Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 18 (part 1 of 3)

Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 18

[Cover Illustration]

TRIAL OF THE MAJOR WAR CRIMINALS

BEFORE

THE INTERNATIONAL MILITARY TRIBUNAL

NUREMBERG 14 NOVEMBER 1945—1 OCTOBER 1946

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

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

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[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.

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