special visitors, especially foreign guests. But on
those few visits to the vaults he never saw the deposits of the SS. He
never observed what in particular the SS had deposited in his bank. This
is established beyond doubt, not only by the sworn statement of the
Defendant Funk himself, but also by the oral testimony of Vice President
Puhl and Reichsbank Councillor Thoms here in this courtroom. This
Prosecution witness, who is certainly free from suspicion and who by his
own admission volunteered to testify, has declared here under oath that
the valuables were delivered by the SS in locked trunks, boxes, and bags
and were also stored away in these containers, and that Funk was never
present in the vaults when the bank employees made an inventory of the
contents of an individual box or trunk. The witness Thoms, who was in
charge of these vaults, never saw the Defendant Funk there at all.
Therefore, Funk neither knew of the proportions which the deliveries of
the SS gradually assumed in the course of time, nor did he know that the
deposits contained jewelry, pearls, and precious stones, and also
spectacle frames and gold teeth. He never saw any of those things and
none of his officials ever reported to him about them either.

Now it is the opinion of the Prosecution that Funk, as President of the
Reichsbank, surely must have known what was kept in the vaults of his
bank; but this conclusion is also evidently mistaken and does not take
into consideration actual conditions in a large central issuing bank.
Funk, who was also Reich Minister of Economics, had in his capacity as
President of the Reichsbank no occasion whatever to bother about the
deposit of an individual customer, even if this happened to belong to
the SS. As President of the Reichsbank he did not bother about any
deposits of other clients of his bank either, since this was not his
job. On only one occasion, following a suggestion of his Vice President
Puhl, he asked Reichsführer SS Himmler—this was during his second
conversation with him—whether the valuables deposited by the SS in the
Reichsbank could be converted into cash in the legal course of business
at the Reichsbank. Himmler gave his permission and Funk passed this
information on to his Vice President Puhl. But in this matter he was
only thinking of gold coins and foreign currency, that is to say, of
those particular valuables which had to be turned in to the Reichsbank
as a matter of course in the German Reich and which could be and had to
be converted into cash by the Reichsbank. The idea never occurred to
Funk that the deposits might contain gold teeth or other such remarkable
objects which had their origin in criminal acts in concentration camps.
He heard about these things to his horror for the first time here in the
courtroom during the Trial.

The only remaining point in the statement of the witness Puhl which
might excite a certain amount of suspicion, Your Honors, was the
question of preserving secrecy, which in fact played a very important
part indeed in the examination of the witness. Vice President Puhl
stated here at the beginning of his testimony that the Defendant Funk
had told him that the matter of the SS deposits must be kept especially
secret. Funk, on the other hand, has always denied this in the most
insistent manner and declared under oath that he never talked to Puhl at
all about any such secrecy. Thus at the very beginning, here in the
courtroom, we had one statement pitted against another, oath against
oath. Vice President Puhl’s statements regarding this point, however,
seemed somewhat contradictory from the beginning. For on one occasion
Vice President Puhl said that this secrecy had not struck him as
anything extraordinary, since after all secrecy is preserved about
everything that occurs in a bank. In answer to a special question, Puhl
then stated repeatedly that he did not notice at all that the Defendant
Funk had supposedly spoken about preserving secrecy.

When, however, the affidavit of the witness Thoms of 8 May 1945 was read
and pointed out to the witness Puhl, the latter finally stated here
under oath on 15 May 1946 that it was plainly visible from this
affidavit that the desire for secrecy emanated from the SS. The SS
considered it important that this business should be transacted
secretly. The SS, as Puhl said, had been the ones originally responsible
for the imposition of secrecy. This was the literal conclusion of the
witness Puhl’s sworn statement and at the end of it he again confirmed
that the obligation for secrecy was desired and imposed by the SS.

The initial contradiction regarding this point between the statements of
the Defendant Funk and those of the witness Puhl was hereby completely
eliminated, Your Honors, in favor of the defendant. Puhl himself could
no longer maintain his original assertion that it was Funk who had
ordered the SS deposits to be kept secret. Therefore, in arriving at
your verdict, you must proceed from the premise that the statement of
the Defendant Funk is correct in this point also and deserves
preference, for he has declared under oath from the very beginning and
with the utmost certainty that he himself knew nothing about keeping
anything secret and that he had never spoken of any such secrecy to
Puhl, either. Moreover, there was absolutely no reason for Funk to say
anything to Puhl about any special secrecy, since Funk was obviously of
the opinion that the valuables involved were only of the kind which had
to be turned in and confiscated, and which came within the regular
lawful business of the Reichsbank and need not be kept secret,
regardless of whether these things which had to be turned in were the
property of a prisoner in a concentration camp or the property of a free
individual.

It was never made clear by the evidence submitted why the SS on their
part stressed the importance of preserving secrecy to Vice President
Puhl and why, furthermore, the SS opened the deposit in the name of
Melmer instead of in the name of the SS, and the Prosecution for their
part did not attach any importance to clearing up this point. However,
in any case, the demand of the SS for secrecy evidently did not strike
Vice President Puhl as unusual any more than it did the witness Thoms
who had nothing at all to do with the matter but who confirmed the fact
that this secrecy was nothing unusual. But nevertheless, Your Honors,
one thing is still a fact, namely, that nothing was kept secret from the
numerous employees of the Reichsbank about exactly what kinds of objects
were involved. On the contrary, the Reichsbank personnel was even
entrusted by Vice President Puhl with the task of sorting the valuables
delivered and converting them into cash at the pawn shop. Dozens of
Reichsbank officials who regularly entered the vaults could see the
various articles every day, and the Reichshauptkasse, an institution
entirely separate from the Reichsbank, from time to time settled
accounts for the conversion of valuables into cash with the Reich
Ministry of Finance in a quite open and thoroughly routine way.
Naturally, the Defendant Funk did not know, and still does not know
today, whether and to what extent agreements had been reached between
the Finance Minister and Reichsführer SS Himmler for accounting for the
gold articles to the Reich. He was never interested in it, and indeed it
did not concern him.

From all these facts, as shown by the evidence, one can readily conclude
that Funk himself knew nothing about the things which were turned over
to the Reichsbank at the time, and that even Vice President Puhl and
Reichsbank Councillor Thoms did not think there was anything bad
connected with the things, although Thoms, at least, had seen of what
the deposits actually consisted.

For this reason there is no longer any need to examine the obvious
question as to whether the initial statements of Puhl with regard to the
deposits of the SS should not have been received with a certain
skepticism from the very beginning. Puhl apparently had the
understandable desire at least by his written affidavit to shift
responsibility from himself to the shoulders of his President Funk in
order to free himself of his own responsibility for the unpleasant facts
of the case when he was told during his imprisonment that the gold
articles of the SS consisted mostly of spectacle frames and gold teeth
and had been taken from victims of concentration camps. At the
beginning, even Puhl apparently did not see anything wrong in the whole
business. For him the matter was an ordinary business transaction of the
Reichsbank for the account of the Reich, which he dealt with in the same
manner as he dealt with gold articles and foreign currency that had been
confiscated by the Customs Investigation Office or the Office of Control
for Foreign Currency or any other State authority. Gentlemen, whatever
one may judge the responsibility of Vice President Puhl to be, at all
events these things lie outside the responsibility of the Defendant Funk
who is the only one with whom you are concerned in connection with this
point here. In the period after this time Funk had only two or three
very brief and unimportant conversations with Puhl regarding these gold
deposits with a view to converting into cash gold coins and foreign
currency delivered in the regular way. Outside of this, Funk did not
concern himself at all with this whole matter any more. He knew even
less about the matter than Puhl, and it is not without significance that
Puhl declared here under oath that he would never have permitted these
gold objects to be deposited in the Reichsbank at all if he had had the
slightest notion that the things had been taken from concentration camp
victims under criminal circumstances by the SS. If Vice President Puhl
did not know that and could not have guessed it, then Funk could have
known even less about it, and Puhl’s initial statement which was to the
effect that—as he said at the time—“the gold articles had been
accepted by the Reichsbank with Funk’s knowledge and agreement and had
been converted into cash with the assistance of the Reichsbank
personnel,” was a grossly misleading statement to the Prosecution.
Subsequently during his imprisonment when Puhl first learned of the true
circumstances, he surely must have felt the same compunctions as Funk,
however innocent the latter was in the case. In conclusion, Puhl
declared here under oath that he would not have tolerated such
transactions either, and that he would have brought the matter to the
attention of the Directorate of the Reichsbank as well as to that of
President Funk if he had known that the valuables were taken from
victims of concentration camps and had been informed about the nature of
these valuables.

In connection with this topic, therefore, I come to the following
conclusion: The Reichsbank certainly transacted business for the account
of the Reich, the subject matter of which was derived from criminal acts
of the SS; but the Defendant Funk knew nothing of this. He would not
have tolerated such transactions had he known the true circumstances.
Therefore, he cannot be made criminally responsible for this.

The same is true, Your Honors, with regard to Reichsbank credits for the
business agencies of the SS, concerning which I shall limit myself to a
few sentences. In his written affidavit of 3 May 1946 the witness Puhl
has given a completely misleading account of this matter also. For he
stated originally that credits of 10 to 12 million Reichsmark furnished
by the Gold Discount Bank upon the instruction of the Defendant Funk
were used—and I am now quoting literally: “for financing production in
SS factories by workers from concentration camps.”

In his oral examination as a witness, Puhl then was asked whether Funk
had any knowledge that persons from concentration camps were employed in
these factories at all. In reply to this, Puhl declared literally: “I am
inclined to assume this, but I am not in a position to know it.”
Therefore, he was not able to give any definite evidence concerning
Funk’s knowledge, but only to express a conjecture. In contrast to this,
Funk’s own statement in regard to this matter is quite clear and
convincing. It was to the effect that he knew, indeed, about the request
for credit by the SS, and that he even granted it, but that he knew
nothing about the nature of the SS enterprises concerned and about the
people who were employed in them. Funk stated this under oath.
Accordingly, this credit transaction, which moreover occurred about 2
years before the affair of the SS gold deposits, that is, prior to 1940,
incriminates neither the Defendant Funk nor the witness Vice President
Puhl. At that time, in 1940, neither of them was acquainted with the
conditions in the concentration camps. They only learned about them much
later, that is, in the course of this Trial. Nor did the Defendant Funk
know that persons from the concentration camps were working in the
afore-mentioned SS factories for which the credit was intended.

Gentlemen, in this connection it appears necessary to devote a few more
sentences to a discussion of the question whether Funk ever visited a
concentration camp. The witness Dr. Blaha, who was examined here, stated
that Dr. Funk was once in Dachau in the first half of 1944. This visit
was supposed to have occurred as a sequel to a conference of the Finance
Ministers at Berchtesgaden, or in some other place in this region, in
which Funk is said to have participated. Yet, Gentlemen, when he was
examined here, the witness Dr. Blaha was unable to say that he had
personally seen the Defendant Funk in Dachau, but had only heard from
camp inmates at Dachau—that is, from other persons—that the Reich
Minister of Economics, Funk, was with many other visitors allegedly
present. He did not see him; nor would he have known him if he had. From
the very beginning Funk himself has flatly denied this visit to Dachau.
He also stated this under oath, and the affidavit made by his constant
companion Dr. Schwedler (contained in the Funk document book under
Number 13 submitted to you) proves beyond a doubt that Funk never was in
a concentration camp. Dr. Schwedler is in a position to know this, as at
that time he was the constant companion of the defendant and knew where
Funk was from day to day. Moreover, Funk was never a Finance Minister,
as the witness Dr. Blaha assumed, and never took part in a conference of
Finance Ministers. Therefore, it appears beyond any doubt that what the
witness Dr. Blaha stated here purely from hearsay is based on false
information, or he has confused Funk with another visitor, which was
very easily possible since the Defendant Funk was comparatively unknown
to the public. The conclusion, therefore, is that Funk never visited a
concentration camp and never personally became aware of the conditions
prevailing in such camps.

Now, by this assertion Funk by no means wishes to allege that he knew
nothing at all about the existence of concentration camps. Funk was
naturally cognizant of the fact, just as almost any other German, that
there were concentration camps in Germany after 1933; just as he knew
that there were and still are penitentiaries, prisons, and other penal
institutions in Germany.

But what he did not know, and what I want to stress here, was the very
large number of such concentration camps and the hundreds of thousands,
even millions, of their inmates. Equally unknown to him were the
countless atrocities committed in these camps, which first became known
only in this Trial. In particular it was only during this Trial that
Funk learned that there were extermination camps which murdered millions
of Jews. Funk had no knowledge of this; he has stated this under oath
and it also appears absolutely credible, for one of the most important
results of this Trial, in the opinion of the Defense, consists in
providing proof of the fact that the German people in general knew
nothing about the large number of concentration camps or the conditions
within them, but that on the contrary those conditions were kept secret
in such a cunning and cruel way that even the highest officials of the
Reich including the very ministers knew nothing about them.

Your Honors, the Defense have now presented their views on that part of
the Indictment which, had it been true, would have tragically
incriminated the man Funk. One may think as one pleases about acts of
violence during a political and economic struggle, especially in stormy
revolutionary periods, but in the opinion of the Defendant Funk himself
there can be no disagreement on one point, namely, with regard to the
concentration camp atrocities committed for years, especially against
the Jewish population. Anyone who participated in such unheard-of
atrocities should be made to atone for them in the severest way,
according to the opinion of the entire German people.

That is also the point of view of the Defendant Funk, which he expressed
here on 6 May 1946 when he replied to the American prosecutor from the
witness stand that as a man and as a German he felt deeply guilty and
shamed for the crimes which Germans committed against millions of poor
people.

Gentlemen, I have now reached the end of my consideration of the Funk
case as far as criminal law is concerned, and that is the duty of the
Defense in this Trial.

The examination of the evidence with regard to the Funk case has, in the
opinion of the defendant, produced proof that a legal guilt, a criminal
guilt, on his part does not exist, and that he can ask you for his
acquittal with a clear conscience because he has never committed any
criminal acts in his life.

Your task as judges will now be to find a just verdict for the Defendant
Funk, a verdict which will not make him atone for the crimes of others,
crimes he could not prevent and which he may not even have known about,
but a verdict which only establishes the degree of his own guilt and not
the degree of his political guilt, but of his criminal guilt which is
the sole object of these proceedings. This verdict should be valid not
only for today but also recognized as just in the future when we shall
view these terrible events in the proper perspective and dispassionately
as we would ancient history; a verdict, Your Honors, which will not only
satisfy the nations which you represent, but which will also be
recognized as just and wise by the German people as a whole; a verdict,
finally, which is not only destructive, retaliatory, and which will sow
hatred for the future, but one which will make it possible for the
German people to move forward toward a happier future of human dignity
and charity, of equality and peace.

THE PRESIDENT: Mr. Dodd, will you or Sir David deal with this. Sir
David, I have got a document drawn up by the General Secretary which
shows in the first place, in the case of the Defendant Göring, that
there are four interrogatories which have been submitted, and to which
the Prosecution has not objected. Is that right?

SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is no further
comment with regard to that first application.

THE PRESIDENT: Yes. Then, with reference to the Defendant Ribbentrop,
there are two affidavits to which there is no objection, and there are
three further affidavits which have not been received, I understand.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: And one document to which the defendants’ counsel wants
to refer in its entirety, namely, TC-75, is that right?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. There is no objection
to that.

THE PRESIDENT: Perhaps I had better go on to the end of the documents
and then call upon Dr. Horn for what he has got to say about those
three, because as far as I can see, there are only these three documents
and an affidavit for Seyss-Inquart from a man called Erwin Schotter, and
another from a man called Adalbert Joppich, which have not yet been
received.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: And three letters from Seyss-Inquart to Himmler which
have not yet been produced.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: Also, in the case of Fritzsche there are two
interrogatories of Delmar and Feldscher which have not yet been
received.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the three letters of the
Defendant Seyss-Inquart, they have been received, but they have not yet
been translated into French, and I think, My Lord, the simplest way
would be if the Tribunal took it that provisionally there is no
objection but that the French Delegation reserve their right to make any
objection if, upon receiving the translation, they find there is any
objection to make.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, the French Delegation will let the
Tribunal know if they find there is any objection.

THE PRESIDENT: Yes. Now, with reference to the rest, so far as the
Prosecution are concerned, what are the objections, if any?

SIR DAVID MAXWELL-FYFE: My Lord, I think the only objection there is
concerns the application of Dr. Servatius for the Defendant Sauckel.
Your Lordship sees that after the interrogatories granted by the
Tribunal there are certain documents which were introduced on 3 July by
the Defendant Sauckel to be considered by the Tribunal, and then there
is a number which is lettered “A” to “I.” The Prosecution suggests that
these documents are cumulative of the large number of documents already
introduced on behalf of this defendant, and, My Lord ...

THE PRESIDENT [_Interposing_]: Just one minute, Sir David. These
documents “A” to “I,” were they applied for after the case had been
closed?

SIR DAVID MAXWELL-FYFE: They were submitted on 3 July, Sir. That would
be after the case had been closed.

THE PRESIDENT: But that was at the time, was it not, when we were asking
for supplementaries?

SIR DAVID MAXWELL-FYFE: Yes, at the very end.

THE PRESIDENT: That very day?

SIR DAVID MAXWELL-FYFE: Yes. My Lord, I am sorry, but the case was not
technically closed, for that day was open for any defendant to put in.

THE PRESIDENT: Are these documents which you have just been referring
to—“A” to “I”—are they already all in the document book?

SIR DAVID MAXWELL-FYFE: Dr. Servatius tells me they are.

My Lord, I have just been having a word with Dr. Servatius and he says
that the one to which he attaches the greatest importance is “A,” the
decree by the Defendant Sauckel as to return transportation of sick
foreign workers. My Lord, I am quite prepared on that assurance by Dr.
Servatius not to make any objection to number “A,” and Dr. Servatius, on
the other hand, says that he does not press for the others.

My Lord, there is another application which has just come in on behalf
of the Defendant Sauckel for a document. It is an affidavit by the
defendant himself, dated 29 June 1946. The Prosecution have no objection
to the application.

My Lord, I think the only other matter with regard to the Defendant
Sauckel is with regard to an affidavit from a witness called
Falkenhorst. My Lord, that again, the Prosecution submits, is
cumulative.

THE PRESIDENT: You say Falkenhorst?

SIR DAVID MAXWELL-FYFE: Falkenhorst, Sir. My Lord, it is the very last
application on my list.

DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): Mr. President, may
I make a statement concerning the witness Falkenhorst? This witness was
called for Bormann; I waived his examination and submitted this
affidavit with the approval of the Tribunal, and since, in my opinion,
it was approved, I waived the witness. I assume that this is quite clear
and is confirmed by the Prosecution also.

THE PRESIDENT: Do you mean, Dr. Servatius, that the affidavit from
Falkenhorst had already been granted before?

DR. SERVATIUS: I assume it was granted at that time. The witness was
waiting outside and I was asked whether I would like to question him,
and I said in reply that I had an affidavit which was limited to one
particular incident and it would be sufficient if I could submit the
affidavit. He was the last witness who was supposed to be examined here,
after the end of the actual hearing of evidence.

SIR DAVID MAXWELL-FYFE: My Lord, I do not insist in the opposition in
these circumstances. My Lord, that is all the comment the Prosecution
have to make.

THE PRESIDENT: What about these two affidavits asked for by Dr.
Steinbauer from Erwin Schotter and Adalbert Joppich?

SIR DAVID MAXWELL-FYFE: My Lord, we have not got these yet. As I
understand it, they have been admitted by the Tribunal subject to any
objection, and I am afraid we cannot tell until we have seen them.

THE PRESIDENT: I see; well, then for the rest you have no other
objections?

SIR DAVID MAXWELL-FYFE: No other objections.

THE PRESIDENT: Sir David, we have just had another document placed
before us which contains an application on behalf of the Defendant
Sauckel to call as a witness his son Friedrich Sauckel. The Prosecution
has objected to that on the ground of irrelevance and cumulativeness.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the position.

It did not seem, on consideration of the outline of the evidence, that
the evidence of the defendant’s son would contribute anything fresh.

THE PRESIDENT: And that application was made after the 3 July? No, I see
that is wrong. It was submitted before, but it was not mentioned on 3
July.

DR. SERVATIUS: Mr. President, it was an application to bring the witness
here from England, since presumably he can give information regarding a
number of things. I have not yet made a formal application. It was just
a request to have him brought from England to Nuremberg for the purpose
of finding out whether he knows anything of importance, as he claims.

SIR DAVID MAXWELL-FYFE: My Lord, I would not make objection to the
defendant’s son being brought here for the purpose of Dr. Servatius’
having a talk with him and seeing whether he can contribute anything.

THE PRESIDENT: The difficulty that these sorts of applications put the
Tribunal in is that the case never closes.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, I quite agree.

DR. SERVATIUS: I did not know that the witness was in England. He was a
prisoner and there had been no news about him previously.

THE PRESIDENT: Then, Sir David, do we have an affidavit from the
Defendant Sauckel himself which you have already dealt with?

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: Then there is an affidavit by the Defendant Jodl on
behalf of Kaltenbrunner; the application has been received at the
General Secretary’s office on 5 July.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: That was after the last date when the defendants’ counsel
were asked for their applications.

SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid I have not been able
to collect the views of the Prosecution on that point.

My Lord, the substance of that affidavit was contained in Dr.
Kauffmann’s speech. I do not think it really has any materiality, I mean
that there is any real—that there can be any objection to the
affidavit, because I am almost positive I remember this passage
occurring, or an equivalent passage, giving the Defendant Jodl’s views
on Kaltenbrunner in Dr. Kauffmann’s speech. My Lord, therefore, I do not
think we should occupy time discussing it and therefore I think we
should let the affidavit go in.

THE PRESIDENT: Very well. Then there is an application from the
Defendant Rosenberg for a document entitled “Tradition in Present
Times.” That has been objected to as cumulative.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: Dr. Thoma, are you wanting to say anything in support of
that application or is it sufficiently covered by your speech?

DR. THOMA: I am of the opinion that it has been sufficiently dealt with
in my speech.

THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one from
Ribbentrop and one from Schulze, not yet put in. Do you want them?

DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop): Mr. President,
there must be some mistake about the Schulze affidavit. I have not
submitted any Schulze affidavit or made any application for it.

THE PRESIDENT: It was a mistake. Then, as to Ribbentrop’s affidavit, are
you asking as to that or have we already dealt with that?

DR. HORN: No, I am asking that official cognizance be taken of the
affidavit of Ribbentrop, and of Document TC-75. The other two affidavits
of Thadden and Best have already been approved.

THE PRESIDENT: Yes. Why do you desire the Defendant Ribbentrop to make
an affidavit? He has given his evidence in full. Is it something that
has arisen since?

DR. HORN: The Defendant Ribbentrop only commented on a few documents
which were submitted to him during his cross-examination when he had an
opportunity to speak only very briefly about them. I did not want to
make my final speech any longer with a detailed discussion of the other
documents and, therefore, I have submitted this affidavit and beg the
Tribunal to approve it.

THE PRESIDENT: Then, with regard to TC-75 ...

SIR DAVID MAXWELL-FYFE: My Lord, that is one of our original British
documents. I have no objection to Dr. Horn using it.

THE PRESIDENT: How about the translation, though? I suppose it is a
German document, is it not?

DR. HORN: Yes, it is a German document which was only translated in part
and I have referred to the entire contents in my final plea.

THE PRESIDENT: Is it a very long document or not?

DR. HORN: No, it has only nine pages, Mr. President. The Prosecution
submitted one page of the document to the Court in evidence. Then later
I ascertained that there were two copies of the document. I then took
the second copy, which represents the complete document, and submitted
it to the Tribunal, and have had it translated.

THE PRESIDENT: It has been translated?

DR. HORN: Yes.

THE PRESIDENT: Very well then, that is all right then.

Now, Dr. Steinbauer, what about these two affidavits that you are asking
for, one from Erwin Schotter and another from Adalbert Joppich?

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): I have
submitted the two documents for translation and since the Translation
Division is very busy I have not received the translation yet. But I
should like to submit the two originals to the Tribunal under the
numbers already given, Seyss-Inquart-112 and 113.

THE PRESIDENT: Has the Prosecution seen the substance of the affidavits
or not?

SIR DAVID MAXWELL-FYFE: No, My Lord, we have not. My Lord, they are very
short affidavits. I will ask someone to read them in German through the
day and let the Tribunal know before the Tribunal rises tonight.

THE PRESIDENT: Was the application made before 3 July, or when was it
made?

DR. STEINBAUER: Yes, on 3 July exactly. I received both of these two
documents on 3 July through the General Secretary and presented them on
the same day.

THE PRESIDENT: The Tribunal will consider the matter then and they will
be glad to hear from the Prosecution if they have any objection.

DR. STEINBAUER: Mr. President, may I present one more document on this
occasion? The Tribunal had approved the interrogation of Dr. Reuter and
the day before yesterday I received the answer with the questions of the
Prosecution ...

THE PRESIDENT: What was it you were saying, Dr. Steinbauer?

DR. STEINBAUER: That I received the approved document containing the
interrogation of the witness, Dr. Reuter, on Saturday in a German and
English translation. I should like to submit the original to the
Tribunal under Number 114.

THE PRESIDENT: What is the name of the person who was interrogated?

DR. STEINBAUER: The physician, Dr. Gero Reuter. He was questioned about
health conditions in the Netherlands. The Tribunal expressly granted me
that interrogatory.

THE PRESIDENT: Well, that will be considered, then.

DR. STEINBAUER: Then I shall submit it to the Court under Number 114.

THE PRESIDENT: Sir David, perhaps you can look at that later.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I understood that the
Tribunal had already approved and that this was just putting in the
answer.

THE PRESIDENT: Yes, that is all.

SIR DAVID MAXWELL-FYFE: Then, My Lord, there can be no objection.

THE PRESIDENT: I ought to say that in order to save time, all these
documents which we are now dealing with must be taken to be offered in
evidence now because some of these defendants’ cases have been finally
dealt with.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: And they must, therefore, be given the appropriate
numbers as exhibits, and defendants’ counsel must see to that. They must
give numbers to them and give them in with those numbers to the General
Secretary so that the documents will be identified as exhibits on the
record.

SIR DAVID MAXWELL-FYFE: My Lord, I appreciate that. I gather that Dr.
Steinbauer has just given that the Number 114.

THE PRESIDENT: Yes, and the same applies to all the other defendants’
counsel, the counsel for Göring and Ribbentrop and the counsel for
Raeder and the other defendants, because these are dealing with a
considerable number of interrogatories and affidavits, all of which
ought to have exhibit numbers.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

My Lord, Dr. Siemers just wanted to know that his applications were
covered. I think he is quite safe.

THE PRESIDENT: Yes. Well, then, the only thing that remains is Dr.
Fritz’s on behalf of the Defendant Fritzsche. There are two
interrogatories which have not been received, as I understand, from
Delmar and Feldscher. Those have been granted, and the interrogatories
and the answers will be put in when you get them.

SIR DAVID MAXWELL-FYFE: That is the way I understand it, My Lord.

THE PRESIDENT: Well, then, the Tribunal will consider all these matters
and make the appropriate order upon it.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

THE PRESIDENT: We will adjourn now. Wait a minute, wait a minute!

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): In the case of the
Defendant Von Papen there are still a number of interrogatories which
have not been received. In the meantime, I have received four
interrogatories with answers, but they are still with the Translation
Division. Three interrogatories have not yet come back. I request an
opportunity to present them later on.

THE PRESIDENT: They have been granted before, I suppose? Have they been
granted?

DR. KUBUSCHOK: Yes, they had already been granted, with the exception of
one affidavit which I have also dealt with here but which has not yet
been translated and has been in the Translation Division for some time.

THE PRESIDENT: Yes, but the application for that interrogatory had been
allowed, I suppose?

DR. KUBUSCHOK: I presented this application recently. I was told to have
this affidavit translated, but I have not yet received the translation.
I shall submit this document together with the others as soon as I
receive them from the Translation Division.

THE PRESIDENT: Very well. We will adjourn now.

                        [_A recess was taken._]

THE PRESIDENT: Go on, Dr. Dix.

DR. DIX: Mr. President, Gentlemen of the Tribunal. A mere glance at the
dock reveals the singularity of Schacht’s case and the story of his
imprisonment and defense. There in the dock sit Kaltenbrunner and
Schacht. Whatever the powers of the Defendant Kaltenbrunner may have
been, he was in any case Chief of the Reich Security Main Office. Until
those May days of 1945, Schacht was a prisoner of the Reich Security
Main Office in various concentration camps. It is surely a rare and
grotesque picture to see jailor and prisoner sharing a bench in the
dock. At the very start of the Trial this remarkable picture alone must
have given cause for reflection to all those participating in the Trial:
judges, prosecutors, and defense counsel alike.

Schacht was banished to a concentration camp on the order of Hitler, as
has been established here. The charge against him was high treason
against the Hitler regime. The judicial authority, the Peoples’ Court,
headed by that bloodthirsty judge, Freisler, would have convicted him,
had not his imprisonment turned into detention by the victorious Allied
Powers. Since the summer of 1944 I was assigned to defend Schacht before
Adolf Hitler’s Peoples’ Court; in the summer of 1945 I was asked to
conduct his defense before the International Military Tribunal. This,
too, is in itself a self-contradictory state of affairs. This, too,
compels all those participating in the Trial to reflect on the
personality of Schacht. One involuntarily recalls the fate of Seneca;
Nero, as a counterpart to Hitler, put Seneca on trial for revolutionary
activities. After the death of Nero, Seneca was charged with complicity
in Nero’s misgovernment and cruelties, in short, with conspiring with
Nero. A certain wry humor is not lacking in the fact that Seneca was
then declared a pagan saint by early Christianity as early as the fourth
century. Although Schacht does not indulge in such expectations, this
historical precedent nevertheless forces us to remain always conscious
of the fact that the sentence to be pronounced by this High Court will
also have to be justified before the judgment seat of history.

The picture of the Third Reich has been revealed to the Tribunal in a
thorough and careful presentation of evidence. It is a picture with a
great deal of background. An opportunity was given to depict this
background also, as far as it was possible within the limits of such a
thorough-going investigation entailing a judicial presentation of
evidence which, to be sure, though thorough enough, was nevertheless
concluded as soon as possible according to the requirements of the
Charter.

In order to learn what it was like under Hitler in German countries,
there is still enough which has been left to the intuition of the Court.
It is not possible, and never will be possible, to understand Hitler
Germany from a constitutional point of view, according to the scholarly
conceptions and views of people with a legal mind. As a scholarly topic,
“The Constitution under Adolf Hitler” is a _lucus a non lucendo_. Mark
my words, “The Constitution”—that is, the reduction of the Hitler State
to a legal system, and not the attempt as made in the final plea by
Jahrreiss, to explain the tyranny of a despot under the aspect of legal
research. A scientific sociology of the Third Reich would, although
feasible, be very difficult and therefore has not yet appeared.

Only very few Germans living in Germany knew the conditions and the
distribution of power within those circles of people who were seemingly
or actually called upon to contribute their share toward the formation
of a political will. Most Germans will be surprised when this picture is
unveiled. How much less possible was it for a foreigner to form a
correct judgment of the constitutional, sociological, and inner
political conditions of Hitler Germany at the time when the Indictment
was presented. But a correct judgment of these things was the
prerequisite for an Indictment correctly founded in both fact and law.

I am of the opinion that the members of the Prosecution were thereby
confronted with a task which defied solution. I am furthermore of the
opinion that the Prosecution would never have presented their criminal
charges against the defendants under the count of a conspiracy if they
had been able to see the distribution of political power in Hitler
Germany in the same way as this may perhaps be today possible, although
with great difficulty, for an intelligent, politically gifted observer
and listener at this Trial.

A conspiracy within the meaning of the Indictment was, as a practical
matter, not possible in Adolf Hitler’s Third Reich, as my colleagues
have already pointed out. The only thing possible in the Third Reich was
a conspiracy by the opposition against Adolf Hitler and the regime.
Several such conspiracies were formed, as was here proven. The
relationship between conspirators is somewhat different than that
between an accomplice and the chief perpetrator. The part to be played
by the individual conspirator in the execution of the common plan may
vary. Some, or a single one, of the conspirators may hold a leading
position within the conspiracy. At all times, however, co-operation is
necessary. Common usage of the term in itself precludes speaking of a
conspiracy when only one commands and all the others are merely
executive agents.

I am, therefore, of the opinion that that which was defined as a crime
here in this hall can never constitute the elements of a conspiracy
according to criminal law. Other legal factors which might enter into
the question are of no interest to me as defense counsel for the
Defendant Schacht, because no criminal charge whatsoever can be brought
against Schacht personally, as an individual, and without connecting him
with deeds of others—in other words merely on the basis of his own
actions. Schacht himself desired only the permissible and the
beneficial, and his actions served these intentions. To the extent that
he erred politically, he is in all candor prepared for the verdict of
history. Yet even the greatest dynamics of international law cannot
penalize political error. If it did this the profession of the statesman
and politician would become impossible. World history is more affected
by mistakes and errors than by correct perceptions. According to
Lessing’s wise words, the perception of absolute truth is God’s
privilege. There remains for man as his greatest blessing only the quest
for truth. _Nescis, mi fili, quanta stultitia mundus regitur_, as old
Axel Oxenstierna once said, and he was probably right.

Schacht declared here that he felt that he had been most grossly
deceived by Adolf Hitler. He thereby admitted that certain of his
decisions and actions had been wrong. The Prosecution disputes Schacht’s
good faith and imputes to him the _dolus_ of having deliberately worked
for a war of aggression as Adolf Hitler’s financial agent, thereby
becoming by implication criminally responsible, from the point of view
of the conspiracy, for all the cruelties and atrocities which were
committed by others during this war. The Prosecution itself was not able
to produce any direct proof of these allegations. They attempted to do
so first by means of alleged documentary evidence in the form of
misinterpreted statements by Schacht, torn from their context. For this
the Prosecution referred to witnesses who could not be made available
for examination before this Court because some of them were absent and
some had died. I recall, for example, the affidavits of Messersmith and
Fuller, and Dodd’s diary notes. Their lack of value as evidence was
clearly set forth to the Tribunal by Schacht during his examination. In
the interest of saving time I do not wish to repeat things which have
already been said, and which surely must still be within the
recollection of the Court.

The Prosecution further attempted to base its charges on actions of
Schacht which had been established beyond reasonable doubt. All these
arguments of the Prosecution are mistaken conclusions from allegedly
incriminating circumstances. I shall confine myself to an enumeration of
the most essential wrong conclusions. The others either result from
these directly or by analogy.

Schacht was opposed to the Treaty of Versailles, says the Prosecution.
That he was indeed. The Prosecution does not hold this opposition in
itself against him. However, it concludes from this that Schacht wanted
to do away with the treaty by force. Schacht favored colonial activity,
says the Prosecution. He did so indeed. They do not reproach him for
this, either, but conclude from this fact that he wanted to conquer the
colonies by force, and so it goes on.

Schacht as President of the Reichsbank and Minister of Economics
co-operated with Hitler, consequently he endorsed Nazi ideology. Schacht
was a member of the Reich Defense Council, consequently he was in favor
of a war of aggression. Schacht helped to finance rearmament during its
first phase until early in 1938, consequently he wanted war. Schacht
welcomed the union with Austria, consequently he approved of a policy of
violence against that country. Schacht devised the “New Plan” in
commercial policy, consequently he wanted to procure raw materials for
armament. Schacht was concerned about the possibilities of livelihood
for the excess population in central Europe, consequently he wanted to
attack and conquer foreign countries and to annihilate foreign peoples.
Over and over again Schacht warned the world against an anti-German
policy of oppression and the moral defamation of Germany, consequently
Schacht threatened war. Because no written evidence has been found that
Schacht resigned from his official positions as a result of his
antagonism to war, the conclusion is that he resigned from these
official positions merely because of his rivalry with Göring.

The list of these false conclusions could be continued _ad infinitum_.
It finds its culmination in the fallacy that Hitler would never have
come to power if it had not been for Schacht, that Hitler would never
have been able to rearm if Schacht had not helped. But, Gentlemen, this
kind of evaluation of evidence would convict an automobile manufacturer
because a taxi driver, while drunk, ran over a pedestrian. In his
speeches or writings Schacht never advocated violence or even war. It is
true that after Versailles he pointed out again and again the dangers
which would result from the moral outlawing and economic exclusion of
Germany. In this opinion he is in the best international company. It is
not necessary for me to cite before this Tribunal the numerous voices,
not of Germans, but of members of the victor states, heard soon after
the Versailles Treaty and all in the same tone as the warnings of
Schacht. Moreover, the correctness of these objections to that treaty
will be absolutely valid for all time. At no time did Schacht however
recommend, or even declare possible, other ways than those of a peaceful
understanding and collaboration. As an avowed economic politician, it
was clearer to him than to anybody else that war can never solve
anything, not even if it is won. In all of Schacht’s utterances his
pacifist attitude was expressed again and again; perhaps the shortest
and most striking of them was that statement at the Berlin Congress of
the International Chamber of Commerce, when Schacht in the presence of
Hitler, Göring, and other exponents of the Government called out to the
assembly: “Believe me, my friends, all nations desire to live, not to
die!” This pronounced pacifist attitude of Schacht is indeed confirmed
by all witnesses and affidavits.

For the few in the world—and I purposely say in the world, not only in
Germany—who from the very beginning recognized Hitler and his
Government for what they were, it certainly was a cause for anxiety and
sorrow, or at the very least puzzling, to see a man like Schacht placing
his services and his great professional ability at the disposal of Adolf
Hitler after he had come to power. The witness Gisevius also shared this
anxiety, as he has testified here. Later on he convinced himself of
Schacht’s honorable intentions through the latter’s upright and
courageous behavior in 1938 and 1939. In his interrogation Schacht
outlined for us the reasons which caused him to act in this manner. I
need not and do not wish to repeat them in the interest of saving time.
The evidence has not shown anything which would refute the veracity of
this presentation by Schacht. On the contrary, I only refer for example
to the affidavit of State Secretary Schmid, Exhibit Number 41 of my
document book, containing detailed statements on this subject on Page 2,
which are in complete agreement with Schacht’s description. A
consideration of the remaining testimony and affidavits as a whole leads
to the same result. In order to understand the manner in which Schacht
acted at that time both directly after the seizure of power as well as
after he had recognized Hitler and his disastrous activity, it is
absolutely necessary to form a clear picture of Adolf Hitler’s
pernicious spell and his system of government. For both are the soil in
which Schacht’s actions grew, and by which alone they can be explained.
I realize that one could speak about this for days and write volumes
about it if one wished to treat the subject exhaustively. However, I
also realize that before this Tribunal short references and spotlights
will be sufficient in order to gain the Tribunal’s understanding.

The disintegrating collapse of imperial Germany in 1918 presented the
German people, who were heterogeneously composed and had never become an
organic unit, with a parliamentary democratic form of constitution. I
venture to assert that all political thinking which is not directed by
selfish motives must strive for democracy, if this is also understood to
include the protection of justice, tolerance toward those of different
convictions, freedom of thought, and the political development of
humanity. These are the highest timeless ideals which, however, in their
very constitutional forms actually harbor dangers in themselves. When
democracy appeared for the first time on the European continent,
reactionary political thinkers like Prince Metternich and the like
opposed every democratic impulse, because they saw only the dangers of
democracy and not its educative qualities and historical necessity. In
pointing to these dangers they were unfortunately right. Perhaps the
cleverest nation which ever lived, the Greeks of antiquity, had already
pointed out the danger of democracy developing through demagogy to
tyranny; and probably all philosophizing political thinkers from
Aristotle to Thomas Aquinas, and down to the present time, have pointed
out the danger of this development. This danger becomes all the greater
if democratic freedom in the theoretical constitutional sense does not
arise and grow organically, but becomes more or less a chance gift to a
nation.

_En fait d’histoire il vaut mieux continuer que recommencer_, a great
French thinker once said. Unfortunately, this has made Germany the
latest and, it is to be hoped, the last example of a tyranny of a single
despot established by means of a diabolical demagogy. For there is no
doubt that the Hitler regime was the despotism of an individual, whose
parallel is to be found only in ancient Asia. In order to understand the
attitude of any individual toward this Government—not only that of
Schacht and of the Germans, but that of any person and any government in
the world which has collaborated with Hitler, and on the part of the
foreign countries such collaboration based on confidence was much
greater toward Hitler than toward any government of the intermediate
Reich or of the State of the Weimar Constitution—it is necessary to
analyze the personality of this despot, this political Pied Piper, this
brilliant demagogue who, as Schacht testified here in his interrogation
with understandable agitation, not only deceived him, but also the
German people and the whole world. In order to accomplish this deceit,
Hitler was forced to bring under the spell of his personality
innumerable clever and politically trained individuals besides Schacht,
even those outside the German frontiers. He succeeded in doing this even
with prominent foreigners, including those in leading political
positions. I shall refrain from citing names and quotations to prove
this point. The fact is generally known to the Tribunal.

I shall now skip the next lines and continue on Line 10 of the same
page. How was this influence of Hitler possible, both in Germany and
abroad? Of course, Faust also succumbed to Mephistopheles. In Germany,
all the circumstances of the conditions prevailing at that time, which
have been described here in the evidence given by Schacht and others,
favored this influence. The complete collapse of the parliamentary party
system and the resulting necessity, felt already at the time by the
existing Government, of having to rule by emergency decrees enacted
without parliamentary participation, thus establishing a dictatorship of
ministerial bureaucracy as a forerunner of the Hitler dictatorship,
produced in nearly every quarter a cry for stronger leadership. The
economic crisis and unemployment opened the ears of the masses, as
misery always does, to demagogic insinuations. The complete lethargy and
inactivity of the center and leftist parties of the time also created
among critical and intelligent observers, of whom Schacht assuredly was
one, the inward readiness and longing to welcome spirited political
“dynamics” and activity. If someone, like the sharp-witted and
perspicacious Schacht, already at that time discovered faults and dark
sides, he could hope, as Schacht did, by his very active penetration
into the Movement or by co-operation with leading State departments
quickly and easily to combat these shady aspects, which in any case
beset every revolutionary movement. “When the eagle soars, vermin settle
on his wings,” replied the late Minister of Justice Gürtner, quoting
from Conrad Ferdinand Meyer’s novel Pescara, when I pointed out these
shady sides to him after the seizure of power. These considerations are
in themselves reasonable and plausible. The fact that they contained a
political error even in Schacht’s case does not deprive them of their
good faith and honest convictions. However, we ought not to forget that
here, during the proceedings, we heard of a message from the American
Consul General Messersmith, dating from 1933, in which he joyfully hails
the report that decent and sensible people are now joining the Party
too, as this gave reason to hope that radicalism would thereby cease. I
refer to the relevant document submitted here by the Prosecution,
Document Number L-198, report Number 1184 by the American Consul General
Messersmith to the Secretary of State in Washington.

    “Since the election on March 5th, some of the more important
    thinking people in various parts of Germany have allied
    themselves with the National Socialist movement, in the hope of
    tempering its radicalism by their action within rather than from
    without the Party.”

But what Messersmith very reasonably says of ordinary Party members of
that time, naturally applies also, _mutatis mutandis_, to the man who
offered his co-operation in a leading Government post. The reasons
Schacht gave for his decision at the time to accept the post of
President of the Reichsbank and later of Reich Minister of Economics
are, therefore, thoroughly credible in themselves and have no immoral or
criminal implication. Schacht, indeed, has acknowledged his activity. He
only lacked the intuition to recognize at the outset the personalities
of Hitler and some of his henchmen for what they were. But that is no
punishable act; neither does it indicate any criminal intention. This
intuition was lacking in most people both within and without the German
frontiers. The possession of intuition is a matter of good fortune and a
divine gift unfathomable by reason. Every man has his limitations, even
the most intelligent. Schacht is certainly very intelligent, but in this
case reason prevailed at the cost of intuition. In the last analysis
this process can only be fully appreciated when those mysterious forces
are taken into account which affect world events, and of which
Wallenstein says: “The earth belongs to the evil spirit, not to the
good” where he speaks of “the sinister powers of evil which lurk in the
bowels of the earth.” Adolf Hitler was a prominent example of these
powers of darkness and his influence was all the more nefarious since he
lacked the grandeur which accompanies Satan. He remained a
half-educated, completely earth-bound bourgeois who also lacked any
sense of the law. The Defendant Frank said truly of him that he hated
jurists, because the jurist appeared to him as a man of law, as a
disturbing factor in the face of his power. Thus he could promise
everything to everybody and not keep his promise, for a promise to him
meant only a technical instrument of power, and signified no legal or
moral obligation.

Neither was the pernicious influence of Himmler and Bormann detected by
Schacht at this time, or probably by anybody else. Yet all those crimes
that are now covered by the Indictment matured within this very trio,
for to Himmler politics were identical with murder, and in his purely
biological view he regarded human society as a breeding farm and never
as a social and ethical community. A personality like Adolf Hitler, and
his effect upon men, even including such intelligent men as Schacht, can
only be correctly judged by following the prophetic vision of the poet,
as I have already just tried to do, thereby achieving insight otherwise
inaccessible to the mind of man. The demon undoubtedly became incarnate
in Adolf Hitler to the detriment of Germany and the world, and perhaps I
can summarize by quoting—and this is absolutely necessary for an
understanding of Schacht’s conduct, as well as that of all those others
who deliberately and in all purity of heart offered their services to
Hitler—a passage from Goethe, which in a few words sums up and
discloses the mystery. Here lies the key to the understanding of all
those who flocked to follow Hitler. May I quote from “Poetry and Truth,”
Part 4, Book 20, as follows:

    “Although the demoniac can manifest itself in everything
    material and immaterial, and indeed be singularly apparent in
    beasts, it assumes its most extraordinary form when associated
    with man, and constitutes a power which if not contrary to is
    yet a disturbing element in the moral world order. There are
    innumerable names for the phenomena which are brought to light
    in this way. For all philosophies and religions have tried both
    in prose and in poetry to solve this riddle and to dispose of
    the matter once and for all, which they may well continue to do
    in the future. But the demoniac assumes its most dreadful form
    when it manifests itself preponderantly in any one human being.
    During my lifetime I have had occasion to observe several such
    persons, either closely or from afar. They are not always the
    most distinguished persons, either in intellect or in talent,
    and they rarely excel by their goodness of heart; yet a
    tremendous force emanates from them, and they exercise an
    incredible power over every creature and even over the elements,
    and none can tell how far such influence will extend. No
    coalition of moral forces can prevail against them; it is in
    vain that the better part of humanity attempts to put them in
    disrepute as victims of deception, or as impostors. The masses
    are attracted to them. They seldom or never find contemporary
    equals, and nothing short of the universe itself, against which
    they begin the fight, can overcome them; and these observations
    may perhaps have inspired that curious but monstrous saying:
    _Nemo contra Deum, nisi Deus ipse_.”

I think I have demonstrated that the fact that he served Hitler does not
incriminate Schacht and that it can by no means be concluded from this
act that at that time he embodied the criminal deeds of Hitler and his
regime into his own intentions. He did not even think them possible.
Therefore he followed no dolus eventualis either; on the contrary:
Insofar as the violent character of the regime disturbed him he believed
he would be able, through his appointment to an important post, to
contribute to the abolition and prevention of those attendant phenomena
of which he also disapproved, and to aid Germany’s recovery within his
sphere of activity in a decent and peaceful manner.

That being the case, not the slightest reproach could be made against
him for not only serving Hitler after the seizure of power, but also for
helping him to gain control. This latter charge is, therefore,
completely immaterial as evidence of criminal behavior or of criminal
intent. However, there is no need for this argument at all, since as a
matter of fact Schacht did not help Hitler to gain power. Hitler was in
power when Schacht began to work for him. Hitler’s victory was already
assured when the July elections of the Reichstag in 1932 brought him no
less than 230 seats. These represented about 40 percent of the total
votes. There had been no such election result for any party for decades.
But the immediate political future was thereby established under a
Government headed by Hitler, thanks to the very rules of the German
democratic Constitution and every other democratic constitution. Any
other path was beset with the danger of civil war.

It was only natural that Schacht, who at that time honestly believed in
Hitler’s political mission, did not wish to take this path. It was
likewise natural that he should take an active part whenever he believed
that thereby he might be able to prevent harmful radicalism in the
economic political domain. A wise French statesman says:

    “Every epoch confronts us in some way with the task of creating
    benefits or preventing abuses. For this reason, in my opinion, a
    patriotic man can and must serve any government which his
    country appoints for itself.”

By serving Hitler, Schacht, in his opinion, was serving his country and
not Hitler. This opinion may have been the greatest of mistakes, and it
has subsequently revealed itself as completely erroneous as far as
Hitler was concerned, yet Schacht can never be criminally charged for
acting as he did at that time, neither directly nor circumstantially.
And indeed we must not forget that the Hitler of 1933 not only seemed to
be a different man from the Hitler of 1938 or even of 1941, but actually
was different. Schacht has already referred during his interrogation to
this transformation, which was caused by the poison of mass worship.
Moreover, the transformation of such personalities is a psychological
law. History proves this in Nero, Constantine the Great, and many
others. In the case of Hitler there exist many irreproachable witnesses
for the truth of this fact, irreproachable in the sense that a purpose
or an intention to violate the law, to raise terrorism to a principle,
and to attack mankind with a war of aggression, can never be imputed to
them. I merely wish to quote a few of them. I could multiply the
quotations a hundredfold. In 1934 Lord Rothermere wrote an article in
the _Daily Mail_, entitled: “Adolf Hitler from Close By.” I quote only a
few sentences:

    “The most prominent figure in the world today is Adolf Hitler
    ... Hitler stands in direct line with those great leaders of
    mankind who seldom appear more than once in two or three
    centuries ... it is delightful to see that Hitler’s speech has
    considerably brightened his popularity in England.”

THE PRESIDENT: Dr. Dix, I thought the Tribunal had refused to allow the
writings of Lord Rothermere to be put in evidence or used.

DR. DIX: I interpreted the decision of the High Tribunal barring
quotations from Lord Rothermere from the document book to mean—and this
is also the reason given in the Indictment—that this was a matter for
argument which should not be submitted in evidence as a fact, and that
it would be irrelevant in the hearing of the evidence that Rothermere
and others were of this opinion; and from this I drew the
conclusion—and I am still of the opinion today that this conclusion is
correct—that in the course of my argument, that is, in the course of my
appraisal of the evidence, I could cite passages from the literature of
the entire world, insofar as it is known, in order to support a line of
thought. That Rothermere said that is not a fact which I want to submit
to the Tribunal as evidence, but only in support of the assertion
forming part of my argument that not only Schacht but also other
intelligent and prominent people, even outside of Germany, at first had
the same opinion of Hitler’s personality ...

THE PRESIDENT: Dr. Dix, the Tribunal has already indicated its refusal
to allow this to be used as evidence, because it does not pay any
attention to the opinions expressed by this author. Therefore, we think
it would be better if you went on to some other part of your argument.

DR. DIX: Then I ask—the Tribunal surely has a translation of my final
speech before it—that I be allowed to quote a short passage from Sumner
Welles, and then a passage, which seems very important to me, from the
book written by the last British Ambassador. I should be very grateful
if I could quote both of these two passages for, if one wants to prove
that even an intelligent man can hold a certain opinion and is entitled
to hold it, then I do not know but what the most obvious and convincing
proof for that lies in the fact that other intelligent and completely
objective people also held the same view. I shall lose an important
point of my argument if I am not permitted to quote the two short
passages, and I should like to ask that they be heard briefly; it is
only the quotation from Sumner Welles and Henderson.

THE PRESIDENT: I have not said anything about Sumner Welles. It was only
because we had expressly excluded the writings on this subject of Lord
Rothermere that we thought it was inappropriate that you should quote
him. I do not think we excluded these other books to which you here
refer in your speech and therefore we thought you might go on to that.

DR. DIX: I quote from Sumner Welles’ book _Time for Decision_, published
in New York in 1944:

    “Economic circles in each of the western European democracies
    and the New World welcomed Hitlerism.”

And it is only right, when Great Britain’s last Ambassador in Berlin,
even during the war, states on Page 25 of his book:

    “It would be highly unjust not to recognize that a great number
    of those who joined Hitler and worked for him and his Nazi
    regime were honest idealists.”

Further on he makes this interesting remark:

    “It is possible that Hitler was an idealist himself in the
    beginning.”

And the Government of the United Kingdom would surely never have
concluded a naval treaty with Hitler Germany in April 1935, and
therewith have contributed in the interests of justice to a modification
of the Versailles Treaty, if they had not had entire confidence in
Hitler and his Government. Finally, the same holds true for all the
international treaties concluded by Hitler, including the treaty
concluded with Russia in August 1939. And it is a striking fact, even
today, that so intelligent a man of such high ethical standing as the
late British Prime Minister Chamberlain declared in a speech as late as
January 1939—at a time when Schacht had already long been treading the
dark paths of conspiracy against Hitler, in the face of the events of
1938—that he had gained the definite impression from Hitler’s recent
speech that these were not the words of a man who was making
preparations to plunge Europe into another war. I do not doubt that
these words were not spoken as a matter of tactics, but reflected the
speaker’s true opinion. Such examples could be quoted in great number.
Is it desired to deny to a German, in 1933 and the following years, the
right to come to the same opinion about Hitler in good faith?

The fact that Schacht did not enter office as Minister of Economies
until after 30 June 1934 is not inconsistent with this either. Only in
retrospect does the full enormity of these events become clear. In June
1934 we were still in the midst of revolutionary turmoil, and history
will be able to show similar occurrences in any revolution of this kind.
I do not have to give detailed proof of this, nor do I wish to do so.
The events of 30 June provided just as little, if not less, motive for
Schacht to turn away from Hitler with disgust, as they did for the
governments in the world who not only continued diplomatic relations
with Hitler in full confidence, but also rendered him great honors and
allowed him to score important successes in foreign policy, especially
after 1934.

If Schacht, however, cannot be criminally charged with the fact that he
placed himself at the disposal of Hitler’s Government, it is surely
completely superfluous, indeed it would be beside the point, to attempt
to make long statements in excuse of individual acts, such as his
petition addressed to the Reich President in 1932, or his letter to
Hitler in the same year. Anybody who knows life can find a thoroughly
natural explanation for them in the fundamental attitude of Schacht. If
this attitude is proved to be unobjectionable from the point of view of
criminal law and the rules of evidence, then no such documents can be
used in argument against Schacht. It is the principle that matters. The
same holds true for Schacht’s participation in the so-called meeting of
industrialists. On this subject I should only like to remark by way of
correction that Schacht neither presided at this meeting nor
administered these funds exclusively for the National Socialist Party.

Now one witness here has passed judgment on Schacht’s attitude toward
the seizure and consolidation of power during this period:

    “Schacht was an untrustworthy person,” he said. “Schacht
    betrayed the cause of democracy at that time. I therefore
    refused in 1943 to join a Government proposing to overthrow
    Hitler with Schacht’s participation.”

This was the former Minister Severing who, according to his own
statement, relinquished his ministerial chair and premises on 20 July
1932, when the Berlin Chief of Police and two police officers called on
him, demanding his withdrawal with the assertion that they had been
authorized to do so by the Reich President. Severing withdrew, as he
said himself, to avoid bloodshed. In spite of the great respect which I
feel toward Severing’s clean political character, I am forced to my
regret to deny him any right to pass competent judgment on statesmen
who, unlike him and his Government coalition, did not remain
lethargically passive. Severing and his political friends indeed bear a
disproportionately greater responsibility than Hjalmar Schacht for Adolf
Hitler’s seizure of power because of their indecision and, finally,
their lack of political ideas; but they do not have to answer for this
to any judge except history. And this responsibility will be all the
greater since the witness indeed makes the claim that at that time he
had already recognized that Hitler’s accession to power meant war. If
one may really believe that he possessed this correct political
intuition, then his responsibility, and that of his political friends,
will be all the greater in view of their passivity on that and later
occasions, and again this responsibility will be disproportionately
greater than that of Hjalmar Schacht. Our German workers are certainly
no greater cowards than the Dutch. Our hearts rejoiced to hear a witness
here describe the manly courage of Dutch workers who dared to strike
under the very bayonets of the invading army. The following which
Severing and his political friends deservedly had in the German working
class might perhaps have induced them not to watch the dissolution of
the trade unions with such dull passivity as was the case in 1933, had
only their natural leaders such as Severing and his colleagues been a
little more daring and willing to expose themselves. In the last resort,
the Kapp revolt in 1923 was also overcome by the general strike of the
workmen. The Hitler regime was not so strong in 1933 that it did not
have to fear the truth of the poet’s words addressed to the workers:
“All wheels stand still at your strong arm’s will.” The National
Socialist Government at that time was quite well informed about this and
was consequently apprehensive. This is also apparent from Göring’s
interrogation on 13 October 1945, the transcript of which was quoted and
submitted by Professor Kempner on 16 January 1946. Göring said: “You
must consider that at that time the activity of the Communists was
extraordinarily strong and that our new Government as such was not very
secure.” But even this strong arm which I have just mentioned required a
guidance which was denied to the working class and for which men like
Severing would have been indicated. In all justice they will have to
account for their passivity, not before the judge in a criminal court,
but before history. I do not presume to pass a final judgment. I confine
myself to revealing this problem and to attributing a full and
embarrassing measure of self-righteousness to the witness Severing,
although I respect him as a man, if he feels himself called upon to
accuse others, when studying the question as to who from the view point
of history is guilty of the seizure and consolidation of power by
Nazism—especially if, in contrast to Schacht, he intuitively foresaw
the later evolution of Hitler—instead of submitting himself with
humility to the judgment of history, relying on his undoubtedly
unimpeachable views and his undoubtedly pure intentions.

Let us always bear in mind, in the interest of historical truth, that
especially at the beginning of the Nazi rule there were only two power
groups, with the exception of foreign intervention, which could perhaps
have liberated Germany, namely, the Army and the working class,
provided, of course, that both were under the proper leadership.

I had to go into more detail on this point because such a detrimental
remark by such a blameless and distinguished man as Severing brings with
it the danger of unjust deductions regarding my client. It would have
been agreeable to me if I could have been spared this discussion of
Severing’s incriminating testimony. Severing has further brought the
charge of political opportunism against Schacht. In politics, to be
sure, the boundary between opportunism and statesmanlike conduct
dictated by expediency is very fluid. Before appraising Schacht’s
conduct in 1932 and 1933 as opportunistic, his past should also have
been considered. After 1923 this past lived in the public eye. It has
partly been a subject of these proceedings, partly it is already known
to the Court. This past speaks rather for the fact that Schacht does
what he judges to be right, not only with a great disregard of
consequences, but also with great courage. Indeed, he has also proved
this courage as a conspirator against Hitler, as is bound to appear from
an examination of this activity as conspirator, and as Gisevius
expressly described here.

But let us go back with Schacht to the year 1923. At that time he
stabilized the mark against all parties interested in inflation; in 1924
he blocked credits against all hoarders of foreign currency; in 1927 he
deprived the exchange speculators of the credit basis for their exchange
manipulations. From 1925 to 1929 he fought against the debt and
expenditure policy of the municipalities and thereby incurred the enmity
of all the mayors. In 1929 he signed the Young Plan and thus defied the
opposition of the heavy industry circles and continuing this policy, he
fought openly since 1934 against the perversions and abuses of the Nazi
ideology and never personally carried out a plan or an order which was
contrary to his conscience or his sense of justice.

Every statesman must make certain concessions during a time of
fanaticism. Certain sticklers for morality—of whom there are many
today—who demand a steely hardness for the protection of principles,
should not forget that steel has two qualities, not only solidity but
also flexibility.

My Lord, I have now finished one particular section; the next one would
take longer. I certainly will not finish it until after 1 o’clock. I
should be grateful if Your Lordship would call the noon recess now. I am
now coming to Appendix Number 1 ...

THE PRESIDENT: Dr. Dix, I think you had better go on until 1 o’clock.

DR. DIX: Your Honors, in the translated copy which you have before you,
there are two appendices at the end. I had to employ this device because
the matters dealt with in this annex occurred after I had given my
speech to be translated. Therefore, I had to work in my comments on this
subject somehow, and could only do it by way of an appendix.

And so I now come to the reading of Appendix 1, which is at the back,
and to the opinion of the testimony of Gisevius as expressed by my
colleague, Dr. Nelte, since I am here concerned with evaluating the
testimony of witnesses.

Insofar as my colleague Dr. Nelte criticized the objective reliability
of the testimony of Gisevius regarding his statements incriminating the
Defendants Keitel, Göring, and so on, I refrain from any statements. The
Prosecution may take any standpoint it desires. This is not my task.

But now Dr. Nelte has also attacked the subjective credibility of
Gisevius in the personal character of this witness and thus also
indirectly the reliability of his testimony concerning Dr. Schacht. This
demands a statement of my opinion, and a statement of a very fundamental
nature.

Your Honors, it is here that minds part company. A gap that cannot be
bridged opens up between Schacht’s standpoint and the standpoint of all
those who adopt the train of thought with which Dr. Nelte attempts to
discredit the character of Gisevius, the deceased Canaris, Oster, Nebe,
and others. I most certainly owe it to my client, Dr. Schacht, to state
the following fundamental point very clearly and unequivocally:

Patriotism means loyalty to one’s fatherland and people and fight
without quarter against anyone who criminally leads one’s fatherland and
people into misery and destruction. Such a leader is an enemy of the
fatherland; his actions are infinitely more dangerous than those of any
enemy in war. Every method is justified against such a criminal State
leadership, and the motto must be: _à corsaire, corsaire et demi_.

High treason against such a State leadership is true and genuine
patriotism and as such highly moral, even during war. Who could still
entertain the slightest doubt after the findings of this Trial, and
finally after the testimony of Speer about Hitler’s cynical remarks
regarding the destruction of the German people, that Adolf Hitler was
the greatest enemy of his people, in short, a criminal toward this
people, and that to remove him any means were justified and any,
literally any, deed was patriotic. All those on the defendant’s bench
who do not recognize this are worlds apart from Schacht.

I had to make this point in order to clear the atmosphere. After this
fundamental clarification I can refrain from refuting details in Dr.
Nelte’s attacks against Dr. Gisevius. Insofar as Dr. Nelte fails to see
any willingness for active service among these resistance groups to
which Dr. Schacht belonged, I need only point to the many hundreds who
were hanged on 20 July alone; Schacht numbers among the very few
survivors, and he too was to be liquidated in Flossenbürg. I point to
the dead victims of the political judiciary of the Hitlerian State whose
numbers run into thousands. Truly, the waging of a war of conspiracy
against Hitler and the necessity for cunning and dissimulation in
connection therewith were no less dangerous to life and limb than
exposing one’s self at the front.

During the very fair cross-examination conducted by my colleague, Dr.
Kubuschok, Gisevius immediately admitted his mistake resulting from the
ban on publication, in the affair of Papen’s resignation. I have nothing
more to say about this.

THE PRESIDENT: The Tribunal will adjourn.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

DR. DIX: May it please the Tribunal, I had concluded with the
consideration of the probative value of the statements made here by the
witnesses Severing and Gisevius.

Now, on concluding the evaluation of Schacht’s conduct up to about 1935
and entering the period from 1935 to 1937, I would emphasize once more
that in order to save time I will not repeat the arguments which were
presented to the Tribunal in detail during the cross-examination, as for
instance the nonparticipation of Schacht in the legislation which led to
the total disregard for international law, because this took place
before his entry into the Cabinet. The decisive event for the
stabilization of Hitler’s power, the merging of the offices of the Reich
President and of the Chancellor of the Reich in the person of Hitler,
also lay outside his co-operation and responsibility. By this decree the
Army took its oath to Hitler. The Chancellor of the Reich not only had
police authority as heretofore but also authority over the Army. It is
not my task to investigate who bears the political responsibility and
thus the historic guilt for this law; in any case, it is not Schacht.

All the basic anti-Jewish laws were also enacted before he entered into
office as a minister. He was completely surprised by the subsequent
Nuremberg Laws. The decree dealing with the exclusion of the Jews from
German economic life dated 12 November 1938 and the ordinance concerning
the use of Jewish property and possessions of 3 December 1938 were
issued after he had left his post as Minister of Economics and thus
without his active collaboration. The same applies to the decree
excluding Jews from the Reich Labor Service, which moreover probably
hardly inconvenienced them. The law providing for the death penalty for
secret reserves of foreign exchange, the so-called Law of Betrayal of
the People, was not directed specifically against the Jews but solely
against big industry and high finance; also it was not evolved by
Schacht but by the Minister of Finance. Schacht did not want to effect a
breach of relations on account of such laws because he believed it was
his duty to perform a more important task. In any case, this can hardly
be regarded as important, for in the Jewish question Schacht, by his
public speeches and his reports to Hitler, showed such a favorable
attitude toward the Jews that it would be unjust to disqualify him
politically and morally for such a reason, much less from the angle of
criminal law. As examples I would remind you of the Reichsbank speech
after the anti-Jewish pogrom in November 1938, the speech at Königsberg,
the memoranda of the year 1935, and so forth. In the Third Reich Schacht
was considered the most courageous and active protector of the Jews. I
only remind you of the letter of the Frankfurt businessman, Merton,
which was submitted to the Court, and of the illuminating statement of
the witness Hayler. According to the latter, when Hayler reproached
Himmler for the events of November 1938, he replied that after all it
had been the fault of the economic administration that matters had
reached such a point. Of a man like Herr Schacht one could not expect
anything better than that he should exercise a constant restraining
influence in the Jewish question and be opposed to the will of the
Party.

In response to my further inquiry Justice Jackson defined this specific
charge of the Prosecution as follows: Schacht is not being charged with
anti-Semitism, but for activities which have a causal connection with
the atrocities committed against the Jews within the framework of the
planned war of aggression. Thus it follows that a denial of guilt as to
a war of aggression leads with compelling logic to the denial of any
guilt as to the atrocities which were committed against the Jews during
the war. Justice Jackson made some phases of the legislation in respect
to the Jews during Schacht’s term as Minister the subject of his
cross-examination. I shall refrain from this part of the
cross-examination; going into the questions put to Schacht and answered
by him is irrelevant according to the Charter and the previously
mentioned authentic interpretation of this part of the Indictment by
Justice Jackson. The anti-Semitic legislation of the Third Reich and the
personal attitude of an individual defendant toward it are, according to
the Charter, relevant in these proceedings only insofar as they are
connected with other crimes which are subject to punishment according to
the Charter, as for example the conspiracy to wage war, mass
extermination, and so forth. According to the Charter they cannot
constitute an offense in themselves, not even one against humanity. Only
those defendants are punishable for their deeds who can be proved to
have participated in the planning of a war of aggression with its
resulting inhuman consequences for the Jews. A prerequisite for their
conviction on this account, however, is that they recognized and desired
this goal and its result. There exists no purely objective liability for
the outcome in criminal law. According to the Charter, he who desired
the war and thus also the inhuman actions connected with it is
punishable; but the incriminating activity must always have occurred in
the course of the execution of such a plan. This purely legal
consideration in itself excludes the conviction of Schacht on the
grounds of atrocities against the Jews.

Another discrepancy between the Prosecution, especially with regard to
the statements of Justice Jackson, and myself must likewise be clarified
at this point, otherwise we will be talking at cross purposes. During
the cross-examination Justice Jackson repeatedly pointed out that the
defendant is not being charged with anti-Semitism as such, that he is
not being charged with his opposition to the Treaty of Versailles, that
he is not being charged with his ideas and statements on the so-called
Lebensraum problem as representing the food problem of the central
European nations, that he is not being charged with his colonial
aspirations; but that he is being charged with all this only to the
extent that it served, with his knowledge and desire, for the
preparation of a war of aggression. By this objection Justice Jackson
meant to preclude certain questions and discussions. This would have
been justified and I too could now forego such arguments, were not the
Prosecution taking away with one hand what it is giving with the other,
because in the course of argumentation all this, namely, Schacht’s
alleged anti-Semitism, _et cetera_, is used as indirect proof, that is,
as circumstantial evidence that Schacht had prepared and desired this
war of aggression. The Prosecution of course does not count all that as
a criminal fact in itself, but as indirect proof, as circumstantial
evidence. Therefore in evaluating the evidence, I must also treat these
problems. I think I have finished dealing with the Jewish question. With
regard to the problem of Lebensraum, in order to save time, I can
probably refer to what Schacht has stated here during his interrogation
in justification of his statements and activities in this respect. The
colonial problem was the subject of cross-examination by Justice Jackson
insofar as he tried to prove that colonial activity by Germany was
impossible without world domination, or at least the military domination
of the seas. Further development of this train of thought would result
in the Defendant Schacht being charged with the fact that his striving
for colonies logically depended on the planning of a war of aggression.
That is a false conclusion. I think that Justice Jackson’s conception of
colonial policy is too imperialistic. Anyone desiring colonies for his
country without attendant domination of the world or the sea bases his
colonial activity on a lasting state of peace with the stronger maritime
powers. He must necessarily believe in peace with these powers. Germany
also possessed colonies from 1884 until the first World War; her
merchant marine carried on the necessary traffic with these colonies.
Her merchant marine before this war would also have been sufficient.
Aviation, in reply to Justice Jackson’s question, would not have been
essential. Nothing supports the presumption that in his desire for
colonies Schacht would have striven to eliminate foreign naval supremacy
by means of war. In view of his general conduct one can hardly credit
him with being as foolish as all that. France and Holland likewise
possess colonies, the sea routes of which they certainly do not control.

This charge of the Prosecution is therefore inconclusive. Moreover, the
Tribunal knows that during the years before the war nearly all the
statesmen of the victorious powers were sympathetic to these colonial
aspirations of Germany, as is shown in many of their public speeches.

I now come to the subject of rearmament, that is, to the activity of
Schacht in his capacity as President of the Reichsbank and Reich
Minister of Economics until 1937, in other words, up to the time when he
changed from a loyal servant of Adolf Hitler to a traitor against him
and took to the dark ways of artifice and dissimulation while making
preparations for an attempt on his life.

The Prosecution considers the violation of the Versailles Treaty, the
Locarno Pact, and other treaties as indirect proof, that is, as
circumstantial evidence, of his criminal intention to wage a war of
aggression. This involves first the question of whether any treaty
violations took place and, if so, whether these treaty violations must
be judged as indications of an intent to wage a war of aggression on the
part of members of the Reich Government, Schacht included. It is
impossible, and also unnecessary, to discuss exhaustively in this plea
the problem of whether actual treaty violations were committed and to
what extent. My colleague Dr. Horn has already touched upon this
question. A short remark can serve to show at least the problematical
nature of this question. This again is important for a proper
evaluation. There are no lasting treaties, neither in the domain of
civil jurisdiction nor, still less, in the domain of international law.
The _clausula rebus sic stantibus_ often plays a much more important
role in the domain of international law affecting the political
intercourse between nations than in private dealings between
individuals. One must be very careful not to apply, offhand, the
relatively narrow principles of civil law to the breadth and depth of
international law. International law has its own dynamics. The highly
political intercourse between nations is subject to other juridical
aspects than the commercial and personal relations between individuals.
The most striking proof of the correctness of this thesis is the
juridical basis of the Indictment, particularly insofar as it deals with
the sentence _nulla poena sine lege poenale_ and demands, instead of
sanctions, the individual punishment of the leading statesmen of an
aggressor nation. Whoever upholds the conception of the Prosecution in
this respect, acknowledges the dynamics of international law and the
fact that international law develops according to a process of its own.

History has taught us that treaties based on international law do not
usually come to an end by a formal repeal but succumb to the development
of events. They inevitably sink into oblivion. In specific instances
opinions may differ as to whether this is the case or not; but that does
not affect the basic truth of this statement. The militarization of the
Rhineland and the introduction of general conscription, the extent of
rearmament which Schacht approved of and strived for, the voluntary
“Anschluss” of Austria to Germany, which was also basically desired by
Schacht, all of these certainly are offenses against the meaning and
text of the above-mentioned pacts, particularly the Versailles Treaty.
If, however, such violations are only answered by formal protestations,
and otherwise very friendly relations continue to exist and honors are
even conferred upon the offending nation, and if agreements are
concluded which alter the basic stipulations of such a treaty, as for
instance the Naval Pact with Great Britain, the view is fully justified
that because of all this such a treaty is gradually reaching a state of
obsolescence and extinction, or at least there is cause for such a
subjective point of view.

I beg you to consider that the prerequisite for the conclusion of an
armament pact, as for instance the Naval Pact with Great Britain, is the
military sovereignty of both nations. The denial of such sovereignty to
Germany was, however, one of the main aspects of the Versailles Treaty.
I do not wish to speak here about the justice or injustice of this
treaty. I know the Court’s wish, or rather prohibition, in regard to
this matter, and of course I shall observe it. But I must speak about
the legal possibility and therefore the innocence, criminally speaking,
of Schacht’s personal opinions on the question of treaty violation. Even
if, therefore, one still wished to defend the point of view that the
said treaties have not become obsolete, one cannot, at least as far as
its inherent honesty is concerned, doubt the justification of an opinion
to the contrary. But if this is recognized, these treaty violations no
longer provide any proof of the criminal intention of a war of
aggression. And that is all that matters. For the violation of treaties
in itself is not considered a punishable act by the Charter. Here, too,
Schacht can justify his good faith by referring to the same or similar
views on the part of leading foreign statesmen, in whom it is therefore
logically impossible to assume the existence of a suspicion as to a
desire for aggression on the part of Germany. Here again I must limit
myself to a few instances, since a complete enumeration would exceed the
time limit of this plea.

The first of the violations of the Versailles Treaty is supposedly the
reintroduction of general conscription. With regard to this measure, the
British Foreign Secretary, Sir John Simon, with a statesman’s
far-sighted objectivity, gave the following reply, which was universally
made known in reports by the press and radio and which therefore is
valid as legal evidence:

    “There is no doubt that an agreed reduction of the armaments of
    other big nations was to follow upon the forced disarmament of
    Germany.”

This remark contains a confirmation of the juridical point of view I
developed a while ago, in spite of the criticism of Hitler’s action that
follows. The same applies to the fact that the visit of Sir John Simon
and Mr. Anthony Eden to Berlin took place 8 days after this so-called
treaty violation, namely, on 24 March 1935. It would not have taken
place if this measure of Hitler’s had been considered abroad as
militarily aggressive. I will just mention in passing the history of the
treatment of this question by the Council of the League of Nations,
which is well known. Should Schacht, as a German and a German Minister,
judge it in a manner different from that of the foreign Governments?

A second treaty violation by Hitler was the occupation of the Rhineland,
also in March 1935. This action did not only violate the Versailles
Treaty ...

THE PRESIDENT: [_Interposing_] The date of the occupation of the
Rhineland was not March 1935, but March 1936.

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

The point in question is that this action took place, namely, the
occupation of the Rhineland. This action was not only a breach of the
Treaty of Versailles but also of the Locarno Pact, that is, of an
undoubtedly voluntarily contracted treaty. Two days later Mr. Baldwin
stated in the House of Commons, in a speech made public and therefore
valid as legal evidence, that, while Germany’s conduct could not be
excused, there was no reason to assume that this action contained a
threat of hostilities. Was Schacht, a German and a German Minister, to
take a different and more skeptical attitude in regard to the aggressive
significance of the act than foreign statesmen? And particularly when he
was forced to note the fact, which is now history and is universally
known, that 10 days after this breach of treaty the Locarno Powers,
except Germany, submitted to the Council of the League of Nations a
memorandum which proposed the reduction of the number of German troops
in the Rhineland to 36,500 men and only endeavored to avoid the
strengthening of the SA and SS in the Rhineland and the erection of
fortifications and airfields. Should not this memorandum be interpreted
as a ratification of an alleged breach of the treaty?

A third breach of the treaty was the fortification of Helgoland, which
was hardly observed by the contracting parties, and merely called forth
from Mr. Eden, in the now famous public speech before the House of
Commons on 29 July 1936, the remark that it was not considered favorable
to increase the difficulties of the proceedings by individual questions
like the one under discussion. Was the German Minister Schacht to take
another and more rigorous attitude?

And what about the terroristic annexation of Austria in March 1938 when,
moreover, Schacht was no longer Reich Minister for Economics? If foreign
countries had gathered from this action the conviction that Hitler was
preparing a war of aggression, they would not have abstained from
threatening to use force. Was the German Minister Schacht to hold a
different and stricter opinion? He did, in fact, have a different
opinion at the time and was already eagerly at work with Witzleben and
others to eliminate Adolf Hitler and his regime by means of a Putsch; an
effort on the part of these patriotic conspirators which was frustrated,
as the unequivocal testimony of the witness Gisevius has shown, because
Hitler was able to record one success after another in foreign politics.

I merely remind you of the unequivocal evidence of Gisevius regarding
the effects of the Munich Agreement on the influence of the opposition
group of which Schacht was a leader; I remind you of the evidence of
Gisevius regarding the warnings and hints in this connection sent across
the German frontiers to responsible personalities of foreign countries.
Is it fair to require from the German Minister Schacht a more critical
attitude to those political developments than that adopted by foreign
countries whose interests had been injured? As we know from Gisevius,
from Vocke, and from all the affidavits submitted, he did have this
critical attitude from 1937 on, in which year he took to the dark ways
of a conspirator. I remind you of his first contact with the then
General Von Kluge. I could give many examples such as those just
mentioned. I do not criticize this attitude of foreign countries; that
is not for me to do, quite apart from the fact that I have complete
understanding for the pacifist attitude it reveals, which is fully aware
of its responsibilities. It is, however, my duty to point out that no
warlike intention can be imputed to Schacht on account of his opinions
and attitude, when the same opinions and the same attitude can be
identified as belonging to the foreign countries whose interests had
been injured. If foreign countries could entertain the hope of
maintaining further friendly relations with Hitler, the same right must
be conceded to Schacht as far as he claims it. He does not, however,
claim it for himself, at least not after the Fritsch crisis of 1938.

After that time he, in contrast to the foreign countries, had a very
clear idea of the danger, which fact, according to the evidence of
Gisevius, is undeniable, and he personally risked his life and liberty
to maintain peace by attempting to overthrow Hitler. The fact that all
these Putsch actions before the war and after the outbreak of war were
unsuccessful cannot, according to the evidence submitted, be considered
his fault. The responsibility for the failure of this German resistance
movement does not lie with the latter but elsewhere, within and without
the German frontiers. I shall return to this later.

There remains, therefore, the fact of rearmament as such. Here, too, I
can refer essentially to the statements Schacht made in justifying
himself during his cross-examination. This was exhaustive, and a
repetition would be superfluous. It is therefore also completely
superfluous to enter into an academic discussion as to whether Schacht’s
views were right; that is to say, whether it is correct that a certain
amount of military force sufficient for defensive purposes is necessary
for any country and was particularly necessary for Germany, and whether
he was correct in his opinion that the nonfulfillment by the parties to
the Versailles Treaty of the obligation to disarm justified the
rearmament of Germany. The sole point in question is whether these
opinions and motives of Schacht’s were honest, or whether he pursued
secret aggressive intentions under cover of this defensive armament. But
these proceedings have established absolutely nothing to disprove the
honesty of these opinions and motives. Of course, one can question the
fact whether the quotation “_si vis pacem, para bellum_” has absolute
validity; or whether objectively any pronounced rearmament does not
carry an inherent danger of war, since good armies with competent
officers naturally strive for a chance for real action. Of course, one
can defend the thesis that moral strength is stronger than any armed
strength. The cohesion of the British Empire and the world-wide
influence of the Vatican’s foreign policy could perhaps be cited as
proof of this. All these questions carry a certain relativity in
themselves; at any rate, one thing is certain: Even today in all large
countries of the world the warning is constantly repeated that one must
be militarily strong in order to preserve peace. Nations whose
individualism and love of liberty rejected general conscription and a
strong standing army now act to the contrary and honestly believe that
they thereby serve peace. Let us take as an example a nation whose love
of peace absolutely no one in the world, even the most mistrustful, can
question, namely, Switzerland. Yet this peace-loving nation has always
taken pride in maintaining the defense capacity of its people with the
very intention of protecting its freedom and independence in a peaceful
manner. One may academically call this idea of discouraging foreign
aggression by the maintenance of a sufficiently strong defensive army
imperialistic. It is, at any rate, honestly entertained by peaceful and
liberty-loving nations and perhaps serves the cause of peace more
effectively than many so-called antimilitaristic and pacifist doctrines.
This sound point of view has really nothing to do with militarism.
Whoever today recognizes this viewpoint as justified for great and small
nations cannot contest the honesty of this view on the part of Schacht
in the years 1935 to 1938. I have no more to say about this.

I also need not give a wearisome enumeration of figures and make
specialized technical statements to the effect that this part of
rearmament which Schacht first financed with 9,000 million, and then
reluctantly with a further 3,000 million Reichsmark, was by no means
sufficient for a war of aggression, in fact, not even for an effective
defense of the German frontiers. The answers that the witnesses Keitel,
Bodenschatz, Milch, General Thomas, Kesselring, et cetera, have given to
this in their depositions and affidavits are available and have been
submitted to, or officially brought to the attention of, the Tribunal.
In this respect they are unanimously agreed that even at the outbreak of
war—that is, 18 months later—Germany was not sufficiently armed for an
aggressive war; that therefore, when Hitler led this nation into a war
of aggression in August 1939, it was not only a crime against humanity
but also against his own people, the people with whose leadership he was
entrusted.

Therefore I also consider it superfluous to go into long discussions as
to whether Blomberg’s statement that Schacht was aware of the progress
of rearmament is correct, or the statement of Schacht and Vocke that
this was not so. I accept without further discussion the sincerity of
Blomberg’s statement. But since he had more to do with the technical
side of rearmament than the Reichsbank had, general experience would
seem to indicate that the memory of Schacht and Vocke is more reliable
on this point than Blomberg’s, to whom this report to the Reichsbank was
a matter of secondary importance for his department. For the Reichsbank
the desire to be informed about the technical progress of the armament
as well as about the financial expenditure was a very important matter.
One remembers such facts better than unimportant secondary matters. In
any case it is established that until the budget year 1937-38 only
21,000 millions were spent on armament, of which 12,000 millions were
financed by credits of the Reichsbank, and that, according to
Generaloberst Jodl’s statement of 5 June, on 1 April 1938 only 27 or 28
divisions were ready, whereas in 1939 there were already 73 or 75
divisions.

It needs no expert to show that this volume of expenditure and armament
on 1 April 1938 was entirely insufficient for a war of aggression.
Indeed Hitler was of the same opinion when in his memorandum of August
1936, which has been submitted to the Court, and which was handed to
Speer in 1944, he pointed out, along with many derogatory remarks about
Schacht’s conduct of economic affairs, that 4 precious years had gone
by, that we had had time enough in these 4 years to determine what we
could not do, and that he hereby gave orders that the German Army must
be ready for action in 4 years, that is, in the course of the year 1940.

I should like to remind the Court that after Schacht’s withdrawal as
President of the Reichsbank, 31,500 millions were spent on armament
during the two budget years 1938-39 and 1939-40. The issuing and
expenditure of money on armament therefore continued without Schacht,
and indeed to a considerably greater extent. Schacht had once written to
Blomberg that he was not a money-making machine.

He exercised constant pressure on Blomberg along this line. I refer only
to his letter to Blomberg on 21 December 1935, which has been submitted
to the Tribunal. He exercised a restraining influence by means of
explanatory lectures to officers of the War Ministry and of the Armed
Forces Academy. He refused the railway loan of 1936 requested by the
Minister of Communications, which was indirectly in the interest of
armament; and he stopped the credits of the Reichsbank as early as the
beginning of 1937, concluding them by compromising on a final grant of
3,000 millions. He refused the credit which the Reich Minister of
Finance requested from him in December 1938.

He created an automatic brake for armament expenditure through the mefo
bills, which from the technical and financial point of view was a
somewhat bold measure, although legally tenable. These served at first
to finance the armament expenditure but restricted further armament
expenditure after their expiration on 1 April 1939 because the Reich was
obligated to redeem them. Schacht’s foresight proved true. The increase
in employment brought such a rise in the state revenues that it would
not have been difficult to liquidate the mefo bills at their expiration
5 years later. Keitel’s statement has proved that during the budget year
beginning 1 April 1938, 5,000 million marks more were spent for armament
than during the preceding year, although as from 1 April 1938 the
Reichsbank credits had completely ceased. Half of the 5,000 millions
would have sufficed to redeem the mefo bills which matured during the
budget year beginning 1 April 1939. The use of this money for further
rearmament would have been avoided; but this was exactly what Schacht
intended. From the beginning he had limited the validity of the mefo
bills to 5 years; he stopped the credit assistance of the Reichsbank on
1 April 1939 in order to limit armament. It was impossible for Schacht
to foresee that Hitler would simply break a strict credit obligation and
not redeem the bills. These facts in themselves show that his attempts
to resign could have had no other reason than opposition to any further
armament, and the refusal to accept responsibility for it. In this sense
the assertion of the Prosecution that he wanted to evade responsibility
is completely correct.

Nothing indicates that any other motives than those which are obvious
from the facts just mentioned caused him to make this attempt to
relinquish his duties. If the Prosecution maintains that the reason was
his antagonism to Göring, this is also correct insofar as Schacht was an
opponent of the Four Year Plan, of which Göring was the chief. That the
reason was rivalry of power is a pure supposition, an interpretation of
actual events which justifies the quotation: “Interpret to your heart’s
content; should you fail to explain, you will at least insinuate.”

The Reichsbank memorandum of November 1938, which led to the dismissal
of Schacht and most of his collaborators including Vocke, is also
unequivocally and forcibly opposed to armament. It naturally had to
contain reasons for this which were derived from the departmental
jurisdiction of the Reichsbank. Its aim was obvious. Hence Hitler’s
remark, “This is mutiny.” The memorandum ends with the demand for
control of the capital and loan market as well as the management of
taxation by the Reichsbank. Compliance with this demand would have
deprived Hitler of every possibility of raising money for further
armament, and therefore this demand was unacceptable to him. Schacht and
his colleagues knew this. Accordingly, they deliberately sought a break
by this step. Schacht now bore no further responsibility. From now on he
could devote himself exclusively to the plans for a _coup d’état_ by the
conspiracy group to which he belonged. He became a traitor to Hitler. By
remaining Minister without Portfolio, he hoped to learn more about what
went on than if he resigned altogether; this was vital for the aims of
his conspiracy group. I shall return to this point later.

The fact of armament, as such, therefore, proves absolutely nothing for
the assertion of the Prosecution that Schacht deliberately contributed
to the preparation of a war of aggression. Simultaneous economic
armament, however, belongs of necessity to armament in the modern sense.
On the German side this was already recognized for the first time at the
beginning of the first World War by two very important German Jews, the
founder of the Hamburg-America Line, Albert Ballin, and the great German
industrialist, Rathenau. This is the same Rathenau who made the
wonderful speech on peace during the Genoa Conference, which was
received with wild applause by the delegates of those very powers which
had opposed his country but 4 years previously as enemies, and who, as
German Foreign Minister, was the victim of an anti-Semitic outrage in
the early twenties. I probably can assume that the personality of Albert
Ballin is known to the Court. Both men recognized, at the very outbreak
of the first World War, the error of omitting economic mobilization.
Rathenau then organized the so-called War Raw Materials Department of
the War Ministry. The first Plenipotentiary General for War Economy, for
this is what he really was, was thus ideologically a pacifist; and
certainly since that time there is probably no mobilization plan by any
nation which does not provide for the purely military armament to be
accompanied by a corresponding economic preparation for war. Therefore,
the designation of a Plenipotentiary General for War Economy, even if he
had taken up his duties, which as the evidence demonstrates most
convincingly he never did but remained a dummy, does not show anything
in the way of proof that the intention to wage a war of aggression
existed. This post is equally necessary when arming for defense. The
same applies to the institution of the Reich Defense Council, the Reich
Defense Committee, _et cetera_. As such they are the same harmless,
matter-of-course factors. They have no incriminating value. Only their
misuse for the purpose of a war of aggression would be incriminating.
However, Schacht’s criminal intention in this respect has not been
established, nor has anything else been found. I therefore refrain from
going into details on this subject.

In conclusion, the Prosecution sees something incriminating in the
so-called maintenance of secrecy regarding certain mobilization measures
and mobilization arrangements, as for example the second Reich Defense
Law. Here, too, a natural and worldly-wise way of thinking deprives
these findings of any incriminating character. All nations are
accustomed to treat mobilization and armament measures as secret. Upon
further consideration and after closer observation this practice can, of
course, be recognized as a very superfluous routine matter. Only plans
and technical details can be really kept secret. The fact of rearmament
as such can never be kept secret. The same applies to the existence of a
large body which is to serve the purpose of this rearmament. Either it
becomes known because it starts to function, or, like the ominous
Defense Council, it remains hidden and secret only because it does not
function.

In the memoirs of a Czarist officer regarding his experiences in the
Russo-Japanese war I found the following humorous observation:

    “If I, as a member of the General Staff, wished an incident to
    become known, I had it classified as ‘secret’ and my wish was
    fulfilled. If I wished to keep something secret, which was
    almost an impossibility, I unobtrusively gave it free
    circulation and occasionally my wish was fulfilled.”

One should not quibble in a vacuum; but if one wishes to find the truth,
one must take into account the teachings of experience based on hard
facts.

Thus, the fact of the military activation of Germany after the seizure
of power by Hitler and the subsequent rearmament was never a secret to
the world. The main proceedings have produced a great deal of evidence
to this effect. We know the report of Consul General Messersmith; we
know his sworn testimony of 30 August 1945, submitted by the Prosecution
under Number 2385-PS, according to which the armament program—he speaks
of a giant armament program immediately following the seizure of
power—and the rapid development of the air program had been apparent to
everybody; it had been impossible to move in the streets of Berlin or in
any other city of importance in Germany without seeing pilots or
aviators in training. He expressly states, on Page 8 of his testimony,
that this giant German rearmament program was never a secret and was
quite publicly announced in the spring of 1935.

I would like to remind you, amongst a great deal of other evidence, of
the remark of Ambassador Dodd, who contends that he pointed out to
Schacht that the German Government had bought high-grade airplanes from
American airplane manufacturers for 1 million dollars and had paid for
them in gold. Even if Ambassador Dodd perhaps made a mistake in this
detail, yet all this still proves that German rearmament—the extent of
which was surely even overestimated abroad at that time—must have been,
at the very best, an open secret.

Therefore it is not even necessary to refer to the mutual visits of the
Chiefs of General Staffs, to which Milch and Bodenschatz testified, the
visits of the Chief of the British Intelligence Service, Courtney, the
permanent presence in Berlin of military attachés of nearly all
countries, in order to recognize that the so-called secret rearmament
was quite public and only safeguarded a few technical secrets, as did
rearmament in every state. The outside world knew of the existence of
this rearmament and, in any case, considered it to be compatible with
world peace longer than Schacht himself did.

It is not for me to criticize the attitude of the outside world, nor is
it my intention to do so. Each part on the stage of life has its own
rules of tact, including the part played by the defendant and his
defense counsel. Their task is to establish a defense, and not to bring
charges and make an attack. In connection therewith I expressly wish to
guard against a possible misunderstanding to the effect that I want to
appear as an accuser, a critic, or a know-it-all in any way. I present
all this only from the aspect of my submission that the indirect
circumstantial evidence submitted by the Prosecution is not conclusive.

Furthermore, the Prosecution argues that Schacht was a member of the
Reich Cabinet, at least as Minister without Portfolio from the time of
his dismissal in January 1938, as Minister of Economics, until January
1943. The Prosecution makes the Reich Cabinet responsible—criminally
responsible—for the belligerent invasions of Hitler. This argumentation
has an attractively convincing power for somebody who starts with the
normal concept of a Reich Cabinet. The effect disappears once it has
been ascertained that the so-called Reich Cabinet was not a cabinet in
the usual sense applying to a constitutional state.

Judgments should not, however, be based on outward appearances and
form—not on fiction, but only on actually established conditions. This
makes it necessary to penetrate sociologically the nature of the Hitler
regime and to examine whether a member of the Reich Cabinet, hence of
the Reich Government as such, must in this capacity bear the same
criminal responsibility as if he were in any other normal state set-up,
be it a democratic republic or a democratic monarchy or a constitutional
monarchy or a monarchy which, although absolute, was nevertheless
founded on law, or some other constitutionally based set-up which bears
the character of a somehow lawful state based on a constitution. We are
thus obliged to investigate the actual sociological structure of the
Hitler regime. We have heard an account on the Führer Order
(Führerbefehl) in this connection by Professor Jahrreiss. Here, too, I
want to avoid repetition and would only state the following in
abbreviated form:

I want to say first of all, in order to avoid once more the danger of a
misunderstanding, that when I speak of the Hitler regime here I do so
without referring in any way to the persons sitting in the dock;
naturally with the exception of Schacht. For the latter, I do so in the
negative sense, for he did not belong to the regime as such, in spite of
the fact that he was a member of the Reich Government and President of
the Reichsbank. I leave the question completely open as to whether any
of the other defendants should be considered a member or supporter of
the regime. That question is subject only to the judgment of the
Tribunal and the evaluation of the defense counsel for each case.

At the very beginning of my argument I indicated that, even for a person
who lived in Germany during the Hitler regime, it is difficult to
differentiate between the ostensible distribution of power and the
actual underlying influence, since this requires a great deal of
political intuition; it is bound to be impossible to judge for people
who lived outside Germany and can only be arrived at through the
findings resulting from the presentation of evidence before this
Tribunal. We have established here that the Reich Cabinet, whom Hitler
termed a club of defeatists, was convened for the last time in 1938 and
that it met then only to receive a communication from Hitler. For actual
deliberation and the passing of a resolution it had last been convened
in 1937. We have also established that Hitler deliberately kept all news
of political importance from the Reich Cabinet, as is proved quite
unequivocally by the so-called Hossbach minutes of 10 November. During
this meeting the Führer called the attention of the chiefs of the
branches of the Wehrmacht and the Reich Foreign Minister, who were
present—Schacht, of course, was not present and did not learn about the
Hossbach minutes until he came here—to the fact that the subject for
deliberation was of such great importance that it would result in full
Cabinet meetings in other countries but that, just because of its great
significance, he had decided not to discuss the matter with the Reich
Cabinet.

Thus, at least after 1937, the members of the Reich Cabinet can no
longer be considered the architects and supporters of the political
aspirations of the Reich. The same holds true for the members of the
Reich Defense Council, which as such was nothing but a bureaucratic and
routine affair. Accordingly Hitler, in the spring of 1939, explicitly
excluded the Reich Defense Council also from further war preparations,
saying: “Preparations will be made on the basis of peacetime
legislation.”

Despotism and tyranny showed themselves in unadulterated form as from
1938. It is a characteristic quality of the Fascist as well as the
National Socialist regime, to have the political will concentrated in
the head of the Party, who with the help of this Party subjugates and
becomes master of the State and the nation. Justice Jackson also
recognized this when he stated, on 28 February 1946, that the apex of
power rested with a power group outside the State and the Constitution.

To speak, in the case of such a regime, of a responsible Reich
Government and of free citizens who, through some organizations or
others, could exert influence on the formation of the political will,
would be to proceed from entirely wrong hypotheses. Intangible elements
devoid of all sense of responsibility usually gain influence on the head
of the State and Party in such regimes. The formation of the political
will can be recognized in its crystallized form only in the head of the
State himself; all around him is shrouded in a haze. It is another
characteristic of such a regime—and this again belongs to its inner
untruthfulness—that beneath the surface of seemingly absolute harmony
and union several power groups fight against each other. Hitler not only
tolerated such opposing groups, he even encouraged them and made use of
them as a basis for his power.

One of the defendants spoke here of the unity of the German people
during this war in contrast with the first World War, but I must stress
in reply that hardly at any time during its history was the German
nation so torn internally as it was during the Third Reich. The apparent
unity was merely the quiet of a churchyard, enforced through terror. The
conflicts between the individual high functionaries of the German
people, which we have ascertained here, reflect the inner strife-torn
condition of the German nation, carefully concealed through the terror
wielded by the Gestapo.

To give only a few examples: We were confronted here with the conflicts
between Himmler and Frank, between Himmler and Keitel, between Sauckel
and Seldte, between Schellenberg and Canaris, between Bormann and
Lammers, between SA and SS, between Wehrmacht and SS, between SD and
Justice, between Ribbentrop and Neurath, and so on and so forth. The
list could be continued ad libitum.

Even ideologically the Party in itself was divided into pronounced
oppositional groups, which was shown already at the very beginning of
the presentation of evidence by Göring’s testimony. These oppositions
were fundamental, and they were not bridged by Hitler but rather
deepened. They were the instrument from which he elicited his power. The
ministers were not responsible governing persons, as in any other state
where law is the foundation; they were nothing but employees with
specialized training who had to obey orders. And if a departmental
minister, as in the case of Schacht, did not wish to submit to this, it
resulted in conflict and resignation from his post.

For this very reason no minister could in the long run take full
responsibility for his department, because he was not exclusively
competent for it. A minister, in accordance with constitutional law,
must first of all have access to the head of State; and he must have the
right to report to him in person. He must be in a position to reject
interference and influences coming from irresponsible sources. None of
the characteristics applicable to a minister apply to the so-called
ministers of Adolf Hitler. The Four Year Plan came as a surprise to
Schacht. Similarly, the Minister of Justice was surprised by so
extremely important a law as the Nuremberg Decrees. Ministers were not
in a position to appoint their staffs independently. The appointment of
every civil service employee required the consent of the Party
Chancellery. The intervention and influence of all possible agencies and
persons of the various Chancelleries—Chancellery of the Führer, Party
Chancellery, _et cetera_—asserted themselves. They, however, were
agencies placed above the ministries and they could not be controlled.
Special delegates governed over the heads of the departmental chiefs.
Ministers, even the Chief of the Reich Chancellery, as we have heard
from Lammers, might wait for months for an audience, while Herr Bormann
and Herr Himmler had free access to Hitler.

The anticamera and camarilla, indispensable accessories of all
absolutism, have at all times been difficult to fathom as to the
personal responsibility of the individual circles of which they are
composed. The irresponsible influences exerted over and affecting Hitler
were absolutely intangible.

Generaloberst Jodl described to us here how Hitler’s sudden actions,
caused by some urge and attended by the most serious consequences, could
be traced back to influences of an entirely obscure and unknown sort,
such as pure chance, conversations at a tea party, or the like. For the
objective facts this bears out what I already mentioned in the
beginning. And so this state of affairs precludes even the possibility
of the planning of a crime such as a war of aggression within a clearly
defined circle of persons, much less within the so-called Reich
Government. But where no planning is possible, there can be no plot, no
conspiracy either, the most striking characteristic of which is this
very common planning, even though the participants have different and
varied roles. Let us assume the broadest conceivable interpretation of
the ostensible exterior characteristics of the conspiracy. I am
following Justice Jackson’s line of reasoning. He who takes part in a
counterfeiters’ plot is guilty of conspiracy, even through he may have
written only a letter or acted as bearer of the letter. He who
participates in a plot for robbing a bank is guilty of murder if, in the
course of the execution, not he but a third party in the group of
planners commits murder. At all times, however, the prerequisite is a
body of persons capable of evolving a common plan. Such a thing was not
possible for Adolf Hitler’s ministers; it was not possible at all under
Hitler. From this it follows that no conspirator could participate in
Hitler’s crime of having forced upon his own people and the world a war
of aggression, except those who served Hitler as assistants.

The forces at work in the Third Reich as depicted thus permit in thesis
only the assumption that there existed a punishable complicity or
punishable assistance, not, however, a punishable group offense such as
a conspiracy. Whether such complicity or such punishable aid in the
crime of a war of aggression committed by Hitler exists for individual
defendants personally can only be investigated and decided in each
individual case. It is my task to investigate this only in the case of
Schacht.

A collective crime such as conspiracy is, however, excluded as
inconceivable and impossible in the light of the actual conditions as
already established. But even if this were not the case, the subjective
aspect of the deed is completely lacking in the case of Schacht. Even if
the objective facts of a conspiracy were to exist for a certain circle
of the accused and even with the most liberal interpretation of the
concept of conspiracy, it is still essential that the conspirator should
include the plan of conspiracy and the aims of the conspiracy within his
will, at least in the form of _dolus eventualis_.

The strict facts constituting a conspiracy can best be illustrated by
comparison with a pirate ship. In reality every crew member of the
pirate ship, even a subordinate, is guilty and an outlaw. But a person
who did not even know that he was on a pirate ship but believed himself
to be on a peaceful merchant vessel, is not guilty of piracy. He is
equally innocent if, after realizing the pirate character of the ship,
he has done everything he could to prevent any piracy, as well as to
leave the pirate ship. Schacht did both.

As far as that is concerned, research on conspiracy also recognizes that
a person is not guilty who has withdrawn from the conspiracy by a
positive act before attainment of the goal of the conspiracy, even if he
did co-operate previously in the preparation of the plan for conspiracy,
which was not the case with Schacht. In this connection, I also consider
as being in my favor Mr. Justice Jackson’s answer when I put up for
discussion, during Schacht’s interrogation, the question whether the
persecution of the Jews is also charged to Schacht. Mr. Justice Jackson
said, yes, if Schacht had helped prepare the war of aggression before he
withdrew from this plan for aggression and its group of conspirators and
went over unreservedly to the opposition group, that is, to the
conspiracy against Hitler. This desertion would then be the positive act
which I have mentioned whereby a person at first participating in a
conspiracy would separate himself from it.

This legal problem does not even enter into consideration as far as
Schacht is concerned, because the evidence has shown that he never
desired to participate in the preparation for a war of aggression.

As already stated, this accusation of the subjective fact of the
conspiracy has not been proved either by direct or by indirect evidence.
For the events up to the year 1938 I can point to the statements made
previously. It has been proved that from 1938 on, at the latest, Schacht
fought the bitterest struggle imaginable against any possibility of war
in such a form that he attempted to overthrow the person responsible for
this risk of war and this will for aggression and, thereby, the regime.

Your Lordship, I have now arrived at the end of a section, if Your
Lordship would care to announce a recess now.

THE PRESIDENT: We will adjourn.

                        [_A recess was taken._]

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

Gentlemen of the Tribunal, I have arrived at the discussion of the
beginning of the opposition by means of the various Putsch actions.

It is quite irrelevant and of incidental importance to investigate
whether the attempts at a Putsch, which occurred at shorter or longer
intervals during the war, would have been instrumental in securing
better peace terms for Germany. This is absolutely meaningless for the
criminal evaluation of Schacht’s course of action. Doubtlessly,
according to human reckoning, a successful prewar Putsch would have
prevented the outbreak of war; and a successful Putsch after the
outbreak of war would at least have shortened the duration of the war.
Therefore such skeptical considerations about the political value of
these Putsch attempts do not disprove the seriousness of the plans and
intentions for a Putsch, and that is all that counts in a criminal legal
evaluation. For it proves first of all that a person who has been
pursuing them since 1938, and even since 1937, if one includes the
attempt with Kluge, could not possibly previously have had warlike
intentions. One does not try to overthrow a regime because it involves
the danger of war, if previously one has oneself worked toward a war.
One does so only if by all one’s actions, even that of financing
armament, one wished to serve peace. For this reason these repeated
Putsch attempts on the part of Schacht do not have any legal
significance of a so-called active repentance for previous criminal
behavior but constitute _ex post_ proof that he cannot be accused even
before 1938 of deliberately working for war, because it would be
logically and psychologically incompatible with Schacht’s activity of
conspiracy against Hitler.

These Putsche thus prove the credibility of Schacht in respect to his
explanation of the reasons and intentions which caused him actively to
enter the Hitler Government and to finance armament to the extent to
which he did, namely, to the amount of 12,000 millions. They prove _ex
post_ the purely defensive character of this financing of armament; they
prove the credibility of Schacht’s contention of having tactically
achieved, in addition, a general limitation of armament. If one does
believe this explanation of Schacht’s, and I think one must believe it,
then one cannot speak of Schacht’s co-operation in instigating a war of
aggression.

This credibility is also proved by another circumstance. Schacht
originally contradicted the testimony of Gisevius and my questions
following the same line, that he had admired Hitler at the beginning and
had unreservedly considered him a brilliant statesman. He described this
in his interrogation as an erroneous assumption. He said that he had
recognized from the beginning many of Hitler’s weaknesses, especially
the fact of his poor education, and had only hoped to be in a position
to control the disadvantages and dangers resulting from them. By this
contradiction Schacht made his defense more difficult; but he is wise
enough to have recognized this. Thus what he deliberately forfeited from
the point of view of evidence which would serve his defense, he gains
with regard to his credibility upon objective evaluation of evidence
based on psychological experience. For a person who serves the truth by
contradiction deserves increased credibility, when the suggested untruth
or the half-truth is more advantageous to him technically and tactically
by way of evidence.

There should be no doubt about Schacht’s leading role in the activities
of the various conspiracies about which Gisevius testified on the very
basis of this credible testimony. During the cross-examination Mr.
Justice Jackson confronted Schacht with photographs and films which
superficially show a close connection with Hitler and his paladins. This
can only have been done in order to throw doubt on the earnestness of
his active opposition to Hitler. I must, therefore, deal briefly with
this point of the photographs and films. Mr. Justice Jackson has coupled
this accusation with another one by quoting speeches ostensibly
expressing great devotion on the part of Schacht toward Adolf Hitler
even during the Putsch period. This accusation is on the same level. I
believe that this argument cannot stand up either before the experiences
of life nor before what we can observe of history. History teaches us
that conspirators, especially if they belong to the closer circle of
dignitaries of the threatened head of state, show special devotion for
purposes of camouflage. Nor has it ever been observed that such people
impart their intentions to the prospective victim in a spirit of
contradictory loyalty. One could cite many examples of this from
history.

There exists an effective German drama by a certain Neumann which
concerns itself with the murder of Czar Paul by his first Minister,
Count Pahlen. The Czar believes to the very end in the ostentatious
devotion of Count Pahlen, even while the latter is already sharpening
his knife. And the historical documents in existence include a note by
Count Pahlen to the Russian Ambassador in Berlin, immediately before the
assassination, in which Count Pahlen persists in speaking about “_Notre
auguste Empereur_,” and so forth. Significantly, this drama bears the
title _The Patriot_.

Thus, there is a higher patriotism than the merely formal loyalty of a
servant of the nation. It would be closer to the psychological truth if
this presumptive devotion, assumed for the sake of appearances, and the
assurances of loyalty during this period were judged more in favor of
the objective credibility of Schacht’s explanations than _vice versa_.
As a conspirator, he had to camouflage himself especially well. To a
certain degree this had to be done by practically everyone who lived
under this regime in Germany. As far as the photographs are concerned,
it is probably an inevitable consequence of every social and
representative participation in a body that one becomes a victim of the
camera along with the members of the body whether one likes it or not. A
member of a Government cannot always avoid being photographed with these
people on the occasion of their meetings. As a result we have pictures
that show Schacht between Ley and Streicher and the scene in the film
showing the reception of Hitler at the railroad station. Viewed ex post,
these pictures give no pleasure to the observer, and certainly not to
Schacht either. But they do not prove anything. In a natural evaluation
belonging to a normal average experience of life, I consider these
pictures without any value as evidence, either _pro_ or _contra_.

Foreign countries, too, through their prominent representatives, had
social intercourse with Adolf Hitler’s Government, and this not only
through their diplomatic corps. I wish to assure you that the Defense is
in a position to produce pictures of a much more grotesque sort which do
not seem nearly as natural as Schacht being photographed together with
men who, after all, were his fellow dignitaries in the Third Reich. To
produce such pictures, however, might not be very tactful on the part of
the Defense; yet should it be necessary to investigate the truth in all
seriousness, a defense counsel might have to take upon himself the odium
of indiscretion. I do not believe that there is any need for me to do so
in this case, because the irrelevance and insignificance of such a
presentation of evidence through pictures taken on state occasions of
the Third Reich seems to me to be obvious.

The only incriminating point pressed by the Prosecution which is left
for me to argue now appears to be that Schacht, after his retirement as
Minister of Economics and even after his retirement as President of the
Reichsbank in January 1939, remained Minister without Portfolio until
1943. Schacht declared that this had been stipulated by Hitler as a
condition for his release from the Ministry of Economics. Hitler’s
signature, as that of the head of the State, was necessary for his
dismissal. Had Schacht refused to remain as Minister without Portfolio,
he would surely have been arrested sooner or later as a political
suspect and thus been deprived of all possibility of action against
Hitler. The witness Gisevius has testified as to the discussions at that
time between him and Schacht concerning the continuation of Schacht’s
function as Minister without Portfolio. In these deliberations the idea
was quite justly considered important that Schacht could be of more use
to the group of conspirators as a scout or an outpost if he remained in
this position, to outward appearances at least, within the Reich
Government. Even as Minister without Portfolio, Schacht remained exposed
to great danger, as is shown by his and Gisevius’ declarations and as
becomes obvious from Ohlendorf’s statement that Schacht already in 1937
was on the black list of the State Police.

How much Hitler feared Schacht is proved by his subsequent remarks to
Speer, which have been discussed here, particularly his remarks about
Schacht after the attempted assassination on 20 July. I would also
remind you once more of Hitler’s memorandum of 1936, which he gave to
Speer in 1944 and which shows that he saw in Schacht a saboteur of his
rearmament plans. It has been declared and proved by Lammers that
Schacht tried later on to get rid even of this nominal position. Lammers
and Schacht have proved furthermore that this position of Minister
without Portfolio was without any special importance. Hence my reference
to him as an officer with assimilated rank, that is, an officer without
command authority, a sham officer. Schacht could not give up the
position unless there was a row, and the same held true of his position
as Reichsbank President. Schacht, therefore, had to maneuver in such a
way that he would be thrown out. He succeeded in this, as I explained,
as Reichsbank President through the well-known memorandum of the
Directorate of the Reichsbank and the refusal of credits by the
Reichsbank in November 1938 contained therein. As far as his position of
Minister without Portfolio was concerned, he succeeded through his
defeatist letter of November 1942. In the meantime he made use of the
time for the attempted _coup d’état_ in autumn 1938 and for the various
other attempted _coups d’état_ leading up to that of 20 July 1944, which
finally caused him to be put in a concentration camp.

A criminal reproach can on no account be made against him in his
position as Minister without Portfolio. For his proved conspiratorial
activity against Hitler during all this time eliminates by force of
logic the supposition that he had furthered Hitler’s war plans and war
strategy during this time. In any event, we can only raise—and even
that only in the vacuum of abstraction—a political reproach against the
Schacht of the years 1933-37. But this, too, is fully compensated by the
extraordinarily courageous attitude of Schacht after this period. To
obtain its just evaluation, may I remind you of the interesting
statement of Gisevius to the effect that he, who had at first looked
with a certain skepticism upon Schacht’s original attitude, not in a
criminal but in a political sense, had later become completely
reconciled with Schacht by the extraordinary courage which Schacht
displayed as opponent and conspirator against Hitler since 1938. I am of
the opinion, therefore, that the fact that Schacht remained as Minister
without Portfolio does not incriminate him either directly or
indirectly, neither according to penal law, which is out of the
question, nor morally, if one takes into consideration his behavior as a
whole, his motives, and the accompanying circumstances and conditions.

If the Prosecution now finally argues, on the basis of the text of the
afore-mentioned memorandum by the Directorate of the Reichsbank, that an
opposition to war is not evident from the memorandum, but only technical
reflections on finance and currency, then I have only to refer in this
respect to my earlier statements and the testimony of Vocke. The
presentation of facts by Schacht himself would not even be necessary to
refute this argumentation. Vocke in his capacity as closest collaborator
declared quite unequivocally that Schacht wished to limit and sabotage
rearmament from the moment when he recognized that it was becoming a
potential war danger. The sworn affidavit of Hülse and the sworn
affidavits of all the collaborators of Schacht in the Reich Ministry of
Economics tally with the testimony of Vocke in this respect. I need not
quote them individually. They are known to the Tribunal. The Tribunal
does not need the commentary of a defense counsel on them; they speak
for themselves. If the Prosecution now finally bases its argument on the
text of the memorandum which, it is true, actually only deals with
financial problems, then again I cannot suppress the remark that such an
argumentation moves in a vacuum insofar as one does not take the
experiences of history and the general experiences of life into
consideration. Naturally, as I have already said, the Directorate of the
Reichsbank could only bring up arguments from their department,
particularly so in dealing with a Hitler. One says one thing while
meaning another.

If the Directorate of the Reichsbank, along with their President,
Schacht, had revealed their true purpose in this memorandum, namely, to
avert the danger of war and to combat Hitler’s will of aggression, then
they would have deprived themselves of the effect of technical
departmental influence. Hitler very well understood the purpose of this
memorandum when he shouted, after reading it: “That is mutiny!” With
this, Hitler recognized the only thing that can be said of Schacht as
conspirator: He was never a mutineer and conspirator against world
peace; but, insofar as he was a conspirator and mutineer, he was so only
against Adolf Hitler and his regime.

Again in this case I must ask the High Tribunal to turn their attention
to Appendix Number II, which I must insert at this moment, because the
matter that is dealt with here did not reach me for translation until
after I had submitted my final speech.

I said that Schacht, insofar as he was a conspirator, was so only
against Hitler. As such, he was the subject of ironical belittling by
Generaloberst Jodl and my colleague Nelte through the epithet,
“frock-coat and drawing-room revolutionary.” Now history teaches that
the quality of the tailor does not play any role in the case of the
revolutionary. And as far as the drawing room is concerned, shacks have
no revolutionary precedence over palaces. I would just recall the
political drawing rooms of the great French Revolution or, for example,
the elegant officers’ club of the select Preobrashensk regiment under
many a Czar. Should the Gentlemen of the Tribunal be of the opinion that
Schacht and his accomplices themselves should have done the shooting,
then all I can say is that things were not as easy as all that. Schacht
would have loved to do the shooting himself; he proclaimed that here
emphatically. But it was not possible for him to do so without
possessing the power to master the attendant confusion, thereby making
the attempt a revolutionary success. Thus generals with troops were
necessary. I do not wish to repay Generaloberst Jodl with the same coin
and shall therefore refrain from saying “a necessary evil.”

The further reproach of the basic lack of working-class elements to
strengthen the Putsche is contradicted by the social composition of the
revolutionaries of 20 July. As I stated before, all this is irrelevant
for the decision of the Tribunal. But my client is morally entitled to
expect his defense counsel not to let this ironical thrust pass,
especially since it was delivered in the limelight of public opinion.

In summing up I may say: After the elections in July 1932 it was certain
that Hitler was able and bound to seize power. Previous to this Schacht
had particularly warned the foreign countries of this development, and
thus he had not contributed to it. After the seizure of power only two
roads were open to him, as to every German: He either had to estrange
himself or to enter the Movement actively. The decision at these
crossroads was a purely political one without any criminal aspect. Just
as we respect the reasons which caused the foreign countries to
collaborate with Hitler much more intensively and in a more pro-German
way than with the previous democratic Governments of Germany, we must
recognize the good faith of all those Germans who believed themselves
able to serve the country and humanity better by remaining in the
Movement, that is, within the Party or the apparatus of officialdom,
because of the greater possibilities of exerting their influence, than
by grumbling and keeping aloof. To serve Hitler as minister and
President of the Reichsbank was a political decision, about the
political correctness of which one can argue _ex post facto_ but one
which certainly lacked any criminal character. Schacht has always
remained loyal to the motivating reason for his decision, namely, to
combat any radicalism from an influential position. Nowhere in the
world, which knew his oppositional attitude, could he see any signs of
warning or support. He saw only that the world trusted Hitler much
longer than he himself did and permitted Adolf Hitler to gain honors and
foreign political successes, which hampered Schacht’s work which had
already for a long time been directed toward removing Adolf Hitler and
his Government. He led this struggle against Adolf Hitler and his
Government with a courage and determination which must make it appear a
pure miracle that not until after 20 July 1944 did fate overtake him,
when he was sent to a concentration camp and was in danger of losing his
life either through the Peoples’ Court or through a spectacular act of
the SS. He is sufficiently wise and self-critical to realize that from a
purely political angle the picture of his character will be adjudged
diversely in history, or at least in the immediate future, according to
favor or hatred of the parties. He humbly resigns himself to the
judgment of history, even if one historian or another will label his
political line as incorrect. But with the pride of a good conscience he
faces the judgment of this High Tribunal. He stands before his judges
with clean hands. He also stands before this Tribunal with confidence,
as he has already manifested in a letter which he addressed to this
Tribunal before the beginning of the proceedings, in which he states
that he is grateful to be able to expose before this Tribunal and before
the whole world his actions and doings and their underlying reasons. He
stands before this Tribunal with confidence because he knows that favor
or hatred of the parties will have no effect on this Tribunal. While
recognizing the relativity of all political actions in such difficult
times, he remains sure of himself and full of confidence with regard to
the criminal charges which have been raised against him. Whoever would
be found guilty of being criminally responsible for this war and the
atrocities and inhuman acts committed in it, Schacht, according to the
evidence which has been given here with minute exactness, can confront
that culprit with the words which Wilhelm Tell flings in the face of the
emperor’s assassin, Parricida: “I raise my clean hands to Heaven, and
curse you and your deed!”

I therefore request the findings to be established to the effect that
Schacht is not guilty of the accusation which has been raised against
him and that he be acquitted.

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

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for the Defendant Dönitz): Mr.
President, Gentlemen of the Tribunal: “War is a cruel thing, and it
brings in its train a multitude of injustices and misdeeds.”[2] With
these words of Plutarch’s, Hugo Grotius begins his examination of
responsibility for war crimes; and they are as true today as they were
2,000 years ago. Acts constituting war crimes, or considered as such by
the opponent, have at all times been committed by belligerents. But this
fact was always held against the vanquished parties and never against
the victors. The law which was applied here was necessarily always the
law of the stronger.

While more or less stable rules have been governing land warfare for
centuries, in naval warfare the conceptions of the belligerents with
regard to international law have always clashed. No one knows better
than the British statesmen to what extent these conceptions are dictated
by national or economic interests. I refer in this respect to noted
witnesses such as Lord Fisher and Lord Edward Grey.[3] Therefore, if
ever in history a naval power would have had the idea of prosecuting a
defeated enemy admiral, based on its own conception of the rules of
naval warfare, the sentence would have been a foregone conclusion from
the very indictment.

At this trial two admirals are under indictment for a naval war which
has been termed criminal. Thus the Tribunal is confronted with a
decision regarding conceptions of law which are necessarily as divergent
as the interests of a naval power and a land power. It is not only the
fate of the two admirals which depends upon this decision. It is also a
question of personal honor to hundreds of thousands of German seamen who
believed they were serving a good cause, and who do not deserve to be
branded by history as pirates and murderers. It is for these men, the
living as well as the dead, that I feel bound by a moral obligation to
reject the accusations raised against German naval warfare.

What are these accusations? They are divided into two main groups:
Unlawful sinking of ships and deliberate killing of shipwrecked
personnel. I shall deal first with the accusation of the illegal sinking
of ships.

Two reports by Mr. Roger Allen, of the British Foreign Office, made in
the autumn of 1940 and spring of 1941, form the nucleus of that
accusation. I do not know to whom and for what purpose these reports
were made. According to their form and content they appear to serve
propaganda purposes, and for that reason alone I consider them to have
little value as evidence. Even the Prosecution submitted only part of
the accusations made therein. The reports trace only one-fifth of the
total number of supposedly unlawful attacks back to submarines, whereas
four-fifths are ascribed to mines, airplanes, or surface craft. The
Prosecution omits these four-fifths, and this reticence may be explained
by the fact that the use of these combat means on the British side
differed in no way from that on the German side.

With regard to the use of submarines, however, there does seem to exist
a difference between the principles followed in Germany’s conduct of the
naval war and that of our enemies. At any rate, the public in enemy
countries and in many neutral countries believed so during the war, and
partly still believes it today. Propaganda dominated the field. At the
same time the vast majority of all critics neither knew exactly what
principles applied to German U-boat warfare, nor on what factual and
legal foundations they were based. It shall be my task to attempt to
clarify this.

The reports by Mr. Roger Allen culminate in the assertion that the
German U-boats, beginning with the summer of 1940, torpedoed everything
within range. Undoubtedly, the methods of submarine warfare gradually
intensified under the pressure of the measures directed against Germany.
This war, however, never degenerated into an orgy of shooting governed
only by the law of expediency. Most of what might have been expedient
for a U-boat was left undone to the last day of the war because it could
only be regarded as legally inadmissible, and all measures of which
Germany in her conduct of naval warfare is being accused today by the
Prosecution were the result of a development in which both sides took
part through measures and countermeasures, as occurs in the course of
every war.

The London Protocol of 1936 formed the legal basis for German submarine
warfare at the beginning of this war. These regulations were
incorporated verbatim into Article 74 of the German Prize Ordinance,
which even Mr. Roger Allen calls a reasonable and not inhuman
instrument. This Prize Ordinance was sent in 1938 in draft form to the
two U-boat flotillas and to the U-boat training school and served as a
basis for the training of commanders. Stopping and examining merchant
vessels was performed as a tactical task. In order to facilitate for the
commander in economic warfare the quick and correct evaluation of his
legal position towards ships and cargoes of the enemy and of neutral
countries, the prize disc was constructed, which through simple
manipulations indicated the articles of the Prize Ordinance to be
applied. Thus, insofar as preparations had been made at all for economic
warfare by submarines they were based exclusively on the German Prize
Ordinance, and thus on the London Protocol.

The German High Command actually did adhere to this legal foundation in
the initial stages of the war. The combat instructions for U-boats of 3
September 1939 contained clear orders to the effect that submarine
warfare was to be carried on in accordance with the Prize Ordinance.
Accordingly, sinkings were permissible only after stopping and examining
the ship, unless it attempted to escape or offered resistance. Some
examples were submitted to the Tribunal, from the abundance of available
instances, showing the chivalrous spirit in which the German submarine
commanders complied with instructions given. In particular, assistance
afforded to the crews of ships lawfully sunk, after having been stopped
and examined, occasionally reached a point where it could scarcely be
justified on military grounds. Lifeboats were towed over long distances,
whereby the few available U-boats were diverted from their combat
mission. Enemy ships which might have been sunk lawfully were permitted
to go free in order to send the crews of ships previously sunk to port
aboard them. It is therefore only correct that Mr. Roger Allen stated
that the German U-boats, during the first weeks of the war, adhered
strictly to the London regulations.

Why was this practice not kept up? Because the conduct of the enemy made
such a procedure militarily impossible, and at the same time created the
legal prerequisites for its modification.

I shall consider the military side first. From the very first day of the
war, U-boat reports reached the Flag Officer of U-boats and the Naval
Operations Staff stating that hardly an enemy ship submitted voluntarily
to being stopped and examined. The merchant vessels were not content
with attempting to escape through flight or by changing their course and
bearing directly down upon the U-boat in order to force it to dive.
Every U-boat sighted was at once reported by radio; and subsequently, in
the shortest space of time, attacked by enemy airplanes or naval forces.
However, it was the arming of all enemy merchant vessels that settled
the matter. As early as 6 September 1939 a German U-boat was shelled by
the British steamship _Manaar_, and that was the starting signal for the
great struggle which took place between the U-boats, on the one hand,
and the armed merchant vessels equipped with guns and depth charges, on
the other hand, as equal military opponents.

In order to show the effect of all the measures taken by the adversary,
I have presented to the Tribunal some examples which I do not wish to
repeat. They show unequivocally that further action against enemy
merchant ships in accordance with the Prize Ordinance was no longer
feasible from the military standpoint and meant suicide for the
submarine. Nevertheless, the German command for weeks on end continued
to act according to the regulations governing the Prize Ordinance. Only
after it was established that action on the part of enemy merchant
ships—especially armed action—no longer took the form of individual
measures but of general instructions, was the order given on 4 October
1939 to attack all armed enemy merchant ships without warning.

The Prosecution will perhaps take the standpoint that, in lieu of this,
submarine warfare against armed merchant vessels should have been
discontinued. In the last war the most terrible weapons of warfare were
ruthlessly employed by both sides on land and in the air. In view of
this experience the thesis can hardly be upheld today that in naval
warfare one of the parties waging war should be expected to give up
using an effective weapon after the adversary has taken measures making
the use of it impossible in its previous form. In any case such a
renunciation could only be considered if the novel utilization of the
weapon were undeniably illegal. But this is not the case for the
utilization of German submarines against enemy merchant shipping,
because the measures taken by the enemy changed not only the military
but also the legal situation.

According to German legal opinion a ship which is equipped and utilized
for battle does not come under the provisions granting protection
against sinking without warning as laid down by the London Protocol for
merchant ships. I wish to stress the fact that the right of the merchant
ship to carry weapons and to fight is not thereby contested. The
conclusion drawn from this fact is reflected in the well-known formula:
“He who resorts to weapons must expect to be answered by weapons.”

During cross-examination the Prosecution referred to this interpretation
of the London Protocol as fraudulent. It admits only the closest literal
interpretation and considers the sinking of a merchant ship as
admissible only if the latter has offered active resistance. It is not
the first time that fundamental differences of opinion exist between
contracting parties with respect to the interpretation of a treaty, and
the extremely divergent interpretations of the meaning of the Potsdam
Agreement of 2 August 1945 provide a recent example. Diversity of
conception, therefore, does not permit the conclusion that the one or
the other party acted fraudulently during the signing or the subsequent
interpretation of a treaty. I will endeavor to show how unjustified this
charge is particularly in regard to the German interpretation of the
London Submarine Protocol.

There are two terms on which the German interpretation hinges, namely,
that of “merchant vessel” and “active resistance.” If I now consider
some legal questions, this will in no way represent a comprehensive
exposition. I can only touch on the problems and due to lack of time
must limit myself also when dealing with research on the subject. I
shall primarily refer to American sources, because the interests of
naval strategy of that nation were not as firmly established as those of
the European nations and its research literature can thus claim greater
objectivity.

The text of the London Protocol of 1936 is based, of course, on a
declaration which was signed at the London Naval Conference of 1930. The
committee of jurists appointed at that time expressed its opinion
concerning the greatly disputed definition of a merchant vessel in the
report of 3 April 1930:

    “The committee wishes to place on record that the expression
    ‘merchant vessel’ where it is employed in the declaration is not
    to be understood as including a merchant vessel which is at the
    moment participating in hostilities in such a manner as to cause
    her to lose her right to the immunities of a merchant vessel.”

This definition clarifies at least one thing, namely, that by no means
every vessel flying a merchant flag may lay claim to being treated as a
merchant vessel in the sense of the London Agreement. Beyond this, the
explanation has few positive aspects because the question through what
kind of participation in hostilities a vessel loses her right to the
immunity of a merchant vessel is again subject to the interpretation of
the contracting parties. The London Conference, as far as I can see, did
not consider this ticklish question any further, and one is probably
entitled to assume that this remarkable reserve is based on experiences
which the same powers had accumulated in Washington 8 years before.

The Washington Conference of 1922 was held under the impression of the
first World War; and therefore it is no wonder that Great Britain, the
naval power which during the World War had suffered most from German
submarine warfare, now tried to outlaw and abolish altogether by
international law submarine warfare against merchant shipping. The
resolution, named after the American chief delegate, Root, which in its
first part substantially corresponded to the London text of 1930, served
that aim. But in the second part the Root Resolution goes further and
stipulates that any commander who, no matter whether he acted with or
without higher orders, violated the rules established for the sinking of
merchant vessels should be punished as a war criminal like a pirate.
Finally it was recognized that under the conditions stipulated in the
resolution submarine warfare against merchant shipping was impossible,
and such warfare was therefore renounced altogether by the contracting
powers. The Root Resolution designates these principles as an
established part of international law. While it was accepted as such by
the delegates, none of the five participating naval powers, U.S.A.,
Britain, France, Japan, and Italy ratified it.

In connection with the Root Resolution, however, another question was
discussed which is of the greatest importance for the interpretation of
the London Protocol, namely, the definition of the term “merchantman.”
Here the two conflicting views in the entire U-boat question became
clearly evident. On the one side there stood Britain, on the other
France[4], Italy, and Japan, while the United States took the position
of a mediator. According to the minutes of the Washington Conference,
the Italian delegate, Senator Schanzer, opened the offensive of the
weaker naval powers by expressly emphasizing that a merchantman, when
regularly armed, might be attacked by a submarine without preliminaries.
In a later session Schanzer repeated his statement that the Italian
delegation applied the term of “merchantman” in the resolution only to
unarmed merchant vessels. He declared this to be in explicit accordance
with the existing rules of international law.[5]

The French delegate, M. Sarraut, at that time received instructions from
his Foreign Minister, M. Briand, to second the reservations of the
Italian delegate.[6] He thereupon moved to have the Italian reservations
included in the minutes of the session.

The Japanese delegate, Hanihara, supported this trend with the statement
that he thought it was clear that merchant vessels engaged in giving
military assistance to the enemy ceased in fact to be merchant
vessels.[7] It can therefore be seen that in 1922, three of the five
powers represented expressed the opinion that armed merchant vessels
were not to be regarded as merchant vessels in the sense of the
Agreement.

Since the whole resolution threatened to collapse because of this
difference of opinion, a way out was found which is typical of
conferences of this kind. Root closed the debate with the statement that
in his opinion the resolution held good for all merchant ships as long
as the ship remained a merchant vessel.[8] With this compromise a
formula was created which, while representing a momentary political
success, would not however carry any weight in the case of war, for it
was left to every participating power to decide whether or not it would
grant the armed merchant vessels the protection of the resolution in
case of war.

I have described these events of the year 1922 a little more in detail
because the powers which took part in them were the same as those which
participated in the London Naval Conference of 1930. The London
Conference was the continuation of the Washington Conference, and the
subjects that had been discussed and included in the minutes of the
first conference were of great importance for the second conference.
Experts too—and by no means only German but above all American and
French experts—based their examinations on the close connection of both
conferences, and it was precisely for that reason that they declared the
result achieved in the question of submarines to be ambiguous and
unsatisfactory. Here I merely wish to point to Wilson’s summarizing
report on the London Naval Treaty.[9]

This report, besides the ambiguity of the concept “merchant vessel,”
also stresses the uncertainty connected with the words “active
resistance”; and it is with these very words that an exception from the
protection of the merchantman is connected, an exception which likewise
is not contained in the actual text of the London Agreement but which
nevertheless is generally recognized. I am referring to merchantmen in
an enemy convoy. If the London Agreement were interpreted literally, it
would be understood that even merchantmen in an enemy convoy must not be
attacked without warning but that an attacking warship would have to put
the escort vessels out of action first and then stop and search the
merchantmen. However, this suggestion, which is impossible from a
military point of view, evidently is not made even by the Prosecution.
In the report of the British Foreign Office, which has been mentioned
several times, it says:

    “Ships sailing in enemy convoys are usually deemed to be guilty
    of forcible resistance and therefore liable to be sunk
    forthwith.”

Here even the Prosecution accepts an interpretation of the words “active
resistance,” an interpretation which results in no way from the treaty
itself but is simply a consequence of military necessity and thus
dictated by common sense.

And this very same common sense demands also that the armed merchantman
be held just as guilty of forcible resistance as the convoyed ship. Let
us take an extreme instance in order to make the matter quite clear. An
unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is
convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots,
may be sunk without warning, because it has placed itself under the
protection of the trawler and thereby made itself guilty of active
resistance. If, however, this same merchant ship does not have the
protection of the trawler and instead the 2 guns, or even 4 or 6 of
them, are placed on its decks, thus enabling it to use its full speed,
should it in this case not be deemed just as guilty of offering active
resistance as before? Such a deduction really seems to me against all
common sense. In the opinion of the Prosecution the submarine would
first have to give the merchant ship, which is far superior to it in
fighting power, the order to stop and then wait until the merchant ship
fires its first broadside at the submarine. Only then would it have the
right to use its own weapons. Since, however, a single artillery hit is
nearly always fatal to a submarine but as a rule does very little harm
to a merchant ship, the result would be the almost certain destruction
of the submarine.

    “When you see a rattlesnake rearing its head, you do not wait
    until it jumps at you but you destroy it before it gets the
    chance.”

These are Roosevelt’s words, in which he justified his order to the
United States naval forces to attack German submarines. This reason
seemed sufficient to him to order the immediate use of arms even without
the existence of a state of war. It is a unique instance in the history
of warfare, however, to grant one of two armed opponents the right to
fire the first shot and to make the other wait to be hit first. Such an
interpretation is contradictory to all military reason. It is no wonder,
therefore, if in view of such divergent opinions, the experts on
international law, even after the London Treaty and the signing of the
London Protocol of 1936, consider the treatment of armed merchant
vessels in naval warfare to be an unsolved question. Here too I should
like to refer to only one source of research, which enjoys especially
high authority. It is the draft of an agreement on the rights and duties
of neutrals in naval warfare, an agreement which leading American
professors of international law, such as Jessup, Borchard, and Charles
Warren, published in the _American Journal of International Law_ of July
1939 and which includes arguments which furnish an excellent idea of the
latest trend of opinion. Article 54 of this draft corresponds word for
word to the text of the London Agreement of 1936, with one notable
exception: The term “merchant vessel” is replaced by “unarmed vessel.”
The next article then continues:

    “In their action with regard to enemy armed merchant vessels,
    belligerent warships, whether surface or submarine, and
    belligerent military aircraft are governed by the rules
    applicable to their action with regard to enemy warships.”

This opinion is first of all explained by historical development. During
the time when it was customary to arm merchant vessels, that is, until
the end of the last century, there was no question of any protection for
the merchant vessel against immediate attack by an enemy warship. With
the introduction of armor plating the warship became so superior to the
armed merchant vessel that any resistance on the part of the latter was
rendered futile, and the arming of merchant ships therefore gradually
ceased. Only this defenselessness against warships, and this alone,
granted merchant vessels the privilege of not being attacked without
warning by the enemy: “As merchantmen lost effective fighting power they
acquired a legal immunity from attack without warning.”

This immunity was never conceded to the merchant vessel as such but only
to the defenseless and harmless merchant vessel. In regard to this the
American expert on international law, Hyde,[10] stated in 1922, that is,
after the Washington Conference and the afore-mentioned Root Resolution
on U-boat warfare:

    “Maritime states have never acquiesced in a principle that a
    merchant vessel so armed as to be capable of destroying a vessel
    of war of any kind should enjoy immunity from attack at sight,
    at least when encountering an enemy cruiser of inferior
    defensive strength.”

Legal as well as practical considerations, therefore, led the
above-mentioned American authorities, after the signing of the London
Agreement and shortly before the outbreak of this war, to form the
opinion that armed merchant ships do not enjoy protection from attacks
without warning.

Here the old discrimination between defensive and offensive armaments is
also rejected as inapplicable. It is a well-known fact that the American
Secretary of State, Lansing, in his note to the Allies on 18 January
1916, took the point of view that any kind of armament aboard a merchant
vessel will make its fighting power superior to that of a submarine and
that such armament is therefore of an offensive nature.[11]

In the later course of the first World War, the United States changed
its opinion and declared that mounting guns on the stern could be taken
as proof of the defensive character of the armaments. This standpoint
was adopted in some international agreements and drafts, as well as by
British jurists in particular. It does not do justice to the practice of
naval warfare.

First of all, in this war the guns on many vessels were mounted from the
very start in the bows, for instance, regularly on fishing trawlers.
Furthermore, the antiaircraft weapons of the merchant vessel, which were
especially dangerous for the submarine, were frequently placed on the
bridge, and could therefore be used in all directions. Besides, there
can be no differentiation between defensive and offensive armaments as
to the way the weapons are placed.

In this respect orders alone and the way in which these weapons are
meant to be employed are the decisive factors. Soon after the war had
started the orders of the British Admiralty had already fallen into
German hands. A decision of the Tribunal has made it possible for me to
submit them. They are contained partly in the _Confidential Fleet
Orders_, chiefly, however, in the _Defense of Merchant Shipping
Handbook_. They were issued in 1938. They do not therefore deal with
countermeasures against illicit German actions but, on the contrary,
were already issued at a time when warfare in accordance with the London
Agreement was the only form of submarine warfare taken into
consideration in Germany.

The instructions further show that all British merchant vessels acted,
from the first day of the war, according to orders received from the
British Admiralty. These involved the following points with respect to
submarine warfare:

(1) Reporting of submarines by radio telegraphy.

(2) The use of naval artillery.

(3) The use of depth charges.

These instructions were supplemented on 1 October 1939, when a call was
transmitted over the radio to ram all German submarines.

It might seem unnecessary after this survey to make any mention at all
of the defensive and offensive character of such orders. The orders on
the use of artillery by merchant vessels, however, do make such
differentiation; that is, guns are to be used for defense only, as long
as the enemy on his part adheres to the regulations of international
law, and for the offensive only when he no longer does. The orders
covering the practical execution of these directives reveal, however,
that there is no difference at all between defensive and offensive use.
Admiral Dönitz explained this in detail when he was heard in Court, and
I do not want to repeat it. Actually, from the very beginning of the war
merchant vessels were under orders to fire on every occasion on every
submarine which came within range of their guns. And that is what the
captains of British merchant vessels did. The reason for this offensive
action can certainly not be found in the conduct of German submarines
during the first weeks of the war, for even the Foreign Office report
admits that this conduct was correct. On the other hand, British
propaganda may have had great influence, since in connection with the
unintentional sinking of the Athenia on 3 September 1939, it
disseminated through Reuters on 9 September the assertion that
unrestricted submarine warfare was in progress and upheld this assertion
notwithstanding the fact that the conduct of German submarines during
the first weeks of the war refuted this accusation. Together with the
announcement of the British Admiralty’s ramming orders of 1 October
1939, the merchant navy was again officially informed that the German
U-boats had ceased to respect the rules of naval warfare and that
merchant vessels were to adjust their conduct accordingly. It seems to
me of no importance that a corresponding written supplement to Admiralty
orders was not issued until the spring of 1940, because nowadays a naval
war is not directed by letters but by wireless. But according to the
latter, the British captains, as from 9 September or 1 October 1939 at
the latest, were directed to use their guns offensively against the
German U-boats in accordance with the Admiralty’s instructions as
contained in its handbook. The German order to attack armed enemy
merchant vessels without warning was issued only on 4 October. Thus it
was justified in any case, even if one did acknowledge a difference in
treatment for vessels with defensive and offensive armament.

The guns on the merchant vessels and the orders concerning their use
were, however, only a part of a comprehensive system of the use of
merchant vessels for military purposes. Since the end of September 1939
the fastest vessels, that is, those ships that were the least endangered
by submarines but, on the other hand, were especially suited for chasing
U-boats, received depth charge chutes, that is, armaments which call for
location of a submerged submarine and thus may be judged as typical
weapons for the offensive.

However, another factor of greater general importance, and also of
greater danger to the submarines, was the order to report every enemy
ship on sight, giving its type and location. This report was destined,
so said the order, to facilitate taking advantage of an opportunity,
which might never recur, to destroy the enemy by naval or air forces.
This is an unequivocal utilization of all merchant vessels for military
intelligence service with intent directly to injure the enemy. If one
considers the fact that according to the hospital ship agreement even
the immunity of hospital ships ceases, if they relay military
information of this type, then one need have no doubts about the
consequences of such behavior on the part of a commercial vessel. Any
craft putting out to sea with the order and intention of using every
opportunity that occurs to send military reports about the enemy to its
own naval and air forces is taking part in hostilities during the entire
course of its voyage and, according to the afore-mentioned report of
1930 of the committee of jurists, has no right to be considered a
merchant vessel. Any different conception would not do justice to the
immediate danger which a wireless report involves for the vessel
reported and which subjects it, often within a few minutes, to attack by
enemy aircraft.

All of the Admiralty’s directives, taken together, show that British
merchant vessels, from the very first day of the war, closely
co-operated with the British Navy in combating the enemy’s naval forces.
They were part of the military communications network of the British
naval and air forces and their armament of guns and depth charges, the
practical training in manipulation of the weapons, and the orders
relative to their use, were actions taken by the British Navy.

We consider it out of the question that a merchant fleet in this manner
destined and utilized for combat should count among the vessels entitled
to the protection of the London Protocol against sinking without
warning. On the basis of this conception and in connection with the
arming of all enemy merchant vessels, which was rapidly being completed,
an order was issued on 17 October 1939 to attack all enemy merchant
ships without warning.

THE PRESIDENT: Dr. Kranzbühler, we may as well break off now.

SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but
I promised to tell the Tribunal about the two affidavits put forward for
the Defendant Seyss-Inquart. We have no objection to them. I promised to
tell Your Lordship today. I am sorry to have to detain you.

      [_The Tribunal adjourned until 16 July 1946 at 1000 hours._]

                                 NOTES

-----

[2] _De jure pacis ac belli_, Book II, Chapter XXIV, Paragraph 10.

[3] Lord Edward Grey: “Twenty-five Years of Politics 1892-1916.”
(Retranslated into English from the German edition published by
Bruckmann, Munich 1926). “International Law has always been very
flexible.... A belligerent possessing an over-powerful navy has at all
times been in search of an interpretation of International Law which
would justify a maximum of intervention in respect of merchandise liable
to reach the enemy. This attitude was naturally adopted by Great Britain
and the Allies owing to their supremacy at sea. The British position on
this subject had not always been the same. When we figured among the
neutrals, we naturally contested the right to maximum intervention
claimed by the belligerents.”

[4] Yamato Ichihalie, _The Washington Conference and After_, Stanford
University Press, Cal., 1928, Page 80, “The chief reason for the British
plea was the apprehension of the craft in the hands of the French navy.”

[5] _Conference on the Limitation of Armaments_, Washington, November
12, 1921-February 6, 1922, Washington, Government Printing Office, 1922,
Pages 606, 688, 692.

[6] _French Yellow Book_, La Conférence de Washington, Page 93.

[7] Protocol Pages 693, 702.

[8] Protocol Page 704.

[9] _American Journal of International Law_, 1931, Page 307.

[10] Hyde, _International Law_, 1922, Vol. II, Page 469.

[11] _U.S. Foreign Relations_, 1916, Supplement Page 147.




                              ONE HUNDRED
                          AND SEVENTY-NINTH DAY
                          Tuesday, 16 July 1946


                           _Morning Session_

FLOTTENRICHTER KRANZBÜHLER: Mr. President, Gentlemen of the Tribunal: I
would like to sum up my statements of yesterday and make the following
remarks regarding the conduct of German U-boats against enemy merchant
vessels.

I believe that the German construction of the London Agreement of 1936,
in the light of the position taken by some of the powers involved, as
generally known to all experts, as well as according to the opinion of
numerous and competent jurists of all countries, was in no way
fraudulent. If I were to express myself with all caution, I would say
that it is, legally, at least, perfectly tenable, and thus not the
slightest charge can be raised against the German Naval Command for
issuing its orders on a sensible and perfectly fair basis. We have shown
that these orders were given only in consequence of the conditions
created by publication of the British measures, which, according to the
German concept of law, justified the orders issued.

Before I leave this subject I should like to recall to the mind of the
Tribunal the special protection which the German orders provided for
passenger vessels. These passenger vessels were excluded for a long time
from all measures involving sinking of ships, even when they sailed in
an enemy convoy and therefore could have been sunk immediately,
according to the British conception. These measures indicate very
clearly that the accusation of disregard and brutality is unjustified.
The passenger vessels were only included in the orders concerning other
vessels when in the spring of 1940 there was no longer any harmless
passenger traffic at all, and when these ships, because of their great
speed and heavy armament, proved to be particularly dangerous enemies of
the submarines. If therefore Mr. Roger Allen’s report cites as an
especially striking example of German submarine cruelty the sinking of
the _City of Benares_ in the autumn of 1940, then this example is not
very well chosen because the _City of Benares_ was armed and went under
convoy.

I shall turn now to the treatment of neutrals in the conduct of German
submarine warfare, and I can at once point again in this connection to
the example which Mr. Roger Allen cites especially for the sinking of a
neutral vessel contrary to international law. It concerns the torpedoing
of the Danish steamer _Vendia_, which occurred at the end of September
1939. The Tribunal will recall that this ship was stopped in a regular
way and was torpedoed and sunk only when it prepared to ram the German
submarine. This occurrence led the German Government to protest to the
Danish Government on account of the hostile conduct shown by a neutral
boat.

This one example is just to show how different things look if not only
the result in the form of the sinking of a neutral ship is known, but
also the causes which led to this result. Until the last day of the war
the fundamental order to the German submarines was not to attack
merchantmen recognized as neutral. There were some accurately defined
exceptions to this order, about which the neutral powers had been
notified. They affected in the first place ships which conducted
themselves in a suspicious or hostile manner, and secondly ships in
announced operational areas.

To the first group belonged, above all, those vessels which sailed
blacked-out in the war area. On 26 September 1939 the Commander of
U-boats asked the High Command of the Navy for permission to attack
without warning vessels proceeding in the Channel without lights. The
reason was clear. At night the enemy’s troop and matériel shipments were
taking place, by which the second wave of the British expeditionary army
was ferried across to France. At that time the order was still in effect
that French ships were not to be attacked at all. But since French ships
could not be distinguished from English vessels at night, submarine
warfare in the Channel would have had to be discontinued completely
after dark in compliance with this order. The Tribunal heard from a
witness that in this way a 20,000-ton troop transport passed unmolested
in front of the torpedo tubes of a German submarine. Such an occurrence
in war is grotesque and therefore of course the Naval Operations Staff
approved the request of the Commander of U-boats.

The Prosecution has now made much ado about a note written on this
occasion by an assistant at the Naval Operations Staff, Kapitänleutnant
Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of
the opinions expressed in this note; therefore they did not result in
corresponding orders. The order to attack blacked-out ships was issued
by radio without any further addition on the part of the Naval
Operations Staff and on 4 October it was extended to further regions
along the British coast, and again without any addition in the sense of
the above-mentioned note.

Examining the question of blacked-out vessels from the legal standpoint,
Vanselow, the well-known expert on the law governing naval warfare,
makes the following remark:[12]

    “In war a blacked-out vessel must in case of doubt be considered
    as an enemy warship. A neutral as well as an enemy merchant
    vessel navigating without light voluntarily renounces during the
    hours of darkness all claim to immunity from attack without
    being stopped.”

I furthermore refer to Churchill’s declaration, made in the House of
Commons on 8 May 1940, concerning the action of British submarines in
the Jutland area. Since the beginning of April they had had orders to
attack all German vessels without warning during the daytime, and all
vessels, and thus all neutrals, as well, at night. This amounts to
recognition of the legal standpoint as presented. It even goes beyond
the German order, insofar as neutral merchant vessels navigating with
all lights on were sunk without warning in these waters. In view of the
clear legal aspect it would hardly have been necessary to give an
express warning to neutral shipping against suspicious or hostile
conduct. Nevertheless, the Naval Operations Staff saw to it that this
was done.

On 28 September 1939 the first German note was sent to the neutral
governments with the request that they warn their merchant ships against
any suspicious conduct, such as changes in course and the use of
wireless upon sighting German naval forces, blacking out, noncompliance
with the request to stop, _et cetera_. These warnings were subsequently
repeated several times, and the neutral governments passed them on to
their captains. All this has been proved by documents which have been
submitted. If therefore, as a result of suspicious or hostile conduct,
neutral ships were treated like enemy ships, they have only themselves
to blame for it. The German submarines were not allowed to attack any
one who as a neutral maintained a correct attitude during the war, and
there are hundreds of examples to prove that such attacks never did
occur.

Now I wish to deal with the second danger which threatened neutral
shipping: The zones of operations. The actual development, briefly
summed up, was as follows:

On 24 November 1939 the Reich Government sent a note to all seafaring
neutrals in which it pointed out the use of enemy merchant ships for
aggressive purposes, as well as the fact that the Government of the
United States had barred to its own shipping a carefully defined naval
zone around the central European coast, the so-called U.S.A. combat
zone. As the note states, these two facts give the Reich Government
cause—I quote:

    “... to warn anew and more strongly that in view of the fact
    that the actions are carried on with all the technical means of
    modern warfare, and in view of the fact that these actions are
    increasing in the waters around the British Isles and near the
    French coast, these waters can no longer be considered safe for
    neutral shipping.”

The note then recommends as shipping lanes between neutral powers
certain sea routes which are not endangered by German naval warfare and,
furthermore, recommends legislative measures according to the example
set by the United States. In concluding, the Reich Government rejects
responsibility for any consequences which might follow if warning and
recommendation should not be complied with. This note constituted the
announcement of an operational area equivalent in size to the U.S.A.
combat zone, with the specified limitation that only in those sea zones
which were actually endangered by actions against the enemy
consideration could no longer be given to neutral shipping.

The Naval Operations Staff did indeed observe this limitation. The
neutral powers had more than 6 weeks in which to take the measures
recommended by the German Government for the safety of their own
shipping and to direct their shipping along the routes announced.
Starting in January the German command then opened up to the German
naval forces, within the operational area announced, certain accurately
defined zones around the British coast, in which an attack without
warning against all ships sailing there was admissible. The naval chart
on which these zones had been marked was submitted to the Tribunal. The
chart shows that these zones, and only these, were gradually set up
where, as a result of mutually increasing attacks and defensive actions
at sea and in the air, engagements continually occurred, so that any
ship entering this area was operating in the direct presence of the
naval forces of both powers. The last of these zones was designated in
May 1940. These zones were not, and need not have been, announced
because they were all within the area of operations as proclaimed on 24
November 1939. The distance of these zones from the enemy coast was on
the average 60 sea miles. Outside their boundaries the declaration
concerning the area of operations of 24 November was not observed, that
is to say, neutral ships could be stopped and sunk only in accordance
with the Prize Ordinance.

This situation changed when, after the collapse of France in the summer
of 1940, the British Isles became the center of war operations. On 17
August 1940 the Reich Government sent to the neutral governments a
declaration in which the entire area of the U.S.A. combat zone around
England without any limitation was designated as an operational area.

    “Every ship”—so the note reads—“which sails in this area
    exposes itself to destruction not only by mines but also by
    other combat means. Therefore the German Government once more
    urgently warns against entering this endangered area.”

From this time on the area was fully utilized and the immediate use of
arms against craft encountered in it was permitted to all naval and air
forces, except where special exceptions had been ordered. The entire
development described was openly dealt with in the German press, and
Grossadmiral Raeder granted interviews to the foreign press on this
subject, which clearly showed the German viewpoint. If therefore in the
sea zones mentioned neutral ships and crews sustained losses, at least
they cannot complain about not having been warned explicitly and
urgently beforehand.

This statement in itself has not much meaning in the question of whether
areas of operation as such constitute an admissible measure. Here, too,
the Prosecution will take the position that in the London Agreement of
1936 no exceptions of any kind were made for areas of operation and that
therefore such exceptions do not exist.

It is a well-known fact that operational areas were originally
proclaimed in the first World War. The first declaration of this kind
came from the British Government on 2 November 1914, and designated the
entire area of the North Sea as a military area. This declaration was
intended as a reprisal against alleged German violations of
international law. Since this justification naturally was not
recognized, the Imperial Government replied on 4 February 1915 by
designating the waters around England as a military area. On both sides
certain extensions were made subsequently. I do not wish to go into the
individual formulations of these declarations and into the judicial
legal deductions which were made from their wording for or against the
admissibility of these declarations. Whether these areas are designated
as military area, barred zone, operational area, or danger zone, the
point always remained that the naval forces in the area determined had
permission to destroy any ship encountered there. After the World War
the general conviction of naval officers and experts on international
law alike was that the operational area would be maintained as a means
of naval warfare. A development, typical for the rules of naval warfare,
was confirmed here, namely, that the modern technique of war forcibly
leads to the use of war methods which at first are introduced in the
guise of reprisals, but which gradually come to be employed without such
a justification and recognized as legitimate.

The technical reasons for such a development are obvious: The
improvement of mines made it possible to render large sea areas
dangerous. But if it was admissible to destroy by mines every ship
sailing, despite warning, in a designated sea area, one could see no
reason why other means of naval warfare should not be used in this area
in the same way. Besides, the traditional institution of the blockade
directly off enemy ports and coasts by mines, submarines, and aircraft
was made practically impossible, so that the sea powers had to look for
new ways to bar the approach to enemy coasts. Consequently it was these
necessities which were the compelling factors in bringing about the
recognition of the operational area.

It is true that there was by no means a uniform interpretation
concerning the particular prerequisites under which the declaration of
such areas would be considered admissible, just as there was none with
regard to the designation which the belligerent power must choose. The
conferences of 1922 and 1930 did not change anything either in that
respect, as can be seen, for instance, from the efforts made after 1930,
especially by American politicians and experts in international law, for
a solution of this question.[13]

Unfortunately, there is no time at my disposal to discuss these
questions in detail and therefore it must suffice for the purposes of
the defense to state that during the conferences in Washington in 1922
and in London in 1930 the operational area was an arrangement or system
known to all powers concerned, which operated in a way determined by
both sides in the first World War; that is, that all ships encountered
in it would be subject to immediate destruction. If the operational area
were to have been abolished in the afore-mentioned conferences,
especially in the treaty of 1930, an accord should have been reached on
this question, if not in the text of the agreement then at least in the
negotiations. The minutes show nothing of the kind. The relationship
between operational area and the London Agreement remained unsettled.

The French Admiral Castex[14] has the same viewpoint; Admiral Bauer,
Commander of Submarines in the first World War, voiced his disapproval
in 1931 of the application of the London rules in the operational area,
and this opinion was not unknown to the British Navy.[15] In a thorough
study published by Professor Ernst Schmitz[16] in 1938 a merchant vessel
which enters an operational area despite general prohibition is deemed
to be guilty of “persistent refusal to stop.” The powers participating
in the conferences in Washington and London carefully refrained, as also
in other cases, from tackling controversial questions on which no accord
could be reached. Therefore every power remained at liberty to champion
in practice such an opinion as corresponded with its own interests.
There was no doubt left in the minds of the participants as to this
fact, and I have as a witness for this no less a person than the French
Minister for Foreign Affairs at that time, M. Briand. In his instruction
of 30 December 1921 to Sarraut, the French chief delegate in Washington,
he announces his basic readiness to conclude an agreement on submarine
warfare. However, he then points out a series of questions described as
essential parts of such an agreement, among them the arming of merchant
ships and the definition of combat zones. The instruction goes on:

    “It is indispensable to examine these questions and to solve
    them by a joint agreement, for surface vessels as well as for
    submarines and aircraft, in order not to establish ineffective
    and deceptive stipulations.”[17]

Particularly with respect to the question concerning the area of
operations, Briand characterizes the submarine rules as being
“ineffective and deceptive.”

After this testimony nobody would designate the German conception as
fraudulent, according to which ships in declared areas of operation
forfeit the protection under the London Agreement. Even Mr. Roger
Allen’s report concedes this.[18] Therefore the attacks of the
Prosecution seem to be directed, as I understand from the
cross-examination, not so much against the existence of such zones as
against their extent, and we have repeatedly heard the figure of 750,000
square sea miles. Incidentally, it must be noted that this figure
includes the territorial area of Great Britain, Ireland, and western
France; the maritime area only amounts to 600,000 square miles. I quite
agree, however, that through operational areas of such a size the
interests of the neutrals were badly prejudiced.

It is all the more remarkable that the afore-mentioned American draft of
the convention of 1939, which concerns the rights and duties of
neutrals, provides for a considerable expansion of the operational area.
Such an area, which is termed “blockade zone” in the draft, was to
include the waters up to a distance of 50 sea miles from the blockaded
coast.

THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to know what
that American draft of 1939 is, to which you refer.

FLOTTENRICHTER KRANZBÜHLER: It is the draft set up by the American
Professors Jessup Borchard and Charles Warren, dealing with the rights
and duties of neutrals in sea warfare. It was published in the _American
Journal of International Law_ of July 1939.

THE PRESIDENT: Jessup and Warren, you say?

FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and Charles Warren.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBÜHLER: This would correspond roughly to the area of
waters in which attacks without warning were authorized until 17 August
1940; it covers approximately 200,000 square sea miles.

However, it seems to me almost impossible to approach from a juridical
angle such an eminently practical question as that of the extent of an
operational area. As long as this question is not settled by an
agreement the actual determination will always be a compromise between
what is desirable from a military point of view and what is politically
possible. It seems to me that the law is only violated when a
belligerent misuses his power against neutrals. The question as to
whether such misuse takes place should be made dependent both upon the
attitude of the enemy toward the neutrals and upon the measures taken by
the neutrals themselves.

THE PRESIDENT: One minute. Dr. Kranzbühler, does not the right to
declare a certain zone as an operational zone depend upon the power to
enforce it?

FLOTTENRICHTER KRANZBÜHLER: I do not quite follow the point of your
question.

THE PRESIDENT: Well, your contention is, apparently, that any state at
war has a right to declare such an operational zone as it thinks right
and in accordance with its interests, and what I was asking you was
whether the right to declare an operational zone, if there is such a
right, does not depend upon the ability or power of the state declaring
the zone to enforce that zone, to prevent any ships coming into it
without being either captured or shot.

FLOTTENRICHTER KRANZBÜHLER: I do not believe, Mr. President, that there
exists agreement of expert opinion regarding that question. In contrast
to the blockade zone in a classical sense where full effect is
necessary, the operational zone only provides for practical endangering
through continuous combat actions. This practical threat was present in
the German operational zone in my opinion, and I refer in that
connection to the proclamation of President Roosevelt regarding the
U.S.A. combat zone, where the entering of that zone was prohibited,
because as a result of combat actions shipping must of necessity be
continuously endangered.

THE PRESIDENT: The proclamation of the President of the United States
was directed, was it not, solely to United States vessels?

FLOTTENRICHTER KRANZBÜHLER: I am referring to it only to establish proof
of the German interpretation that this area was endangered, and
practical danger seems to be the only legal and necessary prerequisite
for declaring an operational zone.

THE PRESIDENT: Would you say that it was a valid proclamation if Germany
had declared the whole of the Atlantic to be an operational zone?

FLOTTENRICHTER KRANZBÜHLER: Mr. President, I would say that at the
beginning of the war that would not have been possible, for the German
forces at that time, without doubt, did not constitute an effective
danger to the entire Atlantic sea traffic. I am of the opinion, however,
that with the increase in the number of U-boats on the one hand, and
with the increase of defense by hostile aircraft on the other, the
danger zone of course expanded, and therefore the development of this
war quite logically led to the point where operational zones were
gradually extended and enlarged.

THE PRESIDENT: Do you mean, then, that you are basing the power of the
state to declare a certain zone as an operational zone not upon the
power of the state to enforce its orders in that zone, but upon the
possibility of danger in that zone?

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE PRESIDENT: You say it depends upon the possibility of danger in the
zone?

FLOTTENRICHTER KRANZBÜHLER: I would not say the possibility of danger,
Mr. President, but the probability of danger, and the impossibility for
the belligerent to protect neutral shipping against this danger.

THE PRESIDENT: May I ask you what other legal basis there is for the
theory you are putting forward, other than the adoption of the blockade?

FLOTTENRICHTER KRANZBÜHLER: I am referring as a legal basis especially
to the practice of the first World War, and the statements made by
experts after the first World War, and also to the generally recognized
rules about mined areas. The mined areas actually in this war proved to
be operational zones where every means of sea warfare was used to sink
without warning. I shall later refer to this topic once more.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBÜHLER: During the presentation of documents, the
Tribunal has eliminated all those which I intended to utilize in order
to prove that British naval warfare also paid no attention to the
interests of neutrals when they were in contradiction with their own
interests. If it is the Tribunal’s wish, I will not go into the details
of the British measures, and in summing up I will mention them only
insofar as they are indispensable for the legal argumentation. The
following points are essential:

(1) The British regulations of 3 September 1939 concerning contraband
goods, which practically precluded neutral mercantile traffic with
Germany through the introduction of the so-called “hunger blockade.”

(2) The decree concerning control ports for contraband goods, which
compelled neutral ships to make great detours right through the war
zone, and to which must be imputed without doubt a series of losses of
neutral ships and crews.

(3) The introduction of an export blockade against Germany on 27
November 1939, by means of which the importation of German goods was cut
off for neutrals.

(4) The introduction of the navicert system and the black lists, which
put the whole of neutral trade under British control and which made
ships refusing to accept this system liable to be seized and
confiscated.

I do not have to examine the question here whether these British
measures toward neutrals were admissible or not from the point of view
of international law. In any case the neutrals themselves considered
many of them inadmissible, and there was hardly a single one which did
not bring forth more or less vehement protests, for instance from Spain,
the Netherlands, Soviet Russia, and the United States. From the
beginning, the British Government for its part had forestalled any legal
examination of the measures by renouncing the optional clause of the
Permanent International Tribunal in The Hague, through a note of 7
September 1939. This step was expressly vindicated by the necessity for
providing the British Navy with full freedom of action.

On the British side the fact was emphasized in the first World War and
ever since that although British measures did prejudice the interests
and possibly also the rights of the neutrals, they did not imperil
either the ships or the crews and were therefore to be considered
morally superior to the inhuman German measures. Actually, as mentioned
before, the obligation to enter control ports was dangerous for neutral
ships and crews and for this very reason the neutral countries protested
against it. But apart from this, it seems to me that the actual
divergence between the British and German measures for blockading the
adversary is not founded upon moral differences, but rather upon
difference in sea power. In the waters where the British Navy did not
exercise naval supremacy, namely, off the coasts we occupied, and in the
Baltic Sea, it used the same methods of naval warfare as we did.

In any case the official German opinion was that the afore-mentioned
British control measures against neutrals were inadmissible, and the
Reich Government reproached the neutral powers with the fact that,
although protesting, they in point of fact submitted to the British
measures. This is clearly stated in the proclamation issued on the
occasion of the declaration of the blockade on 17 August 1940.
Consequently, the following facts confronted, the German Naval Command:

(1) A legal trade between the neutrals and the British Isles no longer
existed. On the grounds of the German answers to the British
stipulations concerning contraband goods and the British export
blockade, any trade to and from England was contraband trade and
therefore illegal from the point of view of international law.

(2) The neutrals in practice submitted to all British measures, even
when these measures were contrary to their own interests and their own
conception of legality.

(3) Thus, the neutrals directly supported British warfare, for by
submitting to the British control system in their own country they
permitted the British Navy to economize considerably on fighting forces
which, according to the hitherto existing international law, should have
exercised trade control at sea and which were now available for other
war tasks.

Therefore the German Government, in determining its operational area
with a view to preventing illegal traffic from reaching England, saw no
reason for giving preference to the neutrals over its own military
requirements, all the less so since neutral shipping, which despite all
warnings continued to head for England, demanded a great deal of money
for this increased risk and therefore despite all risks still considered
trade with England a profitable business.[19]

In addition to that, the most important neutrals themselves took
measures which can be regarded as a completely novel interpretation of
the existing laws of naval warfare. All the American countries jointly
proclaimed the Pan-American safety zone, an area along the American
coast within a distance of approximately 300 sea miles. In these waters,
comprising altogether several million square miles, they required
belligerents to forego the exercise of these rights which, according to
hitherto existing international law, the naval forces of the
belligerents were entitled to apply to neutrals. On the other hand, as I
have already mentioned, the President of the United States prohibited,
on 4 November 1939, U.S. citizens and ships from entering the waters
extending over approximately one million square miles along the European
coast. Thus the development of the laws of naval warfare, under the
influence of the neutrals, necessarily led to the recognition of large
areas reserved either for the purpose of safety or for that of combat.
In this connection the American President explicitly stated in his
proclamation that the maritime zone he had closed was “endangered by
combat action” as a result of technical developments. The proclamation
thus only took into account the development of modern weapons; the
long-range coastal artillery which, for example, could easily fire
across the English Channel; the invention of locating devices which
permitted coastal supervision of maritime traffic over large areas; and
particularly the increased speed and range of aircraft.

From this development the German Naval Command drew the same conclusion
as the above-mentioned neutrals, namely, that defensive and offensive
action would necessarily have to cover large maritime areas in this war.
It was therefore not through arbitrary action that the German
operational area, which the Prosecution objects to, grew to such a size;
it was only because the German Naval Command was adapting itself to a
system which was recognized by the other powers also as justified.

In order to examine the legality of the German measures on the basis of
enemy methods, may I ask the Tribunal to recall the naval chart on which
the British zones of warning and danger are marked. These zones cover
about 120,000 square sea miles. Even if these dimensions are smaller
than those of the German operational area, it seems to me that the
difference between 100,000 and 600,000 square miles is not so much a
question of legal judgment as one of coastal length and of strategic
position on the sea. This observation is confirmed by the American
practice against Japan, as described by Admiral Nimitz. He says:

    “In the interest of the conduct of operations against Japan the
    area of the Pacific Ocean is declared a zone of operations.”

This zone of operations covers more than 30 million square miles. All
ships therein, with the exception of U.S. and Allied, and hospital
ships, were sunk without warning. The order was issued on the first day
of the war, on 7 December 1941, when the Chief of the Admiralty ordered
unrestricted submarine warfare against Japan.

It is not for me to examine whether this order, issued on the first day
of the war, is to be looked upon and justified as a measure of reprisal.
For me the important thing is to show what actual practice looked like,
and that is unequivocal.

The Prosecution finds particularly blameworthy the orders to carry out
attacks without warning in the operational areas, if possible without
being noticed, so that mine hits could be claimed. Orders to this effect
existed for the period between January and August 1940, that is to say,
during the period when submarines were not permitted to act without
warning throughout the operational area of 24 November 1939, but only in
the specially defined areas off the British coast. In this camouflage
the Prosecution sees proof of a bad conscience amounting to the
recognition of wrongdoing. The real reasons for the measures ordered
were both military and political. For the admirals concerned the
military reasons, of course, took first place, and these alone were
known to the Commander of U-boats. The enemy was to be left in
uncertainty as to what weapons of naval warfare had caused his losses,
and his defense was to be led astray in this manner. It is obvious that
such misleading of the enemy is fully justified in time of war. The
measures had the desired military success, and in numerous cases the
British Navy employed flotillas of mine sweepers on the spot where a
ship had been torpedoed, and conversely started a submarine chase where
a loss had occurred through mine hits.

For the Supreme Command, however, it was not the military but the
political reasons that were the determining factor. These invisible
attacks were meant to provide an opportunity of denying to the neutrals
that the sinkings were due to submarines, and of tracing, them back to
mines. This actually did happen in some cases. Does that mean that the
German Government itself considered the use of submarine action without
warning within the area of operations to be illegal? I do not think so.

In view of the repeated accusations which the Prosecution have construed
here and elsewhere from the camouflaging of measures and the denial of
facts, I feel obliged to make a few remarks on the point as to whether
there is any obligation at all in international politics to tell the
truth. However things may be in peacetime, in times of war at any rate
one cannot recognize any obligation to tell the truth in a question
which may be of advantage to the enemy. I need only point to Hugo
Grotius who says: “It is permissible to conceal the truth wisely.
Dissimulation is absolutely necessary and unavoidable.”[20]

What would it have meant for the military situation if U-boat sinkings
such as in the instances dealt with here had not been denied but
admitted instead? First of all, since that would have come to the
knowledge of the enemy too, we should have lost the military advantage
which lay in misleading his defense. Furthermore—and this is no less
important—we might quite possibly have furnished our enemy with allies
who would have helped him at least with propaganda, if not with their
weapons. In view of the fact that some of the neutrals concerned were so
dependent on England, they probably would not have recognized the German
viewpoint as to the legitimacy of the operational areas, especially
since this viewpoint was contrary to their own interests. It would have
led to political tensions, and possibly to armed conflicts. Our enemies
would have derived the only immediate advantage from it. From the
standpoint of the law this endeavor to camouflage the use of submarines
with regard to the neutrals does not seem objectionable to me.

But if the Prosecution uses this with the intention of moral defamation,
it is applying standards which heretofore have never been applied to the
conduct of a war and to the politics of any other country in the world.
It was precisely in naval warfare that the same methods of camouflage
were employed by the other side, too. The operational areas which Great
Britain declared off the European coasts from Norway to Biscay were,
with the exception of the Biscay area, declared mine danger zones. But
we know from Churchill’s statement of May 1940, as well as from
testimonies of witnesses, that in these areas there were unlimited
attacks with submarines, speedboats and, above all, with airplanes.
Consequently very often neither the German command nor the neutral
country which had been attacked knew whether a loss sustained in such an
area really should be traced back to a mine or to another weapon of
naval warfare. To conclude that the camouflaging of a measure
constitutes its illegality thus seems to me entirely without basis.

Within the German operational zone all ships were on principle attacked
without warning. However, orders had been given to make exceptions in
the case of certain neutrals, such as, in the beginning, Japan, the
Soviet Union, Spain, and Italy. In this measure the Prosecution saw the
endeavor of the Naval Operations Staff to terrorize the smaller neutral
countries whereas it dared not pick a quarrel with the big ones. The
real reason for this differentiating treatment is given in Document
UK-65 in the notation on the report which the Commander-in-Chief of the
Navy made to the Führer on 16 October 1939.

According to this the neutral governments mentioned are requested to
declare that they will not carry contraband; otherwise they would be
treated just like any other neutral country. The reason for the
different treatment was merely that certain countries were willing and
able to forbid their vessels from carrying contraband to England,
whereas others could not or would not do so because of their political
attitude or their economic dependence on England. Therefore it is not a
question of terrorizing the smaller neutrals and sparing the bigger
ones, but of preventing traffic in contraband and sparing legal
commercial trade. Since no general legal maxim exists which compels the
belligerent power to treat all neutral powers alike, no objection can be
raised on the basis of international law. It would indeed be strange if
here in the name of humanity the demand were made that German submarines
should have sunk even those ships which they did not want to sink at
all.

The Tribunal saw from the standing war orders submitted that during the
further course of the war even the small powers, which were the only
neutral ones left, could by virtue of shipping agreements cross the
operational area along certain routes without being molested by German
submarines. In this way for instance Sweden and Switzerland as well as
Turkey could carry on their maritime trade during the entire war.

Outside the operational area announced the German submarines were never
permitted to attack neutral ships. In this respect the Naval Command
refrained from waging any submarine warfare against neutral merchant
shipping, since enemy air surveillance made stopping and searching too
dangerous for German submarines. Against the disadvantage of submarine
warfare within the operational area, the neutrals had, outside the area,
the advantage of remaining completely unmolested, even if they were
shipping contraband goods, which fact in itself made them liable to be
sunk after being stopped. Thus a neutral vessel outside the operational
area was only in danger if it behaved in a suspicious or hostile way or
if it was not clearly marked as neutral. The German Naval Operations
Staff again and again called the attention of the neutral powers to this
necessity.

In this connection I must mention the order of 18 July 1941, according
to which United States vessels within the operational area were placed
on an equal basis with all other neutrals, that is to say, could be
attacked without warning. The Prosecution have seen in this special
proof that the submarine warfare against neutrals was waged in a
“cynical and opportunist” way. If this is meant to convey that it was
influenced also by political considerations, then I am ready to admit
it. But I do not consider this a reproach; since war itself is a
political instrument, it is in keeping with its essence if individual
parts of it are placed under the leadership of politics. In particular,
no reproach should be seen in the orders of the German Command as
regards the utilization of submarines against the United States, because
they precisely furnish proof of the efforts to avoid any conflict with
the United States.

As the Tribunal knows from documents and the testimonies of witnesses,
the ships of the United States during the first years of the war were
exempt from all measures of naval warfare, and this applied even when
contrary to the original American legislation they sailed into the
U.S.A. combat zone and thus into the German operational area in order to
carry war matériel to England.

This policy was not changed until, in addition to the many unneutral
acts of the past, the active employment of the American Navy had been
ordered for the protection of British supply lines.

Everybody is familiar with the statements of President Roosevelt, which
he made at that time, about the “bridge of boats over the Atlantic” and
the support which should be given to England “by every means short of
war.” It may be considered a matter of doubt whether the “realistic
attitude”[21] which the U.S. naval and air forces were ordered to take
at that time did not already constitute an illegal war, as has been
claimed just now on the part of the Americans.[22]

At least the United States had abandoned her neutrality and claimed the
status of a “nonbelligerent,” which also presented a new aspect of
international law in this war. If in this connection one wishes to raise
the charge of cynicism, it should hardly be directed against the orders
which were issued as a justified reaction to the American attitude.

I have endeavored to present to the Tribunal a survey of the essential
orders issued, and to say a few things with respect to their legality.
No doubt there were instances of attacks on ships which according to the
orders mentioned should not have been attacked. There are just a few
such cases, and some of them have been brought up at this Trial. The
best known concerns the sinking of the British passenger vessel
_Athenia_ on 3 September 1939 by _U-30_ under the command of
Kapitänleutnant Lemp. The sinking of this ship was due to the fact that
the commander mistook it for an armed merchant cruiser.

If the Tribunal should still hesitate to believe the concurring
statements of all the witnesses heard here on this critical instance,
which was used especially for propaganda purposes, these doubts ought to
be removed by the behavior of the same commander in the days and weeks
following the sinking. Kapitänleutnant Lemp, as the log of _U-30_ at
that time shows, adhered strictly to the Prize Ordinance, and from this
log I was able to submit several examples of the fair and gentlemanly
conduct of German commanders even when by such conduct they greatly
endangered their submarines.

Only on the return of _U-30_ from the operations at the end of September
1939 were the Commander of U-boats and the Commander-in-Chief of the
Navy fully informed of the whole affair of the sinking of the _Athenia_.
Upon his return the commander immediately reported to the Commander of
U-boats the mistake which he himself meanwhile recognized as such, and
was sent to Berlin to report in person.

Dr. Siemers will deal with the political aspect of this matter. I only
mention the military occurrences. Admiral Dönitz received the following
communication from the Naval Operations Staff:

(1) The affair was further to be dealt with politically in Berlin.

(2) Court-martial proceedings were not necessary since the commander
acted in good faith.

(3) The entire matter was to be kept in strict secrecy.

On the grounds of this order the Commander of U-boats gave orders that
the report on the sinking of the _Athenia_ be deleted from the log of
_U-30_ and that the log be complemented in such a manner as to make the
absence of the entry inconspicuous. As the Tribunal has seen, this order
was not adequately carried out, obviously for the reason that the
officer in charge had no experience whatever in such dealings.

The Prosecution pointed to this changing of the War Diary as a
particularly criminal act of falsification. This, it seems to me, is
based on a misunderstanding of the facts. The War Diary is nothing but a
military report by the commander to his superiors. What occurrences
should or should not be included in reports of this kind is not decided
by any legal or moral principle, but is solely a matter of military
regulations. The War Diary was meant to be secret; however, it was—like
many secret matters—accessible to a very large group of people. This is
already apparent from the fact that it had been circulated in eight
copies, of which some were intended not only for higher staffs but for
schools and for training flotillas as well. Therefore, whenever an
occurrence was to be restricted to a small group of individuals, it was
not to be reported in the War Diary. Since the sequence of the War Diary
continued, the missing period had to be filled in with another,
necessarily incorrect, entry. I can see nothing immoral in such a
measure, much less anything illegal. As long as there is secrecy in time
of war—and that is the case in all countries—it means that not all
facts can be told to everybody, and therefore one sometimes may have to
make incorrect statements. A certain moral offense could perhaps be seen
in such action in the case of the _Athenia_ if thereby a falsification
for all times had been intended. This, however, was by no means the
case. The commander’s report with regard to the sinking of the _Athenia_
was of course submitted in the original form to the immediate superiors,
the Commander of U-boats and the Commander-in-Chief of the Navy, and
kept in both their offices. I should like further to say briefly that a
general order not to enter certain happenings into the War Diary has
never existed.

The _Athenia_ case brings another fact to light and that is the manner
in which the compliance of U-boat commanders with any orders issued was
enforced. In spite of the justified conception of the Naval Operations
Staff that the commander acted in good faith, he was put under arrest by
Admiral Dönitz because by exercising greater caution he perhaps might
have recognized that this was not an auxiliary cruiser. Punishment was
meted out in other cases, too, where orders had been mistakenly
violated.

The Tribunal is familiar with the wireless communications of September
1942, by which, on occasion of the sinking of the _Monte Corbea_, the
commander had been informed that upon his return he would have to face
court-martial proceedings for violation of orders regarding conduct
toward neutrals. All commanders received notice of this measure.

The Tribunal will please consider what such strict warnings mean to a
commander at sea. If the directives of the American manual for
courts-martial were to be considered as a basis, then court-martial
proceedings against officers should only be initiated in cases where
dismissal from the service seems warranted.[23] That should never be the
case when the violation of an order is an accidental one. For a
commanding officer who is supposed with his soldiers to wage war and
gain successes, it is extremely hard and, in fact, under certain
circumstances actually a mistake to have one of his commanders on his
return from a successful operation tried before a court-martial because
of a single slip which occurred in that action.

Every military command acts in accordance with these principles. In this
connection I will refer to the unreserved recognition which the
commander of the British destroyer _Cossack_ received for setting free
the prisoners of the _Altmark_ in spite of the incidents which occurred
during this action, which were probably regretted by the British too.

I had to go into those matters in order to meet the accusation that all
sinkings carried out against orders were afterward sanctioned by the
High Command in that no drastic steps were taken against the commanders.
Especially in the field of submarine warfare compliance with orders
issued was insured by the continuous personal contact of the commanders
with their commanding officer. Upon conclusion of every enemy operation
an oral report had to be made, and all measures taken were subjected to
sharp criticism, while instructions were given at the same time for
future behavior.

The German submarines undertook many thousands of combat operations
during this war. In the course of these, orders issued were violated
only in very rare instances. If one considers how difficult it is for a
submarine to establish its exact position and the boundaries of an
operational area, and to distinguish an armed from an unarmed ship, a
passenger ship from a troop transport, or a neutral from an enemy ship,
the low number of sinkings considered unjustified by the Germans, too,
must be taken as proof of an especially effective and conscientious
leadership.

After this discussion of the factual development of German submarine
warfare, I still have to deal with the accusations built up by the
Prosecution from certain preparatory deliberations on the subject of the
organization of submarine warfare.

Simultaneously with the combat instructions of 3 September 1939, whereby
German submarines were ordered to adhere in their operations strictly to
the Prize Ordinance, an order was prepared in the Naval Operations Staff
decreeing action without warning in case the enemy merchantmen were
armed. In addition to this, during the first days of the war there was
an exchange of correspondence with the Foreign Office on the subject of
declaring prohibited zones.

The Prosecution looks upon these two documents as proof of the intention
to conduct a war contrary to international law from the very start. I,
on the other hand, regard these same documents as proof of the fact that
the Naval Operations Staff was fully unprepared for a war with England,
and that it was only when the British had already declared war that they
began to set about thinking in the most elementary manner on how such a
war should be conducted. Since neither surprise attacks on armed
merchant vessels nor the declaration of prohibited zones violate
international law, a belligerent might well be allowed to consider after
the outbreak of war if and when he wants to make use of these
opportunities. As we know from the afore-mentioned orders of the British
Admiralty, as early as 1938 a thorough study of all the possibilities
resulting from the war upon commercial shipping had been made and
elaborated for practical purposes.

This same standpoint holds good also for the memorandum of the Naval
Operations Staff of 15 October 1939, which has been quoted several times
by the Prosecution. Its very heading shows that it is a study:
“Possibilities for the Intensification of Naval Warfare.”

In accordance with the heading, the memorandum provides an examination
of the military demands for effective naval warfare against England, and
of the legal possibilities for fulfilling these demands. The result was
the order of 17 October 1939, decreeing the immediate use of arms
against all enemy merchant vessels, since, as we have already shown,
they had been armed and incorporated into the military system. Further
intensifying measures were for the time being recognized as not yet
justified, and the suggestion was made to wait and see what the further
conduct of the enemy would be.

One sentence in this memorandum arouses special suspicion on the part of
the Prosecution. It says that naval warfare must, as a matter of
principle, be kept within the framework of existing international law.
However, measures which might result in successes decisive for the war
would have to be taken even if new laws of naval warfare were created
thereby.

Does this really constitute a renunciation of international law? Quite
the contrary. A departure from existing international law is made
dependent only on two quite limited conditions: (1) A military one,
namely, that measures are involved which are of decisive importance for
the outcome of the war, that is, also of importance in shortening the
war;[24] (2) a moral one, namely, the nature of the new measures makes
them suitable for incorporation into the new international law.

The memorandum itself states that this would be possible only within the
framework of the laws of military combat ethics and a demand is
therefore made for rigid adherence without any exceptions to these
ethics of warfare. Under these conditions there can hardly be any doubt
as to the possibility of formulating new international laws.

The well-known expert on international law, Baron von
Freytagh-Loringhoven says, and I quote:

    “... always been war which has given its strongest impulses to
    international law. Sometimes they have been of a positive,
    sometimes of a negative nature. They have led to further
    development of already existing institutions and norms, to the
    creation of new forms or the reversion to old ones, and not
    infrequently also to failures.”[25]

Especially in this Trial, which itself is supposed to serve the
development of new international law, the possibility of such a
development cannot be denied.

THE PRESIDENT: We will adjourn.

                        [_A recess was taken._]

THE PRESIDENT: The Tribunal will not sit in open session after 1 o’clock
tomorrow, Wednesday; it will sit in closed session during the afternoon.
The Tribunal will not sit in open session on Saturday; it will sit in
closed session on Saturday morning.

FLOTTENRICHTER KRANZBÜHLER: Before the recess I was speaking about the
possibilities of development of naval law.

The American prosecutor, Justice Robert Jackson, in his report to the
President of the United States with regard to this problem, expressed
his opinions as follows, and I quote:[26]

    “International law is not capable of development by legislation,
    for there is no continuously sitting international legislature.
    Innovations and revisions in international law are brought about
    by the action of governments, designed to meet a change in
    circumstances. It grows, as did the common law, through
    decisions reached from time to time in adapting settled
    principles to new situations.”

These words carry a full justification of the clause objected to by the
Prosecution in the memorandum of the Naval Operations Staff. And the
fact that the Allies also deemed war-deciding measures to be justified
even though they were contradictory to hitherto valid concepts of
international law is proved by the use of the atomic bomb against
Japanese cities.

Since I am interested in justifying the actual measures taken by the
Naval Command in Germany; I have not dealt with the point as to which
one of the two admirals accused carried greater or lesser responsibility
for one or another. As a formal basis in nearly all cases a Führer
decree exists. Both admirals, however, stated here that they considered
themselves fully responsible for all orders of naval war which they gave
or transmitted. I should like to add to that only two remarks.

As far as political considerations were decisive for orders of the
U-boat war, the Commander-in-Chief of the Navy had no influence on them.
The Commander of U-boats had not been notified of such considerations
any more than of the political settlement of incidents which arose
through U-boats.

My second remark concerns the question as to what extent a military
commander may be held responsible for the accuracy of legal reasonings
which he does not indulge in himself, but which are delivered to him by
the leading experts of his country, who after all are not just
small-town lawyers. In addition, the Commander of U-boats had only
tactical tasks and his staff contained only a few officers, none of whom
was qualified to examine questions of international law of the import
mentioned here. He therefore had to rely on the fact that the orders
issued by the Naval Operations Staff were examined as to their legality
and were in order. That is probably handled in a like manner in every
navy in the world. A professional seaman is not competent for legal
questions; with this reason the Tribunal cut off a remark by Admiral
Dönitz about a legal question. This condition must, however, be
considered in applying the principle which the German Supreme Court,
during the war crimes trials after the first World War, formulated in
this regard, and I quote: “The culprit must be conscious of the
violation of international law by his actions.”

This appears to me to be equally just, as I should deem it to be
incompatible with the demands of justice if soldiers were charged with a
criminal responsibility in deciding legal questions which could not be
settled at international conferences and are hotly disputed among the
experts themselves.

In this connection I should like to mention that the London Pact of 1930
did not from the Root Resolution of 1922 adopt the principle of criminal
prosecution for violations of the rules of U-boat warfare. The five
naval powers participating in this conference apparently came to the
conclusion that the problems of naval warfare cannot be solved by means
of penal law. And this fact applies fully today, too.

I am now coming to the second basic charge of the
Prosecution—intentional killing of shipwrecked crews. It is directed
only against Admiral Dönitz, not Admiral Raeder. The legal basis for the
treatment of shipwrecked crews for those ships which are entitled to the
protection of the London Agreement of 1936 is laid down in the agreement
itself. There it says that, before the sinking, crews and passengers
must be brought to safety. This was done by the German side, and the
difference of opinion with the Prosecution concerns only the question
already dealt with, namely, which ships were entitled to protection
under the agreement and which were not.

In the case of all ships not entitled to protection under the agreement,
sinking should be considered a military combat action. The legal basis,
therefore, with regard to the treatment of shipwrecked crews, in these
cases is contained in the Hague Convention concerning the Application of
the Principles of the Geneva Convention to Naval Warfare of 18 October
1907, although it was not ratified by Great Britain. According to this,
both belligerents shall after each combat action make arrangements for
the search for the shipwrecked, as far as military considerations allow
this. Accordingly the German U-boats were also bound to assist the
shipwrecked of steamers sunk without warning as long as by doing so,
first, the boat would not be endangered and, secondly, the
accomplishment of the military mission would not be prejudiced.

These principles are generally acknowledged. In this connection I am
referring to the order of the British Admiralty, for example, and I
quote: “No British ocean-going merchantman shall aid a ship attacked by
a U-boat.”

I further refer to the affidavit of Admiral Rogge, according to which in
two cases, personally witnessed by him, nothing was done by a British
cruiser to rescue the shipwrecked, because U-boats were assumed to be
nearby, once correctly so and once erroneously. A higher degree of
self-endangering would appear to apply to U-boats as compared with other
types of vessels because of their exceptional vulnerability.

As to the second exception to rescue duty, namely, prejudice to the
military mission, the U-boat is also subject to special conditions. It
has no room to take guests aboard. Its supply of food, water, and fuel
is limited and any considerable expenditure will prejudice its combat
mission. Furthermore, it is typical for the U-boat that the combat
mission may call for an unobserved attack and therefore exclude rescue
duty. In order also to present an opinion about the tactics of the
opposite side, I quote from the statement of Admiral Nimitz:

    “In general U.S. submarines did not rescue enemy survivors if it
    meant an unusual additional danger for the submarine or if the
    submarine was prevented from further carrying out its mission.”

In the light of these principles I will briefly deal with rescue
measures by U-boats until the autumn of 1942. The basic order was issued
by the Naval Operations Staff on 4 October 1939, and specified rescue
whenever possible from the military standpoint. This was temporarily
restricted by Standing War Order 154. This order, issued in December
1939, applied to the small number of submarines at that time operating
immediately off the British coast. It may be seen from the order itself
that every paragraph deals with combat in the presence of enemy escort
and patrol forces. The last paragraph therefore also deals only with
this aspect and serves the warranted purpose of protecting submarine
commanders against the dangers to which, under the existing
circumstances, they would in every case expose their boats by rescue
measures. When after the Norwegian campaign the scene of activity of the
submarines gradually shifted to the open Atlantic, this order became
outdated, and it was finally canceled in the autumn of 1940. In the
period that followed, the German submarine commanders carried out rescue
measures whenever they could assume responsibility from the military
standpoint. This is known to the Tribunal from numerous specific
examples cited here, contained both in the statements of submarine
commanders submitted here and in the war diaries. This situation was
changed through Admiral Dönitz’s order of 17 September 1942, in which he
forbade rescue measures on principle. The decisive sentences are:

    “The rescue of members of the crew of a ship sunk is not to be
    attempted. Rescue is contradictory to the most primitive demands
    of warfare, which are the annihilation of enemy ships and
    crews.”

It has been disputed by the Prosecution that this actually prohibits
rescue. It looks upon this order as a hidden provocation to kill the
shipwrecked, and it has gone through the press of the world as a command
for murder. If any accusation at all has been refuted in this Trial,
then it seems to me to be this ignominious interpretation of the order
mentioned above.

How was this order brought on? Beginning with June 1942, the losses of
German submarines through the Allied air force rose by leaps and bounds,
and jumped from a monthly average of 4 or 5 during the first 6 months of
1942 to 10, 11, 13, finally reaching 38 boats in May 1943. Orders and
measures from the command of submarine warfare multiplied in order to
counter those losses. They were of no avail and every day brought fresh
reports of air attacks and losses of submarines.

This was the situation when on 12 September it was reported that the
heavily armed British troop transport _Laconia_ with 1,500 Italian
prisoners of war and an Allied crew of 1,000 men and some women and
children aboard had been torpedoed. Admiral Dönitz withdrew several
submarines from current operations for the purpose of rescuing the
shipwrecked, no distinction being made between Italians and Allies. From
the very start the danger of enemy air attacks filled him with anxiety.
While the submarines during the following days devotedly rescued, towed
boats, supplied food, and so forth, they received no less than three
admonitions from the Commander to be careful, to divide the shipwrecked,
and at all times to be ready to submerge. These warnings were of no
avail. On 16 September one of the submarines displaying a Red Cross flag
and towing life boats was attacked and considerably damaged by an Allied
bomber; one lifeboat was hit and losses caused among the shipwrecked.
Following this report the Commander sent three more radio messages with
orders immediately to submerge in case of danger and under no
circumstances to risk the boats’ own safety. Again without avail. In the
evening of that day, 17 September 1942, the second submarine reported
that during rescue actions it had been taken unawares and bombed by an
airplane.

Notwithstanding these experiences, and in spite of the explicit order
from Führer headquarters not to endanger any boats under any
consideration, Admiral Dönitz did not discontinue rescue work, but had
it continued until the shipwrecked were taken aboard French warships
sent to their rescue. However, this incident was a lesson. Due to enemy
air reconnaissance activity over the entire sea area, it was simply no
longer possible to carry out rescue measures without endangering the
submarine. It was useless to give orders over and over again to
commanders to undertake rescue work only if their own boats were not
endangered thereby. Earlier experiences had already shown that their
human desire to render aid had led many commanders to underestimate the
dangers from the air. Yet it takes a submarine with decks cleared at
least one minute to submerge on alarm, while an airplane can cover 6,000
meters in that time. In practice this means that a submarine engaged in
rescue action when sighting a plane has not time enough to submerge.

These were the reasons which caused Admiral Dönitz directly after the
close of the _Laconia_ incident to forbid rescue measures on principle.
This was motivated by the endeavor to preclude any calculation on the
part of the commander as to the danger of air attack whenever in
individual cases he should feel tempted to undertake rescue work.

It is difficult to judge the actual effects of this order. From 1943 on
about 80 percent of the submarines were fighting against convoys, where
even without this order rescue measures would have been impossible.
Whether or not some commander would have, without this order, again
risked concerning himself with the lifeboats, nobody can tell with
certainty. As is known, an order existed since the middle of 1942 to
bring in as prisoners, if possible, captains and chief engineers. Over a
period of almost 3 years this order was carried out not even a dozen
times, which proves how high the commanders themselves estimated the
danger to their boats in surfacing. On the other hand, nothing was more
distressing for members of the crews of torpedoed ships than to be taken
aboard a U-boat, because of course they knew that their chance of being
rescued was much better in a lifeboat than on a U-boat which, with a
probability of at least 50 percent, would not return to its base.
Therefore, I arrive at the conclusion, as did Admiral Godt, that the
_Laconia_ order may have cost the lives of some Allied seamen just as it
may have saved the lives of others. Be that as it may, in the face of
the enormous losses by the enemy air forces the order forbidding rescue
was justified. It was completely in line with the basic idea of the
precedence of one’s own vessel and of one’s own task, as prevailing in
all navies; a principle which I believe I have proved as commonly valid
in view of existing British and American orders and practices.

How then can the Prosecution consider this order an “order to murder”?
Grounds for this are said to be furnished by the discussion between
Hitler and the Japanese Ambassador, Oshima, in January 1942, in which
Hitler mentioned a prospective order to his U-boats to kill the
survivors of ships sunk. This announcement, the Prosecution infers,
Hitler doubtless followed up, and Admiral Dönitz carried it out by the
_Laconia_ order. Actually, on the occasion of a report on U-boat
problems which both admirals had to make in May 1942, the Führer
suggested that in future action should be taken against the shipwrecked,
that is, to shoot them; Admiral Dönitz immediately rejected this sort of
action as thoroughly impossible and Grossadmiral Raeder unreservedly
agreed with him. Both admirals specified the improvement of torpedoes as
the only permissible way to increase losses among the crews. In the face
of the opposition of both admirals Adolf Hitler dropped his proposal,
and following this report no order whatever was given concerning
shipwrecked crews, let alone concerning the killing of the shipwrecked
by shooting. The destruction of the crews through improved efficiency of
the torpedoes is an idea which for the first time cropped up during this
discussion in May 1942, and which recurs in later documents of the Naval
Operations Staff. I must therefore express myself on the legality of
such a tendency. According to classical international law the
destruction of combatants constituted a legal aim of war actions, not
however that of noncombatants.[27] In view of the development of the
last wars one may be doubtful whether this classical theory still has
any validity. I am inclined to regard the hunger blockade as the first
important infringement of this theory, which by cutting off all food
supply was aimed at the civilian population, therefore the noncombatants
of a country. The victims of this during the first World War were
estimated at 700,000 people.[28] Although this blockade was frequently
acknowledged to be inadmissible according to international law,[29] it
was nevertheless practiced, and therefore it amounts to an infringement
of the principle of protection for noncombatants against war
measures.[30]

The second great infringement was brought on by aerial warfare. I do not
wish to discuss the unsolvable question of who started it, but only to
state the fact that war from the air, at least during the two final
years, was aimed against the civilian population. If in dozens of
attacks on residential quarters of German cities thousands or tens of
thousands of civilians were among the victims while soldiers numbered
only a few dozen or a few hundred, then nobody can assert that the
civilian population was not included in the target of the attack. The
mass dropping of explosives and incendiary bombs on entire areas does
not permit of doubt, and the use of the atomic bomb has produced final
evidence thereof.

In view of the hundreds of thousands of women and children who in this
manner miserably perished in their houses by being buried, suffocated,
or burnt to death, I am surprised at the indignation of the Prosecution
about the loss of about 30,000 men who lost their lives in war areas on
ships which were armed and carried war material, and often enough bombs
destined for German cities. Moreover, most of these men died in combat,
that is, by mines, aircraft action, and especially in attacks on
convoys, all actions which according to British conception, too, were
lawful.

The German Naval Operations Staff regarded these men as combatants. The
British Admiralty takes the opposite standpoint in its orders to the
merchant navy. In this connection Oppenheim, the foremost British expert
on international law, before the outbreak of the first World War still
maintained that the crew should be put on the same level as
combatants.[31] He points to the century-old practice, especially
followed in Britain, of taking the crew of merchant ships prisoner of
war. He find’s this principle confirmed in the 11th Hague Convention of
1907, and looks upon the crew of the merchant navy as potential members
of the navy. The legal position in their defense against a warship is
described by him as “entirely analogous to the position of the
population of an unoccupied territory which takes up arms in order to
combat invading troops.” It is well known that such a force is
considered a combat unit. According to Paragraph 2 of the Hague
Convention on Land Warfare, they are considered combatants irrespective
of whether or not the individual actually makes use of weapons.
Accordingly, Oppenheim also refused to make any distinction among the
crew, between men who are enrolled in the enemy navy and men who are
not.

If this interpretation was already valid before the first World War, it
certainly was unassailable in the year 1942, at a time when there were
no more unarmed enemy ships and when the neutrals who happened to enter
the zone of operations were exclusively moving in enemy convoys, which
made them, just like enemy ships, integral parts of the enemy forces.
All of them had lost their peaceful character and were considered as
being guilty of active resistance. Active resistance against acts of war
is not permitted to any noncombatant in land warfare and results in his
being punished as a _franc-tireur_. And in naval warfare should a ship’s
crew be entitled to the combatant’s privileges, without suffering any of
his disadvantages? Should a crew be permitted to participate in every
conceivable act of war, even including the use of guns and depth
charges, and yet remain noncombatant? Such an interpretation renders
illusory the entire concept of a noncombatant. Nor does it make any
difference whether or not only part of the crew has anything to do with
the firing of the guns. The ship as an entity represents a fighting
unit, and on board a merchant ship more people actually had something to
do with the handling of weapons than on board a submarine. These men
were trained under military supervision, they fired the guns along with
gunners of the navy, and the use of their weapons was regulated
according to the Admiralty’s orders.[32] The crews of ships were
accordingly combatants and thus it was legitimate for the adversary to
try to destroy them by the use of arms.

This explains at the same time the sentence about the destruction of
ships and crews, which is considered by the Prosecution as a specific
indication that the _Laconia_ order bore the character of a murder
order. There has been enough discussion concerning the meaning of this
sentence as an argument for forbidding rescue work. It may, taken out of
its context, give cause for misunderstanding. But whoever goes to the
trouble of reading the entire order cannot misunderstand it. To me the
decisive crime appears to be that, in accordance With its origin, it was
never meant to be a murder order and was not interpreted as such by the
commanders. This is proved by the declarations and statements of dozens
of submarine commanders. From its context it could not have been
interpreted as a murder order. In fact in the next paragraphs it was
explicitly ruled that so far as possible certain members of the crew
should be brought back as prisoners. Surely one must credit a military
command with enough intelligence, when giving such a murder order at
all, to refrain from additional orders to conserve a number of witnesses
of its crime.

Contrary to the Prosecution, the British Admiralty clearly did not
believe in such a murder order. Otherwise it would not have given orders
to its captains and chief engineers to escape capture by German
submarines by camouflaging themselves as plain sailors while in the
lifeboats. According to the interpretation by the Prosecution, such an
order would indeed have meant that the captain would have been killed by
the submarine along with all the other members of the crew.

Furthermore, the Prosecution have quoted the order to attack so-called
“rescue ships” as evidence of the intention to kill shipwrecked people.
However, only the individual who is either in the water or in a lifeboat
is shipwrecked. A shipwrecked combatant who is again on board a ship is
nothing but a combatant, and accordingly the legitimate aim of an
attack. I have already pointed out, during the hearing of evidence, the
shooting down of German sea rescue planes with intent to kill the
rescued airmen, in order to show that the enemy acted according to the
same conception.

I shall discuss as briefly as possible the depositions of witnesses on
which the Prosecution tries to base its interpretation of the Laconia
order. In my opinion, the deposition of Oberleutnant zur See Heisig, as
made here before the Tribunal, is irrelevant. His earlier affidavit is
wrong, and we know why from the witness Wagner. Here, before the
Tribunal, Heisig has explicitly denied that in Grossadmiral Dönitz’s
address to the cadets of the submarine school in September 1942 there
was any reference to the effect that shipwrecked people should be fired
upon. Rather did he personally draw this conclusion from the passage
that total war must be waged against ship and crew, with added reference
to air bombing. His interpretation may be explained by the fresh
impression of the bombing of Lübeck, which he had just experienced. The
other listeners did not share this interpretation; in fact, it did not
even occur to them. This is evident from the deposition of three persons
who heard the address. The further assertion of Heisig, that an officer
unknown to him had instructed him on an unknown occasion that the men
should be ordered below deck when exterminating shipwrecked people, I
consider as an improvisation of his imagination, which appears to be
easily excited. If this had really been the case, then so astonishing an
occurrence, which would have been in contradiction to all training
principles of the Navy, must have made such an impression on a young
officer that he would have retained some recollection of the full
circumstances of such an instruction.

The testimony of Korvettenkapitän Möhle must be taken much more
seriously, because he had—there is no doubt about it—at least hinted
to a few submarine commanders that the _Laconia_ order demanded, or at
least approved of, the killing of shipwrecked. Möhle did not receive
this interpretation either from Admiral Dönitz himself, nor from the
Chief of Staff nor his chief assistant, Fregattenkapitän Hessler; that
is to say, from none of the officers who alone would have been qualified
to transmit such an interpretation to the chief of a flotilla.

How Möhle actually arrived at this interpretation has in my opinion not
been explained by the Trial. He maintains that it was due to the fact
that Korvettenkapitän Kuppisch from the staff of the Commander of
U-boats had told him the story of _U-386_, a boat whose commander had
been reprimanded for not having shot Allied airmen drifting in a rubber
dinghy. This explanation of Möhle’s cannot be correct. It is proven
beyond any doubt by the War Diary and by witnesses that the commander of
_U-386_ had been reprimanded because he did not take on board the airmen
concerned and bring them back. The whole affair concerning _U-386_,
furthermore, took place a year after the _Laconia_ incident in September
1943 and Korvettenkapitän Kuppisch, who was supposed to have told it,
had already been killed in action as a U-boat commander in August 1943.
It is not my task to try to explain how Möhle actually acquired his
knowledge about the _Laconia_ order. One thing at any rate has been
proven, namely, that Admiral Dönitz and his staff had not caused this
briefing to be given, nor did they know anything about it. Considering
the frequent personal contacts between the U-boat commanders and the
staff of the Commander of U-boats this can only be explained by the fact
that the few commanders whom Möhle thus briefed did not take his words
seriously.

Is Admiral Dönitz thus responsible for the interpretation of the
_Laconia_ order as given by Möhle? Criminal responsibility in the first
place presupposes guilt, that is to say, possibility of foreseeing the
result. Considering the close contact with his flotilla chiefs and
commanders, for whom alone the _Laconia_ order was intended, Admiral
Dönitz could not foresee that a flotilla chief might give such an
interpretation to that order without taking any steps to be enlightened
by the Commander of U-boats. Such conduct is beyond anything that could
reasonably be expected.

Therefore all guilt is excluded. Criminal responsibility requires
another criterion, namely, that results shall be proven. This also is
entirely lacking. The Prosecution have not even made a serious attempt
to prove that any one of the commanders briefed by Möhle in that sense
ever actually fired on shipwrecked crews. As far as we are informed,
such a thing occurred only once in this war on the German side in the
case of Kapitänleutnant Eck. It is significant that this case was
presented not by the Prosecution, but by the Defense. For the conduct of
Eck has nothing whatsoever to do with the _Laconia_ order as the
Prosecution desires to construe it. He was not concerned with the
destruction of human lives but with the removal of wreckage and floats
from which the Allied airplanes could deduce the presence of a German
U-boat in the area. For this conduct he and two of his officers were
sentenced to death, and thereby punished with a severity which less
agitated times will no longer comprehend.

The two cases presented by the Prosecution, where shipwrecked crews
allegedly were shot at, are so obviously unsuited to prove this
accusation that I need not deal with them any further. The testimony
about the sinking of the _Noreen Mary_ bears the stamp of phantasy in
various points, and in the case of the attack on the _Antonica_ the
intention to destroy shipwrecked people is out of the question because
everything was over in 20 minutes and the night was dark.

I was in the fortunate position to be able to present to the Tribunal a
compilation of the Naval Operations Staff concerning a dozen cases in
which Allied forces had allegedly shot at German shipwrecked crews. It
seems to me that every one of these instances is better than that of the
Prosecution, and some appear rather convincing. I therefore attach all
the more value to the sober attitude assumed by the Naval Operations
Staff when transmitting their opinion on these cases to the Führer’s
headquarters.

They point out that: (1) Part of the incidents occurred during combat
operations; (2) shipwrecked men swimming in the water might easily be
led to believe that a miss on other targets was aimed at them; (3) so
far no written or verbal order for the use of arms against shipwrecked
crews had been traced. I can only request that these principles be
equally applied to the incidents presented by the Prosecution.

In the same written opinion to the Führer’s headquarters the Naval
Operations Staff reject reprisals by destroying enemy shipwrecked; that
was on 14 September 1942, 3 days before the _Laconia_ order. Since the
latter, as a radio order, came to the knowledge of the Naval Operations
Staff, it would doubtlessly have been canceled in accordance with the
opposite viewpoint just expressed to the Führer’s headquarters if it had
been understood to be an order for the shooting of shipwrecked crews.

And now I am coming to the positive counterevidence against the opinion
of the Prosecution. It consists in the first place of the number of
rescued Allied sailors. This amounted, according to a survey by the
British Minister of Transport in 1943, to 87 percent of the crews. Such
a result is simply not compatible with an order for destruction.
Furthermore, it has been established that Grossadmiral Dönitz in 1943,
that is, after the _Laconia_ order, rejected all consideration of action
against shipwrecked crews.

In a written opinion given to the Foreign Office on 4 April 1943, a
directive to the U-boats to take action against lifeboats or shipwrecked
crews was considered impossible by the Naval Operations Staff, since
that would go against the grain of every sailor. In June 1943
Grossadmiral Dönitz, on receiving reports from Korvettenkapitän Witt
about British aviators having fired on shipwrecked crews of German
submarines, most decidedly rejected the idea of attacking a foe rendered
defenseless in combat, stating that this was incompatible with our
principles of warfare.

Summing up, I am convinced that the assertion of the Prosecution that
German submarines had received an order to murder shipwrecked men has
been strikingly disproved. Grossadmiral Dönitz stated here that he would
never have allowed the spirit of his submarine men to be endangered by
mean acts. With losses ranging from 70 to 80 percent, he could only
replenish his troops with volunteers if he kept the fight clean, in
spite of its being tough. And if the Tribunal will recall the
declaration of the 67 commanders in British captivity, it will have to
admit that he created an attitude and morale which survived defeat.

I have endeavored to present to the Tribunal the most important facts
supplemented by a number of legal considerations regarding naval warfare
in order to clarify the most important problems to be discussed here
from the point of view of the Defense. We are concerned with the
examination of the behavior of admirals in naval warfare, and the
question of what is permissible according to international law is
intimately connected with what is necessary according to the military
standpoint. Therefore, in examining this particular point of the
Indictment, I deeply regret that the Charter of this Tribunal deprives
the accused officers of a privilege guaranteed to them as prisoners of
war by the Geneva Convention, namely, the passing of judgment by a
military tribunal applying the laws and regulations binding on its own
officers. According to Article 3 of the Charter, I am not allowed to
question the competency of this Tribunal. I can therefore only request
the Tribunal to make up for the unfairness that I see in the
afore-mentioned article of the Charter by applying the same standards,
where the military appreciation and moral justification of the actions
of these German admirals is concerned, as the Tribunal would apply to
admirals of their own countries. A soldier, out of practical knowledge
of the procedure in warfare as applied not only by his own country but
also by the adversary, is keenly sensitive to the dividing line between
combat and war crimes. He knows that the interpretation of international
law concerning what is allowed or forbidden in naval warfare is in the
last resort governed by the interests of his country. An insular power
like Great Britain, having long and vulnerable sea lanes, has always
looked upon these questions from a different angle than the continental
powers. The attitude of the United States from the renunciation of
submarine warfare by the Root Resolution of 1922 to unrestricted
submarine warfare against Japan in 1941, reveals how a change in
strategic position can entail a change in legal evaluation. No one can
tell to what extent a changed strategic position at sea will cause a
modification of legal conception. No one can know to what degree the
development of air forces and the efficacy of bombs will increasingly
force navies under water and render obsolete all previous conceptions of
submarine warfare.[33] For a naval officer these are obvious
reflections, and they should prevent a man of law from settling
controversial questions of law and policy pertaining to naval war at the
expense of those whose professional duty it is to direct navies.

In the first World War German submarine warfare was accompanied by a
storm of indignation. It seems significant to me today that the British
historian, Bell, in a paper intended only for official use of the
Foreign Office, judges the right to such indignation as follows:

    “It is an old rule of military honor never to belittle the deeds
    of an enemy who has put up a stiff and brave fight. If this rule
    had been followed in England, the public would better appreciate
    the place which the war between submarines and commerce will
    occupy in the history of strategy and of war. It is unfortunate
    that the cries of terror as well as the unseemly insults of
    journalists were repeated by responsible people, with the result
    that the slogans ‘piracy’ and ‘murder’ entered the vocabulary
    and have engendered the corresponding feelings in the hearts of
    the people.”[34]

I must now treat the other points of the Indictment against Grossadmiral
Dönitz which are not concerned with naval war. To begin with, there is
the charge of preparation of aggressive wars. It is known how much
contradiction this very accusation has aroused on the part of
professional officers of probably all Allied countries. In answer to
such attacks in public, Justice Jackson formulated for the press (_The
Stars and Stripes_, European Edition, 5 December 1945) the ideas of the
Prosecution regarding this subject as follows:

    “I have made it clear that we do not prosecute these militarists
    because they served their country, but because they dominated it
    and led it into war. Not because they conducted the war, but
    because they have been driving to war.”

If this standard is used, then for the defense of Admiral Dönitz against
the charge of preparing aggressive wars I need only point to the result
of the evidence. At the beginning of the war he was a relatively young
commander; his only task was the training and commanding of submarine
crews; he did not belong to the General Staff in the meaning of the
Indictment and did not participate in any of the addresses which were
presented here as proof of war intentions. The charge that he had
advocated the occupation of submarine bases in Norway is likewise
disproved. The same applies to the allegation that in 1943 he had
proposed an attack upon Spain in order to capture Gibraltar. The
conquest of Gibraltar against the will of Spain was absolutely
impossible and out of the question during the entire war, and especially
so in 1943.

For Germany the war had already reached a stage of defense, even of
dangerous setbacks, on all fronts at the time when Admiral Dönitz was
appointed Commander-in-Chief of the Navy on 1 February 1943. This fact
may be significant for his participation in the so-called conspiracy.
The Prosecution is not very clear about the precise moment at which they
want to fix the beginning of such participation. In the individual
Indictment intimate connection with Hitler since 1932 is mentioned.
This, however, is obviously an error. Admiral Dönitz did not become
acquainted with Hitler until the autumn of 1934, on the occasion of the
submission of a military report, and in the following years talked to
him briefly and always only about military problems, altogether eight
times, and never alone. Since, aside from this fact, the defendant never
belonged to any organization which is accused of conspiracy by the
Prosecution, I see no connection of any kind with this conspiracy prior
to 1 February 1943.

All the more important is the question of the retroactive effects of
joining the conspiracy, as has been illustrated by the British
Prosecutor by the example of the perpetrators of railway sabotage. This
idea of guilt, retroactive on past events, is very difficult for the
German jurist to understand. The continental concept of law is reflected
by the formulation of Hugo Grotius: “To participate in a crime a person
must not only have knowledge of it but also the ability to prevent
it.”[35]

While the entire legal concept of the conspiracy in itself represents a
special creation of Anglo-Saxon justice in our eyes, this applies even
more to the retroaction of the so-called conspiracy. A judgment laying
claim to international validity, one which should be understood by the
peoples of Europe and especially by the Germans, must be based upon
generally recognized principles of law. This, however, is not the case
regarding a retroactive guilt. Though such a legal construction may seem
fitting in dealing with certain typical crimes, it seems to me entirely
inapplicable in judging events such as are being discussed here.

Admiral Dönitz became the Commander-in-Chief of the Navy in the course
of a normal military career entirely free of politics. The appointment
was based upon the proposal of his predecessor, Grossadmiral Raeder, for
whom his proven abilities in the guidance of U-boat warfare alone were
the determining factor. Specific acceptance of the appointment was no
more required than in the case of an appointment to any other military
position. Admiral Dönitz entertained the sole thought, as any officer
might well have done in a similar position, whether he would be equal to
the task and whether he could accomplish it in the best interest of the
Navy and of his people. All other considerations which the Prosecution
apparently expected of him during this period, namely, as to the
legitimacy of the Party Program and of the policy of the Party from 1922
on, as well as German internal and foreign policy since 1933, can be but
fictitious; they have nothing to do with the facts. Fictions of such
nature are not limited by time nor by reality. Is the responsibility for
past measures on taking over a high position to extend only to acts of
the present cabinet, or is it to extend to acts of former cabinets, and
over what period? Is it to comprise only one’s own internal and foreign
policy or is it to include one’s allies? Such considerations cannot be
refuted logically; however, they lead to unacceptable results and show
the impracticability of the idea of retroaction regarding the so-called
conspiracy.

To measure by exact standards the participation in such a conspiracy is
difficult enough, if events not of a criminal but of a military and
political nature are involved. Of what meaning are such concepts as
“voluntary accession” and “knowledge of the criminal plan” when in times
of greatest danger an officer assumes the task to prevent the collapse
of his nation’s maritime warfare?

Even the Prosecution seems to realize this. For, corresponding to their
general idea, they attempt to link Admiral Dönitz with the conspiracy in
a political way. This is accomplished by the assertion that he became a
member of the Reich Cabinet by virtue of his appointment to the High
Command of the Navy. This allegation is based upon the decree whereby
the Commanders-in-Chief of the Army and of the Navy were invested with
the rank of Reich Minister and upon the order of Hitler were to
participate in Cabinet meetings.

It is evident that one is not actually a Reich minister merely by being
invested with the rank of Reich minister. Also one is not a member of
the Cabinet if one is only permitted to participate in it upon special
orders. This obviously indicates that he was only to be consulted on
technical matters, but never had authority to gain information about
other departments, much less to give advice. One cannot, however, speak
of a political task and a political responsibility without the existence
of such an authority. For an activity as a minister all legal basis is
lacking. According to the Reich Defense Law there existed for the entire
Armed Forces but one minister, the Reich War Minister. This post
remained unoccupied after the resignation of Field Marshal Von Blomberg.
The business of the ministry was conducted by the Chief of the High
Command of the Armed Forces. A new ministry was not created either for
the Army or for the Navy. The Commanders-in-Chief of the Army and of the
Navy therefore would have had to be ministers without portfolio. Since,
however, they each headed a department, namely, the Army and the Navy,
such an appointment would have constituted a contradiction to all legal
customs of the State. The countersigning of all laws in which the
minister participates according to his jurisdiction must be considered
the basic criterion of all ministerial activity. There exists not a
single law which was countersigned by the Commander-in-Chief of the
Navy. I have demonstrated this to the Tribunal by the example of the
Prize Ordinance. That is to say that, even applying the legal standards
of a democratic system, the Commander-in-Chief of the Navy cannot be
designated as a member of the Reich Cabinet, because he lacked all
authority of participation in legislative acts and every collective
responsibility for policies assumed. His task was, and remained, a
military one even though for reasons of etiquette he was put on an equal
basis in rank with other Reich ministers.

The Prosecution themselves realized that a Reich Government in the
constitutional sense no longer existed during the war, and consequently
stated that the actual governing was carried out by those who
participated in the situation conferences at the Führer’s headquarters.
As all witnesses examined here stated, we are concerned here with events
of a purely military nature, where incoming reports were presented,
military measures discussed, and military orders issued. Questions of
foreign policy were only very rarely touched upon if they had any
connection with military problems; they were, however, never discussed
and no decision was rendered on them in these Führer conferences on the
situation. Internal policy and the security system were never on the
agenda. Insofar as nonmilitary persons participated, they were
attendants or listeners who gathered information for their respective
departments.

The Reichsführer SS or his deputy were present for the command of the
Waffen-SS, and during the last year of war also for the Reserve Army.
Admiral Dönitz always participated in these Führer conferences when he
was at the Führer’s headquarters. Notes taken down by whoever
accompanied him on all these meetings and discussions of the
Commander-in-Chief are all in the possession of the Prosecution. As the
Prosecution has not presented a single one of these notes from which it
would appear that the Commander-in-Chief of the Navy participated in
reporting on or in discussing and deciding affairs of a political
nature, one can assume that such notes do not exist.

Thus the testimony of witnesses has been confirmed according to which
the Führer conferences had nothing whatever to do with governing in a
political sense, but were exclusively an instrument of the military
leadership. Therefore, an over-all responsibility of Grossadmiral Dönitz
for all events that occurred since 1943, which in the course of this
Trial have been designated as criminal, certainly does not exist.
Consequently, I shall deal only with those individual allegations by
which the Prosecution tries directly to connect Admiral Dönitz with the
conspiracy. I believe I am all the more justified to proceed in that
manner, as a short time ago the Tribunal refused the cross-examination
of witnesses in the Katyn case with the argument that no one was
accusing Admiral Dönitz in connection with this case. I conclude,
therefore, that at any rate in the eyes of the Tribunal he is only
accused of such cases wherein he allegedly directly participated.

To begin with, this does not apply to the Führer’s order for the
extermination of sabotage Commandos, dated 18 October 1942. The
Prosecution has tried to establish that this order had been presented to
Admiral Dönitz in detail, together with all possible objections, shortly
after his assumption of the position of Commander-in-Chief of the Navy.
It has failed to establish this assertion. In fact Dönitz, as he himself
admits, did read or have presented to him the order in question in the
autumn of 1942 in his capacity of Commander of U-boats, and in the same
form in which the front-line commanders received it.

I do not wish to speak here of the circumstances which led to objections
against this order on the part of the High Command of the Armed Forces.
Indeed, all these circumstances could not be discernible to one who
received this order at the front. For such a man it was a matter of
reprisal against saboteurs who seemed to be soldiers, but did not fight
according to the regulations which are binding upon soldiers. Whether
such reprisals were admissible at all according to the Geneva
Convention, and to what extent, could not be judged by, nor did that
come within the competence of, the recipient of the order. Every
superior officer, at any rate, probably recognized that the order not to
grant any pardon, and to hand over such persons in certain cases to the
SD, was in itself an infringement of the rules of war. However, since
the essence of any reprisal is to avenge a wrong on the part of the
enemy with a wrong on one’s own part, this does not prove anything
concerning the legitimacy or illegitimacy of the reprisal order. If no
one but the leadership of the State is competent to order reprisals,
then hundreds or thousands of German officers cannot be required today
to have considered themselves also competent, and to have been
presumptuous enough to verify orders whose actual and legal basis was
entirely unknown to them. In this case the principle prevails, at least
for the front-line commanders, that the subordinate may, when in doubt,
rely on the order as given.[36]

Now, the Prosecution seems to be of the opinion that Admiral Dönitz a
few months later, when he had become Commander-in-Chief of the Navy, had
the opportunity and also the obligation to inform himself as to the
basis of the Commando Order. This conception fails to appreciate the
duties of a Commander-in-Chief of the Navy. He has to wage naval war.
The whole German naval war, especially submarine warfare, in the spring
of 1943, owing to huge losses inflicted by the enemy air force, was on
the verge of collapse. These were the worries with which the new
Commander-in-Chief had to cope, in addition to an abundance of new
problems concerning the Navy which were coming up. How can one require
such a man as in the quietest of times to cope with an order of remote
date, which had nothing whatever to do with naval warfare? On the
contrary, a special paragraph explicitly excluded prisoners taken during
naval operations.

A word or two on the channels of command. The naval units were under the
control of the Naval Operations Staff only in those matters which
belonged to the duties of the Navy, that is to say, naval warfare and
coastal defense by artillery. Concerning so-called territorial questions
they were not subordinate to the Naval Operations Staff but to the Armed
Forces commander of the theater of war in which their basis was
established. Orders concerning such measures of war on land were given
without collaboration on the part of the Naval Operations Staff and
their execution was not reported to them. Just as hardly anyone can
think seriously of holding a general responsible for German submarine
warfare, just as little, in my opinion, does it seem justified to hold
an admiral responsible for orders given in land warfare.

Mr. President, I have come to the end of a section.

THE PRESIDENT: Certainly. We will break off.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

FLOTTENRICHTER KRANZBÜHLER: Before the noon recess I was discussing the
fact that units of the Navy were not subordinate to the Naval Operations
Staff in matters affecting warfare on land.

This channel of orders for territorial questions also explains the
complete ignorance of Admiral Dönitz and of his colleagues in the Naval
Operations Staff about the delivery to the SD of the crew of the
Norwegian motor torpedo boat _MTB 345_ after its capture by units under
Admiral Von Schrader. As the testimony of witnesses and the records of
the Oslo War Crimes Court show, the Naval Operations Staff only received
an operational report about the capture of the boat and the number of
prisoners. All other details, the discovery on board of material for
sabotage, of civilian suits and sabotage orders, and the treatment of
the crew as saboteurs according to the Commando Order were regarded as
territorial matters, and as such dealt with by Admiral Von Schrader and
the Armed Forces commander in Norway. The decision regarding the fate of
the crew came from the Führer’s headquarters in reply to an inquiry from
Gauleiter Terboven. Not only is there no proof that the Naval Operations
Staff took part in those territorial questions, but this must in fact be
considered refuted on the basis of the evidence submitted and the chain
of command as explained.

I regard as the second attempt of the Prosecution to establish a
participation in the alleged conspiracy to commit war crimes the
submission of Admiral Wagner’s minutes on the question of withdrawal
from the Geneva Convention in the spring of 1945. The details are
contained in Wagner’s testimony, according to which the Führer pointed
out in a conference on 17 February that the enemy propaganda about the
good treatment of prisoners of war was clearly having an influence on
the units fighting on the Western Front, and that many cases of
desertion to the enemy were being reported. He ordered that the question
of a withdrawal from the Geneva Convention be investigated. In this way
he wanted to convince his own soldiers that they could no longer rely
upon receiving good treatment as prisoners of war, and thus create a
countereffect against enemy propaganda. Two days later Hitler returned
to this idea, although he then put forward another reason as the main
one. He termed enemy warfare in the East and the bomb attacks on the
German civilian population an outright renunciation of international law
by the enemy, and he, for his part, also desired to free himself from
all obligations by withdrawing from the Geneva Convention. Once more he
asked for the opinion of the Armed Forces in this matter and addressed
himself directly to Grossadmiral Dönitz, who did not answer. The
attitude of the military leaders on this matter was unanimously
negative.

On the next day, just before the daily conference on the situation, a
10-minute conversation took place between Grossadmiral Dönitz,
Generaloberst Jodl, and Ambassador Hewel; in the course of this
conversation Dönitz expressed his negative attitude. According to the
notes of Admiral Wagner he said that “it would be better to take the
measures considered necessary without previous announcement and, at any
rate, to save face before the world.” The Prosecution sees in this a
readiness and a design to expose hundreds of thousands of Allied
prisoners of war to arbitrary murder.

Admiral Dönitz himself has no recollection of this sentence. That is not
surprising, as this is not a record, but a summary of a lengthy
conversation in four sentences, the summary being worded on the day
after the conversation by Admiral Wagner. This summary admits that the
Grossadmiral disapproved of any “wild measures” which would put us in
the wrong from the beginning, and considered justifiable only measures
actually warranted by the conduct of the enemy in each case. Since
Wagner himself, as the author of the transcript, should know best what
he meant thereby, I personally cannot add anything to this statement.
The interpretation of the Prosecution is equally little supported by
other circumstances. There was no question at all of keeping any
measures secret; they had to be made known, regardless of whether they
were meant to deter our own deserters or as reprisals. But Wagner’s note
does not mention any kind of concrete measures to be taken, and all
witnesses present at this situation conference in Hitler’s headquarters
state that not a word was spoken on that subject. The idea of killing
prisoners of war could not, therefore, have been present in the minds of
any of the participants in this discussion which Wagner noted down.

Now it has come to light here, through the statements of the Defendants
Ribbentrop and Fritzsche, that apart from the action for which he was
preparing the ground during the discussion with the generals, Hitler had
evidently at the same time planned a second action, in which only
Goebbels and Himmler were to participate, and which by chance also came
to Ribbentrop’s knowledge. In this action the shooting of thousands of
prisoners of war seems to have been contemplated as a reprisal against
the air attack on Dresden. Hitler, very wisely, did not give the
slightest indication of such a plan to the generals. This plan was not
followed up and no reprisals were taken.

And now I return to the facts. It is a fact that Admiral Dönitz
disapproved of the withdrawal from the Geneva Convention, and that
Hitler, in view of the attitude of all military leaders who clearly
opposed it did not follow up the idea any further. It is also a fact
that no measures in violation of international law were taken by the
Germans as a result of this remark which the Prosecution has criticized,
and finally it is a fact that enemy sailors who were captured were sent
to a prisoner-of-war camp of the Navy where they were treated in an
exemplary way up to the last day of the war.

Whoever, in his own sphere, behaved as Admiral Dönitz did with regard to
the prisoners of war of the Navy, cannot reasonably be charged with
having thrown overboard all standards of law and ethics applying to
prisoners of war. A British commander has certified that when the
prisoner-of-war camp of the Navy was taken over by British troops, all
prisoners without exception said that they had been treated with
fairness and consideration. The Tribunal will, no doubt, appreciate such
unanimous expression of views, especially after what has come to light
elsewhere in these proceedings with regard to the breakdown not only by
Germans in the proper treatment of prisoners of war.

I shall now deal with the conspiracy to commit Crimes against Humanity,
and I should like first of all to point out that Admiral Dönitz is not
accused, under Count Four of the Indictment, of direct commission of
Crimes against Humanity. Not even participation in the conspiracy to
commit Crimes Against Humanity was contended in the detailed charges.
That, I would say, is an admission that there was in fact no relation,
between his activity and the Crimes against Humanity of which the
Prosecution has brought evidence. Nevertheless the Prosecution presented
some documents which are apparently meant to prove his participation in
the responsibility for certain Crimes against Humanity.

In judging these documents the most important question always is: What
did Admiral Dönitz know of those alleged crimes? On this subject I
should like to make one point clear. During the entire war he resided
and lived at his staff headquarters, first on the North Sea coast, after
1940 in France, in 1943 for a short time in Berlin, and then in the Camp
Koralle near Berlin. When he was at the Führer’s headquarters, he stayed
with the naval staff there. Even outside his duty, his time was thus
spent almost exclusively with naval officers. This may have been a
weakness, but it is a fact which gives an additional explanation of his
lack of knowledge of many events.

The fact that the defendant forwarded a proposal by the Ministry for
Armaments to employ 12,000 men from concentration camps as workers in
the shipyards proves, according to the Prosecution, that Admiral Dönitz
knew and approved of the arrest of countless innocent people and their
ill-treatment and extermination in concentration camps.

He actually knew, of course, that concentration camps existed and he
also knew that, apart from the professional criminals, people arrested
for political reasons were kept there. As has already been explained
here, the protective custody of political adversaries for reasons of
safety is a measure adopted by all states, at any rate in an emergency,
and knowledge of such a measure can therefore incriminate no one.
However, an unusually high number of political prisoners—out of
proportion to the number of the population—may stamp a regime as a
regime of terror, but taking into account a population of 80 million in
the fifth year of a grim war, even twice or three times the number of
12,000 men, which is the number mentioned by Admiral Dönitz, would not
indicate a regime of terror, and the Prosecution will hardly claim that.

Admiral Dönitz stated here that the Commander-in-Chief of the Navy, as
well as his collaborators and the overwhelming part of the German
people, did not know of the abuses and killings that occurred in the
concentration camps. All that the Prosecution has put forward against
this are assumptions, but no proofs.

On this point, therefore, I will only refer to the statement of the then
Minister for Armaments, Speer, according to which the inmates of
concentration camps were much better off in industrial work than in
camp, and that they tried with all means to obtain employment in such
work. The proposal forwarded therefore did not imply anything inhuman,
but rather the opposite.

The same request also contains a suggestion to take energetic measures
against sabotage in Norwegian and Danish shipyards, where seven out of
eight vessels under construction had been destroyed. If need be, the
personnel should be entirely or in part employed as “KZ workers”
because, so it says, sabotage of such dimensions can only occur if all
the workers silently condone it. This therefore amounts to a proposition
for security measures to consist in keeping the workers who actively or
passively participated in sabotage in a camp close to the shipyard, so
that their connections with sabotage agents would be cut off. I do not
believe that juridical objections can be raised against such measures of
security. According to the practice of all occupation troops even
measures of collective punishment would be justified in such cases.[37]

Actually the measures proposed were never carried out and the
Prosecution presumably presents them only to accuse Admiral Dönitz quite
generally of a brutal attitude toward the inhabitants of occupied
territories. For this same purpose it even refers to a statement of the
Führer at a conference on the military situation in the summer of 1944,
according to which terror in Denmark must be fought with counterterror.
Admiral Dönitz’s only connection with this statement was that he heard
it and that his companion, Admiral Wagner, wrote it down. The Navy had
no part in this statement, nor did it take any measures as a result of
it.

In contrast to this line of evidence of the Prosecution, I should like
to emphasize the attitude which Admiral Dönitz actually showed toward
the population of the occupied territories. There is before the Tribunal
a survey of the administration of justice by the naval courts in
protecting the inhabitants of the occupied territories against excesses
by members of the Navy. The survey is based on an examination of about
2,000 files on delicts and some of the judgments given are quoted with
the facts and the reasons of the verdicts. Judging from that survey, one
can fairly say that the naval courts protected the inhabitants in the
West and in the East with justice and severity, including their lives as
well as their property and the honor of their women. This administration
of justice was constantly supervised by the Commander-in-Chief of the
Navy as the Chief Court Administrator. Under terms of legal procedure it
was his duty to confirm death penalties imposed on German soldiers.

The time at my disposal does not permit a more detailed discussion of
some of these judgments. A phrase expressed in one of them may be taken
to apply to all: All soldiers must know that in occupied territory as
well the life and property of others will be fully safeguarded. This was
the general attitude in the Navy, and the severity of the penalties
inflicted proves how seriously it was taken.

I need only say a few words about the order issued in the spring of
1945, in which a German prisoner of war, a noncommissioned officer, was
cited as an example, because he had unobtrusively and systematically
done away with some Communists who were attracting attention to
themselves in their prison camp. As Admiral Wagner recalled, it was
actually an informer who was liquidated. But the facts were camouflaged
as described in order to avoid giving enemy intelligence a clue to the
camp and the person of the noncommissioned officer. There cannot be any
doubt that this order in its true background could be justified in view
of the enormous number of political murders which have been committed
with the connivance or assistance of governments engaged in the war, the
perpetrators being today extolled as heroes. I cannot, however, consider
as serious the argument that the unfortunately camouflaged wording could
be proof of a general plan to liquidate Communists. A court judgment for
the protection of Communists will reveal the true circumstances. A
sergeant had stolen hospital blankets which were intended for Soviet
prisoners of war and had extracted a dead prisoner’s gold teeth. This
sergeant was sentenced to death by a naval court and executed after the
sentence had been confirmed by the Commander-in-Chief.

Finally, the Prosecution also established a connection with the Jewish
question through a remark in which Grossadmiral Dönitz speaks of the
“creeping poison of Jewry.” On this point I should like to add some
comments. Dönitz knew as little of the plan for the destruction of the
Jews as he did of its execution. He did know of the resettlement in the
Government General of Jews living in Germany. I do not think that a
resettlement of this sort can be condemned at a time when expulsions of
Germans on a much larger scale are taking place before the eyes of a
silent world. Here, too, I refer to a sentence of long penitentiary
terms against two German sailors who, together with some Frenchmen, had
robbed French Jews. From the findings of the court I again quote a
sentence which characterizes the general attitude: “That the crimes were
committed against Jews does not excuse the defendants in any way.”

Similarly, it seems to me that the efforts of the Prosecution to include
Admiral Dönitz in its construction of the conspiracy by terming him a
fanatical Nazi have failed. He was neither a member of the Party nor was
he ever politically prominent before his appointment as
Commander-in-Chief of the Navy. The assertion of the Prosecution that he
became Commander-in-Chief of the Navy because of his political attitude
lacks all foundation. As a professional officer, to whom every political
activity was forbidden by the Reich Defense Law, he had no reason for
dealing with National Socialism in any way. However, he, too, like
millions of other Germans, recognized the unique success of Hitler’s
leadership in social and economic fields and, of course, also the
liberation from the obligations of Versailles which Hitler had brought
about and which particularly concerned Admiral Dönitz as a soldier.
Therefore, at the time of his appointment as Commander-in-Chief of the
Navy, he was politically in no way active, although loyal to the
National Socialist State.

This appointment introduced two new elements into his relations with
National Socialism. There was first of all his personal contact with
Adolf Hitler. Like almost everyone else who had personal dealings with
this man, he too was most deeply impressed by him. The respect for the
head of the State and loyalty to the Supreme Commander inherent in the
professional officer were complemented by admiration for the statesman
and strategist. It is difficult fully to appreciate such an attitude in
view of the information which has come to light in the course of this
Trial. I feel neither called upon nor able to judge a personality like
Adolf Hitler. But one thing seems to me certain, namely, that with a
consummate art of camouflage he skillfully concealed the repulsive
traits of his character from those of his collaborators to whom he did
not dare reveal this part of his nature. The Hitler with whom the new
Commander-in-Chief of the Navy became acquainted at that time, and whom
he admired, was therefore an entirely different man from the one which
the world—rightly or wrongly—pictures today.

The second new element in the relations between Grossadmiral Dönitz and
National Socialism was that in the performance of his military duties he
necessarily came into contact with the political authorities of the
Reich. Whether he needed more men, more ships, or more arms, in the end
he always had to discuss these matters with the political authorities,
and in order to be successful in his demands, he had to make sure that
any political mistrust was eliminated from the very start. This he
deliberately did, and he demanded the same of his subordinates. To him
the Party was not an ideological factor, but rather the actual exponent
of political power. He was linked with it in the common aim to win the
war, and for the achievement of this aim he considered it his ally. But
to obtain the advantages which one expects of an ally, one must be
willing to make certain sacrifices, especially sacrifices in overlooking
faults and in ignoring conflicting issues.

However, his connection with the Führer and his contact with the Party,
which were concomitants of his position and of his duties as
Commander-in-Chief of the Navy, never led him to participate in anything
for which he could not assume responsibility before his conscience. Some
points of the Prosecution even go to prove this. The Führer demanded
action against shipwrecked crews; Admiral Dönitz rejected it. The Führer
asked for withdrawal from the Geneva Convention; Admiral Dönitz rejected
it. He stubbornly and successfully resisted the Party’s influence upon
the Armed Forces. Thanks to his resistance the National Socialist
Führungsoffiziere did not become political commissars, but were, as
genuine officers, merely advisers to their commander, who retained the
sole responsibility for the leadership of his unit. The transfer of
proceedings against soldiers on political grounds from the military
courts to the People’s Courts, which had been advocated by the Party,
was prevented by Grossadmiral Dönitz until the winter of 1944-45, and a
Führer order to this effect issued at that time was never carried out in
the Navy. Thus he never identified himself with the Party and can
therefore surely not be held responsible for its ideological endeavors
or its excesses, just as in foreign politics a government would not be
ready to assume responsibility for such things if they had been done by
an ally.

I do not by any means want to give the impression that Admiral Dönitz
was not a National Socialist. On the contrary, I just want to use him as
an example to disprove the theory that every National Socialist as such
must be a criminal. This Tribunal is the sole instance in which
authoritative personalities of the great Allied Powers are dealing
directly and in detail with the last 12 years of the German past. It is,
therefore, the only hope of very many Germans for the removal of a fatal
error which is causing the weaker elements of our nation to become
hypocrites and is thus proving a decisive obstacle on the road to
political recovery.

And now I should like to deal with the charge that in February 1945
Admiral Dönitz protracted the inevitable surrender out of political
fanaticism, and I wish to do so for a particular reason. This charge,
which seems hardly to have anything to do with the Indictment before an
International Tribunal, weighs particularly heavily in the eyes of the
German people, for this nation truly knows what destruction and losses
it endured in those last months from February until May 1945. I have
submitted declarations of Darlan, Chamberlain, and Churchill from the
year 1940 in which those statesmen, in a critical hour for their
countries, called for desperate resistance, for the defense of every
village and of every house. Nobody will conclude from this that these
men were fanatical National Socialists. The question of unconditional
surrender is indeed of such colossal import to a nation, that in fact it
is not possible until after the event to judge whether a statesman who
had to face this question did or did not do the right thing. Admiral
Dönitz, however, was not a statesman in February 1945, but the
Commander-in-Chief of the Navy. Should he have asked his subordinates to
lay down their arms at a time when the political authority of the State
still considered military resistance as opportune and necessary? Nobody
will seriously demand that.

Much more difficult seems to me the question of whether, in view of the
high esteem Hitler had for him, he should not have considered it his
duty to point out clearly to Hitler the hopelessness of prolonged
resistance.

Personally, I would have affirmed this to be his duty toward his nation,
if Admiral Dönitz himself at that time had considered that surrender was
justified. He did not consider it justified, and he gave his reasons:
Surrender implied a halt of the armies and of the population; the German
Army on the Eastern Front—still numbering more than 2 million men in
February 1945—and the entire civilian population of the German eastern
provinces would thereby have fallen into the hands of the Soviet armies,
and in a bitterly cold winter month, too. Admiral Dönitz, therefore, was
of the opinion, shared by Generaloberst Jodl, that the losses in men
suffered in that way would be far greater than the losses which would
necessarily be caused if the capitulation were postponed until the
warmer season. Only in future years, when more exact data regarding
casualties of the Army and of the civilian population both before and
after the surrender in the East and in the West are available, will it
be possible to view this opinion objectively. But it may already be said
today that such considerations arose entirely from a full sense of
responsibility for the life of German men and women.

The same sense of responsibility caused him, when he became head of the
State on 1 May 1945, to cease hostilities against the West, but to
protract the surrender in the East for a few days, days in which
hundreds of thousands were able to escape to the West. From the moment
when—to his own complete surprise—he was given a political task, he
calmly and intelligently averted a threatening chaos, prevented
desperate mass action without a leader, and assumed responsibility
before the German people for the gravest action which any statesman can
take at all.

Thus, to revert to the beginning of the Indictment, he did nothing to
start this war, but he took the decisive steps to end it.

Since that moment the German nation has learned of many things which it
did not expect, and more than once it has been referred to the
unconditional surrender which the last head of the State carried
through. It is for this Tribunal to decide whether in the future this
nation will be reminded of the binding value of the signature of a man
who is being outlawed as a criminal before the whole world by his
partners in the agreement.

At the beginning of my speech I mentioned the doubts which any trial of
war criminals is bound to call forth in the mind and heart of any
lawyer. They must weigh upon all who bear any responsibility in such a
trial. I could not more fittingly describe the task of all the
responsible persons than in the words of a British attorney speaking of
the trials before the German Supreme Court in the year 1921. I quote:

    “The war criminals’ trials were demanded by an angry public
    rather than by statesmen or the fighting services. Had public
    opinion in 1919 had its way, the trials might have presented a
    grim spectacle, of which future generations would have been
    ashamed. But thanks to the statesmen and the lawyers, a public
    yearning for revenge was converted into a real demonstration of
    the majesty of right and the power of law.”[38]

May the verdict of this Tribunal stand in a similar way before the
judgment of history.

THE PRESIDENT: I call on Dr. Siemers for the Defendant Raeder.

DR. WALTER SIEMERS (Counsel for Defendant Raeder): Gentlemen of the
Tribunal, in my final speech for the Defendant Grossadmiral Dr. Raeder,
I should like to keep to the order I chose for my document books and for
the whole presentation of my evidence. I think a survey of the whole
case will thus be made easier.

Raeder, who has just turned 70 years of age, has been exclusively a
soldier, body and soul, ever since the age of 18, that is to say, for
nigh on half a century covering an eventful period. Although he was
never concerned with anything but his duties as a soldier, the
Prosecution has accused him, in this great Trial against National
Socialism, not only as a soldier, namely, as Commander-in-Chief of the
German Navy, but, a singular and decisive point, as a politician, as a
political conspirator, and as a member of the Government, three things
which in truth he never was.

I am, therefore, faced with the singular task of defending Raeder as a
politician, although it was precisely, as I shall demonstrate, his life
principle as an officer to keep aloof from politics, and to command an
officers’ corps and a Navy likewise committed to remain entirely free
from politics.

If the Prosecution levels such manifold and grave accusations against
Raeder, this is primarily because it has conceived a notion entirely
foreign to the German Armed Forces, namely the notion of an admiral
being responsible for foreign policy and for the outbreak of a war.

I shall disprove this conception and show that it was unjustified and
unfounded even in Hitler’s National Socialist State. True, Hitler again
and again placed politics in the forefront of the nation and endeavored
to give the nation a one-track political education. Foreign countries
knew this, and they may well therefore be all the more surprised by the
fact that Hitler refrained from such political shaping in one single
instance. Every administration, every organization, and every police
institution was directed by Hitler on political principles, with the
single exception of the Armed Forces. The Armed Forces, and the Navy in
particular, remained for a long time and far into the war absolutely
unpolitical. And not only did Hitler give Raeder an assurance to this
effect, but he had also given the same assurance to Hindenburg as Reich
President. This explains the fact, which has also been made clear in
this Trial, that up to 1944 no officer could be a member of the Party,
and if he was, then his membership was suspended.

After these preliminary reflections it will be understood why Raeder, as
his interrogation showed, was disconcerted and amazed at these
accusations which amount to a political charge. A man who is nothing but
a soldier cannot understand why he should suddenly and without any
relation to his military duties be made responsible for things which at
no time came within the compass of his activity.

I shall naturally also discuss the military accusations, with the
exception of submarine warfare, which, for the sake of uniformity, has
already been dealt with by Dr. Kranzbühler on behalf of Raeder, too.

It will be seen from other military accusations, as for instance in the
cases of Norway and Greece, that again and again there arises this
discrepancy between the political and the military aspects: Raeder acted
as Commander-in-Chief on the basis of military considerations, whereas
the Prosecution now calls him to account on the basis of political
considerations, by evaluating the military actions as political ones.

The first instance of this discrepancy already lies in the accusations
raised against Raeder with regard to the period before 1933, that is,
before National Socialism. In connection with these accusations it must
not be overlooked that Hitler, the head of the alleged conspiracy for
the waging of wars of aggression, did not rule Germany at that time, and
yet already at that time there is supposed to have existed a common
conspiracy between Hitler and a part of the defendants.

This is all the more surprising because Raeder, as a naval officer and
after 1928 as Chief of the Naval High Command, at that time had nothing,
absolutely nothing at all, to do with National Socialism, and did not
even know Hitler and his co-workers in the Party. The accusations
concerning the violations of the Versailles Treaty are included by the
Prosecution in the conspiracy, although the violations did not take
place under Hitler’s leadership, but under the leadership or with the
approval of the democratic governments in Germany at the time. This
shows that the Prosecution does not only want to attack National
Socialism through this Trial, as has been emphasized again and again
during the war and after the collapse, but that the Indictment extends
its scope to large circles in Germany which had nothing to do with
National Socialism, some of whom were even direct enemies of National
Socialism.

(1) For this very reason it seemed to me extremely important to clear up
the question of the violation of the Treaty of Versailles in the course
of the presentation of evidence in the Raeder case. I have endeavored to
do so with the approval of the Tribunal, and I am firmly convinced that
I have succeeded. I need not discuss each of the violations, which have
been treated in detail and which the Prosecution has produced in
Document C-32. It should be sufficient if I refer to the extensive
evidence as well as to the following facts:

Every single point was either a mere trifle or else a military
measure—such as for example the antiaircraft batteries—based
exclusively on the notion of defense. Raeder has plainly admitted that
treaty infractions did occur, but the trivial nature of the infractions
showed that these measures could not possibly have been connected with
an intention to wage wars of aggression.

Moreover, I need only point out that from the legal point of view a
treaty violation cannot _ipso jure_ be a crime. Certainly the violation
of a treaty between nations is no more permissible than the violation of
a contract between private firms in commercial law. Such a violation is,
however, not a punishable action, much less a crime. Even on the basis
of the argument of the Prosecution, such action would be punishable only
if the violation had been undertaken with criminal intent, that is, if
it had been aimed at a war of aggression in contradiction to the Kellogg
Pact. However, not even the Prosecution will be able to maintain this,
and it has already indirectly intimated as much by refraining from
taking up these points during the cross-examination of witnesses.

(2) The position is somewhat different with regard to a charge which the
Prosecution discussed in detail only during cross-examination, namely,
the charge concerning the participation of the German Navy in U-boat
constructions in Holland; in this connection the Prosecution has relied
upon Document C-156, the book by Kapitän zur See Schüssler entitled,
_Der Kampf der Marine gegen Versailles_, as well as on statements
contained in the notes of the naval historian, Admiral Assmann, found in
Document D-854.

These documents prove that the German Navy had a share in a U-boat
designing office in Holland, the firm N. V. Ingenieurskantoor voor
Scheepsbouw. This participation occurred during the period before the
Navy was under Raeder’s command. The Tribunal will recall that Raeder
did not become Chief of the Naval Command until 1 October 1928, whereas
participation in the designing office in Holland dates back to 1923 and
the following years.

May I emphasize, however, that in not a single instance was a U-boat
built for the German Navy, and that consequently no U-boats were
obtained or put into commission by the German Navy. In this connection I
refer to the Versailles Treaty, Exhibit Number Raeder-1; Article 188 _et
sequentes_ of the Treaty of Versailles contain the terms with regard to
the Navy. According to Article 188, Germany was bound to deliver her
U-boats to the Allied nations or to dismantle them. This obligation
Germany fulfilled completely. Moreover, Article 191 stipulates the
following; I quote: “The construction and purchase of all submarine
vessels, even for commercial purposes, is forbidden in Germany.”

It appears from this clear treaty clause that participation in the Dutch
firm was not a violation of the Treaty of Versailles. According to
Article 191, Germany was only forbidden to construct or purchase
U-boats, moreover, strictly speaking, only in Germany.

As a matter of fact, no U-boat was built in Germany in violation of the
Treaty, and no U-boat was built for Germany abroad either. Participation
in a foreign designing office was not forbidden, nor was this the
purpose of the Treaty of Versailles. The point was merely that Germany
should not create a U-boat force for herself. The Navy, however, was
permitted to participate in a designing office so as to keep abreast of
modern submarine construction, to gather information for the future, and
to lay the foundation for an eventual construction of submarines, when
permitted, by training technical experts (See Exhibit Number Raeder-2,
Lohmann Affidavit). The afore-mentioned documents, submitted by the
Prosecution, prove that the submarines designed by the Dutch firm and
built abroad were put into service abroad, namely by Turkey and Finland.

Even if one were to take the view that designing work also was
prohibited, then what was said under Figure (1) also applies. The
designing was limited to only a few submarines, so that this small
number in itself proves that there cannot have been any intention of
waging wars of aggression.

(3) In case the High Tribunal should be unable to follow this train of
thought as a sole argument, I may point out in addition that the lack of
an aggressive intention is also evident from the fact that the trivial
violations of the treaty were in a certain way compensated. I refer to
the second affidavit of Admiral Lohmann, Exhibit Number Raeder-8, which
shows that according to the Treaty of Versailles Germany was allowed to
build 8 armored ships, whereas in fact she only built 3; it shows also
that instead of 8 cruisers only 6 were built up to 1935, and that
instead of 32 destroyers or torpedo boats, only 12 destroyers and no
torpedo boats were built. In fact, with regard to the really important
weapons, and especially those which may be considered as offensive
weapons, the Navy kept far below the maximum permitted by the Treaty of
Versailles, and this indeed to such an extent that by comparison the
trivial violations in naval matters hardly count.

(4) According to the Weimar Constitution of 11 August 1919, Articles 47
and 50 (Exhibit Number Raeder-3), the President of the Reich had supreme
command of all the Armed Forces. In order to be valid, the decrees of
the Reich President required the countersignature of the Reich
Chancellor or the Reich ministers concerned, in this case, the Minister
of Defense. I quote: “Responsibility is assumed through the
countersignature.” Thus, from the point of view of constitutional law it
is absolutely clear that the responsibility rests with the Minister of
Defense or the Reich Government and the President of the Reich. It is,
of course, true that before 1928, that is, before Raeder became the
responsible Chief of the Naval Command, the Navy took a number of
measures without the knowledge of the Reich Cabinet. But the evidence
which I presented, especially the statement of the former Reich Minister
Severing, shows that, contrary to the statements of the Prosecution, no
secret measures were taken after Raeder became Chief of the Naval High
Command. Severing has confirmed that the Müller-Stresemann-Severing
Cabinet, in a Cabinet meeting of 18 October 1928, obtained a clear
picture of the secret measures of the Armed Forces by interrogating
Raeder as Chief of the Naval High Command and Heye as Chief of the Army
Command.

Both Raeder and Heye, after they had given an explanation, were obliged
and directed by the Cabinet, in conformity with the afore-mentioned
paragraphs of the Reich Constitution, to take no future measures without
the knowledge of the Minister of Defense or the Cabinet. At the same
time the Cabinet established that the secret measures taken before
Raeder’s time were only trifling matters, and expressly assumed
responsibility for them. If the Cabinet, in conformity with the
Constitution, assumed the responsibility, this amounted to a legally and
constitutionally effective procedure which exonerated Raeder as Chief of
the Naval High Command and relieved him of responsibility. It appears,
therefore, to be inadmissible that the defendant, who no longer bears
the responsibility, should be made responsible for actions for which the
Cabinet assumed responsibility.

The attitude of the Cabinet in the Cabinet meeting of 18 October 1928
further shows that none of these actions can have had as their basis any
criminal intent to wage a war of aggression, for even the Prosecution
will not desire to assert that men like Stresemann, Müller, and Severing
intended to wage wars of aggression, but instead will have to believe
Severing when he says that Stresemann, Müller, and he himself assumed
responsibility for these violations only because they were based purely
on conceptions of defense. One will also have to believe Severing’s
words that such conceptions of defense were justified, since in the
twenties the danger that Germany might be attacked, for instance by
Poland, was quite real, and she would then not have been in a position
to defend herself with the small Armed Forces allowed her by the
Versailles Treaty. This danger was particularly evident in connection
with Polish border incidents in East Prussia and Silesia and during the
occupation of Vilna, and it even increased when all attempts of
Stresemann and Müller failed to achieve adherence to the promise to
disarm which the other powers had given in the Versailles Treaty.

How difficult Germany’s position was and how justified measures of
defense were, Justice Jackson himself admitted in his opening speech,
when he said, I quote:

    “It is quite possible that Germany in the twenties and thirties
    was confronted with desperately difficult tasks, tasks which
    would have justified the boldest measures, but not war.”

I shall not even go as far as Mr. Justice Jackson, but I believe that
these measures taken by the Navy are certainly covered by his own
concept of “boldest measures.”

The British prosecutor, Mr. Elwyn Jones, attempted during the
cross-examination of Severing to prove that Raeder did not observe the
obligations imposed on him in the Cabinet meeting of 18 October 1928,
because Severing, according to his testimony, was not informed of the
construction abroad of the small submarines for Turkey and Finland. In
this connection, two things must be considered:

a. During his testimony Severing did not remember the details, but only
the fundamental and decisive questions; with regard to the details, he
naturally relied on the competent minister, in this case, the Reich
Defense Minister.

b. According to Severing’s testimony it was an exception that the Chief
of the Naval High Command appeared before the entire Cabinet on 18
October 1928. Raeder as Chief of the Naval High Command was not obliged
to inform all the members of the Cabinet, but was, in accordance with
the Constitution, merely obliged to inform the Reich Defense Minister,
and that Raeder did. What the Reich Defense Minister then for his part
submitted to the other members of the Cabinet and to the Reichstag was
not only beyond Raeder’s knowledge, it was also outside Raeder’s
responsibility, and solely within that of the Reich Defense Minister and
the Cabinet.

In conclusion may I point out the following: If, despite all this, the
Prosecution wishes to look upon these violations of the Treaty of
Versailles on the part of the Navy as evidence of an intention to wage a
war of aggression, then the Social Democrat or Democrat governments of
that time bear the responsibility. Thereby the Indictment on this point
collapses, for to take the governments of that time to task for the
intention of waging wars of aggression would lead the Prosecution on
this point to an _ad absurdum_.

(5) The treaty violations during the period from 1933 until the
Anglo-German Naval Agreement of 1935 show the same factual and juridical
picture. During these 2 years no important expansion of naval armament
took place either. The only disputable accusation made by the
Prosecution in this respect is contained in Document D-855, which was
submitted during cross-examination. This is the report of
Flottenintendant Thiele. According to this it was decided in March 1935,
that is, a few months before the naval agreement, to prepare plans for
the _Scharnhorst_ and the _Gneisenau_ with a displacement of 27,000
tons, although the maximum of 10,000 tons fixed by the Treaty of
Versailles was still formally in force at that time for another 3
months, in contrast to a maximum displacement of 35,000 tons provided
for in the Naval Agreement of 1935.

Here it should be taken into consideration that in March 1935 Germany
could already count on the speedy conclusion of an Anglo-German
agreement, whereas the period between the planning and the completion of
a battleship is a much longer one, which cannot be counted in months,
but only in years. As a matter of fact, the _Scharnhorst_ and
_Gneisenau_ were only commissioned in 1938 and 1939, 3 and 4 years
respectively after the naval pact (see Exhibit Number Raeder-2, Lohmann
Affidavit).

The other matters submitted by the Prosecution are again trifles; for
instance, the selection (not the construction, as the Prosecution says)
of four or five merchantmen (see C-166), or the construction of 5
E-boats of 40 tons each (see C-151), which for technical reasons were
built in place of 12 torpedo boats of 200 tons each. The Prosecution
cannot in all seriousness turn these facts into grave accusations,
especially as the afore-mentioned deviations from the Versailles Treaty
were known to foreign technical specialists or—as the witness
Schulte-Mönting correctly put it—were an “open secret.”

(6) And now I come to the decisive juridical aspect of all developments
up to the summer of 1935. In the field of international law the same
principle applies as in the field of internal commercial law: Breaches
of agreement are considered adjusted and settled with the signing of a
new agreement. In the present case the Anglo-German Naval Treaty of 18
June 1935—Exhibit Number Raeder-11—represents the new agreement. This
naval agreement deviates completely from the Versailles Treaty both with
regard to high-tonnage vessels and with regard to U-boats. It is only on
the basis of what is permitted Germany by this new agreement that the
insignificance of earlier violations of the Versailles Treaty, not at
the time covered by existing agreements, becomes apparent.

10,000-ton cruisers were replaced by 35,000-ton battleships, and the ban
on the construction of U-boats was replaced by the acknowledgement of
equal rights with regard to U-boat tonnage. Germany’s demands were not
unreasonable; on the contrary, in the document mentioned, His Majesty’s
Government in the United Kingdom explicitly confirmed the German
proposal to be “... an exceedingly important contribution to future
limitation of naval armaments.”

This agreement between Britain and Germany concluded the debate on the
Versailles Treaty both factually and juridically, as far as the Navy is
concerned. This naval agreement was generally welcomed in Britain and
Germany at that time, and it was supplemented by a new agreement on 17
June 1937 (see Exhibit Number Raeder-14). As proof of the fact that the
Navy violated the naval agreement, too, with aggressive intentions, the
Prosecution has raised two charges:

(1) In the Agreement of 1937 both contracting governments were bound to
a mutual exchange of information, which was to take place annually,
within the first 4 months of every calendar year, and was to contain
details of the building program. According to Document C-23, the Navy
violated this obligation insofar as it gave lower figures for the
displacement and the draught of the battleships _Bismarck_ and _Tirpitz_
which were being built at the beginning of 1938, namely, as 35,000 tons
instead of 41,700 tons. That this violation of the treaty did occur is
openly admitted by Raeder, but again it is not such a serious violation
as the Prosecution contends, that is, it is not a violation which shows
proof of criminal intent. That is clear from the detailed evidence I
have presented and from the testimonies of witnesses which I need not
repeat here; it will be sufficient if I refer to the absolutely
convincing expert testimony of the ship-building director, Dr. Süchting,
which I have submitted as Exhibit Number Raeder-15. According to this,
the increase in tonnage demanded by the Navy during the construction
served a purely defensive idea, namely, that of increasing the armor
plating of the battleships and of arranging the bulkheads in such a way
that the battleships would be virtually unsinkable. This defensive idea,
Dr. Süchting emphasizes, actually proved to be correct during the attack
on and sinking of the battleship _Bismarck_. If it was only a question
of a defensive idea, no aggressive intentions can be construed from this
treaty violation.

With regard to the juridical aspect, it must be added that in the Naval
Agreement of 1937, Articles 24, 25, and 26 conceded to the contracting
governments the right to deviate, under certain circumstances, from the
contracted agreements and especially from the tonnage limitation of
battleships, if any other sea powers should build or acquire larger
battleships. This case, stated in Article 25, had actually arisen, and
so the violation of the agreement consisted in the fact that the Navy,
although now entitled to build larger battleships, neglected to inform
Britain of her desire to make use of that right. It was, therefore, only
a violation of the obligation to exchange information. How meaningless
this measure was is proved by the alteration of the Anglo-German Naval
Agreement by virtue of the London Protocol of 30 June 1938, which I have
submitted as Exhibit Number Raeder-16.

Already on 31 March 1938, that is, only 6 weeks after the date of
Document C-23, Britain on her part had stated, according to the London
Protocol of 30 June 1938, that she must make use of the afore-mentioned
right granted by Article 25, and therefore proposed that the battleship
tonnage be increased from 35,000 to 45,000. This agreement was then
signed by both countries on 30 June 1938, and thus the violation of the
treaty evident from Document C-23, became illusory.

(2) The British prosecutor raised a second charge by submitting Document
D-854 during cross-examination. It consists of notes made by Admiral
Assmann for his historical writings; on Sheet 15 of these notes he
writes that Germany abided by the terms of the Anglo-German Naval
Agreement least of all in the sphere of U-boat building and that 55
U-boats were allowed by the treaty up to 1938, but 118 were actually
completed or begun. These statements by Assmann are actually incorrect,
and in reality Germany strictly followed all the stipulations of the
Anglo-German Naval Agreement with regard to U-boat building. Despite the
assurance of equality of rights Germany by the Naval Agreement of 1935
voluntarily limited herself to 45 percent; but the right to increase
this percentage at any time by friendly agreement with Britain was
reserved for her. The presentation of evidence has shown (see the
testimony of Raeder and Schulte-Mönting) that in December 1938
corresponding negotiations took place between the British Admiral Lord
Cunningham and Grossadmiral Raeder, during which His Majesty’s
Government approved the increase to 100 percent. It was not clear at the
time when this evidence was presented, whether this approval had also
been given in writing, as was to be assumed. Meanwhile I have been able
to establish that such a document must have existed; I was able to
gather this from the afore-mentioned Assmann Document D-854 in which on
Page 169, in connection with Page 161, the letter in question dated 18
January 1939 is mentioned. In conclusion it remains to be said that the
figure of 55 U-boats mentioned by Assmann corresponds to 45 percent,
whereas the figure of 118 U-boats corresponds to 100 percent;
accordingly Assmann, and therefore the Prosecution as well, are wrong.
Actually there was no violation at all of the naval agreement with
regard to U-boats.

                        [_A recess was taken._]

DR. SIEMERS: I now come to the allegation of the Prosecution that
Grossadmiral Raeder took part in a conspiracy to wage wars of
aggression, and in particular supported Hitler and National Socialism
despite his alleged knowledge that Hitler from the beginning had the
intention of waging wars of aggression.

(1) How did Raeder establish contact with Hitler, and was he able, or
even bound, at that time to realize an intention on the part of Hitler
to wage wars of aggression?

As I have said, it is a fact that Raeder before 1933 had nothing to do
with National Socialism and knew neither Hitler nor his Party
collaborators; he met Hitler on 2 February 1933, when he and the other
commanders were introduced to Hitler by Baron von Hammerstein. As Chief
of the Naval High Command Raeder had only one superior, Reich President
Von Hindenburg, who, according to the Constitution and the Defense
Law,[39] was the Supreme Commander of the whole Armed Forces.
Hindenburg, as Reich President, had appointed Hitler Reich Chancellor,
and thus a connection was of necessity created between Hitler and the
Armed Forces. There was thus no question of any decision on the part of
Raeder. As Hindenburg’s subordinate, he had as a soldier to submit to
the political decision which Hindenburg had taken as President of the
Reich. The constitutional basis with regard to the Armed Forces was in
no way altered by the fact that Hitler came to power. As Chief of the
Naval High Command Raeder took as little part in this political decision
as he had done on previous occasions when Müller, who was a Social
Democrat, or Brüning, who belonged to the Center Party, became Reich
Chancellors.

Nor was there any cause for Raeder to resign his post on account of this
internal political decision, for Hitler had explained to him and the
other high officers at the first conference on 2 February 1933, and
particularly also on the occasion of the first naval report in the same
month, that nothing in the Armed Forces would be changed and that the
Armed Forces must remain aloof from politics, as laid down in the
Constitution and the Defense Law.

The testimony of Raeder and Schulte-Mönting proves that during the naval
report Hitler explained his fundamental ideas in regard to a peaceful
policy, in which connection, in spite of the amicable revision of the
Versailles Treaty to which he aspired, it was essential to come to an
understanding with England by means of a treaty providing for the
development of the Navy within the general limitations of naval
armament. During this conversation Hitler clearly indicated that he did
not want a naval armament race and that the development of the Navy
should take place only in friendly agreement with England. This
principle was absolutely in line with the viewpoint of Raeder and the
Navy, and it was therefore quite out of the question for Raeder to tell
his superior, Hindenburg, that on account of Hitler he could no longer
head the Navy.

Now the Prosecution maintains that the leading personalities in Germany
at that time already knew Hitler’s true intentions from his book _Mein
Kampf_, and has cited as proof several quotations, partly torn from
their context, from Hitler’s propaganda book of 1924. This argument of
the Prosecution does not seem to hold good, because Hitler wrote this
book as a private individual belonging to an opposition party. In this
Trial it has several times been pointed out that the statements of
foreign private individuals are irrelevant even when these foreigners
are well known, and subsequently—as in Hitler’s case—received a
position in the government. Raeder could assume, as could anyone else,
that as Reich Chancellor Hitler would not uphold all the Party doctrines
which years before he had defended as a member of the opposition,
particularly since the statements of Hitler on military matters
contradicted these former Party ideas. Moreover, the Navy relations with
England were always of foremost importance and in this connection Hitler
himself had said in his book _Mein Kampf_, Page 154: “But for such a
policy there was only one possible partner in Europe: England.”
(Document Book 2, Document Number Raeder-20, Page 119.)

In rebuttal of the quotations submitted by the Prosecution it must also
be said that they are all taken from the 1933 edition and that, in spite
of great pains, the General Secretary’s office has been unable to
procure an earlier edition, particularly the first edition of 1925 and
1927. It is a known fact that in later years Hitler himself made changes
on many points in numerous places in his book, consequently the
quotations from the 1933 edition cannot be taken as a basis on their
face value.

Ought Raeder in the following years to have realized that Hitler desired
to abandon the fundamental idea of an understanding with England, and is
it possible to agree with the argument of the Prosecution that Raeder
should have refused further collaboration at some time before 1939? I
believe that this question must be answered in the negative for reasons
which appear quite naturally from various facts which the Prosecution or
the Defense submitted in evidence:

Hindenburg died on 2 August 1934, and the Prosecution reproaches Raeder
because he thereupon took an oath in which he named the Führer in the
place of the fatherland. (Record of 15 January 1946, Volume V, Page
262.) This point was sufficiently clarified in the presentation of
evidence. Therefore I need only refer to the error which the Prosecution
made in its assertion; the Prosecution itself produced Document D-481
which shows the oath of allegiance taken by the soldiers of the Armed
Forces on Hitler’s orders. The document is a law signed by Hitler,
Frick, and Blomberg and it shows that it was not Raeder who replaced the
word “Vaterland” by “Hitler,” but that Hitler himself demanded that all
soldiers should take the oath to him as Commander-in-Chief of the Armed
Forces. Before Hitler demanded this oath, which he had cleverly devised
and which proved so fateful in the future, Raeder had neither been
informed nor had his advice been asked on the wording. He was simply
summoned to the Reich Chancellery without knowing the reason. The
question as to what kind of oath is to be taken by a soldier is again a
political one, a question of legislation, upon which Raeder as a soldier
and Commander-in-Chief of the Navy had no influence.

The Prosecution charges Raeder with having been informed of many
political decisions and with having, as Commander-in-Chief of the Navy,
made strategic plans and preparations on the occasions of such political
measures. The Prosecution referred to the withdrawal from the League of
Nations on 14 October 1933, the occupation of the Rhineland on 7 March
1936, the Austrian Anschluss in March 1938, the incorporation of the
Sudetenland in the autumn of 1938, and the establishment of the
Protectorate of Bohemia and Moravia in March 1939.[40]

The documents in question are in the main those marked in the footnote,
and I can refer to them jointly in this connection. There is one fact
common to all of these decisions, namely, that Raeder did not
politically take part in any of them. Raeder was never consulted
beforehand and as Commander-in-Chief of the Navy he had no authority to
participate in such decisions. Raeder did nothing more than take note of
these documents and reports, and then issue the orders necessary for
precautionary military measures in case the country became involved in
war. It seems quite incomprehensible that the commander-in-chief of a
branch of the Armed Forces should be reproached for having made
strategic preparations in the event of political complications. I
imagine that it is customary all over the world that an admiral never
takes part in political decisions, while at the same time he is obliged
to make certain precautionary preparations depending upon such political
decisions of the government. This is another example of the discrepancy
I have already mentioned affecting the position of a military commander,
which, although the Prosecution considers it to be a political one, is
in reality purely military. There is hardly any doubt that the military
commands of foreign countries involved in these political decisions or
interested in them were also at the same time taking precautionary
military measures.

A military commander could not judge whether these political decisions
of Hitler were crimes or even violations of international law, all the
less since he was never summoned to the consultations. Neither the
withdrawal from the League of Nations, as a result of the failure of all
endeavors to induce the other countries to disarm in the spirit of the
Versailles Treaty, nor the occupation of the Sudetenland or the
establishment of the Protectorate of Bohemia and Moravia, can be
regarded as criminal activities, in the sense of the Indictment, of a
disinterested commander-in-chief. They were certainly deviations from
the Versailles Treaty, but even the British Prosecutor, Sir Hartley
Shawcross, declared on 4 December 1945 in this courtroom that “many
objections against Versailles were possibly justified.”[41] And even
Justice Jackson, as quoted above, said that the boldest measures would
have been justified for the purpose of revising this treaty, but not a
war.

All these measures taken by Germany were in fact carried out without a
war, and therefore come under the heading of measures which Justice
Jackson considers justified, all the more so since they were all
silently condoned by foreign countries, or even agreed upon by treaty,
as for instance in the case of the incorporation of the Sudetenland by
the Munich Agreement of September 1938, or, as in the case of Austria,
by agreement with that country.

In the cases of Austria and of the establishment of the Protectorate of
Bohemia and Moravia, the Prosecution quite justifiably, looking at these
cases objectively and retrospectively, points out that Hitler employed
extremely dubious and possibly criminal means to achieve his aims;
however, this can have no significance as far as the Commander-in-Chief
of the Navy is concerned, since it has been firmly established that he
was not informed of these activities, much less of the means employed
therein. It has been established in particular that Raeder was neither
informed of the details of the Austrian Anschluss nor of the kind of
conference which ultimately led to an agreement with President Hacha. He
was not told of the discussions with Hacha, nor of the threat of a
bombardment of Prague, which was made in the course of these
discussions; I refer in this connection to the testimony of the
witnesses Raeder and Schulte-Mönting. In the eyes of Raeder, therefore,
these constituted measures permissible under international law, or else
agreements which gave him no cause to interfere or to question Hitler,
quite apart from the fact that as a military commander he had no right
whatsoever to do so.

Moreover, had military complications arisen, land operations only would
have been involved, as is quite obvious from the location of the
countries concerned. It would have amounted to an impossible situation
if the disinterested Commander-in-Chief of the Navy had seen fit to
concern himself with these things although hardly any naval preparations
were required. In the case of Czechoslovakia, for example, Document
388-PS lays down, as far as the Navy was concerned, only that it was to
participate in possible Army operations by commitment of the Danube
flotilla which for this purpose was placed under the orders of the High
Command of the Army; this flotilla consisted of very small ships, a few
gunboats, if I remember correctly.

In this connection I also quote Sir Hartley Shawcross when on 4 December
1945 he spoke of the German-Polish Non-Aggression Pact of 1934: “By
entering into it”—Hitler—“persuaded many people that his intentions
were genuinely pacific ...”[42]

Accordingly, Raeder too had reason to be convinced. It is true that
Raeder belonged to the Secret Cabinet Council created in February 1938.
But it is also true, and has been proved in the meantime, that the
Secret Cabinet Council was just a farce. It is therefore unnecessary to
deal with this point which the Prosecution originally considered so
important.

The claim of the Prosecution that Raeder was a member of the Government
and a Reich minister has been refuted in the same way. This assertion of
the Prosecution has from the outset been somewhat incomprehensible.
Document 2098-PS, presented by the Prosecution, only states with
absolute clarity that Von Brauchitsch, the Commander-in-Chief of the
Army, and Raeder, the Commander-in-Chief of the Navy, held—I quote—“a
rank equivalent to that of a Reich minister.” This proves that he was
not a minister, although for reasons of etiquette he held a rank equal
to that of a Reich minister, and it follows that this decree of Hitler
did not assign a political task to Raeder, as the Prosecution would like
to have it.

Moreover, this decree does not even give him the right to participate in
Cabinet sessions at his own will, but only, as Hitler says in the
above-mentioned document, “upon my order.” This simply means that Raeder
might have been called upon by Hitler to participate in a Cabinet
session when technical naval problems were being discussed. In reality
this hypothetical and politically insignificant case never arose.

Nor can membership in the Reich Defense Council—Document
2194-PS[43]—be considered incriminating. In the first place the council
was concerned, as the text says, only with “preparatory measures for the
defense of the Reich,” that is, neither with political activities nor
with activities connected in any political sense with aggressive war.
Furthermore, according to Document 2018-PS, a later Führer decree of 13
August 1939, and contrary to the claim of the Prosecution, Raeder never
belonged to the Ministerial Council for the Defense of the Reich set up
at that time, for the simple reason that he was not a minister. Actually
other countries, too, possess institutions like a defense council or
defense committee. I call attention to the fact that already long before
the first World War the British Government had a defense committee which
was of much greater importance[44] than the equivalent institution in
Germany.

As the final matter in this connection, I wish to point out that the
claim of the Prosecution that Raeder was a Party member has also proved
untenable. It is true that Raeder received the gold insignia of honor
from Hitler; but this was only a decoration; it could not mean anything
else, because a soldier could not be a member of the Party. That is
clear beyond all doubt from Paragraph 36 of the Reich Defense Law, which
forbids soldiers to engage in politics and to be members of a political
organization.[45]

I also refer to the evidence, which proved amply that Raeder never had
connections with the Party, that indeed he more than once had arguments
with Party circles and that he was unpopular with typical National
Socialists because of his political and particularly his religious
attitude. Goebbels, for instance, positively detested him, and this was
not surprising, because on the one hand he always prevented the Party
from gaining any sort of influence on the officers’ corps of the Navy,
while on the other, in contrast to the Party, he supported the Church to
the greatest extent, and saw to it that the morale of the Navy was
founded on a Christian basis. I refer in this connection to the typical
National Socialist phrase of Bormann:

“National Socialist and Christian concepts are incompatible.”[46] In the
same document Bormann, as he so often did, expressed views devoid of all
civilized standards and attacked Christianity so strongly, and so
violently advocated the elimination of all Christian ideas, that this
attitude by the Party is sufficient proof that Raeder, as a devout
Christian, could never have entertained relations with the Party.[47]

I have already stated that in 1933 Hitler said that it would be one of
the fundamentals of his policy to make Germany sound and strong by
peaceful means, and that for such peaceful development it was absolutely
necessary to acknowledge British hegemony and come to an agreement with
Britain about the size of the German fleet—if possible, even to come to
an alliance. These ideas coincided with Raeder’s fundamental attitude,
which he explained in detail during his examination here. As far as my
defense is concerned, it may remain an open question whether and when
Hitler abandoned that basic thought. In any case, Hitler always
emphasized this basic thought to Raeder and actually supported it with
deeds; this ever-recurring thought can be traced through all the years
up to the outbreak of war, and it was in the pursuit of this basic
principle that the Anglo-German Naval Agreement was concluded in 1935
and the second Anglo-German Naval Agreement in 1937, that an agreement
on submarines was reached with Lord Cunningham in 1938, and that the
London protocol on the subject of battleships was signed on 30 June
1938. Thus, throughout the years of the reconstruction of the German
Navy the same idea was always predominant, namely, of achieving
agreement with Britain, of acknowledging Britain’s supremacy and of
avoiding any difference which might lead to a break with Britain.

Looking back now in cognizance of all the documents and all the facts
proved during this Trial, Hitler may be assumed at some time, probably
in 1938, to have become unfaithful to his own principles and thereby
guilty of bringing about the tragic fate of Germany. However, in judging
the accusations made against Raeder, the decisive issue is not what must
subsequently, in the light of all known facts, be acknowledged as
objectively true; the real issue is only whether Raeder realized, or was
even able to realize, Hitler’s deviation from his own ideas, and the
answer to that is “no.” Raeder could not have guessed, much less have
known, that Hitler at some time became untrue to his own political ideas
which he had repeatedly stressed and demonstrated, and thus guilty of
kindling the frightful conflagration of World War II.

Raeder could not have suspected or known that during the period
immediately preceding the war Hitler spoke to him, too, in words which
were at variance with his thoughts and also different from his actions.
As far as the Navy in particular was concerned, the relatively slow
rebuilding of the German fleet showed that Hitler proposed to remain
faithful to the ideas which I described. There was no indication at all
of a change of mind on Hitler’s part in this field, for a change of mind
would surely have resulted in a naval rebuilding program bigger than the
one which Hitler actually carried out. At the very least he would then
have made full use of possibilities offered by the Anglo-German Naval
Agreement. According to the Naval Agreement, the German fleet was
allowed a total tonnage of 420,595 tons,[48] yet actually this maximum
was never utilized. Even with regard to battleships, Germany remained
short of the Naval Agreement, with the result that the battleships
_Bismarck_ and _Tirpitz_ were not available in the first year of the
war, and thus could not take part in the occupation of Norway; the
_Bismarck_ was completed only in August 1940, and the _Tirpitz_ in 1941.

According to the Naval Agreement, Germany was allowed the same tonnage
in submarines as England. In reality, however, U-boat construction was
so slow that at the beginning of the war in 1939, as the evidence has
proved, Germany had only the small number of 26 U-boats available for
Atlantic service. And further, according to Document L-79, known as the
“Little Schmundt,” it was laid down as late as the end of May 1939
that—I quote—“no change will be made in the ship-building program.”

All this must have firmly convinced the Commander-in-Chief of the Navy
from his personal point of view and his sphere of work that Hitler
wanted to stand by his much-stressed basic principle of avoiding war.

Raeder’s firm conviction in this respect—this seems to be an important
consideration—was to a large extent confirmed by the attitude of
foreign countries. Winston Churchill, in his book _Great
Contemporaries_, wrote in 1935:

    “It is not possible to form a just judgment of a public figure
    who has attained the enormous dimensions of Adolf Hitler, until
    his lifework as a whole is before us ... We cannot tell whether
    Hitler will be the man who will once again let loose upon the
    world another war in which civilization will irretrievably
    succumb, or whether he will go down in history as the man who
    has restored honor and peace of mind to the great Germanic
    nation, and brought it back serene, helpful, and strong to the
    forefront of the European family circle.”

One year later, at the Olympic Games in Berlin in 1936, the
representatives of the foreign countries appeared in a body and greeted
Hitler in a manner which, in its approval bordering on enthusiasm,
appeared incomprehensible to many skeptically inclined Germans.
Subsequently, the foremost politicians and members of various
governments visited Hitler and reached complete understanding with him,
and finally, in the autumn of 1938, agreement was again reached under
Chamberlain and Lord Halifax; an agreement which strengthened Hitler
immeasurably, and by which he sought to prove to the Germans how
expedient all his actions had been, since they were thus approved by
foreign countries. The joint declaration, which Chamberlain and Hitler
issued in Munich on 30 September 1938, can never be overestimated in its
importance. I would, therefore, like to quote the first two decisive
sentences from it:

    “We have had a further discussion today, and are agreed that the
    question of Anglo-German relations is of primary importance for
    both countries and for Europe.

    “We regard the agreement signed last night and the Anglo-German
    Naval Treaty as symbolic of the desire of our two nations never
    again to wage war against each other.”

I think that these references are sufficient. Now, can one demand of a
German admiral, who has never been a politician, but always only a
soldier, that in judging Hitler he should have looked farther ahead than
the great British statesmen, Chamberlain and Churchill? Surely the very
question indicates that the answer is “no.”

The Prosecution can seriously confront these numerous aspects only with
a few documents which might indicate Raeder’s knowledge of Hitler’s
aggressive plans. The Prosecution has indeed presented innumerable
documents of which Raeder or the Naval Operations Staff or the High
Command of the Navy were stated to have received copies, but in a
considerable number of instances the Prosecution could not say anything
beyond the fact that Raeder received a copy of the documents; for the
most part no real connection existed, nor was it alleged by the
Prosecution. Naturally, it is not surprising that for the sake of
uniformity military documents went to all branches of the Armed Forces,
even if in certain cases one branch of the Armed Forces was not at all,
or only vaguely, concerned with them. Of all these documents which have
been submitted in the case of Raeder, only the four documents which,
because of their importance, the Prosecution described as key documents,
could be really incriminating. These are Hitler’s four speeches to the
Commanders-in-Chief of 5 November 1937, 23 May 1939, 22 August 1939, and
23 November 1939.[49]

The Prosecution claims that these speeches prove participation in the
conspiracy, and that it is clearly evident from them that Hitler wanted
to wage wars of aggression. I would therefore like to deal with these
documents individually and in detail, and in doing so, show why they
cannot modify the general picture I have presented.

Undoubtedly these key documents are of the utmost importance for the
subsequent historical findings on what trains of thought motivated
Hitler; they are important because they are expressions of Hitler’s
opinion and because, in spite of the tremendous amount of captured
documentary material, there are hardly any written notes of Hitler. One
is tempted, of course, to accept the conclusion that the contents of
these documents must be true because they are statements made before a
small circle, where Hitler would naturally express himself more openly
than in his public speeches. Even though I by no means fail to recognize
their value, I nevertheless believe that the Prosecution overestimates
the importance of these four documents by far. Certainly, they are to
some extent key documents, since they provide the key to an
understanding of Hitler’s mind and methods, but they are not a key to
the real intentions of Hitler, and more particularly they do not provide
a scale for any conclusions which those who listened to the speeches
must, in the opinion of the Prosecution, needs draw from them.

Therefore, in order fully to explain the value of the documents, I would
like first of all to mention several general points which apply
generally to each of these four documents and limit their evidential
value, which the Prosecution has overestimated. None of these speeches
was taken down in shorthand, so that the actual text of the speeches is
not available. Accordingly, in the record of the address of 5 November
1937, Hossbach correctly chose the indirect form of speech, and
Generaladmiral Böhm in his record of the speech of 22 August 1939[50]
did the same. Surprisingly and not quite correctly, Schmundt chose the
direct form of speech in his record of 23 May 1939, although it was not
a verbatim record; however, he was at least careful to state at the
beginning that Hitler’s words were being reproduced “in essence.”

The feeblest documents, that is to say, the two versions of the speech
of 22 August 1939 which the Prosecution has submitted, are written in
the direct form of speech, and the authors of these documents, whose
names are unknown, have not even deemed it necessary to add some sort of
note as Schmundt did. However this may be, in considering the documents
it must be kept in mind that they were not reproduced word by word and
that therefore the reliability of the reproduction depends on the manner
of work and attitude of the author of the document, especially on
whether and to what extent he made notes during the speech, and when he
prepared his record. In this connection it is important to note that, as
Document 386-PS shows, Adjutant Hossbach wrote the record a full 5 days
later, namely on 10 November, though the speech itself had already been
made on 5 November. In the case of Schmundt, the date of the record is
missing altogether, and in the two Prosecution documents on the speech
of 22 August 1939 there is also no date. The last two documents also
lack any signature, so that in this case it is not even possible to say
who bears the responsibility for the record. The same applies to the
document on the speech of 23 November 1939. All these formal
deficiencies allow considerable doubt concerning evidential value and
reliability of the documents to be entertained.

It is different in the case of the Böhm document, who in his affidavit
certifies that he wrote down Hitler’s speech as it was being made, that
he noted down the exact text of particularly important passages, and
that he edited the final draft, submitted here, on the same evening.
Since in all these documents the true text is not available, it is
obvious how important it is if one can at least establish that the
record was made simultaneously with the speech, or at least on the same
day and not, as in the case of Hossbach, 5 days later. Even with the
best of memories the best adjutant, who has to handle many new matters
every day, cannot possibly after 5 days give an absolutely reliable
reproduction of a speech.

The second point is just as important, namely, that unlike other
military documents these are not official documents with a distribution
list, that is, they are not documents which were subsequently sent to
those concerned. That the documents were not sent to Raeder was
established in the evidence by him and by the witness Schulte-Mönting,
apart from the fact that it is already apparent from the lack of a
distribution list on the document. This point, in particular, seems to
me of great importance. Listening to a speech once—and it will be
recalled that Hitler spoke extremely quickly—does not induce the
listener to draw conclusions in a way which the reading of the record
might, since the record allows for a check and recheck of the contents
of the speech. We who have come to know these speeches in the
proceedings in their written form and have again and again checked their
wording, naturally invest certain words and phrases with more importance
than we would have done if we had heard them as part of a quickly
delivered address. In addition, all of us are readily inclined to lend
more importance to the various phrases, because from our present
standpoint and in view of our more extensive knowledge we can now survey
everything much more easily; for we have not only one speech on which to
base our opinions, but all of them and in addition all the many other
documents showing the historical development. In discussing these
documents it must always be borne in mind that listeners are inclined to
react to the spoken word quite differently, and that often, even after
only a few hours, the reports of various listeners differ from one
another.

The Prosecution considers these speeches of Hitler to be the basis of
the conspiracy, and says that on these occasions Hitler consulted with
the commanders, reached a certain decision, and concluded a certain plan
of conspiracy with them. The Prosecution is bound to maintain this,
because one can only speak of a conspiracy when something is being
planned in common. In reality, the assertion of the Prosecution that an
influential group of Nazis assembled to examine the situation and make
decisions is incorrect; the occasion took the form of an address by
Hitler alone, and no discussion and no consultation took place. Nor was
any decision reached, either; Hitler just spoke quite generally about—I
quote—“possibilities of development.”[51] If one can speak of decisions
at all, it was a decision solely on the part of Hitler. All this
contradicts the existence of a real conspiracy. Altogether I have the
impression that, in its conception of a conspiracy to wage wars of
aggression, the Prosecution has conceived an entirely false picture of
the real distribution of power within the National Socialist State. In
my opinion the Prosecution fails to recognize the characteristics of a
dictatorship, and indeed it may be very difficult to understand the
immeasurable dictatorial power of Hitler if one has not personally lived
through all of those 12 years in Germany, in particular the growth of
Hitler’s power from its first beginnings until it finally developed into
a dictatorship wielding the most cruel and horrible terror. A dictator
like Hitler, who moreover quite obviously exercised immense powers of
suggestion and fascination, is not a president of a parliamentary
government. I have the impression that in judging the situation as a
whole the Prosecution has never completely relinquished the idea of a
parliamentary government nor taken the uncompromising ways of a dictator
into account.

The idea of a conspiracy between him and the members of the Cabinet or
between him and the commanders was quite contrary to Hitler’s own
nature, as the testimony of several witnesses showed in the course of
the Trial. This was proved with particular emphasis by the testimony of
the Swedish industrialist, Dahlerus, who by reason of his excellent and
extensive connections both with Britain and Germany was in the course of
time able to obtain an objective picture of both countries, and who
during his negotiations with Chamberlain and Halifax on the one hand,
and Hitler and Göring on the other, was best able to recognize the
difference between the parliamentary British Government and the German
dictatorship of Hitler. The account of Dahlerus proves convincingly that
the difference was irreconcilable. After he had spoken with Chamberlain
and Halifax, a discussion with the Cabinet naturally took place before a
final decision was taken. On the other hand, when in the night of 26 to
27 August 1939[52] Dahlerus had a discussion of decisive importance with
Hitler, at which only Göring was present, Hitler at once made six
propositions, without saying a word to any of the Cabinet members or any
of the military commanders, without even consulting Göring who sat by
silently; proposals, moreover, which did not exactly tally with what he
himself had told Sir Nevile Henderson a short time before. A stronger
argument against a conspiracy with commanders or members of the Cabinet
can hardly exist, unless it be the equally important fact which the
witness Dahlerus added, namely, that during the entire 2½ hours Göring
did not dare say a single word, and that it was humiliating to see the
degree of servility which Hitler demanded even of Göring, his closest
associate.[53]

All these Hitler speeches are full of contradictions. Such
contradictions naturally impair clarity of thought, and they rob
individual ideas of their importance. When reading the documents in
their entirety, the number of contradictions becomes evident, as the
witness Admiral Schulte-Mönting correctly pointed out during his
examination and cross-examination. It is just because of such
contradictions and often illogical thinking that the evidential value of
the documents is diminished. Naturally it is difficult for a military
adjutant like Hossbach or Schmundt to record unclear and contradictory
trains of thought; and it is also easy to understand that a military
adjutant will be inclined to introduce as clear a line of thought as
possible, and will in consequence be misled into applying to certain
ideas which have become clear to him more stress than they were actually
given in the speech itself. To this can be added a remark of Raeder, who
not only points to the contradictions, but especially to Hitler’s
overactive imagination, and very appropriately calls him a “master of
bluff.”[54]

Moreover, in every speech of that type Hitler followed a very definite
tendency. He had a definite purpose in view, namely, to bring about the
desired impression on all or some of his hearers, either by intentional
exaggeration or by making things appear deliberately harmless. While he
spoke, Hitler followed the intuition of the moment; as Schulte-Mönting
termed it, he wandered from his notes. He thought aloud and wished to
carry his hearers away, but he did not want to be taken at his word.[55]
Everyone will agree with me that such practices and such purposefully
designed speeches give no clear indication at all of Hitler’s true views
at the time. In addition, there is this to be said about all these
documents in general:

Following his address of 23 May 1939—known as the “Little
Schmundt”—Raeder had an interview with Hitler alone in which he called
Hitler’s attention to contradictions in his address and also to the
contradiction arising out of Hitler’s assurance to Raeder personally
that he, Hitler, would under all circumstances settle the case of Poland
equally peacefully. Hitler thereupon put Raeder’s mind completely at
rest and told him that he had a firm hold on matters, politically. This
was stated by the witness Schulte-Mönting[56] who added that Hitler
allayed Raeder’s misgivings about the contradiction between the speech
of 23 May 1939 and his other statements by telling him that for him,
Hitler, there were three grades of keeping matters secret: Firstly, by
private conversation with one partner; secondly, the thoughts he kept to
himself; and thirdly, some ideas which he himself did not fully think
out.

I believe this way of thinking as explained by Hitler himself
illustrates most strikingly how little reliance could ultimately be
placed on statements which he made before a small or a large group of
people. It seems to me quite plausible, therefore, that Raeder based his
deliberations neither on Hitler’s general speeches nor on the address
before the commanders which was discussed here, but went solely by what
Hitler told him in private discussion. In this respect, the statements
of Sehulte-Mönting, Böhm, and Albrecht[57] all prove that as late as
1939 Hitler was still, in private conversation, repeatedly giving Raeder
the explicit assurance that there would be no war; and he did this
whenever for some reason or other Raeder was particularly anxious and
drew Hitler’s attention to the dangers ahead.

In conclusion, therefore, I believe it may be said that the so-called
key documents are extremely interesting in assessing Hitler from a
psychological point of view, but that their evidential value as regards
Hitler’s real intentions is very limited and slight. One cannot reproach
Raeder for not letting himself be guided by the tendentious and
deliberate speeches which Hitler made before his commanders on the spur
of the moment, and preferring to rely on assurances which Hitler himself
gave him and on the fact that until the summer of 1939, until the very
outbreak of the war, these assurances were in perfect accord with the
facts and with Hitler’s actions, that is, with the four naval agreements
and the Munich Pact.

It is understandable that Raeder did not permit this basic attitude to
be shaken by these speeches to the commanders-in-chief, though they were
undoubtedly of a questionable nature, but that he held steadfastly to
his belief that Hitler would not deceive him. The fact that we now
subsequently realize that Hitler did after all deceive Raeder in his
private conversations with him, and also by his special second and third
grade of secrecy, does not indicate any guilt on Raeder’s part, but
solely on Hitler’s. The vast amount of material in this connection does
not indicate that in 1938 and 1939 Raeder planned a war of aggression in
violation of international law, but reveals only that Hitler planned a
war of aggression in violation of international law.

This completes my general treatment of the key documents and I now ask
the Tribunal’s permission to add a few points on each individual
document, since the Prosecution again and again stressed these documents
as the basis for the charge of conspiracy.

Hossbach Document, discussion of 5 November 1937 in the Reich
Chancellery:

The crucial passages of this document are obvious, and the Prosecution
has cited them often enough. But in dealing with this document it should
be taken into consideration that both Göring and Raeder stated here that
Hitler announced in advance his intention of following a certain trend
or purpose in his speech. Hitler was dissatisfied with the measures
taken by Field Marshal Von Blomberg, and especially by Generaloberst Von
Fritsch, the Commander-in-Chief of the Army, and felt that progress in
the rearmament of the Army was too slow. Hitler therefore intentionally
exaggerated, and since this was known only to Göring and Raeder, it is
natural that the impression which the speech made on Neurath, who had no
idea of this intention, was entirely different and considerably
alarming.

It is interesting to note that apparently Hitler did not fully get what
he wanted, because the last two paragraphs of the document indicate that
to some extent Blomberg and Fritsch saw through Hitler’s scheme, and
that his exaggerations did not deceive them. Though Hitler did not
permit discussion on such occasions, Blomberg and Fritsch intervened in
this instance and pointed to the need for preventing Britain and France
from becoming Germany’s adversaries. Blomberg explained the reasons for
his protest, and in the penultimate paragraph of the document Fritsch
showed unmistakably that he was skeptical of Hitler’s words by remarking
that under such circumstances he would not be able to take his planned
vacation abroad scheduled to begin on 10 November. It is also
significant that Hitler thereupon came round and, in contrast to his
earlier statements, said that he was convinced of Britain’s
nonparticipation, and that consequently he did not believe in military
action against Germany on the part of France either.

That Hitler’s ideas in this document are quite impossible is also
evident from the fact that he based his statements on a truly fantastic
notion, namely, an Italian-French-British war or, equally fantastic, a
civil war in France. In contradictory terms Hitler spoke in his speech
on the one hand of an application of force, on the other of an attack by
Poland against East Prussia, which could only refer to a defensive
aspect—and in regard to Czechoslovakia he said that in all probability
Britain and France had already privately written that country off. This
reference is an indication that Hitler was prepared to negotiate, which
was borne out by actual developments. He said that Austria and
Czechoslovakia would be brought to their knees, but nevertheless in the
following year, in March and September 1938, he carried on negotiations
and settled both questions without war. This fact in particular seems
significant, because it proved to Raeder in the course of later events
that he was right in not ascribing undue importance to Hitler’s strong
words of 5 November 1937, for in spite of these words Hitler in reality
did carry on negotiations at a later date.

During his interrogation Raeder also rightly pointed out that the second
extensive naval pact had been concluded with England only a few months
earlier and that as a result he could not seriously expect Hitler to
abandon a line of policy which he himself had initiated.

And finally, there is this point: The whole document deals with
political questions on the one hand, and with possible land operations
on the other. Raeder had nothing to do with political questions because
he is no politician, while Neurath as Foreign Minister naturally had
reason to give Hitler’s political attitude more consideration. It is
also significant that Neurath testified here that as a result of this
speech he too asked Hitler about his personal attitude, and that he
refused to remain Foreign Minister because Hitler told him that those
were his true intentions. To me it seems typical of Hitler to tell one
person, Neurath, that perhaps he would go to war, and to tell another,
Raeder, that he would under no circumstances wage war. This divergence
in explaining his position was obviously caused by the fact that at that
time he no longer relished Neurath as Foreign Minister, because he
realized that with regard to the foreign policy which he proposed to
follow, Neurath would not be as submissive as the successor whom he had
in view, Ribbentrop. On the other hand at that time he still wanted at
all events to retain Raeder as Commander-in-Chief of the Navy. This is
another instance of how Hitler’s actions were determined by a certain
ultimate purpose, and how he always and without the slightest inhibition
followed the principle that the end justifies the means.

Hitler’s speech of 23 May 1939, the so-called “Little Schmundt,” USA-27:
Here again Hitler expressed himself in a highly questionable fashion; he
speaks of a program of attack, of the preparation of a systematic
attack, and of the decision to attack Poland. I fail in no way to
recognize that there is good reason for the Prosecution to consider this
document as particularly good evidence. I believe, however, that taking
into account the numerous aspects which I pointed out, the value of this
document as evidence in the case of Raeder is very much smaller than the
Prosecution maintains, and very much smaller than a first glance at the
wording of the Schmundt version might warrant. Schmundt obviously made
an endeavor to formulate Hitler’s contradictory, fantastic, and
incongruous statements in a clear way in accordance with his own precise
military manner of thinking. This gives the document a clarity which
does not correspond to Hitler’s speech. We do not know when Schmundt
prepared the document, and he neglected to show the record he had made
to the other participants.

During his examination and cross-examination the witness Admiral
Schulte-Mönting pointed to the contradictions in this particular
document, which I need not repeat here. Paramount importance must
however be given to the contradiction between these words and the words
which Hitler at the same time again and again used in conversation with
Raeder, and which always followed the same line, namely, that he did not
intend to wage war and that he would not make excessive demands.

Raeder was shocked by this speech, and was only calmed by the private
conversation which he had with Hitler directly after the speech, when
Hitler assured him that he would under all circumstances settle the case
of Poland in a peaceful manner, too. Raeder believed him, and he had
every right to assume that Hitler was telling him the truth in answer to
his very precise question. I draw attention to the very exact statements
made on this document during the examination of Raeder and the
examination of the witness Schulte-Mönting.[58] I especially refer to
the statement of Schulte-Mönting that Hitler used the comparison that
nobody would go to court if he had received 99 pfennig when claiming one
mark, and added that in the same way he had obtained what he had
demanded politically, and that consequently there could be no question
of war on account of this last political question, that of the Polish
Corridor. That Raeder himself was absolutely opposed to a war of
aggression, and that in this respect he relied on Hitler’s assurances,
is proved by the statements of all witnesses, not least by the
deposition by Dönitz that on the occasion of the U-boat maneuvers in the
Baltic Sea in July 1939 Raeder, expressed his firm conviction that there
would be no war. Raeder, furthermore, knew that the Navy was absolutely
unfit for a war at sea against Britain; he had explained that to Hitler
again and again. But he was confident that in the Polish question
Hitler, as he had said, would again negotiate; the testimony of the
witness Dahlerus shows that negotiations did in fact take place, and
they were even successful at the beginning. The reason why nevertheless
the attempt finally failed and the second World War began, was explained
in detail by the witness Dahlerus who illustrated the terrible tragedy
of this event.

It seems to me important that up to August 1939 not only the witness
Dahlerus, but also Chamberlain still believed in Hitler’s good will. It
must be said again therefore that one cannot expect Raeder as a soldier
to have been more farseeing and to have recognized Hitler’s dangerous
ideas, if men like Chamberlain, Halifax, and Dahlerus did not even at
that time see through Hitler.

I have myself referred to the seriousness and the incriminating
character of this document, but I ask the Tribunal to take into
consideration that the incriminating material in this document, just as
in the document of 5 November 1937, is of a political nature. As defense
counsel for the Commander-in-Chief of the Navy, I have to judge the
facts not from a political but from a military point of view. From a
military point of view, however, it is absolutely impossible to follow
the arguments of the Prosecution, because military leaders are not
authorized to take part in decisions about war and peace, but merely
obliged to carry out such military preparations as the political leaders
consider necessary. In no country of the world does an admiral have to
give his opinion on whether some future war, for which he has to make
plans, will be a war of aggression or a defensive war. In no country of
the world does the decision of the question whether war will be waged
rest with the military, but on the contrary it is always left to the
political leaders, or to the legislative bodies.

Accordingly, Article 45 of the German Constitution stipulates that the
Reich President shall represent the Reich in international relations and
continues: “The declaration of war and the conclusion of peace are
decreed by a law of the State.”

Therefore, the question whether a war was to be waged against Poland
rested with the Reichstag, not with the military leaders. Professor
Jahrreiss has already explained that in view of the constitutional
development of the National Socialist State this decision rested in the
last analysis exclusively with Hitler. For the case of Raeder it is of
no consequence whether Hitler could be regarded as constitutionally
authorized to start a war on his own decision, as he actually did in the
autumn of 1939. The decisive factor is only that at all events the
military leaders were not authorized, either in practice or
constitutionally, to participate in this decision. The Prosecution
cannot possibly maintain that every act of military planning on the part
of Germany was a crime; for the military leaders, who merely receive the
order to work out a certain plan, are neither authorized nor obliged to
determine whether the execution of their plans will later on lead to an
aggressive or a defensive war. It is well known that the Allied military
leaders rightly hold the same view. No admiral or general of the Allied
armed forces would understand a charge being brought against him on the
basis of the military plans which were made on the Allied side, too, a
long time before the war. I do not have to elaborate this point; I
believe it will suffice if I refer to Document Number Ribbentrop-221.
This is a secret document, which, according to the title, deals with the
“Second Phase of the Anglo-French General Staff Conferences.” This
document shows that exact plans, regarding the Allied forces, were
worked out for a war embracing many countries; plans which, according to
this document, include a war in Europe and a war in the Far East. The
document expressly says that the French and British commanders-in-chief
in the Far East—I quote—“worked out a joint plan of operations,” and
it expressly speaks about the importance of possessing Belgian and Dutch
territories as a starting point for the offensive against Germany. The
decisive point about this parallel military case seems to me to be the
fact that this document bears a date from the same month as Hitler’s
much-discussed speech to his commanders-in-chief, namely, May 1939. The
document bears the caption: “London, 5 May 1939.”

I now come to the address of Hitler to the commanders-ih-chief on 22
August 1939 at the Obersalzberg.[59] Regarding the evidential value of
Documents 1014-PS and 798-PS submitted by the Prosecution, I should like
first of all for the sake of brevity to refer to the statements which I
made to this Tribunal in connection with the formal application to
withdraw Document 1014-PS. Although the Tribunal denied this
application, I still maintain that the evidential value attached to
these documents, and particularly to Document 1014-PS, is infinitesimal.
The American Prosecution, in presenting these documents pointed out at
the time[60] that the Tribunal should take into consideration any more
accurate version of this speech which the Defense might be able to
submit. I therefore submitted Exhibit Number Raeder-27,[61] the version
of the witness Generaladmiral Böhm, and I believe that when I submitted
it, I showed convincingly that it is in fact a more accurate version
than those provided by the Prosecution documents. Sir David Maxwell-Fyfe
then put in two documents where Böhm’s version is very scrupulously
compared with the versions 1014-PS and 798-PS; in this way he
considerably facilitated the comparison of these documents for all of
us. So as on my part to assist the Tribunal and the Prosecution in
making this comparison, I requested Generaladmiral Böhm in the meantime
to compare these versions himself and in doing so to use the compilation
of the British Prosecution which I mentioned just now. The result is
contained in Böhm’s affidavit.

When surveying all this material, it becomes clear that Document 1014-PS
is extremely incomplete and inaccurate, all the more so as, apart from
its formal deficiencies, it covers only one and a half pages, and for
this reason alone cannot be an adequate reproduction of a 2½ hour
speech.

Document 798-PS is no doubt more satisfactory, but it also contains
numerous errors, as Böhm’s affidavit shows. Not every sentence may be of
importance, but the point is that some of the most important passages
from which a charge against the commanders-in-chief might at best be
deduced were actually, according to Böhm’s sworn statement, never spoken
at all. According to Böhm’s affidavit, it is not true that Hitler said
that he had decided as early as the spring of 1939 to attack the West
first and the East later. Nor did he use the words: “I only fear lest at
the last moment some swine will come to me with an offer of mediation;
our political aims reach further.” And, most important of all, the
following words were never used either: “Annihilation of Poland ranks
foremost; the aim is to liquidate the living forces, not to reach a
certain line;” Hitler only spoke of the breaking-up of the military
forces.

These differences in individual words and phrases are very important,
because they concern the sharp phrases to which the Prosecution has
frequently drawn attention, and from which the intention of a war
violating international law, and even the intention to murder civilians,
can be derived. If these phrases had been spoken, one could justly
accuse the commanders-in-chief who were present of having waged the war
and carried out Hitler’s orders in spite of the criminal end in view.
However, if these sentences were not used but, as Böhm testified under
oath, other sentences referring merely to military aims, then the
Prosecution cannot reproach any of the commanders-in-chief present for
having remained at their posts. No one can in earnest demand of an
admiral that he should resign his post a few days before the outbreak of
a war, and thus shake the military power of his own country. I am quite
aware of the fact that the most serious reproaches can be made against
Hitler’s attitude following the time of the Munich Agreement until the
outbreak of the war in Poland, although, and this is decisive for the
Raeder case, not against the military command, but exclusively against
the political leader. We know that Hitler himself realized this and for
that reason evaded all responsibility by his suicide without, either
during or at the end of the war, showing the slightest regard for the
life and the welfare of the German people.

I come now to Hitler’s speech to the commanders-in-chief on 23 November
1939.[62] I shall deal with it quite briefly, and if you will permit me,
Mr. President, I should like to do this now before the Tribunal
adjourns, because the subject which follows is rather longer.

THE PRESIDENT: Yes.

DR. SIEMERS: I think I can be relatively brief with regard to this last
key document, which again fails to give the date on which the record was
made and lacks a signature; we do not therefore know the author of this
document. It is not an official transcript; and it again pursues a
special objective. Early in November 1939 a serious difference had
arisen between Hitler and the generals because Hitler wanted to start
the offensive in the West immediately, whereas the generals were of a
different opinion, and apparently hoped that the outbreak of a real
World War might still be avoided. Hitler’s dissatisfaction and annoyance
with his generals are clearly evident. In consequence, by repeating, as
usual, his past deeds, he strives to show what he has accomplished, and
also to show that he has always been right. It is an absolutely typical
Hitler speech reminiscent of his public speeches, in which he also loved
to boast and to glorify himself as a genius. Hitler, after all, belonged
to those people who always believe themselves to be right, and avail
themselves of every opportunity to prove it. He also took the
opportunity of using threats in order to nip in the bud the resistance
in high military circles which had become known to him, thus
strengthening his dictatorship. It is absolutely typical when he says in
this document, literally: “I shall not shrink from anything and I shall
destroy anyone who is against me.” This was recognized by foreign
military leaders, too. I draw attention for example to General
Marshall’s official report,[63] which speaks about the “lack of
far-reaching military planning” and about the fact that the German High
Command did not have an all-embracing strategic plan, and points out in
this connection that “Hitler’s prestige reached the stage at which one
no longer dared to oppose his views.”

Finally it remains to be mentioned that this last key document dates
from a time when the war was already in progress, and that the military
leaders cannot be blamed if in all their plannings during a war they
strove to attain victory. The Allies too were planning at the same time.
I refer to Documents Number Ribbentrop-222 and Exhibit Number Raeder-34;
the former dates from 1 September 1939 and is a secret letter from
General Gamelin to Daladier containing the basic idea that it was
necessary to invade Belgium in order to wage the war outside the French
frontier. The other document also deals with military plans; it is a
secret letter from General Gamelin to General Lelong, Military Attaché
to the French Embassy in London, dated 13 November 1939, and also
concerns the operation which the Allies had planned in Holland and
Belgium.

      [_The Tribunal adjourned until 17 July 1946 at 1000 hours._]

                                 NOTES

-----

[12] Vanselow, _Völkerrecht_, Berlin, 1931, Figure 226 i.

[13] In 1935, the American Senator Ney demanded the prohibition of
operational areas. In 1937 Charles Warren made a request for discussion
of the subject in the Society for International Law. And also the
afore-mentioned draft of a convention by American jurists of 1939 deals
with this question.

[14] Théories stratégiques IV, Page 323: “Même en zone de guerre
n’aura-t-on pas contre sol le damné article 22 du traité de Londres?”

[15] Bauer, Das U-Boot, 1931, Report on it by Captain G. P. Thomson,
R.N. in _The Journal of the Royal News Instruction 1931_, Page 511.

[16] Sperrgebiete im Seekrieg, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht, Volume VIII, 1938, Page 671.

[17] French Yellow Book, La Conférence de Washington, Page 88.

[18] Report of 8 October 1940, Page 3: “One thing is certain, namely,
apart from vessels in declared war zones, destruction of a merchant
vessel is envisaged if even only after capture.”

[19] Commander Russel Grenfell, R.N., _The Art of the Admiral_, London,
1937, Page 80. “The neutral merchants, however, are not likely to
relinquish a highly lucrative trade without a struggle and thus there
arises the acrimonious wrangle between belligerents and neutrals which
is a regular feature of maritime warfare, the rules for which are
dignified by the name of international law.”

[20] _De jure pacis ac belli_, Book III, Chapter I, Paragraph 6,
citation Augustin: “One may conceal the truth wisely,” and Cicero:
“Dissimulation is absolutely necessary and unavoidable, especially for
those to whom the care of the state is entrusted.”

[21] Admiral King, _Report of the American High Command_.

[22] John Chamberlain, “The man who pushed Pearl Harbor,” _Life_, of 1
April 1946.

[23] Manual for Courts Martial U.S. Army, 1928, Page 10.

[24] In this connection I mention the extensive literature dealing with
the right of self-preservation in cases of urgent necessity. The
surprise attack on the Danish fleet, 1807, as well as the hunger
blockade against Germany are based on that.

[25] Freiherr von Freytagh-Loringhoven, _Völkerrechtliche Neubildungen
im Kriege_, Hamburg 1941, Page 5.

[26] Quoted from “_Neue Auslese_,” 1946, Number 1, Page 16.

[27] Not always acknowledged by English authors. Compare for instance A.
C. Bell, _A History of the Blockade of Germany_, et cetera, London,
1937, Page 213: “The assertion that civilians and the Armed Forces have
been treated only since 1914 as a uniform belligerent body is one of the
most ridiculous ever made.”

[28] Grenfell, _The Art of the Admiral_, London, 1937, Page 45: “By the
early part of 1918, the civil population of Germany was in a state of
semistarvation, and it has been calculated that, as a result of the
blockade, over 700,000 Germans died of malnutrition.”

[29] See also protest of the Soviet Government to the British Ambassador
of 25 October 1939, printed as Number 44 in “_Urkunden zum
Seekriegsrecht_,” Volume I, edited by the High Command of the Navy.

[30] See for instance _Wheaton’s International Law_, 5th Edition, Page
727, Liddell Hart, “The Revolution in Naval Warfare,” _Observer_ of 14
April 1946.

[31] Oppenheim, Die Stellung des Kauffahrteischiffes im Seekrieg,
_Zeitschrift für Völkerrecht_, 1914, Page 165.

[32] Concerning the execution of these orders in the first World War,
Vidaud, in “_Les navires de commerce armés pour leur défense_,” Paris,
1936, Pages 63-64 says as follows: “Les équipages eux-mêmes sont
militarisés et soumis à la discipline militaire, ainsi que le capitaine
Alfred Sheldon, appartenant à la réserve de la Marine Royale, a été
condamné, le 8 Septembre 1915 par le conseil de guerre de Devonport,
pour n’avoir pas attaqué un sousmarin allemand.”

[33] Compare for instance “Submarines in the Atomic Era” in the _New
York Herald Tribune_, European Edition, of 27 April 1946, Page 2.

[34] A. C. Bell, Historical Section, Committee of Imperial Defense, _A
History of the Blockade of Germany and of the Countries Associated with
Her in the Great War 1914-1918_—The introduction contains the remark:
“This history is confidential and for official use only.” (Quoted from
the German edition by Böhmert, _Die englische Hunger-blockade im
Weltkrieg_, Essen, 1943).

[35] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXI.

[36] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXVI.
Paragraph 4, “He can believe that in a matter of doubt he must obey his
superior.”

[37] See _Wheaton’s International Law_, 5th Edition, Pages 543-5.

[38] Claud Mullins, _The Leipzig Trials_, London, 1921.

[39] See Document Book 1, Documents Numbers Raeder-3 and 4, Page 9 et
sequentes.

[40] Especially the following documents are concerned:

C-140, USA-51 of 25 October 1933; C-159, USA-54 of 2 March 1936; C-194,
USA-55 of 6 March 1936; C-175, USA-69 of 24 June 1937; 388-PS, USA-26 of
20 May 1938; C-136, USA-104 of 21 October 1938.

[41] Record of 4 December 1945, Volume III, Page 95.

[42] Record of 4 December 1945, Volume III, Page 110.

[43] Reich Defense Law of 4 September 1938.

[44] For instance under Balfour and Churchill.

[45] Document Book 1, Document Number Raeder-4, Page 12.

[46] Document Book 6, Document Number Raeder-121, Page 524.

[47] Refer also to Ronneberger Affidavit, Document Book 6, Document
Number Raeder-126, Page 543 et sequentes which point to the same
subjects, especially to the strong Christian belief of Raeder and to the
pronounced opposition to Christianity and Church by Bormann.

[48] Second Lohmann Affidavit, Document Number Raeder-8, Document Book
1, Page 41.

[49] Refer to Documents 386-PS, USA-25; L-79, USA-27; 798-PS, USA-29;
1014-PS, USA-30; 769-PS, USA-23.

[50] Document Book 2, Document Number Raeder-27, Page 144 et sequentes.

[51] See Hossbach Document.

[52] Record of 19 March 1946, Volume IX, Page 463.

[53] Record of 19 March 1946, Volume IX, page 481.

[54] Record of 16 May 1946, Volume XIV, Page 35.

[55] Record of 22 May 1946, Volume XIV, Page 314.

[56] Record of 22 May 1946, Volume XIV, Page 306.

[57] Record of 22 May 1946, Volume XIV, Page 306.

Affidavit Generaladmiral Böhm, Document Number Raeder-129.

Affidavit Generaladmiral Albrecht, Document Number Raeder-128.

[58] Record of 22 May 1946, Volume XIV, Page 306.

[59] See Documents Numbers 798-PS, USA-29; 1014-PS, USA-30, Document
Book 2. Page 144, Document Number Raeder-77.

[60] Record of 26 November 1945, Volume II, Page 292.

[61] Raeder Document Book 2, Page 144.

[62] See Document 789-PS, USA-93.

[63] Document Book 2, Pages 116-117, Document Number Raeder-19.




                              ONE HUNDRED
                            AND EIGHTIETH DAY
                         Wednesday, 17 July 1946


                           _Morning Session_

DR. SIEMERS: Yesterday I dealt with the events before the outbreak of
war. Now I shall turn to the events which occurred during the war.

I think I have shown that the Navy had an extremely insignificant part
in all events prior to the war, and that the transactions in which the
Navy was authoritatively involved were carried out on a peace basis,
namely, on the basis of the naval agreements with England. When the war
nevertheless ultimately broke out, involving England, too, on 3
September 1939, a regrettable incident occurred on the very first day,
through the sinking of the _Athenia_, from which the Prosecution
endeavors by the use of exaggerated terms to construe a grave moral
charge against Raeder, not so much indeed on the basis of its actual
military aspect, that is, the sinking, which my colleague Dr.
Kranzbühler has already discussed, as on account of an article published
in the _Völkischer Beobachter_ of 23 October 1939 entitled “Churchill
Sinks the _Athenia_.” Were the facts as brought forward by the
Prosecution correct, the moral accusations against Raeder and the Navy
would be justified, even though, of course, an untruthful newspaper
article is no crime. Consequently the accusation brought by the
Prosecution is made for the sole purpose of vilifying Raeder’s
personality in contrast to the lifelong esteem which Raeder has enjoyed
in the whole world, in fact especially abroad.

I think the evidence has sufficiently revealed that the statement of
facts presented by the Prosecution is not correct. It is quite plausible
that at first sight the Prosecution should have believed that the odious
article in the _Völkischer Beobachter_ could not have appeared without
the knowledge of the naval command. The Prosecution believed this
because, in view of their conspiracy theory, they are inclined to assume
in every case that there was constant discussion and close co-operation
among the various departments. The course of the Trial has shown that
this assumption is far from correct. The contrast between the various
departments, and especially between the Navy and the Propaganda
Ministry, or Raeder and Goebbels, was far greater than the contrast
between departments in a democratic state. In addition, the testimonies
of the witnesses Raeder, Schulte-Mönting, Weizsäcker, and Fritzsche,
together with the documents, establish the following facts absolutely
clearly:

(1) In early September 1939 Raeder himself firmly believed that the
sinking was not to be imputed to a German U-boat, because it was
revealed by the reports that the nearest German U-boat was at least 75
nautical miles away from the spot of the sinking.

(2) Accordingly Raeder, as stated in Document D-912, published a _bona
fide_ denial and gave statements to this effect to the American Naval
Attaché and to the German State Secretary, Baron Weizsäcker.

(3) Raeder did not realize the mistake until after the return of _U-30_
on 27 September 1939.

(4) Hitler insisted, as evidenced by witnesses Raeder and
Schulte-Mönting, that no rectification of the facts should be made to
any other German or foreign department, that is to say, that the sinking
should not be acknowledged as caused by a German U-boat. He apparently
let himself be guided by political considerations and wished to avoid
complications with the U.S.A. over an incident which could not be
remedied, however regrettable it was. Hitler’s order was so strict that
the few officers who were informed were put under oath to keep it
secret.

(5) Fritzsche disclosed, that after the first investigation by the Navy
in early September 1939, he made no further investigation and that the
_Völkischer Beobachter_ article appeared as the result of an agreement
between Hitler and Goebbels, without previous notice to Raeder. On this
point the testimonies of Raeder and Schulte-Mönting coincide. It is
consequently clear that Raeder—contrary to the claim of the
Prosecution—was not the author of the article and, moreover, knew
nothing about the article before its appearance. I regret the fact that
in spite of this clarification the Prosecution are apparently intent
upon persisting in their claim by the submission, on 3 July 1946, of a
new document, D-912. This newly-submitted document only contains radio
broadcasts by the propaganda Ministry, which are of the same nature as
the _Völkischer Beobachter_ article. These radio broadcasts were a
propaganda instrument of Goebbels and cannot, any more than the article,
be brought up as a charge against Raeder, who in fact was at the time
informed only of the article, not of the radio broadcasts. Even the fact
that Raeder, after being informed of the article, did not attempt to
obtain a rectification, cannot be made a moral charge against him, since
he was bound by Hitler’s order and had no idea at the time that Hitler
himself had had a hand in the article, which Weizsäcker aptly described
as perverse fantasy.

In this connection I would remind the Tribunal that it is a well-known
fact that precisely at the beginning of the war inaccurate reports also
appeared in the English press about alleged German atrocities, which,
even after their clarification, were not rectified, as for instance, the
false report about the murder of 10,000 Czechs in Prague by German
elements in September 1939, although the matter had been cleared up by a
commission of neutral journalists.

The Prosecution professes to possess overwhelming material against all
the defendants. If this presumption were correct with reference to
Raeder, the Prosecution would scarcely have felt the need of bringing
forward this _Athenia_ case, of all things, in such ponderous and
injurious terms for the sole purpose of discrediting the former
Commander-in-Chief of the Navy.

Concerning Greece, the Prosecution accuses Raeder of violation of
neutrality and breach of international law on two counts, namely:

(1) On the basis of Document C-12, according to which Hitler decided,
basing on a report by Raeder on 30 December 1939, that:

    “Greek merchant ships in the zone around England which the
    U.S.A. declared prohibited will be treated like enemy ships.”

(2) According to Document C-176, on the occasion of the delivery of a
report to Hitler on 18 March 1941, Raeder asked for confirmation that
“all of Greece was to be occupied, even in case of peaceful settlement.”

In the course of the Trial both accusations have turned out to be
untenable; in both cases there is no action which violated international
law.

With reference to the first accusation it should be pointed out that
Raeder and the German Naval Command learned in October or November 1939
that quite a number of Greek merchant ships had been put at the disposal
of England, either at the request or with the approval of the Greek
Government (Documents Number Raeder-53, 54). This fact cannot be
reconciled with strict neutrality, and according to the principles of
international law that gave Germany the right to take an equivalent
countermeasure. This justified countermeasure consisted in treating
Greek ships heading for England as enemy ships from the moment they
entered the zone around England which had been declared prohibited by
the United States.

With reference to the second accusation it must be noted that Germany,
especially the High Command of the Navy, had received reports that
certain Greek military and political circles had maintained very close
connections with the Allied General Staff ever since 1939. As time went
by more and more reports came in. What the Allies were planning in the
Balkans is known; the intentions were to erect a Balkan front against
Germany. For this purpose local conditions in Greece, as well as in
Romania, were examined by Allied officers on behalf of the Allied
General Staff in order to establish airplane bases there. Furthermore,
preparations were made to land in Greece. As proof I have presented, as
Exhibit Number Raeder-59, the minutes of the session of the French War
Committee of 26 April 1940, which shows that the War Committee was at
that time already examining the question of possible operations in the
Caucasus area and in the Balkans and which further reveals the activity
of General Jauneaud in Greece for the purpose of continuing
investigations and preparations and shows how he endeavored to
camouflage his trip by making it in civilian clothing (Document Number
Raeder-63).

This attitude of Greece, and especially her falling in with Allied
plans, represents a violation of neutrality on the part of Greece; for
Greece did not appear as England’s ally but formally continued to
maintain her neutrality. Therefore, Greece could no longer expect that
Germany would fully respect Greek neutrality. Germany nevertheless did
do so for a long time. The occupation of Greece took place in April 1941
only after British troops had already landed in southern Greece on 3
March 1941.

The fact that Greece agreed to the British landing is, according to
generally recognized rules, without significance in international legal
relations and with regard to the international legal decision between
Germany and England and between Germany and Greece; it has importance
only in the legal relations between England and Greece.

The British Prosecution tried to justify the occupation of Greece by
pointing to the fact that Greek neutrality was menaced by Germany,
especially by the occupation of Bulgaria on 1 March 1941. In this
connection the Prosecution is overlooking the fact that not only did the
occupation of Greece by British forces start considerably earlier than
the German planning, but also the planning of the Allies. But be that as
it may, in any case, no accusation whatever can be made against Raeder,
because the date of the document submitted by the Prosecution is 18
March 1941, which means that it is 14 days later than the landing of the
British in southern Greece. At that time Greece could certainly no
longer demand that her alleged neutrality be respected. It is also an
unjustified charge when the Prosecution points out that Raeder asks for
confirmation that all of Greece will be occupied. This request by Raeder
cannot be made responsible for the fact that all of Greece was occupied,
for Hitler had already provided in his Directive Number 20 of 13
December 1940 that the entire Greek mainland was to be occupied, in
order to frustrate British intentions of creating a dangerous basis for
air operations under the protection of a Balkan front, especially for
the Romanian oil district. In addition to that, the inquiry of Raeder on
18 March 1941 was justified on strategic grounds, because Greece offered
many landing possibilities for the British and the only possible defense
was for Greece to be firmly in the hands of Germany, as the witnesses
Raeder and Schulte-Mönting have explained.

This strategic conception of Raeder had nothing to do with plans of
conquest or thirst for glory, as the Prosecution thinks, for the Navy
won no glory whatsoever in Greece, since the occupation was a land
operation. The occupation of an originally neutral country is simply the
regrettable consequence of such a large-scale war; it cannot be charged
to one belligerent if both belligerents had plans concerning the same
state, and carried out these plans.

I should like now to go on to the subject of Norway. On 9 April 1940
troops of all three branches of the German Armed Forces occupied Norway
and Denmark. From this and the preceding plans, the Prosecution have
brought the gravest accusation against Grossadmiral Raeder, together
with the collective charge of participation in a conspiracy.

The British prosecutor pointed out that it was Raeder who first
suggested the occupation of Norway to Hitler, and believes that Raeder
did so out of a spirit of conquest and vainglory. I shall demonstrate
that this argumentation is incorrect. One thing is true, that is that in
this single instance Raeder took the initiative of first approaching
Hitler on the subject of Norway, namely on 10 October 1939. However, I
shall show that in fact in this connection he acted not as a politician
but exclusively as a soldier. Raeder sensed purely strategic dangers and
pointed out these strategic dangers to Hitler, because he assumed that
the Allies were contemplating the establishment of a new front in
Scandinavia and in Norway, in particular, and realized that an
occupation of Norway by Britain might have militarily disastrous
consequences for Germany. I shall show that Germany committed no
violation of international law by the occupation of Norway. Before I
state the legal foundation and connect the facts established by the
appraisal of evidence with the principles of international law, I should
like first to state an important fact:

As Raeder’s examination shows and as disclosed by Schulte-Mönting’s
interrogations, he very reluctantly advocated the Norwegian campaign as
Commander-in-Chief of the Navy. Raeder had the natural feeling born of
justice that a neutral state could not be drawn into the existing war
without an absolutely imperative emergency. During the period between
October 1939 and spring 1940, Raeder always upheld the theory that by
far the best solution would be for Norway and all Scandinavia to remain
absolutely neutral.

Raeder and Schulte-Mönting were in agreement on this point during their
interrogations; and it is, moreover, proved by documents. For this, I
refer to Exhibit Number Raeder-69 where the conviction of Raeder is
expressed that the most favorable solution would undoubtedly be the
preservation of the strictest neutrality by Norway; this is entered in
the War Diary on 13 January 1940. Raeder clearly saw that an occupation
of Norway by Germany, for reasons of international law or strategy,
could only be conceivable if Norway could not or would not maintain
absolute neutrality.

The Prosecution has referred to the treaties between Germany and Norway,
in particular to Document TC-31, by which the Reich Government, on 2
September 1939, expressly assures Norway of her inviolability and
integrity. In this memorandum, however, the following legitimate remark
is added:

    “As the Reich Cabinet makes this declaration, it naturally also
    expects that Norway in turn will observe irreproachable
    neutrality toward the Reich and that it will not tolerate
    breaches of Norwegian neutrality, should attempts along that
    line be made by third parties.”

If, despite this fundamental attitude, Germany decided to occupy Norway,
this was done because the plans of the Allies made imminent the danger
of an occupation of Norwegian bases by them. In his opening speech Sir
Hartley Shawcross declared that Germany’s breach of neutrality and her
war of aggression against Norway remained criminal in the sense of the
Indictment even if Allied plans for the occupation had been correct, and
he added that in reality such plans were not true. I believe that the
argument advanced here by Sir Hartley Shawcross is contrary to accepted
international law. If Allied plans for the occupation of Norwegian bases
existed and there was a risk that Norway neither would nor could
maintain strict neutrality, then accepted standards of international law
did sanction Germany’s Norwegian campaign.

I would first like to bring up the juridical viewpoints based on
prevailing international law in order to create a foundation for my own
statements, and thereby at the same time to set forth those legal
viewpoints which contradict the Prosecution’s interpretation. In order
to save time in this legal exposition and make the subject matter
clearer I have submitted as Exhibit Number Raeder-66 an opinion on
international law with regard to the Norway campaign by Dr. Hermann
Mosler, professor of international law at the University of Bonn. The
High Tribunal will remember that I was given permission to make use of
this opinion for purposes of argumentation, and I would therefore refer
at this point to this detailed scientific compilation and findings. For
the purpose of final plea I shall confine myself to a summary of the
essential concepts of the opinion.

Articles 1 and 2 of the Hague Convention on Rights and Obligations of
Neutrals in the event of warfare at sea stipulate that the parties at
war are bound to respect the rights of sovereignty of neutral powers in
the territory and coastal waters of the neutral power, and all hostile
acts of warships of the belligerent parties within the coastal waters of
a neutral power are strictly banned as violations of neutrality.
Contrary to these stipulations Great Britain violated Norway’s
neutrality through the laying of mines in Norwegian coastal waters for
the purpose of obstructing the legitimate passage of German warships and
merchantmen, especially in order to cut off shipments of iron ore from
Narvik to Germany. In the letter from the British Foreign Office which I
received in reply to my petition for authorization to submit files of
the British Admiralty, confirmation as per Exhibit Number Raeder-130 was
received to the effect that His Majesty’s forces laid mine fields in
Norwegian waters, and in addition it was stated that this was a
well-known fact (Documents Number Raeder-83, 84, 90).

The fact is presumably uncontested that thereupon Germany was justified
in restoring the equilibrium between the belligerent parties, in other
words by setting her Armed Forces to wrest from the enemy the benefit he
was deriving from a violation of neutrality. Reaction against such a
violation of neutrality is directed primarily against the enemy, not
against the neutral. The legal relationship to neutrality ...

PRESIDENT [_Interposing_]: Dr. Siemers, the Tribunal would like to know
what your contention is on this subject. Do you contend that any breach
of neutrality of a warring state entitles one of the warring nations to
enter that neutral state?

DR. SIEMERS: Mr. President, in this general way one certainly could not
say that. It is a principle of international law that a violation of
international law committed by one state only entitles the other warring
nation to a countermeasure in proportion to the breach of neutrality
committed. Certainly an occupation of Norway on the part of Germany
would not be justified because Britain mined the coastal waters. The
fact does not justify an occupation.

PRESIDENT: Would it be your contention that it made any difference on
the rights of Germany if Germany were to be held to be an aggressor in
the original war?

I will repeat it. According to your contention, would it make any
difference that Germany was held, if it were held, to be the aggressor
in the original war out of which the occupation of the neutral country
occurred?

DR. SIEMERS: Mr. President, I beg to apologize, but I am afraid I cannot
quite understand the sense as it comes through in translation.

PRESIDENT: I will say it again more slowly. According to your
contention, would it make any difference if the Tribunal were to think
that Germany had been the aggressor in the war which led to the
occupation of the neutral state?

DR. SIEMERS: My apologies, Mr. President. Now, if I understood that
correctly, you wish me to answer the question whether the fact that
previously a war had been begun by Germany against Poland would
influence juridical attitude toward the question of Norway.

PRESIDENT: Assuming, I only say assuming that the war begun by Germany
against Poland were to be held to be an aggressive war.

DR. SIEMERS: Mr. President, I believe that I must answer in the
negative, because the individual facts under international law must be
dealt with separately. The fact that the Tribunal may possibly assume
that an aggressive war was conducted against Poland cannot, from the
point of view of international law, have any effect upon subsequent
years.

That, incidentally, is the point of view which, I believe, was adopted
by the Prosecution, for Sir Hartley Shawcross also, dealt with the
question of Greece and the question of landings entirely under the
aspect of Greek events and did not contend that Britain could occupy
Greece because Germany had occupied Poland. He said, just as I did, that
from the legal standpoint of international law Britain could occupy
Greece because Greece was threatened by a German occupation. That is
what I am saying from the point of view of international law with
reference to Norway; as my further remarks will show, I am not trying to
draw any other parallels.

PRESIDENT: Yes. There is one other question which I should like to ask
you. Is it your contention that Germany was entitled under international
law to use the territorial waters of Norway, either for her warships or
for the transport of ore, or for the transport of prisoners of war?

DR. SIEMERS: In my opinion, from the standpoint of international law,
the situation is that Germany was entitled to use the coastal waters,
observing at the same time the various international rules, such as for
instance, only brief stays in ports and similar rulings like the
obligation to submit to investigation by neutrals in the case of the
_Altmark_. But basically, carrying on shipping operations from Narvik
was justified according to international law as far as I know.

PRESIDENT: Continue.

DR. SIEMERS: Mr. President, with reference to the last point, may I add
one thing? Should the view be adopted that Germany was not allowed to
use these coastal waters, then the mining of these coastal waters would
have been a justified breach of neutrality on Britain’s part, so that,
as far as I am concerned, the mining operation as grounds for this would
have to be left out of my plea, though not the other facts I am citing.
Mining the waters is in equivalent proportion to the use of the coastal
waters. I myself consider that the mining operation was not permissible,
while passage through coastal waters was; but this does not affect the
entire subject of the occupation of Norway. I hope I shall be understood
as not meaning that Germany was justified in occupying Norway because
Britain had mined the coastal waters.

PRESIDENT: But you are saying, are you, that Germany was entitled to use
the coastal waters, first of all, for the transport of ore; secondly,
for her warships?

DR. SIEMERS: Yes.

PRESIDENT: And thirdly, for the transport of prisoners of war?

DR. SIEMERS: Yes. It is my opinion, Mr. President, that as to ore
shipments there is no prohibitive clause in international law, so that
this shipping was permissible.

With reference to prisoners of war, may I point out that only one case
arose and that is the case of the _Altmark_. If Germany was not deemed
authorized to use coastal waters for the transport of prisoners of war,
then that could at most lead to Britain’s adopting an equivalent single
countermeasure; but she would not be justified in mining the entire
coastal waters. The mining of the entire coast, from the point of view
of international law, is only justified if you adopt the point of view
that Germany’s merchant shipping was prohibited from entering those
coastal waters by international law. But that, in my opinion, is not the
situation.

PRESIDENT: You may continue.

DR. SIEMERS: Reaction against such violation of neutrality is primarily
directed against the adversary, not against the neutral party. Legal
relationship deriving from neutrality exists not only between the
neutral party and the two belligerent parties, but the neutrality of the
state in question is at the same time a factor in direct relations
existing between the belligerent parties. If the relationship of
neutrality between one of the belligerent parties and the neutral power
suffers disturbance, the neutral power can in no way file complaint if
the other belligerent power takes appropriate action; at the same time
it is entirely immaterial whether the neutral state is unable or
unwilling to protect its neutrality (Document Number Raeder-66).

The legal title under which the belligerent power thus placed at a
disadvantage can proceed to take countermeasures is the “right of
self-defense” (_das Recht der Selbsterhaltung; le droit de défense
personelle_). As brought out in detail by this opinion, this right of
self-defense is generally recognized by international law. It suffices
to point out here that this basic law is not affected by the Kellogg
Pact, which has so often been mentioned in this Court. In this
connection I ask permission to offer the following brief quotation from
the circular memorandum of the U.S. Secretary of State, Kellogg, dated
23 June 1938:

    “There is nothing in the American draft of an antiwar treaty
    which restricts or prejudices the right of self-defense in any
    manner. That right is inherent in every sovereign state and is
    implied in every treaty.”

Justice Jackson will permit me to mention that he himself, in his
opening speech of 21 November 1945, referred to the “right of legitimate
self-defense.”

It is interesting that in his address before Parliament on 8 February
1940, the Swedish Foreign Minister, Guenther, recognized this concept,
although he represented the interests of a state whose neutrality was
endangered at the time, and in addition was speaking before Germany
proceeded to retaliatory measures in Norway (Document Number Raeder-66).
In that address Guenther expressed his opinion with regard to the
British declaration that Sweden’s neutrality would be respected only as
long as it was respected by Britain’s enemies. Guenther recognized the
fact that Sweden, in her relationship to England, would lose her
neutrality should Germany violate Sweden’s neutrality and should Sweden
be neither willing nor able to prevent such violation of her neutrality
by Germany. Consequently, Guenther said, Great Britain would no longer
be required to treat Sweden as a neutral country. It is obvious that the
conclusions drawn by Guenther in the event of a breach of Sweden’s
neutrality by Germany must also apply to the three-cornered legal
relationship between Great Britain, Germany, and Norway. What was
involved, however—and this I shall set forth in my presentation of
evidence—was not Great Britain’s mine-laying activity in Norwegian
coastal waters but a much more far-reaching Anglo-French scheme aiming
at the occupation of Norwegian bases and of a portion of the Norwegian
home territory. The mine-laying activity enters into the picture merely
as a part of the total plan.

According to Mosler’s opinion and in the light of the above remarks, it
is absolutely clear that Germany was justified in occupying Norway had
the Allies carried part of their plan into effect by landing at a
Norwegian base before German troops made their appearance. This,
however, was not the case. Rather, as I will show, was the situation
such that Germany anticipated an Anglo-French landing; in other words,
she decided on countermeasures in anticipation of the imminent danger
which threatened.

Another legal question arises therefrom: Assuming the same conditions,
are countermeasures by a belligerent permitted only after the opposing
belligerent has proceeded to violate neutrality, or is a reaction
permitted beforehand in view of the imminently threatening violation of
neutrality, in order to head off the enemy’s attack which can be
expected at any moment?

According to the well-founded opinion of Dr. Mosler preventive
countermeasures are permissible; and an impending violation of
neutrality, which can be expected with certainty, is considered equal to
a completed violation of neutrality.

The well-known English specialist on international law, Westlake, states
with regard to the question of measures:

    “Such a case in character resembles one where a belligerent has
    certain knowledge that his opponent, in order to gain a
    strategic advantage, is just about to have an army march through
    the territory of a neutral who is clearly too weak to resist;
    under the circumstances it would be impossible to refuse him the
    right to anticipate the attack on the neutral territory.”

The justification for such a preventive measure, according to Westlake,
lies in the right of self-defense, which applies equally against a
threatening violation of neutrality. Any other concept would fail to
meet the facts of life and would not correspond to the character of the
society of nations as an aggregation of sovereign states with an as yet
incompletely developed common code of law. In the domestic law system of
every civilized country the prevention of an immediately threatening
attack is a permissible act of defense, although in such a contingency
even the help of the state against the law-breaker is available. In the
community of international law, where this is not the case—at any rate
not at the beginning of and during the second World War—the viewpoint
of self-defense must apply to an even greater extent. In keeping with
this concept, the British Government during this war also considered the
preventive measure justified when it occupied Iceland on 10 May 1940.
The British Government justified this measure clearly and correctly in
accordance with international law in an official announcement of the
Foreign Office, as follows:

    “After the German occupation of Denmark it has become necessary
    to count on the possibility of a sudden German raid on Iceland.
    It is clear that the Icelandic Government, in case of such an
    attack, even if it were only carried out with very small forces,
    would be unable to prevent the country from falling completely
    into the hands of the Germans.”

The preventive measure was carried out by Britain, although Iceland
expressly protested by a note against the occupation. I also ask to note
that the United States agreed with this standpoint of law, as is proved
by the well-known message from the President of the United States to
Congress of 7 July 1941, and the subsequent occupation of Iceland by
armed forces of the American Navy.

In accordance with these basic principles of law, the facts at hand must
be examined. I have tried to clarify the facts in the presentation of
evidence, and I would like to summarize the major factors which actually
indicated a closely impending violation of neutrality on the part of the
Allies by a partial occupation of Norway, and thereby justified the
German campaign in Norway.

At the end of September and early in October 1939, Admiral Raeder, as
the evidence has shown, received various items of information through
the regular reports of Admiral Canaris as chief of intelligence and
through Admiral Carls, which gave reason to believe in the danger of the
Allies’ proceeding to occupy bases in Norway, in accordance with their
plans to encircle Germany in order to put a stop, in particular, to ore
imports from Scandinavia.

British flying personnel camouflaged in civilian clothing had been seen
in Oslo; and survey work by Allied officers on Norwegian bridges,
viaducts, and tunnels up to the Swedish border had been identified.
Furthermore, the quiet mobilization of Swedish troops, owing to the
danger to Swedish ore territories, had become known. Raeder was
justified in considering himself obliged to report these facts to Hitler
and to point out to him the danger which would arise for Germany if
British and French armed forces were to gain a foothold in Scandinavia.
The dangers were clear. They consisted of the cutting-off of all imports
from the industrial areas of Scandinavia, in particular of the ore
imports, as well as in the fact that the Allies would obtain a favorable
base for air attacks, and last but not least, in the fact that the
German Navy would be threatened on its flank and its operational
potentialities would be limited.

The blockade of the North Sea and Baltic would have had strategically
disastrous consequences. As the information did not yet allow of a final
over-all picture, Raeder did not suggest immediate occupation, but only
pointed out the dangers, intending to await further developments for the
time being. Neither did Hitler make a final decision during this
discussion of 10 October 1939 but agreed to wait. Similar information
was received during the months of October and November, this time also
from the naval attaché, Korvettenkapitän Schreiber, who had in the
meantime been sent to Oslo, whose affidavit (Document Raeder-107) I
would like to cite. It shows that the Norwegian shipping association had
made tanker tonnage of about one million tons available to Britain with
the consent of the Norwegian Government (Document Number Raeder-68).

In the winter of 1939-40, information took on a more definite form
concerning espionage missions given by the British and French Secret
Service to Norwegian agents and British harbor consulates for the
purpose of reconnoitering landing facilities and examination of
Norwegian railroads with regard to their capacity, particularly the
Narvik line, and missions concerning information about land and sea
airports in Norway. From the fact that the information from two
different sources, namely, the naval attaché in Oslo and Admiral
Canaris, checked and became more and more certain during the period from
October to December 1939, the danger indicated appeared to keep
increasing.

In addition, in December 1939 Quisling and Hagelin sent to
Rosenberg—entirely independently of the sources of information which
had existed up to that time—the same and similar information concerning
the landing intentions of the Allies. This did not go to Raeder for the
sole reason that Raeder did not know either Quisling or Hagelin at that
time. Since the question involved was a purely military-strategic one,
Rosenberg asked Raeder to discuss things with Quisling so that Raeder
could examine the military-technical possibilities in consideration of
the fact the aggression by the Allies in Scandinavia must be expected
according to the information received. This is evident from the letter
from Rosenberg to Raeder of 13 December 1939, which I submitted as
Exhibit Number Raeder-67. Raeder considered it his duty from the purely
military point of view to inform Hitler, with whom he had not discussed
this question in the meantime, that coinciding information had since
been received from Canaris, the naval attaché in Oslo, and Quisling.
Hitler asked to speak with Quisling personally, whereupon he decided, in
order to meet the threat, to make the necessary preparations for an
eventual preventive measure, namely, the occupation of Norway (Document
C-64, Exhibit Number GB-86).

The final decision was still deferred, and further information was
awaited as to whether the danger appeared to increase. This caution and
delay will readily be understood in the case of Raeder. As I have
already observed, Raeder would have preferred to see the neutrality of
Norway maintained, especially since he was against any conquest just for
the sake of conquest. He knew, on the other hand, that an occupation
required the commitment of the whole Navy, thus involving the fate of
the entire Navy, and that the loss of at least a third of the whole
fleet had to be reckoned with. It must surely be clear how difficult,
from such political and strategic viewpoints, such a decision was for a
responsible man and soldier.

Unfortunately, during the first months of the year 1940, the reports
multiplied and kept becoming more certain. In March 1940 uncommonly many
English-speaking persons could be seen in Oslo, and Raeder received very
serious and credible information about impending measures by the Allies
against Norway and Sweden. As far as landing intentions were concerned,
Narvik, Trondheim, and Stavanger were mentioned. In this manner the
military planning actually was not undertaken until February and March
1940, and final instructions were issued to the Wehrmacht only in March
1940. In addition, numerous violations of neutrality occurred in March
1940, which have been collected in the War Diary (Documents Raeder-81
and 82), and also the mine-laying in Norwegian territorial waters at the
beginning of April.

The Prosecution has put in only a few documents against this
comprehensive informative material, according to which the German
Minister in Oslo, Breuer, did not look upon the danger as being so great
but believed that British activities, which he also reported, tended
merely to provoke Germany into opening war operations in Norwegian
waters (Documents Number D-843, Exhibit GB-466; D-844, Exhibit GB-467;
D-845, Exhibit GB-486).

Baron Weizsäcker’s point of view in cross-examination was that at first
he did not consider the danger so great either; but he admitted that
later on the facts proved that he and Breuer were wrong, while Raeder
had been right in his apprehension.

This objective accuracy of the opinion of Admiral Raeder, and of the
information on which he based his opinion, is shown in the various
documents submitted by me and accepted by the Court.

Since 16 January 1940, the French High Command had been working on a
plan which had in view, among other things, the occupation of harbors
and airfields on the west coast of Norway. The plan provided, in
addition, for an eventual extension of operations to Sweden and
occupation of the mines of Gallivare (Document Number Raeder-79).
Efforts have been made to justify this plan by stating that it was
elaborated solely to help Finland against the Soviet Union.

To begin with, it might be argued in contradiction to this that an
action in support of Finland does not justify any occupation of
Norwegian territory. Moreover, the documents show that it was not only a
question of altruistic measures in favor of Finland. During the
inter-Allied military conferences on 31 January and 1 February, which
preceded the meeting of the Supreme Council on 5 February, the question
of direct help for Finland was relegated by the British to second place;
they showed themselves to be determined supporters of an enterprise
against the mines of northern Sweden. This is confirmed by General
Gamelin in a note of 10 March 1940 (Document Raeder-79), and he adds
that this opinion obtained the majority vote in the Supreme Council and
that preparations for the Scandinavian expedition should be started
immediately.

And so it came about that the Franco-British fighting forces had been
ready for transportation since the first days of March; according to
Gamelin, the leadership of the proposed operations in Scandinavia was in
the hands of the British High Command. Gamelin adds finally that the
Scandinavian plans must be resolutely pursued further in order to save
Finland—I quote, “or at least to lay hands on the Swedish ore and the
northern harbors.”

Lord Halifax informed the Norwegian Minister on 7 February that Britain
wished to obtain certain bases on the Norwegian coast in order to stop
German transports of ore from Narvik (Document Raeder-97). By
mid-February, British and French General Staff officers were, in
agreement with the Norwegian authorities, inspecting landing places
(Document Raeder-97). According to a report by the German Legation in
Stockholm, dated 16 February 1940, British intentions in this respect
were to land troops simultaneously at Bergen, Trondheim, and Narvik. On
21 February 1940 Daladier communicated to the French Ambassador in
London, Corbin, that the occupation of the most important Norwegian
ports and the landing of the first body of the Allied fighting forces
would give Norway and Sweden a feeling of security; and he goes on to
say that this operation must be planned and executed at shortest notice,
“independently of Finland’s call for assistance.” In the event of this
_démarche_ meeting with refusal by Norway, which was likely, the British
Government was to take note of the Norwegian attitude and immediately
seize control of the bases it needed for the safeguarding of its
interests, doing so in the form of a “surprise operation.” Whether
Sweden would refuse passage through to Finland did not appear important;
what is being emphasized is rather—and I quote:

    “... the advantage of having secured a dominating position
    against Germany in the North, interrupted the sea transport of
    Swedish ore, and brought the Swedish ore districts within range
    of our aviation” (Documents Raeder-77 and 80).

On 27 February 1940, Churchill declared in the House of Commons that he
was “tired of considering the rights of neutrals” (Document Raeder-97).

It is interesting to note that unanimity was achieved in the sixth
session of the Supreme Council on 28 March 1940—I quote:

    “Every endeavor on the part of the Soviet Government to obtain
    from Norway a position on the Atlantic coast runs counter to the
    vital interests of the Allies and results in appropriate
    counteraction” (Document Raeder-83).

The view thereby adopted by the Supreme Council with reference to the
vital interests of the Allies coincides exactly with the legitimate
notions of the “right of self-defense” as presented by me and is in
complete contradiction to the interpretation of international law
propounded by the Prosecution.

The ultimate execution of the operation in Norway, that is, the landing
and the construction of bases, was decided on 28 March 1940 between the
authoritative British and French offices. This date was indicated at a
session of the French War Council by the French Prime Minister (Document
Raeder-59); and General Gamelin added that he had, on 29 March,
impressed upon General Ironside the necessity of having everything ready
for a swift occupation of the Norwegian ports. He said he had also
informed Mr. Churchill to the same effect on the occasion of a visit to
Paris.

One day later, 30 March, Churchill declared on the radio—I quote, “It
would not be just if, in a life-and-death struggle, the Western Powers
adhered to legal agreements” (Document Raeder-97).

On 2 April 1940 at 1912 hours, London notified Paris by telegram that
the first transport was “to sail on J. 1. day,” and that J. 1. day was
in principle 5 April (Document Raeder-85). On 5 April, Earl de la Warr
stated that neither Germany nor the neutrals could be certain that
“England would allow her hands to be tied behind her back in complying
with the letter of the law” (Document Raeder-97).

The British Minister of Labor, Ernest Brown, on 6 April 1940 declared
that neither Germany nor the neutrals could count on “the Western
Powers’ adhering to the letter of international law” (Document
Raeder-97).

On the same day—this was one day after the laying of mines by British
combat forces in Norwegian territorial waters—a secret British
operational order was given “concerning preparations for the occupation
of the northern Swedish ore field from Narvik” (Document Raeder-88).

In this order it was specified that the mission of the “Avon” Force
consisted first of all in “securing the port of Narvik and the railway
to the Swedish border.” It was added that it was the intention of the
commander “to advance into Sweden and to occupy the Gallivare ore fields
and important points of that territory as soon as an opportunity
occurs,” a formulation strikingly reminiscent of the words in the
Prosecution Document L-79, “to attack Poland at the first suitable
opportunity.”

The original plan of dispatching the first transport to Norway on 5
April was changed; for on the evening of 5 April the British High
Command informed the Commander-in-Chief of the French Navy that—I
quote:

    “... the first British convoy could not depart before 8 April
    which with respect to the time schedule established would mean
    that the first French contingent would leave its embarkation
    port on 16 April” (Document Raeder-91).

To complete the story it may be mentioned that the Norwegian operation
was designated by the Allies by the camouflage name of “Stratford Plan,”
while the German Norwegian operation was referred to by the camouflage
name of “Weser Exercise” (Weserübung) (Document Raeder-98).

All these facts go to show that, since the autumn of 1939, preparations
for possible action in Norway were made by studying landing
possibilities, _et cetera_. As from January and February 1940 the danger
of an occupation of bases in Norway by the Allies was imminent. In March
1940 the execution of the scheme was ultimately decided upon and the
departure of the first convoy was scheduled for 5 April. Simultaneously,
mine-laying was carried out in the Norwegian territorial waters and
troops were at the same time concentrated in British and French ports
for the Norwegian operation. Thus factual evidence of imminent
neutrality violations existed from the point of view of international
law; and neutrality violations had indeed been already committed to a
certain extent, as by mine-laying. This was the point where Germany, in
accordance with the international concept of the right of self-defense,
was entitled to resort to equivalent countermeasures, that is, to occupy
Norway in order to prevent the impending occupation by other belligerent
states. It was, in fact, as was shown later, high time; for Germany
forestalled the Allies only because the British High Command had
postponed the departure of the first convoy, originally scheduled for 5
April. The German operation in Norway must therefore be considered as
legitimate according to the principles of international law.

I have the firm conviction that the High Tribunal, in view of the
circumstances just presented in connection with existing international
law, will conclude that Admiral Raeder, with regard to the occupation of
Norway, acted from purely strategic points of view and in due
consideration of international legal standards, and accordingly will
acquit him of the charge made by the Prosecution.

With reference to Norway, the Prosecution has moreover charged against
Raeder—and also against Dönitz—that a violation of international law
is involved in the fact that, according to an order dated 30 March 1940,
the Naval Forces were to fly the British ensign until the troops had
been landed (Documents C-151, Exhibit GB-91; C-115, Exhibit GB-90).

This too is an error of the Prosecution as regards international law in
sea warfare. The Hague Regulations on Land Warfare do expressly forbid
the misuse of flags. In sea warfare, on the other hand, the answer to
this question according to prevailing international law is definitely
that, until hostilities begin, ships may sail with their own or with
enemy or neutral flags or with no flags at all. I take the liberty, in
this respect, of availing myself of Dr. Mosler’s juridical treatment of
the question in his opinion (Document Raeder-66), appearing under Item
7, and in particular of his references to legal literature on the
subject, according to which the use of a foreign flag is universally
considered as a legitimate ruse of war and is allowed and especially
condoned by British practice; this is in accordance with the historical
precedent when Nelson, in the Napoleonic wars, flew the French flag off
Barcelona to lure Spanish ships. This dispute is, however, superfluous
in the present case, because actually these orders to fly the British
flag were according to documentary evidence canceled on 8 April, that is
to say, prior to the execution of the Norway operation (Document
Raeder-89).

In conclusion I wish to emphasize, with reference to the subject of
Norway, that after the occupation of Norway Raeder and the German Navy
did everything they could to give a friendly character to the relations
with Norway, to treat the country and the people decently during the
occupation, and to spare them every unnecessary burden. Raeder and the
commanding admiral in Norway, Admiral Böhm, moreover endeavored to
conclude a peace with Norway guaranteeing Norwegian national interests.
Their efforts were frustrated through the creation by Hitler and Himmler
of a so-called civil administration under Reich Commissioner Terboven
which, unlike the Armed Forces, was linked with the Party, the SS, SD,
and Gestapo (Documents Number Raeder-107 and 129). As confirmed by Böhm
in his affidavit, Raeder repeatedly intervened with Hitler in favor of
treating the Norwegian people well and for an early conclusion of peace
and, together with Böhm, proceeded with the utmost vigor against
Terboven. Here again, the tragic fact is that the Armed Forces, despite
its utmost efforts, was neither able to oppose Hitler’s dictatorial
methods nor the dictatorial methods employed, with Hitler’s knowledge,
by such a mediocre Reich Commissioner as Terboven. The Norwegian people
who had to suffer under the occupation know—and this is the only
gratification for Raeder—that the Navy was not the cause of these
sufferings. On the other hand, it is interesting to know that the
differences which cropped up between Hitler and Raeder with reference to
Norway are precisely among the chief motives which ultimately caused
Raeder to insist upon his resignation in September 1942. Other motives
were that Raeder also had differences with Hitler over France, because
here again Raeder urged the conclusion of peace, while Hitler, with his
extreme nature, was opposed to conciliatory steps of that kind in
occupied territories. Raeder also had differences with Hitler regarding
Russia, because he was in favor of observing the German-Russian treaty,
and declared himself opposed to breaking the Treaty and going to war
with Russia.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

DR. SIEMERS: I now come to the charge of the Prosecution with regard to
a war of aggression against Russia. The charge of the Prosecution on
this subject cannot be very well understood. Land warfare only was
concerned, so that the Navy did not have to make any preparations, with
the exception of a few in the Baltic Sea. The Prosecution itself has
furthermore stated that Raeder had been opposed to the war against
Russia. The only thing which might be left of the charge of the
Prosecution is its claim that Raeder had fundamentally been in favor of
the war against Russia also and had only been opposed to Hitler with
regard to the time factor. With reference to Document Number C-170 the
Prosecution states that Raeder had only recommended the postponement of
the war against Russia until after the victory over Britain. In the
light of Document C-170 this actually might appear plausible. In
reality, however, the case is different, and the true state of affairs
has been cleared up by the detailed presentation of evidence. The
witness Admiral Schulte-Mönting has clearly stated, without being
contradicted in cross-examination, that Raeder not only raised
objections with regard to the time but that he argued with Hitler about
a campaign against Russia and did so for moral reasons and reasons of
international law, because he was of the opinion that the Non-Aggression
Pact with Russia as well as the trade agreement should be observed under
all circumstances. The Navy was especially interested in deliveries from
Russia and always tried to observe the treaties strictly. Besides this
basic principle of observing treaties, that is, besides this general
reason, Raeder was of the opinion that a war against Russia would also
be wrong from the strategic standpoint. His own testimony and that of
Schulte-Mönting show that in September, November, and December 1940
Raeder tried again and again to dissuade Hitler from contemplating a war
against Russia. It is correct that in Document C-170 only the strategic
justification for his opposition has been recorded. However, this is not
at all surprising because in the papers of the Naval Operations Staff
naturally only justifications were recorded which were of
naval-technical and strategic importance, but not political reasons.

I have already shown that as a general principle Hitler did not permit
Raeder, as Commander-in-Chief of the Navy, to intervene in questions
concerning foreign policy, that is to say, in things which did not
belong in his department. If Raeder did on occasion undertake this
contrary to the will of Hitler in cases of special importance, then he
could do so only privately, and was then unable to record these
conversations in the War Diary. However, he always told everything to
his Chief of Staff as his closest confidant. As a result Schulte-Mönting
could absolutely confirm that Raeder in this case opposed Hitler because
of misgivings with regard to morality and international law, and
furthermore also employed strategic reasons in the hope of thus being
able to bring more influence to bear on Hitler. Schulte-Mönting even
stated—just like Raeder—that in November the latter had gained the
impression, after a discussion, that he had dissuaded Hitler from his
plans. I believe that this has clarified the matter, and only the tragic
fact remains that Hitler paid just as little attention to Raeder’s
political objections with regard to Russia as with regard to Norway and
France.

A similar situation obtains with regard to the charge of the Prosecution
referring to the war of aggression against the United States and the
violation of the neutrality of Brazil. Both of these charges are
sufficiently refuted within the framework of the evidence, so that I am
only going to discuss them very briefly.

According to the statement of the Prosecution, Raeder somehow
collaborated in the plan to induce Japan to attack the United States. As
a matter of fact no naval strategic conferences were held between Japan
and Raeder. Raeder always held the conviction that a war against the
United States must be avoided just as much as a war against Russia. This
attitude is understandable seeing that he had always held the opinion
that Hitler should under no circumstances wage a war against Britain.
Since the war against Britain had now come about, it was Raeder’s duty
as Commander-in-Chief of the Navy to use all his strength to fight
successfully against Britain. Raeder knew the limitations of the
fighting capacity of the Navy; and it was, therefore, quite out of the
question that he should have collaborated in an extension of the naval
war, considering, as he did, that the conduct of a war against Britain
was already a too difficult task. Document C-152 submitted by the
Prosecution therefore mentions only a proposition that Japan should
attack Singapore and is based on the assumption that the United States
should be kept out of the war. This suggestion made to Hitler that Japan
should attack Singapore was correct in every respect. After all, we were
at war with England, and Raeder was forced to try to concentrate all his
forces against that country. He was thus justified in suggesting that
Japan—as Germany’s ally—should attack England. Moreover this, the only
discussion by Raeder, was not held until 18 March 1941, while Hitler had
already in his Directive Number 24 of 5 March 1941 established the
guiding principle that Japan must attack Singapore, which he considered
a key position of Britain (Document C-175).

I should like to interpose one sentence here. It can be seen from the
report by General Marshall that no common plan had been found to exist
between Germany and Japan.

As Schulte-Mönting has affirmed, Raeder was just as surprised by the
sudden attack by Japan on Pearl Harbor as every other German. The
attempt of the Prosecution to discredit this statement during the
cross-examination of Schulte-Mönting by introducing a telegram from the
naval attaché in Tokyo to Berlin, dated 6 December 1941 (Document
D-872), failed. In the first place Raeder probably only received this
telegram after the Japanese attack on Pearl Harbor on 7 December had
already started; and besides, Pearl Harbor is not mentioned at all in
the telegram.

The charge of the Prosecution with regard to Brazil has been refuted
just as effectively because, after my statements during the hearing of
evidence, the Prosecution did not revert to this point in any of the
cross-examinations of Raeder, Schulte-Mönting, and Wagner. The charge
was that, according to Jodl’s diary, the Naval Operations Staff
authorized and approved the use of arms against Brazilian warships and
merchant vessels fully 2 months before the outbreak of war between
Germany and Brazil (Document 1807-PS).

Apart from the testimony of witnesses, this case is refuted by
documents, namely, the complete excerpt from Jodl’s diary which I
submitted as Exhibit Number Raeder-115, as well as by Documents Number
Raeder-116 to 118. These documents reveal that Brazil had violated the
rules of neutrality by permitting the United States to make use of
Brazilian airfields as a base for attacks on German and Italian U-boats.
The Brazilian Air Ministry had furthermore officially announced that
attacks had been made by the Brazilian Air Force. Considering such
conduct, which is against all the rules of neutrality, the demand of the
Naval Operations Staff for armed action against Brazilian vessels is
justified. So here again the Prosecution failed to prove Raeder to have
committed a crime or even a violation of international law.

The Prosecution has very painstakingly submitted an exceedingly large
amount of material, and the wealth of detail called for great care in
the submission of evidence for the Defense. I have endeavored to deal
with all the charges in the submission of evidence or in my final plea,
and have made efforts to show as clearly as possible that none of them,
partly on factual, partly on legal grounds, comply with the requirements
of a criminal case within the meaning of this Charter. Insofar as I have
not, in spite of my desire for great exactitude, dealt with certain
documents, it was because they seemed to me of small importance and in
any case of no importance in criminal law; for instance, the many cases
in which Raeder was only mentioned because—without officially taking
any part—he received a copy of the documents for routine reasons. It
would have been tedious to go into such recurrent cases, even if the
Prosecution reiterated these formal indications, so that one was often
tempted to recall the saying of Napoleon that repetition is that turn of
speech which acts as the best evidence.

I further believe that in my final plea for Admiral Raeder I may forego
argumentation regarding genuine war crimes, the crimes against humanity,
since I am unable to establish any connection between these and Raeder
from the material submitted by the Prosecution. Also no particular
charge is made against Raeder in this connection, with the exception of
the two cases connected with the Commando Order, namely, the shooting of
two soldiers in Bordeaux and the shooting of the British soldier Evans,
who was made a prisoner by the SD on the Swedish border after he had
previously participated in the midget submarine attack on the _Tirpitz_.
Thus far the charge has been refuted by testimony insofar as it concerns
the Navy. Both cases did not come, or came only later, to the knowledge
of the Naval Operations Staff—just before Raeder’s departure. In both
cases action was taken on the basis of the Commando Order by Hitler
himself or by the SD without the knowledge and will of the Naval
Operations Staff; and what is most important, in both cases the
documents of the Prosecution showed that these soldiers were in civilian
clothes and, therefore, were not entitled to the protection of the
Geneva Convention (Document Number D-864, Exhibit GB-457 and Document
UK-57, Exhibit GB-164).

All the other criminal facts which the Prosecution submitted, especially
applying to the East, I need not deal with, as Raeder did not
participate in them. I hope that here also I shall have the approval of
the Court in mentioning the handling of the Katyn case, in which the
Court pointed out that Raeder was not involved and therefore refused to
allow me to act as defense counsel in this connection; from this I draw
the legal conclusion that Raeder cannot even by implication through the
conspiracy be considered as burdened with these criminal facts, since he
did not know of these events and had nothing to do with them.

The case for the Prosecution is founded on a desire to see its basic
theory accepted and acknowledged, namely, the conception that so many
crimes cannot have emanated from the will of a single individual but
rather that they result from a conspiracy, a plot, involving many
persons. These conspirators could logically, in the first place, only
have been Hitler’s own collaborators, that is to say, the real National
Socialists. Since however, Hitler wished to achieve and did achieve
concrete results of military and economic import, something peculiar
transpired: There were no specialists among the National Socialists for
these tasks. Most of the National Socialist collaborators had not
previously followed a trade providing technical education. Hitler,
therefore, despite his desire to have only National Socialists around
him, took on as key people in particular fields specialists who were not
National Socialists, such as for instance Neurath for politics, and
Schacht for economics; and for military tasks, Fritsch for the Army and
Raeder for the Navy. The Prosecution followed this process from the
angle of its conspiracy theory, without paying attention to the fact
that these people, not being National Socialists, could in no way be
counted among the conspirators and without taking into account that
Hitler used these non-National Socialists only as technicians in a
well-defined field, and only as long as it seemed absolutely necessary
to him; therefore he agreed to the departure of these men, who were
essentially not in sympathy with him, as soon as the differences between
them seemed unbridgeable, which was bound to happen sooner or later with
each of them, depending on the particular field involved.

By this all-embracing conception of the idea of conspiracy and by this
extension of the Prosecution’s fight to non-National Socialists, the
Prosecution abandoned the basic concept formerly propagated abroad,
namely, that of fighting National Socialism but not against the whole of
Germany—two ideas which at no time and in no place have been really
identical, as the Prosecution now tries to make out. I do believe that
thereby the Prosecution is also going back on President Roosevelt’s
basic idea.

Yet another factual and legal point of view has not been taken into
consideration by the Prosecution. I mean the concept of the division of
competence under state law, that is to say the subdivision into
individual departments. This division of competence, founded on the idea
of division of labor, is essentially separative in character; it divides
the field of work according to local, functional, and technical points
of view. Thereby it defines positively the limits within which each
division is to become active, and at the same time it defines negatively
the boundaries of such activity by specifying which problems no longer
concern the agencies in question, that is to say, where they must not
exercise any official activity.

In a democracy additional contacts exist by virtue of general Cabinet
meetings and through the Prime Minister, the Reich President, or the
Reich Chancellor, as the case may be. In a dictatorship it is different,
particularly if the dictator, as was the case with Hitler in the
National Socialist State, exploits the segregation of the various
departments with extreme skill and sees to it that they are kept as
isolated as possible, with the result that all power of decision rests
finally with him as the dictator, who may even play off one department
against the other. The strict partitioning into governmental departments
as carried out in the National Socialist State in itself refutes the
concept of conspiracy and renders it extremely difficult for the
individual to exceed the limits of his own department in any manner.

This significance may be illustrated by the following example: The
maintenance of political relations with other states, the contracting or
cancellation of agreements or alliances with other states, the
declaration of war and conclusion of peace, are matters within the
jurisdiction of the authority directing foreign affairs; but they are
not within the jurisdiction of the agencies concerned with domestic
tasks, such as for instance the Reich Finance Administration, Justice,
or the Military.

Thus, since the decision concerning war and peace is not a matter for
the military, the military has to accept the decisions made by the
political leadership, decisions which have a binding material effect on
the military authorities. The military commander must assume for his
department the consequences resulting from the decision. As soon as war
is declared, the military forces must fight. They do not bear any
responsibility for the war, since they were not able to take part in the
decision that war should be declared. Consequently, for an army the
concept of war of aggression exists in the strategic sense only. Aside
from that, any war it may be obliged to wage is, to the army, simply
war, regardless of how it may be qualified legally (Article 45 of the
Reich Constitution).

Responsibility, from the point of view of state law and criminal law, is
in proportion to the extent of jurisdiction. Therefore, if the
commander-in-chief of a branch of the Armed Forces is responsible solely
for the waging of war, though not for the causes leading to war, his
responsibility in respect to a strategic plan must be confined to the
plan as such, but not to the possible origin of the war for which the
strategic plan was worked out.

This officially and legally important segregation of governmental
departments and the distribution of authority was, in the interest of
strengthening his own power in a particularly emphatic manner, carried
out by Hitler in many domains, such as for instance the creation of the
“Delegate for the Four Year Plan,” whose field of work should have
belonged to the Ministry of Economics; the creation of Reich
Commissioners in the occupied territories, whose activity really should
have come under military administration; and, finally, a fact of
interest in the Raeder case, the very precise delimitation of the three
branches of the Armed Forces and the elimination of the Reich Defense
Minister or Minister of War who held the three branches of the Armed
Forces together and unified them. The greater the number of governmental
departments became, the stronger Hitler became as dictator, being the
only person with authority over all the innumerable agencies. But along
with this the official as well as the legal responsibility for strategic
plans on the part of any one individual department decreased; in this
instance, that of the Navy.

Consequently, the commander-in-chief of a branch of the Armed Forces,
for instance the Navy, can in case of strategic planning only be
responsible for the planning of naval strategy; he is not afforded an
over-all picture of the total plan. The total plan was discussed
nowhere; politically and militarily it was in Hitler’s hands
exclusively, because he alone was the center where all threads, all
activities of the individual departments joined.

May I add a sentence here and remind you that, for instance, in the case
of the Norway action even Göring was not informed until March 1940,
which is one proof of the extreme segregation of the individual
departments within the Armed Forces. In addition, purely strategic
planning as such cannot be criminal, because it is customary in every
country and because in every country the military commander of a branch
of the Armed Forces does not and cannot know to what end the political
leadership will use the plan prepared by him, whether for a war of
aggression or a defensive war.

The documents submitted in my document books prove convincingly that the
military agencies in Allied countries as well as in Germany worked out
strategic plans in the same manner, for the same areas, and at the same
times, namely, in regard to Norway, Belgium (Documents Number Raeder-33
and 34), Holland, Greece, Romania; moreover, the Allied plans included
the destruction of the Romanian oil fields and especially of the oil
sources in the Caucasus (Document Number Ribbentrop-221 and Number
Raeder-41). Particularly the plans concerning the Caucasus on the part
of the Supreme Council, that is, the combined British and French General
Staff, show the correctness of the statements. The Supreme Council would
certainly refuse to be made politically responsible for these strategic
plans, although the Soviet Union was still neutral at the time and the
execution of the plans was to strike a blow not only at an enemy
country, Germany, but also at a neutral, the Soviet Union, as the
documents show.

The similarity of the documents concerning such plans is absolutely
convincing and shows a strong parallel trend. May I point in this
connection to statements I made here on occasion of the comprehensive
discussion regarding the relevance and admissibility of the documents
submitted by me; may I point, in addition, to Document Number
Raeder-130, the letter of the Foreign Office, in which submission of the
British Admiralty files is refused but in which the plans in regard to
Norway and the whole of Scandinavia are admitted, with the remark that
the plan was not put into effect, which fact was due only to Germany’s
having forestalled the execution of the plan.

Anyone is entitled to be a pacifist and, therefore, basically opposed to
the military. However, one must be consistent and take a stand not only
against German military force but against any military force. One may
condemn the fact that the military, as the operational authority,
prepares military plans; and one may for the future insist that such
planning shall be punishable. But in that case not only German military
planning, but foreign military planning also must be punishable.

These points show that the Prosecution misjudges both actual and legal
conditions in desiring to make Raeder responsible for political
decisions, although he had nothing to do with them but always worked
simply as a soldier. Just as there could be no suggestion 130 years ago
of bringing before a court an admiral of Napoleon, the dictator, it is
impossible now to condemn an admiral of Hitler, the dictator. With
dictators, in particular—and this the Prosecution overlooks—not only
the power and the influence of a military commander diminishes, but his
responsibility must also diminish to the same extent, for the dictator
will have seized all power and with it all responsibility—especially if
he is possessed of such an extraordinary will and such immense power as
Hitler. The French prosecutor stated literally and very aptly on 7
February 1946 before this Tribunal: “Hitler was actually the incarnation
of all will.”

The resulting strength and power has not been sufficiently appreciated
by the Prosecution, and has certainly not been taken into consideration
in the presentation of the facts and the legal conclusions. How great
this power is, Gustave le Bon shows in his famous book _Psychology of
the Masses_ (published by Alfred Kröner) in the chapter entitled, “The
Leaders of the Masses.” I quote from it:

    “Within the class of leaders quite a strict division can be
    made. The energetic people with strong wills but without
    perseverance belong to the one kind; the people with a strong,
    persevering will belong to the other kind, which is much
    rarer.... The second class, those with a persevering will,
    exercise a much greater influence in spite of their less
    brilliant appearance.”

Hitler belongs to this second class of leaders, who, in accordance with
this quotation, exercised an immense influence while, on the other hand,
he was definitely unimpressive in his brown uniform.

Gustave le Bon continues:

    “The unyielding will which they possess is an exceedingly rare
    and exceedingly powerful attribute which subdues everything. One
    does not always realize what a strong and persistent will can
    achieve. Nothing can resist it, neither nature, nor gods, nor
    men.”

These words make it clear enough that Raeder could not resist either.

Accordingly, only the question remains: Is it ever a soldier’s duty to
revolt—to resort to open mutiny? This question will be denied by every
commander all over the world and likewise by every other person with a
sole exception, namely, if it concerns the case of a dictator commanding
the commission of a crime, the criminality of which is recognized by the
military commander himself. Accordingly Raeder could be made responsible
for a military crime only, but not for a political one, because for the
political crime the dictator himself must answer. When the Prosecution
came to the opposite conclusion regarding Raeder, this was due—as I
have already emphasized in my introduction—only to their misconception
of the actual and juridical facts; they regarded Raeder as politician
and soldier. But he was a soldier only. He lived for the Navy alone, for
the welfare of the Navy, for which he is now equally prepared to bear
responsibility to the full extent. He led the Navy along uniform lines
and, aided by his officer-corps, taught it those decent views and that
form of chivalrous fighting which humanity expects of a soldier. It must
not be allowed to happen that, as a result of the deeds of a Hitler and
his National Socialism, the officers and soldiers of this Navy be
defamed by hearing their highest-ranking officer declared a criminal.
From a historical viewpoint Raeder may be guilty, because he, like many
others within the country and abroad, did not recognize or see through
Hitler and did not have the strength to resist the dynamic strength of a
Hitler; but such an omission is no crime. What Raeder did or left undone
in his life occurred in the belief that he was acting correctly and that
as a dutiful soldier he had to act in such a way.

Raeder is a highly esteemed officer who is no criminal; and he cannot be
a criminal, since all his life he has lived honorably and as a
Christian. A man who believes in God does not commit crimes, and a
soldier who believes in God is not a war criminal.

I therefore ask the High Tribunal to acquit Admiral Dr. Erich Raeder on
all points of the Indictment.

PRESIDENT: I call on Dr. Sauter for the Defendant Von Schirach.

DR. SAUTER: Gentlemen of the Tribunal, Baldur von Schirach, who at that
time was Reich Youth Leader, in 1936 welcomed the guests to the Olympic
Games in Berlin with the following words:

    “Youth throws a bridge across all frontiers and seas! I call
    upon the Youth of the World and through them, upon Peace!”

And Baldur von Schirach, then Gauleiter of Vienna, said to Hitler in
1940: “Vienna cannot be conquered with bayonets, but only with music.”

Those two utterances are characteristic of the nature of this defendant.
It is the task of the Defense to examine the evidence produced in this
Trial for the purpose of ascertaining whether the same Baldur von
Schirach, who expressed such thoughts, really committed those crimes
against law and humanity with which he is charged by the Prosecution.

Schirach is the youngest defendant here. He is also, of all the
defendants, the one who was by far the youngest when joining the Party,
which he did when he was not yet 18. Those facts in themselves are
perhaps of some significance in judging his case. When still at school
he came under the spell of rising National Socialism; he was
particularly attracted by the Socialist idea, which had already in his
country school recognized no difference between the sons of fathers of
different classes and professions; those boys around Schirach saw in the
popular movement of the twenties in Germany a promise of the resurgence
of our fatherland from the aftermath of the lost Great War into a happy
future; and fate willed it that as early as 1925, when he was seventeen,
Schirach came into personal contact with Hitler in Weimar, Goethe’s
home. Hitler’s personality made a fascinating impression on young
Schirach, as he himself admitted; the program for the National Community
(Volksgemeinschaft), which Hitler had evolved at that time, met with
Schirach’s wholehearted enthusiasm, because he thought he saw reproduced
therein on a full-size scale that which he had personally experienced in
a small way in the comradeship of the country school and in his youth
organization. To him and his comrades Hitler appeared as the man who
would open for the younger generation the road into the future; of him
this younger generation had hopes for its prospects of work, its
prospects of a secure existence, its prospects of a happy life. Thus the
young man became a convinced National Socialist; this fact was the
result of the environment in which he had spent his youth and which
formed a soil only too fertile for the growth of that ideology which
young Schirach embraced because at that period he held it to be the
right one. This environment of his childhood and a vast amount of
one-sided political literature, which the young man devoured in his
thirst for knowledge, made of him, while still an inexperienced youth,
also an anti-Semite. He certainly did not become an anti-Semite in the
sense of those fanatics who ultimately did not shrink even from acts of
violence and pogroms, of those who finally created an Auschwitz and
murdered millions of Jews; but an anti-Semite in the moderate sense, who
would merely curb Jewish influence in the government of the state and in
cultural life but for the rest would leave untouched the freedom and
rights of Jewish fellow citizens and who never thought of exterminating
the Jewish people. At least that is the conception of Hitler’s
anti-Semitism which young Schirach evolved during those years.

That this was really Schirach’s opinion is also substantiated by the
statement which Schirach made here on the morning of 24 May 1946, when
he described without reservation the crimes committed by Hitler as a
shameful episode in German history, as a crime which fills every German
with shame; that statement in which he openly states that Auschwitz must
signify the end of any and every racial and anti-Semitic policy. That
statement here in this courtroom came from the bottom of the heart of
the Defendant Schirach; it was the result of the terrible disclosures
which this Trial brought to him also, and Schirach made this statement
here openly before the public in order to bring back German youth from a
wrong path to the road of justice and tolerance.

Gentlemen, I would now like to bring to your attention the more
important accusations which have been raised against Schirach, and the
major results which the evidence has produced in the various points. The
Defendant Schirach is first of all accused of the fact that before the
seizure of power, that is, before the year 1933, he actively promoted
the National Socialist Party and the youth organization affiliated with
it and that he thereby contributed to the rise of the Party to power. He
had been, as stated in the trial brief, a close and abject follower of
Hitler; he had stood in blind loyalty to Hitler and the latter’s
National Socialist world of thinking; and he had, as leader of the
student’s league, led the students ideologically and politically to
National Socialism and won them over to it.

All this, if Your Honors please, is not denied by Schirach in any
manner. He has done what he is being accused of in this respect; this he
confesses openly, and for this he naturally takes responsibility. The
only thing which he denies with regard to this, and all the more
emphatically with regard to the later period, is the accusation that he
participated in a conspiracy. Schirach himself pointed out that the
Leadership Principle and dictatorship in their character and their
theory are absolutely incompatible with the idea of a conspiracy, and a
conspiracy appears to him a logical impossibility if many millions of
members are to be included and when its existence and aims lie exposed
before the country concerned as well as before the world. We furthermore
know from the results of this Trial that Hitler, aside from Bormann and
Himmler, did not have a single friend or adviser with whom he discussed
his plans and aims; on the contrary he carried the Leadership Principle
to the furthest extreme. He dispensed with all advisory meetings or
discussions which might have affected his decisions in any way, reaching
his decisions all by himself without even listening to the opinion of
those closest to him. For him it was a matter of orders on his own part,
and unconditional obedience on that of the others. I wish to refrain
from further statements about that chapter, but that is what the
“conspiracy” really looked like; and all of us who have witnessed this
Trial would never have felt this ultra-radical application of the
Leadership Principle to be possible had not all the defendants and all
the witnesses familiar with the facts, in complete agreement and without
a single exception, presented the same picture to us over and over
again.

Now Schirach is not denying at all that already in his very early years
he came completely under the influence of Hitler, that he placed himself
with his whole young personality at the service of these ideas, and that
at the time, as stated quite correctly in the Indictment, he was devoted
to Hitler with unconditional loyalty.

If this was a crime on the part of young Schirach, a crime which
millions of older, more experienced, mature Germans have committed with
him, then you, as his judges, may condemn him for this if our code of
law furnishes a legal basis for it. That would be but a further
disappointment in addition to the many others which he has been
experiencing for years. Schirach knows today that he gave loyal support
unto the end to a man who did not deserve it; and he also knows today
that the ideas, about which he was enthusiastic in his young years and
for which he sacrificed himself, led in practice to ends of which he
himself had never dreamed.

But even the Schirach of today, purged by many bitter experiences,
cannot see any criminal act in the activity of his younger years which
he carried out in good faith, together with millions of other Germans,
for Hitler and his Party. For the Party at that time appeared quite
legal to him; Schirach never had any doubt that it also came into power
by legal means. The seizure of power by the Party, the appointment of
Hitler as Reich Chancellor by Reich President Von Hindenburg, the
winning of the majority of the people for the Party by repeated
elections, all this confirmed to young Schirach again and again the
legality of the movement he had joined. If today he were to be punished
because he acknowledged as his Führer this same Hitler whom millions of
Germans and all the countries of the world recognized as legal head of
the State, Schirach would never be able to acknowledge such a decision
as being just. In spite of the severe judgment which he himself has
pronounced in this courtroom on Hitler according to his personal
conviction, he would consider himself a victim of his political
convictions if he were to be sentenced because, as a young enthusiastic
man, he joined the National Socialist Party and collaborated in its
construction and seizure of power. At the time he did not look upon that
as a crime but from his standpoint considered it his patriotic duty.

The second and by far more important accusation which has been raised
against the Defendant Von Schirach is to the effect that he, as Reich
Youth Leader in the years 1932 to 1940, to quote the Indictment
literally, “poisoned the thought of youth with Nazi ideology and
especially trained it for aggressive war.” Schirach has always contested
this claim emphatically, and this claim has not been substantiated by
the results of the evidence either.

The law on the Hitler Youth of 1936 described Schirach’s task as Reich
Youth Leader as being “to educate youth, outside the parental home and
outside school, physically, intellectually, and morally for service to
the people and to the national community in the spirit of National
Socialism through the Hitler Youth movement and its leader,” that is,
the Defendant Von Schirach. This was the program. This program is
repeated word for word in the enactment decree of 1939, which was
postponed for so long—3 years—because Schirach did not want to
introduce compulsory membership until the movement already practically
included the entire German youth on the basis of voluntary membership,
so that future joining by compulsion would exist on paper only.

The Hitler Youth program, as it was formulated by Schirach in his
speeches and writings—and no other program of the Hitler Youth
exists—does not contain a single word which would point toward military
education of youth, much less an education in aggressive warfare; nor
does in practice the education of youth, in Schirach’s opinion, in any
way give evidence of a military education of German youth for such a
purpose. In that respect the point was stressed by the Prosecution that
the Hitler Youth movement was organized in various detachments and
divisions. That is true, although the designations listed by the
Prosecution are not correct and although they have not the slightest
reference to military formations. But in the last analysis every youth
movement the world over will show a classification into smaller or
larger units; each of these units naturally will also need a name and
some responsible leader. As in the other countries, so also in the
German Hitler Youth the leader of the unit was discernible by some sign
of his rank, be it a leader’s cord, stars, or other insignia of rank.
This naturally has nothing to do with the military character of youth
education.

From personal familiarity with the practice in foreign countries
Schirach knows that foreign youth organizations, in Switzerland as well
as in France and other countries, have similar classifications and
similar insignia, although it never occurred to us so far to make that a
reason for considering such foreign youth organizations as military
associations.

It was furthermore stressed that formations of male youth in Germany
were also given training in shooting. That is also correct but equally
proves very little, in the opinion of Schirach, because the shooting
instruction for the Hitler Youth organization took place, without
exception, with small-bore rifles, in other words, with a type of short,
light target rifle which is nowhere in the world considered as a
military weapon and which is not even mentioned in the enumeration of
military weapons in the Versailles Treaty. The Hitler Youth movement in
Germany did not possess a single military weapon, no infantry rifle or
machine gun, no power-driven airplane, no cannon or tank, throughout its
whole existence. After all, when speaking of military training, then
such training would primarily have had to take place with military
weapons such as are used in modern warfare. To be sure, as has been
established in the cross-examination of Schirach, in order to give added
importance to his office, a certain Dr. Stellrecht, the technical
adviser on shooting instruction in the leadership of the Reich Youth
movement attempted to ascribe a certain special importance to this
particular branch of youth training. Schirach, however, was able to show
without being refuted that for this very reason differences of opinion
arose between him and this technical adviser and that he therefore
finally dismissed Dr. Stellrecht because he, Schirach, opposed any
development which might have tended toward military training of youth.
In any case, this very Dr. Stellrecht, who was produced by the
Prosecution as a witness against Schirach, nevertheless for his part
admitted that “not a single boy in Germany was trained in handling
weapons of war” and that “not one boy was given a military weapon.” That
is, word for word, the testimony of Stellrecht.

Also of importance in considering these questions is the fact that
Schirach, as a matter of principle, refused to permit young people to be
trained by active officers or former officers because he considered
these persons entirely unsuitable to educate young people in that spirit
which he envisaged as the goal of his activity. Moreover, neither
Schirach nor any of his closer associates were officers before the war;
and the same holds true for the overwhelming majority of the high or low
ranking HJ leaders subordinate to him.

All these facts are firmly established by the testimony of the Defendant
Schirach himself and through depositions made by the witnesses
Lauterbacher, Gustav Hoepken, and Maria Hoepken during their
examination. For many years these witnesses were Schirach’s closest
collaborators; they are thoroughly familiar with his views and
principles and they have unanimously confirmed that it is entirely
incorrect to speak of a military or even premilitary training of the
Hitler Youth.

At this point, Gentlemen, I should like to add one thing. I have just
mentioned, as a witness, the name Lauterbacher. The Prosecution, during
their cross-examination, made an attempt to impugn the credibility of
the witness Lauterbacher by asking him, during his interrogation on 27
April 1946, how many people he had hanged publicly and furthermore by
charging that he had ordered four or five hundred prisoners from the
penitentiary in Hameln to be poisoned or shot. In this connection the
American prosecutor had submitted seven affidavits under Exhibit
USA-874, among them one by a certain Josef Krämer, who in fact made the
assertion in his affidavit that the witness Lauterbacher, who appeared
here for Schirach, in his function as Gauleiter of Hanover had given him
orders for the murder of the prisoners.

During the Court’s session of 27 May 1946, I protested against the use
of that affidavit by Krämer and produced, Gentlemen, a newspaper article
according to which the witness Krämer, on 2 May 1946, had been sentenced
to 7 years’ imprisonment by a court of the 5th British Division. Several
days ago I submitted as evidence a report from the _Rhein-Neckar
Zeitung_ of 6 July 1946 which states that the witness Hartmann
Lauterbacher in the meantime had been acquitted by the Supreme British
Military Court in Hanover. From that it can be seen that the doubts
which the Prosecution cast upon the credibility of the witness
Lauterbacher and which they based on the affidavit of this Krämer were
unfounded.

May I now continue in my presentation on Page 8.

With reference to the premilitary training of the HJ it has also been
repeatedly emphasized in rebuttal that the Hitler Youth wore a uniform.
That is correct, but proves nothing, for the youth organizations of
other countries, too, are accustomed, as is generally known, to wear a
common costume, some sort of uniform, without anybody for this reason
terming them military or semimilitary organizations; and Schirach and
several of his associates have informed me that in many democratic
countries, which certainly do not contemplate war, much less a war of
aggression, male youth is trained in handling proper military weapons
and that every year contests are held in shooting with military rifles.

Why was it that Schirach introduced a uniform for the Hitler Youth—and
indeed not only for the boys but also for the girls? We have heard the
answer to this from several witnesses. Schirach, I may quote here, saw
in the uniform of the boys and in the uniform costume of the girls the
“dress of socialism,” the “dress of comradeship.” Schirach wrote at that
time already that the child of the rich industrialist was to wear the
same clothes as the child of the miner, the son of the millionaire the
same clothes as the son of an unemployed man. The uniform of the Hitler
Youth was to be, as Schirach wrote in 1934 in his book _The Hitler
Youth_, the expression of an attitude which did not consider class and
property, but only effort and achievement. The uniform of the Hitler
Youth was for Schirach, as expressed further in this same book, “not the
sign of any militarism, but the symbol of the idea of the Hitler Youth,
namely, classless society,” in the spirit of the election slogan which
he gave the Hitler Youth in 1933: “Through Socialism to the Nation.”
Schirach remained faithful to the principle expressed in these
quotations as long as he was Youth Leader. Thus, in the official
publication of the Hitler Youth in 1937, he wrote—I quote word for
word:

    “The uniform is not the expression of a martial attitude but the
    dress of comradeship; it overcomes class difference and
    re-establishes social equality for the child of the most
    insignificant laborer; the young generation in our new Germany
    must be united in an inseparable community.”

Schirach had this comradeship and this socialism in mind when, in 1934,
he describes in his book _The Hitler Youth_ how he conceived this
socialism; and I quote again, word for word:

    “Socialism does not mean taking the fruits of his work away from
    one person in order to give everybody something produced by the
    work of one individual. Everyone shall work, but everyone shall
    also harvest the fruits of his work. Nor must one person be
    allowed to get rich while thousands of others must suffer want
    for his sake. Whoever exploits his workers and spoliates the
    community in order to fill his cash box is an enemy of the
    German people” (Document Schirach-55).

That ends the quotation describing the attitude of Von Schirach at that
time.

Schirach has pointed out again and again in his numerous writings,
articles, and speeches, which have been collected in the document book
and have been submitted to the Tribunal, that, to use his expression, he
did not desire any “pseudo-military drill,” which would only spoil the
joy of the young people in their movement.

The training of the young people in small-bore shooting was in line with
the training in all sports activities and corresponded to the
inclination of the boys, in all countries, who are particularly
interested in the sport of shooting. But this training played a very
minor role in volume and importance by comparison with the greater aims
which Schirach pursued in the Hitler Youth movement, about which not
only Schirach but the other witnesses examined give as clear a testimony
as the writings and speeches of Von Schirach. These aims of the Hitler
Youth education shall be listed here briefly as they have been
demonstrated by the presentation of evidence; Schirach is naturally not
accused in connection with these other aims of the Hitler Youth
education, but one must nevertheless consider and evaluate them when
desiring to obtain a total picture of his personality, his activity, and
his plans.

Apart from this education of youth in terms of comradeship and of
socialism in the sense of overcoming class distinction, Schirach had, as
he explained here, primarily four aims in mind:

First the training of youth in the various types of sports, and in
connection therewith juvenile health supervision; this branch of youth
education took up a very large part of Hitler Youth activities, and the
fact that German youth obtained such an unexpected success at the
Olympic Games in 1936 was to a certain extent due to the activity of the
Hitler Youth leadership in co-operation with the Reich Sports Leader Von
Tschammer-Osten.

Another aim was postgraduate training and advancement of working youth
and the improvement of the position of adolescent wage earners through
youth legislation, particularly by prohibiting night work, increasing
spare time, granting paid vacations, prohibiting child labor, raising
the protected age of adolescents, _et cetera_. Advanced vocational
training was promoted so successfully that finally more than a million
boys and girls entered for the annual occupational competitions, and
from year to year the average performance in each branch rose very
considerably.

A third main aim of youth education was the promotion of love of nature,
far away from the dens of iniquity of large cities, through hiking trips
and in youth hostels. Thousands of youth homes and youth hostels were
built in the course of these years on Schirach’s initiative out of the
Hitler Youth movement’s own funds, in order to get the young people out
of the large cities with their temptations and vices and return them to
rural life to show them the beauties of the homeland and to afford a
vacation to even the poorest child.

But Schirach concentrated his chief attention on the fourth goal of
youth education, namely, co-operation with the youth of other nations;
and this activity is a particularly suitable test for the question as to
whether one can accuse the Defendant Von Schirach of having taken part
in the planning of wars of aggression and of having committed crimes
against peace. Schirach has told us here on the witness stand that time
and again, both in summer and winter of every year, foreign youth groups
were the guests of German youth; and it is shown by the documents in Von
Schirach’s document book that, for instance, already in the year 1936 no
less than 200,000 foreign youths received overnight lodgings in German
youth hostels, and correspondingly year after year German youth
delegations went abroad, especially to England and France, in order to
enable young people to get acquainted with and respect one another.
Those very endeavors of Schirach’s, which would be absolutely
incompatible with any intention to prepare wars of aggression, received
unreserved recognition abroad before the war. In 1937 in one of the
special numbers of the Hitler Youth magazine _Wille und Macht_ dedicated
to this task of understanding, which was also published in French and
circulated very widely in France and which is quoted here only as an
example, the French Prime Minister Chautemps—I have the evidence in the
document book—declared his willingness, as head of the French
Government, to promote these peaceful meetings.

    “I wish”—he wrote—“that the young men of both nations could
    live every year side by side by the thousands and in this way
    learn to know, to understand, and to respect each other.” And
    further:

    “Our two nations know that an understanding between them would
    be one of the most valuable factors for world peace; therefore
    it is the duty of all those on either side of the frontier who
    have a clear view and human feeling to work for the
    understanding and _rapprochement_ of both nations. But no one
    could do it more sincerely and more enthusiastically than the
    leaders of our wonderful youth, of French and German youth. If
    they could manage to unite this youth, they would hold in their
    hands the future of European and human culture” (Document
    Schirach-110).

The mayor of Versailles of that time wrote in the same spirit to
Schirach, ending his appeal in the monthly organ of the Hitler Youth
with the words:

    “The education of youth in this spirit is one of the most
    important tasks of the politicians of both our countries”
    (Document Schirach-111).

The French Ambassador, François Poncet, gave credit to Schirach’s
efforts no less heartily in the same publication under the title “Youth
as a Bridge” and concluded his lengthy article with the words:

    “French participation enriches German soil. German influence
    fertilizes the French spirit.... May this exchange develop
    further. May also the generations which will at some time
    benefit from it contribute to bringing the two halves of
    Charlemagne’s empire closer and to create between them those
    relations of mutual respect, harmony, and good comradeship for
    which both nations are deeply longing, because their instinct
    tells them that the welfare of European culture depends on it
    and because they know for certain, when they look into
    themselves, that they have many more reasons to respect and
    admire than to hate each other” (Document Schirach-112).

And Schirach himself answered in the next issue of his monthly
publication, which also appeared in French, with an enthusiastic article
under the title, “Salute to France!” In it he writes, for instance:

    “The _rapprochement_ of our two peoples is a European task of
    such urgent necessity that youth has no time to lose in order to
    work for its achievement.”—He then continues—“Youth is the
    best ambassador in the world; it is disinterested, frank, and
    without the eternal distrust of which diplomats can frequently
    not be cured because, to a certain extent, it is their
    professional disease. However, there must be no propaganda
    intentions hidden behind youth exchange.”—And he concludes—“I
    consider it now my task to bring about an exchange of views
    between German and French youth, which must not, on the German
    side, consist of nice statements from me, but of many personal
    conversations of thousands of young Germans with just as many
    young Frenchmen. One must believe in youth because they, above
    all, can achieve a true understanding.”

At the end Schirach calls attention to the fact that all higher youth
leaders of the German Hitler Youth movement had a short time previously
expressed their respect in the name of the young generation of Germany
to the French Unknown Warrior by placing a wreath under the Arc de
Triomphe, and he concludes with the words:

    “The dead of the Great War died while fulfilling their patriotic
    duty and nobly devoting themselves to the ideal of liberty, and
    Germans as well as French were always filled with respect for a
    gallant foe. If the dead respected each other, then the living
    should try to shake hands. If the returned combat veterans of
    both nations could become comrades, why should the sons and
    grandsons not become friends?” (Document Schirach-113.)

These, Gentlemen of the Tribunal, are the words of the same Baldur von
Schirach whom the Prosecution tries to brand as a deliberate partner in
a Hitlerian conspiracy for war. The Prosecution wants to make a war
criminal out of this untiring prophet for international understanding
and peace, who is charged with having militarized youth and prepared it,
bodily and psychologically, for wars of aggression and of having worked
against peace. So far, the Prosecution has not been able to furnish
evidence to this effect.

Schirach has written various doctrinal books for youth, which were held
against him in the trial brief; he has published a quantity of essays on
a vast variety of problems of youth education; his innumerable speeches
addressed to youth have been printed; his orders and instructions to
youth are available to you and the Prosecution in collected form. Yet it
must be concluded that among all these, which constitute his views
during the whole of the time when he was active as Reich Youth Leader,
not a single item is to be found in which he made inflammatory remarks
in favor of war or preached attacks against other countries.

The Prosecution has stated in this very connection that he referred to
the “Lebensraum” in his book _The Hitler Youth_, which I have repeatedly
mentioned, and by so doing adopted as his own a slogan of Hitlerite
aggression policy. This claim is incorrect, for the whole book, _The
Hitler Youth_, does not, any more than every other speech and writing of
Schirach, contain this word at all. True, he has referred at two points
to “Eastern space” in his book, _The Hitler Youth_, published in 1936;
but he quite obviously did not in any way employ this term with
reference to Polish or Soviet-Russian territories but to the eastern
provinces of the former German Empire, that is to say, to territories
which formerly belonged to. Germany; they were known to be very thinly
populated and well suited for the settlement of excess German
population.

Nowhere has Schirach, I would like to state in conclusion with regard to
this topic, at any time up to the outbreak of the second World War
expressed the idea that he might wish Germany to conquer foreign
territories; neither has he ever uttered the odious slogans of the
German “Master Race” or the “Sub-humanity” of other nations; on the
contrary, he was always in favor of preserving peace with the
neighboring nations and always advocated the peaceful settlement of any
conflicts that cropped up out of inevitable clashes of interests.
Gentlemen of the Tribunal, had Hitler possessed but a fraction of the
love of peace which his Youth Leader preached time and again, then
perhaps this war would have been spared us Germans and the whole world.

PRESIDENT: We will adjourn now.

        [_The Tribunal adjourned until 18 July at 1000 hours._]




                              ONE HUNDRED
                          AND EIGHTY-FIRST DAY
                         Thursday, 18 July 1946


                           _Morning Session_

MARSHAL: May it please the Tribunal, the Defendants Hess, Von
Ribbentrop, and Fritzsche are absent.

DR. SAUTER: May it please the Tribunal, yesterday at the end of my
statement I dealt with the charge of the Prosecution that the Defendant
Von Schirach had trained and educated the youth of the Third Reich in a
military sense, that he had prepared them for the waging of aggressive
wars and had participated in a conspiracy against peace. Now I turn to a
further accusation which has been made by the Prosecution against
Defendant Von Schirach.

Since the Prosecution could not prove that the Defendant Von Schirach
had ever promoted Hitler’s war policy before the war, he is being
charged with having had various connections with the SS and SA, and
especially with the fact that the SS, the SA, and the Leadership Corps
of the Party obtained their recruits from the Hitler Youth. This last
fact is quite correct, but it proves nothing as to Schirach’s attitude
toward Hitler’s war policy and is equally pointless as regards the
question of his participation in Hitler’s war conspiracy. For since 90
or 95 percent or more of German youth belonged to the Hitler Youth
movement it was only natural that the Party and its formations as the
years went by should receive their young recruits in an ever-increasing
measure from the Hitler Youth. Practically no other youth was available.

The Prosecution has referred to the agreement between the Reich Youth
Leadership and the Reichsführer SS, dated October 1938, concerning the
patrol service of the Hitler Youth, which was submitted to Your Honors
as Document 2396-PS; however, no inference can be drawn therefrom, for
patrol service in the Hitler Youth was merely an institution designed to
check up on and supervise the discipline of Hitler Youth members when
they appeared in public. It was, therefore, a kind of organization
police which was employed by the Hitler Youth movement entirely within
its own ranks. In order, however, to guard against difficulties with the
regular Police, an arrangement with the Reichsführer SS Himmler was
necessary because as chief of the whole police organization in Germany
he might have made trouble for the institution of the HJ patrol service.
This was the only object of the agreement of October 1938, which in
reality had just as little to do with providing recruits for the SS as
with the conduct and preparation of war. Moreover, it can clearly be
seen how resolutely Schirach strove against any influence on the part of
the Party over the Hitler Youth from the fact that in 1938 he protested
very sharply against having the education of the Hitler Youth during
their last 2 years from 16 to 18 taken over by the SA. He emphatically
opposed this plan and through personal intervention with Hitler
prevented the Führer decree in question from being applied in practice.

As for his attitude toward the SS, we know from the testimony of the
witness Gustav Hoepken, who was heard here on 28 May 1946, and from the
affidavit of the witness Maria Hoepken, Schirach Document Book Number 3,
that Schirach always feared he was being shadowed and spied upon by the
SS in Vienna. He always had an uncomfortable feeling because at the
beginning of his activity in Vienna a permanent deputy had been
appointed for him in his capacity as Reich Governor (Reichsstatthalter)
and Reich Defense Commissioner in the person, of all things, of a higher
SS leader, a certain Dr. Delbrügge; he was, as Schirach knew, closely
associated with the Reichsführer SS who, as has been proved, proposed to
Hitler in 1943 that Schirach should be imprisoned for defeatism and
brought before the Peoples’ Court, which meant in practice that Himmler
would have had Schirach hanged. These facts alone are already proof of
the real relationship between the Defendant Von Schirach and the SS, and
it will be understood why Schirach finally refused even the police
protection squad assigned to him and preferred to entrust his personal
protection to a unit of the Wehrmacht which was not subordinate to the
order of Himmler. (See affidavit of Maria Hoepken in Schirach Document
Book Number 3.)

Another accusation which has been made against the Defendant Von
Schirach concerns his attitude in the Church question. This attitude
corresponds to the impression given by the present proceedings, and
while this issue is not given any prominence in the Indictment, it is
nevertheless of considerable importance as far as the appreciation of
Schirach’s personality is concerned.

Schirach himself, as well as his wife, always remained members of the
Church. To the foreign critic this circumstance may perhaps appear an
unimportant detail, but we Germans know what pressure was exerted upon
high-ranking Party officials in these very matters, and how few in his
position ventured to resist such pressure. Schirach was one of those
few. He was the one high-ranking Party Leader who constantly and
invariably punished with extreme severity any hostile interference and
outrages against the Church on the part of the Hitler Youth. He has also
been reproached for the fact that various songs were sung by the Hitler
Youth which contained offensive remarks about religious institutions,
but in this respect Schirach could with a clear conscience confirm on
his oath that partly he was unaware of those songs, which is quite
conceivable where an organization of 7 or 8 million members is involved;
on the other hand, certain songs now considered objectionable date back
to the Middle Ages and figured in the song book of the Wandervogel, a
former youth organization which the Prosecution surely does not propose
to condemn. Schirach has however especially pointed out that during the
years 1933 to 1936 several million youths from an entirely different
spiritual environment joined the Hitler Youth and that during the first
revolutionary years, that is, in the period of storm and stress of the
Movement, it was quite impossible to hear of and prevent all lapses of
this sort. Whenever Schirach did hear of such things he intervened and
remedied abuses of that kind, which after all represented offenses on
the part of isolated elements incapable of compromising the youth
organization as a whole.

It is Schirach’s conviction that the examination of evidence leaves no
doubt as to his conciliatory behavior in the matter of the Church, and
that he strove to establish proper relations of mutual respect between
the Church on the one hand and the Third Reich, and more especially the
Reich Youth Leadership, on the other hand, and to observe their
respective rights and competences. At his own request Schirach was
permitted by the Reich Minister of the Interior to take part in
conducting the Concordat negotiations with the Catholic Church in 1934,
because he hoped to achieve an agreement with the Catholic Church more
easily by his personal co-operation. He honestly endeavored to find a
formula for the settlement of the youth question by which agreement with
the Catholic Church could be possible. His moderation and good will in
this respect were frankly acknowledged by the representative of the
Catholic Church at that time. But everything was ultimately frustrated
by Hitler’s opposition and the complications created for these
negotiations by the events of 30 June 1934, the so-called Röhm Putsch.

With the Protestant Church, on the other hand, Schirach achieved an
agreement with the Reich Bishop, Dr. Müller, so that the incorporation
of the Protestant youth groups into the Hitler Youth was not attained by
constraint but by mutual agreement, not by breaking up these
associations by the State or the Party, as the Prosecution assumes, but
upon the initiative of the Protestant ecclesiastical head and in
complete agreement with him. It must be pointed out here that it was
always Schirach’s policy that no restrictions were to be imposed on
church services by the Youth Leadership, neither then nor later. On the
contrary, as he himself has testified and as was confirmed by the
witness Lauterbacher, Schirach emphatically stated in 1937 that he would
leave it to the churches to educate the younger generation according to
the spirit of their faith, and at the same time he ordered that, as a
principle, no Hitler Youth service was to be scheduled on Sundays during
the time of church services. He gave strict orders to the unit leaders
of the Hitler Youth not to schedule duties which might disturb church
services. If, however, in individual cases such interference did occur
and some religious authorities lodged complaints as the
cross-examination revealed, then the Defendant Schirach cannot be blamed
for this, nor does it alter the fact that he had every good intention.

During the Trial not a single case could be proved in which he stirred
up feeling against the Church or made antireligious statements; on the
contrary, at numerous rallies as submitted to the Tribunal in the
Schirach document book, he not only repeatedly opposed the allegation
that the Hitler Youth were enemies of the Church or atheists, but he
always positively impressed upon the leaders and members of the Hitler
Youth the necessity of fulfilling their obligation toward God; he would
not tolerate anyone in the Hitler Youth who did not believe in God;
every true teacher, he told them, must imbue youth with religious
feeling, since it was the basis of all educational activities; Hitler
Youth service and religious convictions could very well be associated
with each other and exist side by side; no Hitler Youth leader was to
engender conflicts of conscience whatsoever in his boys. Leave of
absence was to be granted to Hitler Youth members for religious
services, rites, _et cetera_. Such was Von Schirach’s point of view.

Whoever gives such instructions to his subleaders, and continues to do
so over and over again, can demand that he should not be judged an enemy
of the Church and an enemy of religious life. Incidentally, it is
interesting in this connection to note what such a reliable judge as
Nevile Henderson wrote in his oft-quoted book _Failure of a Mission_
about a speech which he heard Schirach deliver at the 1937 Reich Party
Rally, parts of which have been submitted in Schirach’s document book.
Henderson, who as Ambassador in Berlin knew German conditions
intimately, evidently expected that Baldur Schirach would speak against
the Church at the Reich Party Rally and would influence the young people
in the spirit of enmity to the Church, as was often done by other
leaders of the Party. Henderson writes, and I quote two sentences:

    “That day, however, it was Von Schirach’s speech which ...
    impressed me most, although it was quite short.... One part of
    this speech surprised me when, addressing the boys, he said, ‘I
    do not know if you are Protestants or Catholics, but that you
    believe in God, that I do know.’”

And Henderson added:

    “I had been under the impression that all references to religion
    were discouraged among the Hitler Youth, and this seemed to me
    to refute that imputation.”

What Schirach really thought with regard to religion, and in what sense
he influenced youth, is indicated not only by a statement he made on the
occasion of a speech before the teachers of the Adolf Hitler Schools at
Sonthofen, to the effect that Christ was the greatest leader in the
history of the world, but likewise by the small book, submitted to you
in evidence, entitled, _Christmas Gift of the War Welfare Service_. This
book, which was sent out in large numbers, was dedicated by Schirach to
the front-line soldiers who joined from the ranks of the Hitler Youth
movement in 1944, at a time when radicalism in all spheres of German
life could hardly become more pronounced.

Here also Schirach was an exception: You will find no swastika, no
picture of Hitler, no SA song in the book of Reichsleiter Von Schirach,
but among other things a distinctly Christian poem from Schirach’s own
pen, then a picture of a Madonna, and next to it a reproduction of a
painting by Van Gogh who, as is generally known, was strictly banned in
the Third Reich. Instead of inflammatory words, we find an exhortation
to a Christian way of thinking and the “Wessobrunner Gebet,” familiar as
the earliest Christian prayer in the German language. Bormann stormed
when he saw the pamphlet, but Schirach remained firm and refused to
withdraw the little book or alter it in any way.

The Defendant Von Schirach has been charged with having once undertaken
a hostile act against the Church, and with having thereby taken part in
the persecution of the Church. From a letter by Minister Lammers of 14
March 1941 (Document R-146), it appears that Schirach had proposed to
keep confiscated property at the disposal of the Gaue, and not to hand
it over to the Reich, but this case is no justification at all for
connecting the Defendant Von Schirach in some way or other with the
persecution of the Church. The case mentioned by the Prosecution does
not concern church property at all, but confiscated property of a Prince
Schwarzenberg in his Vienna palace. This affair therefore never had
anything to do with the Church. This is also confirmed unequivocally by
Minister Lammers’ letter of 14 March 1941 (R-146), which mentions only,
I quote, “a confiscation of the property (of persons) hostile to the
people and the State,” whereas Bormann’s far-reaching personal intention
becomes apparent and betrays his hostile attitude toward the Church when
he writes about “church properties (monastic possessions, and so forth)”
in his accompanying letter of 20 March 1941 referring to this case.
Moreover, the confiscation of Prince Schwarzenberg’s property was not
caused, pronounced, or carried out by Schirach. Schirach had nothing to
do with the confiscation as such; Schirach, however, in agreement with
the other Gauleiter of the Austrian NSDAP, and at their request,
personally applied to Hitler and asked that such confiscated property
should not be taken to the Reich and not be used on behalf of the Reich,
but that it should remain in Vienna. This suggestion met with approval.
Hitler complied with his request, the result of Schirach’s efforts being
that, when the confiscation was rescinded later on, the property could
be returned to the legitimate owner, whereas it would otherwise have
been lost by him. By acting thus, Schirach no doubt rendered a service
to the Gau of Vienna and to the owner of the property seized. This
instance surely cannot be construed as a charge against the Defendant
Von Schirach; on the contrary, it speaks in his favor just as the other
case where, disregarding Bormann, he intervened on behalf of Austrian
nuns and as a result brought about, by a direct order from Hitler, the
discontinuance from one day to the other of the whole project of
confiscating church and monastic property in the whole Reich.

If the Prosecution further undertakes to charge the Defendant Von
Schirach with the fact that the Vienna authorities subordinate to him
proposed to establish an Adolf Hitler School in the monastery of
Klosterneuburg in 1941, I must point out that even prior to the
requisitioning of this monastery, and entirely independently of
Schirach, the Vienna police and several Vienna courts had uncovered a
considerable number of criminal offenses in this monastery, furthermore
that the confiscation of part of the monastery seemed entirely justified
to the Defendant Von Schirach, since the very spacious rooms of this
religious establishment were not required for monastery purposes.

It should also be noted that the monastery, as can be seen from
documents submitted, did not file any protest with the Reich Minister of
the Interior against the decision to confiscate, and thereby recognized
the confiscation as legal, although it had been expressly informed in
the confiscation decree of the possibility of lodging a complaint.
Moreover, the confiscated quarters were afterward not used for the
establishment of an Adolf Hitler School, but for the Museum of
Historical Art (thus not for a Party establishment), which again
testifies to the fact that the confiscation decree had in no way been
issued because of a hostile attitude on the part of Schirach toward the
Church. Had it been Schirach’s object to attack the monastery because it
was an ecclesiastical institution, he would have included in the
confiscation the rooms used for religious ceremonies. These, however, he
strictly excluded.

Moreover, when appraising this case, attention should be paid to the
fact that the justification of the confiscation decree of 22 February
1941 displays remarkable reticence. The decree restricts itself to
justifying the confiscation by the fact that on the one hand Vienna
badly needed room and that on the other hand the premises confiscated
were not required for the purposes of the monastery. Not a single word
mentions or even suggests that criminal offenses had taken place in the
monastery, as recorded in a police report of 23 January 1941, which is
submitted to the Court. If this confiscation had been the result of a
hostile attitude of Schirach toward the Church, we could have been sure
that somehow or other reference would have been made to these criminal
offenses to justify the confiscation. At Schirach’s wish a monthly
indemnification was paid to the clergy who had occupied some of the
confiscated rooms, for which payment there existed no official
obligation whatever.

Defendant Von Schirach’s further behavior does not reveal any hostile
attitude toward the Church, particularly if one considers, when judging
this behavior, that during these years even a Reichsleiter was under
strong pressure by the Reich Chancellery and by Bormann, and that at
that time a considerable amount of courage was necessary to resist this
pressure and carry on a policy in opposition to the official Berlin
policy.

The witness Wieshofer of Vienna, who had the opportunity of watching
Schirach’s activities, confirmed before the Court that in Vienna
Schirach likewise strove to establish correct relations with the Church,
that he was always willing to listen to any complaints of the Cardinal
of Vienna and took severe measures against the excesses of individual
members of the Hitler Youth or Hitler Youth leaders. In Vienna he thus
displayed a policy toward the Church quite different from that which his
radical predecessor Bürckel had favored, and it is beyond doubt that
ecclesiastical circles in Vienna and the whole of the Viennese
population appreciated Schirach’s attitude toward the Church. This is
also confirmed by the witness Gustav Hoepken who was examined here and
who, by order of Schirach, held regular conferences with a Vienna
theologian, Professor Ens, in order to be able to inform the Defendant
Schirach of the wishes of the Church and the differences which had
arisen with ecclesiastical authorities. Unless he wished to expose
himself to the most serious danger, Schirach could do no more under the
prevailing political circumstances, which are described in the affidavit
of Maria Hoepken, Document Book Schirach Number 3.

I now turn to another point of the Indictment, to the question of the
concentration camps. The Prosecution has connected the defendant with
concentration camps, although not in the Indictment but during the
presentation of evidence; and the witness Alois Höllriegel, who was
questioned here, was asked in the witness box whether Schirach had ever
been inside the Mauthausen Concentration Camp. To this I should like to
remark that the Defendant Von Schirach mentioned his visit to Mauthausen
at his interrogation by the American Prosecution before the beginning of
the Trial; it would, therefore, not have been necessary to have this
visit confirmed again by the witness Höllriegel. He visited the
Mauthausen Concentration Camp in the year 1942, not in 1944, as the
witness Marsalek erroneously stated; the correct year, 1942, has been
confirmed by the witness Höllriegel and also by the witnesses Hoepken
and Wieshofer, from whom we heard that neither after 1942 nor at any
other time did Schirach visit other concentration camps. The visit to
Mauthausen in 1942 cannot implicate the defendant Schirach in the sense
of his having known, approved, and supported all the conditions and
atrocities in concentration camps. In 1942 he saw nothing in Mauthausen
which might have indicated such crimes. There were no gas chambers and
the like in 1942. At that time mass executions did not take place at
Mauthausen. The statements of the Defendant Von Schirach concerning his
impression of this camp appear quite plausible, because the testimony of
numerous witnesses who have been heard during the course of this Trial
has confirmed again and again that on the occasion of such official
visits, which had been announced previously, everything was carefully
prepared in order to show to the visitors only that which need not fear
the light of day. Maltreatment and torture were concealed during such
official visits in the same manner as arbitrary executions or cruel
experiments. This was the case at Mauthausen in 1942 and certainly also
at Dachau in 1935, where Schirach and the other visitors were shown only
orderly conditions, which at a superficial glance appeared to be better
than in some ordinary prisons.

As a result, Schirach only knew that since 1933 there were several
concentration camps in Germany where, as far as he knew, incorrigible
habitual criminals and political prisoners were confined. However, even
today Schirach is unable to believe that the mere knowledge of the
existence of concentration camps is in itself a punishable crime, since
he at no time did anything whatsoever to promote concentration camps,
never expressed his approval of this institution, never sent anybody to
a concentration camp, and would in any case never have been able to make
any changes in this institution or to prevent the existence of
concentration camps. Schirach’s influence was always too small for that.
As Reich Youth Leader, of course, he had nothing to do with
concentration camps in the first place, and it was lucky for Schirach
that in his entire Vienna Gau district there was not a single
concentration camp. His relations with concentration camps were
therefore limited to repeated attempts to have people released from
them, and it is after all significant that his sole visit to the
Concentration Camp Mauthausen resulted in his exerting his influence to
obtain the ultimate release of inhabitants of Vienna who were imprisoned
there.

May it please the Tribunal, I do not want to go again into many details
which have played a larger or smaller part in the presentation of
evidence for the case of Schirach. In the interest of saving time I
shall not deal more specifically with his alleged connection with
Rosenberg or Streicher, nor with his alleged collaboration in the slave
labor program, in which connection not even the slightest participation
of the Defendant Schirach could be proved, nor with a telephone
conversation which has been used by the Prosecution and which allegedly
took place between one of the Viennese officials and an SS
Standartenführer regarding the compulsory labor of the Jews, about which
Von Schirach knew nothing at all.

But I should like to insert a short remark about one subject which arose
particularly in connection with the case of Rosenberg, that is, a brief
explanation concerning the Hay Action by which thousands of children in
the Eastern combat zone were collected and brought partly to Poland and
partly to Germany. The apparent aim of this operation, as far as
Schirach could see from the documents presented here, was to collect
children who were in the zone of operations, that is, immediately behind
the front and wandering around without their parents, with a view to
giving them professional training and work so that they should be saved
from physical and moral neglect.

The Defendant Von Schirach doubts whether this can be looked upon as a
crime against humanity, or as a war crime; but one thing is certain,
that the Defendant Von Schirach did not know anything of that affair at
the time. He was not the competent authority. That entire affair was
handled by Army Group Center in collaboration with the Ministry for the
Eastern Occupied Territories, and, of course, it is quite plausible that
neither the Eastern Ministry nor the Army Group Center saw fit to
approach the Gauleiter of Vienna in order to get his approval of that
action, or even to notify him about it.

The only thing which, a considerable time later, came to the attention
of the Defendant Von Schirach and may have some bearing on that, the Hay
Action, was an incidental report by Reich Youth Leader Axmann that so
and so many thousand youths had been brought to the Junkers works at
Dessau as apprentices.

The Defendant Von Schirach was anxious to clear up this matter in view
of his former office as Reich Youth Leader, and he wishes to make it
quite clear that even after leaving that office he would of course never
have undertaken anything against the interests of youth.

May I add another remark here concerning the letter which the Defendant
Von Schirach sent to Reichsleiter Bormann after the murder of Heydrich,
in which he suggested reprisal measures to Bormann in the form of a
terror attack upon an English center of culture? That letter was
actually sent by the defendant to Bormann. He acknowledges it. I have to
point out at the very beginning that fortunately the suggestion remained
a suggestion, and it was never carried out. The defendant, however, has
told us that at that time he was very upset by the assassination of
Heydrich, and it was clear to him that a revolt of the population in
Bohemia would necessarily lead to a catastrophe for the German armies in
Russia, and in his capacity as Gauleiter of Vienna he had considered it
his duty to undertake something to protect the rear of the German army
fighting in Russia. And that explains that teletype to Bormann in 1942
(Document 3877) which, as I have already pointed out, fortunately was
not acted upon.

May it please the Tribunal, I shall proceed with my statement, the
middle of Page 26.

I shall not deal in detail with the Adolf Hitler Schools which were
founded by Schirach, nor with the Fifth Column which was somehow, quite
wrongly, connected with the Hitler Youth, although nothing definite
could be charged to the defendant. I shall not go into either the
repeated efforts on behalf of peace undertaken by the Defendant Schirach
and his friend Dr. Colin Ross, nor shall I discuss the merits of the
defendant with reference to the evacuation of children to the rural
areas, which took millions of children from bomb-endangered districts
during the war into more quiet zones and thus saved their lives and
health.

The Defendant Von Schirach has already talked about all these affairs in
detail himself, and I should therefore like to refer to his own
statements, which you will consider in your judgment.

As counsel for the Defendant Von Schirach, I shall discuss only one more
problem here, namely Schirach’s opinion and attitude concerning the
Jewish question. Schirach has admitted here on the witness stand that he
has been a convinced National Socialist, and thus also an anti-Semite
from his earliest youth. He has also made clear to us what he understood
by anti-Semitism during those years. He thought of the exclusion of the
Jews from civil service and of the limitation of Jewish influence in
cultural life and perhaps also in economic life, to a certain extent.
But that was all which in his opinion should be undertaken against the
Jews, and this was in accordance with the suggestion which he had
already made as leader of the students’ organization for the
introduction of a quota system for students. The defendant’s decree
concerning the treatment of Jewish youth is, for example, also important
in establishing his attitude (Schirach Document Number 136). This is a
decree in which he expressly orders that Jewish youth organizations
should have the right and the opportunity to practice freely within the
limitations imposed upon them. It says that they were not to be
disturbed in their own life.

    “In its youth the Jewish community shall already today take up
    that secluded but internally unrestrained special position which
    at some future time the entire Jewish community will be given in
    the German State and in German economy.”

Those are the very words of that decree. Obviously Schirach was not at
all thinking about pogroms, bloody persecutions of the Jews, and the
like; rather did he believe at that time that the anti-Semitic movement
had already achieved its aim by the anti-Jewish legislative measures of
the years 1933-34, thereby eliminating Jewish influence as far as it
seemed unhealthy to him. He was therefore surprised and very alarmed
when the Nuremberg Laws were promulgated in 1935, which formulated a
policy of complete exclusion of the Jewish population and carried it out
with barbaric severity. Schirach in no way took part in the planning of
these laws; he has nothing whatsoever to do with their content and their
formulation. That has been proved here.

When on 10 November 1938 he heard about the pogrom against the Jews and
about the brutal excesses which were staged by Goebbels and his fanatic
clique his indignation became known throughout the entire youth
movement. The evidence proved this also. We have heard from the witness
Lauterbacher how Schirach reacted to the report of these excesses: He
immediately called his assistants together and gave them the strictest
orders that the Hitler Youth must be kept out of such actions under all
circumstances. He at once had the leaders of the Hitler Youth in all
German cities notified by telephone to the same effect and warned every
subordinate that he would hold him personally responsible if any
excesses should occur in the Hitler Youth.

But even after November 1938 Schirach never considered the possibility
that Hitler was contemplating the extermination of the Jews. On the
contrary, he only heard it mentioned that the Jews were to be evacuated
from Germany into other states, that they should be transported to
Poland and settled there, at worst in ghettos, but more probably in a
closed settlement area. When Schirach in July 1940 received Hitler’s
order to take over the Gau of Vienna, Hitler himself also talked to him
along the same lines, namely, that he, Hitler, would have the Jews
brought from Vienna into the Government General; and even today Schirach
has no doubt that Hitler himself was not thinking about the so-called
“final solution” of the Jewish question at that time, 1940, in terms of
the extermination of the Jews. We learn from the Hossbach minutes and
other evidence of this Trial that Hitler was planning the evacuation of
Poland already in 1937, but that he decided on the extermination of the
Jewish people only in 1941 or 1942.

Schirach had nothing at all to do with the evacuation of the Jews from
Vienna, as is alleged by the Prosecution; the execution of this measure
was exclusively in the hands of the Reich Security Main Office and the
Vienna branch of that office, and it is known that SS Gruppenführer
Brunner of Vienna has in the meantime been sentenced to death for that
very reason. The only order which Schirach received and carried out
concerning the Viennese Jews was to report to Hitler in 1940 how many
Jews there were still left in Vienna, and he made this report in a
letter of December 1940 where he gave the figure of the Viennese Jews
for 1940 as 60,000. It will be remembered that Minister Lammers answered
this letter from the Defendant Schirach by a letter dated 3 December
1940 (1950-PS), which shows with all clarity that it was not Schirach
who ordered the evacuation of the Viennese Jews to the Government
General but Hitler himself, and that again it was not Schirach who
carried out this measure but the Reichsführer SS Himmler, who delegated
this task to his Vienna office. It must therefore be stated here
categorically that Schirach is in no way responsible for the deportation
of the Jews from Vienna; he did not carry out this program and he did
not initiate it; when he came to Vienna in the summer of 1940 as
Gauleiter, the majority of the Viennese Jews had already voluntarily
emigrated or had been forcibly evacuated from Vienna, a fact which was
confirmed by the Defendant Seyss-Inquart. The remaining 60,000 Jews who
were still there at the beginning of Schirach’s time in Vienna were
deported from there by the SS without his participation and without his
responsibility.

Schirach did make the well-known speech in Vienna in September 1942,
where he stated that every Jew working in Europe was a danger to
European culture. Schirach furthermore said in this speech that if it
was desired to reproach him with the fact that he had deported tens of
thousands of Jews into the Eastern ghetto from this city, which had once
been the metropolis of Judaism, he would but answer that he considered
this an active contribution to European culture. That is how this
passage reads. Schirach has openly and courageously admitted that he
actually expressed himself in this manner at that time, and expressed
his regret by stating:

    “I cannot take back this wicked statement; I must take the
    responsibility for it. I spoke these words, which I sincerely
    regret.”

Should the Tribunal see in these words a legally punishable crime
against humanity, Schirach will have to make atonement for this single
anti-Semitic remark which can be attributed to him, though it was merely
a spoken word and did not have any harmful result. Schirach’s attitude
in this respect does not exempt the Tribunal from its duty to verify
carefully what Schirach actually did; furthermore, under what
circumstances he made this isolated remark, and finally whether Schirach
also made any other spiteful remarks against the Jews or committed any
malicious acts against the Jewish race as a whole.

The foremost question is: What did Schirach really do? The reply to
this, emerging from the revelations of this Trial, can only be: Apart
from the fact that he made this isolated anti-Semitic remark in his
speech in Vienna in September 1942, he has not committed any crime
against the Jews. He had no competence in the question of the
deportation of the Vienna Jews, he did not participate in it at all, and
having too little power he could not have prevented it in any case. It
is just as the Prosecution incidentally stated: He boastfully attributed
to himself an action which in reality he had never committed and, in
view of his entire attitude, he never could have committed.

What, however prompted Schirach to make this remark in his Vienna
speech? How did he come to attribute to himself a deed and charge
himself with an action which he had obviously never committed? Here too
the answer is given by the results of the evidence in the Trial: It
demonstrates what a very difficult position Schirach had in Vienna.
Without giving any reason, Hitler dismissed him as Reich Youth Leader,
presumably because he no longer trusted him. From year to year Hitler’s
fear was growing lest the young people might stand behind Schirach and
become alienated from him, Hitler, to the same degree that the black
wall of his SS was isolating him from the people. Hitler possibly saw in
his Youth Leader the personification of the coming generation which
thought in world-wide terms, whose feelings were human and who felt
themselves more and more bound to those precepts of true morality which
Hitler had long ago jettisoned for himself and his national leadership,
because they had long since ceased to be concepts of true morality for
him but mere slogans of a meaningless propaganda. This feeling of
Hitler’s may have been the deeper reason why he dismissed Schirach as
Youth Leader suddenly in the summer of 1940, without word of
explanation, and put him in the especially difficult position of
Gauleiter in Vienna, the city which he, Hitler, hated from the bottom of
his heart, even while he spoke of his “Austrian fatherland.”

In Vienna Schirach’s position was extremely complicated. Wherever he
went he was shadowed and spied upon, his administrative activity there
was sharply criticized, he was reproached for neglecting the interests
of the Party in Vienna, for almost never being seen at Party meetings,
and for not making any political speeches. I refer in this connection to
the affidavit of Maria Hoepken, Schirach Document Book Number 3. The
Berlin Party Chancellery accepted any complaints the Vienna Party
members made about their new Gauleiter with satisfaction, and this fact
alone can explain the unfortunate speech Schirach made in September
1942, which was diametrically opposed to the attitude he had always
maintained concerning the Jewish question. After the interrogation of
the witness Gustav Hoepken here in this courtroom there can be no doubt
as to how the Vienna speech came about, for it reveals that Schirach had
expressly charged his press officer Günther Kaufmann to emphasize this
particular point when telephoning his report of the Vienna speech to the
German News Agency in Berlin, because he, Schirach—I quote—“had to
make a concession to Bormann in this respect.” Schirach himself stressed
this point in the course of his interrogation with the statement that
out of false loyalty he had morally identified himself with these acts
of Hitler and Himmler. This ugly speech which Schirach made in September
1942 is, however, in another sense a very valuable point in favor of
Schirach: He speaks of a “transfer of the Jews to the ghettos of the
East.” Had Schirach known at that time that the Viennese Jews were to be
sent away in order to be murdered in an extermination camp, he would in
view of the purpose of this speech doubtless not have spoken of an
Eastern ghetto to which the Jews had been sent, and would have reported
the extermination of the Viennese Jews; but even at this time, in the
autumn of 1942, he never had the slightest suspicion that Hitler
proposed to murder the Jews. That he would never have approved and never
accepted; his anti-Semitism at no time went so far.

Schirach also frankly stated here that at that time he approved of
Hitler’s plan to settle the Jews in Poland, not because he was inspired
by anti-Semitism or hatred of the Jews, but by the reasonable
consideration that in view of existing conditions it was in the Jews’
own interest to leave Vienna and be taken to Poland, because the Jews
would not in the long run have been able to stay in Vienna under the
Hitler regime without being exposed to increasingly serious persecution.
As Schirach declared on 24 May 1946, considering Goebbels’ temperament
it always seemed possible that incidents like those of November 1938
might be repeated from one day to the other, and under such conditions
of legal insecurity he could not visualize the existence of the Jewish
population in Germany. He thought that the Jews would be safer in a
restricted settlement area of the Government General than in Germany and
Austria, where they were exposed to the whims of the Propaganda Minister
who, indeed, had been the main supporter of radical anti-Semitism in
Germany. Schirach was well aware of this fact. He could not shut his
eyes to the realization that the drive against the Jews in Germany
obviously became more drastic, more fanatic, and more violent every day.
This conception of the Vienna speech of September 1942 and the true
cause of its genesis coincide with the statements of the Defendant
Schirach at the meeting of the city councillors of Vienna on 6 June 1942
(Document Number 3886-PS), to the effect that in the late summer and
autumn of that year all Jews would be expelled from the city, and
likewise with the file note of Reichsleiter Bormann of 2 October 1940
(USSR-142), according to which, at a social meeting at Hitler’s home,
Schirach had remarked that he still had more than 50,000 Jews left in
Vienna which the Governor General of Poland must take over from him.
This remark was caused by Schirach’s embarrassing situation at that
time. Hitler, on the one hand, kept insisting on the expulsion of the
Jews from Vienna, while on the other hand Governor General Frank was
reluctant to receive them in the Government General. This disagreement
was evidently the reason for Schirach’s discussing this fact at the
above-mentioned meeting on 2 October 1940, in order to avoid renewed
reproaches by Hitler. Personally he was in no way interested in the
removal of the Viennese Jews, as was proved by the testimony of the
witness Gustav Hoepken regarding the conference between Schirach and
Himmler in November 1943.

I should like to add a word here concerning that discussion. During that
conference with Himmler, Schirach presented the point of view that the
Jews might be left in Vienna, especially since they were wearing the
Star of David anyway. That has been testified to by the witness Hoepken
as being a statement made by Schirach during the conversation. However,
Hitler demanded the expulsion of the Jews from Vienna and Himmler
insisted on having it carried out.

The Prosecution thought it possible to charge Schirach with having made
another malicious anti-Semitic remark in connection with a speech which
he supposedly made in late December 1938, certainly before the spring of
1939, at a students’ meeting at Heidelberg. Across the Neckar River he
pointed to the old university town of Heidelberg where several
burned-out synagogues were the silent witnesses to the anti-Semitic
activities of the students of Heidelberg. I refer to the affidavit of
Ziemer, in which “the stout little Reich Student Leader”—as it is
stated literally—is said to have approved and commended the pogroms of
9 November 1938 as a heroic act. This charge, as already mentioned, is
supported by the declaration under oath of a certain Gregor Ziemer.
However, there can be no doubt that this statement of Ziemer’s is false.
Ziemer never belonged to the German student movement or the Hitler
Youth, and obviously was not personally present at the student assembly
in question. The affidavit does not state from what source he is
supposed to have obtained his knowledge. However, that his claim is
false is already proved by his description of physical appearance when
he speaks of a “stout little student leader”; for this does not at all
resemble Schirach. Perhaps it would to some extent apply to his
successor, who was Reich Student Leader at the end of 1938, but it
certainly was not Schirach. As is known, he had already in 1934 given
the office of Reich Student Leader back into the hands of the Führer’s
deputy, after he himself had in the meantime been appointed Reich Youth
Leader. Schirach did not make a speech at the end of 1938 or at any
other time before Heidelberg students, and by the affidavit of the
witness Maria Hoepken (Schirach Document Book Number 3) it has been
clearly proved that at the time stated Schirach was not in Heidelberg at
all. Schirach has also confirmed this under oath and his own statement
can lay claim to credibility because he has not whitewashed anything for
which he was responsible, and he has not falsely denied anything, but on
the contrary has accounted for all his actions with courage and
truthfulness during his entire examination.

Still another fact decisively confirms the claim that the Ziemer
affidavit is untrue, at any rate in regard to the person of Schirach. In
the presentation of evidence it happened to be stated by chance how
Schirach reacted to the November pogroms of the year 1938. The witness
Lauterbacher has informed us here, as already mentioned at another
point, that Schirach on 10 November 1938 condemned most vehemently the
events of 9 November 1938 in the presence of his co-workers, and
declared that he felt ashamed for the others and for the whole Party.
The 9th of November 1938, Schirach said, would go down in Germany
history as a unique disgrace of German culture of which we would never
be able to cleanse ourselves. Such a thing might have happened among an
uncivilized people, but it should never have occurred among us Germans
who consider ourselves to be a highly civilized people. The youth
leaders, Schirach explained at that time, had to prevent such excesses
under all circumstances. He did not wish to hear anything like this
about his own organization, either now or in the future. The Hitler
Youth must be kept outside such things under all circumstances. These
are sworn statements by the witness Hoepken. By a telephone message from
Berlin, Schirach had all the offices of the Hitler Youth informed in the
same terms. If Schirach in November 1938 condemned and criticized in
such an extremely sharp manner the events of 9 November 1938, it is
impossible for him to have praised at about the same time the bloody
acts which had been committed and thus to have incited the Heidelberg
students, and the question therefore arises as to why not a single
participant at that student meeting in Heidelberg was brought here as a
witness instead of one who could only testify from hearsay.
Incidentally, the Prosecution did not revert to this alleged Heidelberg
speech during cross-examination, thereby acknowledging Schirach’s own
presentation of the facts to be correct.

It is also a very significant fact that the Hitler Youth did not
participate in the excesses of 9 November 1938, nor did they commit any
excesses of this sort either before or afterward. The Hitler Youth at
that time was the strongest Party organization. It comprised some seven
or eight million members, and in spite of that not one single case has
been proved where the Hitler Youth participated in such crimes against
humanity, although its members were mainly of an age which, according to
experience, is only too easily tempted to participate in excesses and
acts of brutality. The only exception which has been claimed so far
concerns the testimony of the French woman Ida Vasseau, who is said to
be the manager of an Old People’s Home in Lemberg and is supposed to
have claimed, according to the report of the Commission, Document Number
USSR-6, that the Hitler Youth had been given children from the ghetto in
Lemberg whom they used as living targets for their shooting practice.
This single exception, however, which so far has been claimed but not
proved, could not be cleared up in any way, particularly not in respect
of whether members of the Hitler Youth had really been involved. But
even if there had been such a single case among the eight million
members during 10 or 15 long years, this could not in any way prove that
Baldur von Schirach had exercised an inciting influence, and that, if I
may add this here, at a time when he was no longer Reich Youth Leader.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

DR. SAUTER: If the Tribunal please, I shall proceed from Page 36 of my
statement. Let us just examine all the speeches and articles which Von
Schirach wrote as Reich Youth Leader, and which are in the possession of
the Tribunal in the Schirach document book. They extend over a long
period of years, yet they do not contain a single word inciting to race
hatred, preaching hatred of Jews, exhorting youth to commit acts of
violence, or defending such acts. If it has been possible to keep the
members of the Hitler Youth, who numbered millions, clear of such
excesses, this fact also goes to prove that the leaders endeavored to
imbue the younger generation with a spirit of tolerance, love of one’s
neighbors, and respect of human dignity.

Just what Von Schirach thought about the treatment of the Jewish
question is clearly evident from the scene with occurred in the spring
of 1943 at Obersalzberg, which is also described in the affidavit of the
witness Maria Hoepken (Document Book Schirach Number 3). In this case I
refer to the scene where Schirach had an eyewitness describe to Hitler
at his home at Obersalzberg how he had witnessed with his own eyes at
night from a hotel window in Amsterdam the manner in which the Gestapo
deported hundreds of Dutch Jewesses. Schirach himself could not dare at
the time to bring such matters to Hitler’s attention; a decree by
Bormann had expressly prohibited the Gauleiter from doing this. Schirach
therefore tried through the mediation of a third person, who had been a
witness himself, to gain Hitler’s approval of a mitigation in the
treatment of the Jewish question. No success was achieved; Hitler
dismissed it all bluntly with the remark that this was all
sentimentality. Because of this intervention on behalf of the Dutch Jews
the situation of the Defendant Von Schirach had become so critical that
he preferred to leave Obersalzberg immediately, early in the morning of
the following day, and from that time on, Hitler was in principle no
longer accessible to Schirach.

This intervention of Schirach for a milder treatment of the Jewish
question perhaps also contributed to the fact that Hitler, a few months
later, in the summer of 1943, seriously considered having Schirach
arrested and brought before the Peoples’ Court, for the sole reason that
Schirach had dared, in a letter to Reichsleiter Bormann, to describe the
war as a national disaster for Germany.

In any case all this shows that Schirach, as much as he was able,
advocated moderation in the Jewish question in a manner which endangered
his own position and existence. In spite of the fact that he was an
anti-Semite—and just because of this it deserves attention—he
withstood all pressure from Berlin and refused to have an anti-Semitic
special edition published in the official journal of the Hitler Youth,
while he had published his own special editions for an understanding
with England and France and for a more humane treatment of the Eastern
nations. It is no less worthy of consideration that Schirach, in
conjunction with his friend Dr. Colin Ross, endeavored to attain the
emigration of the Jews into neutral foreign countries in order to save
them from being deported to a Polish ghetto.

The Prosecution has endeavored to substantiate its allegation that the
Defendant Von Schirach bears a certain share of the responsibility for
the pogroms against Jews which occurred in Poland and Russia, by trying
to use against him the so-called “Reports on Experiences and Situation,”
which were regularly sent by the SS to the Commissioner for Defense of
the Reich in the Military Administrative District XVII. In fact it must
be said that if—and I emphasize, if—Schirach had at that time had
cognizance of these regular “Reports on Experiences and Situation by the
Operational Groups (Einsatzgruppen) of the Security Police and the
Security Service in the East,” then this fact would indeed constitute
for him a grave moral and political charge. Then he could not be spared
the accusation that he must have been aware of the fact that, apart from
the military operations in the East, extremely horrible mass murders of
Communists and Jews had also taken place. The picture of Von Schirach’s
character which we have so far, who was described even by the
Prosecution as a “cultured man,” would be tainted very materially if Von
Schirach had actually seen and read these reports. For then he would
have known that in Latvia and Lithuania, in White Ruthenia and in Kiev,
mass murders had taken place, quite obviously without any legal
proceedings of any kind and without sentence having been passed.

What has, however, actually been proved by the evidence? The reports
referred to were sent, among dozens of other offices, also to that of
the “Reich Commissioner for Defense in Military Administrative District
XVII” and, moreover, with the specific address “attention of Government
Councillor Dr. Hoffmann” or “attention of Government Councillor Dr.
Fischer.” From this style of address and from the way in which these
reports were initialed at the office of the “Commissioner for Defense of
the Reich,” it can be established beyond question that Schirach did not
have an opportunity of seeing these reports and that he obtained no
knowledge of them in any other way either.

Schirach, it will be remembered, held three extensive offices in Vienna:
as Reich Governor (Reichsstatthalter) and Reich Defense Commissioner he
was the chief of the whole State administration; as Lord Mayor he was
the head of the municipal administration; and as Gauleiter of Vienna he
was the head of the local Party machinery. It is only natural that
Schirach could not fulfill all these three tasks by himself, especially
since in 1940 he had come from a completely different set of tasks, and
first had to make himself acquainted with the scope of work in State
administration and in municipal administration. He therefore had a
permanent deputy for each of his three tasks, and for the affairs of the
State administration, which interests us here, this was the
Regierungspräsident of Vienna. This official, Dr. Delbrügge, was to
handle the current affairs of the State administration completely on his
own initiative. Schirach occupied himself only with such matters of
State administration as were forwarded to him by his permanent deputy,
the Regierungspräsident, in written form, or about which his deputy
reported to him orally.

Now, if this had been the case with regard to the afore-mentioned
“Experience and Situation Reports,” then this would have somehow been
noted on the documents in question. However, on the “Experience and
Situation Reports of the SS” submitted here there is not a single note
which indicates that these reports were shown to the Defendant Von
Schirach or that he was informed about them. This will readily be
understood without further explanation because, after all, the
experiences which the Police and the SD had accumulated in the partisan
struggles in Poland and Russia were completely inconsequential for the
Vienna administration; therefore there was not the least cause to inform
the Defendant Baldur von Schirach of these reports in any way, since he
was very much overburdened anyhow with administrative matters of all
kinds.

This conclusion, Gentlemen, rests primarily not only on the testimony
under oath of the defendant here in Court, but also on that of the two
witnesses Hoepken and Wieshofer, who, one as chief of the Central Office
and the other as adjutant of the defendant, were able to give the most
exact information about conditions in Vienna. It is certain that these
“Experience and Situation Reports” never came into the distribution
center of the Central Office in Vienna, but only into the distribution
center of the Regierungspräsident, and that Hoepken, as chief of the
Central Office, as well as Wieshofer, as adjutant of the defendant,
likewise had no previous knowledge of these reports but saw them for the
first time here in the courtroom during their questioning. And I would
like to insert here that the two officials of the Defendant Von Schirach
who were mentioned by name, Dr. Fischer and the other one, were entirely
unaware of them. In any case the result, as has been proved by the file
notes which are on the documents, is that Schirach did not have any
knowledge whatsoever of these reports, and that he is not coresponsible
for the atrocities described therein, and therefore cannot be criminally
charged on the basis of these activity reports.

May it please the Tribunal, in judging the personality of Schirach, his
behavior during the last weeks in Vienna is also not without importance.
For Schirach it was a matter of course not to carry out the various
insane orders which came from Berlin at that time. He absolutely
condemned the lynching of enemy aviators which was ordered by Bormann,
and likewise the order to hang defeatists without mercy, regardless of
whether they were men or women. His summary court was never even in
session, and did not pronounce a single death sentence. No blood is on
his hands. On the other hand, for example, he did everything in order to
protect from the excited mob enemy aviators who had made an emergency
landing and again, as we have heard from the witness Wieshofer, he
immediately sent out his own car in order to bring to safety American
aviators who had parachuted. Thereby he again placed himself in
deliberate opposition to an order of Bormann that such aviators were not
to be protected against lynching by the civilian population. Nor did he
pay any attention to the order that Vienna was to be defended to the
last man, or that in Vienna bridges and churches and residential
sections were to be destroyed, and he emphatically refused compliance
with the order to form partisan units in civilian clothing or to
continue the hopeless struggle in a criminal manner with the aid of the
Werewolf organization. He turned down such demands out of his sense of
duty, all the more since this would have caused him to violate
international law.

The characterization of the Defendant Von Schirach would be incomplete
if we were not also to recall at this moment the declaration which he
deposed here on the morning of 24 May 1946. I am speaking of that
declaration in which he described Hitler as an unmitigated murderer,
here before the whole German people and before the entire world public.
Already last year Schirach made declarations which show his feeling of
responsibility and his preparedness to answer fully for his actions and
those of his subordinates. This was the case on 5 June 1945, for
example, when he was hiding in the Tyrol and heard over the radio that
all Party leaders were to be brought before an Allied court. Schirach
thereupon gave himself up immediately, and in his letter to the American
local commander stated he was doing so in order to protect other people,
who had only executed his orders, from being called to account for his
actions. He surrendered voluntarily, although the British radio had
already announced the news of his death, and although Schirach could
have hoped to remain undiscovered in his hiding place. This behavior
deserves consideration in judging the personality of a defendant.

The same feeling of responsibility was then shown by Schirach in the
autumn of 1945 when he was heard by the Prosecution. He believed at that
time that his successor Axmann had been killed, as he had been reported
to be dead. In spite of this, Schirach did not attempt to put the
responsibility on his successor; on the contrary, he expressly stated
that he was assuming full responsibility also for the time his successor
was in office, as well as for what had been done under his successor in
the Reich Youth Leadership. The keystone in this line of conduct is
furnished by the statement which Schirach made here on 24 May 1946,
which went out from this courtroom to the whole world, to all the German
lands, down to the last farm, down to the last workman’s hut.

May it please the Tribunal: Any man may err, he may even make mistakes
that he later may not understand himself. Schirach also has erred; he
brought up the younger generation for a man whom he for many years held
to be unimpeachable and whom he must now brand as a diabolical criminal.
In his idealism and out of loyalty he remained faithful and true to his
oath to a man who deceived and cheated him and the youth of Germany and
who, as we learned here from Speer, up to his last breath placed his own
interests higher than the existence and the happiness of 80 million
people.

Schirach is perhaps the one defendant who not only clearly realized his
mistakes, however they may be regarded, but who confessed to them most
honestly and who through his plain speaking prevented the creation of a
Hitler legend in the future. Such a defendant must be given
consideration for trying to repair as far as he can the damage which he
caused in good faith.

Schirach had tried to do that; he took pains to open the eyes of our
people about the “Führer” in whom, together with millions of Germans, he
saw for many years the deliverer of the fatherland and the guarantor of
its future. He publicly rendered an account which the German people are
entitled to ask of every subleader since Hitler committed suicide. He
did this so that foreign countries could see how the conditions of the
last six years had come about in Germany and just who was responsible
for them.

But above all, the former Youth Leader, in making his statement on 24
May 1946, desired to tell the youth of Germany openly that so far, quite
unknowingly and with the best of intentions, he had led them astray and
that now they must take another path if the German people and German
culture are not to perish. In doing so Schirach did not think of himself
nor of his life’s work which had been destroyed; he was thinking of the
youth of today, which not only faces the ruins of our cities and
dwellings, but also wanders about among the wreckage of its former
ideals; he was thinking of German youth, which is in dire need of new
guidance and which must base its future existence on another foundation.

Schirach hopes that the entire youth of Germany has heard his words.
What was particularly valuable in his confession of 24 May 1946 was his
assurance that he alone takes the guilt for youth, just as he formerly
assumed command. If this point of view is acknowledged as being right,
and if the necessary conclusions are drawn therefrom, this would be a
valuable result of this Trial for our German youth.

May it please the Tribunal, I am now coming to the end of my survey of
the case of Von Schirach. In the treatment of this case I desisted from
making general statements, and especially those of a political nature.
Rather, I confined myself to the appreciation of the personality of the
defendant, his actions and his motives.

In this connection I should like to add, to complete the picture, that
these considerations and this appreciation by the Defense have shown
that the Defendant Von Schirach is not guilty in the sense of the
Indictment and cannot be punished, for he did not commit a punishable
act, since you as judges will not judge political guilt but rather
criminal guilt in the sense of the penal code.

At the end of my remarks in the case of Von Schirach I should like to
have the privilege of making a few general statements, not immediately
connected with the personality of Schirach, but suggesting themselves to
a German defense counsel at the end of this Trial.

May it please the Tribunal, you are the highest tribunal of our times;
the power of the whole world stands behind you; you represent the four
mightiest nations on earth; hundreds of millions of men, not only in the
defeated countries, but also in the victorious nations listen to your
opinions and anxiously await your judgment, ready to be taught by you
and to follow your advice.

This high authority affords you, Gentlemen, an opportunity of doing much
good through your verdict and particularly through the statement of the
basis for the judgment, in order that out of today’s disaster the way to
a better future may be found for the benefit of your own people and for
the good of the German people.

Today, Gentlemen of the Tribunal, Germany lies beaten to the ground, a
poor people, the poorest of all. The German cities are destroyed; German
industry is smashed to pieces; on the shoulders of the German people
rests a national debt representing many times the entire national wealth
and spelling want and poverty, hunger and slavery, for many generations
for the German people if your peoples do not help us. The findings
supporting your verdict will in many respects point the way and give the
help needed to emerge from this desperate plight.

To be sure, for reasons of sentiment it may be hard for you to consider
this point of view and to take it into account when you think of the
misfortune which the past six years also brought to your own countries.
It becomes doubly hard, because for months this Trial has revealed
nothing but crimes, crimes committed for a great number of years by a
German tyrant misusing Germans and the name of this same German people
of whose future you as judges are now asked to think benevolently and
whom you are now required to help.

May it please the Tribunal: Hitler is dead—with him his tools who in
these years committed crimes without number tyrannizing Germany and
nearly all of Europe and disgracing the German name for generations to
come. The German people on the other hand live, and must be allowed to
live if half a universe is not to fall into ruins.

With this Trial and during this epoch, the German people are undergoing
a very serious operation. It must not bring death; it must bring
recovery. Your verdict can and must make a contribution in that
direction, so that in the future the world may not see in every German a
criminal, but revert again to the concept of Professor Arnold Nash of
the University of Chicago, who a few days ago, when questioned about the
purpose of his present trip to Europe, replied: “Every scientist has two
fatherlands, his own and Germany.” These words ought to be a warning
also for all of those irresponsible critics who even today see it as
their task, with propaganda means of every sort, to stir up feeling
against everything German and to tell the world that at least every
other person in Germany is a criminal.

You, as impartial judges, will not wish to forget one thing: There
always was and there still is today another Germany, a Germany that
knows industriousness and economy; a Germany of Goethe and Beethoven, a
Germany that knows loyalty and honesty and other good qualities which in
past centuries were proverbial for the German character. Believe me,
Gentlemen of the Tribunal, in this epoch, when Germany is regaining
consciousness as after a severe illness, as she proceeds to rebuild a
better future from the ruins of an evil past, a future for her youth
which has no part in the crimes committed, at this time some 70 or 80
million German people are looking to you and are awaiting from you a
verdict which will open the way for the reconstruction of German
economy, the German spirit, and true freedom.

You are, Gentlemen, truly sovereign judges, not bound by any written
law, not bound to any paragraph, pledged to serve your conscience only,
and called by destiny to give to the world simultaneously a legal order
which will preserve for future generations that peace which the past was
unable to preserve for them. A well-known democrat of the old Germany,
the former Minister Dr. Diltz, said in a recent article on the Nuremberg
Trial: In a monarchist state justice would be administered in the name
of the king; in republics courts would pronounce their rulings in the
name of the people; but you, the Nuremberg Tribunal, should administer
justice in the name of humanity.

It is, indeed, a wonderful thought for the Court, an ideal aim, if it
could believe that its verdict could in fact make real the precepts of
humanity, and that it could prevent Crimes against Humanity for all
time. But in certain respects this would still remain an unsteady
foundation for a verdict of such magnitude as confronts you, because
ideas on what humanity demands or prohibits in individual cases may
vary, depending upon the epoch, the people, the party concepts according
to which one judges.

I believe you may find a reliable foundation for your verdict when you
revert to a maxim which has endured throughout the centuries and which
certainly will remain valid in ages to come: _Justitia est fundamentum
regnorum_.

Thus the German people, and with them the entire world, await from you a
judgment which will not just be hailed today by the victor nations as
the final victory over Germany, but which history will recognize as
proper; a verdict in the name of justice.

THE PRESIDENT: I call on Dr. Servatius for the Defendant Sauckel.

DR. SERVATIUS: Mr. President, may it please the Tribunal:

The Defense of the Defendant Sauckel has, in the first place, to deal
with the charge of “slave labor.” What is slave labor?

One cannot accept this as an established term comprising all the
occurrences which, in bewildering abundance, are charged against the
Defendant Sauckel under the heading “slave labor.” Particularly, those
actions ought first to be examined from a legal point of view. The legal
basis for this examination is the Charter. However, this Charter does
not say what is to be understood by “slave labor” or by “deportation.”
Therefore, these concepts must be clarified by interpretation. Article 6
of the Charter deals in two passages and from two different points of
view with deportation and slave labor. Deportation is designated both a
war crime and a crime against humanity, and forced labor appears as
“slave labor” under the heading of War Crimes, and as “enslavement”
under the heading of Crimes against Humanity.

The question of under what heading the mobilization of labor by the
Defendant Sauckel should fall is of decisive importance; if it is a war
crime, then it should be judged exclusively under martial law. If it is
a crime against humanity, then the latter presupposes the commission of
a war crime or of a crime against peace.

It follows therefrom that the deportation mentioned in Article 6(b)
cannot be the same thing as deportation according to Article 6(c), nor
can forced labor according to Article 6(b) be identical with forced
labor under Article 6(c). The difference between the two kinds must be
found in ...

THE PRESIDENT [_Interposing_]: That paragraph of your speech which is in
English on Page 2, the second paragraph:

“It follows therefrom that deportation mentioned in Article 6(b) cannot
be the same as deportation according to Article 6(c) ...” is not
altogether clear to the Tribunal. Could you make it clearer?

DR. SERVATIUS: In Article 6(c) we deal with Crimes against Humanity,
whereas in Article 6(b) we deal with War Crimes. In both articles the
expressions deportation and forced labor are used, but there must be
some differentiation, and my examination is directed at establishing
this difference more exactly. I believe, Mr. President, that my further
statements will make this clearer than it has heretofore been.

I turn now to the terminology used in the Charter. I was talking of the
difference between the two kinds of slave labor and deportation. The
difference between the two kinds is to be found in the fact that
something has to be added to the war crimes which violates the rules of
humanity.

The correctness of this interpretation may also be recognized in the
terminology of the Charter, however fluctuating it may be. For instance,
the Russian text for deportation as a war crime chooses the word _uvod_,
which means only removal from a place, whereas, on the other hand, it
uses for crimes against humanity of the same nature the technical
expression _ssylka_, by which penal deportation under the rule of the
czars is understood as denoting deportation in the sense of penal
deportation.

THE PRESIDENT: The French is not coming through. Will you just wait a
minute, there is some difficulty with the French translation, Dr.
Servatius. The Tribunal must adjourn.

MARSHAL: The Court will remain adjourned until a quarter to two.

              [_The Tribunal recessed until 1345 hours._]




                          _Afternoon Session_

DR. SERVATIUS: I was speaking of the terminology of “deportation” in the
Russian text. I pointed out the distinction between the word _uvod_
meaning only transportation, and _ssylka_ meaning a deportation as a
form of punishment. From that one may conclude that deportation from the
occupied territories for the purpose of work can only be regarded as a
war crime, while it becomes a crime against humanity when assuming the
penal character of a transportation of prisoners.

However, the question arises whether, beyond this, according to the
Charter any removal of the population is punishable as a war crime,
regardless of whether it occurs for allocation of labor or for other
reasons. According to the text of the Charter, the latter seems at first
sight to be the case, since it renders punishable “removal for slave
labor, or for any other purposes.” Upon closer examination, however, it
becomes evident that this rule cannot be meant in such a sense, as there
are cases in which a removal is not only consistent with international
law but even becomes imperative.

Accordingly, the Charter could only be understood to mean that the
punishable act does not consist of plain “removal” but comprises the
composite concept “removal for slave labor” and “removal for any other
purpose.” The clause, “or for any other purpose,” should be understood
so as to mean only that an illegal purpose equivalent to slave labor
exists. If removal of any kind was to have been made punishable, then
the qualifying addition “for slave labor or for any other purpose” would
be contradictory to common sense. This definition is important for the
Defendant Sauckel, as otherwise proof of deportation classified as a war
crime would be evident from the acts admitted by him.

Just as for the various kinds of deportation, the difference between the
kinds of slave labor, according to the Charter, must be clarified. Here,
too, a clue to the interpretation is provided by the terminology of the
different languages, though not because of their clarity and consistency
but by the very opposite:

The English version speaks of “slave labor” as a war crime and of
“enslavement” as a crime against humanity; the French version states
_travaux forcés_ and _réduction en esclavage_, the Russian version
accordingly _rabstvo_ (slavery) and _poraboshtshenie_ (enslavement). It
is not discernible how the terms chosen differentiate _in re_. Basing
upon the fact that labor inconsistent with laws of humanity must be
carried out under more severe conditions than other labor and assuming
“slave labor” to be the severest forms of labor, it will be seen that no
definition can be derived from this terminology of the Charter and that
more of an ethical discrimination and stigmatization is intended.

Accordingly an objective division of the kinds of labor should be
carried out independent of the terminology by considering exclusively
the degree of severity of labor conditions. If one tries to analyze the
terminology used, one finds the designation “enslavement,” _esclavage_,
and _poraboshtshenie_ for the inhuman form of labor, whereas the labor
not inconsistent with laws of humanity is called “forced labor,”
_travaux forcés_, and _prinudidjenaja rabota_. Slave labor (“slave
labor,” _travaux forcés_, and _rabstvo_) consequently is the general
term comprising both kinds.

What does this definition mean for the defense of the Defendant Sauckel?
He admits having negotiated “compulsory labor” in the form of obligatory
labor which, as stated before, has been termed “slave labor” in general.
He denies, however, having demanded “slave labor,” which might be looked
upon as inhuman labor, in other words, enslavement. A different standard
applies, just as for deportation, to these two categories; “obligatory
labor” is only a war crime and must be judged according to the rules of
war; crimes against humanity, as I already stated above in connection
with deportation as a crime against humanity, bear the additional
characteristics of being connected with war crimes or crimes against
peace. If it can be proven that the mobilization of manpower as ordered
by the Defendant Sauckel was permitted by the rules of war, then the
same act cannot be held to be a crime against humanity.

The Indictment, too, has made a difference as to the kinds of labor. It
has treated, under Paragraph 3, Section VIII (H), as a separate war
crime under the title of “Conscription of Civilian Labor,” the
mobilization of manpower as directed by the Defendant Sauckel, which I
shall call “regulated labor mobilization,” and mentions only “forced
labor.” The French version speaks here of _travaux forcés_ and uses
terms such as _les obligèrent à travailler_ and _mis en obligation_; the
Russian version follows this and also speaks only of “compulsory labor”
as _prinuditjelnaja rabota_ but does not refer to this as being slave
labor.

The Defendant Sauckel does not deny the facts taken here as a basis, but
I shall submit the legal reasons which justify this mobilization of
labor, and I shall prove that it does not involve any war crime that
would break international law.

The rules of international law are authoritative in determining the
question whether “regulated labor mobilization” is a war crime. The
Charter cannot prohibit what international law permits in wartime. Such
precepts of international law are laid down in the agreements on the
rules of war and in the general legal principles and usages as applied
by all states.

The Prosecution bases its opinion that labor mobilization is a war crime
on the definitions of the Hague Convention on Land Warfare, as well as
on the agreements and rules of war and the criminal codes of the
countries concerned. If it is shown that labor mobilization is permitted
by international law, then a judicial inquiry into the penal regulations
is, of course, not necessary.

The Hague Convention on Land Warfare can be considered as a basis for
the laws of warfare with which we are concerned here. Whether it was
recognized by all the states involved here is, from a practical point of
view, of little importance, for inasmuch as it was not recognized or
cannot be directly applied, it is a case of a shortcoming in
international law which is filled as a matter of course according to the
principles of the belligerent’s needs and his duty to respect the laws
of humanity. The principles of international law as established in the
Hague Convention on Land Warfare are in all cases an important guide.

The Prosecution quotes, in the first place, Article 46 of the Hague
Convention on Land Warfare, which is designed to safeguard the
fundamental rights of the population. It is typical for labor
mobilization that it does restrict liberty, whereas this particular
basic right is not protected by this article.

If the Hague Convention on Land Warfare is examined for a definite rule
concerning deportation and forced labor, it will be realized that no
such regulation exists. Just as in the sphere of air warfare and the use
of new weapons, the Hague Convention on Land Warfare could not deal with
questions which, at the time of its drafting, were far from the mind of
the contracting parties. The first World War was still fought between
two armies with already prepared material, and after it was used up the
fight would be ended. The idea of a long war consuming huge amounts of
material and requiring a continuous production with all available labor
was for the Hague Convention on Land Warfare not yet a problem ripe for
discussion.

Article 52 of the Hague Convention on Land Warfare, which deals with the
right to requisition, touches on the matter; but it can be seen that the
rules deal only with purely local requirements of an army which appears
fully equipped and has only supplementary local requirements. It is
characteristic for the purely local meaning that the requisitioning
authority is entrusted to the local commanders, in contrast to Article
51 of the Hague Convention on Land Warfare which permits only an
independent commanding general to impose compulsory contributions. The
literature about the right to requisition in international law
accordingly quotes only examples of local significance.

Although Article 52 of the Hague Convention on Land Warfare can
accordingly not be directly applied, its basic principles are
nevertheless binding on the belligerents. The basic idea is that an army
can demand practically everything necessary for the satisfaction of its
requirements. There are only two limitations: It may not take more than
it needs and not more than is compatible with the resources of the
country.

The idea of a local obligation to furnish services will have to be
adapted to modern warfare. The Hague Convention on Land Warfare
envisaged the employment of smiths and wheelwrights necessary for the
maintenance of the equipment of the army; work within the home country
of the occupying power was, in view of undeveloped transportation
conditions, impracticable and remained unconsidered.

Today the necessary work will no longer be done in the vicinity of the
front-lines but must be carried out in the belligerents’ own countries,
so that it must be possible to demand that labor should be available at
the only place where it can be done and where it is necessary. It must
also be possible to demand such labor for modern war requirements of
mass production for current replacements. What is necessary at any given
time can be asked for, the amount depending on prevailing conditions. If
in earlier times, according to the principle “the war feeds the war,” an
army far removed from its homeland was even to a large extent equipped
in occupied territory, it must surely be possible today to supply the
army by moving the workers to the factories in the belligerent’s own
country. The evolution of the laws of warfare is influenced by the
requirements which these laws have to serve.

With the basic idea of the obligation to furnish services the basic idea
on limitations will have to be accepted, too. These limitations must
also be interpreted to apply to the changed conditions. While the
obligation to furnish services is justified, no more work may be
demanded than the occupying power requires of its own people at home.
The intensity of the war as total war must be taken into consideration.
The obligation to work may thereby assume considerable proportions.

The meaning and the purpose of the Hague Convention on Land Warfare is
certainly not to place the nationals of a defeated state in a better
position than those of the victorious state which occupied the country.
This, however, would be the result if the Hague Convention on Land
Warfare were interpreted according to its original wording. If this is
maintained, then France, which had surrendered unconditionally together
with all the other occupied countries, would have been able to look on
in security while Germany, strangled by the blockade, was exhausting
herself in an indefatigable struggle by sacrifices of life and property.
Can one really demand that the prisoner in a besieged fortress should
live more comfortably than the defender of the fortress? If Germany
today could live according to the romantic concepts of the Hague
Convention on Land Warfare, this would certainly be preferable to the
burden of the peace treaty to be expected.

Actually, the Hague Convention on Land Warfare has not been adhered to
even in its original interpretation, if it is true that already before
the conclusion of the armistice the Soviet Union as occupying power
transferred the population on a large scale from the eastern parts of
Germany for the purpose of performing labor outside Germany. The
Tribunal could obtain official information about this through an inquiry
with the Control Council. I also have information that German civilian
internees are used for work in France today. Here too the Tribunal could
obtain official information.

The second limitation of the obligation to work is embodied in the rule
that no participation in war operations against the home country of the
worker may be demanded. Any work done for the occupying power indirectly
benefits its war effort; the prohibition is therefore restricted to
direct participation in operations of the fighting force. The literature
on international law contrasts the participation in military operations
with the permissible participation in preparations. Participation in war
operations in this sense was not asked of any worker; on the contrary,
the purpose was to employ workers away from these operations and without
disturbance by the war.

Consequently only such activity as is directed against the workers’ own
country is forbidden, thus taking the feelings of the individual into
consideration. No protection of the enemy state is thereby intended.
Wherever, therefore, the individual renounces his country and in a
struggle of ideologies opposes the government of his country, such a
restriction no longer applies. In connection with this I wish to point
to the vast number of foreigners who adopted such an attitude and who,
in part, still live in Germany today.

The same applies when the state to which the worker belongs has ceased
fighting. This question is of special importance with regard to the
obligation to work in the armament industry. The rules of the Geneva
Convention with regard to the work to be done by prisoners of war are
known. The basic notion, that no one may be forced to make weapons
against his own brothers, must apply to civilian workers also.

The fact, however, that one’s country is no longer in a legal state of
war is one of the reasons that nullify this restriction. The need for
protection also ceases to exist when a country, though legally still
participating in war, to all intents and purposes no longer possesses
any fighting forces and has thus ceased to exist as a military object of
attack. The fact, that this country may have allies who fight for it
cannot arbitrarily extend this limitation beyond the terms of the Geneva
Convention; nor is it the duty of a subject of a given state to protect
allies fighting for it and to participate in the policies of his
government.

Puppet governments cannot change reality. Recognition cannot be granted
to them unless they reappear as independent combatants under a command
of their own and are recognized as such. This applies to all states
defeated by Germany.

At the time of the mobilization of labor only Britain, the United
States, and the Soviet Union were active combatants against Germany.
British and American subjects were not affected by this mobilization,
although citizens of the Soviet Union were in part used in armament
production.

The legal position of citizens of the Soviet Union is however
fundamentally different. Under Document Number EC-338, USSR-356, the
Prosecution has submitted a decree by the People’s Commissars dated 1
July 1941. This decree deals with the utilization of prisoners of war
for labor purposes; but it also, however, refers to the employment of
interned civilians. According to the wording, armament production is not
forbidden for either category of workers; and only two limitations are
specified in the decree, namely, work in the combat zone and services
required of an orderly.

Thus, from the point of view of reciprocity, no objection can be raised
against the employment of Soviet citizens in armament production. In his
examination before the Tribunal the witness General Paulus stated that
prisoners of war were employed in factories of the Soviet Union, which
means that in a state with a directed economy they were employed during
the war in the armament industry. According to the decree it must be
assumed then that these workers were also employed in the production of
weapons.

The significance of such a violation of the principle that armament
production shall be forbidden lies in the serious consequence that no
formation of a generally recognized rule of international law in this
new field of utilization of manpower can thereby be proven. Under these
circumstances therefore Germany was likewise free to employ workers of
the Soviet Union and workers of all other states in armament production.

The Hague Convention on Land Warfare thus does not forbid the regulated
utilization of manpower, but there are also further international
aspects permitting such a utilization of manpower. The assent of the
government of the occupied state is of primary consideration. This
assent was given by France. The objection that Marshal Pétain’s
Government was not a constitutional government is invalid, for it was
the legitimate successor to the provisional armistice Government. That
it represented the French State with foreign governments is of decisive
consideration in international relations. This authority of
representation was confirmed by the United States by its keeping an
ambassador in Vichy even after its own entry into the war. Great Britain
also negotiated the terms of an armistice with a general of the Vichy
Government in Syria in 1941.

This Government once recognized could not be deprived of its legality by
the simple declaration of an oppositional government, even though the
latter might have been recognized by the Allies. A government loses its
international position only if it is forced to transfer its actual power
to the oppositional government. Up to that moment it retains authority
within its sphere of influence.

The other objection that the Government of Marshal Pétain was not free
to act as it wished and that consequently agreements with Germany in the
field of utilization of manpower were reached by coercive measures and
are therefore invalid, is not justified from the point of view of
international law. Armistice and peace treaties are always concluded
under great pressure. That this does not curtail the validity of such
treaties is an obvious point of international law. This has constantly
been emphasized when refusing German demands for a revision of the
Treaty of Versailles.

Agreements which are reached in periods between the armistice and the
peace treaty are subject to the same conditions. This also applies to
the agreement with France with respect to the utilization of manpower.
Thus, if—contrary to the statement of the Defendant
Sauckel—negotiations about the utilization of manpower were conducted
in the form of an ultimatum, there could from the point of view of
international law still be no reason for an objection. Besides,
Sauckel’s influence surely cannot have been so great that he could have
exerted an excessive amount of pressure.

The validity of such agreements is open to doubt only under very special
conditions, such as would mean that excessive obligations were to be
assumed which obviously violate principles of humanity; for instance, if
the agreements contain a clause stating that work must be performed
under slave-like conditions.

The motive for these agreements was, however, to offer, especially to
the French workers, favorable working conditions and salaries for their
obligatory labor in Germany, thus to attract the workers.

Military reasons too can command the evacuation of an occupied territory
by part of the population and thereby cause a displacement of manpower.
This may happen when the population participates in partisan warfare or
is active in resistance groups and thus endangers security instead of
behaving obediently and peacefully. It even suffices for the population
in the so-called partisan territories to be drawn upon even against its
will for the support of the partisans. That such conditions were
organized by Germany’s enemies as combat measures in an increasing
degree, first in the East and later in the West, is today looked upon as
a patriotic achievement. In view of this one must not forget that the
resulting displacement of workers was precisely the consequence of their
activities and that such action was permitted by international law.
Evacuation had to be carried out in the interest of security, and
assignment of labor elsewhere was necessary if only to maintain order.
It is the privilege of the occupying power to utilize this labor within
a regulated state economy in the manner deemed most appropriate under
the prevailing conditions. Similar measures might also be imposed in
areas of retreat after it had been ascertained that the male population
illegally took part in hostilities during the retreat, as it had been
called upon to do by the enemy, sometimes even being supplied with
weapons.

Evacuation measures for the security of combat troops are equally
permissible under international law. To engage persons evacuated from
the combat zone in new work is not only legal but is actually the duty
of the occupation administration. The state which calls upon its
subjects to fight and thereby intensifies combat, bears the guilt for
such evacuation. The necessary retaliatory measures therefore must be
legal.

Whenever such evacuations become necessary, they must be carried out
without undue suffering for the population. For this preparatory
measures, which alone can avoid unnecessary hardships, are necessary.
That is the duty of administration as laid down in Article 43 of the
Hague Convention on Land Warfare. Thereto appertain the proposals made
by Sauckel for the evacuation of territories of retreat in France in the
event of invasion (Document 1289-PS). These proposals did not
materialize and cannot therefore incriminate the Defendant Sauckel.

This administrative duty may also call for a displacement of labor in
order to avoid unemployment and famine. This, for example, occurred when
the industrial areas of the Soviet Union were occupied, where there were
no more working possibilities after the population became unemployed
following the scorched earth policy adopted by the Soviet Union, and
supplies failed to arrive because of transport difficulties.

These military and administrative points of view of international law
can invalidate a number of reproaches; but they do not answer the basic
question, namely, whether the enlistment of workers is also permitted
outside the Hague Convention on Land Warfare for the very purpose of
intensified labor to enable the state to carry on the war through
increase of production and to allow it to release its own workers for
service at the front.

A purely military emergency would provide no excuse for disregarding
international law. Victory jeopardized must not be sought by breaking
the law when in distress, because the laws of warfare are intended to
govern that very combat, which is of necessity connected with distress.
International law inclines differently where it is a case of a measure
to be taken to safeguard the existence of the state. That is a law of
self-preservation which every state is entitled to because higher
institutions are lacking which could protect it from destruction.

It has repeatedly been stressed by all concerned that in this war our
existence was at stake. This became evident for Germany after the fatal
battles on the Eastern Front in the winter 1941-42. Whereas up to that
time no wholesale employment of foreign labor had been necessary, new
equipment now had to be produced immediately. The German labor reserves,
were depleted due to the drafting of 2 million workers for service at
the front. The employment of unskilled women and young people could not
immediately relieve the situation. During the later stages of the war,
especially through aerial warfare, armament demands increased to such an
extent that, in spite of the increased employment of women and young
people, the level could no longer be maintained. The means were
exhausted.

The official figures which the Defendant Sauckel made public in his
speech in Posen in February 1943 (see Document 1739-PS) proved that
already in 1939, at the beginning of the second World War, more than
twice as many women were being employed than at the end of the first
World War and that their number at the end of the second World War had
increased by another 2 million to a total of over 10 million. This
figure exceeds the entire number of male and female workers in the
armament industry at the end of the first World War. Yet in spite of
that there was a shortage of labor. This has been confirmed by the
witness Rohland for Codefendant Speer in Document Speer-56, according to
which Speer also declared that foreign labor was needed under all
circumstances.

The crux of the matter did not concern the problem of female labor,
where by introducing additional home labor the limit was attained, but
that of procuring specialists and men for heavy labor. Among the 10
million German women who were at work, there were also the wives of
front-line officers and others from similar classes of society.

The notion that in Britain the women were conscripted for work in a
higher degree than in Germany is wrong. In Germany the women had to work
up to 45 and later 50 years of age, and they actually worked in
factories and did not have fake jobs of a social kind. Even
schoolchildren beginning with the age of 10 were required to work, and
from 16 years onward they were switched to regular labor or occupied in
other services. Families were disrupted; schools and universities were
closed; pupils and students worked in the armament industry, and even
the wounded could not continue their studies. A grim fight was waged
over every person capable of work. Speer’s reserve of workers did not
exist. What efforts were made in this sector is shown among others by
Enclosure 2 of the Wartburg Document RF-810.

Another point of view illustrating the necessity of employing additional
labor is the fact that the powers in possession of colonies brought
labor from their colonies; France (see Document RF-22, Page 17), for
instance, took in about 50,000 workers from North Africa and Indo-China,
which were under the command and supervision of officers and
noncommissioned officers. Since Germany, having been refused colonies
and on account of the blockade, was unable to draw upon such reserves,
she was entitled to some means, in her fight for existence, of procuring
labor where it could be found inactive in occupied territories.

This is in outline the basis, with regard to international law, for
judging the regulated mobilization of labor as a war crime. One may,
with regard to certain points, differ in opinion; and it will generally
be found that in international law a uniform interpretation will not be
readily arrived at. The interests of individual members in the community
of international law play an important part and are not always
identical; legal principles are often not recognized because some state
does not wish to place itself officially in contradiction with its
former actions, or because it prefers to remain unbound for the future.

As counsel for the Defense, I am in a position to present my
interpretation of law without such inhibitions. The significance of my
statement for the Defense, apart from the objective side, lies in the
fact that the Defendant Sauckel, subjectively, was for good reasons
entitled to believe in the lawfulness of a regulated mobilization of
labor and that to him his actions were not discernible as being in
contradiction with international law. This was supported by the
impression which the Defendant Sauckel could not but gain of the
permissibility of a regulated mobilization of labor, as shown by the
attitude of other superior offices. When Sauckel entered upon his
office, foreign workers had already been enlisted by individual action;
and he could take it for granted that the State would equally proceed in
a legal manner. None of the highest offices has ever raised legal
objections before Sauckel. These offices, both the competent Foreign
Office and the highest civil and military offices in the occupied
territories, accepted his orders as a matter of course; and no questions
of doubt on international law were raised.

For the opinion of the Defendant Sauckel the attitude of the foreign
agencies concerned was necessarily of special importance, notably the
consent of the French and the Belgians, who came to Berlin personally
for discussions. From this resulted the good co-operation with the local
authorities in the occupied territories, as was the case before enemy
propaganda intervened.

Whether cognizance of breaking a law is indispensable when committing a
crime against international law may be a moot point; but to establish
guilt leading to a conviction, cognizance of the realization of all the
criminal facts is essential. This includes cognizance of the fact that
the action performed was contrary to international law. The subjective
aspect of the facts, involving criminal guilt of the Defendant Sauckel,
cannot be proved in respect to application of the regulated mobilization
of labor. It would be impossible to commit the Defendant Sauckel for yet
another legal reason, even if the regulated mobilization of manpower
really were a violation of international law. According to the Hague
Convention on Land Warfare, no individual responsibility exists. The
Hague Convention on Land Warfare differentiates between two kinds of war
crimes; those which can be committed by an individual, such as murder
and ill-treatment, and those which can be committed only by parties in a
war. The regulated utilization of manpower is a proceeding which can
only be initiated by the state. While the individual action is punished
according to the penal code of the different states, a special
regulation was laid down for offenses committed by parties in a war in
Article 3 of the introductory agreement to the Hague Convention on Land
Warfare. This specifies only a liability for damages on the part of the
state. This passage of the Hague Convention on Land Warfare still
applies today, since it cannot be rescinded by agreement among the
Allies alone. The Charter, which specifies the immediate criminal
responsibility of the state organs or its executors, is void insofar as
it is contradictory to the Hague Convention on Land Warfare.

I do not have to refer to the fact that Germany, as one of the parties
to the agreement, would have had to agree to the suspension of Article
3; there are other reasons which speak for a continuation of this
stipulation. A modification of the Hague Convention on Land Warfare in
the sense of the Charter might have resulted from the law of usage or
general custom due to changing legal conceptions. The presupposition for
this assumption would be, however, that the contracting powers
relinquish their sovereignty, since only then would the punishment of
the state organs be possible. However, such a renunciation of the rights
of sovereignty has not, as far as I am aware, taken place to such an
extent as would generally render such punishment permissible. With
regard to this point, I refer to the general statements made by
Professor Jahrreiss before the Tribunal.

I shall now deal with the utilization of manpower as a crime against
humanity. If a regulated utilization of manpower appears permissible
according to international law, there remains the problem of the method
of its execution, namely, the question of up to what point this
utilization of manpower can still be regarded as in order and when it
will exceed the permissible limit.

The Charter fails to define the concept of humanity. As far as
international law is concerned, the term can only be transposed from the
practice of the nations. In endeavoring to establish the limit for
actions permissible under international law, we must, for the sake of
comparison, mention the bombing of large cities and the use of the
atomic bomb, as well as deportations and evacuations as still in
progress today. These are all incidents which have occurred before the
eyes of the world and were regarded as permissible by the executing
countries.

Once again we are confronted with the conception of necessity and find
that it is being interpreted in a very flexible manner. This should be
kept in mind when examining the mobilization of labor as to any
violation of the principle of humanity involved. Its aim is not the
sudden killing of hundreds of thousands; however, it naturally entails
hardships and is certainly also subject to mistakes which arise
unintentionally or are due to the shortcoming of individuals. An answer
will be required to the question of whether deliberate killing does not
always weigh heavier than the temporary infliction of other sufferings.
Also, the Charter does not prescribe punishment for every violation of
the principles of humanity but only when inhuman treatment occurred in
the execution of, or in connection with, a crime for which the Tribunal
is competent. However, the Tribunal is competent only for Crimes against
Peace and for War Crimes. As for Crimes against Peace, inhuman treatment
may be admissible in self-defense, while it is punishable when committed
by an aggressor; or alternatively, it must be a case of a war crime.

This does not apply when compatriots are ill-treated, for they are not
protected by the laws of warfare. Prosecution for an act against
humanity committed toward them can only take place if a crime against
peace is involved at the same time.

From an objective point of view labor commitment furthered the waging of
the war which has been designated by the Prosecution as a war of
aggression or as a war violating treaties. If this is established and if
it is proved moreover that the mobilization of labor was carried out in
an inhuman way, then the requirements of the Charter will have been met
and a crime against humanity committed, regardless of whether the
mobilization of labor was allowed or not allowed by the rules of war,
since it was committed in connection with a crime against peace. But
punishment can be inflicted only if the culprit himself knows that an
unlawful war is being waged and that he is furthering it by his action.
Since the Defendant Sauckel denies any such knowledge, it must be
proved.

The other possibility of meeting the factual requirement occurs when the
inhuman act serves to carry out a war crime or is connected with it. Of
the examples given by the Charter for violation of the rules of war, the
following in the main can be taken to apply to the mobilization of
labor: murder, ill-treatment, and deportation of the civilian
population. As shown by this enumeration, these war crimes are not,
however serious they may be, in themselves crimes against humanity. Some
aggravating circumstance making the act inhuman must be added. As shown
by the examples of inhuman “extermination” and “enslavement,” the acts
in question must be objectively of particular scope or cruelty.
Subjectively, however, an inhuman disposition of the culprit and the
knowledge of the inhuman character of the act, that is to say, knowledge
of the scope of the measure or of the cruelty of its execution, is
additionally required. How far these conditions apply to the Defendant
Sauckel must be investigated later on. A “regulated mobilization of
labor,” as allowed by international law can never in itself be a crime
against humanity; but its execution may be carried out in such a way
that it involves killings and ill-treatment, which for their part might
be war crimes.

Such ill-treatment could result from regulations issued by the highest
authority involved, who thereby would bear the responsibility. It may,
however, also be committed by subordinate agencies acting on their own
authority without the knowledge or intention of their superior
authorities. In that case the head of the agency acting on its own
accord bears the responsibility. Lastly, it may be a case of a purely
individual act committed against the regulations in force. For such an
act the individual is solely responsible.

It follows that the Defendant Sauckel is responsible, to begin with,
only for such general orders and instructions which he has given, not
however for independent acts by superior authorities in the occupied
territories or by supreme Reich authorities, such as the Chief of SS and
Police, which were not under his jurisdiction. The orders and directives
of the Defendant Sauckel have been submitted, and they must show whether
the mobilization of labor as ordered by him was in fact a regulated one
or was tantamount to an “ill-treatment” of the population. Apart from
the call for volunteers, mobilization of labor took place on the basis
of a compulsory service decree, signed as a legal measure in accordance
with Hitler’s instructions by the territorial commanders. The authority
to issue such laws exceeded the powers of the Defendant Sauckel, nor
could he ask that any such laws be issued. He did however approve of
them and made them the basis for his work. The contents of these laws
were consistent with the fundamental ideas of the German laws concerning
compulsory labor service. These laws were coercive. The use of coercive
measures is not called for as long as the legal authority of the
occupying power is acknowledged by the population; they become necessary
only when such authority fails.

In this connection the Defendant Sauckel has repeatedly asked for the
maintenance of executive authority by operations in partisan-infested
territories for overpowering the resistance movement (Document R-124).
No legal objections can be raised against the fact that to this end he
demanded the use of means provided by the State. He is wrongly
incriminated only by the words “SS and Police,” which have been
connected by the Prosecution with the conception of crime. Such an
incrimination would only be justified if the criminal character of the
Police had been proven and if the Defendant Sauckel at that time had had
cognizance of such criminal activity.

That force may be used in case of resistance against orders of the
occupation force cannot be disputed. The question is, where are the
limits of force and whether or not there are legal and illegal,
admissible and inadmissible, human and inhuman, measures of force.

If fundamental laws are no longer deemed to be valid when a state of
siege is declared within a state, surely this will apply all the more to
a power occupying another country in wartime. Anyone who refuses to
carry out the orders of the occupying power knowingly participates in
the fight to which he is not entitled and has to accept the
consequences. Obedience is the primary duty toward the occupying power;
and where patriotism and obedience are conflicting issues, the law
decides against patriotism. The punishment meted out is, as such, not
subject to any limitation; and the threats of punishment by an
occupation power are, for purposes of intimidation, usually extremely
severe. The question is whether there exists a limit, from the
standpoint of humanity, which prohibits punishment in excess of the
legitimate purpose which may be considered unwarranted. Orders like the
burning of houses, which were issued independently by subordinate
offices in connection with the recruitment of labor, must be examined
from this point of view.

This question is not easy to answer, if one bears in mind the special
underlying circumstances and realizes that it was a case here of an open
struggle between the occupying power and the population, with official
support from the enemy. In case of uprisings and organized general
resistance one cannot disclaim the applicability of the military laws as
practiced by the combat troops. Necessity alone must be the decisive
factor in this case. International law has put only one limit to
coercive measures in forbidding, in Article 50 of the Hague Convention
on Land Warfare, collective punishment of an entire population for the
deeds of individuals for which the population cannot be held partially
responsible. It is essential that such partial responsibility shall have
been established by actual events and not construed through orders. It
is not specified wherein collective punishment may consist. The
limitations of humanity, as I already pointed out, must be respected,
but in war this is a vague conception; necessity and practical value
must always have preference.

Next to the manner of recruiting labor, the conditions of work may
represent an ill-treatment which can be looked upon as a war crime. On
principle, there can be no question of ill-treatment whenever the
foreign workers are generally treated in the same way as the workers of
the home country. Different treatment is only permissible when special
circumstances justify it. Whereas generally foreign workers work on the
same level as the Germans, the so-called, Eastern Workers were
discriminated against. The most striking difference here was the
limitation of freedom. If this had been arbitrary, that would be
sufficient reason for declaring this to be ill-treatment. But the
reasons for this limitation of freedom were not arbitrary; they were
conditioned by the State’s need for security. During wartime the
presence of an enemy alien in the country always represents a danger,
and it is for that very reason that originally the bringing in of
foreign workers had been dispensed with. Only when necessity demanded
the utilization of foreign workers did the need of security have to be
taken into account simultaneously. The measures to be taken will depend
upon the danger, which will vary according to the attitude of the alien.
Whereas police measures with regard to the French were almost
imperceptible, the Eastern Workers were in the beginning kept under
supervision in camps.

The natural interest of the state lies in attaining security by winning
the aliens over inwardly because their collaboration is desired. This
will never be achieved by depriving them of their freedom. As long as
the attitude of the alien cannot be clearly assessed, especially if he
be like the citizens of the Soviet Union, propagandistically trained,
more stringent control may be necessary. However, it must not develop
into permanent captivity, and should at most constitute a sort of
quarantine. To deprive people without guilt of their liberty for an
extended period is not admissible, because that would correspond to a
forbidden collective punishment. The mere assumption of danger is not
sufficient to justify such limitations; there must be certain acts which
show that such foreign workers appear dangerous even under normal
working conditions. The custody of Eastern Workers behind barbed wire
and without permission to go out, as ordered by Himmler, must be
regarded as ill-treatment if it is a permanent practice.

The Defendant Sauckel, guided by a feeling that in this matter the
limits of the permissible had been overstepped, immediately took steps
against this and in a tough fight against Himmler demanded and obtained
the withdrawal of barbed wire and the prohibition to go out, as can be
seen from the ensuing decrees, Document Number Sauckel-10, Exhibit
USA-206.

Where in spite of later arrangements the old methods were still applied
by the police, Sauckel always intervened whenever he heard of such
occurrences. This has been confirmed repeatedly by witnesses. I refer
particularly to Exhibit Sauckel-10, the statement by the witness Goetz.

Another controversial point was the identification by a badge “Ost,”
which was maintained until 1944 and then replaced by a national
insignia. This identification of the Eastern Workers, who were free to
move among the population, was necessary for security reasons. This
cannot be considered ill-treatment. The distaste for this sign shown by
the Eastern Workers was chiefly due to the defamation of this badge by
propaganda, and the Defendant Sauckel always tried to change this
insignia and to replace it by a national insignia such as the other
workers wore voluntarily. He finally prevailed here also against Himmler
(Document RF-810, Page 12).

Equality must also exist between a nation’s own workers and foreign
workers with regard to the rules concerning maintenance of discipline.
With all belligerent states the war has raised the same problem as to
how to deal with those workers who do not properly fulfill their work
duties; that is to say, slackers, shirkers, and saboteurs. The practice
of discharge, common in peacetime, is ineffective during war; on the
other hand, deserters from work cannot be tolerated today by any
belligerent. In cases amounting to sabotage, police and penal measures
were called for, the principal one being a short term in a labor
training camp; in certain extreme cases, imprisonment in a concentration
camp was inflicted. Document 1063-PS, RF-345, shows the similarity in
the execution of the regulations as applied to Germans and foreigners.

Such police measures, which are caused by disloyal conduct of the
worker, are justified. The Wartburg Document RF-810 shows in the report
of the expert Dr. Sturm that such measures were carried out on a very
moderate scale and that only 0.1 to 0.2 per thousand were thus punished.

Hence it follows that the issue of regulations concerning the
maintenance of discipline is not yet in itself an ill-treatment which
might form the basis for a crime against humanity. Such ill-treatment,
however, can consist of excesses such as did occur outside the
competence of the Defendant Sauckel. He can only be held responsible for
those if he himself was subjectively to blame in that he knew of such
excesses and approved of them although he might have prevented them.

In summing up one can say that the “regulated mobilization of labor” is
permissible in international law and that restrictions imposed on
workers within the limits of necessities must be permitted for reasons
of state security. On the other hand, excesses in carrying out the
regulations must be looked upon as ill-treatment and may amount to
crimes against humanity. Responsibility for those rests with whoever has
instigated them or who, within the sphere of his competence, failed to
prevent them in the performance of his duty. When measuring the grave
charges brought against the Defendant Sauckel by the standards of the
aforesaid legal considerations, it will be necessary first of all to
single out those fields in which the evidence reveals him to be
absolutely clear of any responsibility.

In the first place, it is not proved that the Defendant Sauckel can be
connected with the biological extermination of the population. His whole
interest, as has been shown, pointed toward the opposite direction,
since his purpose was to obtain people as laborers. He had nothing to do
with migration measures and any methods used in that respect.

Work in concentration camps was just as far removed from the Defendant
Sauckel’s responsibility. Himmler’s speech in Posen in October 1943
(Document 1919-PS, Page 21) reveals that the SS had erected gigantic
armament plants of their own. We know that Himmler covered his extensive
labor requirements by despotic arbitrary arrests of persons in occupied
territories. Inside Germany he had workers engaged in regular employment
arrested on insignificant pretexts and brought to concentration camps,
fraudulently using the regular labor offices. This is clearly shown in
Document 1063-PS, containing a letter dated 17 December 1942 as well as
a letter dated 25 June 1943, in which a requirement of 35,000 prisoners
is signified. Moreover, no correspondence with reference to
concentration camp labor ever passed through Sauckel’s offices. As an
example, I refer to Document 1584-PS containing some correspondence with
Himmler’s department. The Defendant Sauckel’s name is never mentioned
with reference to a conscription of prisoners, and the witnesses have
unanimously stated that the Defendant Sauckel had no connection with
these matters. This is also confirmed by the statement of the Director
of the armament ministry’s Labor Office, Schmelter, who received the
prisoners required direct from Himmler.

Another field which must be eliminated is the conscription of Jews for
labor. This formed a part of labor conscription of concentration camp
prisoners; it was Himmler’s own personal secret sphere. This is revealed
for instance by Document R-91, in which Himmler’s service orders the
arrest of 45,000 Jews as concentration camp prisoners.

By the production of Document L-61 the Prosecution has attempted to
convict Sauckel of a share of guilt in this field. This document is a
letter, dated 26 November 1942, from Sauckel’s office to the presidents
of the provincial labor offices, stating that by agreement with the
Chief of the Security Police and SD, Jewish workers remaining in the
plants must be withdrawn and evacuated to Poland. As a matter of fact,
this letter actually confirms that Sauckel had nothing to do with Jewish
labor in the concentration camps, since Jewish workers were withdrawn
from his department under the very pretext of evacuation. The measure is
indeed solely concerned with the purely technical matter of excluding
the Jewish laborers and replacing them by Poles, an operation which
could not have been carried out without the participation of Sauckel’s
office.

This letter is in continuation of a correspondence which can be traced
back to the period prior to Sauckel’s assumption of office, and Document
L-156 subsequently deals with the same technical operation. The
unimportant character of the matter is attested by the fact that these
letters were not sent from the Defendant Sauckel’s head office in the
Thüringerhaus, but from an auxiliary office in the Saarlandstrasse. The
Defendant Sauckel disclaims knowledge of this correspondence and points
out that the letters do not bear his original signature but were,
according to the routine of his service, made out in his name just
because they were of minor importance. The fact that the letters begin
with the routine business term of “by agreement with,” instead of “by
consent of,” the Chief of Police and SD does not mean that they refer to
an agreement reached, but simply points to the agency in charge of the
matter.

Next, reference has been made to “extermination by labor.” However,
Documents 682-PS and 654-PS, dated September 1942, unmistakably show
that this is a case of a secret maneuver of Himmler and Goebbels in
co-operation with the Reich Minister of Justice, Thierack. The Defendant
Sauckel is not involved.

Neither was the conscription of workers for the Organization Todt under
Sauckel’s responsibility. The accusations proceeding from Document UK-56
in this respect, bearing upon labor conscription methods in the Channel
Islands, do not therefore concern him. The documents do not show that
the Defendant Sauckel was aware of these proceedings or that he could
have prevented them. This separation between the Defendant Sauckel’s
labor jurisdiction and the Organization Todt is confirmed in Document
L-191, the report of the International Labor Office in Montreal.

The enlistment of labor by civil and military departments is another
chapter. This was to a certain extent carried out as “pirate”
mobilization and kept secret from the Defendant Sauckel, because he
opposed these practices and endeavored to prevent them by all means.
Occasionally he was by-passed by higher orders. In this category there
is labor enlistment by the SS, the Reichsbahn, Air Force construction
battalions, Speer’s transport and traffic units, fortification and
engineering staffs, and other services.

The exclusion of these aspects from the scope of the Indictment should
exonerate Sauckel all the more since in these cases his directives did
not apply.

Document 204-PS illustrates in this respect the circumstances in which
transport auxiliaries were produced in White Russia. Document 334-PS
shows the same with regard to the execution of an independent drive for
Air Force auxiliaries, which cannot be held against Sauckel. The
commitment of adolescents, known as the Hay Action, according to
Document 031-PS of 14 June 1944, remained outside Sauckel’s jurisdiction
and activities, as becomes clear from the document itself. The 9th Army
together with the Eastern Ministry were the originators.

A letter from the Codefendant Rosenberg to Reich Minister Lammers of 20
July 1944 (Document 345-PS) falsely refers to the “agreement” of the
Plenipotentiary General for the Allocation of Labor; on the other hand
it states that the Defendant Sauckel was not connected with an SS helper
action and that he refused co-operation in this affair. According to
this, as stated by Document 1137-PS of 19 October 1944, a special office
in the Rosenberg Ministry with its own personnel attended to the seizure
of juveniles. The Defendant Sauckel’s agency was by-passed and labor
furnished directly to the armament industry.

In circumvention of the Defendant Sauckel’s agency certain measures also
took place which Hitler caused by direct orders to the local offices of
the Armed Forces and of the civil administration; this for instance
applied to the labor commitment ordered in the occupied territories for
the fortification of the Crimea (Document UK-68).

The enlistment of labor in Holland, which was carried out by the Armed
Forces against the protest of the labor service offices, is another of
these cases; this is shown in Document 3003-PS and is confirmed by the
Defendant Seyss-Inquart.

An important sector, which is beyond the Defendant Sauckel’s
responsibility, embraces all the actions undertaken as punitive measures
against partisans and resistance groups. These are independent police
measures; I already spoke about their judicial evaluation. Whether they
were admissible and could be approved depends on the circumstances. For
example, measures against the resistance movement in France, as
described in Document UK-78 (French Government Report), cannot be
included under the direct responsibility of Defendant Sauckel. Thus the
most incriminating occurrences enumerated in Count 3, Paragraph VIII of
the Indictment under “Deportation,” which ended in concentration camps,
are not within the responsibility of the Defendant Sauckel.

The deportations for political and racial reasons, which are also
mentioned under VIII (B) of the Indictment, such as the deportation of
French citizens to concentration camps, do not come within the
responsibility of the Defendant Sauckel either. The resettlement of
Slovenes and Yugoslavs described under (B) 2, must also be excluded.

According to the Indictment (under VIII, (H) 2) only part of the
approximately 5 million Soviet citizens mentioned are stated to have
been seized for labor commitment, the remainder being removed in other
ways to which the regulations of the Defendant Sauckel did not apply.
This is important not so much on account of the number of people
involved, but because the alleged bad conditions might have applied in
that very sector, since there the danger of improper treatment was
unquestionably greater.

THE PRESIDENT: Would that be a convenient time to break off?

                        [_A recess was taken._]

DR. SERVATIUS: The prisoners of war are also exempted from the field of
responsibility of the Defendant Sauckel. Such labor did not have to be
enlisted but was only directed. This was done by means of special labor
offices, which operated independently in connection with the
prisoner-of-war camps and collaborated exclusively with the Armed
Forces. Their task consisted only of employing prisoners of war where
they were needed. The Defendant Sauckel could only request a transfer of
prisoners of war. This is referred to in the Prosecution Document
1296-PS, of 27 July 1943, which mentions under Heading III the increase
in the employment of prisoners of war in collaboration with the Army
High Command.

The assignment of prisoners of war to plants took place under the
supervision of the Armed Forces, who at the same time enforced
observance of the Geneva Convention. Sauckel is in no way connected with
the death of hundreds of thousands of prisoners of war of the Soviet
Union in 1941 of whom Himmler speaks in his Posen speech (Document
1919-PS) and for whose replacement workers had to be brought in.

By Document USSR-415, the official Soviet report about the Lamsdorf
Camp, the Defendant Sauckel is connected with the alleged ill-treatment
of prisoners; but this is done merely because the number of personnel in
the camp was reported to him as a purely routine matter. The charge
cannot be maintained. The document, moreover, is not chronologically
substantiated after the year 1941.

The Defendant Sauckel, although personally not competent, intervened in
excess of his official duties for the care of the prisoners of war,
because he had an interest in their work morale. He issued general
decrees; this Document Sauckel-36 shows that he demanded an adequate
standard food supply, and Document Sauckel-39 shows that he demanded the
same working hours as for German workers; he also stressed the fact that
no disciplinary punishment could be inflicted by the plants.

Further discrimination among the accusations raised must be made
according to the time of the incidents. The Defendant Sauckel did not
take over his office until 21 March 1942. His measures, therefore, could
only have had effect some time later. What conditions prevailed previous
to that can be seen from some documents dating from 1941. In Document
1206-PS leading authorities advocated feeding the workers on horse and
cat meat, and in Document USSR-177 the production of bread of very
inferior quality is suggested. Just a short time before the Defendant
Sauckel took office Himmler in a sharp decree ordered the confinement of
the workers behind barbed wire. It is fair to say that an extremely low
level in the treatment of the foreign workers at that time in the Reich
had been reached. The conception which prevailed with regard to the
powers of resistance and the working capacity of the Russians is tragic.

With the advent of the Defendant Sauckel a fundamental change took
place, which led to a constantly increasing improvement of the
situation. The credit for having effected a change here is, according to
some documents I will cite, solely due to the Defendant Sauckel. This is
shown in particular by Document EC-318, which is a record, dated 15
April 1942, of the first meeting between the Defendant Sauckel and Reich
Minister Seldte and his specialist staff when taking office. It is
recorded there that it was the Defendant Sauckel who made his assumption
of office dependent on the condition that food supplies for foreigners
must equal those for Germans, and that the granting of this request was
guaranteed by Hitler, Göring, the Minister for Food, Darré, and his
state secretary, Backe. It is also established there that the Defendant
Sauckel demanded the removal of the barbed wire, and actually succeeded
in this; and finally, that he immediately took steps against the low
wages of the Eastern Workers. The execution of his fundamental demands
was then also immediately followed through with tenacity by the
Defendant Sauckel against the resistance of all authorities.

The program of the mobilization of labor of 20 April 1942, Document
016-PS, accordingly proceeds to inveigh against all acts of cruelty and
chicanery and demands that foreign workers be correctly and humanely
treated; a hope is even expressed that a propaganda effect in Germany’s
favor ought to be achieved by the way in which labor allocation was
carried out. This thought was frequently reiterated later. An economical
allocation of workers was urged in order to counteract the waste
indulged in by influential agencies.

A year later, on 20 April 1943, the Defendant Sauckel again addressed a
declaration of the procedure to be followed to all persons concerned
with labor commitment. This is the repeatedly mentioned “Manifesto of
Labor Allocation,” Document Number Sauckel-81, which was issued as a
warning and a call to battle addressed to all agencies preparing to
challenge the serious responsibility of the Defendant Sauckel. Goebbels
opposed it by claiming that the title was too assuming, while the
propaganda aspect went beyond the bounds of the matter. Other agencies
simply disregarded the copies sent to them and did not forward them,
whereupon Sauckel sent copies directly to the industries concerned. How
this circular was dealt with by the various recalcitrant agencies is
shown by its description as a “notorious manifesto,” as it was referred
to unchallenged in a session of the Central Planning Board on 1 March
1944; Document R-124, Page 1779.

The Defendant Sauckel was reproached for having been over-zealous. I
refer to a remark made by General Milch (who was interrogated before the
Tribunal), in which he mentions the Central Planning Board, criticizing
the allegedly too lenient treatment of loafers, and declaring that if
anything was undertaken against them, agencies would immediately become
interested in Germany which would protect the “poor fellow” and
intercede for the human rights of others. This is Document R-124, Page
1913.

The attitude of Defendant Sauckel was generally known and has been
confirmed by various documents. Thus all the agencies addressed
themselves to him in case of complaints and deficiencies, not in order
to make the Defendant Sauckel responsible for them, but to solicit his
help, because everybody knew how eagerly he advocated improvements.

Thus Document 084-PS, which is a report by Dr. Gutkelch of the Central
Agency for Eastern Nations of the Rosenberg Ministry, dated 30 September
1942, emphasized in various places the influence of the Defendant
Sauckel and recommends getting into closer touch with him. His
Codefendant Rosenberg also points to Sauckel’s strenuous efforts in
Document 194-PS, Page 6, a letter of 14 December 1942 to Koch, Reich
Commissioner for the Ukraine. The Codefendant Frank likewise on 21
November 1943 applied to the Defendant Sauckel—Document 908-PS—for a
basic change in the legal position of Poles inside the Reich.

To what extent do real events correspond with that which has been
stated? The first point to be dealt with is the mobilization, which is
practically identical with the point of deportation. Then follows the
examination of the treatment of workers as designated by the term “slave
labor.”

The evidence has refuted the erroneous assumption that the Defendant
Sauckel carried out the enlistment and mobilization of foreign workers
on his own responsibility and through his own organization. It has been
established that the supreme authorities in the occupied territories
executed the laws regarding compulsory work as they had received them on
Hitler’s orders. All these agencies had their own administrative system
and guarded their departments against the intrusion of others.

A communication of the Rosenberg Ministry of the East to Koch, the Reich
Commissioner for the Ukraine, dated 14 December 1942, Document 194-PS,
Page 7, in which the Codefendant Rosenberg particularly refers to the
right of sovereignty existing in questions of labor allocation, proves
that this administrative system had not been infringed upon. These
supreme authorities had their own labor offices which were organized in
detail from each ministry down to the least important office. In
reference I wish to cite Document 3012-PS, an ordinance of 6 February
1943, by the Supreme Command of the Army, dealing with compulsory work
in the Eastern operational sector, and Document RF-15, an ordinance of 6
October 1942.

The Defendant Sauckel could merely place requests with these agencies
for the number of workers he was ordered to bring to Germany, and give
them the necessary instructions. These were his limitations, which he
never exceeded. He respected the right of execution as opposed to the
right of issuing instructions. For these tasks deputies were appointed
for each territory who, in accordance with the ordinance of 30 September
1942, Exhibit USA-510, were directly subordinate to the Defendant
Sauckel; they did not however belong to his agency, but to the
territorial authorities. It was expressly confirmed by the witness Bail,
called by the Codefendant Rosenberg, that this applied to the chief
deputy in the East, State Counsellor Peuckert who belonged to the staff
of the Eastern Ministry.

This State Counsellor Peuckert was at the same time consultant for the
Economic Staff East for the rear army area which bordered on the
territory under civil administration; here too he acted only in an
accessory capacity as deputy of the Defendant Sauckel. This is proved by
Document 3012-PS, which is a memorandum dealing with a conversation of
10 March 1943 concerning labor allocation, in which the position of
Peuckert is noted on the attendance list. Through this arrangement with
regard to Peuckert’s functions, created in the interest of the
territorial authorities, all personal interference by the Defendant
Sauckel was made impossible. In Document 018-PS, that is, in the letter
to the Defendant Sauckel dated 21 December 1942, the Codefendant
Rosenberg complains about the methods of labor mobilization in the East;
but this must be considered as the complaint of a minister who is unable
to assert himself against his subordinates and turns toward the
presumable sources of the difficulties he is encountering.

It is true that these difficulties could have been removed immediately
if the Defendant Sauckel had refrained from insisting on the fulfillment
of his mission. But this fulfillment was the very task, specified in the
decree of appointment as having to be effected under all circumstances.

The Defendant Sauckel had to fight against all obstacles due to weakness
or departmental egotism, and had to see to it that local agencies did
not out of a desire to let things ride fail to supply the required
manpower, while other offices held it back out of selfish interests.
“With all means” and “ruthlessly” are recurring expressions employed in
combating these symptoms.

General Falkenhausen, the military commander in Belgium and northern
France, during his hearing erroneously declared in Document RF-15 that
the Defendant Sauckel forced him to mobilize labor and had carried this
out by the aid of a special “organization” of his own. However, he had
to admit that this was incorrect when the order signed by himself about
the introduction of compulsory labor was put before him. This is also
confirmed by the statements of the witnesses Timm and Stothfang.

In France workers were mobilized by the French administration. The
superior German office was not the office of the Defendant Sauckel, but
of the military commander in France, where Sauckel had only a deputy.
The negotiations which the Defendant Sauckel conducted in Paris and
which were the subject of the evidence lie outside of this activity;
they are negotiations of a diplomatic nature between the German and
French Governments in which Sauckel participated. They were held in the
German Embassy.

Conditions and circumstances in the other territories were analogous.
The recruiting commissions, which corresponded to the labor mobilization
staffs in the rear army areas and the operational zones, were also by no
means offices of the Defendant Sauckel, as the Codefendant Rosenberg
assumes. These recruiting commissions were vaguely connected with the
Defendant Sauckel only insofar as they were composed of experts who
emanated from the German labor offices belonging to Sauckel’s
department. They received directives only through their superior office,
in order to guarantee uniform handling of all recruiting regulations.
Regulation Number 4 in Document Number Sauckel-15 is very clear on this
point. This advance appointment of the deputies as of 30 September 1942,
which was already issued on 7 May 1942, provides for the sole
responsibility of the military and civil authorities of the occupied
territories. The deputies mentioned there as having been assigned the
same functions, are the deputies with the German missions in friendly
foreign countries.

This was misunderstood by the Prosecution, so that wrong conclusions
were arrived at, to the disadvantage of the Defendant Sauckel, about the
responsibility for recruiting and transport. The interpretation of the
provision that all technical and administrative procedures of labor
allocation were exclusively within the competence and responsibility of
the Defendant Sauckel is also incorrect as far as occupied territory is
concerned. This stipulation refers solely to the functions in the Reich
and establishes the competence of the Plenipotentiary General for the
Allocation of Labor, of the district labor offices, and the labor
offices; this can be seen from Document 016-PS, last paragraph.

The Defendant Sauckel, therefore, is not directly responsible for the
conscription of manpower. Indirectly, however, responsibility can be
charged to him in that although he was aware of these unsatisfactory
conditions and knew that they could not be stopped, he nevertheless
demanded more workers.

It must be added that in the Defendant Rosenberg’s letter of 21 December
1942, Document 018-PS, the Defendant Sauckel learned for the first time
of the recruiting methods which were described as mass deportation. At
the meeting which followed in the beginning of January 1943, the
Defendant Rosenberg declared that he was opposed to this and that he
would not tolerate such procedures. This is also confirmed by his
previous letter of 14 December 1942 addressed to Koch, Reich
Commissioner for the Ukraine, Document 194-PS, in which he clearly calls
the latter’s attention to his obligations to proceed legally.

Koch’s memorandum of 16 March 1943, Document Rosenberg-13, of which the
Defendant Sauckel learned only here at the Trial, explains that these
incidents are exaggerated individual cases, their justification being
based on the necessity of carrying out measures for the restoration of
the prestige of the occupation authority. It is expressly declared in
this that the recruitment of workers was undertaken by legal means and
that steps were being taken in the event of arbitrary measures, Document
Number Rosenberg-13, Pages 11 and 12.

It was not altogether impossible that it might have been a matter of
tricky propaganda exaggerations, as Koch specifically points out. In
wartime such a possibility exists, and the propaganda tendency of the
Molotov reports (Document USSR-151) goes to emphasize this.

The Defendant Sauckel was also supported in this idea by the result of
an investigation into the details of a “manhunt” which was reported to
him at Minsk by Field Marshal Kluge; it turned out to be a round-up of
workers employed by a private firm at the time of the retreat.

The Katyn case shows how difficult it is to determine the truth of such
events when they are made use of as effective weapons of propaganda. As
the witnesses from the Defendant Sauckel’s office have confirmed, no
other incidents involving such abuses have become known. The cases
reported are to a certain extent obviously repetitions of the same
happenings as communicated from various sources.

None of these reports, however, displays any desire to approve of such
things; they are a sort of house alarm for the purpose of remedying and
improving conditions.

Now, can one believe the Defendant Sauckel when he declares that he did
not know about the conditions alleged by the Prosecution? What reached
him through official channels is insufficient as proof of cognizance,
and the witnesses confirm that the so-called “methods” were unknown. On
the other hand we find here documents of the authorities of the occupied
countries from which it appears that the Reich Commissioner in the
Ukraine ordered the burning down of houses in retaliation for resisting
the administration, and there are decrees providing for such measures.
Reports made to the Eastern Ministry regarding such events do not lead
to penal prosecution but to suspension of the proceedings, such as the
Raab case (Document 254-PS) and the Müller case (Document 290-PS).

Any doubt must be countered with the following: The measures employed
were not approved by the highest instances, and were only
surreptitiously applied by the lower offices who therefore had every
reason not to let them become known. From the files on the preliminary
proceedings of the cases of Raab and Müller it definitely appears that
the existing regulations were unknown at the ministry.

The Defendant Sauckel did travel through the Ukraine, but it is unlikely
that his attention should have been called to matters which might have
got the local offices into trouble. The views of the Defendant Sauckel
were well known, while on the other hand there existed a violent quarrel
between the offices of Reich Commissioner Koch and Reich Minister
Rosenberg. When the documents from both offices such as have been
submitted are read carefully, it can be seen from the file notes that in
this struggle both sides were collecting arguments and that neither
wished to commit itself. Since the Defendant Sauckel himself had no
direct authority, it is understandable that actual conditions should
have remained unknown to him. Still another point of view must be
considered: various documents mention that a certain pressure would have
to be applied in the procurement of workers, since the workers were to
be obtained “under all circumstances.” Does this sanction all methods?
It remains to be seen what was actually done in pursuance of these
statements.

The OKH in one case thereupon ordered the increased mobilization of
workers and permitted collective conscription, while prohibiting
collective punishment. In this connection see Document 3012-PS,
containing a telephone message from the Economy Staff East to General
Stapf of 11 March 1943.

The best illustration can be found in that same Document 3012-PS by a
file note concerning a discussion of 10 March 1943. Here General Nagel
requests clear guiding principles and State Counsellor Peuckert asks for
“reasonable” recruitment methods to be established by the OKH as the
authorized agency. Document 2280-PS is also relevant here, which is the
only personal statement made in Riga on 3 May 1943 on this question by
the Defendant Sauckel. There he states that only “all permissible means”
are allowed.

Document 3010-PS, Economy Inspection South, may also be quoted, in which
on 17 August 1943 the use of “all suitable means” is permitted.

Orders are issued which contain severe measures in case of noncompliance
with the duty to work: deprivation of ration and clothing cards.
Imprisonment of relatives is threatened, as well as the taking of
hostages.

What is the position as to the admissibility of such measures?

The deprivation of food cards has today become a generally applied means
of coercion based on the rationing system, which derives from
present-day conditions. It is easily carried out and does not require
any special executive force, while being extremely effective. Concerning
the imprisonment of relatives, severe violations of personal custody can
be recorded even today. The Hague Convention on Land Warfare offers
protection only against collective punishment of the population, but it
does not protect the members of the family who may be considered as
sharing the responsibility in the case of a refusal to work. The French
law of 11 June 1943, which was presented as Document RF-80, also
provides for such imprisonment only in the case of deliberate
co-operation.

There finally remains the shooting of a prefect, which the Defendant
Sauckel demanded. Apart from the fact that this statement as such is
irrelevant from the point of view of criminal law, because it was not
actually carried out, its legal import is merely a request to apply the
existing French law. This law has been submitted by the Prosecution as
Document RF-25, a decree of 31 January 1943 by the military commander in
France, Article 2 of which provides for the death penalty.

Equally misunderstood by the Prosecution is a statement uttered by the
Defendant Sauckel according to which one should handcuff the workers in
a polite way (Document RF-86, Page 10, negotiation by Sauckel in Paris
on 27 August 1943). But as appears from the context, the point in
question is merely a comparison between the clumsy manner of the Police
and the obliging manner of the French; handcuffing was not thereby
especially advocated as a method of mobilization: Clean, correct, and
Prussian on the one hand while at the same time obliging and polite on
the other; that is how the work was to have been done.

I also refer to the proposal for “shanghaiing” as described in Document
R-124, Page 1770, which is known to the Tribunal from the proceedings.
The statement which the Defendant Sauckel has made gives an
understandable explanation; according to it, this was legally a
preliminary recruitment intended to induce the workers to agree to the
real enlistment later on in the official recruitment offices.

These various incidents—shooting of a prefect, handcuffing, and
shanghaiing—may be explained in various ways, but one can reach a
complete understanding of the subjective side only if one considers why
these statements were made, and under what conditions. The underlying
reason for all these statements is the struggle against resistance and
sabotage which in France assumed ever greater proportions. Therefore it
is not a question of brutality and cynicism; rather were these
statements intended to counteract the indecision displayed by the
authorities.

Another consideration which must be appended here is whether the
Defendant Sauckel had not exhausted the manpower of the country by his
measures to such an extent that more workers could only be obtained by
inhuman methods and that the Defendant Sauckel must have known this. The
important point here is the figure for the “quotas.” It has been
established that they were high, but it has also been established that
they were not fixed arbitrarily, but only after a careful study by the
statistical department. Only a small percentage of the population was
actually apprehended, and the decisive issue was not so much their
inability to perform the work required as their will to offer
resistance. In the occupied territories of the East were large reserves
of manpower, especially among older adolescents, which were not
effectively utilized. The German troops, their ranks greatly thinned,
saw the densely populated villages during their retreat, and then felt
the impact of the enemy thus reinforced shortly afterward.

In France there were likewise many forces which placed themselves under
the protection of the Maquis or the “blocked factories.” This is
confirmed not only by the French Government Report, Document Number
RF-22, but is also apparent from a remark which Kehrl, a witness for the
Codefendant Speer, made in the Central Planning Board on 1 March 1944,
Document R-124, Page 66. This witness states there that labor was
available on an abundant scale in France.

Another conclusive contribution here is Document 1764-PS, Page 6, which
is the report by Minister Hemmen of 15 February 1944, which deals with
the “Reconstruction Program” of Marshal Pétain, and points out that the
population was unscathed by war and was increasing by 300,000 young men
every year.

If the number of workers mobilized is deemed to be of importance in this
connection, it must be compared with the total population figures, while
on the other hand it should be taken into consideration that Germany did
not demand anything which she did not ask of herself to an even higher
degree. The Defendant Sauckel was forced to the conclusion that the
people, instead of being unable to work, did not want to do so. In order
to influence the people the propaganda struggle intensified, and threats
of punishment were proclaimed by both parties; this first engendered in
the population of the occupied territories a conflict of feelings which
was the undoing of many.

The Defendant Sauckel could with good reason refer to the results of the
counterpropaganda and of the deteriorating war situation as
necessitating coercion; he could not, however, on the basis of the
information at his disposal become convinced that the exhaustion of the
countries was so great that nothing more could be extracted from them
without the use of inhuman methods. The Defendant Sauckel believed he
could obtain his object by creating special working conditions rather
than by using violence. As an example I refer to the promise which
Sauckel himself gave on 3 May 1943 in Riga, Document 2228-PS.

Apart from all this there is one more field of labor procurement which
must be put in a different category. That is the liberation of prisoners
of war on condition that labor forces be made available for Germany by
“relève” or “transformation.”

The French Government Report RF-22 declares both methods of procuring
labor forces to be inadmissible. It is pointed out in the report that
the exchange on the basis of “relève” amounted to the enslavement of a
roughly threefold number of French workers. Against this it must be
stated that the replacement workers came only for 6 months for voluntary
work and in succession. At the end of 18 months all workers were free,
while the prisoner was liberated immediately.

Coercion for the execution of the “relève” did not exist. From a legal
point of view it was not assailable. Captivity can be terminated at any
time; release may be made subject to a condition. The French report
unduly stresses its moral indignation in quoting a phrase of the
president of a news agency of the United States; this phrase speaks of
the “abominable choice of either to work for the hereditary enemy or to
deprive a son of one’s own country of a chance of release from
captivity.”

To refute this, I refer to the healthy sentiment according to which in
the older Russian literature such a change was applauded as a patriotic
and magnanimous deed during the Nordic War. Neither the King of Sweden
nor Peter the Great seems to have considered exchange as equal to
replacement by a substitute slave.

The “transformation” (“Erleichtertes Statut”) is contained in Document
Number Sauckel-101. This is the release of a Frenchman from captivity if
he accepts other work, or under condition that an additional French
worker should come to Germany according to the “relève” regulations. No
prisoner of war was forced in this manner to change his legal status,
but whole camps volunteered for it. If a prisoner made use of the
possibility offered, he forfeited thereby the special legal protection
of the Geneva Convention with regard to work; but this was done in
agreement with his government, and thus does not constitute a violation
of international law.

The home furlough connected with the change-over was discontinued
because the men granted these furloughs did not return, even in the case
of the first convoys. The French Report, RF-22, itself states on Page 69
that of the 8,000 men forming one leave convoy, 2,000 did not return.
The report states that the “unfortunate people” were placed before the
alternative: “Either you return, or your brothers die.” This
consideration, however, did not impress them. Nor could their promise
prevent them from immediately joining the Maquis.

The cancellation of these home furloughs does not therefore constitute
an arbitrary act in slave labor. Perusal of the French report can only
strengthen that impression.

It follows therefore that no conscription of workers, violating the laws
of war or carried out in an inhuman manner, was effected by the
Defendant Sauckel in this field either.

I now come to the question of the treatment of workers.

In order to facilitate proper judgment, a clear distinction must be made
between the different bearers of responsibility. The works manager was
responsible for general labor conditions in the works, while the general
conditions of life outside the works were the competence of the German
Labor Front.

These spheres of responsibility become clearly apparent through the fact
that two exponents for them are mentioned in the Indictment, namely,
Krupp and Dr. Ley. The Defendant Sauckel can be held responsible for
what happened in these spheres only insofar as events were due to his
decrees, or where, contrary to his duty, he failed to exercise direct
supervision. The Defendant Sauckel was directly responsible for the
wages. On assuming office he found a table of wages which he could not
modify on his own responsibility; to do so he had to apply for
permission to his superior office, which was the Four Year Plan, and for
the consent of the competent Reich minister. The legal regulations
compiled in the chapter on wages of my Document Book 2 show that the
basic decrees were not issued by the Defendant Sauckel, but by the
Ministerial Council for the Defense of the Reich (see Documents
Sauckel-50, 17, and 58) and the Reich Minister of Economics (Document
Sauckel-51) and the Reich Minister of Finance (Document Number
Sauckel-52).

The Defendant Sauckel could schedule wages and fix wages for piece work
only within the general outlines existing for him, and in so doing he
had to consider the interests of the ministries in question. So far as
it was at all possible for the Defendant Sauckel to do so, he worked for
an amelioration; thus a series of his decrees show that he granted
premiums such as bonuses, compensatory payments, and the like [see
Document Numbers Sauckel-54 and 58(a)].

The Defendant Sauckel’s activity, however, could on the whole only aim
at increasing wages by influencing the competent agency. This is shown
in Document 021-PS of 2 April 1943. There we find as appendix a treatise
with statistical material bearing on a proposal for a basic improvement
of wages for Eastern Workers. From a study of wage sheets dating from
different periods it will also be seen that the average wages of Eastern
Workers were raised several times during the Defendant Sauckel’s term of
office.

It was for the Defendant Sauckel to determine the working hours, but
only within the framework of the superior competence of the Reich
Minister of Labor Seldte. This is shown by Document Number Sauckel-67,
where Seldte fixes the working hours for Eastern Workers in Paragraph 3
of the Decree of 25 January 1944. Generally speaking, the working hours
were the same as for the German workers, depending upon the output in
each factory. This is also admitted by the French Government Report,
Document UK-783; the cases enumerated there, on Page 580, of excessive
working hours are contrary to the orders of the Defendant Sauckel.

Since they do not specify any year, it cannot be ascertained if they
deal only with temporary measures or with permanent conditions. The same
lack of clarity obtains in the French Report RF-22, Page 101; there the
minimum working time is given as 72 hours, which was liable to increase
to 100 hours. This may refer to the work of concentration camp inmates.
Working hours were then changed by Goebbels, who on the basis of his
powers of plenipotentiary for the waging of total war introduced the
10-hour day for Germans and foreigners alike, although in practice this
could not be applied generally. Unreasonably long working hours cannot
be maintained and will lead to setbacks. I should like to add that
Sauckel was responsible for the fact that these extra hours were paid
for, or compensated, in the same manner as overtime work.

Special attention has been paid by the Prosecution to the regulation of
the working hours of female domestic workers from the East, of whom,
instead of the 400,000-500,000 girls originally demanded by Hitler; only
13,000 actually came to Germany. The Prosecution has presented the
instructions for the employment of these female domestic workers as
Document USSR-383. There it says under Number 9 that they shall not be
entitled to take time off. The purpose of this was to leave the
settlement of their time off to each household according to convenience.
Any other interpretation of the regulation is hardly imaginable, because
after all it was intended permanently to receive these female domestic
workers into the families, and to give them the chance to remain in
Germany. They had been selected as girls who were considered
particularly dependable, and had all reported voluntarily for domestic
work. In the light of new experiences the order was later modified by a
subsequent decree (Document Number Sauckel-26), by which all remaining
limitations were also canceled.

Determination of working hours for children took place within the scope
of the German labor protection legislation. This referred to children
who, contrary to the decrees of the Defendant Sauckel, had come to
Germany with their parents in an irregular manner. Their work can have
concerned only rural occupations, since that applies equally to German
children. In this context it may be pointed out that during the war
schoolchildren in Germany as from 10 years of age could be employed for
work in accordance with the decree of the Reich Youth Leader of 11 April
1942 [Document Number Sauckel-67(a)].

A general survey by Dr. Blumensaat in the complete Document Number
Sauckel-89 provides full information about the entire complex of wages
and working hours as finally established by laws.

This factor of immediate responsibility alone, however, cannot serve the
Defendant Sauckel as an excuse, if he knew and tolerated those things
which, according to the Prosecution’s assertion, characterized the
transports and life in the camps and factories. It was his duty to
superintend even where he was not directly responsible.

The accommodation and feeding of the workers was the responsibility of
the industries. With regard to the installations of the camps for
foreigners, the same regulations as for the camps for German workers
applied by virtue of decrees by the Reich Minister of Labor, Seldte
(Documents Number Sauckel-42, 43 and 44). It is indisputable that the
accommodation suffered as a result of difficulties, in particular from
the effects of air warfare. The deficiencies, however, were remedied as
far as at all possible. The situation of the foreign workers was not
different from that of the German civilian population.

The food supply suffered from the blockade and transportation
difficulties. The established rations, contrary to the notorious
statements on the feeding of the Russians, amounted to 2,540 calories
for the Soviet prisoners of war, according to the table of 24 November
1941 in Document USSR-177. A further table has been submitted with the
affidavit of the witness Hahn as Exhibit Number Sauckel-11. According to
this rations in the Krupp works amounted to 2,156 calories for the
ordinary Eastern Worker and 2,615 calories for those performing heavy
work; supervision insured a proper distribution.

The Reich Ministry of Food was responsible for the supply of food. Grave
accusations have been made by the Prosecution with regard to both
points. These, however, can only apply where the existing regulations
were not observed. It is quite likely that mistakes should have been
made in this large sphere of activity in the course of years, but the
general picture is not composed of mistakes, and judgment cannot be
based thereon. The actual conditions have not been clarified in this
procedure to the extent that one might contend that deficiencies were so
general and obvious that the Defendant Sauckel must have known them, and
did in fact know them.

In contrast to the vague statements of the witness Dr. Jäger we have the
affidavit of the witness Hahn, which refutes the former to a large
extent. The affidavits of the witnesses Scharmann and Dr. Voss (Exhibits
Number Sauckel-17 and 18) confirm that no serious deficiencies existed
in their spheres of activity.

In addition to the obligations on the part of the works managers, the
German Labor Front had to look after the foreign workers (Document
Number Sauckel-16). Its tasks included transports and the supervision of
medical care, as well as general welfare activities. The extensive
activity which this very large organization developed has not been
described in these proceedings. The basic principles of the German Labor
Front can be seen from Document Number Sauckel-27, which is the
ordinance of the German Labor Front regarding the status of foreign
workers at their working site. The aim is characterized as maintenance
of morale by observing conditions of contracts, absolutely fair
treatment, and comprehensive care and attention.

The German Labor Front was also responsible for transports, according to
Regulation Number 4 (Document Number Sauckel-15), wherein Sauckel’s
instructions are contained. This task included transport as far as the
working site. The witnesses Timm, Stothfang, and Hildebrandt have
testified about this and did not report anything about bad conditions.
The description in the Molotov Report (USSR-51) cannot refer to
transports carried out under orderly direction, but only to so-called
“pirate” convoys. The same applies to convoys which, according to the
Indictment, were heading for the concentration camps. The special
attention which the Defendant Sauckel from the very beginning accorded
to the transport problem, is shown particularly by Document 2241-PS,
submitted by the Prosecution. It contains a decree where detailed
directives to prevent the utilization of unsuitable trains are given.

However, mistakes did occur, especially the incident mentioned in
Document 054-PS in connection with a return transport of workers. These
had been brought into the Reich before Sauckel’s time in a manner
contrary to his basic principles. The matter was an isolated incident,
and the necessary steps were immediately taken. The return of sick
persons unfit for travel was prohibited, and Bad Frankenhausen was
placed at their disposal, Document 084-PS, Page 22. This was followed by
the order specifying the attendance at such transports of male and
female Red Cross nurses (Document Number Sauckel-99).

The carefully and thoroughly organized system of medical care, which
operated in collaboration with the Association of Panel Doctors did not
break down in the face of the greatest difficulties; rather is it a fact
that no epidemics or serious diseases broke out.

The cases presented by the Prosecution from some camps among the total
of 60 run by Krupp’s can only have arisen out of an unusual chain of
circumstances. They cannot prove that bad conditions, of which these
examples might have been typical, prevailed generally.

Another document, RF-91, has been presented, which contains the medical
report of Dr. Février of the French Delegation of the German Labor
Front, which was compiled after the beginning of the invasion on 15 June
1944. Besides deficiencies it is intended to correct, the report also
points out favorable aspects. It speaks with particular acknowledgement
of leaders of youth camps, of the systematic X-ray examinations, and of
the support given by district administrations, and similar things. A
genuine over-all picture of conditions could only be obtained by the
study of the medical reports of the health offices of the German Labor
Front existing everywhere.

For the defense of the Defendant Sauckel it may be said here that from
his remote post he could not obtain a clear picture of unsatisfactory
details. Any sanctioning of such bad conditions would have been in
striking contrast to the actions and declarations of Sauckel. The
Defendant Sauckel did not acquiesce when, for instance, one Gauleiter
said: “If anybody is going to be cold, then first of all let it be the
Russians.” He intervened and publicly proclaimed his views in his
official Handbook on the Allocation of Labor (Document Number
Sauckel-19). The Defendant Sauckel also made efforts to improve the
food, although this was outside his competence. That has been confirmed
by several witnesses, among others the witness Goetz (Exhibit Number
Sauckel-10). It is also shown by the record of the Central Planning
Board (Document R-124, Page 1783). The Defendant Sauckel did not let
matters slide, but established a personal staff of his own, whose
members traveled around the camps and corrected bad conditions on the
spot. He also endeavored to obtain clothing, and put factories to work
to a large extent for the purpose of supplying Eastern Workers. All the
witnesses heard regarding this problem have again and again unanimously
confirmed that the Defendant Sauckel basically took great interest in
the welfare of workers.

I would also refer to the announcements and speeches of the Defendant
Sauckel, which always advocate good treatment. I do not wish to
enumerate the documents in detail, and shall only mention in particular
the “manifesto” on the allocation of labor, Document Number Sauckel-84,
in which he refers to his binding basic principles, and demands that
these be constantly kept in mind. I also refer to the speeches to the
presidents of the provincial labor offices of 24 August 1943 (Document
Number Sauckel-86), and of 17 January 1944 (Document Number Sauckel-88).
The Defendant Sauckel finally got even Himmler, Goebbels, and Bormann to
acknowledge his ideas as correct. That is shown by Document 205-PS of 5
May 1943, which is a memorandum regarding the general basic principles
for the treatment of foreign workers. There the basic principles of a
regulated mobilization of labor are accepted.

How do the statements of the Prosecution on ill-treatment of workers as
slaves correspond with this? It will be necessary to examine closely
whether the cases referred to involve real abuses affecting workers in
the process of normal mobilization, or abuses incidental to the
deportation of prisoners and to their work. Next, one should investigate
exaggerations and distortions such as may be due to human weakness and
foibles. In my opinion no adequate clarification of this subject has so
far been obtained, and press reports have already begun to appear which
are bound to increase doubts as to the accepted standard applying to the
life of foreign workers.

The plan submitted as Exhibit Number Sauckel-3 displays the numerous
offices for checking and inspection relative to the question of
laborers. They did not report any particular abuses to the offices of
the Defendant Sauckel. Perhaps the fact that these offices were so
numerous constitutes a weakness: It is quite possible that each
government department kept silent about whatever mistakes originated
under its own jurisdiction and failed to bring them to the attention of
the Defendant Sauckel, because as a rule the controlling agencies were
on a higher level than the Defendant Sauckel. This should be considered
particularly with regard to relations between the most important agency,
the German Labor Front, under the leadership of Reichsleiter Dr. Ley,
and Gauleiter Sauckel.

On closer examination of the document submitted as 1913-PS, an agreement
on the creation of “central inspection offices for the care and welfare
of foreign labor,” it appears to have been carefully designed as an
instrument of defense against the Defendant Sauckel. The document was
devised by Dr. Ley and signed on 2 June 1943, then submitted for his
signature to the Defendant Sauckel who did not approve or publish it
until 20 September 1943. It is quite possible that Dr. Ley did not wish
to invite criticism. On the other hand, there is little likelihood that
the abuses were general and manifested themselves openly. Otherwise they
would obviously have become known to the Defendant Sauckel through his
own control agencies.

In addition to his own staff, the Defendant Sauckel on 6 April 1942
appointed the Gauleiter as “Commissioners for the Mobilization of
Labor,” impressing upon them as their foremost duty that of supervision
with regard to the enforcement of his orders. This becomes apparent from
Document Number Sauckel-9, Figure 5; the same applies to Document 633-PS
of 14 March 1943. Several Gauleiter were examined by the Tribunal as
witnesses, and they have confirmed the fact that the supervision was
carried out as ordered and that Sauckel checked it through members of
his staff. No abuses were reported.

After due consideration of the matter, whom should one believe? Are we
concerned here with exaggerated complaints, or do findings to the
contrary command credibility? There is no testimony by those Frenchmen
who, according to Document UK-783, Draft III, were taken to the real
slave centers; there is no testimony by those Russians, who, according
to Document USSR-51, were sold at 10 or 15 Reichsmark.

In any case one fact clearly speaks in favor of the Defendant Sauckel,
one which has always been confirmed by competent witnesses, namely, that
the workers were willing and industrious and that when the collapse came
no uprising occurred in which they would have given vent to their
natural wrath against the slaveholders.

I have summarized actual happenings and appraised them juridically. All
this, however, must appear to be juridical quibbling when a higher
responsibility is involved. It has been stated here that it would not do
to let the insignificant works managers take the blame, and that the
moral responsibility must go to the highest Reich Government offices: On
their own initiative they ought to have introduced corrections on a
larger scale to cope with the difficulties inherent in the circumstances
of that time. This might have applied to offices which had the power and
the means to bring about improvement. The Defendant Sauckel and his
small personal staff had merely been incorporated in a ministry already
in existence, and he had no such means at his disposal. His authority
consisted of a narrowly defined power to give directives on the
mobilization of labor, and he untiringly made use of this authority.

The works managers in the armament industry formed an independent
administration and were secure from so-called bureaucrats. The duty of
self-maintenance results from such a privilege of self-administration.
Consequently, if something was to be done to improve the security of
foreign workers, or their situation in armaments works, it was up to
these establishments and to the armaments ministry, under whose
supervision they operated, to deal with the matter. It was not the duty
of the office of the Defendant Sauckel to intervene in these matters,
since it was under the armaments ministry. That is clearly evident from
Document 4006-PS, containing the decree of 22 June 1944, and is also
borne out by the most intimate personal relations between the armaments
minister and Hitler, which made him the most influential man in the
economic sphere. If higher responsibility existed for mistakes made in
the factories, such responsibility can be placed only at the door of
those who had knowledge of such conditions and the power to correct
them.

There is still another legal question to be considered with regard to
the Indictment; namely, whether the position of the Plenipotentiary
General for the Allocation of Labor is determined by Article 7 or
Article 8, in other words, whether the Defendant Sauckel was an
independent government official or whether he acted on orders. The
requests for labor were placed from time to time on Hitler’s special
orders, in the form of a general program, and only the subsequent
distribution was left to Sauckel. This is also confirmed by the fact
that the Defendant Sauckel always refers to Hitler’s “orders and
instructions,” as in the manifestos of the Plenipotentiary General for
the Allocation of Labor (Document Number Sauckel-84, in circulars to the
Gauleiter, Figure 7, Document Number Sauckel-83 and others). From this
also derives the fact that the Defendant Sauckel in every case
specifically reports execution of the orders, as well as the beginning
and end of his official journeys (Document 556-PS of 10 January 1944 and
28 July 1943).

Another argument against his working independently is that according to
the nomination decree the Defendant Sauckel was immediately subordinate
to the Four Year Plan and attached to the Reich Ministry for Labor,
which had been preserved with its state secretaries; only two
departments were placed at his disposal. If the form of responsibility
is to be determined, it can thus only be within the limits of Article 8
of the Charter.

Herewith I conclude my exposition regarding the special field of labor
allocation.

The Defendant Sauckel is accused on all Counts of the Indictment, in
addition to labor mobilization; specific acts however are not charged
against him. A closer characterization of the accusation has been
effected in the course of the proceedings only with regard to the
concentration camps. In this connection, however, it has been proved by
a sworn statement by the witness Falkenhorst (Exhibit Number 23) and an
affidavit by the witness Dieter Sauckel (Exhibit Number 9) that no order
for the evacuation of the Buchenwald Camp upon the approach of American
troops was given. Knowledge and approval of conditions at the camp
cannot be deduced from two visits of the camp before 1939, because the
excesses submitted by the Prosecution had not yet occurred. Nor did the
geographical proximity of the camp to the Gauleitung of the Defendant
Sauckel bring about any close connection with the SS staff, as they had
their seat in Kassel and Magdeburg. Finally it must be remembered that
the human convictions of the Defendant Sauckel, which were based on his
earlier career, were irreconcilable with Himmler’s point of view.

What part can the Defendant Sauckel have played in the conspiracy? He
was Gauleiter in Thuringia and did not rise above the rest of the
Gauleiter. His activities and his aims can be deduced from his fighting
speeches, which have been submitted as Document Number Sauckel-95. They
consistently show the fight for “liberty and bread,” and a desire for
real peace.

During his activity, extending over many years in the Party, the Party
program was authoritative for the Defendant Sauckel; the aims and plans
contained therein required neither war nor the extermination of the
Jews. The practical realization of the program alone could disclose the
reality. For every convinced Party exponent, however, the official
explanation of events was authoritative and met with no doubts. Up to
his nomination as the Plenipotentiary General for Allocation of Labor in
March 1942, the Defendant Sauckel did not belong to the narrow circle of
those who had access to Hitler’s plans. He had to rely upon the press
and the broadcasts like everybody else. He had no contact with the
leading men. This is demonstrated somewhat tragically by his action, so
often ridiculed, of boarding a submarine as an ordinary seaman for some
mission. That is no way to participate in conspiracies.

As a faithful follower of Hitler, the Defendant Sauckel remained
isolated in the circle of the initiated. It is understandable that the
extremists should have shunned him owing to his well-known opinions. He
was not initiated into the secrets of people who aspired to be Hitler’s
friends and murderers at the same time, nor was he kept informed by the
group of people who were Hitler’s enemies, but who kept their knowledge
secret with a novel kind of courage. A believer to the end, the
Defendant Sauckel cannot to this day understand what has happened. Must
he, like a heretic, recant his error in order to find mercy? He lacks
the contact with reality, which would make understanding possible.

Does his sentence depend on his having unknowingly served a good or a
bad cause? Nothing is either good or bad, but thinking makes it so. One
thing, however, is always and under all circumstances good, and that is
a good intention. This good intention was shown by the Defendant
Sauckel. Therefore, I ask that he be acquitted.

THE PRESIDENT: I call on Dr. Exner for the Defendant Jodl.

PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): May it please
the Tribunal, in this unique Trial the discovery of the truth is faced
with difficulties of an exceptional nature. At a time when the wounds of
the war are still bleeding, when the excitement of the events of the
last few years is still felt, at a time when the archives of one side
are still closed, it is asked that a just verdict be given with
dispassionate neutrality. Material for the Trial has been spread out
before us covering a quarter of a century of world history and events
from the four corners of the globe.

On the grounds of this tremendous amount of material we see 22 men being
accused simultaneously. That makes it immensely difficult to gain a
clear picture of the guilt and responsibility of each individual, for
inhumanities of an almost unimaginable vastness have come to light here,
and there exists a danger that the deep shadow which falls upon some of
the defendants may also darken the others. Some of them, I fear, appear
in a different light because of the company in which they now sit than
they would if they were alone in the dock.

The Prosecution has promoted this danger by repeatedly making joint
accusations, thereby mixing legal and moral reproaches. They have said
that all the defendants had enriched themselves from the occupied
territories, that there was not one who did not shout, “Perish, Judah!”
and so forth. No attempt to prove this in the case of any single
individual was made, but the statement in itself creates an atmosphere
hostile toward all of them.

Another fact brought about by the Prosecution which renders elucidation
of the question of individual guilt still more difficult is that the
Defendants Keitel and Jodl are treated as inseparable twins: One common
plea against them by the British prosecutor, one common trial brief by
the French Prosecution; the Russian Prosecution indeed spoke very little
about the individual defendants but preferred to heap reproach after
reproach upon all of them.

All of this is presumably intended to shorten the Trial, but it hardly
serves to clear up the question of individual responsibility. Indeed,
the Indictment goes still further. It reaches beyond these 22 defendants
and affects the fate of millions through a prosecution of certain
organizations, which, taken in conjunction with Law Number 10, leads to
the result that one can be punished for the guilt of other persons.

Something that is more important at the moment is a further form of
summary treatment of the defendants. The Prosecution is bringing in the
conception of a “conspiracy” in order once more to obtain the result
that persons may be made individually responsible for some wrong that
others committed. I must deal with this point in greater detail, since
it also concerns my client.

It is actually clear, I think, from the previous speakers’ statements
that a conspiracy to commit Crimes against Peace and the laws of war and
humanity did not in fact exist. Therefore, I shall demonstrate only
that, if such a conspiracy did actually exist, Jodl at least did not
belong to it.

The Prosecution has admitted that Jodl’s participation in the conspiracy
before 1933 could not be proved. In fact, anyone whose attitude toward
the whole National Socialist movement was so full of distrust and who
spoke with such skepticism about its seizure of power did not conspire
to help Hitler take over the reins of Government. But the Prosecution
seems to think that Jodl joined the alleged conspiracy in the period
before 1939. In truth, during this time, too, nothing essential changed
as far as he was concerned. True, his attitude toward Hitler was now an
entirely loyal one. But it was Jodl’s respected Field Marshal Von
Hindenburg who had called Hitler into the Government, and the German
people had confirmed this decision with more than 90 percent of its
votes. Added to this was the fact that in Jodl’s eyes—and not only in
his—Hitler’s authority was bound to rise by leaps and bounds in view of
his remarkable successes at home and abroad, which now followed one
after another in quick succession; yet personally Jodl remained without
any connection with Hitler. He did not participate in any of the big
meetings at which Hitler developed his program. He had only read
extracts of Hitler’s book _Mein Kampf_, the bible of National Socialism.
Jodl remained just an unpolitical man, quite in line with his personal
inclinations, which were far removed from Party politics and in
accordance with the traditions of the old family of officers from which
he sprang. Of liberal leanings, he had little sympathy for National
Socialism; as an officer he was forbidden to belong to the Party, and he
had no right to vote or be politically active.

If, as the Prosecution says, the Party held the conspiracy together and
was the “instrument of cohesion” between the defendants, then one asks
with wonder what cohesion actually existed between Jodl and, let us say,
Sauckel, or between Jodl and Streicher. Of all the defendants, the only
one he knew before the war, outside of the officers, was Frick, from one
or two official conferences in the Ministry of the Interior. He kept
clear of the NSDAP, and his attitude toward its organizations was even
in a certain sense inimical. His greatest worry during these years,
right up to the end, was the danger of Party influence in the Armed
Forces.

Jodl did what lay in his power to prevent the SS from being puffed up
into a subsidiary Wehrmacht, to prevent the transfer of the customs
frontier guards to Himmler, and he notes triumphantly in his diary that
after the withdrawal of General Von Fritsch, Hitler did not, as had been
feared, make General Von Reichenau, who had Party ties,
Commander-in-Chief of the Army, but the unpolitical General Von
Brauchitsch, and so forth. If Jodl had conspired for National Socialism
in any way, his attitude would have been the opposite on every one of
these points.

Nor was Jodl present at any of the so-called meetings of the
conspirators, as on 5 November 1937—Hitler’s testament was unknown to
him—at Obersalzberg in February 1938, and at the meetings on 23 May
1939 and 22 August 1939.

No wonder; for Jodl was after all at that time still much too
insignificant to be permitted to participate in conferences and meetings
which were of such decisive importance to the State. People do not
conspire with lieutenant colonels or colonels of the General Staff. They
simply tell them what to do, and that settles the matter.

However, the most incontrovertible proof of the fact that Jodl can have
belonged to no conspiracy to wage aggressive war is his absence for 10
months just before the beginning of the war. Jodl had left the OKW in
October 1938 and was sent to Vienna as artillery commander. At that time
there was in his mind so little probability of war that before leaving
Berlin he drafted, on his own initiative, a plan of deployment in all
directions for security purposes. In this he disposed the bulk of the
German forces in the center of the Reich because he could not see any
definite opponent against whom a deployment plan might have to be
prepared.

Exactly a year before the beginning of the attack, this alleged
conspirator for aggressive wars drew up a purely defensive General Staff
plan, and, although he knew definitely that in case of war he would have
to return to Berlin, this possibility seemed so remote that he moved to
Vienna, taking along all his furniture.

Besides, since he wished to get away from office work again, he arranged
to have the mountain division at Reichenhall promised him for 1 October
1939. Lastly, as late as July he obtained passage on a sea cruise
planned to last several weeks, which was to have started in
September—so sure was he of peaceful developments during these 10
months.

Up to the time he was called to Berlin shortly before the outbreak of
the war, Jodl had no official or private connections with the OKW. The
only letter he got from them at that time was the one which promised him
his transfer to Reichenhall on 1 October.

Note that at the most critical time when the alleged conspirators were
discussing and working out the Polish plan, Jodl was for 10 months out
of all contact with the authoritative persons and knew no more of what
was happening than one of his second lieutenants.

When the Führer came to Vienna during the summer, it did not even seem
worth while to Keitel to introduce Jodl to him, although Jodl, as the
Supreme Commander’s strategic adviser, was called upon in the event of
war to carry out the allegedly common aggressive plan.

One can imagine how astonished Jodl was to read in the Indictment that
he had been a member of the conspiracy to launch the war.

Mr. President, I have reached the end of a paragraph, and this perhaps
might be an opportune moment to recess.

THE PRESIDENT: Very well.

      [_The Tribunal adjourned until 19 July 1946 at 1000 hours._]




                           TRANSCRIBER NOTES

Punctuation and spelling have been maintained except where obvious
printer errors have occurred such as missing periods or commas for
periods. English and American spellings occur throughout the document;
however, American spellings are the rule, hence, “Defense” versus
“Defence”. Unlike Blue Series volumes I and II, this volume includes
French, German, Polish and Russian names and terms with diacriticals:
hence Führer, Göring, etc. throughout.

Although some sentences may appear to have incorrect spellings or verb
tenses, the original text has been maintained as it represents what the
tribunal read into the record and reflects the actual translations
between the German, English, French, and Russian documents presented in
the trial.

An attempt has been made to produce this eBook in a format as close as
possible to the original document presentation and layout.

[The end of _Trial of the Major War Criminals Before the International
Military Tribunal Vol. 18_, by Various.]



*** END OF THE PROJECT GUTENBERG EBOOK 75266 ***