Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 19
[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 XIX
OFFICIAL TEXT
IN THE
ENGLISH LANGUAGE
PROCEEDINGS
19 JULY 1946—29 JULY 1946
One Hundred and Eighty-second Day, Friday, 19 July 1946, Morning Session 1 Afternoon Session 38
One Hundred and Eighty-third Day, Monday, 22 July 1946, Morning Session 84 Afternoon Session 119
One Hundred and Eighty-fourth Day, Tuesday, 23 July 1946, Morning Session 160 Afternoon Session 202
One Hundred and Eighty-fifth Day, Wednesday, 24 July 1946, Morning Session 256 Afternoon Session 284
One Hundred and Eighty-sixth Day, Thursday, 25 July 1946, Morning Session 331 Afternoon Session 353
One Hundred and Eighty-seventh Day, Friday, 26 July 1946, Morning Session 397 Afternoon Session 433
One Hundred and Eighty-eighth Day, Saturday, 27 July 1946, Morning Session 478
One Hundred and Eighty-ninth Day, Monday, 29 July 1946, Morning Session 530 Afternoon Session 570
Transcriber’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. For .txt files a “[sm type begins]” note precedes the text and a “[sm type ends]” note follows the text to identify these passages.
ONE HUNDRED AND EIGHTY-SECOND DAY
Friday, 19 July 1946
Morning Session
Professor Dr. Franz Exner (Counsel for Defendant Jodl): Mr. President, may it please the Tribunal, I shall proceed with the reading of my final argument.
I should like to recall the fact that yesterday I tried to show that Jodl, in any event until the year 1939, could not have been party to a conspiracy. But perhaps it is maintained that Jodl did not join the conspiracy until after 1939. As a previous speaker has already explained, an officer who works with others in the place assigned to him in carrying out a war plan can never be considered a conspirator. He does, in fact, have a plan in common with his superior, but he has not adopted it of his own accord, nor has he concluded an agreement to that effect, but within the normal scope of service he simply does what the post he occupies demands.
Jodl in particular can be considered a typical example of this. He did not go to Berlin of his own free will. It had already been decided long before that he would enter the Führer’s staff in case of war. Orders for the current mobilization year specified this. This mobilization year ended on 30 September 1939; for the following year General Von Sodenstern was already designated as Chief of the Armed Forces Operations Staff. Therefore, if the war had broken out 6 weeks later, Jodl would have entered the war as commander of his mountain division. He would then, in all probability, not be in this dock today. Thus it becomes clear that his whole activity in the war was fixed by a ruling which was independent of his will and had been laid down in advance long before. This fact is, in my opinion, in itself already striking proof that he did not participate in a conspiracy to wage wars of aggression.
When Jodl reached Berlin on 23 August 1939, the beginning of the war had been fixed for 25 August. For reasons unknown to him it was then postponed another 6 days. The plan for the campaign was ready. He did not need to conspire to produce it. If any conspiracy against Poland did exist at that time, the conspirators were to be found elsewhere, as we now know from the German-Russian Secret Treaty.
Jodl was not introduced to the Führer until 3 September 1939, that is after the war had begun, at a time when the final decision had already been taken. From then on his official position brought him close to Adolf Hitler; but, of course, one must add, close to him in locality only. He was never really on intimate terms with him. Even then, he did not learn of Hitler’s plans and intentions and was only told of them as the occasion arose to the extent that his work absolutely demanded. Jodl never became Hitler’s confidant and never had cordial relations with him. It remained a purely official relationship—often enough one of conflict.
In other ways, too, Jodl had remained a stranger to the Party. There is no suggestion of his having sought contact in Vienna, for instance, with the local Party leaders, although this would have been natural enough. Most of the Party leaders and most of the defendants he came to know only when they visited the Führer’s headquarters from time to time. With the exception of the officers, he had no relations with them. He abominated the Party clique in the headquarters and considered it an unpleasant foreign body in the military framework. He never ceased to fight against Party influences in the Armed Forces.
He did not attend Party functions. He did not take part in any Reich Party rally, apart from the fact that he once watched the Armed Forces display there on official orders. He never participated in the Munich memorial days on 9 November. The prosecutor has repeatedly referred to his Gauleiter speech to prove that, in spite of all this, Jodl identified himself with the Party and its efforts, and that he was after all not a soldier but a politician, and an enthusiastic supporter of Hitler.
Here one must first note that Document L-172, which is presented to us as this Gauleiter speech, is not the manuscript of this speech but a collection of material compiled by his staff, on the basis of which Jodl then drafted his manuscript. In addition, the speech was made extemporaneously. Not a single word of this document proves that Jodl really spoke it. Also the occasion of the speech must be taken into account. After 4 hard years of war, after the defection of Italy which had just taken place, before the fresh terrific burden which Hitler planned to impose on the population as the extreme effort, at this critical moment everything depended on upholding the people’s will to carry on. For that reason the Party tried to get expert information upon the war situation so as to be able to buoy up sinking courage again. For this task the Führer chose General Jodl, no doubt the only competent person. Many a person would have welcomed this opportunity to make himself popular with the Party leaders, but Jodl accepted the task contre cœur and against his will. The title of the address was: “The Military Situation at the Beginning of the Fifth Year of War.” Its contents are a purely military description of the war situation on the various fronts, and how this situation was created. The beginning and the end, at least according to the document before us, constitute a hymn of praise to the Führer, from which the Prosecution draws unwarranted conclusions. When a lecturer has first and foremost to win the confidence of his listeners—consisting of Party leaders—and when his task is to spread confidence in the supreme military leadership, then such rhetorical flowery speech is quite understandable.
Incidentally, Jodl does not deny that he sincerely admired some of the Führer’s qualities and talents. But he was never his confidant or his fellow conspirator, and even in the OKW he remained the nonpolitician he always was. Jodl was, therefore, not a member of a conspiracy. No concept of a conspiracy can help to make him responsible for criminal actions which he did not himself commit. And now I will deal with these individual actions of which Jodl is accused.
According to Article 6 of the Charter, the Tribunal is competent to deal with certain crimes against the peace, against the laws of war and against humanity, as specified in the Charter and involving personal criminal responsibility of the guilty individual. If we disregard for the time being the crimes against humanity, which come under a special heading, there are two preliminary conditions to any individual punishment of the defendants:
(1) There must be a violation of international law in which they were guilty of complicity in some respect. The point of this whole Trial and that of the Charter after all lies in the fact that the force of the rules of international law is to be strengthened by penal sanctions. If, therefore, some specific violation of international law is committed, not only the responsibility of the particular country which violated the law will be established as heretofore, but in addition guilty individuals shall also be punished for it in the future. Thus there can be no punishment without a previous breach of international law.
(2) Provision for such a responsibility of individuals is however not made in all cases of a breach of international law, but only for those explicitly named in the Charter. Article 6(a) specifies the crimes against peace, Article 6(b), crimes against the laws and usages of war. Other actions, even if contrary to international law, are not mentioned.
Quite a few court sessions might have been dispensed with if the Prosecution had taken these two points into account right from the beginning, because, as I shall show, there is a tendency to accuse the defendants, beyond these limits, of acts contrary to international law which are not specified in the Charter. Nor is this all: they are to be called to account also for deeds which are in no way contrary to law, but can, at most, be considered as unethical. In the following points I shall adhere to the clear arrangement of the Anglo-American trial brief and add to it what was brought up against Jodl by the two other prosecutors.
Point (1) Collaboration in the seizure and consolidation of power by the National Socialists has, as I already pointed out, been dropped.
Points (2) and (3) concern rearmament and the reoccupation of the Rhineland.
Jodl had nothing to do with the introduction of compulsory military service or with rearmament. Jodl’s diary contains not a single word about rearmament. He was a member of the Reich Defense Committee, which was not, however, concerned with the rearmament questions. He was here concerned with the measures which were to be taken by the civilian authorities in case of mobilization. There was nothing illegal in that. We were not forbidden to mobilize, for instance, in case of an enemy attack. The preparations in the demilitarized zone, which were proposed to the committee by Jodl, were also limited to the civilian authorities and consisted only of preparations for the evacuation of the territory west of the Rhine in order to defend the line of the river Rhine in case of a French occupation. The preparations were purely of a defensive nature.
If, in spite of that, Jodl recommended that these defensive measures be kept strictly secret, this is not evidence of any criminal plans, but was only the natural thing to do. As a matter of fact, particular caution was imperative, for the French occupation of the Ruhr was still fresh in people’s memories. Neither did Jodl have anything to do with the occupation of the Rhineland; he learned about this decision of the Führer only 5 days before its execution. Further comment on my part should be superfluous, for according to the Charter neither rearmament nor the occupation of the Rhineland—whether contrary to international law or not—belongs to the criminal actions envisaged by Article 6. These cases would come within the Charter only if a preparation for aggressive war were seen in them. But who would have thought of an aggressive war at that period? In 1938, owing to lack of trained troops, we could not have put into the field one-sixth of the number of divisions our probable enemies, France, Czechoslovakia, and Poland, could have produced. The first stage of rearmament was supposed to be reached in 1942. The West Wall was to have been completed by 1952. Heavy artillery was entirely lacking; tanks were at the test stage; the ammunition situation was catastrophic. In 1937 we did not possess a single battleship. As late as 1939 we did not have more than 26 seagoing U-boats, which was less than one-tenth of the British and French total. As far as war plans were concerned there existed only a plan for the protection of the Eastern frontier. The description of our situation in the Reich Defense Committee is very typical. It was said that as a matter of course a future war would be fought on our own territory; hence that it could only be a defensive war. This—please note—was a statement made during a secret session of this committee. The possibility of offensive action was not mentioned at all. But we were then not capable of serious defensive action either. For this very reason the generals considered themselves gamblers already at the time of the occupation of the Rhineland. But that any one of them could have been sufficiently optimistic to contemplate an offensive, of that there is not even the vestige of any evidence.
Points (4) to (6) of the trial brief refer to participation in the planning and execution of the attack on Austria and Czechoslovakia.
A deployment plan against Austria never existed. The prosecutors have submitted Document C-175 as such. But this is a misunderstanding; it is merely a program for the elaboration of diverse war plans, such as for a war against Britain, against Lithuania, against Spain, et cetera. Among those theoretical possibilities of war, “Case Otto” is also mentioned; this refers to an intervention in Austria in case of an attempt to restore the Hapsburgs. It says in the document that this plan was not to be worked out, but merely to be “contemplated.” But since there was no indication whatsoever of such an attempt by the Hapsburgs, nothing at all was prepared for this eventuality.
Jodl did not attend the meeting on 12 February 1938 at Obersalzberg. Two days later came the order to submit plans for certain deceptive maneuvers, obviously in order to put pressure on Schuschnigg so that he should abide by the Obersalzberg agreements. There is nothing illegal in this, although the prosecutor speaks of “criminal methods.” Jodl was completely surprised by the Führer’s decision to march in, made 2 days before it was carried out, and transmitted by telephone. Jodl’s written order served only for the files. If this had been the original order, it would after all have come much too late. It was issued at 2100 hours on 11 March and the troops marched in on the following morning. Developments were described to us here. The troops had purely peacetime equipment; the Austrians crossed the border to meet and welcome them; Austrian troops joined the columns and marched with the German troops to Vienna. It was a triumphal procession with cheers and flowers.
Then followed the case of Czechoslovakia. As late as the spring of 1938 Hitler stated that he did not intend “to attack Czechoslovakia in the near future.” After the unprovoked Czech mobilization he changed his view and decided to solve the Czech problem after 1 October 1938—not on 1 October 1938—as long as no interference was to be expected from the Western Powers. Jodl therefore had to make the necessary preparations in the General Staff. He did this in the conviction that his work would remain theoretical because—since the Führer desired under all circumstances to avoid a conflict with the Western Powers—a peaceful settlement was to be expected. Jodl tried to make certain that his plan should not be interfered with by Czech provocation. And things really did turn out as he expected they would. After the examination by Lord Runciman had revealed that minority conditions in Czechoslovakia could not continue as they were and showed the correctness of the German point of view, the Munich Agreement with the Western Powers took place.
Jodl is charged with having suggested in a memorandum that an incident might be created as a motive for marching in. He has given us the reasons for it. But no incident took place. This memorandum is not a breach of international law, if only because it is a question of internal considerations which never achieved importance outside. And even if this idea had been put into execution, such ruses have been used ever since the Greeks built their Trojan Horse. Ulysses, the initiator of this idea, is praised for this by the ancient poets as “a man of great cunning,” and not branded as a criminal. I do not see anything unethical in Jodl’s behavior either, for after all in the relations between states somewhat different ethical principles obtain than are taught in Sunday schools.
The occupation of the Sudetenland itself was effected just as peacefully as that of Austria. Greeted enthusiastically by the liberated population, the troops entered the German areas which had been evacuated to the agreed line by the Czech troops. Both these “invasions” are not crimes according to the Charter. They were not attacks, which would presuppose the use of force; still less are they wars, which would presuppose armed fighting; least of all are they aggressive wars. To consider such peaceful invasions as “aggressive wars” would be to exceed even the notorious analogies evolved by National Socialist criminal legislation. The four signatory powers could have included these invasions, which were still a recent memory, in Article 6, but this was not done because it was obviously intended to limit to acts of war the completely novel punishment of individual persons, but not to penalize such unwarlike actions. Generally speaking, any interpretation of the penal rules of the Charter tending toward an extension is inadmissible. The old saying applies: “Privilegia stricte interpretenda sunt.” Here we have an example of privilegium odiosum. Indeed there has probably never been a more striking example of a privilegium odiosum than the unilateral prosecution of members of the Axis Powers only. Now it might also be attempted to make Jodl responsible for having drafted an invasion plan against Czechoslovakia at a time when a peaceful settlement was not yet insured. Jodl, however, counted on a peaceful settlement and had good reason to expect it. He therefore lacked the intention of preparing an aggressive war.
To this statement of facts, which excludes the question of guilt, must be added a legal consideration: We have established beyond any doubt that there is no punishment for crimes against the peace without previous violation of international law. Now if the Charter makes preparations for aggressive war subject to punishment, it clearly means that a person who prepared an aggressive war which actually took place should be punished. War plans, however, which remained nothing but plans, are not affected. They are not contrary to international law. International law is not concerned with what goes on in people’s heads and in offices. Things which are immaterial from an international angle are not contrary to international law. Aggressive plans which are not executed—including aggressive intentions—may be unethical, but they are not contrary to law and do not come under the Charter.
Here we are concerned with plans which were not carried out because the peaceful occupation of the Sudetenland based on international agreement was not an aggressive war, and the occupation of the rest of the country, which incidentally was also accomplished without resistance and without war, no longer had any connection with Jodl’s plans.
This occupation of the rest of Czechoslovak territory in March 1939 need not be discussed in greater detail here, for Jodl was in Vienna at the time and did not take part in this action. Neither did he have anything to do with its planning, for that has no connection whatsoever with Jodl’s earlier work in the General Staff. In the meantime the military situation had changed completely; the Sudetenland with its frontier fortifications was now in German hands. The unopposed entry which then took place therefore followed totally different plans, if such plans existed at all. Jodl did not take part in the actual invasion.
Point (7) of the trial brief deals with war plans against Poland. The essential things have already been said on this subject: At the moment when Jodl left Berlin, no deployment plan against Poland existed. When he returned on 23 August 1939 the intention was to enter Poland on the 25th. The plan for this was naturally ready; Jodl had no share in it.
The Prosecution stresses further that Jodl was present in Poland in the Führer’s train on 3 September and that this was proof that he took part in the war. Is this, too, a reproach against a soldier?
Point (8) of the trial brief concerns attacks on the seven countries from Norway to Greece. The trial brief gathers these seven wars, together into one point, and quite rightly too. They form one unit, because all of them resulted from military necessity and with logical consequence from the Polish war and from Britain’s intervention. It is for this very reason that the fact that Jodl had nothing to do with the unleashing of the war against Poland is so important when judging him.
The historians will have to do a lot more research work before it is known how everything really came about. The only criterion for the judgment of Jodl’s behavior is how he saw the situation at its various stages; whether, according to what he saw and knew, he considered Hitler’s various decisions to wage war justified; and to what extent he influenced developments. That is all that we are concerned with here.
In connection with Norway and Denmark, may it please the Tribunal, I should like to refer to the statements made by Dr. Siemers the day before yesterday, and therefore I shall omit what comes next, but I should like to insert a statement at this point, namely, a statement regarding international law which is not contained in my manuscript. With reference to the statements made by Dr. Siemers in this regard the day before yesterday, in order to avoid any misunderstanding, I should like to add the following:
(1) There is not the slightest doubt that merchant ships of a state at war may pass through the neutral coastal waters. If its enemy, in order to prevent any traffic of that sort, mines the coastal waters, such action is a clear breach of neutrality. Even warships have the right to pass through, insofar as they adhere to the rules which have been stipulated and do not participate in any combat action in the coastal waters. And if this applies even to warships, it applies all the more to ships which are transporting prisoners of war.
(2) The fact that a war is a war of aggression does not in any way influence the validity and application of the normal war and neutrality rights. A contrasting opinion would lead to absurd results and would serve only to deal a deathblow to all the laws of war. There would be no neutral states, and the relations between the belligerents would be dominated by the principle of brute force. Each shot would be murder, each instance of capture would be punishable deprivation of liberty, each bombardment would be criminal material damage.
This war, in any event, was not conducted along such principles by either side, and even the Prosecution does not uphold this point of view...
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): [Interposing.] One moment, Dr. Exner.
[There was a pause in the proceedings while the judges conferred.]
THE PRESIDENT: Go on.
DR. EXNER: Nor does the Prosecution maintain this point of view, otherwise they would not have charged the defendant with certain deeds as being crimes against the laws of war and the rights of neutrals. The entire charge under Count Three would not be understandable. And apart from that, Professor Jahrreiss has dealt with this question on Pages 32 to 35 of his final argument.
Jodl heard for the first time in November 1939—and this from Hitler himself—about the fears of the Navy that Britain was intending to land in Norway. He then received information which left no doubt that these fears were basically right. Furthermore, he had regular reports according to which the Norwegian coastal waters were coming more and more into the English sphere of domination, so that Norway was no longer actually neutral.
Jodl was firmly convinced—and still is today—that the German troops prevented the British landing at the last minute. No matter how Hitler’s decision may be judged legally, Jodl did not influence it; he considered the decision justified and was bound to consider it as such. So, even if Hitler’s decision were to be regarded as a breach of neutrality, Jodl did not give criminal help by his work on the General Staff.
Like every military expert, Jodl knew that if Germany had to fight out the war in the West, there was no other course but a military offensive. In view of the inadequacy of German equipment at the time and the strength of the Maginot Line, there was, however, from a military point of view, no other possibility for an offensive than through Belgium. Thus Hitler was, for purely military reasons, faced by the necessity of operating through Belgium. But Jodl also fully knew, as did every German who had lived through August 1914, how difficult such a political decision was as long as Belgium was neutral, that is, willing and able to keep out of the war.
The reports which Jodl received, and of the accuracy of which no justified doubts could be entertained, showed that the Belgian Government was already co-operating, in violation of her neutrality, with the general staffs of Germany’s enemies. This, however, can be waived here in the defense of Jodl. It suffices to know—and this is indisputable—that part of Belgium’s territory, that is, the air over it, was being continually used by Germany’s Western enemies for their military purposes.
And this applies perhaps even more strongly to the Netherlands. Since the very first days of the war, British planes flew over Dutch and Belgian territory as and when they pleased. Only in some of the numerous cases did the Reich Government protest, and these were 127 cases.
THE PRESIDENT: Dr. Exner, will you refer the Tribunal to the evidence which you have for that statement?
DR. EXNER: I beg your pardon?
THE PRESIDENT: Will you refer me to the evidence that you have for that statement?
DR. EXNER: What statement, Mr. President?
THE PRESIDENT: That protests were made in 127 cases.
DR. EXNER: I am referring to the statements made by the witness Von Ribbentrop. He said that 127 protests were made.
THE PRESIDENT: Go on.
DR. EXNER: The Prosecution does not put the legal question correctly. Before air warfare gained its present importance, conditions were such that a state wishing to remain neutral could prevent its territory from being continually used at will by one of the belligerents, or else its neutrality was clearly terminated. After air warfare became possible, a state might relinquish or be forced to relinquish to one of the belligerents the air over its territory, and yet remain outwardly and diplomatically neutral. But by the very nature of the idea, the defense of its neutrality can be claimed only by a state whose whole territory lies de facto outside the theater of war.
The Netherlands and Belgium, long before 10 May 1940, were no longer de facto neutral, for the air over them was in practice, with or against their will, freely at the disposal of Germany’s enemies. What contribution they thus made toward Britain’s military potential, that is, toward the strength of one of the belligerents, is known to everybody. One need only think of Germany’s most vulnerable point, the Ruhr.
Our adversaries obviously maintained the point of view that insofar as the barrier constituted by Holland and Belgium protected Germany’s industrial areas against air attacks, their neutrality was immaterial; but with regard to the protection afforded to France and England, any violation was a crime.
Jodl naturally realized the situation. His opinion on the legal aspect, was, of course, a matter of complete indifference to Hitler. Here, too, his activity remained the normal activity of a General Staff officer.
THE PRESIDENT: One moment, please. Dr. Exner, is it your contention that it is in accordance with international law that if the air over a particular neutral state is made use of by one of the warring nations, the other warring nation can invade that neutral state without giving any warning to the neutral state?
DR. EXNER: In this respect I should like to maintain that this continual use of the air space over a neutral state—that is, for purposes of attack, for these planes flew over such territory in order to attack Germany—was a breach of neutrality. This breach of neutrality justified Germany’s no longer regarding Belgium as a neutral country. Therefore, from the standpoint of the Kellogg Pact, or any previous assurance given with respect to neutrality, no charge can be made against Germany in this regard. Whether one can reproach Germany for the fact that she did not declare war in advance is something I leave open to discussion.
Incidentally, it may be presumed that the flights made by the British planes were not announced in advance either.
THE PRESIDENT: Well then, you are not prepared to answer the question I put to you?
DR. EXNER: Yes. The question was to the effect, Mr. President, whether a prior declaration was necessary; that was the question, Mr. President, was it not?
THE PRESIDENT: Whether you can attack a neutral state without giving any prior warning, that is, whether, in accordance with international law, you can attack a neutral state in such circumstances without giving any prior warning. That is the question.
DR. EXNER: My contention is that it was no longer a neutral state when it was attacked.
THE PRESIDENT: Then your answer is in the affirmative; you say that you can attack without giving any warnings, is that right?
DR. EXNER: There is an agreement in international law that war must always be declared in advance. In that sense Germany would have been bound to declare war beforehand. However, above and beyond that, because of the fact that this was not a neutral state, I do not believe that any other obligation still existed. I cannot see just why there should have been any obligation toward this state because it had been neutral at one time.
THE PRESIDENT: Well then, you say that there is a general obligation to declare war before you actually invade. You don’t say, do you, that the fact that Holland was a neutral state prevented that obligation attaching?
DR. EXNER: That I am not prepared to assume. A general obligation I admit, but I do not believe there was a special obligation because of the former neutrality of Holland and Belgium. I fail to see what justification could be given for that.
THE PRESIDENT: Go on.
DR. EXNER: Now I shall turn to Greece. Hitler wanted to keep the Balkans out of the war, but Italy had attacked Greece against his will at the beginning of October 1940. When the Italians got into trouble, a request was made for German help. Jodl advised against it, since British intervention in the Balkans would then have to be reckoned with and every hope of localizing the Italo-Greek conflict would thus be lost. Hitler then ordered everything to be prepared in case of need for German aid to Italy against Greece. These are the orders of 12 November and 13 December 1940.
If the attempt to localize the Italo-Greek conflict did not succeed, it was clear that Greece would be involved in the great Anglo-German struggle. The question was now whether Greece would come within the war zone controlled by the British or the Germans. In the case of Norway, Belgium, and Holland, part of the territory of these countries was already at Britain’s disposal before the beginning of open hostilities, and they were, therefore, objectively at least, not neutral, which possibly they could no longer be. It was the same with Greece now. The Indictment referring to Greece established that British troops were landed on the Greek mainland on 3 March 1941, after Crete had for some time before that come within the area controlled by the British. Hitler did not give permission for aerial warfare on Crete until 24 March 1941, and began the mainland attack only on 6 April.
Here, too, Jodl had no influence on Hitler’s decisions. He could have no doubt that Hitler’s decision was inevitable in view of the way in which the war between the world powers was now developing. There was no choice; ever-increasing parts of Greek territory would have been drawn into the sphere of British power and would have become the jumping-off points for bombing squadrons against the Romanian oil fields unless Germany stopped this process. Moreover, the experiences of the first World War were disquieting; the coup de grâce had at that time been made from Salonika.
Hitler wanted to keep Yugoslavia out of the war, too. The German troops in the Balkans had the strictest orders to respect her neutrality rigorously. Hitler even rejected the proposal by the Chief of the Army General Staff to ask the Yugoslav Government for permission to allow sealed trains with German supplies to pass through its territory.
The Simovic Putsch in Belgrade on the night after Yugoslavia joined the Tripartite Pact was considered by Hitler to be a malicious betrayal. He was of the opinion that the change of government at Belgrade, which reversed the course of its foreign policy, was only possible if Britain or the Soviet Union or both had provided cover from the rear. He was now certain that the Balkans would be fully drawn into the war tangle. He was certain that the German troops in Bulgaria were severely threatened, and also the German supply line which ran close to the Yugoslav frontier.
Under these conditions Hitler on the morning following the Belgrade Putsch took the decision for war, any preparation for which was absolutely lacking. Jodl’s suggestions, and later Ribbentrop’s too, to make things unambiguous by means of an ultimatum, were never considered. He wanted to make sure that Yugoslavia and Greece should not come into the sphere of influence of Britain but into that of Germany. The next day’s news concerning Moscow’s telegram of friendship to the Belgrade Putsch government and about the Yugoslav deployment then already in progress, as confirmed by the statement of the witness Greiffenberg (Document Book 3, Document Number Jodl-65, Exhibit AJ-12), and lastly the Russo-Yugoslav Friendship Pact, were for Jodl irrefutable signs that Hitler had correctly foreseen the connection of events. The decision to fight was taken by Hitler, and by Hitler alone.
Point (9) concerns the war against the Soviet Union. What each of the two Governments in Berlin and Moscow actually wished to achieve by the agreement of 23 August 1939 is not certain. One thing, however, is certain, and that is that these partners who were until then enemies had not arranged a love marriage. The Soviet Union was for the German partner a completely mysterious quantity, and remained so. Anyone who fails to consider this fact can in no way judge Hitler’s decision to make a military attack on the Soviet Union, least of all the question of guilt.
If anywhere, it was in the Russian question that Hitler came to a decision without even listening to the slightest advice from anyone, to say nothing of taking it. He wavered for many months in his opinion about the intentions of the Soviet Union. The relations of the armies on both sides of the demarcation line from the very beginning were full of incidents. The Soviets at once occupied the territories of the Baltic States and of Poland with disproportionately strong forces.
In May and June 1940, when there were only 5 or 6 German covering divisions in the East, the Russian deployment against Bessarabia with at least 30 divisions, reported by Canaris, and the deployment into the Baltic territory caused great anxiety. On 30 June 1940 apprehensions were again allayed, so that Jodl—as Document 1776-PS has shown—even thought that Russia could be counted on as an aid in the fight against the British Empire. But in July there were renewed worries. Russian influence was progressing energetically in the Balkans and the Baltic territories. Hitler began to fear Russian aggressive intentions, as he told Jodl on 29 July.
The transfer of several divisions from the West, where they were no longer required, actually had nothing to do with this. This occurred at the request of the commander in the East who could not fulfill his security task with his weak forces.
Hitler’s worry above all concerned the Romanian oil fields. He would have preferred to eliminate this threat back in 1940 by a surprise action. Jodl replied that owing to the bad deployment possibilities in the German Eastern Territories this could not be considered before winter. Hitler demanded verification of this opinion and Jodl arranged for the necessary investigations in a conference with his staff at Reichenhall, which was obviously misunderstood by the Russian Prosecution. On 2 August Hitler ordered improvements to be made in the deployment possibilities in the East—a measure which was no less indispensable for defense than for an offensive.
Toward the end of August—this is the order of 27 August—10 infantry divisions and 2 Panzer divisions were brought into the Government General in case a lightning action should become necessary for the defense of the Romanian oil fields. The German troops, now totaling 25 divisions, were indeed intended to appear stronger than they really were, so that an action should become unnecessary. This is the meaning of Jodl’s order for counterespionage (Document Number 1229-PS). Had there been offensive intentions at that time, there would presumably have been an attempt to make Germany’s forces appear smaller than they were.
At the same time Hitler appears to have given the Army General Staff orders—without Jodl knowing anything about it—to prepare an operational plan against Russia for any eventuality. In any case, the Army General Staff, General Paulus, worked on operational plans of this kind as from the autumn of 1940.
Unfavorable information then accumulated after the Vienna arbitration on 30 August 1940. If Jodl was to believe his utterances, Hitler was becoming convinced that the Soviet Union had firmly resolved to annihilate Germany in a surprise attack while she was engaged against Britain. The leaders of the Red Army had, according to a report of 18 September, declared a German-Russian war to be inevitable (Document Number C-170). In addition, reports came in of feverish Russian preparations along the demarcation line. Hitler counted on a Russian attack in the summer of 1941 or winter of 1941-42. He thus decided, should the discussions with Molotov fail to clear up the situation favorably, to take preventive steps. For in that case the only chance for Germany lay in offensive defense. For this eventuality, preparatory measures were ordered by Hitler on 12 November 1940 (Document Number 444-PS).
The failure of the discussions with Molotov decided the question. On 18 December 1940 Hitler gave orders for the military preparations. Should the coming months clear up the situation, all the better. But it was necessary to be prepared in order to deliver the blow in the spring of 1941 at the latest. This was presumably the latest possible moment, but also the earliest, since more than 4 months were required for the deployment.
Jodl, as an expert, emphatically pointed out to Hitler the enormous military risk which could be run only if all political possibilities of averting the Russian attack were really exhausted. Jodl became convinced at that time that Hitler actually had exploited every possibility.
The situation grew worse. According to reports which were received by the Army General Staff at the beginning of February 1941, 150 Russian divisions, that is, two-thirds of the total Russian strength known, had deployed opposite Germany. Yet only the first stage of the German deployment had begun.
The Soviet Government’s telegram of friendship to the participants in the Belgrade Putsch on 27 March 1941 destroyed Hitler’s last hope. He decided upon an attack, which however had to be postponed for more than a month owing to the Balkan war.
The deployment was undertaken in such a manner that the mechanized German units, without which the attack could not be conducted at all, were brought to the front only during the last 2 weeks, that is, after 10 June.
Genuine preventive war is one of the indispensable means of self-preservation, and was indisputably permitted according to the Kellogg-Briand Pact. The “Right of Self-Defense” was understood by all the signatory states.
If the situation was wrongly construed, the German military leaders cannot be blamed for their error. They had reliable reports on Russian preparations which could only make sense if they were preparations for war. The reports were later confirmed. For when the German attack met the Russian forces, the German command received the impression of running into a gigantic deployment against Germany. General Winter developed this here in detail in addition to Jodl’s statements, particularly with regard to the enormous number of new airports near the line of demarcation, and he drew particular attention to the fact that the Russian staff units were provided with maps of German territories. Field Marshal Von Rundstedt also confirmed this as a witness before the Commission. This will come before the Tribunal during the further course of the Trial.
Jodl firmly believed that Hitler would never have waged war against Russia unless he had been absolutely convinced that no other path was open to him at all. Jodl was aware that Hitler fully appreciated the danger of a two-front war and would jeopardize victory over England—which he thought was assured—only in the utmost emergency. Jodl simply did his job as an officer of the General Staff. He was convinced, and still is today, that we were waging a genuine preventive war.
I come now to Point (10) of the trial brief, concerning war against the United States. That Jodl had no desire to supplement the number of our enemies with a world power is obvious, and is also shown by documents.
Now what is the position with regard to the responsibility for these campaigns? A declaration of war is a decision in the field of foreign politics, the most important one in the whole of this field. It depends on the constitutional structure of the concrete state as to who is responsible for this decision—politically, criminally, and morally—and on the way the formation of a decision in the field of foreign politics takes place in the state according to its constitution. Professor Jahrreiss has said of this that in the Führer State it is exclusively the Führer who has to make this decision. Anyone who advises him about this cannot be responsible, for, if what the Führer orders is legally right, he who influences this order cannot be acting illegally.
The Charter obviously represents the opinion that those who in any way participate in the Führer’s decision or influence it are coresponsible. If we take this legal conception as authoritative the question of responsibility crystallizes into a problem of competence.
In every community the tasks of its organs must be limited; there must be rulings on competence laying down what each official is called upon to do and not to do. Thus in all states the relations between the military and the civil administration are naturally regulated, just as within the military and within the administration the tasks and the relations between their thousands of offices are regulated. If things were otherwise, chaos would reign.
Particularly in wartime the problem of competence in the relations between the political and military leadership is important. The military being the most important instrument of policy, the assistant may easily try to become master, in other words, the military may try to interfere in politics. It was German tradition to avoid this. The Bismarck Reich took great pains to keep the officers far removed from politics; they had no right to vote, were not allowed to go to political meetings, and in fact any statements on politics made by an officer were looked upon askance. For this might in some way be looked upon as taking sides, which was severely prohibited. The military were to be politically blind, completely neutral, and were to adhere to a sole point of view, which was that of legitimacy, that is, subordination to the legitimate ruler.
Thus in the years 1866 and 1870 when there was danger of war, it was not Moltke but Bismarck who advised the king as to the political decision. This changed during the last years of the first World War. General Ludendorff became the strongest man in the Reich, owing to the force of his personality and the weakness of his political opponents. People often talk of Prussian militarism, and for the time when the military had seized political power this was justified. The Weimar State completely abolished this. The nonpolitical character of the Reichswehr was stressed very emphatically and the military were again limited to their particular field. This went so far that a civilian was made minister for war, who had to represent the Reichswehr politically in the Reichstag. The longest period of office was held by a Liberal Democrat minister, who was meticulously careful to avoid all political influence by the generals.
When founding the Wehrmacht Adolf Hitler maintained this sharp distinction between politics and military, indeed he even stressed it in a certain sense. He, who wished to make the whole people political-minded, wanted a nonpolitical Wehrmacht. The soldier was deprived of political rights: He was not allowed to vote or to belong to any party, not even the NSDAP, as long as the old law on military service was in force. In keeping with that, he also kept his generals and highest military advisers away from any part in political affairs. He also remained consistent toward his own party. When, after Fritsch had gone, a new Commander-in-Chief of the Army was to be appointed, it would have been easy enough to have chosen Von Reichenau, who had National Socialist leanings, but he appointed Von Brauchitsch. He did not want any political generals, not even National Socialist ones. His point of view was that he was the Führer, he was the politician; the generals had to see to their own affairs; they knew nothing about politics. He did not even tolerate advice when it concerned politics. The generals did, in fact, repeatedly venture to express doubts as to his political plans, but were obliged to limit themselves strictly to purely military points of view. This sharp division into political and military spheres of competence is, for that matter, not characteristically German. It applies also, if I am correctly informed, to the Anglo-Saxon democracies, and indeed to a particularly pronounced degree.
At any rate it was thus under Hitler: He made political decisions, and it was only on their military execution that the generals had any influence. It was their task to make the military preparations corresponding to any political eventualities. But it was Hitler who pressed the button which would set the machine in motion. The “whether” and “when” were decided by the Führer. It was not for them to weigh the advantageousness, the political feasibility, or the legal permissibility.
Psychologically this attitude of the Führer became still more pronounced owing to the almost inconceivable mistrust he felt toward his generals. An extraordinary phenomenon; yet, anyone who disregards it can never come to understand the atmosphere which reigned in the Führer’s headquarters. It referred—he thought—to the reactionary attitude of the officers’ corps. He never forgot that the Reichswehr had fired at National Socialists in 1923. It was, moreover, the natural mistrust of the military dilettante toward the military expert, for he wanted to be a strategist; and also probably the mistrust of the political expert toward political dilettantes in officers’ uniform. This mistrust of the political insight of his military entourage was moreover by no means entirely unfounded. For the generals had wanted to put a brake on his rearmament plans, to hold him back from the occupation of the Rhineland, and had expressed objections to his march into Austria and to his occupation of the Sudetenland. And yet all these actions had succeeded smoothly and without bloodshed. The generals felt like gamblers when carrying out the plans, but Hitler was sure of his game. Is it to be wondered at that their political judgment did not carry too much weight with him, and is it to be wondered at that from the other side the apparent infallibility of his political judgment met with more and more recognition?
Thus Hitler tolerated no interference in his political plans, and the result of it, as has been drastically represented to us here, was that, had a general raised objections to Hitler’s political decisions, he might not actually have been shot, but his sanity would have been questioned.
Altogether this man of power detested being given advice. Thus at the beginning of military undertakings the chances of the plan were hardly ever considered in general discussions. None of the important decisions since 1938 came about as the result of advice. On the contrary, the decision often came as a total surprise to the military command. This applies, for instance, to the march into Austria, of which Jodl learned 2 days before it happened, or in the case of the attack on Yugoslavia, which was suddenly decided upon by Hitler and carried out without any preparations within a few days. The alleged “discussions” at the Führer’s headquarters, the course of which the witness Field Marshal Milch described so clearly, were nothing but briefings.
Within the Wehrmacht the spheres of competence of the individual departments were also, of course, sharply divided, and the method which Hitler used to make these divisions as insurmountable as possible is of interest. This was achieved by the method of secrecy. Enough has been said about this, particularly about the so-called “Blinkers’ Order,” which forbade anybody to obtain insight into anybody else’s work. Thus each department was isolated and strictly limited to its own tasks. Obviously what Hitler desired to achieve by this system was that he should retain the reins in his hands as the only fully informed person.
Indeed he strengthened this system still more by only too often playing off individuals, groups, and departments one against the other to prevent any conspiracy among them.
Mr. President, I have concluded my paragraph.
THE PRESIDENT: We will adjourn now.
[A recess was taken.]
DR. EXNER: These methods of isolationism which I mentioned before are interesting, because they often inevitably came into conflict with one of the basic ideas of National Socialism, the Führer Principle; but they were carried through in spite of this, for instance when the competence of two departments covered the same territory, such as the competence of a military commander and of Himmler in the same occupied territory. What was ordered by one did not concern the other, even though the execution of the order might encroach upon the arrangement for which the other was responsible. Thus the military commander was in no way master in his territory. Things were the same in the civil administration too: There was the double role of the Landrat as a State functionary and the Kreisleiter as a Party functionary, of the Reichsstatthalter and the Gauleiter.
Everywhere there was a dualism of powers and therefore a dissipation of power. There was method in this; it prevented lower organs becoming too strong and safeguarded the power of the supreme leadership. It may be said epigrammatically that the Führer Principle was realized only in the Führer.
What was the position of Jodl’s sphere of competence within all this machinery? He was the Chief of the Armed Forces Operations Staff, which was a department of the OKW coming under Keitel. Jodl’s main task was, as the name of the department implies, to assist the Supreme Commander in the operational leadership of the Armed Forces. He was the Führer’s adviser on all operational questions—in a certain sense the Chief of the General Staff of the Armed Forces. The task of this Chief of the General Staff, in all countries in which this arrangement is known, is not that of giving orders but of advising, assisting, and carrying out. This goes to show that Jodl’s position has frequently been misunderstood during the course of this Trial.
(1) He was not Keitel’s Chief of Staff, but the chief of the most important department of the OKW, though he had nothing to do with the other departments and sections of the OKW.
Here I have to make an interpolation in deviation from my manuscript. He was also not Keitel’s deputy. In Berlin Keitel was represented by the senior departmental chief, and that was Admiral Canaris. At the Führer’s headquarters there was only the Armed Forces Operations Staff, for whom Jodl reported directly to the Führer. He had nothing to do with the other sections of the OKW.
(2) It is also a mistake that Jodl is designated by the Prosecution as the commander of one campaign or another. He had no power of command, let alone command of an army.
(3) It was equally wrong when it was repeatedly said that Warlimont was present at the meeting of 23 May 1939 as Jodl’s deputy or assistant. Warlimont was in the OKW at the time; Jodl had left the OKW in October 1938 and had nothing more to do with Warlimont in May 1939.
What is indicated by all this with reference to Jodl’s responsibility for the real or alleged wars of aggression? In general, one can only be made responsible for what one does criminally when one should not do it, and for what one has criminally neglected to do when one ought to have done it. What an officer or an official has or has not got to do is a question of competence. So this is where the problem of competence assumes its importance for us. Let us look at it more closely:
Jodl is accused of having planned and prepared certain wars which were breaches of international law. This reproach would be justified only if it was within his competence to examine, before he carried out his task, the legality of the war which might be waged, and to make his co-operation dependent on this decision. This must be very definitely contested. Whether or not to wage a war is a political question and is the politician’s concern. The question of how to wage war is the only question concerning the Armed Forces. The Armed Forces can suggest that the war is, in view of the opponent’s strength, too risky, or that the war cannot be waged at a particular season, but the final decision rests with the politicians.
I could, to be sure, imagine that the Chief of the Armed Forces Operations Staff might become at least morally guilty of complicity in a war of aggression if he had incited the decisive quarters to bring about a war, or if, drawing attention to military superiority, he had advised the political leadership to exploit the propitious moment in order to carry out extensive plans of conquest. In such a case one could call him an accomplice, because he, over and above his military task, intervened in politics and provoked the decision for war. But if he plans and carries out the plan of a possible war, that is, in case the political leadership decides on war, he does nothing but his evident duty.
One should consider the extraordinary consequences which would arise from a different conception: The competent authority would declare war, and the Chief of the General Staff, who regards this war as contrary to international law, would fail to co-operate. Or the Chief of General Staff happens to be of the same opinion as the head of the State, but one of the army commanders has objections and refuses to march, while another one has doubts and has to think it over first. Can war be waged at all in this case, be it a war of defense or a war of aggression?
Such a conception of law would, in the future, lead to highly problematical results. The Security Council of the Allied Nations has decided to set up a World Police with the task of protecting world peace against aggression. At the same time the creation of a World General Staff has been considered which would have to plan and carry out this punitive war. Now let us imagine that the Security Council decides on a punitive war and the Chief of the General Staff replies that in his opinion there is no aggression. Would not the whole security apparatus in this case depend on the subjective opinion of a single nonpolitical person, that is, would it not in fact become illusory?
I need only add one more thing in passing: If this opinion should prevail, what efficient man would still decide to become a regular officer, if, on reaching a high position, he would risk being put on trial for crimes against the peace in case of defeat?
Moreover, for that matter, it is wrong, even if only for practical reasons, to impose on a general the duty of examining the legality of a war. The general will only seldom be in a position to judge whether the state to be attacked by him has broken its neutrality or whether it threatens to attack or not. And, furthermore, the conception of a war of aggression and of a war contrary to law is, as Professor Jahrreiss has explained, still completely unclarified and contested among scholars of international law. Yet a general, who lives far apart from all these considerations, is expected to recognize that it is his duty to carry out a legal investigation?
But even if he had recognized the war as illegal, just let us imagine the really tragic position in which this general would find himself. On one hand there is his obvious duty toward his own country, which he has taken an oath as a soldier to fulfill, on the other side this obligation not to support any war of aggression, a duty which forces him to commit high treason and desertion, and to break his oath. One way or the other he will become a martyr.
The truth is this: As long as there is no superstate authority which impartially establishes whether, in a concrete case, such a duty does exist for the individual, and as long as there is no superstate authority which will protect against punishment for high treason and desertion people who fulfill this duty, an officer cannot be held criminally responsible for a breach of the peace. Whatever the circumstances, one thing must be pointed out: On the one hand the Prosecution reproaches the generals for not having been simply soldiers, but also politicians; on the other hand, it demands of them that they should remonstrate against the political leadership and sabotage its resolutions—in short, that they should not simply be soldiers, but politicians.
The Prosecution do actually acknowledge this up to a certain point. They say that it is not intended to punish the generals for having waged war—for this is their task—but they are reproached for having caused the war.
And the second argument, which often recurs, is that without the generals’ help, Hitler could not have waged these wars, and that makes them coresponsible.
This argument contradicts itself. For the help which the generals gave Hitler consisted in planning and carrying out military operations, that is, in waging the war, for which, in the opinion also of the Prosecution, they cannot be criminally charged. Let us examine this more closely: Jodl is said to have caused wars. It has been sufficiently proved that he played absolutely no part in the launching of the Polish campaign. And it was this very campaign which, with strategic necessity, brought about all the further happenings.
Actually one need not examine the origins of the individual wars at all to be able to say, in view of all that we know now, that in this assertion there lies an enormous overestimation of Jodl’s power in the Hitler State. The decision to start the war was far removed from his influence. On this very point advice from the generals was not heard. At most, purely military considerations could be submitted. And the Norwegian campaign was the only one of all these campaigns which a military man advised Hitler to carry out for reasons of strategic necessity. But that was not Jodl. As regards the latter, the assertion that he caused wars would be founded on nothing. Let the transcript, the memorandum for his speech, or any other document be shown according to which Jodl at any time incited people to war, or even only recommended the decision to start a war. His Gauleiter speech is submitted against him. In it Jodl shows—looking back—how the events developed one out of the other. For instance, how the Austrian Anschluss facilitated action against Czechoslovakia, and how the occupation of Czechoslovakia facilitated the action against Poland. But it is bad psychology to deduce from this that a general plan for all this existed from the first. If I buy a book which draws my attention to another one, and I then buy the latter as well, does it follow that at the time of the first purchase I already had the intention of getting the second one as well? If Hitler had extensive plans right from the start, Jodl did not know of them, let alone consent to them. His purely defensive deployment plan of 1938 already proves that by itself alone. Every time a campaign had been resolved upon, he did indeed do his bit to carry it out successfully. It is this supporting activity which is the object of the second of the arguments mentioned earlier.
It is true that without his generals Hitler could not have waged the wars. But only a layman can construct a responsibility on that basis. If the generals do not do their job, there is no war. But one must add: If the infantryman does not march, if his rifle does not fire, if he has nothing to clothe himself with and nothing to eat, there is no war. Is therefore the soldier, the gunsmith, the shoemaker, the farmer guilty of complicity in the war? The argument is based on a confusion between guilt and causation. All these persons, and many others too, effectively co-operated in the waging of the war. But can one therefore attribute any guilt to them? Does Henry Ford share in the responsibility for the thousands of accidents which his cars cause every year? If an affirmative answer is given to the question of causation, the question of guilt is still not answered. The Prosecution even refrains from putting this question.
The question of guilt will be discussed later. Here only the following is anticipated: Criminal participation in the planning and carrying out of a war of aggression presupposes two things:
(1) That the person involved knew that this war was an illegal war of aggression;
(2) that, by reason of this knowledge, it was his duty to refrain from co-operating in it.
The latter links up with what has already been mentioned: By virtue of his position it was Jodl’s duty to make plans. Whether they were used or remained unused did not depend on him; it is characteristic that Jodl made a whole series of deployment plans which were never carried out. All general staff plans are only drawn up for an eventuality in case the political leadership should “press the button.” Often they did it; often they did not. That was no longer a matter for the general staff officer.
The other presupposition for an accusation of guilt is that the person involved recognizes the war as a war of aggression. The question is, therefore, how these things appeared to him. How they were in reality interests the historian. The decisive question for the criminal lawyer is: What reports were submitted to Jodl about the conduct of the enemy? Could it be taken from these reports that the enemy was acting contrary to his neutrality; that he was preparing an attack on Germany, et cetera?
The decisive point is not whether these reports were true, but whether Jodl believed them to be true. I must stress this, because it has been said here at times: “The Tribunal will decide whether this was a war of aggression.” That, of course, is true, because if the Court decides that it was not a war of aggression, no sentence for waging a war of aggression will be pronounced. But if the Court agrees that the war was, in fact, launched illegally, this does not in itself affirm the guilt of any person.
Someone who takes someone else’s watch in the belief that it is his own is no thief. The guilt is lacking, for had it really been his own watch, he would not have been liable to punishment. So if Jodl believed that facts existed which, had they been true, would have made the war a legally admissible one, no sentence for breach of the peace can be pronounced.
Now, the Prosecution have repeatedly asked the generals the ironical question how it conformed with the code of honor of an officer to assist in a war which they had recognized to be illegal.
Let us assume that Jodl was sure that the war was illegal and that he had, for reasons of conscience, refused to collaborate. What difference would there then have been between him and a soldier who throws away his rifle in battle and retreats? Both of them would be liable to the death penalty for disobeying orders in war.
I know that the United States is generous enough to respect a soldier who, for religious reasons, refuses to take up arms, and not treat them as we do. But that applies only to religious scruples, and doubtless does not apply to a man who, owing to objections based on international law, does not co-operate in the war decided on by the political leadership. One would object that it is not his affair, not an affair of his conscience to examine the admissibility of the war, but that this is the duty of the responsible state authorities. According to continental law, one would not even stop to consider such an excuse for refusing obedience.
Furthermore, I regard that ironical question to the generals merely as an attempt to humiliate them morally, but not as an accusation touching the subject of this Trial. The International Military Tribunal is not a court of honor which decides about dishonorable actions of the accused, but a criminal tribunal which has to judge certain actions which have been declared criminal by the Charter. It appears to me that the Prosecution forgot this fact on several occasions.
Before I pass on to the last point, the 11th of the Anglo-American trial brief, regarding crimes against the laws of war and humanity, I must make a few preliminary remarks.
[sm type begins]First, a misunderstanding has to be cleared up. The Prosecution says that we wanted to wage a total war, thereby meaning a war which is waged by all methods, regardless of whether legal or illegal, in short, a war where the laws of war are ruthlessly violated. I was not a little surprised when I read this. We have indeed spoken enough about total war during the past 7 years, but we understood something quite different by it. We describe as total war a war waged with all the means of the spirit, of manpower, and of material, and mobilizing all the nation’s forces; that is, a change-over of the entire economy to war needs, conscription of every single man capable of bearing arms, and of every single able-bodied woman, and if possible also of the young people. German soldiers from the East, who were familiar with Russia’s example, jeered when we spoke of “total war”; had we not still three greengrocers on every street and tobacconists at every corner? That was no total war, they said, when so many workers were enrolled for nonmilitary purposes, when whole factories were still producing articles which had no connection with the war, and so forth. The war really had to be a total war, they said, if it was to be won, but that has nothing at all to do with contempt for the laws of war. I have never heard the word interpreted in this sense.[sm type ends]
[sm type begins]In the Anglo-American trial brief, Jodl is charged altogether with three documents (They concern the Commando Order and the capitulation of Leningrad. A fourth, 886-PS, was subsequently withdrawn by the Prosecution). The French and Russian prosecutors have, however, made further additions.[sm type ends]
Again we must turn first to the question: Wherein lay Jodl’s responsibility as Chief of the Armed Forces Operations Staff?
As we know, Jodl was primarily the adviser of the Führer with regard to the operational direction of the Armed Forces. This staff, however, had still other departments in addition to the operations departments of the three branches of the Armed Forces. When the operational tasks increased tremendously during the winter of 1941-42, a division of work was arranged between the Chief of the OKW and Jodl, according to which Jodl was only responsible for the military operations and the drawing up of the Armed Forces report, while the Chief of the OKW worked on all other matters in connection with the Quartermaster Department and the Organizational Department of the Armed Forces Operations Staff. It follows from all this that Jodl had nothing to do with prisoners of war, for which a special department in the OKW was responsible, nor with the administration of the occupied territories, and therefore had nothing to do with the seizure of hostages and with deportations. I shall discuss UK-56 later. Jodl did not have anything to do with police tasks in the zone of operations or in the rear military zone. The Armed Forces Operations Staff had no authority to issue orders; nevertheless, there are many orders which Jodl signed either “by order” or with his own “J.” We must now discuss these orders and the responsibility for them:
(1) There are orders which commence with the words “The Führer has ordered” and are signed by Jodl, or signed by Keitel and initialed by Jodl. These are orders which were given by the Führer orally, with the order to Jodl to draft them or put them into writing. With regard to responsibility, the same applies here fundamentally as applies to the orders signed by Hitler. For, in order to determine the responsibility, one must ask the question: What was the task of the person to whom the order was communicated? To what was he entitled and what was he obliged to do?
When the contents of the order were fixed in all their essential points, Jodl’s task was only a formal one: he had to formulate what was already established, to give it the usual form of a military order, without being allowed to alter anything in its contents. It must not be overlooked that the criminality of an order can only lie in its contents and that it was precisely the contents which a subordinate had no influence on here. In this case the reason for immunity from punishment for the subordinate does not lie in the fact that he was ordered by his superior officer to act thus or thus, but in his lack of competence to alter anything in the given facts. The Prosecution sees in the formulating of the order criminal assistance, but I find it impossible to agree with this: In the first place because it is an order of the Führer’s which creates law, so that criminal assistance is impossible; but even if this is not accepted, and a Führer’s order is, on the contrary, considered as illegal and as punishable, one can still not close one’s eyes to the fact that it was not Jodl’s business to examine the legality, but only to draw up the order in a technically correct manner, that is, in accordance with the will of the author of this order. If he did this and only this, he has no responsibility. Here the superior essentially gave the order himself, and the subordinate just put it into words.
Naturally one will wish to make a difference between a clerk being given the job of writing down the order, and a senior general. Although the latter may not have the legal, he will however have the moral duty of expressing his scruples to his superior. Jodl actually always did this; this was the least of his various methods of preventing an illegal move, to which I shall refer later.
(2) Another very frequent case is where Jodl signed his order “I.A.,” that is, “Im Auftrag” (by order), or initialed with his “J” orders signed by Keitel. Where does the responsibility lie here? We shall have to differentiate here between military and legal responsibility. From the military point of view, the superior, by whose order the order is signed, is responsible for it. Criminal law, however, lays the emphasis on the guilt, that is, it desires to establish the real culprit, not the person responsible from the military point of view. Since, however, the owner of the initial or the person signing “by order” is mostly the author of the document, it may happen that the latter is responsible from the point of view of criminal law, although he is not responsible in the military sense. For this reason it is necessary here to ascertain the actual share of both signatories in each case, and to determine culpability accordingly.
(3) Where Jodl did not sign his initial on the right below the last word of the document, but in the top right-hand corner of the first page, this means merely that the document was submitted to him for his information. It does not say whether he actually read it or approved it. Initials affixed in this manner do not, therefore, in themselves connect the person initialing the order with the contents from the point of view of criminal law.
(4) Jodl is also being charged with certain notes, partly so-called “memoranda,” partly handwritten remarks which he wrote on drafts or other documents. What is the position with regard to the legal significance of such notes?
The following statement has already been made in “Case Green” in connection with the tentative proposal to manufacture an incident. A memorandum contains the deliberations, statements of fact, and opinions of the author or of other authorities, et cetera. It is not an order, but the data on the basis of which the superior can decide whether he will issue an order and what order. As long as such a memorandum remains a memorandum, it is a purely internal affair without any significance in international law, and can never be a violation of the laws and customs of war. This was explicitly laid down as the prerequisite for punishment in Article 6(b) of the Charter.
The same applies to marginal comments which so often occur in the files of the OKW: “Yes,” “No,” or “That is impossible,” et cetera.
Admittedly, such memoranda or marginal comment may obtain legal significance. If a memorandum contains a proposal which is contrary to international law, and if it influences the superior in such a way that he issues an order with the same contents, this might possibly be regarded as participation in a violation of international law. If, however, no order is issued, or if an order is issued which is contrary to the proposal, then this proposal has remained without effect, a purely internal matter, and unpunishable under all circumstances.
Furthermore, a memorandum or marginal comment may be a guide to the writer’s sentiments. It may be gathered from it that he is inclined favorably toward international law or that he pays no heed whatsoever to considerations of international law. That may often be an important help in judging his character.
But we do not punish sentiments. Murderous intentions throw a bad light on the subject, but are not punishable. Caution must, of course, be exercised in the evaluation of such remarks. They are often thrown in thoughtlessly, without much aforethought, intended only for the reader in question.
If we take all this into account, several of the accusations which the prosecutors have raised against Jodl are eliminated in advance:
(1) His behavior on the matter of the low-flying airmen (Documents 731-PS, 735-PS). It was proposed to leave low-flying airmen who attacked the civilian population in a truly criminal manner, as happened again and again, to the lynch law of the people. Jodl was opposed to this idea, since it was bound to lead to the mass murder of all airmen who parachuted. Jodl raised objections in the form of marginal comments. He succeeded in sabotaging the order and the Armed Forces never issued it. This should be counted to Jodl’s credit, but it is apparently held against him that he did not use words of moral indignation in declining the proposal. Under the conditions existing at the time, that might even have had the opposite effect. In any case there is no crime here.
(2) The Commissar Order—Document 884-PS. On this horrifying draft order—it is only a draft—which had been drawn up already prior to the outbreak of the Russian war, Jodl made the comment that it would provoke reprisals against our soldiers and that the order should preferably be drawn up in the form of a retaliatory measure; that is, one should wait and see what action the commissars really took, and then perhaps take countermeasures. Again he is not given credit for the fact that he opposed it, but he is accused of the manner in which he opposed it. From a legal point of view that is meaningless. Later Jodl had nothing more to do with this matter. He did not even receive any communication regarding the success of his protests.
(3) The Geneva Convention—Document D-606. In this case Jodl did not only submit a memorandum, but also a statement in great detail, to Hitler, as he wished under all circumstances to thwart the latter’s plan of renouncing the Convention. There he mentions all the reasons against the renunciation, and reassures Hitler afterward by saying that it is possible to circumvent certain clauses even without a renunciation of the Convention. This again is not an action contrary to international law, but shows at the most sentiments opposed to international law. More correctly, it appears to do so. In truth this was nothing but accepted tactics for dissuading Hitler from his infamous plan. The renunciation did not take place. By taking offense at the unethical argumentation, one is overlooking the fact that Jodl, after 5 years’ experience, knew better than we do with what arguments it was possible to persuade his chief.
(4) The order regarding Leningrad—Document C-123. By letter of 7 October 1941 Jodl notified the Commander-in-Chief of the Army—and it is nothing but a notification—that Hitler had repeated an already previously issued order to the effect that an offer of capitulation was not to be accepted from either Leningrad or Moscow. Such an offer was, however, never made, and the order could not therefore have been carried out at all. The whole matter remained on paper, and, if only for that reason, does not constitute a violation of international law. This also can at the most be regarded as a guide to the author’s sentiments, but has no place in an indictment as a punishable action. The following should, however, be added in explanation of the matter. In this letter Jodl explained the indisputable dilemma which had caused Hitler to issue this order:
(a) An offer of capitulation was expected to be simulated. Leningrad, in fact, was mined and would be defended to the last man, as the Russian radio had already announced. The bad experiences as a result of delayed-action mines, prepared according to plan, in Kiev, Odessa, and Kharkov, had taught the German Operations Staff what things they must beware of.
(b) In addition there was the great risk of an epidemic, which would also arise in case of a genuine capitulation. Even if for that reason alone, German troops must not be allowed to enter the town. Acceptance of a capitulation was thus entirely impracticable.
(c) Added to that was the utter impossibility that the German troops should feed a half-starved city population of millions. The railway tracks had not as yet been adapted to the width of the German gauge, and even supplies for the troops caused much worry. And finally there was the military danger to the German operations, of which Field Marshal Von Leeb had complained to the Defendant Keitel.
All this required steps to be taken to prevent the population of the towns from fleeing westward and southward through the German lines, and rather to make escape to the East possible for them, indeed, even to encourage it. Hence the directive to leave gaps in the front lines in the East.
The fact that Hitler let it be seen how he intended to utilize the military situation of constraint for the benefit of his Eastern plans lies outside the military considerations. That has nothing to do with the order itself. The only question is whether the order was inevitable from a military point of view, and this in fact it was for the afore-mentioned reasons. Whether or not the order was given anew by Jodl could not alter the situation in any way.
I shall now discuss individual war crimes of which Jodl has been accused:
(a) The Commando Order.
Two orders of 18 October 1942, which were drawn up word for word by Hitler and signed by him, have played a special part in this Trial: the so-called Commando Order to the troops, Document 498-PS, and the explanatory order pertaining thereto given to the commanders, Document 503-PS.
According to their substance these orders lie outside Jodl’s sphere. That Jodl had anything to do with the matter at all was due to a special reason: The orders are directives for the execution of an order which had been issued by Hitler 11 days previously, which had also been drawn up by him personally and attached to the Wehrmacht communiqué of 7 October 1942. Jodl composed this communiqué as usual, including the supplement regarding the previous history of the order which Hitler afterward ordered to be added at the end of the communiqué. Hitler therefore requested him to work out drafts for the executive order. Jodl did not do so, nor did he submit to Hitler a report which his staff had drawn up on their own initiative. On the contrary, he had Hitler, with whom his relations were very strained at that time, informed that he was not in a position to comply with the request. Hitler then drew up the two orders himself.
Jodl is now accused of two things: He distributed the orders drawn up by Hitler through official channels, and he furnished the second, the explanatory order, to the commanders with a special directive for secrecy.
The order arose from Hitler’s excitement about two kinds of intensified warfare which made their appearance about the same time, in the autumn of 1942. One was the fatal efficiency of excellently equipped sabotage detachments which landed by sea or were dropped from the air. The other one was exceptional savagery in the fighting methods of enemies who acted singly or in small groups.
Jodl has described here how this savagery appeared from the messages and photographs of the troops. Experience showed that these methods, which violated all military ethics, were encountered especially among sabotage detachments. Hitler wished to counteract these unsoldierly methods and to stop the sabotage activity which was so dangerous to the German war effort, but he knew that sabotage could not be objected to on grounds of international law if carried out by regular soldiers. Hitler’s first order, the one contained in the Wehrmacht communiqué of 7 October 1942, is therefore quite simply explained: No mercy will be shown to enemy soldiers who appear in sabotage detachments and behave “like bandits,” that is, who place themselves outside the military code by their method of fighting.
The implementing directives should have defined the standard of unsoldierly conduct; Hitler’s implementing directive did not contain this definition; in the decisive points it was not definite at all, and this made it possible to apply the order in the sense of its undoubtedly justified fundamental idea, or not to apply it where there was the slightest doubt as to whether it was a case of “bandits.”
After all the reports which had been received about the enemy’s behavior, Jodl considered the basic principles of Hitler’s directive in the Wehrmacht communiqué of 7 October 1942 understandable, and thought that the directives given by Hitler in the Commando Order of 18 October 1942, which were in some points not clear, were in part admissible from the point of view of international law, and in part perhaps questionable from the same point of view. He says that he knows no more exactly now than he did then whether and to what extent these directives were contrary to international law. He says that one thing only was certain, namely, that the indefinite wording of the order made it possible for the commanders to apply the order only against people who had clearly placed themselves outside the bounds of soldierly behavior.
Jodl hoped that this would be the method applied and, as far as he could, he promoted it, as is proved by the evidence. He used all his power to help ensure that the practical application of the Commando Order was restricted to what was undoubtedly admissible. He took steps to insure, further, that the order would not be applied in large areas, that is, in the greater part of Italy, as soon as it was at all possible to wrest a local limitation from Hitler (Document 551-PS).
The directive for secrecy is interpreted as a sign of Jodl’s consciousness of guilt. But this secrecy had cogent reasons of a different nature. The enemy had to be prevented, as far as possible, from learning what serious damage was caused by the sabotage detachments which were operating in a bandit-like manner. Hence the special directive for secrecy only in the order (Document 503-PS) which gives information about the damage, while the main order was known to the whole world through the Wehrmacht communiqué. There was actually also a second reason for Jodl’s imposition of special secrecy on the explanatory order. He did not wish to see circulated the final decree, according to which captured Commando personnel were to be shot after interrogation. It revolted him as a human being to exclude unsoldierly fighters from the protection of the Geneva Convention, whether such a course was admissible or not according to international law. He hoped that the commanders would find ways of preventing inhuman acts in individual cases by means of a sound interpretation, and unauthorized persons were not to have knowledge of the decree.
The fundamental idea, which it was not necessary to exceed in practice, conformed to international law, which is only intended to protect men who are fighting as soldiers. This is, after all, the tendency of all the rules of war, which presuppose chivalrous combat. Something had indeed to be done to turn the use of such wild methods into a hazardous operation for the enemy. Nothing could be said against sabotage detachments which fought in a soldierly way. The enemy had only to desist from those methods which were in radical contradiction to international law.
The following must also be stressed: The transmission of this order does not prove responsibility for its contents. This is not like other cases where Jodl advised or drew up the order. On the contrary, he refused to draw it up. He merely distributed it, as instructed, through ordinary official channels. However, he is guiltless, not because—or rather, not only because—he was ordered to pass it on, but because he had no right to interfere with the order which was to be passed on. It was outside his jurisdiction, outside his rights, to examine it. His activity was purely technical, independent of the contents of the document. In theory he was not even obliged to read it. Let us assume that, after drawing up the order, Hitler told some lieutenant to telephone it to the commander-in-chief. Would it then have been the lieutenant’s right and duty also to examine the contents of the document with regard to its legal admissibility and to announce afterward: “I will not do this,” or “I shall have to consult the Hague Convention on Land Warfare first to see if I am allowed to do it”? The most grotesque consequences would ensue. And in this case the general is nothing more than a messenger who passes on what has been handed to him. Jodl’s answer to my question as to what would have happened if he had refused to pass it on, is characteristic of the military interpretation of the situation: “In that case I would have been arrested immediately—and quite rightly so.”
(b) Antipartisan combat. With regard to the war against partisan bands one might place charges against Jodl in only two cases . . .
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. President, the defense counsel names “bands” a patriotic movement comprising millions of patriots fighting against the German Fascist invaders. I consider that such an expression used by the lawyer should be considered as an insult to the partisans, who took a large part in defeating the Hitlerite invaders, and I protest against it.
THE PRESIDENT: The objection seems to be based upon some question of a Russian word which, of course, I don’t understand. I understand that there is no objection to the English word “partisan.” I don’t know what the German word is. But there doesn’t seem to be anything for the Tribunal to do about it.
DR. EXNER: Mr. President, no one on our side doubts that hundreds of thousands or millions of true patriots were among the so-called “bands.” I am using the word because it was the expression used officially in German orders. They mention “rules regarding bands” (Bandenvorschriften). We do not use the word “bands” in any derogatory sense. It is no discrimination when we speak of a “band,” or there need be no discrimination in doing so.
THE PRESIDENT: Is there a different German word for the English “bandit” and the English word “partisan”?
DR. EXNER: Yes. We, too, use the word “partisan.” For us that is a foreign word, but we also use it. And then we speak of “bands,” but not necessarily in a bad sense; and also of bandits, and these, of course, are criminals.
THE PRESIDENT: Why don’t you confine yourself to the use of the word “partisan”?
DR. EXNER: I can certainly just as well use the word “partisan,” Mr. President. I have merely used “band” because we have the “rules regarding bands.” That is the official expression which had been used, but I have no objection to using the word “partisan.”
THE PRESIDENT: If you are quoting an order, you must quote the order in the words of the order, no doubt.
DR. EXNER: Very well; then partisan warfare.
As far as partisan warfare is concerned, charges could be made against Jodl only in two cases:
(1) If he had permitted this warfare to take place in a disorderly and “chaotic” manner, as one witness has asserted, or (2) if he had issued combat directions, and if these had been contrary to international law.
But neither of the two is the case; Jodl was not personally responsible for this matter, but he was obliged to take an interest in the partisans when their number reached proportions which were beginning to interfere with the military operations. In 1942 he issued a directive regarding bands which was replaced by a second one in 1944. Therefore it cannot be said that no rules existed for this form of combat.
Nor can Jodl be reproached on the grounds of the second point. Although Hitler wished to have a type of warfare waged against these dangerous opponents which hardly took ethics and international law into account, Jodl—without his knowledge—issued a pamphlet about the combating of partisans which cannot be attacked legally. He went so far as to have partisans in civilian clothing treated as prisoners of war and to permit the burning down of villages to be carried out only on the orders of a divisional commander; this was intended to, and successfully did, prevent violations of Article 50 of the Hague Convention on Land Warfare (I refer to Document RF-665, Document Book 2, Jodl-44).
Jodl cannot be reproached, however, if the combating of partisans nevertheless degenerated badly. It is not a matter for the Chief of the Armed Forces Operations Staff to supervise the observance of his directions in four theaters of war.
(c) Burning down of houses in Norway (Document 754-PS). The Prosecution have accused Jodl during cross-examination of having ordered the destruction of Norwegian villages. This accusation refers to the teletype of 28 October 1944 to the command of the 20th Mountain Army. The Prosecution have a false idea of the role which Jodl had to play.
The military position then was as follows: The Germans were retreating to the not yet completed Lyngen line, and there was danger that the Red Army would continue to follow up during the winter and would destroy the much weaker German units if, while advancing along Reich Road 50, the only one that could be used at that time of the year, they found the homes and the population with their local knowledge available. Without these billets and the support from the population the Russian advance was impossible. The evacuation of the population and the destruction of the houses would eliminate the danger and, over and above this, it would make partisan warfare against the German troops impossible. The evacuation of the population was also necessary in the interests of the population itself.
In this situation Hitler issued, not on the advice of the soldiers but on that of the Reich commissioner for the occupied Norwegian territories, the decree which Jodl reported, “by order,” to the command of the 20th Mountain Army through the proper channels with all Hitler’s military and ethical considerations. One can really hear Hitler’s radical way of speaking.
Jodl who, as a result of a telephone conversation with the staff of General Rendulic, knew that the mountain troops did not need such a far-reaching military order and therefore did not want it, was against this order and—when he could not prevent it—sought for a solution which in practice led to the desired result. He wanted the order to be carried out by the troops only insofar as was absolutely militarily essential and in accordance with what was permissible under the Hague Convention on Land Warfare (Article 23g). He knew that his brother, who was in command in the North, thought exactly as he did; he knew the soldierly spirit of the mountain troops as a whole, and he knew in advance in this particular case that this order went too far for the troops. So that it should be understood correctly by everyone right from the start, he not only explained clearly that it was a “Führer order” in the introduction to the teletype message—the second paragraph expressly uses these words—but he let the soldiers know that the Führer had issued this order on the suggestion of the Reich commissioner and not on the suggestion of the military. Thus they were fully informed and they acted accordingly. No militarily unjustified demolitions occurred. Thus, among others, the three towns of Kirkenes, Hammerfest, and Alta were not destroyed. According to the literal application of the order they would have had to be destroyed.
(d) Deportation of the Jews from Denmark (Document UK-56): The Prosecution wants to make Jodl responsible for the deportation of the Jews from Denmark. It bases this accusation on a teletype message which Jodl sent “by order” to the commander of the German troops in Denmark. It is particularly difficult to understand this accusation by the Prosecution; for the different documents submitted by the Prosecution absolutely prove that the deportation of the Jews from Denmark was decided upon by Hitler on a suggestion from Dr. Best, therefore on a suggestion from the civil authorities and over the objections of the commander of the German troops, and that this task was assigned to the Reichsführer SS. The OKW was concerned with the whole affair only because at that time a military state of emergency existed in Denmark, so that the commander of the German troops, as the highest executive authority in the country, had to be informed by his superior authority of the action ordered by Hitler and assigned to Himmler, in order to prevent friction between the German authorities in Denmark.
On 20 September 1943 Keitel and Jodl had received the first intimation of the discussions between Hitler, the Foreign Office, and Himmler, in a teletype message from the German commander. Jodl had only one wish—to keep the Armed Forces out of this affair. His temperamental note on General Von Hanneken’s teletype of 3 October 1943 (Document D-647) also shows this. There he wrote: “...is a matter of complete indifference to us,” namely, whether the Reichsführer SS published the figure of the Jews arrested or not. It shows only too well that this has nothing at all to do with moral considerations, either in a positive or a negative sense.
The whole thing had nothing to do with the Armed Forces. But difficulties could arise as a result of Himmler’s action, as the Armed Forces were after all responsible for peace and order in Denmark. Such difficulties had to be headed off. The Wehrmacht could not alter the decision taken by Hitler in this police matter, and could not have altered it even if it had been competent to deal with this question.
Jodl simply informed the commander by the teletype message (Document UK-56) of the decision Hitler had taken in this police matter. And the Reichsführer SS, the Foreign Office, and the Commander-in-Chief of the Reserve Army were simultaneously informed by Jodl that he had let the commander in Denmark know. Now it was a clear case and all friction between German offices was excluded. That was all the OKW had to see to.
One cannot say that the information which Jodl gave made the execution of the order, which Hitler had decided upon apart from the Wehrmacht, any easier. It is clear to anyone who knows but a little of Hitler’s position of power that friction between German offices would in no way have prevented the thing being carried out, but would at most only have delayed it, and would certainly not have made it pleasanter for the persons affected.
May it please the Tribunal, there is an old saying in criminal law, a saying which I always find cited in foreign decisions too, that actus non facit reum nisi mens sit rea. Two things go to make a crime; the actus, the objective side of the crime, the deed, and the mens rea, the subjective side or guilt. The Prosecution is involved in an odd contradiction there; in some cases they stress the mens rea and fail to see that the criminal actus is lacking: I have shown this in the case of the above-mentioned marginal comments, which do not represent any illegal actions, but at most could allow one to infer an illegal frame of mind. In other cases the Prosecution look only at the actus, but does not ask whether a mens rea is also present. This second mistake is more dangerous, as here the outside of the crime is visible to everyone and it is often only a delicate psychological examination that can lead to the conclusion that there is no mens rea which corresponds to the actus. We will come to speak of this further on.
With regard to the action, what is meant is behavior declared criminal by the Charter. This behavior can consist of positive action or of omission. If a father sees his child drowning while bathing and does nothing to save him although he could have done so, we declare him guilty either of murder or of killing by negligence, according to the degree of his guilt. This commission of a crime by omission is important in this Trial too, for the Prosecution repeatedly stress that Jodl was present at this or that meeting, at this or that speech. On one single page of the Anglo-American trial brief the phrase “Jodl was present at...” occurs six times. What does this mean legally? Being present at and listening to things can be of great importance with regard to the evaluation of a later deed, for the doer cannot excuse himself by saying “I didn’t know” if he participated in the discussion of a plan. But mere presence does not in itself make one an accomplice. According to British law, even actual presence when a crime is committed makes one an accomplice only if encouragement is added. The same applies in German law. But where this is not involved, to lay stress on a person’s presence when a criminal intention was discussed can only amount to a reproach that “he knew about and tolerated it.”
Today we often hear this reproach of having tolerated crimes. Not only in this court. The whole German people are reproached for having tolerated a criminal regime and the annihilation of millions of Jews. Undoubtedly a crime can also be committed by tolerating things. But to make it a serious criminal charge, that is, one of intentional killing, two prerequisites must be fulfilled: 1) The subjective side: The perpetrator must have known that the victim would meet his death if he did not intervene; 2) he must have been in duty bound and able to prevent this death.
Mr. President, would this not be a convenient time to adjourn?
THE PRESIDENT: Yes.
[The Tribunal recessed until 1400 hours.]
Afternoon Session
MARSHAL (Lieutenant Colonel James R. Gifford): May it please the Tribunal, the Defendant Hess is absent.
DR. FRANZ EXNER: We are dealing with crimes which were through toleration committed. As far as Jodl is concerned, the following applies: What an officer or official is legally bound to do or to prevent depends on the regulations governing his jurisdiction, and we know how strictly Hitler insisted on their being adhered to, how sharply he managed to demarcate the spheres of action of the political and military leadership, the military and the SS. This indeed was the reason why Jodl took every opportunity to oppose the plans for extending the SS. For one thing was clear: Once something fell into the sphere of the SS, the Armed Forces lost their right to have any say in it. It does not therefore mean much, for instance, that Jodl was present at a discussion between Hitler and Dr. Best, at which one of the things discussed was terrorism in Denmark and the way to fight it (RF-90). The so-called “counter-murders,” if such were really discussed, were not heard by Jodl—he was not present throughout the session. His presence at this session does not mean much, for the whole matter concerned occupied territory and did not concern the Chief of the Armed Forces Operations Staff, who was brought into this meeting because of other matters discussed there. Thus, even if Jodl had heard more drastic things at that time than he actually did, any interference would have been out of the question and would have been rejected at once.
The reproach of having tolerated things also assumes that the possibility existed of preventing the crime. In the case of Jodl we are mostly concerned with Führer orders which it is said he should have prevented. But enough has already been said here about how matters stood with regard to influencing Hitler’s decisions. As long as his decision had not yet been made, good arguments could, under favorable circumstances, still impress him; but once his decision was made, it was irrevocable. Any opinion to the contrary is simply based on ignorance of the facts.
In the course of time Jodl did actually develop other methods for influencing decisions of the Führer, or at least for influencing their practical effects. He used dilatory tactics; either he waited until the matter would perhaps be forgotten, or else he created difficulties and raised objections, using a type of counterargument adapted to Hitler’s way of thinking—the order regarding commissars is a case in point—or he sent for opinions from various departments in order to gain time—as in the case of low-flying airmen. If the order had to be published, he often inserted in it on whose application the order had been issued, in order to show the commanders-in-chief that he did not identify himself with this matter—as in the case of the Norwegian villages. Or he tried to influence the practical application by overlooking failure to carry out the order—as in the case of the Commando Order, et cetera. But if one thinks that he could simply have refused to draft an order which was contrary to ethics, one has only to look at the Commando Order, where this method had exactly the opposite effect to what was intended.
I now come to the second part of the Latin saying I quoted: The deed in itself is no crime—nisi sit mens rea.
This is the last point in my statement and is at the same time the most difficult and the most important in a modern criminal trial.
“No guilt, no punishment”; this principle has been accepted in all civilized states since the Renaissance, even though different views as to the nature of guilt may exist in some places.
May I first make a short comparison between the Anglo-American legal view and that held on the Continent, for example in Germany. It is important when judging some cases.
I have already had to touch on an important point of the question of guilt when discussing aggressive wars. If one really seeks to make Jodl, the General Staff officer, responsible for waging these wars, it is at any rate of decisive importance to know how he viewed the whole state of affairs. If he believed, on the basis of the reports he received, that facts existed which—if they were true—justified the waging of war, then Jodl cannot be reproached with having knowingly waged an unlawful war. This applies even if his assumption was based on mistakes. Such mistakes exclude design. In a decision, Green v. Tolson, it is stated:
“In common law a reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has always been held to be a good defense.”
In another decision Regina v. Prince it is stated:
“It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present in the prisoner’s mind and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his act no criminal offense at all.”
In a third case, Commonwealth v. Pressby (an American decision) a good example is given:
A sentry shoots at his commanding officer who is approaching him, in the belief that he is an enemy. This last example is closely related to the wars of aggression which are to be judged here.
As a rule, ignorance of criminal law is no excuse under British law. However, the following principle is worthy of note:
“If, however, there is a doubt as to a question of law, a person cannot be convicted and subjected to imprisonment if he has merely acted on a mistaken view as to the law.”
Naturally a mistake about preliminary questions in civil law can also exclude criminal intention:
“If a person takes what he believes to be his own, it is impossible to say that he is guilty of felony.”
This rule could also be significant in our field, too, for mistakes regarding the regulations of international law.
Yet in this doctrine of mistakes I see a certain difference between it and German law, for in German law any mistake, even if resulting from negligence, excludes intention. In British law this seems to apply only to “reasonable” mistakes “unaccompanied by negligence.” If that sentry had shot too soon, without sufficient investigation, he would indisputably under German law only have to be sentenced for killing by negligence. In England and America, if I understand it correctly, this mistake by negligence would not be taken into consideration at all, and this soldier would have to expect a sentence for intention to kill. But this difference in the conceptions of law should not play any part in our case, for one can hardly reproach Jodl with having come to his interpretation of the situation on the basis of a hurried and careless examination of his reports.
There is one more point of divergence in the law.
[sm type begins]I read in an English decision that intention and deed must coincide in order to constitute a crime, but we take a more precise view of this coincidence. According to German law, a person can be punished for intentional killing, only if he foresaw the fatal results and wished them. On the other hand in the decision already quoted in Regina v. Prince it is stated: “If a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk.”[sm type ends]
[sm type begins]According to German law this man could be punished only for aggravated bodily injury, never for intentional killing (Paragraph 226 of the German Penal Code). That the “result,” which may rest on chance, should turn the act into murder—is rejected by us as unjust.[sm type ends]
I will not read what follows, in order to save time, and I wish to omit Paragraph 1, on Page 110.
Lastly, in a third point, which is of importance here, the views again agree. Every serious crime must be intentional, although the intent need not be linked with the consciousness of doing something criminal, but with the consciousness that it is not right to act in such a manner.
“To constitute a criminal act there must, as a general rule, be a criminal intent. The general doctrine is stated in Hale’s Pleas of the Crown that ‘where there is no will to commit an offense, there can be no transgression.’”
In German law it has been argued, for a long time whether the perpetrator must know that he is acting in direct contravention of the law, or whether it is sufficient for him to know that he is doing something contrary to his duty. The prevailing opinion, which has also been taken over in the drafting of our German Penal Code, states: “The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense.” I was greatly interested to find the same idea, expressed in almost the same words, in a British decision Green v. Tolson:
“It must at least be the intention to do something wrong. That intention may belong to one or another of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed.”
Thus, according to English law, knowledge that it is not allowed to act thus is one of the elements of intent:
“There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offense.”
This decision quotes some exceptions to this principle, which do not interest us here. They concern bigamy and seduction, where positive provisions of statute law are involved, as well as certain offenses against public order, et cetera.
Our question now is: Was Jodl aware of wrongdoing when he prepared and passed on the various plans and orders of which he is accused today? According to my innermost conviction: No.
The only evidence which the Prosecution have produced is the reproach: Why, if he had a clear conscience, was he in so many cases so intent on observing strict secrecy? There is an answer to this: In military questions there are manifold reasons for not allowing certain things to become known. This was so before the war and all the more so during the war, and even now after the war deep secrecy shrouds the atom bomb, to cite an example. Such observance of secrecy need not be connected with a guilty conscience. And if Jodl says he had arranged that one of the two Commando Orders should—apart from other reasons—be kept secret because of its obnoxious final regulation, he did so, presumably, for the sake of the honor of the German Armed Forces, and certainly not because he thought that he himself was doing something wrong by passing on the order, an order which he had after all not drafted himself, and for which he was convinced he was not responsible.
This last fact must be stressed. It is of general importance. In all Jodl’s military preparatory work, whether he was making plans for wars, or drafts of orders, or memoranda, the point is not merely whether he knew that this war or that decree was contrary to law, but decisive is whether he knew that by his co-operation, by his actions, he was doing something wrong. That Jodl did not have a bad conscience seems to me to be clearly shown by the fact that before his capture he had 3 weeks in which to burn most of these documents but did not do so, because he was convinced that he had nothing to conceal.
When drawing up these orders, he was not conscious of wrongdoing. He could not be, if only for two reasons: On the one hand, because he felt himself bound by the Führer’s orders, on the other hand, because—apart from a concrete order—he was convinced that in his position as Chief of the Armed Forces Operations Staff he was in duty bound to act in this way. Let us look into this more closely:
I will not speak any further about the order and its legal meaning. One point, however, appears to me to be in need of elucidation: Mr. Justice Jackson quoted Paragraph 47 of the German Military Penal Code to prove that according to German law an order by a superior officer does not excuse the subordinate.
Incidentally, it is striking that in the case of the conspiracy British-American law is brought in, whereas in the case of this order, German law is drawn on—in each case according to whichever is the less favorable to the defendant. I do not know, however, whether Mr. Jackson would have referred to Paragraph 47 of the Military Penal Code, if he had known how it was interpreted by the highest courts, and what the real legal situation in Germany was.
It is first of all necessary to note that at the beginning of Paragraph 47 there stands the principle: “Should, by the execution of an order in the course of duty, a criminal law be infringed, the superior officer issuing the order is alone responsible.” And now comes the exception which practice has cut down to the absolute minimum for the sake of maintaining military discipline. It is based on the point of view that a subordinate is subject to punishment as a participant only if the order was not binding on him—for instance, because of its nature it did not come within the framework of Armed Forces’ tasks—and if the subordinate was aware that the action ordered had a crime or an offense as its aim. The offense must thus be directly intended by the person issuing the order, and the subordinate must be certain of this. That he could and should have realized this is not sufficient. And, even if the subordinate is responsible, in a case of slight guilt punishment may be waived.
The whole ruling is very much contested, but one can see how the courts have limited its application in order to shield the obedient soldier as much as possible. Actually, cases of this kind were very rarely punished. Jodl does not remember a single case in his 30 years of service.
I must insert something here, because a few days ago Mr. Jackson made a late presentation of a document which concerns this problem (3881-PS). These are statements made by Dr. Freisler, as President of the People’s Court, during the trial of those who took part in the attempt on Hitler’s life on the 20th of July 1944. Freisler was always considered in Germany as a caricature of a judge. His undignified shouting in that murder trial was reproduced here before us by the Prosecution a few months ago in a sound film. What this legal expert meant to say—as far as the meaning of his remarks, torn from the general context, can be understood—was: When an officer ordered a subordinate to give assistance in murdering Hitler, this order did not justify the one who obeyed.
Certainly, Freisler’s authority is not required to establish this. If ever a military order was issued which was outside the competence of the Armed Forces and was, therefore, not binding and did not exculpate, it was the order to murder the head of these very Armed Forces. But how an order by some officer to murder the head of the state can be compared with the order of the head of the state to commit an act contrary to international law is incomprehensible to me. However, I will not dwell any longer on this.
It will not be possible to understand Jodl’s position or form a correct judgment of his actions if we do not visualize clearly the two men who here confronted each other. It is very easy for the Prosecution. Were Hitler still alive, he, as the head of the major war criminals, would sit in the first place on the defendants’ bench and would be considered as the prime agent and source of all the terrible things that have happened. Now that he is dead, his person is belittled when judging the other defendants, and their conduct is treated almost as if he had never existed at all. This despot, this infernal power, as Jodl called him, cannot be passed over as a negligible quantity when the question is to judge justly the commissions and omissions of his immediate entourage. During these months I have again and again been reminded of the combination of genius, madness, and crime which was once depicted by the discerning Cesaro Lombroso. In history it is success that has the last word on the worth and worthlessness of man. Therefore, history’s verdict on Hitler will perhaps be a crushing one. But one must not forget his beginnings; when one compares Germany’s position toward the end of 1932 with that at the end of 1938, one is not surprised at the incomparable prestige which he had at the very time when Jodl came into close contact with him.
Jodl now stood before this man. Jodl, an honest soldier, extraordinarily gifted, but never striving to be anything but a conscientious soldier; a sober realistic mind, ill-disposed toward all diplomacy, all political machinations, brought up in the ideals of the German officer corps—bravery, faithfulness, obedience—trained according to the 100-year-old tradition of the German General Staff, who knew only fulfillment of duty, selfless work, and ever more and more work.
That this man, working at Adolf Hitler’s side, was bound to come under his influence is self-evident. One must consider the time at which this took place. There could of course be no relationship of mutual confidence, but Jodl was also not the man to submit without opposition. There were clashes and explosions enough. Jodl was regarded as the man who dared to oppose the Führer more than anybody else. He could, as Kesselring reported, stand up against him with a curtness which at times reached the limits of what is militarily permissible. For this very reason I do not believe that it is merely the receiving and obeying of commands which can make us appreciate fully Jodl’s behavior during these years. It was much more the wider conception of the fulfillment of duty: Complete devotion to that which had been assigned to him as his task at a critical time. One should realize and appreciate the situation in which Jodl found himself.—His country’s struggle for existence, the demands of a war which was becoming increasingly horrible, and at the same time the views of his Supreme Commander which disregarded all traditions about what was permissible and not permissible in a war. It was quite clear that Jodl was bound to come into conflict—into conflict with Hitler and into conflict with himself.
Permit me to make a comparison: You, Your Honors, as you have already informed us, feel yourselves bound by the Charter of this Tribunal. Perhaps some of you have been assailed by doubts as to whether all the conditions of this Charter conform to international law as at present understood and to the generally recognized principles of law. But you have rejected such doubts, since you, as judges, consider yourselves bound by the rules which your four governments have agreed upon.
Jodl, as a General Staff officer, may have felt himself bound in a similar way to support the orders of his Supreme Commander, even if doubts regarding their admissibility in international law may have assailed him here and there. But he considered himself bound by his office to draw up plans for war without examining whether and under what conditions they were carried out; he had to formulate and issue thousands of orders, even if he disagreed with some of them. Where neither remonstrances nor delaying tactics had any effect, he had to submit. As a General Staff officer he had a purely auxiliary function. That he might be doing wrong while fulfilling this function according to the best of his knowledge and conscience never even occurred to him.
It is said now: Jodl should under no circumstances have taken any part in this or that affair. What should he have done? If one reproaches somebody with having acted in a certain way, then one must be in a position to state what action would have been right in that situation. It is now said that he should have resigned. This, of course, would have been an easy way out. That course could be taken in peacetime, but in wartime it was quite different.
Jodl tried repeatedly to get out of the OKW and to be ordered to the front, but in vain. Requests to be relieved of his post were altogether futile unless the Führer desired it, as in the case of Von Brauchitsch and Von Leeb. In wartime he strictly forbade his generals to apply for release. That was desertion he said. The private in the front line could not resign when he found things uncomfortable. The general, too, had to remain at his post. In 1944 this order was repeated in writing; it was still more peremptory and the reasons more potent. If a general wanted to quit for reasons of conscience, he was told that the Führer himself bore full and sole responsibility for his orders; all that the generals had to do was to be responsible for their strict execution. Resignations on such grounds were not soldier-like and would be criminal.
Therefore, Jodl could not resign. Should he perhaps have simulated illness? This also is desertion and in wartime a crime punishable by death. Is it possible seriously to expect an officer, brought up in the good old traditions, to betray his country in time of need like a coward—his country, to which he had devoted his whole life—which would mean that he would not be able to look any new recruit in the face? I do not believe so.
Thus, there was only a third way out: Murder and revolution. In peacetime this would have meant civil war—in wartime, the immediate collapse of the front and the end of the Reich. Should he then have cried: Fiat justitia, pereat patria?
It really appears that the Prosecution holds the view that such conduct could be demanded of the defendants. An astonishing idea! Whether murder and treason can ever be justified ethically had better be left to moralists and theologians. At all events, jurists cannot even discuss such an idea.
To be obliged on pain of punishment to murder the head of the state? A soldier should do that? And in wartime? Those who have committed such crimes have always been punished, but to punish them for not doing so would indeed be something new.
Naturally there are limits to legal obligations for jurists too; but in a state of conflict which offers only this kind of solution, the old saying applies: Ultra posse nemo obligatur.
Jodl was no rebel. His conscience told him: The fatherland is in need. Every man to his post! Jodl’s place was at the head of the Armed Forces Operations Staff. He did not enter this post of his own free will; he did not keep it of his own free will. It was a hard duty. He fulfilled the task which this post imposed on him according to the best of his ability and conscience—up to the bitter end.
Your Honors. Allow me in conclusion to recall a personal reminiscence, which throws more light on Jodl’s personality. I made his acquaintance about 20 years ago in the house of his uncle, the philosopher Friedrich Jodl, in Vienna. There I had a conversation with him on training for the career of an officer. The young captain spoke with such moral earnestness, and what he said was so far from anything that could be called militarism, that I have always retained it in my memory. I then lost all contact with him until last autumn, when I received the surprising summons to defend him here. My first thought was: “This gallant soldier must be helped.” But I doubted whether I should undertake this, as I am not a professional attorney. But when I met him in the courthouse for the first time, he said something to me which swept away all my doubts: “Rest assured, Professor,” he said, “if I felt a spark of guilt in me, I would not choose you as my defense counsel.”
Your Honors, I believe that these are the words of a gentleman, not of a criminal. I ask that Generaloberst Alfred Jodl be acquitted.
THE PRESIDENT: I call on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): Mr. President, members of the Tribunal:
Nuremberg, the old, venerable, imperial city, which has given not only to the German nation but also to the world one of its most significant painters, Albrecht Dürer, an unsurpassed sculptor, Veit Stoss, and the Meistersinger Hans Sachs, has, in its ruined state become the stage for the greatest criminal trial which legal history knows. Not only has Nuremberg seen within its walls the pomp of the old emperors, but the rallies of the NSDAP also took place there, year after year, as a part of that propaganda machine which knew how to put into motion millions of people by a gigantic, but also diabolical stage management, with flags and standards, drums and fanfares under the slogan of equality of rights for Germany in order finally in its extravagant aims, to lead a nation which has given humanity so much that is good and beautiful to the verge of ruin.
We have heard the Indictment here which tries to prove in a comprehensive way that these men had conspired to conquer the peaceful world by waging wars of aggression. It was said that the waging of these wars not only violated the treaties which were supposed to prevent war and, furthermore, the rules for a humane conduct of the war but had also trodden under foot the basic rights of humanity in the most contemptible way. We saw for months how mountains of documents and a long chain of witnesses were supposed to confirm the Indictment and, on the other hand, how the Defense as keeper and servant of the law was striving to help the Tribunal discover the truth. But in the gallery the representatives from all parts of the world were seated, and only too often the whole world held its breath, when there was a break in the dark fog banks which again and again gave us a glimpse into the depths of unsuspected crimes. But outside, before the gates of the courthouse, stands a deeply moved German people, whose former leaders the defendants were. But regardless of how the trials will end, the Defense must be given credit for one thing—namely, that with regard to the question of the guilt of the German people, one will never again be able to talk about complicity or collective guilt—perhaps rather about collective disgrace, because they were German men under whose leadership crimes of the most horrible kind were committed. The curtain now rises on the final act of this world tragedy, to give a hearing once more to the Defense and then to pronounce a sentence which must not only conform to fundamental legal principles but also insure that crimes such as the Prosecution describe will forever be prevented.
On 20 November 1945, at the beginning of the Trial, the presiding judge stated that this Trial is of great importance for millions of people in the whole world. For this reason, he said, everybody participating in them has the solemn responsibility of fulfilling his duty without fear and without favor to anybody, and according to the principles of law and justice.
This duty was often an almost too heavy burden for the Defense Counsel, not because of the extent of the material for the Trial, not because of the abundance of new legal questions, but because things were revealed here which are so monstrous and abysmally degrading that a normal brain would reject even the possibility of their existence. In so saying I am not thinking of the prepared human skin, of the pieces of soap made out of human fat which were shown to us; I am not thinking of the systematic way in which millions of innocent people were tormented, tortured, beaten, shot, hanged, or gassed. No, I am thinking of the many touching individual pictures which have made the deepest impression on me personally and probably also on everyone else.
[sm type begins]Once more, I hear the report of the village priest Mogon regarding the shooting of the hostages from Choisel Camp in Châteaubriant:[sm type ends]
[sm type begins]“My father, we have not your religious conviction, but we are united in the love for our native country. We wish to die so that the French people will be happier.”[sm type ends]
[sm type begins]I visualize the march of the Jews from Dubno which slowly approaches the place of execution, how the individual victims help each other to undress, how the little boy persuades his parents to die bravely, and how they carry an old woman whose lameness prevents her from taking the few steps to the pit where the deadly bullet from the submachine gun awaits her. I once more hear the testimony of the French journalist, Marie Claude Vaillant-Couturier, who describes in deeply touching words how the sacred experiences of maternity and female honor were shamelessly trampled under foot in the extermination camp.[sm type ends]
Auschwitz alone has swallowed up 3½ million people—men, women, and children. That is really the most terrible weapon of the Indictment, that the spirits of all these innocent victims stand beside the prosecutor, admonishing and demanding revenge. But I do not stand alone, either. The many innocent war victims on the German side, women and children who have fallen victim to the terror attacks which violated international law, in Freiburg, in Cologne, in Dresden, in Hamburg, Berlin, and Vienna, and in almost all other German cities, stand beside me. My comrades from the Armed Forces, who, as honest and decent soldiers, have sacrificed their lives for the fatherland by the hundred thousand, young and old, faithful to their oath of allegiance, also stand by my side.
But even if they did not exist, if the defendant stood quite alone before his judges, then even more is it my sworn duty as a lawyer to stand helpfully by his side and be his shield and defense, and, faced with the mass of the most terrible, incriminating documents, to call to you, Honorable Judges:
Do not judge in wrath, but as our Austrian poet Wildgans, who was a judge himself, wrote in the album of a young judge: “Suche das Edelreis, das unter Dornen blüht...” (Seek the precious shoot which grows among the thorns).
Before I consider the Indictment in its individual points, I should like to sketch in a few short words the personality of the defendant. The words in Schiller’s tragedy “Wallenstein” apply to him, too: “Von der Parteien Hass und Gunst verzerrt, schwankt sein Charakterbild in der Geschichte” (Torn by the hatred and favoritism of parties, his character wavers irresolutely in history).
The Prosecution in the trial brief call him a cunning, coldly calculating, political opportunist who had a mission before his eyes. It said it is notoriously known that he misused his position as minister in order by his double-dealing to deliver Austria to the conspirators; he has committed atrocities in Poland and in the Netherlands in cold blood, and has trampled upon the rights of small nations to freedom of religious and political thought, regardless of constitutional obligations.
George S. Messersmith judges similarly in 1760-PS, when he says that according to reliable information he received, Dr. Seyss-Inquart, with whom he himself had little personal contact (the defendant denies ever having met Messersmith), was completely insincere in his dealings with his friend Chancellor Schuschnigg. Incidentally, the statement that Schuschnigg and Seyss-Inquart were friends is incorrect. Messersmith had left Vienna in the spring of 1937. As all witnesses testify, Dr. Schuschnigg had at that time just become acquainted with Seyss-Inquart. But Messersmith added in his own words that there is only one thing which may be said in favor of Seyss-Inquart at that time: That he may have believed the German protestations which were made to him that Austrian independence would be respected.
[sm type begins]Mr. Gedye who was the Vienna correspondent of English and American newspapers for many years has also mentioned Seyss-Inquart in his book, Austria’s Suicide, and has said about him: “He is a well brought up National Socialist, which is twice as disturbing, a young, intelligent lawyer of nice appearance and good manners, who clearly emphasized that he is opposed to the throwing of bombs and to noisy demonstrations, and who preaches in drawing rooms regarding the superiority of intellectual weapons over rough, material methods.” Martin Fuchs, the author of the book quoted by me, A Pact with Hitler, says concerning the defendant, “Seyss-Inquart was known to the public as a National Socialist but also as a practicing Catholic and representative of an Austrian Nazi movement which was to keep Austria on the side of the Reich.” In Austria they now condemn the defendant because he brought about the German entry by his telegram. Many a friend of mine who has returned from Dachau and Mauthausen has, therefore, reproached me for defending before the Tribunal the man who betrayed our country. Dutchmen whom I questioned concerning the personality of the defendant told me that the Dutch people hated him as Hitler’s supreme representative in the country, especially since he had stated at the beginning of the occupation that he came as friend of the Dutch, and that he had deceived them in this respect.[sm type ends]
[sm type begins]I myself knew the defendant in Vienna only as a professional colleague. He was generally considered as an able and decent lawyer, and politically he was in close touch with Nationalist circles, without being outstanding in any particular manner. But in the many discussions which I have had with the defendant in the course of the trials, I have tried to form an exact picture of his personality. We often talked together about our families, our common experience at the front, especially in the Tyrolese mountains, where he was a brave and cautious company leader, and where he was wounded. He also liked to talk about daring excursions into the mountains, but he liked best to talk about music, and I have often thought that a man who could speak so sensitively about Bach, Mozart, Beethoven, and Bruckner cannot be a monster and above all not a cruel cold-blooded criminal, because love of nature and music can find an abode only in the heart of a good person.[sm type ends]
His political program was the Anschluss idea, and, considering his origin, this is also easy to explain. His real home is the old mining town of Iglau, a German-speaking island in a Slavic sea. At an early age he became aware of the small-scale battle which was being waged by two hostile nations. Deeply moved, he has heard that last year the storm of the times swept over his home town too and that Iglau, which had been German for 800 years, has ceased to be German. Therefore, in judging the defendant, we should not forget that it is the Germanic borderlands that have always experienced the greatest national distress and held more strongly and fervently to the idea of the great German fatherland than the nationals of the rest of the Reich, lulled into self-complacency born of self-confidence. Thus, it is no accident that leading men in the Anschluss movement, whose names stand out in my document book, came from the Sudetenland. Doctor Otto Bauer, the late leader of the Socialists, comes from Untertannowitz in Moravia—that is, from German Sudetenland.
The last time I saw the defendant was in the autumn of 1938, and I did not meet him again until I saw him here in prison. Therefore, I also asked one of his collaborators in Holland, who enjoys the respect of the Dutch, and who was no National Socialist, and who as a senior judge can be relied on, for an impartial opinion on the personality of Dr. Seyss-Inquart. He writes:
“In his work, his clear, keen thinking and the systematic manner in which he applied his many-sided talents in carrying out his duties struck me at once as his outstanding qualities.
[sm type begins]“Unlike many of his equals he never dulled his sense of reality by fanatically preconceived notions but, as is fitting for a conscientious politician, always strove to approach things soberly and without prejudice and to see them as they really were. That also is why he developed the ability and inner composure to listen calmly to other people, including his subordinates, to deliberate with them and to yield to their opinion... Social life in his house was on a dignified and unusually high level. The atmosphere of the house revealed at once that the host was a man of culture. He knew no hate, and whenever he thought he saw hate approaching, he never answered with hate or revenge, but only with measures deemed appropriate for the prevailing situation.[sm type ends]
“It is the great tragedy of his life and work that in the person of Hitler and several persons among those who were his closest co-workers, elements crossed his path which were stronger than he...
“As an intellectual, spiritually cultivated person he became immediately suspect to the main forces in the Party bureaucracy surrounding Hitler—Bormann and, in the SS administration, Himmler—although he wore the Golden Party Badge of Honor and occupied a high honorary rank in the SS. He continued to be the young Party member who came from the ranks of the intellectuals, who were always regarded with mistrust. For those elements he was too ‘soft.’ He nevertheless hoped that he might succeed in preventing independent sections in the Reich from working their way into his sphere of action, as he himself was gradually winning the Führer’s confidence. As I have already said, his relation to the Führer was to be his fate.
[sm type begins]“The Führer’s amazing knowledge, his never-yielding, all-conquering energy and his outstanding successes in the field of domestic as well as foreign policy during the first years after the so-called seizure of power, drew Seyss-Inquart—as also happened to outstanding men in foreign countries—under Hitler’s influence. He became a loyal follower of Hitler and sincerely believed that in the latter love for the German people was the prime motive of his actions. He also believed—in any case for some time and during the extreme distress of the German people—that he must continue to cling to Hitler even though the recognition of his weaknesses and faults dawned upon him...[sm type ends]
“However, I am firmly convinced that he, like so many of our people, was more an unwitting victim than a willing tool of the demoniacal power of Hitler...”
This is the opinion of an upright German judge.
The Prosecution base the Trial on the concept of conspiracy, in an endeavor thus to forge a chain around the defendants to link them all together in one common responsibility. My learned colleagues have already spoken extensively of the concept of conspiracy and its consequences in this Trial. To repeat these statements would be to carry coals to Newcastle. But because this is the leading theme of the Trial, and because it seeks to shift the responsibility for the world-shaking events to my client in particular, I should like to submit to the Court, a few additional ideas on this subject.
When turning over the pages of history we often come across stories about men who combined to overthrow a ruler who was disliked, or a system that was hated, and to seize power for themselves. All these cases are lumped together under the general, all-embracing term “plots.” In the book published in Paris, entitled The Technique of the State Plot, Malaparte, an Italian, attempted to describe the technical methods applied in plots and revolutions, from Catiline to Hitler and Mussolini. Even this survey of technique will be sufficient to show how unjustified it is to dub all these undertakings “plots,” if it is intended to encompass within this term a definite concept such as is known in penal law. In any case it is not possible to classify all these things which in popular terminology are called “plots” under the heading of “conspiracy,” as is done by the Prosecution. When Guy Fawkes and his companions at the time of James I tried to blow up the English Parliament in the so-called “Gunpowder Plot,” perhaps this was a real conspiracy. To the present day the English people on the 5th of November of every year celebrate with fireworks and bonfires and the burning of a straw dummy the anniversary of the day which saw the fortunate prevention of the plot. It would be a mistake, however, to term any kind of co-operation for political aims a conspiracy, because—and it is particularly important to repeat and stress this—the vagueness of colloquial usage has always made it possible to use the word “conspiracy” when talking of political struggle, and thereby justify, because of the lack of adequate legal grounds, the destruction of political opponents.
[sm type begins]Because in this Trial Holland is of particular interest to me, I wish to cite two illustrations from her history. The one is to recall Holland’s fight for liberty against Philip II, which two of our greatest poets—Goethe in Egmont and Schiller in his Geschichte des Abfalls der Vereinigten Niederlande—chose as subjects for their dramatic representations. Schiller writes about the heroic death of the two brave Dutchmen, Egmont and Horn. The insulted ruler had pronounced both counts guilty, because they had encouraged and assisted in the outrageous conspiracy of the Prince of Orange and because they had protected the confederate noblemen and had badly served the king and the Church in their governorships and other offices. Both were to be beheaded in public, their heads were to be mounted on spears and were not to be removed until so ordered by the Duke. All their possessions, feudal tenures and rights were confiscated by the Royal Treasury. The verdict was signed by the Duke alone and his secretary Pranz, and nobody took the trouble to obtain the consent of the rest of the criminal counsellors...[sm type ends]
[sm type begins]Two decades later during the well-known period of 1588 to 1598, the young Dutch State had been given its final safeguard, thanks to the joint leadership of the Republic by the Raadspensionaris Johann van Oldenbarnevelt as statesman and through Maurits van Oranje Nassau as Field Marshal. But the opposition between these two men was to lead to a tragic result. Both, the highly respected, aged Raadspensionaris Oldenbarnevelt, as well as his friend Hugo Grotius—the father of international law—were imprisoned because of conspiracy. While Grotius saved his life by escaping from his prison cell in a bookcase, Oldenbarnevelt’s head fell because—so the verdict said—he had deeply afflicted the Church of God. The unity of the State, however, had been saved. Spain’s dominion over the seas passed to the small Republic of Holland.[sm type ends]
For the French prosecutor I should like to cite from the history of his country, France, an example of an obviously unjustified accusation of conspiracy. Louis XVI was accused of conspiring against the nation and was found guilty. Citizen De Sèze, on 26 December 1792, in the first year of the Republic, conducted his defense at the bar of the National Convention. His plea was probably one of the most moving ever delivered, a discourse in which the defense counsel had to deal at the same time with another danger of criminal jurisdiction arising from political causes or political passions—namely, against a violation of the legal principle nullum crimen et nulla poena sine lege. Undaunted and unafraid, he declared: “Where there is no law which can serve as a precept, and where there is no judge to pronounce the sentence, one should not have recourse to the general will. The general will as such cannot speak either about a man or about a fact. But if there is no law according to which one can judge, then it is also not possible to give judgment, and there can be no sentence.”
We still find today this principle nullum crimen nulla poena sine lege firmly rooted in almost all law books. We find it in the German and in the Austrian Penal Code; and we also find it in French law, in Article 4 of the code pénal, which states: “Nulle contravention, nul délit, nul crime, ne peuvent être punis de peines qui n’etaient pas prononcées par la loi avant qu’ils fussent commis.”
The American weekly Time wrote with justice in its 22d Number, 26 November 1945, in an article: “Whatever laws the Allies attempt to establish for the purpose of the Nuremberg Trial mostly did not yet exist at the time when these acts were committed. Since the days of Cicero, a punishment ex post facto has been damned by the jurists.”
That this principle has not lost any of its significance even today while this Trial is still going on, but on the contrary has kept its full meaning, is shown by the fact, and I should like to remind the French prosecutor again, that the French Constitution which was submitted to the National Assembly on 19 April 1946, establishes specifically as a statute of the Rights of Man in Article 10:
“The law has no retroactive force. No one can be convicted and punished, except according to the law which has been promulgated and made public before the deed which is to be punished. Every person accused is considered under reservation as innocent until he is declared guilty. No one can be punished twice for the same deed.”
What is the Right of Man for the French, must necessarily be the Right of Man for the German.
[sm type begins]This principle is not only rooted firmly in national law, but also in international law. When after the first World War the Allies demanded from the Netherlands the extradition of Emperor Wilhelm II who had found sanctuary there, the Dutch Government refused the surrender of the emperor with the following words:[sm type ends]
[sm type begins]“Article 227 of the Treaty of Versailles has come into force on 10 January 1920, and it does not appear on the list of punishable acts which are considered in Holland’s laws or in the treaties which Holland concluded. This new crime was also not contemplated by the penal legislation of the countries which demand the extradition of the emperor.”[sm type ends]
[sm type begins]A. Morignhac and E. Lemonon, Droit des gens et la guerre de 1914-18, Volume II, Page 572 express themselves similarly:[sm type ends]
[sm type begins]“Nul ne peut être puni autrement qu’en vertu d’une loi auparavant adoptée et publiée, pour cette raison, ce qu’on exige de la Hollande c’est de collaborer à un procès contraire à l’idée même de la justice.”[sm type ends]
When in the year 1935, the idea of analogy found its way into German criminal law, this innovation met with severe criticism in juristic circles also outside Germany. The second International Congress for Comparative Jurisprudence held in The Hague in the year 1937 formulated a resolution against analogy in criminal law. In this resolution, the congress expressed itself in favor of the principle nulla poena sine lege. (See: Voeux et Résolutions du Deuxième Congrès International de Droit Comparé, La Haye, 4-11 Août 1937.)
From the afore-mentioned statements it follows that it is legally inadmissible to apply principles in this Trial which lack a legal basis. Continental law does not know the concept of conspiracy. Austrian law, which could come into question as the national law for my client, does not know this concept either. There are at best very small similarities if we point out that the Explosives Law of 27 May 1885, Article 5, already declares the concerting together for the execution of a crime with explosives as punishable. Article 174, IC of the Penal Code makes theft a major crime if the thief commits theft as a member of a gang which has banded together for the common commission of robbery. German law recognized the responsibility under the Penal Code for the act of another only as accomplice, instigator, and helper. Conditions in French law are similar, and to save time I refer to Articles 59, 60, 89, and Article 265 of the Code Pénal.
That this fact is not clear and at least dubious is also admitted by the reputed Russian teacher of international law, Professor A. N. Trainin in his book, La responsabilité pénale des Hitlériens. He states on Page 13:
“The problems of international penal law have unfortunately been studied very little. There is lacking a theoretical, clear definition of the fundamental concept of ‘international crime,’ and a well-ordered system of this law still remains to be created.”
According to the Prosecution, the aim or the means of the conspiracy are crimes against peace, against the rules of war, and against humanity. Professor Jahrreiss has already spoken extensively about the liability for punishment of individuals for the violation of international peace, and has described and given due recognition to the status of non-German international jurisprudence. But since jurists of German tongue have also concerned themselves with this question, I would like to make an additional remark.
The well-known Austrian scholar of international law, Alfred von Verdross, has established in his book International Law:
“According to prevailing opinion, subjects of a crime under international law can only be states as well as other legal communities immediately subject to international law, but not individual persons...”
[sm type begins]There would be only an international obligation of an individual person when international law itself would connect and order a state of facts with a consequence of injustice that these standards are applied immediately to the state of facts established by a person. Only by that will persons, who according to valid law are only subject to national civil and penal law, be bound as an exception by international law itself.[sm type ends]
After these short supplementary statements of the legal bases of the Trial I turn to the Indictment, which accuses my client of having participated in the seizure and control in Austria as a conspirator, and of having committed war crimes and crimes against humanity in Poland and in the Netherlands.
Thus the first act takes place in Austria and the second in the Netherlands, after a short interlude in Poland.
[sm type begins]East of Berchtesgaden lies Obersalzberg, at an altitude of 1,000 meters, a mountain at the northern base of the Hohen Göll, covered with meadows and forests, with scattered farm houses and with a wonderful view. Above the old road is the impressive Berghof which resulted from the reconstruction of the Wachenfeld House in 1936. It is here, not on the Rhine, not in the Teutoburg Forest or on the shores of the North Sea, that Adolf Hitler established his residence when he desired relaxation far away from the Reich Chancellery.[sm type ends]
[sm type begins]Hidden by a small hill, the house of General Field Marshal Göring lies behind the corner of the house.[sm type ends]
Adolf Hitler stands at the window of his country house, in deep thought, and gazes on the snow-covered mountains. The country which is protected by these mountains is Austria, his homeland. It is a German land, free and independent, and not subject to his will as is the Reich, whose absolute Führer he has become. When he wrote his lifework in the fortress of Landsberg, he wrote on the first page of his book: “German Austria must return to the great German fatherland.” The shades of night rise slowly from the deep valleys and his thoughts glide over the mountains to the old imperial city on the Danube, Vienna, which he both loves and hates. It is the city of his joyless youth, a memory filled with want and misery. In his book Mein Kampf, he compares this city with Munich, and says about the latter: “Munich, a German city, how different from Vienna, I feel sick when I think of this racial Babylon.”
And still, this city is the goal of his longing and he calls this same city in the March days of 1938 a pearl to which he will give the setting which its beauty deserves. On his table lies a book: The History of the Germans in Austria. Hitler read this book again and again; it is the history of his homeland, and we also will glance through it, as far as time permits. We read:
Austria was throughout many centuries one of the strongest pillars of German life. Its evolution, its rise, and its decline form a considerable part of German history. Austria was and is a piece of the German soul, of the German glory, and German suffering. Austria has received inestimable strength from the old Reich, but she herself has made a great and valuable contribution to the whole of German culture.
[sm type begins]Her historical beginnings go back to the Frank, Charlemagne, who created the first “Ostmark,” for the protection of the Reich against the East; she became a victim of the advance of the Magyars. The victory of the German King Otto I at Lechfeld in 955 is the hour of the rebirth of an Austria which now remains, under the rule of the Frankish house of the Babenbergs, the rampart against the East for almost three centuries. When the last of the Babenbergs fell in the fight, Austria came to the Alemanian house of the Hapsburgs which was to bear throughout centuries the imperial crown of the Holy Roman Empire of the German Nation and was to be by its predominant position the strongest shield of the Reich. The mystic strength of the Reich idea gives to Emperor Frederick III the unshakable belief in the universal future of the House of Austria: Austria erit in orbe ultima. Under Maximilian Vienna becomes the main seat of humanism. Charles V goes on beyond the nation and is filled with the world-power idea of the medieval empire. The defense and liberation of Vienna in the year 1683 is a deed of the greatest significance. Under the ruling colors of the German king, Catholics and Protestants, sons of all German peoples, fight for the fate of the capital of Christianity. In the eighteenth century, in the clash of the territorial states against the Reich, princely dominions against the Reich concept, German dualism arises, which from now on was to be the tragic fate of the Reich and Austria—Austria and Prussia, Maria Theresa and Frederick the Great, the great empress and the great king. Through the conflict between the two powers the old Roman Empire of the German nation was destroyed in 1806.[sm type ends]
The Reich died, but the concept of the Reich lived on. At Leipzig, in 1813, Prussians and Austrians fought shoulder to shoulder under Schwarzenberg, Scharnhorst, Gneisenau, and Blücher to free themselves from the yoke of the Corsican tyrant. On 11 January 1849 the deputies of all German states assembled at Frankfurt-am-Main for the constitutional assembly. The Austrian delegate, Bergassessor Karl Wagner from Styria in Austria, spoke at that time the memorable words:
“Leave an opening for us so that we can enter; we shall come, unfortunately, perhaps not all of us. We, Austria’s Germans, will come—how and when, who can tell? Who can read in the book of the future? But we shall come!”
The year before, in St. Paul’s Church, where the delegates of all German lands and states had met, the poet Ludwig Uhland, as a deputy, spoke the memorable words:
“It may well be that Austria’s mission is to be a light for the East; but she has a higher, a nearer mission—to be the artery in the heart of Germany.”
But on the battlefields of Königgrätz in 1866, the thousand years’ mutual bond between Austria and Germany was broken and Austria was forced to leave the German federation.
[sm type begins]How unsatisfactory the solution of the German question by Bismarck’s forced exclusion of Austria from the union of German states was, was also recognized in the Reich, where Paul de Lagarde wrote in 1875:[sm type ends]
[sm type begins]“But despite this, 1866 and the German Reich is an episode. Nikolsburg cannot separate what has been decided by geography and history to be together, if this being together will not be a union for a long time to come.”[sm type ends]
But before the double eagle of the Hapsburgs went down forever, Germans and Austrians once again fought shoulder to shoulder in 1914-18, with true Nibelung loyalty, for the freedom of the fatherland.
The common history of almost a thousand years, but above all the common language and origins, the same customs and mode of life—all combine to form the bond of unity between the two countries in the whole field of culture, of creative poetry and scientific research.
[sm type begins]If here, the Austrian shows a special structure, then this is above all the fact that especially in the field of the art of poetry and music he has achieved performances which surpassed the creation of other German peoples by far, or at least were equal to them. As it can also be emphasized, that the living together for centuries with other nations makes the Austrian stand out, to equalize contradictions and to bridge inequalities. His joy in the sensuous, in the colorful, and his sense for the superficialities of life may have made him especially suitable for this. The narrow frame of the Trial imposes justified limitations here on an extensive description of the mutual cultural life. I limit myself to the quotation of names: The singers of the Nibelungenlied; the Minnesänger, Walther von der Vogelweide, Ulrich von Lichtenstein, and Oswald von Wolkenstein; the humanists Aeneas Sylvius and Konrad Celtis; the orientalist Hammer-Purgstall; the poet of the “Wehrmannslieder” Von Collin; the classical dramatic Franz Grillparzer; the homeland poets Stelzhammer and Rosegger; and finally Rainer Maria Rilke, Franz Werfel, Anton Wildgans, and Hermann Bahr. When I turn to the magic world of music, then there is an abundance of the most illustrious names: Mozart, Haydn, Schubert, the waltz kings Lanner and Strauss, the symphonic composer Anton Bruckner, all were Austrians.[sm type ends]
But is it not a symbol of spiritual unity that not only the North German poet Hebbel, but also Beethoven and Brahms made art-loving Vienna the permanent city of their work? There is no German music without Austria. But Austria not only made her contribution to the cultural life of the German people in the field of art, but also in the fields of science and technology.
[sm type begins]But let us return to the Obersalzberg. If Hitler, the demonic psychopath, loved his homeland with the love of a rejected suitor then the love of Hermann Göring was of an entirely different kind. He also liked to look over into nearby Austria. He spent his youth there; it was not joyless and empty.[sm type ends]
[sm type begins]In the land of Salzburg with its old bishop city, its lakes and mountains, Hermann Göring learned to know Austrian characteristics, learned to love the people and country. What a joy it was for the courageous huntsman and later aviator when he got the first chamois on the crags in the cross-hairs of his telescopic sight. When he was severely injured by a burst of machine-gun fire on 9 November 1923 in the Odeonsplatz in Munich, faithful friends accompanied by his wife Karin, herself mortally ill, then took him from the pursuing bailiffs over lonely wood trails into the free Tyrol mountains of Austria. A large relief, on which already long before the Anschluss Austria was marked on the map of Germany without borderlines, shone in the large hall of Karinhall. But Hermann Göring was also Delegate of the Four Year Plan and knew that Austria was not only beautiful and rich with honors, but that she also owned the Erzberg where there was iron ore for the forging of guns; he knew the rich forests of Austria where there was wood for cellulose, for the construction of ships, and for rearmament; it was not unknown to him that there was in Austria the largest bauxite and magnesium sources of the world, and that Austria had the rich petroleum wells at Zisterndorf. Only power makes right! If Germany wants to have her say again in the world, then she must have a strong army and a strong navy. And for this reason he loved Austria![sm type ends]
[sm type begins]Hermann Göring also never denied this, his conviction, and he expressed this repeatedly to the diplomats of the great powers. For instance, he stated openly to Lord Halifax, that it was an integrated part of German policy, regardless what government was in power, that the moment had to be created so that the unification of the two brother nations of purely German origin and blood could take place. He has also testified with human candor as witness before the Tribunal that when the question of the Anschluss came into its acute stage, he had grasped this ardently longed-for possibility for the total solution and that he takes upon himself the responsibility for everything which happened then, one hundred percent. He is therefore also to be believed when he stated further that he would do everything therewith so that the Anschluss would not lead to an endangering of the peace.[sm type ends]
THE PRESIDENT: I think it is possible for the Tribunal to become acquainted with the history of Austria without having it read to them as a part of your argument. Up to now there has been nothing in your 20 pages but history of Austria.
DR. STEINBAUER: Mr. President, I beg your pardon; I consider it essential to portray the background in Austria which motivated my client. I have now finished, and I shall pass on to the facts.
The massed common will of the big two of the Third Reich to take over Austria at the opportune moment is the key to the solution of the Anschluss question. For that, there is no need for a conspiracy; those who participated were pawns on the chessboard of the two men, supers on the great stage of the world.
But let us return to Austria.
[sm type begins]Only if we know the history of this country in the time from 1918 to 1938, are we in a position to judge the role of the defendant in this question justly.[sm type ends]
I have already pointed out in the presentation of evidence that in my opinion there were three reasons for the Anschluss, and I have also attempted to reinforce these by the documents submitted, to which I now refer: 1. The economic distress; 2. The disunity resulting from this; 3. The conduct of the great powers toward Austria, especially during the critical days of March 1938.
Dr. Karl Renner, the Federal President of the Austrian Republic, who enjoys the confidence of the four occupying powers, and on whom the entire Austrian people look with respect because he took the helm of the ship of state for the second time in a period of dire distress, described the history of the Anschluss very aptly in his memorandum in 1945:
“The political reason why the Anschluss idea took hold of almost all of Austria at the conclusion of the first World War lay in the repeated proclamations of the victorious powers that the war was waged for the right of self-determination of nations—
[sm type begins]“That every nation had a claim to her own complete national state, and that the peace would fulfill this requirement.[sm type ends]
“But it was not this political reason that was decisive for the masses. Austria is a mountainous country with much too little arable land, a country with an entirely one-sided economic structure. Its capital alone sheltered a third of the population; its industry was able to feed a large part of the people only by working for Austria’s neighbors, receiving from them raw materials and bread. The sudden separation of the highly agrarian parts of the previously uniform tariff territory of the Danube monarchy and the measures of the succession states in 1918 introducing high protective tariffs deprived the country simultaneously of its food sources and its export markets. The fear of not being able to feed themselves and of not being able to find work at home, the sudden construction of the labor market, were the factors which in 1918 made the Anschluss appear to almost everybody as the only possible solution. One cannot talk about the national chauvinism of the Austrian working class, because a large percentage of this class derived from parents of non-German blood who had hardly lost their ties with the homeland. The overwhelming competition of the Reich German and Czechoslovakian industry loomed menacingly before the workers of all professions in this small country, cut off from the sea, and poor in raw materials, and afraid that it would not be able to stand up against this competition. Not until we understand the economic situation can we understand the Anschluss movement, and why it was that Hitler’s boastful announcement that he had done away with unemployment made such a deep impression on the Austrian working class, and why the will to resist the Anschluss was so weak within this working class at the beginning.”
[sm type begins]I have in front of me an economic statistical comparison from the year 1938. There are a few figures only, which speak volumes:[sm type ends]
Germany Austria Population 68,150,000 6,710,000 Area (in square km.) 470,714 83,868 Change in population (1936) per 1,000 inhabitants plus 7.2 minus 0.1 Unemployed 1934 2,353,000 363,000 Unemployed 1937 573,000 319,000
[sm type begins]Austria’s Foreign Trade 1937; Export: To Germany, 179.8 millions; to Italy 172.6 millions; to Hungary 111.2 millions; to Czechoslovakia 87.5 millions.[sm type ends]
By the decision of 5 September 1931 the Permanent International Court at The Hague declared the contemplated customs union between Germany and Austria incompatible with the Geneva Protocol of 4 October 1922 by 8 votes to 7. This was the last attempt of the governments to achieve a closer mutual constitutional relationship with the express agreement of the victorious powers. It failed. Was not the conviction bound to arise in the minds of fanatical Anschluss partisans that this supreme national aim could only be achieved through their own initiative?
A year later Austrian foreign trade showed a deficit of 613 million schillings. On 15 July 1932 Dr. Dollfuss concluded a loan agreement in Lausanne on the condition that the Anschluss question would be put off for another 10 years. The ratification took place during the session of the National Council on 30 August 1932 by 82 votes to 80. In the federal council, the Social Democrat Koerner, at present mayor of Vienna, had protested against this law, in view of a rapprochement with Germany.
Hitler came to power the year after. The Social Democrats saw their party dissolved in the Reich and the trade unions smashed; they saw the Reichstag fire and the beginning of the persecution of the Jews, and their leaders turned away from the Anschluss idea. The Catholic circles who wanted to fortify the Catholic element in the Reich by means of the Anschluss also turned away because the persecution of the Church in the Reich had begun; and only the National Socialists, whose membership had increased tenfold within a short time, were in favor of the Anschluss. As Dr. Dollfuss had eliminated Parliament and thereby the way to power by means of the ballot, the National Socialists under the leadership of Landesinspekteur Theo Habicht strove with all means to gain power in the state. We come to the bloody events of the year 1934. Dr. Dollfuss is killed by the hands of assassins and his successor Dr. Schuschnigg attempts to restore order in the seriously shaken state system. The Socialists, however, remain sulkily aloof because of the events in February 1934. There are changes in the political situation abroad too. Whereas Italy in 1934 still stood at Austria’s side, and Mussolini had deployed his divisions on the Brenner menacingly against the North, the Ethiopian adventure had forced Italy to Hitler’s side. Austria is forced to follow the changed course and in order to improve the economic situation concluded the Agreement of 11 July 1936. In this agreement Germany recognizes the independence of Austria and ceases the economic war. The price for that, however, is a series of measures which give the National Socialists in Austria a new boost. In order to extend the small platform of his Government and bring about a real appeasement, Chancellor Dr. Schuschnigg declares himself willing to invite also the so-called Nationals to co-operate. Among these men is also the defendant, who then became Austrian State Councillor in May 1937. As already mentioned, the Anschluss idea constituted his political program. He never tried to hide this fact. He also comes from the ranks of the National Opposition, a factor which must not be overlooked. The Anschluss also brought him nearer to National Socialism, and it seems idle to engage in long investigations to find out at what time he officially became a member of the Party. Among the documents confiscated at his arrest was his membership card with the number above 7,000,000. The witnesses Gauleiter Rainer and Uiberreither confirm the statements concerning his Party membership. When, after taking office, the new State Councillor paid his first visit to the Führer’s deputy, Hess, the latter was very polite but cool and expressed his regret that Seyss-Inquart was not an old fighter. The task of Dr. Seyss-Inquart was to supervise the execution of the July Agreement and to act as a mediator between the Austrian Government, the National circles, and the Reich. It was a thorny and thankless task. The Austrian patriotic circles (Vaterländische Kreise) could not forget the terror methods of the National Socialists during the Dollfuss period. The National Socialists, headed by Captain Leopold, were not satisfied with the methods of the national representative Seyss-Inquart in his dealings with the Government. Between these two men there were constant differences of opinion, which went so far that Seyss-Inquart wanted to give up the task entrusted to him—namely, bring about an agreement. To save time I refer in this connection to Documents Seyss-Inquart-44 (letter from State Secretary Keppler to General Bodenschatz), Seyss-Inquart-45 (Göring’s telegram to Keppler) and Seyss-Inquart-46 (USA-704) of my document book. There were continuous violations of the July Agreement, and the Austrian Police found the plan for a revolution known as Tavs Plan, which was an attempt to overthrow the Government by violence. Minister Guido Zernatto has declared that the defendant kept himself aloof from all these endeavors.
Then came the conference of 12 February 1938 at Obersalzberg. What happened at this conference is well known. That the defendant discussed things on the evening before this conference not only with Zernatto, the representative and confidant of the Chancellor in the Government, but also with the National leaders is understandable, for one must never lose sight of the fact that the defendant had always openly declared his role as mediator. He also had to know the claims of the opposition, so that when the two statesmen met at Berchtesgaden the differences could be cleared up. The defendant cannot be charged with playing a double game within the framework of a conspiracy, because the National Socialist Party tried to exploit the knowledge of the situation to their profit, and by dispatching Mühlmann were quicker than the unsuspecting Chancellor Schuschnigg. Here, too, we must have recourse to Zernatto, who died in exile, and who declared that he was under the definite impression that Seyss-Inquart did not know at the time about the agreements concluded at the Obersalzberg. On the basis of this agreement Seyss-Inquart was appointed Minister of the Interior and Security. He went in that capacity to Berlin to pay an official visit to the Chief of State of the German Reich and to present to him his political program for the relations between the two states, as set down in the memoranda for file (Exhibit Number 61) submitted to the Tribunal. The account of this conference as given by the defendant in his testimony appears to be quite authentic. For various reasons Hitler had at that time obviously not yet decided to carry out the Anschluss. Let us here refer to what the Defendant Göring says, when he testified as a witness on 14 March:
“I was not present at Berchtesgaden; moreover I was not in favor of this agreement, because I was always against any half measures which would prolong this state of suspension.”
In a sense the Berchtesgaden agreement gave the Nazis in Austria a free hand to carry on their activities and propaganda. The 2,000 Party members released from prison on the basis of the amnesty and at least some of the members who had returned from the Reich became increasingly active in the federal states and sought to bring about a rapid growth of the Party. Hitler’s Reichstag speech of 20 February was used by them as a signal for hostile demonstrations against the Government and thus to bring them quickly to power. Not only Schuschnigg but also the great mass of the working class realized how dangerous the situation had now become. The threatening danger caused them to forget their differences, and the negotiations between Schuschnigg and the Socialist labor leaders and the Christian trade unions seemed to provide a guarantee for the defeat of the imminent attack of Nazism by uniting all democratic forces in a common defensive front. Prompt action was necessary, and Schuschnigg proclaimed his plebiscite. The whole country awoke from its lethargy. Workers and peasants were called upon to defend their country, and under the leadership of Zernatto swift electoral preparations were made in the factories and in the remote mountain valleys. It was clear that this attempt of Chancellor Schuschnigg to veer round and alter his course at the last moment could not fail to call forth the resistance of the National Socialists in Austria as well as in Germany. Hitler raved, and Mussolini’s words before the election warning Schuschnigg that the bomb would explode in his own hand, unfortunately proved only too true.
And now let us come back to the defendant. He was not only a Government member, he was the confidant of the National Opposition and guarantor answerable to the Reich for Berchtesgaden. When the Prosecution charge him with having given Schuschnigg his word of honor about the election and having failed to keep it, that is not correct. Let us refer to the speech made by Gauleiter Rainer on 11 March 1942 to the Berlin Party members. On Page 12 of this Document, 4005-PS, it is disclosed that Zernatto’s secretary was a secret member of the NSDAP and betrayed the plebiscite plans to her comembers as soon as she came to know of them. Rainer says he already knew the whole plan at 11:30 p. m. that same evening.
THE PRESIDENT: The Tribunal will recess now.
[A recess was taken.]
DR. STEINBAUER: The protest against the plebiscite made to the Chancellor by Seyss-Inquart in the name of the Nationals was entirely justified legally. Apart from the fact that there could be no guarantee for a proper vote at such short notice, the vote itself was not constitutionally legitimate. Article 65 of the Austrian Constitution of 1 May 1934 specifies exactly under what circumstances the nation can be called upon to vote. Dr. Schuschnigg, therefore, bases his proclamation of the election on Article 93 of the Constitution which article merely says generally: “The Federal Chancellor determines policy.”
The Austrian Patriotic Front (Vaterländische Front), that is, the political organization, had the task of carrying out the election. The subsequent developments are well known, particularly the events of 11 March 1938. The main charge in respect to the conspiracy is, I take it, that Seyss-Inquart caused the entry of the German troops by his telegram about alleged unrest. We find this historical lie, which has given the defendant the name of “Judas of Austria” in the story of the Anschluss. We find this historical lie for instance, in Raphael Lemkin’s Axis Rule in Occupied Europe (Page 109). We find it again in the opening speech of the American Chief Prosecutor, Mr. Justice Jackson, although it is incontestably proved by the submission of Göring’s telephone conversations (Document Number 2449-PS) in connection with Göring’s testimony, that this telegram was never sent and, what is more, was dictated and addressed to a third party at a time when the German troops had already received the order to cross the frontier. Consequently, these telephone conversations of Göring represent a historical document of the greatest importance.
Rainer’s speech in Carinthia and his testimony as a witness before the Tribunal also give the lie to the charge that Seyss-Inquart participated in the seizure of power. According to this document (Document Number 4005-PS) it was Globocznik who wrongfully used the telephone in the Federal Chancellery to give the alarm to the federal states. Appointed Federal Chancellor by virtue of Schuschnigg’s withdrawal under duress, the defendant discusses the constitution of the Cabinet, invites the ministers to enter it, and takes the retiring head of the Government home in his own car.
When it is further learned from the testimony of the witness Stuckart and from Glaise-Horstenau under what circumstances the law of annexation came into being, then it can indeed be said that Zernatto was right when he wrote that Austria was conquered, in his opinion, even against the wishes of Seyss-Inquart and his Government. I refer to Exhibit Number 63. Whoever, therefore, dispassionately surveys the whole set of events of March 1938 relative to the Anschluss, and examines particularly the part played by the defendant, can only come to the conclusion that one cannot really speak of a carefully thought out “conspiracy,” of the perpetration of a crime by co-ordinated stages. Where Austria is concerned, however, the Englishman Geyde is right when he says the curtain fell on the “Tragedy of Austria” when the troops marched in. It was to rise again soon on a new play: “The Martyrdom of Austria.”
On 15 March 1938 Adolf Hitler came to Vienna. We have seen in this courtroom the film record of his reception. Deeply moved, the defendant addressed him as follows:
“What centuries of German history have striven for, what untold millions of the best Germans have bled and died for, the final goal in fierce combat, the only solace in hours of bitterness has today been achieved. The Ostmark has come back to the homeland. The Reich is restored, the empire of racial Germans is established.”
With these words Seyss-Inquart defined his political aim, which was and remained the guiding star of his actions.
With the Führer came Josef Goebbels, who turned on his gigantic propaganda machine at high pressure. There was rally after rally. Festivals were held. There was not a house in the land which was not beflagged. The leader of the Socialist workers said: “I vote yes” and the bishops exhorted the people to fulfill a national duty: “Render unto God the things that are God’s and unto Caesar the things that are Caesar’s.” Both were to be disappointed. For with Goebbels came Himmler and his Gestapo and SS. Already during the night of 13 March there was a wholesale arrest operation in Vienna. It included the members of the former military associations, as well as prominent leaders of the Socialist paramilitary organizations, Jews who were active in political and public life, Communists and Monarchists, priests and Freemasons, and even the leaders of the Boy Scouts and of the Austrian youth organizations. In Vienna alone 76,000 arrests were made. Already on the 2d of April 1938 the first Dachau convoy left the West Station with 165 leading officials, including the present Federal Chancellor Figl, Education Minister Hurdes, and Minister of Justice Dr. Gerö. The second convoy followed on 21 May, the third at the end of May, and so it went on. Punctually, every 8 days, convoys left for Dachau, Buchenwald, and Sachsenhausen. On 10 May 1946, the People’s Court in Vienna sentenced to death Anton Brunner, who had had 49,000 people, mostly Jews, sent to the extermination camps in Theresienstadt, Auschwitz, Minsk, and Riga.
And what of the defendant? He was given the cold shoulder and pushed to the wall. The victor of the Saar electoral contest, Josef Bürckel, was set up as Reich Commissioner for the reunion of Austria with the Reich and armed with dictatorial powers. The powers of the defendant scarcely exceeded those of an Oberpräsident in the Reich, that is, those of a second level administrative authority. Still less, because immediately above him was Bürckel who under the pretext of the annexation interfered with everything and laid claim to everything, particularly in matters concerning the churches and the Jews. This is evidenced by Documents 67, 70, and 91. The defendant opposed Bürckel’s methods. He even raised objections to Hitler himself against Bürckel’s action in Graz on 8 April 1938.
This we know from the testimony of Neubacher, Schirach, and Stricker, and from the documents submitted by the Defense. But Bürckel, whom Churchill described as the Governor of Vienna in his book Step by Step, remained the stronger man and the importunate admonisher, Seyss-Inquart, was transferred to southern Poland as a provincial commissioner. This treatment alone at the hand of his alleged fellow conspirators shows only too clearly that Seyss-Inquart was actuated by his enthusiasm for the Anschluss and cannot have been a conspirator. He was not a leader, he was led or, what in my opinion is more accurate, he was misled, perhaps also a docile tool in the hands of the big two, Hitler and Göring. But it was solely for his political ideals, the Anschluss, without any intention of a war of aggression.
Of course, there was something of an economic boom in Austria after the Anschluss. It was partly a fictitious boom due to rearmament. But what took place was not the Anschluss that the Anschluss enthusiasts in Austria had visualized, especially when the war provided a motive and a pretext for ruthlessly controlling and repressing every dissenting or critical opinion.
Austria never ceased hoping for her liberation and fighting for it. There was much suffering and many died; 6,000 were executed in Austria. In the Landesgericht of Vienna alone 1,200 men died by the guillotine, 800 of them merely because of their anti-Nazi conviction. In the last days of the war Vienna’s most beautiful buildings came down in ruins, and St. Stephan’s Cathedral, one of the noblest monuments of German Gothic, went up in flames. Thus was fulfilled the promise that Hitler had made on 15 March 1938: “The pearl has the setting which its beauty deserves.”
Not the idea of the Anschluss, that is to say, the wish to bring about the national unification of a people, was a crime; it was the introduction of a system that has probably prevented it from ever coming true; that was criminal. The defendant certainly did not wish that.
To conclude my statements on the Austrian question I shall now proceed briefly to examine the legal aspect of the charge against my client. To elucidate his legal responsibility, I will review his behavior in the following short survey:
First his political activity:
1) After the Agreement of 11 July 1936, the Federal Chancellor, Dr. Schuschnigg, took the Defendant Seyss-Inquart to work with him as a representative of the National Opposition, therefore, not as a political follower of his, as for instance the witness Guido Schmidt.
2) Seyss-Inquart always declared—for the first time to Dr. Dollfuss in July 1934—that the National Opposition consisted only of National Socialists who obey only Hitler’s will, who, in any case, would never act against Hitler’s will.
3) Seyss-Inquart declared he was a National Socialist; thus he always stood for the interests of the Austrian National Socialists. This is not only confirmed by the witness Skubl but borne out by the authorities previously quoted by me.
4) To avoid any military or international conflict, Seyss-Inquart pursued the following aim: To allow the Austrian National Socialists to participate independently of the Reich National Socialist Party, should Austria and Germany form a close union.
5) Seyss-Inquart declared that this aim could only be attained if Hitler agreed to it and directed the Austrian National Socialists expressly toward this policy. This he wanted to attain.
6) The culminating point of Seyss-Inquart’s efforts was his interview with Hitler on 7 February 1938; although he was so to speak, minister by the grace of Hitler, he stood for his Austrian program.
Herein lies Seyss-Inquart’s mistake. He thought Hitler and Berlin would pursue a joint policy, that is, as Bismarck said, use the “art of the possible.” Berlin, however, did not wish to pursue a joint policy. In the face of this fact Seyss-Inquart’s policy broke down on 11 March. Is this mistake punishable, especially as the Austrian State leaders desired to reach an agreement along the same lines, and Dr. Schuschnigg, knowing his program, allowed him to continue his activity? In view of the defendant’s basic attitude until March 1938, details of his political tactical attitude are of secondary importance.
And now the activity of the defendant as Minister of the Interior and Security.
7) There is no trace of any National Socialist influence on the Austrian executive. The witness Skubl has confirmed this with exceptional clarity. Seyss-Inquart forbade the Police to take up any political attitude (Document 51); he forbade National Socialist demonstrations (Document 59); he avoided such occasions (Document 59); he demanded that the Austrian Nazis stand for legality (Document 52).
8) On 11 March 1938 Seyss-Inquart fulfilled his duties as mediator, in accordance with the Berchtesgaden agreement. Together with Glaise-Horstenau he gave Dr. Schuschnigg, in the forenoon of 11 March, a perfectly candid statement of the facts. He particularly pointed out the threatening National Socialist demonstrations and the possibility of a German invasion. In the afternoon he delivered Göring’s demands to Schuschnigg and the latter’s answers to Göring.
9) After Dr. Schuschnigg’s offer to resign, Seyss-Inquart retired. He did nothing to comply with Göring’s demand to obtain the transfer of the Federal Chancellorship or to seize power. The ultimatums, with the threats of invasion by the Reich, were, as is known, transmitted by Embassy Counsellor Von Stein and General Von Muff, to whose pressure President Miklas finally yielded. This appears from President Miklas’ statements (Document Number 3697-PS) and the statements of the witnesses Rainer and Schmidt.
10) Only after Dr. Schuschnigg’s farewell speech did Seyss-Inquart publicly demand the maintenance of order. He did not designate himself as a provisional government but, in good faith, as Minister of the Interior and of Security, as was confirmed by the witness Schmidt. He took the order not to put up any resistance to the German troops from Dr. Schuschnigg’s farewell speech.
11) Seyss-Inquart tried as long as possible to preserve Austria’s independence, as instanced by his telephone conversations with Göring (Document 58), also by his request to Guido Schmidt to join his Ministry as Foreign Minister, as confirmed by the witness Schmidt, and according to the statements of witness Skubl; by refusing the demanded telegram (Document 58); by the request to Hitler not to march in, as confirmed by Göring; by the request to Hitler also to let Austrian troops march into the Reich.
12) On 13 March 1938 the Anschluss Law was issued in conformity with Article III of the Austrian Constitution of 1 May 1934. The psychological situation for Seyss-Inquart was the same as for all Austrians, who on 10 April had by secret ballot voted for the Anschluss by 4,381,070 votes to some 15,000.
Some of the accusations made against Seyss-Inquart are:
1) That he used his various positions and his personal influence to promote the seizure, incorporation, and control of Austria by the Nazi conspirators.
2) That, as an integral part of his evil intentions in the sense of the Indictment, he participated in the political planning and preparations of the Nazi conspirators for wars of aggression and wars in violation of international treaties, agreements, and assurances.
Concerning the first accusation, I refer to the above survey and limit myself to the following short statements: As a political aim, the annexation of Austria to the German Reich is nowhere indicted, and the defendant pursued no other aim. Here—as also on other points—the Prosecution go beyond the limits of the Charter.
Concerning the second accusation—that Codefendant Seyss-Inquart had participated in a conspiracy against peace must be judged by Article 6 (a), Part II (a) of the Charter. There it is stated, among other things, that collective planning, preparation, or execution of a war of aggression or a war in violation of international treaties, is punishable as a breach of the peace.
I leave it to the Tribunal to examine if this ruling can really be applied to the case of the entry into Austria in spite of the fact that there was no war. It is a significant point that, according to the meaning of the said ruling, the outbreak of a war is the condition for rendering an act punishable for breach of the peace within the meaning of the said provision.
In any case I cannot reconcile myself to an interpretation of this ruling which goes so far as to consider even an abandoned plan for war, or the possible planning for a war which turns out to be bloodless as punishable as the accomplished crime.
It must be pointed out most emphatically that no proof has been furnished that my client ever imagined that events would even lead to a war between Austria and any other power because of the Anschluss or pursuant to it. On the contrary, his decision to take an active part in politics after the drama of 25 July 1934 was dictated by the resolve not to let the Anschluss question become the cause of military or international complications. Furthermore, it must have been far from his mind to imagine that Hitler or his entourage had seriously considered the possibility of such a consequence. The outcome of the Austrian enterprise proved him to be right. The German troops were greeted on their march into Austria with flowers and cheers.
As for the great powers, France and England protested on 12 March 1938 against the Anschluss. But this was only a very mild and ineffectual protest. Military support for Schuschnigg was not forthcoming; above all, the League of Nations, the guarantor of Austria’s independence, was not appealed to.
On 14 March 1938 the British Government declared in the House of Commons that they had discussed the new situation with their friends of the Geneva Entente and that the unanimous opinion had been that a debate in Geneva would lead to no satisfactory result.
When the League of Nations was informed of the Anschluss by the German Foreign Office it took note of it without protest, and the Austrian representative at the League of Nations, Pflügl, was given his papers. The Hague Court of Arbitration struck its Austrian member, Professor Verdross of Vienna, from the register of judges. The diplomatic agencies were withdrawn or transformed into consulates in the German Reich.
Only a very short time elapsed, in fact it was only a few months after the occupation and annexation of this small country that a treaty concerning another small state was concluded in Munich on 29 September 1938 with the alleged aggressor.
The French Prosecutor, M. de Menthon, in his opening speech mentioned that great politician and statesman Politis. I also would like to call him to mind. Shortly before his untimely death he wrote in his book, La Morale Internationale: “Qui menace les petites nations menace l’humanité toute entière.” The League of Nations powers did not feel called upon to pay any heed to this sentence.
But there is another principle of international order which they did not see fit to apply when confronted with the Austrian Anschluss. I mean that principle which, under the name of the Stimson Doctrine, has found entry into the science of international law and diplomatic language.
[sm type begins]It is the principle according to which the nations of the world refuse to recognize territorial acquisitions obtained by force. This principle has at least penetrated into the legal consciousness of present times as deeply as the prohibition of wars of aggression, which is one of the main pillars upon which the Nuremberg Trial rests.[sm type ends]
[sm type begins]As evidence of this fact I will recall here the proposition of the Brazilian Delegate Braga to the second session of the League of Nations, in which he proposed a blocus juridique universal (universal juridic blockade) against aggressor states and at the same time submitted as one of the measures to be adopted, the denial of the right of annexation by aggressor nations. You will find this explanation printed in the document book submitted by Professor Jahrreiss to the Court as complement to his legal arguments, and which is reproduced there as Document Number 10 on Page 35.[sm type ends]
[sm type begins]I will further recall the so-called Saavedra-Lamas Pact signed by several South American states on 10 October 1933 in Rio de Janeiro and which the Little Entente and Italy also joined. Here the signatory states bound themselves not to recognize the validity of a forcible occupation or annexation of national territories. The Seventh Pan-American Conference accepted this principle on 26 December 1933 with the participation of the United States of America. It agrees as to contents with a proposition already submitted previously by the Peruvian Delegate Cornejo on 14 January 1930 to the Council of the League of Nations.[sm type ends]
[sm type begins]It is above all contained in the famous notes of the American Secretary of State Stimson to China and Japan of 27 January 1932, which contains the following sentence: “The American Government does not intend to recognize any situation, treaty or agreement brought about by means that are contrary to the statutes and obligations of August 27, 1928 in Paris.”[sm type ends]
And finally I remind the Tribunal of the declarations of the Council of the League of Nations on 16 February 1932, in which the Stimson Doctrine, raised to a principle, was expressed as follows:
“No encroachment on the territorial integrity and no infringement of the political independence of a member of the League of Nations in violation of Article 10 of the Covenant of the League of Nations could be recognized as legally valid by the member nations.”
Nevertheless all the nations of the world recognized the incorporation of Austria into the German Reich without feeling compelled to concern themselves with the Stimson Doctrine.
This likewise substantially answers the accusation of the crime against peace by violation of treaties. Germany is supposed to have violated three treaties. First the German-Austrian Agreement of 11 July 1936; second, Article 88 of the Treaty of St. Germain; lastly, Article 80 of the Treaty of Versailles. Here also, it must be pointed out that all the nations concerned have not only tolerated the violations of the treaties but, moreover, tacitly sanctioned them by their attitude. This implies at least a renunciation of international law, and the powers concerned have thereby forfeited the right to take any action because of treaty violations, as this would be contrary to all sense of fairness.
With particular regard to Article 88 of the Treaty of St. Germain, the German Government, and therefore Seyss-Inquart as alleged coconspirator, cannot be charged with violation of this provision because Germany was not bound by this treaty, which she had not signed, and which for her represented a res inter alia acta.
On the other hand, the German-Austrian Treaty of 11 July 1936 was a res inter alia acta for powers other than Germany and Austria; here Austria alone could have raised the objection of a breach of treaty. In this connection attention is called to the fact that the reconstituted Austria is not among the signatories of the London Agreement of 8 August 1945. Therefore the four states of the International Military Tribunal are not entitled to vindicate the interests of Austria at this Trial.
With regard to Article 80 of the Treaty of Versailles, I resist the temptations to discuss the question of the legal validity of this provision; I will dwell on the legal significance of the contradiction of this article with the so-called Fourteen Points of President Wilson.
But in concluding my legal exposition of the Austrian affair, I cannot altogether refrain from expressing a general idea: One of the great principles of international order which in the course of the nineteenth and twentieth centuries has established itself after much suffering, much confusion, and many makeshifts and become more and more a reality is the right of self-determination of nations.
This basic principle of the right of self-determination of the nations has become so firmly rooted in the legal conceptions of international relations in our century that one is forced to the idea that it belongs to the general principles of international law, an idea that particularly appeals to the democratic way of thinking. But as a general principle of international law it would, together with the Charter, the prescriptive international law and, thirdly, the law of treaty, then become the standard criterion of judgment for the Nuremberg International Military Tribunal, which at all events must find a similar basis for other questions. And further it would acquire, like all other generally accepted principles of law, a constraining force and above all have precedence over international treaty law.
A number of states owe their existence to this lofty expression of the democratic way of thinking. Such a privilege was denied the Austrians after the first World War. Despite the fact that the people in Austria as well as in Germany unanimously strove for union, Austria was forced to eke out an existence as an artificial, unnatural state structure, neither able to live nor die. How bitter are the words of the Encyclical Ubi areano of 23 December 1932:
“We hoped for peace, but it did not bring salvation; we hoped for healing, but terror came; we hoped for the hour of recovery, but only confusion came; we hoped for light, but only darkness came.”
In the year 1938, too, Austria and Germany strove for union, according to the wish of the overwhelming majority of their citizens, and this time their wish was fulfilled.
From the point of view of world history, the incorporation of Austria has no other significance than the triumph of a mighty and living principle of international order—the right of self-determination of nations. This dynamic force carried away artificial and unnatural treaty stipulations. Who can speak here of guilt?
I have nothing to say on the question of Czechoslovakia, and on the question of Poland very little, for during his short stay he was not in evidence at all of the Poles but was mainly concerned with the organization problems connected with the building up of the German administrative apparatus. In this matter it is sufficient for me to refer to the outcome of the evidence.
Nor will I say anything more about his honorary rank in the SS except that an honorary rank was never under Himmler’s command and disciplinary power, nor did such rank carry with it this power in the SS.
As regards his position as a minister without portfolio, the importance of this function within the scope of the organizations will be discussed in the chapter “Reich Cabinet.” Therefore, passing now from this interlude, I hasten on to the second scene of this case: the Netherlands.
Many know her only as the country of windmills, wooden shoes, and wide breeches; the red brick buildings, large herds of cattle in green meadows, and vast multicolored tulip fields. I know her as the country that gave to mankind a Rembrandt, and the many masters of the Dutch school, and Grotius, the great teacher of international law; the country that fought for her liberty in bloody battles against Philip II of Spain and produced the great naval hero De Ruyter, who won one of the most famous naval battles in history on 21 August 1673. But during this Trial we learned here that of all the occupied countries, the Netherlands offered the most united and stiffest political as well as increasingly effective physical resistance; we also learned that throughout these years these people never abandoned the hope that the day of liberation would surely come. The motto of the province of Zeeland: ‘Luctor et emergo—I struggle but emerge’—had become the rallying cry of the whole country.
Seyss-Inquart came to this country in May 1940 as chief of the civil administration. Whatever he may have thought and planned, it is his tragedy that he came as the representative of Adolf Hitler and of a system hated the world over. Hundreds of laws, orders, and decrees bore his signature, and no matter how correct they may have been legally, in the eyes of the people they still were measures of the enemy, and Seyss-Inquart still their oppressor. My client did not put himself forward for this office. On the contrary, he asked permission to go to the front as a soldier. Adolf Hitler refused this. Seyss-Inquart has also never contested his responsibility, and gave himself up voluntarily after the collapse. In case the legal opinion of the defense concerning the command of a superior is not shared by the Tribunal, the total organization of the Reich on the one hand, and the attitude of the Dutch people on the other, must, if only by virtue of Article 8 of the Charter, be taken into consideration in passing judgment on his administrative activity. The way in which Seyss-Inquart discharged his two conflicting tasks—namely to represent the interests of the Reich and at the same time to provide for the welfare of the population within the meaning of the Hague Land Warfare Regulations—is revealed by his attitude which I now describe: In the administration of Holland my client clearly allowed himself to be guided by the following legal conceptions:
The development of war technique, particularly in air warfare, the enormous extension of economic warfare, the expansion of the war into “total and indivisible war,” the beginning of the idea of total blockade, have all made international law—as it was in force in the years 1899 and 1907 when the Hague Convention was established—meaningless from the viewpoint of the clausula rebus sic statibus, and absolutely incomplete and useless because of new requirements and prevailing conditions. Only a few vestiges from the old days were still valid in the second World War.
How drastic this change is, is most strikingly shown by the bombing of residential quarters, made possible by the colossal development of explosives and flying technique, and which had no justification whatever according to previous law. If indeed there is any justification at all, then this can only be found in the concept of total war. But, above all, this development brought the individual into war—due not least to the influence of the Anglo-American concept of war.
Accordingly, in the course of this development the enemy civilian population, as well as the resources of the occupied regions, have become a war potential of the occupying power up to the limits imposed by humanity.
A further limit is imposed by international law, which provides that the demands of these forces must be justified by military necessity, and lastly that these demands must be reasonable ex aequo et bono.
Moreover, the totalitarian and indivisible nature of modern warfare precludes the special treatment of specific areas. It is no longer a question of requisitioning the human and economic forces of a definite area only for the requirements of that area, as it is still prescribed by the Hague Convention for Land Warfare. Henceforth the belligerent in power must have at his disposal the sum total of these forces, which on the other hand benefit from belonging to the whole.
Modern technical development, especially in the field of communications and traffic, also raise another problem of warfare, the so-called partisans, involving new and heavy tasks. In contrast to the period of the first World War, the partisan organization assumed enormous proportions in the second World War, and endangered the fighting troops, which at most can be compared with the guerrilla war of attrition against Napoleon I in Spain. The old international law made no adequate rules to offset this danger. It is evident that the guiding principle for fighting the partisans must be the security of the fighting troops at any price.
This means that the army as well as the occupation administration have both the right and the duty to take the severest repressive and preventive measures without going beyond the bounds of reason and humanity. My client performed the functions of his office in accordance with these guiding principles, always in the firm belief that he was carrying out his duty according to the directives of international law—that is, of the supreme Reich leadership. Any thought of acting illegally or even of committing punishable acts never entered his mind. That has nothing to do with the applicability in this case of the principle that ignorance of the law is no excuse, for here not national penal law is concerned, but international law and moreover it is not a question of a legal error, but of a subjective conception of duty, which may have erred here and there but was always sincere.
Having discussed the principles, let us now turn to the individual administrative acts of the defendant. Here it must be pointed out that, as everywhere in occupied territories but particularly in Germany proper, the National Socialist administration tended more and more to become overorganized, and responsibilities often overlapped. At the same time there was an extremely rigid centralization in Berlin. Consequently the following authorities were in control in the Netherlands: 1) The Reich Commissariat (civil administration and protection of Reich interests); 2) The Commander-in-Chief of the Armed Forces and the various commanders-in-chief, with their own courts; 3) The Police, about which I shall speak later; 4) Four Year Plan—Göring; 5) Einsatzstab Rosenberg; 6) Department for the Allocation of Labor—Sauckel; 7) Armament Ministry—Speer; and 8) last but not least, the NSDAP with its offices and organizations.
Pursuant to the Führer order, thus de jure, the Reich Commissioner was bound to obey unquestioningly the instructions of these central agencies, and he was not allowed to have a say in measures taken by them. The record of history still to be written will perhaps reveal with what skill the defendant prevented some of these measures or at least succeeded in toning them down. As to the Dutch population, its attitude, as already mentioned, was completely hostile, and the resistance movement, organized, equipped, and directed through the Dutch Government in London, grew stronger every year. To reach a fair judgment, the defendant’s actions should be considered against this background.
I now turn to the Indictment and shall follow in broad outline the presentation of the French prosecutor.
The first charge is the alleged violation of the sovereignty of the country by the introduction of the Reich Commissariat with its four general commissariats: Abolition of civic liberties; introduction of the Leadership Principle and dissolution of legislative bodies and political parties. These measures cannot constitute a breach of international law. Inasmuch as Germany, like the Netherlands one of the signatories of the Fourth Hague Convention of 1907, recognized during the war the laws governing land warfare, and notwithstanding the failure of the joint participation clause (Allbeteiligungsklausel) after entry into the war of the Soviet Union, the validity of the laws governing land warfare, in the sense of the limitations referred to at the beginning of the above statements, must be accepted for the Netherlands as well. Its rulings do not appear to have been violated. As a result of the complete occupation of the country and the flight of the Queen and of the ministers, the highest governing power in civil affairs passed from the Crown and the Parliament to the occupying power, and thus to the Reich Commissioner. Owing to the unconditional capitulation of 10 May 1940, General Winkelmann, who had been left behind in the country and was vested with special powers, renounced his authority in every respect.
Furthermore, it is the recognized right of the occupying power to organize the administration as its requirements demand. In so doing it must do nothing which anticipates the final decision as to the fate of the country. This was definitely recognized also by the Supreme Court of the Netherlands by the decision of 12 January 1942, submitted by me. The division of authority between the Reich Commissioner and the Commander-in-Chief of the Armed Forces, as provided for by the Führer decree, also represents an internal distribution of jurisdiction by the occupying power. This is definitely established in the British Manual of Military Law of 1936. The fact that the State Parliament was suspended, the activity of the State Council restricted to the preparation of opinions in disputes on administrative matters and that, finally, the parliamentary parties were dissolved, is likewise no violation of international law, because during the period of occupation it is the occupant who decides to what extent there is need for legislative measures and for amendment of the legislation of the country. As a rule, at every election about 50 parties entered the contest for the 150 seats in the Dutch Parliament. The fact that these parties, formerly at variance with one another, not only joined forces in their antagonism to the occupying power, but very often were active in the various resistance movements, gave the occupant every justification for suspending and subsequently dissolving them—their final dissolution was not decreed until 5 July 1941—the more so as the country lay on the direct path of the coming developments of the war, and an invasion was to be expected. This made it necessary for the administrative apparatus to concentrate all its force to do away with parliamentary obstruction and deprive these institutions of their latent power to carry on hostile propaganda.
In answer to the accusation that the NSB was sponsored for this purpose it must be said that the Reich Commissioner consistently refused to form a government from these parties. That parties which were already in existence in the country, or were newly formed, and who identified themselves ideologically with the occupying power were encouraged by the latter is likewise not disallowed by international law. As no official administrative powers were vested in the NSB, and since political organizations had no influence on the administration, the fact that in 1943 this party declared itself to be the representative of the political will of the Dutch nation is immaterial. It always has been and continues even today to be the practice of the occupying power to encourage and assist political parties friendly to them.
The charge of Germanization is also unjustified. By their origin the Dutch people were always considered to be Teutonic and it is, therefore, not possible to make Teutons out of them. When we look into Dutch history we find that for centuries the Netherlands belonged to the Federation of the German Reich. If you roam through the country you can still see in Groningen’s coat of arms the German Reich eagle, in the same way that Amsterdam’s coat of arms has borne the emblem of the German imperial crown since 1489. The first and the last Salic Emperors, Konrad II and Heinrich V, died in Utrecht. That the occupying power should desire to orientate toward central Europe a country cut off from the sea and her colonies by the blockade was understandable, but it never was intended, certainly not by the Reich Commissioner, to eliminate the national traits and the independence of the Dutch. The defendant was perfectly right when in his speech of 9 November 1943, in Utrecht (Document Book 102), he declared among other things:
“We ourselves would cease to be Europeans should we fail in our mission to tend and to promote the growth of these flowering cultures of the European peoples, each with its own individuality, and bound together with blood ties.”
Equally unjustified is the charge of the French Prosecution that pressure was used to bring the Netherlands into the war. There was nothing against enlisting volunteers of Dutch nationality in the German Armed Forces; Article 45 of the Law of Land Warfare only forbids compulsory recruiting for war against one’s own fatherland. This did not make those who took up arms voluntarily immune from the regulations of the Dutch penal code, as mentioned by the Prosecution, which during the war were made more severe by royal edict. The same holds true of the citizenship regulations for these volunteers and regulations concerning marriage to German nationals. Inasmuch as these orders of the Reich Commissioner had no legal value outside the compass of the German Reich, the legal deduction that they do not constitute an abuse of sovereignty in the sense advanced by the Prosecution can be put forward with a clear conscience. That a press which notoriously placed itself in the opposite camp of the occupying powers was silenced goes without saying.
The French Prosecution see a further suppression of sovereignty in the stifling of intellectual life by the closing of the universities and the demand for a declaration of allegiance. Special mention is made of the closing of the University of Leyden. But the University of Leyden was closed because of rioting by the students, and being a security measure of the occupying power, it cannot be an infringement of international law. In the same way, the demand for a declaration of allegiance is not at variance either with the Rules of Land Warfare. According to Article 45 the population of an occupied country may not be forced to take the oath of allegiance; according to the wording of the declaration all that was demanded was to abstain from any action directed against the German Reich or its army. Inasmuch as the population of an occupied country is bound to obey the occupying power exercising the authority of the state, this declaration, which does not make any actual demands, cannot be considered a violation of international law.
The organization of the administrative authorities was taken over almost as a whole, and maintained in the face of an entirely un-co-operative, even hostile attitude; especially did one refrain from interference in the courts. The only reproach in this direction is the dismissal of the President of the Court of Justice at Leeuwarden. The defendant has definitely declared that he assumes responsibility for this case, and he has a perfect right to do so. The occupying power may interfere in the field of the judiciary only when the purpose of the occupation is in jeopardy. If a judge refuses to administer justice, even though the cause for his complaint was removed by the Reich Commissioner, as was the case in this instance, then the occupying power has the right to remove from office the judge concerned.
The French Prosecution then continue, asserting that the defendant initiated a series of acts of terror. In the course of the presentation of evidence on this point we have heard what the circumstances of this collective punishment were. Moreover, Kammergerichtsrat Rudolf Fritsch and President Joppich showed by their testimony that the defendant was extremely conscientious in the application of the right to grant pardon, and that he limited capital punishment as much as possible. And as regards the special police courts, both the defendant and the witness Wimmer have proved that this was a procedure applied in exceptional cases only, headed by an official of the judiciary, and that the defendant had the right to the services of a freely chosen defense counsel who could also be of Dutch nationality; a procedure which lasted a short time only—about 14 days. Even today we find the individual occupying powers using this procedure in a much severer form in exceptional cases. In July 1944, as a result of a Führer order, the regular courts were abolished and saboteurs and members of the resistance handed over for sentencing, in spite of the protests of the defendant.
One of the main points of the Prosecution is the question of hostages, and I must therefore discuss this in detail. Dr. Nelte has already generally discussed its legal aspect and I refer to his statements.
In RF-879 the Prosecution have picked out two particular cases: The so-called hostage shootings at Rotterdam and the shootings after the attempt against the Higher SS and Police Leader Rauter. Already in the course of his first interrogation by the Prosecutor, the defendant, in connection with the first case, spoke of the Armed Forces’ demand for 25 to 50 hostages. The witness Wimmer confirmed that these hostages had been demanded by the Armed Forces, that through the defendant’s influence this number was finally reduced, to 5, and that the Higher SS and Police Leader was entrusted with the shootings.
The relations between the Armed Forces and the Reich Commissioner, as well as the relations between the Armed Forces and the Police, were regulated by the decree dated 18 May 1940 (Reich Law Gazette, Part 1, Page 778, Document Number 1376-PS, Paragraphs 2-3).
In order to convict the defendant, the Prosecution submitted the accusation but not the testimony of General Christiansen. In the course of the interrogation the witness did not take the oath.
The record proves that: a) The order was issued by the Armed Forces because of serious cases of sabotage and was analogous with the so-called Law Governing Hostages promulgated in Belgium and France; b) the hostages were then arrested by the German Police on the order of the commander of the Armed Forces in Holland—“An order is an order”; c) the High Command of the Armed Forces or Command, West insists on the execution of the orders in spite of all representations; d) execution by the Police; e) Proclamation I made in the judicial department of the headquarters of the Armed Forces in Holland. Proclamation II drafted by the Higher SS and Police Leader.
Would the Tribunal consider the argument for the justification of the defendant to be sound if he used the arguments of General Christiansen for his justification?
As to the second so-called hostage case, it concerns the consequences of an attempt directed in March 1945 against the Higher SS and Police Leader, SS Obergruppenführer Rauter, the highest police officer in the Netherlands, who was directly subordinated to Himmler. If we recall the consequences when in 1942 the tyrant Heydrich was murdered by the Czech patriots, we can well imagine how Himmler in 1945, at the height of his power, clamored for vengeance for the plot against one of his nearest and most important officials. It is likewise understandable that the defendant too, as head of the administration, ordered deterrent measures to be taken, under the heading of “general prevention,” after an attack had been made on one of his commissioners general. But he did not demand any hostages; he merely asked for the execution of sentences passed at legally conducted criminal cases. Exhibit Number RF-879 proves the truth of these assertions since the witnesses Schöngarth, Lages, Kolitz, and Gerbig unanimously confirm that only men already sentenced to death were shot, and not 200 but 117, some of them possibly before the date originally fixed for the execution. This also is confirmed by the Criminal Commissioner Munt in D II of the report of the Dutch Government, and likewise by Dr. Friedrich Wimmer, who was heard as a witness before the Court. In this case it was not at all a question of hostages in the real sense, but the justifiable execution of saboteurs, plunderers, et cetera, from the point of view of the occupation, and which was called the shooting of hostages in order to frighten the population. The fact that the defendant succeeded in getting the number of 500 real hostages as originally demanded by Himmler reduced to 117 orders of execution can certainly not be a reason for making him responsible for Himmler’s cruelties.
The Prosecution furthermore asserts that the defendant in his capacity of Reich Commissioner had agreed to, directed, and supported the deportation of an enormous number of Dutchmen to Germany. The principle which the question of the use of foreign workers involved has already been thoroughly discussed by other defense counsel. May I be allowed to add a few remarks on this point of the Indictment. According to information which I received from the Office of Statistics, the prewar unemployment figures of 300,000 to 500,000 men out of a population of 9 million was a chronic situation in the economic life of the Netherlands, which was more or less rightly considered to be one of the richest countries of Europe. When the country was occupied and the Reich Commissioner took over the governmental power, he considered it his duty to deal with unemployment in the interests of order and peace.
It was evident that this could not be achieved according to liberal principles, because even in countries adhering to the liberal economic order, the whole economy was directed to meeting the requirements of war conditions. Until 1943 the employment of labor was based on the voluntary principle. The defendant himself stated that a certain amount of economic pressure was used. He had found Minister Speer in particular very much in favor of his plan to transfer German undertakings from the Reich to Holland, thus enabling the workers to be used in their home country.
In 1943, three age groups of young unmarried men were called up by the labor offices, but not by compulsion. When in 1944 the Reich demanded 250,000 workers, the Reich Commissioner refused, and this has been confirmed by Lammers. The witnesses Hirschfeld, Schwebel, and Wimmer have confirmed that the “man-hunting action” of the autumn of 1944, which rounded up all men of military age among the population, was a drive by the Armed Forces, for which the defendant cannot be made responsible. On the contrary, and this fact must be recorded here, the Reich Commissioner softened these measures by issuing 1,000,000 certificates of deferment and by urging proper transport, as well as by mobilizing the workers. And in this connection it should not be forgotten that the steady growth of the resistance movement rightly caused the Armed Forces to fear lest the massing of people in the southwest provinces might represent a grave danger to the occupying power.
Seen from the legal aspect, it must be pointed out that the defendant was bound by the orders of the central offices within the framework of the Four Year Plan—that but for these orders and demands he would never have sent workers to the Reich, also that where even the execution of these orders represented a violation of the laws of humanity, he raised protest. In his actions the defendant upheld the laws of humanity.
As to the Prosecution’s next point, the so-called economic looting of the country, I likewise refer to the general principles I gave at the beginning. Raw materials were requisitioned from the very start of the occupation in accordance with the Four Year Plan with the help of the Dutch authorities, who thus were able to prevent unnecessary hardship. The defendant would naturally have preferred to keep the stocks within the territory of his own administration. When requisitioning had to be carried out, the defendant insisted on fair compensation being given and he also prevented the transfer of Dutch concerns, as for instance the margarine factory in Dortrecht or the Leyden Cold Storage Works. On the insistence of the Reich Commissioner, Göring promised that the Dutch people should not be in a worse position than German citizens and, therefore, as far as the defendant is concerned, it would appear that Article 53 of the Hague Rules of Land Warfare, if not too narrowly interpreted, had been adhered to.
The report of the field economy officer under the Armed Forces commander in the Netherlands, dated 9 October 1944 (Exhibit RF-132), and of Lieutenant Haupt (Document Number 3003-PS, Exhibit USA-196) prove that the requisitions were in the first instance carried out by the Armed Forces. The latter points out that the whole position is made more difficult by the fact that Reich Commissioner Seyss-Inquart is still in the country, although to all intents and purposes he had resigned. This certainly shows that as far as it lay within his power, the defendant always tried to oppose or reduce hardship in this sphere of his activity. In a total war the removal by the Armed Forces of stocks of war material and rolling stock after the invasion, and when the enemy was approaching, is likewise in keeping with international law.
The state of emergency created by the war called for the redirection of Dutch economy in Europe. Before the war, according to official statistics, 39 percent of the employed population were engaged in trade and industry, 23 percent in commerce and transport, and 20 percent in agriculture. Cut off from the rest of the world, navigation was at a complete standstill. To give an example—60 percent of the trade passing through the port of Rotterdam consisted of German goods. The highly developed agricultural industry was based on improved and intensive cultivation, dependent on artificial fertilizers from South America and concentrated fodder from Canada. We have learned from the testimony of Dr. Hirschfeld how relatively well Dutch agriculture and particularly the world famed cattle-breeding industry survived the war. This was only made possible by the understanding and collaboration of the Reich Commissioner with the Dutch administration offices and the support the defendant gave them.
The extension of trade over the continent of Europe, practically the whole of which during the war was controlled by Germany and her allies, no doubt offered good markets for Dutch trade and industry. It was, therefore, natural that also as regards finance, the economy had to be brought in line with conditions in the German Reich, or rather in the European economic area. It was necessary to regulate the financial economy if only for reasons of price policy. It would exceed the limits of this Trial to state more details here.
May I only point out to the Prosecution that the defendant had no part in fixing the amount of the occupation costs and was not even able to examine them. Only the civilian budget of the Reich Commissariat was settled by the Reich Commissioner and had to be approved by the Reich and audited by the Reich Treasury. In agreement with the Dutch agencies, civilian requirements were set at 3 million guilders per month, which was not exceeded. On the contrary, at the end of 1943, a saving of 60 million guilders had been affected, and this remained in the Netherlands.
The lifting of the customs barriers in interstate traffic was justified by the joint price policy and could only benefit the Netherlands. Likewise the ratio of the mark to the guilder was also fixed by mutual agreement. A difference arose for the first time when the blocking of foreign exchange was lifted. Here the views of the former Dutch Secretary General, Trip, and those of Commissioner General Fischböck differed. The defendant, who after all was not a financial expert, submitted this important question to the central Reich authorities for their decision, and the Defendant Göring has expressly stated during the hearing of the evidence that he decided in favor of Dr. Fischböck. The defendant therefore cannot be charged with criminal responsibility, not even that of a culpa in eligendo, if in the place of Secretary General Trip, who had resigned, he now appointed Rost van Tonningen, who was a former commissioner of the League of Nations and therefore a first-class financial expert.
The Defendant Funk has also testified here that he always considered the clearing debts as real debts. In the Netherlands Government report it is pointed out that the financial demands of the Reich amounted to approximately the same in all the occupied western territories and that only the methods differed. If Germany had won the war, the method employed in the Netherlands would have produced the result that the Netherlands would have had a real claim amounting to 4,500,000,000 guilders against the Reich. The whole question therefore is not a matter for a criminal trial, but rather is one that should be dealt with in the peace negotiations. Furthermore, an exact account was kept of everything. It even went so far that every time a member of the Armed Forces boarded a train with a free ticket, the conductor of the Netherlands Railroad Company always made a careful note of it.
As far as the alleged looting of museums and libraries is concerned, as well as the looting of the royal property, to save time let us refer to the evidence which proved beyond doubt that the defendant was particularly mindful of the need to safeguard the world famous public art treasures and that he reduced any arbitrary demands of the Reich offices, if there were such, to a minimum.
Insofar as any objects not essential for the conduct of the war, such as, for instance, art treasures, libraries, et cetera, were taken away, the defendant had no part in this. The few pictures which he bought for Vienna he acquired in the open market. As for the royal property, the instructions he issued were such that the confiscation of this property was no more than a demonstration. That this is true is shown in the Dutch Government report. The Rosenthaliana library which has been mentioned so often, did not reach the Reich, as the defendant had it stopped at Groningen after it had been removed against his will. The Arnhem case would likewise appear to have been cleared up by the witnesses Dr. Hirschfeld and Wimmer, and the report of the field economic detachment (Document 81).
The Jewish question has also a certain connection with the economic problems. Before I deal with this main point I must make the position of the Police in the Netherlands clear. The Prosecution seeks to establish that the Police, and by that is meant also the German Police, particularly the Security Police, was under the defendant. This attempt falls short when it is remembered that all the signatories with the exception of the Soviets hold that the Police is actually a part of the civilian, particularly the domestic, administration. The situation in Germany was this: De facto, and not de jure, Himmler was independent, more powerful even than any other minister, although he was nominally State Secretary of the Ministry of the Interior. The strictly disciplined and centrally directed SS was subordinate to him in his capacity as Reichsführer. The Defendant Keitel testified on 5 April 1946 that from the outbreak of war the SS became more and more an independent power factor in the Reich. He and those who worked with him had no full knowledge of the extent of Himmler’s powers, and Himmler and Heydrich had usurped the jurisdiction over life and death in the occupied countries by the frequently mentioned Führer order.
What was the situation in the Netherlands?
1) The Führer decree of 18 May 1940 already shows that the German Police was not part of the Reich Commissioner’s organization, nor was it subordinated to him. For it says in the decree: “The Police is at the Reich Commissioner’s disposal,”—which would not have been necessary if it had been a part of the Reich Commissioner’s office.
Thus even though the Reich Commissioner is the supreme governing power in the civil sphere, the Police is not a part of it.
2) In Decree Number 4 the Reich Commissioner named the administrative agencies so that the Dutch could clearly see how it concerned them, without being affected by the splitting up of the Reich authorities. With regard to the Police, that is, the German and Dutch Police, a second Commissioner General was appointed for security affairs (Higher SS and Police Leader). According to Article 5 of this decree the Higher SS and Police Leader has under his command:
a) The German Police and Waffen-SS (For the Dutch this order of things was declarative, for the Higher SS and Police Leader was appointed by the Führer on Himmler’s recommendation, without the Reich Commissioner being consulted. Rauter presented himself to the Reich Commissioner as having been already appointed, and the Reich Commissioner would never have been able to appoint the commander of the Waffen-SS, which opinion is also shared by the Prosecution).
b) The Dutch Police (This order of things was constitutive, because the Reich Commissioner was responsible for the Dutch Police).
The Dutch witness, Dr. Hirschfeld, who was Secretary General throughout the occupation, definitely confirmed that Rauter was directly subordinate to Himmler, and that the apparent unity of the Police and administration, according to the decree, did not exist in reality.
On Page 21 of his book Axis Rule in Occupied Europe Raphael Lemkin defines the task of the Police as being the liquidation of politically undesirable persons and Jews, just as the main responsibility for the seizure and deportation of the workers in the occupied countries was borne by the Police.
THE PRESIDENT: Would that be a convenient time to break off?
[The Tribunal adjourned until 22 July 1946 at 1000 hours.]
ONE HUNDRED AND EIGHTY-THIRD DAY
Monday, 22 July 1946
Morning Session
THE PRESIDENT: The Tribunal understands that the British Prosecution will answer on behalf of all the prosecutors with reference to the documents to be translated, relating to the organizations of the SS and the political leaders; so shall we deal with those first?
LIEUTENANT COLONEL J. M. G. GRIFFITH-JONES (Junior Counsel for the United Kingdom): My Lord, I am myself dealing with the documents for the political leaders, and my friend, Mr. Elwyn Jones, is dealing with those for the SS.
Perhaps it would be convenient for the Tribunal to take the documents for the political leaders first.
THE PRESIDENT: Yes.
LT. COL. GRIFFITH-JONES: My Lord, I have spoken to Dr. Servatius, who represents the political leaders corps, and we have agreed on the documents which he should submit in his final book. I have had lists printed which show the documents on which we have agreed.
Originally he has submitted six document books, with a total of over 250 documents, some of considerable length. We have agreed that from those a total of 90 odd documents should be included in the final book, and of those 90 we have only—certain passages—to be translated. I have a copy of the document books which have been marked, the passages on which we agree, and the remainder, of course, would be excluded.
THE PRESIDENT: What length will the document book be? Can you tell at all?
LT. COL. GRIFFITH-JONES: Except that there will be about—nearly 100 exhibits, but they will be quite short, the majority of them. The longest, I think, is two pages, and the remaining documents are just short extracts, perhaps a paragraph or two paragraphs.
THE PRESIDENT: Yes.
LT. COL. GRIFFITH-JONES: Perhaps I might say this: Dr. Servatius had included in these books a number of affidavits which we have excluded, because we understood the Tribunal desired affidavits to be heard before the Commissioners. He had also included a number of quotations from Mein Kampf. These, if the Tribunal agree, we have excluded, because we thought that the Tribunal had their own copy of Mein Kampf and it would save work in the translating and printing departments.
For the remainder, much of the matter that was suggested was cumulative, and Dr. Servatius, I think, quite agrees that what we have put down now in Column A will meet his purpose.
There are—I understand, talking to him just before the Tribunal sat this morning—there are certain amendments to this list which he desires to make. He desires to include in Column A Documents 50, 68, 69, and 162, which at the moment are excluded.
My Lord, perhaps it would be convenient if Dr. Servatius and myself discussed the matter further, and perhaps you would entrust us to come to some arrangement about the inclusion or exclusion of those documents.
THE PRESIDENT: Yes, certainly.
LT. COL. GRIFFITH-JONES: I do not know whether Dr. Servatius wishes to say anything.
DR. ROBERT SERVATIUS (Counsel for Leadership Corps of the Nazi Party): Mr. President, I agree with this arrangement, and these minor questions which still require clearing up I will settle with the Prosecution. The books will probably then be reduced to two. There will be two document books left.
THE PRESIDENT: Thank you.
Yes, Mr. Elwyn Jones?
MAJOR F. ELWYN JONES (Junior Counsel for the United Kingdom): If Your Lordship pleases, with regard to the SS documents, Dr. Pelckmann and the representatives of the Prosecution have reached an agreement as to 99 of the documents. It has been agreed that 22 should be excluded and, with regard to the others, some are to be included in toto, and as to the others only extracts are to be included.
As to Documents 31 and 32, Dr. Pelckmann indicated that he was reconsidering his application with regard to these two documents, and it may, therefore, be possible that Dr. Pelckmann will have some observations to make to the Tribunal with regard to them.
With regard to six of the documents, however, the Prosecution and the Defense have not been able to reach an agreement. Dr. Pelckmann insists that those documents are necessary for his case and it might, therefore, be convenient for me to indicate to the Tribunal the Prosecution’s objections with regard to those six documents.
The first is Document Number 69, which is an extract from a speech made before the first meeting of the Reichstag after the Nazi seizure of power by the Social Democrat leader, Wels. This extract states that Wels’ party favored the plea for national equality and denied Germany’s war guilt. I submit, on behalf of the Prosecution, that that extract is wholly cumulative. There is an abundance of evidence of that kind before the Tribunal already. It is in any event, I submit, not relevant to the SS case.
THE PRESIDENT: Germany’s war guilt, at what time?
MAJOR JONES: With regard to the war before the last one.
THE PRESIDENT: Yes.
MAJOR JONES: I finally suggest that if that document is admitted by the Tribunal then it would be proper, in the interests of historical truth, for the extract to be continued to include the severe criticism of the Nazi Party made by Mr. Wels.
The next document is Document 85, which is an extract from the Völkischer Beobachter giving a quotation from William Randolph Hearst’s alleged statement to the Defendant Rosenberg on the 3d of September 1934 to the effect that when that distinguished gentleman was in Germany 3 years ago there was the greatest disorder there; today, the 3d of September 1934, under Hitler’s leadership Germany is a country of order. The Tribunal will remember that this date was about 9 weeks after what even Himmler has described as the appalling murders of the 30th of June 1934. I respectfully submit that that extract is, again, cumulative, irrelevant, and, finally, is of no probative value whatsoever.
The next document is Document 86, which is an extract from the Völkischer Beobachter purporting to be an American athlete’s impression of a journey through Europe in 1934. He states that he is satisfied with what he saw in Germany. Again, I submit that that is cumulative, irrelevant to the SS Case, and of no probative value.
The next document which is in dispute is Document Number 96, which is an extract from a book by an author alleged to be an American which was, significantly, published in Germany in 1935. It is a long extract dealing with concentration camps. It describes a visit by the author to Oranienburg Concentration Camp, in which he refers to the modern sanitary installations there, bedrooms which are apparently as good as those of the American Army; the prisoners apparently ate exactly the same dinners as the camp commandants and the SS guards. The author says that they had three rich meals every day, naturally without luxury, and he goes on in that vein. I do submit that that extract is of no probative value whatsoever.
There are, finally, two further documents, 101 and 102.
Number 101 is an extract from an American magazine purporting to describe the result of certain experiments carried out by American scientists with a vaccine said to be immunizing.
Number 102 is an extract from a book, An American Doctor’s Odyssey, referring to further experiments with agents said to be immunizing and to other experiments in connection with the beriberi disease.
The Prosecution does not, of course, in any way admit the truth of the facts set out in these extracts, but I submit that even if they were true they have only a tu quoque relevancy and I submit should not be included in the documents for the SS organization.
Apart from those documents, the Defending Counsel and the Prosecution have reached an agreement, and there is no more to say, My Lord.
THE PRESIDENT: The Tribunal would like to hear Dr. Pelckmann.
HERR HORST PELCKMANN (Counsel for the SS): Mr. President, I have to deal with various documents which have just been objected to by the Prosecution. First of all, I refer to Document Number SS-31 and Document Number SS-32.
Documents SS-31 and SS-32 have to do with the question whether the SA and the SS demanded that students should enter the SA and the SS. This is a question which is highly important for the SA. The SA have not yet completed their collection of documents. I think these documents are going to be submitted by the SA, and I shall therefore put them aside for the moment. Up for debate are the remaining six documents only. Let us first come to Document Number SS-69.
I should like first to say something in principle with reference to these documents. The documents do not, by any means, deal with the question as to whether what they contain is or was objectively true. They are merely submitted in order to point out how the readers assumed that real facts were being presented, and these facts were decisive for the opinions formed by the German people as well as, of course, by the members of the SS who are part of the German nation; just as they were for the opinions formed by a Party member or a non-Party member.
They are documents dealing with the attitude adopted abroad or in our country. I believe that matters will have to be looked at from a different point of view in this connection than perhaps was done in the case of the individual defendants. The attitude adopted abroad cannot be relevant for the individual defendants, for the Prosecution assert that for the majority of the defendants it would appear to be evident that it was just these major defendants who deceived foreign countries. With reference to the masses of the population, however—and that affects the SS members also—what was thought and done abroad must be decisive in forming an opinion as to whether the Nazi regime is criminal or not. That is the general point of view which I think applies to all these documents.
The first Document Number SS-69 is a speech, as the prosecutor has said, by the Social Democrat member of Reichstag Wels. It is merely to show that this Social Democrat deputy, even after the seizure of power by Hitler, agreed with Hitler that the Treaty of Versailles must be fought against. By that I do not wish to say anything about the justification or nonjustification of the Treaty of Versailles. I am merely trying to show what the masses of the people were thinking and what the followers of Hitler, who had only just come into power, were thinking, when even a Social Democrat agreed with the Party Program on that point. For that reason I consider the documents as relevant, and particularly for the SS, because they, just as all the other Germans, were influenced by such statements in forming their own opinion.
THE PRESIDENT: Do you mean that the document says that the Treaty of Versailles should be fought against by war, or should, be attempted to be changed by negotiations?
HERR PELCKMANN: No, it does not at all mean that the Versailles Treaty should be fought against by war.
Now, as to Documents Number SS-85 and SS-86.
Hearst, the American publisher of world-wide reputation, who as far as I know had considerable influence at that time in America, says, as the Prosecution correctly point out, in September 1934, a few months after the bloody events of 30 June 1934, that when he was in Germany 3 years ago he found the greatest chaos and that today under Hitler’s leadership Germany is a land of perfect order.
Please note—and I must emphasize once more—that I am not referring to the objective facts; I am stating what was said about conditions in Germany by circles abroad—which in my opinion, were of weight in the publishing field—what was spread abroad and what was brought to the notice of the German people by means of the National Socialist propaganda machine, so that the German people, and with them also the bulk of the members of the SS, could not believe anything else than these published statements and saw in them a confirmation of their real belief at the time that here something really was being done for order and thereby also for world peace.
The second statement, in Document Number SS-86, is on somewhat similar lines. It is a report of 27 September headed “America is participating in the Olympic Games.” The man in charge of American athletics had gone into the question very carefully as to whether the American nation ought to participate in the Olympic Games, and he then made a report in America in which he made statements about his experiences in various parts of Germany. He expressed himself very satisfied and was very much in favor of American participation in the Olympic Games.
The result was, as expected, that the committee decided that America would participate in the games. This again constitutes a corroboration, a consolidation and strengthening of German public opinion, and therefore also of the opinion of the bulk of the SS members, that in certain respects foreign countries were adopting an absolutely positive attitude toward the new Germany. It should not be forgotten that the different years, the different dates are most important. When the fundamental questions affecting the Indictment against the organizations were discussed before the Tribunal, from 28 February to 2 March, it was also pointed out that the time at which membership of an organization was acquired must very likely be regarded as a deciding factor. One must take into account in this connection that, when after 1933 the membership of the SS grew considerably, it was surely a decisive factor for the individual contemplating membership to know that, especially in those years following the rise to power, foreign countries too were giving some evidence—I am giving only examples—of their approval. I regret, Mr. President, that I have to dwell on this subject more than perhaps was expected, but it is necessary, because the fundamentals of the defense—at least the defense of the organizations—have not yet been discussed before the Tribunal.
Then we come to Document Number SS-96. Here again it is a voice from abroad—an American journalist. Of course, I am not in a position to investigate what standing this journalist has. But again, the objective importance is that it is the voice of an American journalist whose comments were published in Germany by a well-known German publisher in a book which had a tremendous sale. This American journalist describes, in the pages which I am quoting, among other things, conditions in Germany and conditions in the concentration camps.
To summarize them, they are described as not unfavorable, and I am of the opinion that again this, in 1935, was of importance to the question...
THE PRESIDENT: Could you tell the Tribunal the name of the journalist?
HERR PELCKMANN: Yes; his name is Doug Brinkley, for Douglas Brinkley—D-o-u-g-l-a-s B-r-i-n-k-l-e-y.
THE PRESIDENT: Would you spell it again?
HERR PELCKMANN: Douglas—D-o-u-g-l-a-s; Brinkley—B-r-i-n-k-l-e-y. I had already said that I, of course, know this man even less than the Judges. But one must remember that after all this was published in Germany; and the average German cannot know whether there is a well-known or unknown American journalist of this name.
At any rate, he speaks in detail about conditions in concentration camps, and about the knowledge the Germans and also the SS members had. This statement is relevant because during future hearings and before the commissions I shall show, and have shown, that the knowledge of these conditions in concentration camps was confined to the very small circle of those who were occupied with them.
Finally, Documents SS-101 and 102. Here we are concerned with the question of the medical experiments on living human beings. First of all, I should like to say that I do not by any means maintain that experiments undertaken in concentration camps conform with the principles of humanity. Without detailed evidence I am not capable of passing judgment on this point; but I can prove from scientific publications of recent date that the question of whether experiments which might cause death should be carried out on living men to save the lives of tens or hundreds of thousands of human beings is, at least, argued in scientific circles and, at least according to these documents, has certainly been affirmed by well-known foreign—American and British—scientists.
In this connection, I am assuming that internees in concentration camps—as I have been trying to prove before the Commission and, perhaps, shall continue to prove—volunteered for such experiments. I must point out, however, that evidence that such experiments were carried out abroad on people who did not volunteer is supplied, in my opinion, by the wording of this statement. Document SS-101 ...
THE PRESIDENT: Would you mind pausing there? I thought you said that they had volunteered for it.
HERR PELCKMANN: I said that those documents do not show clearly that experiments made abroad were made on real volunteers, whereas I contend and must contend that according to testimony given up to now, experiments in concentration camps were carried out on volunteers. It ...
THE PRESIDENT: I was only asking you what these documents that you are speaking of, 101 and 102, said. Did you say that they show that the people who were experimented on volunteered for the experiments?
HERR PELCKMANN: No. I said, Mr. President, that it is different, and neither one nor the other of the documents states quite clearly what the position was. One document seems to indicate that the people did not volunteer. What appears of more importance to me is that...
MAJOR JONES: If the Tribunal please, I do not think that the defending counsel’s statement should go without challenge. It appears from the Document 101, the report from the magazine, which is not a scientific magazine—it is the Time magazine, which I understand is not a work of science—that the extract is silent on the question whether the persons who were used for these experiments were volunteers. The second extract from Document 102 states quite clearly that the subjects of the experiments were volunteers.
HERR PELCKMANN: Quite right. The second document deals with voluntary experiments. The first document, however, leaves the question open. But I conclude from circumstances shown in the document that it does not seem to be absolutely certain whether there were volunteers. It is an extract from a fairly recent publication, Time of 24 June 1946. It deals with a new remedy for tuberculosis. American scientists carried out experiments with antituberculosis inoculations on 3,000 Indians. Half of them were inoculated with this drug. Half were given a harmless salt injection; 40 tuberculosis cases developed; 185 cases did not show any reaction, and 38 died. And these experiments were carried out on Indians who were free from tuberculosis.
The other document is a German translation of an American book, An American Doctor’s Odyssey, written by an American doctor. In it he describes how the research worker, Fraser, experimented with the well-known disease of beriberi on criminals in Bilibid who, as the Prosecution have mentioned, earned for that a small perquisite and, if the experiments were dangerous, they could obtain a reduction in their sentence. These experiments were tried on the inmates of the lunatic asylum of Kuvala Lumpur and were carried out in the following manner: Part of the inmates were given unpolished rice to eat, and part were given polished rice. The second group of these inmates became ill. Then the two groups were exchanged, and the sick became healthy and the healthy, sick. The effect of these experiments and of the disease in general is very severe. The patients cannot leave the bed and often die of a weak heart. I quote from this book: “I shall not forget the impression made upon me by the huge hospital for beriberi incurables at Singapore, where these poor people were crawling around on their hands...”
THE PRESIDENT: We do not need all the details of it.
HERR PELCKMANN: I am merely going to say that we are concerned here with a contested scientific opinion...
MAJOR JONES: I am intervening again. But such a sinister implication is being given by the alleged purport of these extracts by defending counsel that I really must protest. The report that is given is of the symptoms of beriberi disease; it is not an account of the result of these experiments at all. The experiments took this form: some Malayans were tested with their ordinary diet of polished rice, which is said to bring on beriberi; other prisoners were tested with a diet of unpolished rice. And it was proven that a diet of polished rice, which is their usual diet, brought on beriberi. There is no sinister import. There is no Dr. Rascher element about this.
HERR PELCKMANN: I should like finally to come to the subjective angle. It is alleged by the Defense that these experiments too were kept extraordinarily secret. And if they had become known...
THE PRESIDENT: We have got the essentials of the arguments.
HERR PELCKMANN: Thank you.
THE PRESIDENT: We will hear now from the United States Prosecutor with reference to the General Staff and High Command, the SD, and the Gestapo.
MR. THOMAS J. DODD (Executive Trial Counsel for the United States): Mr. President, with reference to the SD and the Gestapo we have come to a complete agreement with the defense counsel so there is no contest concerning the documents. They number some 150 pages for the Gestapo and some 80 pages for the SD.
With reference to the High Command and the General Staff, we have not been able to agree on a few documents. In the first Document Book Number 1, Document Number 5, we have objected to its translation certainly, because it has to do with the knowledge of General Busse, about the political feelings of some of the generals toward National Socialism, and it’s simply his own opinion and does not purport to be anything more. Attached to it are graphs and charts and so on, and it’s made to appear that it is based upon opinions which General Busse has gathered from conversations—nothing to show that he is any authority on the subject or would be in a position to know anything beyond the ordinary capacities of any other man.
Document Number 8 we also object to because again it is an instrument based upon General Winter’s collection of the opinions of other people. Insofar as we can tell, General Winter made some kind of a poll—a private poll, to be sure—of his associates, and asked them what their opinions were. And he...
THE PRESIDENT: What is the nature of the actual document. Is it a publication?
MR. DODD: No, Sir, it is not. It is in the form of a statement by General Winter.
THE PRESIDENT: Is it sworn to?
MR. DODD: Yes, Sir, it is.
THE PRESIDENT: Busse and Winter, they are both sworn, are they?
MR. DODD: Yes, Sir, they are and they submitted their statements, these two men.
THE PRESIDENT: And what is the date of them, 1946?
MR. DODD: Yes, Sir, very recently. Sometime in June 1946.
THE PRESIDENT: What’s the date of that one?
MR. DODD: One of them is July—anyway within the last 2 months.
The Document Number 9 is of the same character again. It is a statement based on written opinion. In all our statements which have been supplied by members of the German armed services, and in any case all of these statements which are affirmed to and sworn, no statement has been sworn to by themselves. The individual who makes the affidavit goes about and inquires and he, on his oath, states that these things are true or represents that they are, without showing that the persons who gave him the information have done so on an affirmation or on oath.
Document Number 11 is a newspaper article about General Marshall’s report to the Secretary of War of the United States. That has already been introduced here by the Defense and our objection is somewhat technical, but I think nevertheless necessary and valuable. We feel that a newspaper extract should not be used, particularly when the document itself is in evidence, and if the counsel will only use what already is in evidence, it will have no troubles. It is Exhibit Jodl-56. We have not been able to make that clear to the Defense Counsel, so far.
Document Number 13 is again a poll, conducted by—a statement by General Winter rather, based on another one of his private polls of his fellow prisoners, concerning their attitude toward the so-called Commissar Order, and besides this matter has been handled before the Commission established by the Tribunal, and there the matters were objected to and sustained by the Commissioners. But in any event we object again here, even to the translation, because it seems of no value at all to have General Winter’s submitted statement, based on this kind of information.
Document Number 20 is a letter written by a General Seidler. The letter written by General Seidler, of course, is not a sworn statement. This is Document Number 20, and we objected to it on that ground. Besides we have very grave doubt about its value in any event.
Document Book 2 contains one document which we object to. That is Document Number 15. That also is not an affidavit, but instead it is an unsworn letter from General Von Graevenitz to General Von Kleist—it is written under the date of June 24, 1946—which, in our judgment, is of no value; and we do not see that it would be helpful in any event to the Tribunal. Other than that, we have no differences.
THE PRESIDENT: Mr. Dodd, will you tell us with reference to these documents that you object to, how long they are?
MR. DODD: They average about—from what I see of the German text—two to three pages, and attached to some are drafts. Do you mean the whole, in total?
THE PRESIDENT: Yes, take them in order, starting with Number 5.
MR. DODD: That has two pages. It is the statement with the draft attached to it.
THE PRESIDENT: What about Winter’s Number 8?
MR. DODD: That’s seven pages and two pages of drafts, which makes it altogether nine pages. The newspaper article about General Marshall’s report, I don’t know. So far, only one typewritten page. Document Number 13 is a 10-page document. General Seidler’s letter is one page, and Document Number 15 is only one page. It is also a letter.
THE PRESIDENT: Thank you. Now, Dr. Laternser.
DR. HANS LATERNSER (Counsel for General Staff and High Command of the Armed Forces): There still remain certain documents which are disputed. First of all, Document Number Mil-5. The table submitted with Number 5, on Page 29, refers only to historically established facts which are graphically represented in that table in order to show their extent and the effect they had within the accused military leadership. The affidavit of General Busse, which is attached, is not intended to prove facts which are historically known in any case, but merely to explain the table. It is not, therefore, a private opinion on the part of General Busse. The admissibility of that table can therefore not be objected to.
I will take Documents Mil-8 and 9 together, because the objections raised against them are similar. The lists contained therein are meant to facilitate the Tribunal’s judgment on the circle of persons falling under the Indictment. Thus we are not concerned with written statements but with lists and I am only too willing, if the technical department is too busy, to furnish the necessary number of copies of these lists myself.
The basis for these lists is Exhibit Number USA-778, (Document Number 3739-PS) which was submitted by the Prosecution on 2 March 1946. This Document USA-778 which was prepared by the Prosecution contains the names of all the persons who are said to come under the Indictment and also shows the periods during which they held office. This Prosecution document, Exhibit USA-778, does not state the source from which these details originate, therefore they are merely assertions on the part of the Prosecution. Using this Exhibit Number USA-778 as a basis, however, I asked General Winter to draw up the submitted lists, Number Mil-8 and 9, to the best of his knowledge and conscience. In contrast to the lists submitted by the Prosecution the Tribunal will be able to judge the source of these lists particularly well, for General Winter appeared personally before the Tribunal as a witness in Jodl’s case. The list Number 8 contains the names of persons dead and further those of individually accused persons and those whose posts were only temporary, not permanent. According to the lists that makes 56 persons and for all practical purposes of judgment that number need not be taken into account. In this list are shown also the many cases where commanding generals were relieved of their positions on account of serious differences of opinion.
The list Number Mil-9 gives the names of 31 people who occupied positions for less than 6 months and to whom the Prosecution have referred. This document is relevant with regard to alleged conspiracy. If therefore the Tribunal desires to have a good factual basis for judging the composition of the circle of persons indicted, then these lists should be accepted. Moreover, the list already accepted by the Prosecution, USA-778, can only refer to the same or similar sources as those of the lists which I am submitting, and the lists of the Defense quote the sources and can be checked. If I had used the same method as the Prosecution, I would only have had to submit the lists without the addition of an affidavit. Therefore, I beg that these documents be admitted.
Number Mil-11 has already been accepted in the same form by the Tribunal as Document Number Jodl-56, a fact which, incidentally, I mentioned at once to the Prosecution, and attempts to make that clear to me were really not necessary.
THE PRESIDENT: Number 11 we understood was a newspaper report with, reference to General Marshall’s report.
DR. LATERNSER: When that objection was brought up I immediately pointed out that the same document to which I was going to refer had already been submitted during the proceedings against General Jodl. That is the Marshall report. Therefore, I withdraw this document of mine.
THE PRESIDENT: You are withdrawing it? I see.
DR. LATERNSER: Yes, as the document has already been submitted. I merely wanted to include it in my book for the sake of having it complete. Then I would just like to remark, Mr. President, that attempts on the part of the Prosecution to make this clear to me are not necessary, because I usually understand that kind of argument fairly easily.
Document Number Mil-13 is also based on USA-778 as far as the circle of indicted persons is concerned. This list, also compiled by General Winter, is meant to complete the picture proving the correct attitude on the part of the generals toward the Commissar Order. As that list—based on the list submitted by the Prosecution—and the affidavit attached to it give the exact sources, the document can readily be checked as to its worth. The objections on the part of the Prosecution may detract from its value as evidence, but the documentary character of the document cannot be destroyed; therefore, this list, too, should be admitted.
THE PRESIDENT: Hasn’t Document Number 13, that is to say the subject of the attitude of the generals to the Commissar Order, already been dealt with before the Commission?
DR. LATERNSER: Yes, Mr. President, but examination of witnesses and submission of affidavits cannot give the same picture as the one I am attempting to give by means of this document. This document contains the names of the generals who belonged to that so-called group; in a special column I have marked whether the order was received and in another column whether the order was carried out, and these facts which General Winter mentions here are explained by him in his affidavit which is attached to the list itself. He goes on to quote the sources from which he had gained his knowledge, so that I can examine the sources and so the evidential value.
THE PRESIDENT: Dr. Laternser, you have called a certain number of witnesses before the Commission, have you not?
DR. LATERNSER: Yes. I had eight witnesses.
THE PRESIDENT: I suppose all of them, or almost all of them dealt with this subject. You put in a certain number of affidavits and those affidavits have dealt with this subject, have they not?
DR. LATERNSER: Yes.
THE PRESIDENT: How many affidavits have you put in before the Commission?
DR. LATERNSER: I cannot, Mr. President, give you the exact number at the moment. Affidavits have been submitted by me on only two matters.
MR. DODD: There were 72 of them, Mr. President. He put in 72 of those affidavits.
THE PRESIDENT: Well, isn’t this really an attempt to extend and make more exhaustive the proof which you are submitting?
DR. LATERNSER: Mr. President, this Commissar Order no doubt is a criminal order, and I was merely trying to show clearly to the Tribunal by means of this list how well the high generals had conducted themselves on the point; I had summarized the outcome of that part of the evidence in this list. General Winter has compiled the list, so the Tribunal can decide whether this list is valuable or not. I am merely trying to say that the objections raised by the Prosecution can affect the evidential value of this document but not the document itself. I ask that it be admitted.
THE PRESIDENT: But if you put in 72 or 82 affidavits before the Commission, why shouldn’t you put in this document before the Commission?
DR. LATERNSER: Well, but here we are not concerned with affidavits. Up to now only affidavits have been submitted whereas here in Document Number Mil-13, the most important thing is the list, and the affidavits which are attached are merely an appendix to that list. They are intended to give an explanation of the list. The main feature of this document, therefore, is the list and not just the explanatory affidavit, so that it would not have been admissible before the Commission.
THE PRESIDENT: Yes, Dr. Laternser, but it doesn’t make it inadmissible before the Commission that it is an affidavit exhibiting a list. It could have been put in before the Commission, and if it had been put in before the Commission it would have been brought to our notice as is, of course, everything that goes before the Commission. Also, it is pointed out to me of all these documents, they could all have been put in before the Commission.
DR. LATERNSER: No, Mr. President, that point of view cannot be right. Up to now we could merely submit affidavits to the Commission and not documents. The documents were to be included in the document books, and that is what we are discussing today. This Mil-13 is a document, that is, the list, whereas the affidavit is purely of secondary character. It is merely meant to give an explanation. I ask that a decision be made.
THE PRESIDENT: Well, we hear what you say and we will consider the matter.
DR. LATERNSER: Then I wish to speak about Documents Mil-15 and Mil-20. Both are letters, the admissibility of which is of importance to me particularly since ordinary letters have frequently been admitted as evidence during this trial. I will remind you in particular of the Rainer letter in the case of the Defendant Dr. Seyss-Inquart. Then there is the letter of Generaloberst Zeitzler, dated 8 July 1946, which is Mil-20. It is important because it shows that as a result of the efforts of a general who comes within the indicted group the Commissar Order was rescinded. That is why this letter assumes particular significance for me as defense counsel of the indicted group.
THE PRESIDENT: Will you give me the dates of the letters?
DR. LATERNSER: The letter is dated 8 July 1946, and it was addressed to me. That, Mr. President, is all I have to say to the objections raised by the Prosecution.
THE PRESIDENT: Thank you. Mr. Dodd, that concludes the arguments that we need hear this morning, does it not?
MR. DODD: Yes.
THE PRESIDENT: Well, the Tribunal will consider your suggestions. I call on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. STEINBAUER: Gentlemen of the Tribunal, on Friday I was on Page 71 and, with the permission of the Tribunal, I should like to continue on that page.
From what has been said it is shown that the Reich Commissioner had to assume only a limited responsibility for the German Police, that is to say, insofar as he used them for the execution of his orders in civilian matters. When the Reich Commissioner called for their help, the Police as a rule first got in touch with Himmler. But in all matters which came within the jurisdiction of the Police, the Reich Commissioner could neither issue orders to them nor intervene de jure in their activity. This fact must never be lost sight of when judging the Jewish question, the concentration camps, and the deportations.
The admissibility of special courts and police protective custody is recognized even in the report of the Dutch Government. The Police were responsible for the arrests and the management of the concentration and prison camps. As explained in detail by the defendant when examined as a witness, he went to great trouble, as Wimmer and Schwebel also confirmed, to put an end to abuses he had heard about in the camps. I shall refer only briefly to the treatment of the so-called Dutch reprisal hostages in whose case the defendant was very interested, also to the fact that he succeeded in obtaining permission for the members of the clergy who had been imprisoned in the Reich to return to the Netherlands.
Having thus briefly outlined the position of the Police and their tremendous power, I shall pass on to one of the main joints of the Indictment—the Jewish question.
In their trial brief the Prosecution state that Reich Commissioner Seyss-Inquart alone bears full responsibility for the carrying out of the Nazi program to persecute the Jews in Holland, and that in his Amsterdam speech before the members of the NSDAP on 13 March 1941 he himself declared: “To us the Jews are not Dutchmen; to National Socialism and to the National Socialist Reich the Jews represent the enemy.” In that speech Seyss-Inquart also explains why, as defender of the interests of the Reich, he believed he had to adopt that attitude toward the Jews. He knew them to be people who, through their influence on the German people, would paralyze their will to resist, and who would always prove to be the enemies of the German people. But this speech shows more than anything else that Seyss-Inquart considered all measures against the Jews as security measures for the duration of the war only. He speaks of his desire to create tolerable measures during the period of transition and says that after the occupation had come to an end it would be for the Dutch people to decide what was to be the fate of the Jews. It was quite natural and obvious for the Jews, as a result of the treatment they had experienced in Germany and later in the occupied countries, to become no matter what their nationality the most bitter opponents of National Socialist Germany. That had to be taken into account by every official who had to look after the interests of the Reich in occupied territories. This also makes the speech referred to in the beginning understandable. Therefore when Seyss-Inquart was commissioned by the Führer decree to safeguard the interests of the Reich in Holland, he also had to take some kind of stand on the Jewish question. It was his intention to remove the Jews from leading positions in the State and in the economic life of the country for the duration of the occupation, but otherwise to refrain from further measures against them. Actually, the measures instituted by him merely provided that those Jews who were working for the State were sent on leave or were retired with a pension.
In the meantime Adolf Hitler had transferred the handling of the whole Jewish question to Himmler, or to Heydrich, who received full powers for the whole sphere of interest of the Reich. The Security Police, dissatisfied with the dilatory way in which the Reich Commissioner handled the Jewish problem, availed themselves of their full powers and had established an office in Amsterdam, whose interference was the cause of constant friction with the deputy of the Reich Commissioner in Amsterdam. The Security Police claimed that they were unable to guarantee the safety of the Reich, with which task they had been entrusted, unless further measures against the Jews were taken to restrict their activities in the field of economy and limit their personal liberties. English and French people had been assembled in separate camps and had been driven over the Reich border after their property had been confiscated as enemy property, which treatment Germans living abroad had likewise experienced in enemy countries. The Police made it known that very many Jews were actually involved, and often took a leading part in all the more serious attempts at sabotage and other forms of resistance. The Dutch Jews also, some of whose ancestors had come from proud Spain, and many of whom had come from Germany and the East as emigrants, had already held leading positions before the occupation in the economic field, and especially in the press, which they had used to combat National Socialism. When the enemy entered the country, they knew it would be a life-and-death struggle and, contrary to Shylock’s words in the Merchant of Venice: “For sufferance is the badge of all our tribe,” they not only placed their property at the disposal of the resistance movement but also their lives. The Reich Commissioner could not close his eyes to this fact. Because of the great number of persons involved, it was simply not possible to mete out to the Jews treatment similar to that of the English or the French or other enemy aliens by confining them in a camp. Measures restricting personal freedom of action were taken by the Higher SS and Police Leader as Himmler’s direct subordinate, or by the Security Police on direct orders from Heydrich. Included in these measures was also the introduction of the Jewish star—incidentally, the Dutch did not consider this a mark of abasement. At the same time that measures affecting the freedom of movement were taken, the property of Jewish organizations and Jews was also placed under control. The Reich Commissioner appointed Dr. Bömker his special trustee and gave him the task of supervising the measures taken by the Police—insofar as this was administratively possible—and of preventing excesses. In fact, he intervened a number of times and was able to prevent unjustified police measures.
A large part of the activity of the Reich Commissioner’s office was concerned with economic measures, and the description by the Dutch Government Commissioner for Repatriation, Exhibit Number USA-195, (Document Number 1726-PS) gives a clear picture of the entire Jewish problem in Holland. The chart shows that the Reich Commissioner was able to delay measures against the Jews for almost a year, and that really intensive measures did not begin until February 1941 with the formation of the Central Office for Jewish Emigration which was ordered by Heydrich and which was under the supervision of SS Obersturmführer De Funte. A comparison with measures taken against the Jews in Germany itself and in other occupied countries shows a pronounced uniformity, which likewise indicates that the measures in question were not taken by the Reich Commissioner but were measures applied uniformly by Reich offices, in other words, by the Police. The Reich Commissioner also saw to it that Jewish property was sequestrated in an orderly manner. When it finally came to the liquidation of the property, following orders from the Berlin central offices, proceeds from the liquidation were not confiscated, but credited to the Jewish owners. Toward the end the Jewish administrative office had accumulated some 500 million guilders.
In order to put an end to the constant pressure and interference by the Police through Heydrich, the Reich Commissioner, together with the Higher SS and Police Leader, tried to stabilize the Dutch Jewish question by assembling the Jews affected by the restrictive regulations in two districts of Amsterdam and in two camps, where they were to live under their own administration. One of the camps was Westerborg, where they had a Jewish camp police of their own. On the outside, the camp was under the supervision of the Dutch police. When, in the spring of 1945, it was taken by the Canadians, the British radio reported that they found the Jews housed there to be in good condition, unlike the state of affairs in other camps which were found outside Holland. The second confinement camp was to be Vught. Himmler made a concentration camp out of it. The Jewish community of Amsterdam was under the direction of Ascher, a merchant who dealt in precious stones. Funds were made available to the Jewish community, especially for school purposes; negotiations were carried out with firms to provide work in the Jewish quarters. At the beginning of 1942 Heydrich, or rather Himmler, demanded the transfer of the Dutch Jews to assembly camps situated in Germany. Both referred to the full powers given them by the Führer and pointed out that sooner or later an invasion had to be expected. Holland seemed a likely territory, because the ports of Rotterdam and Amsterdam provided suitable supply bases, and from there the British would take the shortest route to the Ruhr, the industrial center of Germany. To permit so many people extremely hostile to Germany to remain in a territory which would see future operations in the battle against Britain was inconsistent with the safety of the Reich. The Police were adamant and all the Reich Commissioner was able to do was to take steps to make the evacuation by the Police more humane. The Reich Commissioner succeeded in getting thousands of Jews exempted so that these people were able to remain in Holland. The defendant got his agents to inspect the internment camps and, insofar as he was able to do so, he managed to have bad conditions remedied by the intervention of the Christian Church. The order for the evacuation was not given by the defendant but by Himmler or Heydrich. The defendant did not even give his consent for the evacuation. As a result of representations by the defendant, a number of Jews were taken to Theresienstadt, which was said to be a camp supposedly under the supervision of international agencies, such as the Red Cross, and where the Jews were said to be well treated. As a result of exemption regulations introduced at the request of the Reich Commissioner, a great many Jews were exempted from evacuation. The afore-mentioned Dr. Bömker was appointed to supervise the transport of the Jews in Holland and in many cases succeeded in getting the Higher SS and Police Leader to remedy bad conditions. Most of the Jews were taken to Poland, and probably one of the most terrible sentences is that to be found in Exhibit Number USA-195—a document submitted by the Prosecution—which reads:
“Total number of deportees: 117,000 .... After their leaving Holland all trace of them was lost. Absorbed in an agglomeration of deportees from almost all occupied countries, they can no longer be identified as a separate group.”
Now comes the cardinal question of the whole Indictment, the dramatic climax in the Trial against this defendant. Did the defendant know of the fate of these many unfortunate and innocent people; did he intentionally approve of their fate or is he guilty because he did not prevent it?
Again and again, the defendant has solemnly declared, even when questioned as a witness under oath, that he did not know anything about this, and that he was of the opinion that the Jews really were going to be resettled in the East for the duration of the war.
When in 1942 or 1943 the defendant had an opportunity of speaking to Adolf Hitler himself, when he had to make a report to him, he steered the conversation round to the Jewish question. When the Reich Commissioner pointed out that the evacuation of the Jews was causing serious unrest in the Netherlands, Adolf Hitler replied that he had to segregate the Jews from the body of the German people, because they were a destructive element, and that he wanted to resettle them in the East. When Himmler, the Chief of the SS and of the German Police, was questioned by the defendant at the beginning of 1944, all he said in answer to the Reich Commissioner’s apprehensions was that he should not be worried about his Jews, his Dutch Jews were his best workers.
The government representatives who had been sent to inspect some of the camps returned with the report that the Jews were getting along well and that they were satisfied. News from the deportees reached the Netherlands at regular intervals, although it became less frequent as time went on. Now that the heavy curtain which concealed the horror of these mass murders has been lifted, we know the circumstances and the truth. The scrupulously careful probings in this Trial especially have revealed the diabolical manner in which Hitler and Himmler knew how to disguise and conceal their criminal intentions concerning the final solution of the Jewish question. When I read the Dutch report about the Jewish question for the first time, I myself was deeply moved. This is the document which, together with the so-called Hossbach document—the last will of Hitler of the year 1937—I have, especially submitted to my client. As for the Hossbach document, in which the evacuation of 1 million Austrians was demanded, Dr. Seyss-Inquart told me that he had never seen it and had also never heard of it. He said: “If I had known about such intention I would never have been a party to it.”
Also when I submitted to him the document concerning the Jews, he told me in a way which convinced me that at the time he knew nothing about the “final solution” and the happenings in the extermination camps. When I then asked him why he did not resign when he found he could not prevail upon Himmler and his accomplices, especially concerning the Jewish question, he told me that, after all, I too, had been a soldier and knew that a soldier must not desert in wartime. He had arrived at the conclusion that if he had remained in his post, quite apart from his other tasks, it was because he doubted very much that the Netherlands would fare any better under a successor.
As a defense counsel and jurist, I must add the following: One could not know of the measures of extermination which the Prosecution have mentioned. If extermination did take place to the extent alleged, then these are the acts of a special group of Himmler’s hangmen resulting only from a desperate situation. But in penal law, the principle applies that the causal nexus is interrupted if an independent criminal act interposes. This is the case here. Before I conclude the most difficult chapter of the whole Indictment I should still like to examine the question, as to whether the statement of the defendant, that he actually could not have had any knowledge of the terrible crimes which were committed in the extermination camps, is, in fact, credible...
THE PRESIDENT: Wouldn’t that be a convenient time to break off?
[A recess was taken.]
THE PRESIDENT: I will deal with these documents. The documents objected to in the case of the SS, 69, 85, 86, 96, 101, and 102, are all disallowed.
In the case of the SD and the Gestapo all the documents are agreed.
In the case of the High Command, the Tribunal allows the Documents 8 and 9 to be translated and put in the document book. Number 11 is withdrawn. Numbers 5, 13, 15, and 20 may be submitted to the Commissioners, but they will not be translated for the document books. That is all.
Now, Dr. Steinbauer.
DR. STEINBAUER: I continue.
First of all I should like to present the testimony of a French medical doctor, who himself was a prisoner in an extermination camp for a long time. This is Dr. Goutbien from Montgeron (Seine-et-Oise), who writes:
“It is difficult for a normal human being to picture exactly what a concentration camp, which is designated in the German language by the two letters ‘KZ,’ is like.
“It is difficult for various reasons: First of all, a man brought up according to the principles of our civilization, which is based on the elementary Christian humanitarian doctrine, cannot believe the statements made by the victims of so many atrocities; the sadism, the exaggerated refinement used in causing suffering, go beyond the normal powers of feeling; moreover, the Nazis tried to conceal their crimes in a hypocritical way, so that a foreigner who might have inspected a concentration camp 2 or 3 years ago would have been impressed by the order and cleanliness.
“If a jurist had examined the execution cases, he would always have found at least sufficient reasons, if not valid ones, for their justification. Finally, if a doctor had searched for medical records, he could very easily have concluded that the causes of death were normal.
“So heavy was the curtain which covered the concentration camps, so careful were the SS to see that it was so kept—and so jealously did they guard the secrets! The SS tried to give a legal appearance to their crimes. We have here a characteristic feature of Hitlerian hypocrisy.”
The Jesuit, Father Küble, also expresses himself in a similar vein in his book, Die Konzentrationslager, eine Gewissensfrage für das deutsche Volk und für die Welt (The Concentration Camps—a Question of Conscience for the German People and the World). He writes, Page 19:
“... and he believed it possible to prevent discovery by an absolutely impenetrable ring of silence with which he surrounded his works. This ring was so tightly drawn that a German had to travel abroad to learn something concrete about the camps and to read there about these ‘Soldiers of the Marshes’ (Moorsoldaten). At home books like these did not exist, and one learned only very little from hearsay. Nobody came out of the worst camps, and the wrongdoers themselves were ‘liquidated’ from time to time, so that they could not tell anything. But the few who got out of the less terrible camps were so intimidated, that they gave only quite general, obscure hints—just enough to create in the entire people a general feeling of horror of these mysterious places.”
But even the little which went from mouth to mouth never came to the knowledge of higher officials of the Third Reich, for if they followed up these things, the Police learned about it and took care to see that the bearers of such “atrocity propaganda” kept silent. Therefore, as time went on one refrained from telling anything to these officials.
But the most important testimony is that of one who knows, who himself had an active share in the liquidation of the Jews. On 25 June 1946 Dieter Wisliceny, the special representative of Eichmann, who was in charge of the liquidation of the Jews, was questioned as a witness by the appointed judge of this Tribunal. He stated that commissions of the International Red Cross or foreign diplomats were conducted to Theresienstadt in order to make it appear that conditions were normal. The Jews who were brought to Auschwitz were forced to write postcards before they were murdered; these postcards were then mailed at long intervals in order to create the impression that the persons were still alive.
He invited various representatives of the press. To the specific question, “Under whose jurisdiction is the Jewish question in the occupied countries, under the commander of the Order Police, the Security Police, or the Security Service?” he gave the answer: “According to my knowledge, the Jewish question in the other occupied countries is an affair of the Higher SS and Police Leader, according to a special order by Himmler.”
In order to make the deception even greater, 500 Reichsmark, for instance, would be demanded from the Slovak Government as settlement contribution for every Jew. I confronted the defendant with this, and he told me that Himmler also demanded from him a settlement contribution of 400 Reichsmark for every Dutch Jew. As Reich Commissioner he refused this, because of the inadequate information about the actual settlement of the Jews. Also he argued that the final settlement would have to be left over until the peace.
During his examination the defendant, of his own accord, mentioned individual cases of sterilization. The applications I made to have the letters written by Seyss-Inquart to Himmler procured as evidence, taken in conjunction with the statement of the defendant, show the following facts:
Contrary to the statement of the then 18-year-old informant Hildegard Kunze, Seyss-Inquart never reported through any sort of official channels to Himmler about the Jewish question. What happened was that Seyss-Inquart asked Himmler not to aggravate the situation of the Jews in the Netherlands any further, referring in this connection to the measures which had been carried out in the meantime against the Jews and which exceeded the measures in the Reich, and at the same time pointing out the cases of sterilization.
Seyss-Inquart took an immediate stand against the sterilization of women and made a statement to the Christian Churches that no coercion must be exercised. As a matter of fact, after a short time there were no further cases.
As regards the case itself, the defendant can only be made responsible insofar as he did not take an immediate stand against it, without being sure of course of being able to prevent the action. The reasons for the attitude of the defendant are given in the letter which it was requested should be put in evidence. He was worried that the position of the Jews should be made even worse and supposed that these Jews would be spared further attention from the Police in the future.
In any case, insofar as measures against the Jews went through the defendant, they were taken only as measures against hostile foreigners, for reasons which the defendant mentioned in his speech of 21 March 1941 in Amsterdam. Whatever happened beyond that was the express order of the Reich Central Agencies, especially Heydrich, and was mostly carried out by organs of these Reich Central Agencies themselves.
A further count of the Indictment is the assertion that the defendant as Reich Commissioner, in pursuance of the planned policy to weaken and exterminate the peoples of the occupied countries, had deliberately neglected food supplies for the Dutch, and this finally brought about a hunger crisis.
Such allegations appear to be refuted by the testimony of the witnesses Dr. Hirschfeld and Van der Vense, as well as by the statements of the defendant himself. In the interests of the population the whole machinery of food supply was from the very beginning under Dutch direction, although it was known to the Reich Commissioner that it was particularly in this field that leading cells of the resistance movement had established themselves. The food supply in the Netherlands was certainly not worse than in Germany, from whom they even received supplies of grain. As late as 1944 the ration amounted to 1,800 calories and before that 2,500 calories, which was supplemented by a great variety of things.
The Reich Commissioner succeeded in putting a stop to the knapsack traffic of the Armed Forces, which was mentioned in the cross-examination, by intervening with the Reich Food Estate—even if it was not until 1943.
How much was done by the defendant to improve the food supplies of the Dutch, for example by developing the northeast polders, and by resisting the excessive demands of the Reich, is confirmed by the witness Van der Vense.
That the Dutch production of nitrogen could be reserved for Dutch agriculture until September 1944 is due exclusively to the defendant. From the autumn of 1944 on, the situation with regard to food supplies deteriorated considerably. Most of the country was in the fighting zone after the invasion, and the traffic routes had been smashed by countless air attacks. This created a very difficult food situation, particularly in the west of Holland, where millions of people were crowded into a small area in three large cities. In view of the small number of occupation troops, it would have been an egregious blunder to drive these crowded masses to desperate resistance by planned starvation.
When in September 1944 there was a strike of railway men and barge men, engineered by the London exile government, which was counting on a favorable outcome of the battle near Arnhem and a German collapse in the very near future, this, seen under the aspect of international law, was a state of emergency in which the country had placed herself vis-à-vis the occupying power. It was only natural that the Wehrmacht used all available shipping space for its own defense and to secure its food supplies.
In order to avoid repetition, may I refer to the testimony of Van der Vense and Dr. Hirschfeld and stress the most important point, namely, that the witness Dr. Hirschfeld testified that on 16 October 1944 the Reich Commissioner had already given the order for lifting the ban on shipping traffic. He could have reckoned with the fact that a blockade of 4 weeks, which was not intended as a reprisal, would not cause any damage, because sufficient foodstocks were available or could be sent into Holland in the months of November and December, but what he really did was to lift the embargo at an earlier date, organize emergency transport and import food from the northeastern provinces, using for this German transport.
The failure of the Dutch transport system, the constant day and night enemy air attacks, the acts of sabotage by the resistance movement, and finally the serious coal shortage hampered the supply operations, so that the state of emergency caused by the strike cannot in any way be laid to the charge of the defendant as a criminal offense.
In any case, the statistics submitted by me showed that during the entire period of the occupation, until the middle of 1944, the population steadily increased, and that general standards of living in spite of wartime conditions did not deteriorate to any considerable extent.
As the food situation deteriorated more and more because of the war, the defendant arranged for food to be brought in by German trains, and also made food available for children from German Wehrmacht stocks. He supported the welfare work of the churches and of the Red Cross, although the Geneva badge was often misused by the resistance movement. The Crown Prince of Sweden, as President of the Swedish Red Cross, expressed his special thanks to the Reich Commissioner. Finally, the Reich Commissioner contacted the Dutch Government-in-Exile through their confidential agents, and in this manner brought about an agreement with the Allied High Command, whereby supplies of food for Holland were secured and the occupation actually brought to an end.
In Allied military circles at that time one still expected the resistance to continue for another 60 days. The German occupation troops in the Netherlands would certainly have been able to hold out for this length of time, but this would have meant that the country and its population would have perished.
I come now to the last count of the French indictment, that of the floods and destruction caused by the occupying power. Even if the Prosecution had not brought up this point, then I, as his defense counsel, would have discussed this matter before the Tribunal, because it is this point perhaps more than any other which makes the defendant appear in another light—a very favorable light. In referring to the testimony of the witnesses Wimmer, Schwebel, and Dr. Hirschfeld, also that of General Von Kleffel, I should like to make the following brief statement: The Tribunal are perhaps aware that 40 percent of the total area of the Netherlands lies below sea level. In the course of centuries of hard work the land was wrested from the sea and converted into fertile farming land. Mighty dikes protect the land; locks and pumping installations regulate the entry of water and traffic on the inland waterways. The constant struggle against storms and water have made Dutchmen a proud and freedom-loving people. “God has created the earth, but we have created our country ourselves” says a Dutch proverb.
When the Canadian troops thrust toward the north, the Reich Commissioner did not take the road back to the Reich from Groningen, as many people expected him to do, but returned to The Hague in order to carry out his task until the end. He feared that the collapsing Reich might adopt a policy of desperation which would lead to the destruction of a country as vulnerable as Holland, where there were 271 people to the square kilometer.
The legendary battle of the Goths in which everything is utterly destroyed became an obsession with many. It was Goebbels who said in his boastful manner that if they must go, they would slam the door with such a bang that the whole world would hear. The Reich Commissioner warned the people against such ideas. In fact, the “scorched earth” order was given and it would have meant the destruction of all technical installations in Holland, including dams and locks, and laying waste two-thirds of the country. Acting together with Minister Speer and Dönitz, he prevented all this. This has also been confirmed in my questionnaire by the commander, General Von Kleffel, and acknowledged by a U.S. Army Chief of Staff, Bedell Smith. Historical monuments were also to be destroyed, as has been testified by Schwebel.
The defendant’s counsel of General Christiansen has informed me that in addition to the technical troops of the Armed Forces who dynamited and flooded those installations which military necessity justified, Himmler sent his own men to carry out destruction behind the backs of the Armed Forces. All this was prevented by the Reich Commissioner who, conscious of his responsibility, intervened, and the country was spared enormous devastation.
In May 1932 a simple memorial was placed on the dam of the Zuiderzee, the largest dam ever constructed, which bears no name—only the words: Een volk dat leeft, bouwt aan zijn toekomst (A nation that lives builds at its future).
Regardless of how the Trial may end, perhaps the day will come when under this proverb the words will be added: “Saved from destruction by Seyss-Inquart.”
Thus I come to the end of the second point of the Indictment.
Slowly the curtain falls on the drama of the alleged conspirators. But I ask you: Can one call that man a cruel and ruthless despot and war criminal, who in the middle of the life-and-death struggle of his nation is placed at the head of the administration of an enemy country and yet tries again and again to prevent excesses or to moderate them?
However, I would not wish to conclude my discourse without expressing some general remarks on the Trial. I esteem France and her cultural tradition, and I have considered it an honor to be allowed as an attorney to cross swords with Frenchmen in these proceedings. I have listened to the speech of the Chief Prosecutor for France, M. François de Menthon, with close attention and sympathetic interest. However, it cannot remain entirely undisputed that M. De Menthon has described Germany as the eternal enemy of France and demanded the severest penalty, death, for all defendants without exception. He thereby brings out one of the weaknesses of this Trial, namely, that it will always be the trial of the victors over the vanquished. One is reminded too strongly of the Gaul, Brennus, who with his “vae victis” throws the sword into the scale. M. De Menthon with this demand unintentionally obstructs the road to a lasting peace.
The sin against the spirit is the basic error of National Socialism and the source of all crimes, says M. De Menthon; National Socialism is based on racial theory, a product of German mentality. But M. De Menthon rightly explains that National Socialism is the final stage of a doctrinaire development over a long period. There are no direct transitions in history, but all is rooted in preceding ideas and undercurrents. The events of the twentieth century can only find their explanation in the developments of the preceding century. The closing years of the nineteenth century saw the birth of an exaggerated nationalism, and here it must be said that it was not the Germans, but the French who first established the racial theory, for instance, Count Gobineau in his essay Sur l’Inégalité des Races Humaines and Georges Sorel in his Réflexion sur la Violence.
At the end of his statement M. De Menthon quotes the book by Politis, La Morale Internationale, which I have also mentioned. Politis describes this exaggerated nationalism as a veritable international malady, deriving from the nineteenth century. He mentions particularly the case of the Frenchman Maurice Barrès. He sees in the phrase, La patrie eût-elle tort, il faut lui donner raison (my country right or wrong), the negation of all ethical laws.
I would like to confront M. De Menthon with another Frenchman. He is an obscure professor of history. With the Gestapo, the German and the French police on his track, he frequently changes his appearance and his name. He is everywhere; we find him in the Massif Central, in Auvergne, in the mountains near Grenoble, at Bordeaux on the coast, and in Paris. Wherever he appears Wehrmacht trains are derailed, ammunition dumps blown up, and important industrial plants shut down. He always remembers the words of De Gaulle: “Our country is in mortal danger, join us, everybody; fight for France!” The name of this man is Georges Bidault. The first thing he did after the enemy had been driven out of the country was to visit severely wounded soldiers in the hospitals. But he does not only go to the Frenchmen, he also visits the German wounded in their wards, and says to them: “Comrades, I wish you speedy recovery and a happy return to your homes.” These words of the man who today is the leader of France show us the path to peace by the honest and frank collaboration of peoples and nations.
Hitler wanted to create a new Europe; in this he failed because of his methods. Germany lies defenseless, her towns are destroyed, her economy shattered. France, one of the oldest countries of Christendom, the country which at the end of the eighteenth century proclaimed the Rights of Man, has today the special mission and responsibility of saving western civilization. To achieve this, however, it is necessary that distrust, which poisons the life of all peoples, should disappear. I thus conclude my very brief and general remarks on the Trial.
Honorable Judges, into your hands I confidently commend the fate of my client. I know well that you will consider carefully all the facts which speak for Seyss-Inquart. But I will walk once again through the streets of Nuremberg, as I have done so often during the long months of this Trial, and from the ruins of the imperial castle look down on the German countryside. From the ruins of the old city rise, scarcely damaged, the monuments of the painter Albrecht Dürer and the geographer Martin Behaim. They are the prophets of German art and science. May those two names be symbols for the future, and like beacons guide the German people from dark misery to the shining realms of a lasting peace.
THE PRESIDENT: The Tribunal will adjourn for a few minutes.
[A recess was taken.]
THE PRESIDENT: I call on Dr. Bergold for the Defendant Bormann.
DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann): Your Lordship, Your Honors: The case of the Defendant Martin Bormann, whose defense the Tribunal has commissioned me to undertake, is an unusual one. When the sun of the National Socialist Reich was still at its zenith, the defendant lived in the shade. Also during this Trial he has been a shadowy figure, and in all probability, he has gone down to the shades—that abode of departed spirits, according to the belief of the ancients. He alone of the defendants is not present, and Article 12 of the Charter applies only to him. It seems as though history wanted to preserve the continuity of the genius loci and to have chosen the town of Nuremberg to be the scene of a discussion as to whether the fact that a defendant is allegedly no longer alive, can obstruct his being tried in contumaciam, in absentia. In Nuremberg we have an adage which has come down to us from the Middle Ages, and which says: “The Nurembergers would never hang a man they did not hold.” Thus, even in former times they had an excellent way in Nuremberg of dealing with the question as to how proceedings can be taken against a person in his absence.
THE PRESIDENT: It appears to the Tribunal that you are now about to argue first of all that the Tribunal has no right to try the Defendant Bormann in his absence, and secondly that if it has the right it is not advisable. Both these points were considered on the 17th of November 1945, and were decided on the 22d of November 1945, after you had been appointed; and both were decided in favor of trying Bormann in his absence. That is to say that the Tribunal has the power under Article 12 of the Charter and that it was in the interests of justice in the circumstances to conduct a hearing in his absence.
DR. BERGOLD: That is true, Your Honors. I know of this decision. I should only like to ask whether in the course of the proceedings points of view were put forward which might have caused the Tribunal to change this decision, for I assume that decisions of the Tribunal can be reconsidered by the Tribunal themselves. If I put forward this point it is to show that the Trial here has brought out some points of view which call for a reconsideration of the question.
THE PRESIDENT: Dr. Bergold, surely this is an inappropriate moment at which to advance this argument when we have already conducted the trial of Bormann. We have given you over a long period the opportunity to make application for a reconsideration of this decision.
Are you not hearing what I say?
DR. BERGOLD: I did not quite understand the last sentence.
THE PRESIDENT: I said that to make such an application now is far too late. You have had all these months since November in which you could have made such application for a reconsideration of the decision of the Tribunal. But instead of making it, you proceeded with the defense of the Defendant Bormann.
Possibly you have your disk wrongly set. Would you look at the disk and see whether it is all right?
DR. BERGOLD: Mr. President, the translation is coming through so badly and indistinctly that I cannot fully understand your meaning. The translation is bad. It is only the German translation of what you are saying that is not sufficiently clear.
THE PRESIDENT: I shall speak very slowly. What I said was that if you wished the Tribunal to reconsider the decision of the 22d of November 1945, you should have made application earlier. Instead of that, you went on to appear as the representative of Bormann, and the Tribunal decided to hear the case against Bormann. Therefore, they are not prepared to listen to this argument for the reconsideration of their decision now.
If you think it in the interests of your client, the Tribunal has no objection to this document’s being filed—or to the filing of these pages of your speech. But the Tribunal does not propose to reconsider its decision.
DR. BERGOLD: Mr. President, one piece of evidence did not come up until the end of my case—the testimony of the witness Kempka. In my opinion, this statement by the witness Kempka made the probability of Bormann’s being dead so evident that only from this point of view can the question of a reconsideration be brought up. I assumed ...
THE PRESIDENT: All I was saying was that from Page 1 to Page 10 the Tribunal will not hear that read. The question of whether Bormann is dead or not is a question with which you deal later in your argument, and the Tribunal will hear you upon that. But from Page 1 to Page 10 the argument does not deal with the death of the defendant.
If you will begin at Page 10, with the words, “I cannot...” it is the last paragraph on Page 10—the Tribunal will hear you.
DR. BERGOLD: Then I must submit to the decision of the Tribunal.
Gentlemen of the Tribunal:
I cannot and I will not criticize the Charter. In bringing forward my argument, which the Tribunal will not hear, I merely wanted to establish the fact that the Charter has created a novel procedure in that, in a trial in absentia, a final decision is being made, without its being possible to reconsider the case, should the defendant be found. But in my modest opinion, in consideration of this quite novel procedure in the legal history of all times and of all countries, the Tribunal will at the present stage of the Trial and in view of the proof brought by the witness Kempka, make further use of the right given to it by Article 12.
As a reconsideration of the decision is no longer possible, the proceedings, in my opinion, should only be carried out if, by a suitable application of the clear principles of Russian law, it is first proved that the Defendant Martin Bormann is willfully evading the Trial, and secondly that there is no doubt whatsoever about the facts. As the Charter does not stipulate more clearly when and under what conditions the Tribunal may enforce its right, the Tribunal itself must create the law.
Owing to the incontestable nature of the sentence, the Tribunal’s responsibility in this particular case is a very heavy one. My opinion that the sentence is final is also shared by the Tribunal, as in the last phrase of the public summons against the Defendant Bormann it is stated explicitly that, should the defendant be found guilty, the sentence will be carried out without any further procedure as soon as he is found.
But in my opinion it has not been proved at all that the defendant is willfully fleeing justice. I think that, as revealed by the examination of the witness Kempka, it is even highly probable that the Defendant Bormann is already dead. Witness Kempka has stated that on the night of 1 to 2 May 1945 he, together with State Secretary Naumann, who led the way, followed by the Defendant Bormann and Standartenführer Dr. Stumpfecker and himself, had tried to flee through the Russian lines by keeping close to the left side of an advancing tank. Bormann was walking close to the middle of the tank, so that the witness thought that Bormann was holding on to the tank. It seemed to the witness that it was necessary to do this in order to keep pace with the moving tank. Having advanced some 30 to 40 meters, and after having passed the German tank barrier, this tank was blown up, presumably by a direct hit from an antitank grenade.
The witness observed, without there being any possible doubt, that in the immediate vicinity of the tank, just where Bormann had been walking, a spurt of flame came from the exploding tank, knocking down Bormann and State Secretary Naumann who was walking immediately ahead of him. Thus Bormann found himself in the center of the explosion, which was so violent that the witness is convinced that there can be no doubt that Bormann died from its effects. It cannot be maintained that since the witness escaped the violence of the explosion Bormann also must have come out alive. It should be noted that Kempka was running behind the tank on the left hand side and thus was at a distance of some 4 meters from the explosion. Furthermore, he had additional protection due to the fact that Dr. Stumpfecker was running in front of him and his body was hurled against him by the explosion and served as a cover. Kempka has testified that Bormann was wearing the uniform and the rank insignia of an SS-Obergruppenführer at that time.
Even if Bormann had not been killed on this occasion he would certainly have been so seriously wounded that it would have been impossible for him to escape. Unquestionably he would have fallen into the hands of the Soviet troops who, according to the affidavit of the witness Krüger, were quite close to the Reich Chancellery and had occupied it already on 2 May 1945, the defenders having fled. In view of the loyal manner in which the U.S.S.R. is taking part in these Trials, they would have delivered Bormann to the Tribunal for trial.
There are only two possibilities—at least in my opinion—namely, that the wounded Bormann fell into the hands of the U.S.S.R.—having been proved not to be true, there remains only the second possibility—namely, that Bormann lost his life. I am therefore of the opinion that I have showed that there is sufficient proof to believe that Bormann is dead.
In my opinion, one should not be allowed to say that a man is presumed to be alive until death is established with absolute certainty, a presumption which I, the defendant’s counsel, would have to refute. The legal assumption of a person’s being alive has been valid in all countries of the world but only in the field of civil law, and only for the purpose of regulating matters relating to inheritance or the property of married persons. However, a legal assumption of a person being alive has only very seldom been established, for instance, in common law and in the Prussian law, and even there it is contested.
The Civil Code makes no provision at all for the assumption that a person is still alive; it merely admits a declaration that a missing person is dead in the eyes of the law. Common law neither provides for a declaration of the death of a person nor for the legal assumption of a person’s being alive. Russian law permits, after a short period of time, the declaration that a missing person is dead in the eyes of the law, and this may be followed by the declaration of the person’s death. But neither of these rulings justifies the assumption that a person may be alive.
Whatever may be the case in civil law, it is nevertheless a fact that there is no provision in the criminal law of any country for the assumption that a person is alive. If criminal law does not recognize the assumption of a person’s being alive, then it is not my duty either to refute such an assumption of a person’s being alive. It must then suffice that the Defense should prove, as I have already done, such circumstances as could lead one to conclude, after reasonably evaluating the chances in the usual course of life, that a defendant is dead.
I am, therefore, most definitely of the opinion that the death of the Defendant Bormann has been proved with sufficient probability; in fact the probability is so great that the proceedings should be suspended for all time, since the Charter, too, does not recognize proceedings against a dead person. If there were such a thing as the trial of a wrongdoer after his death the Prosecution, according to all logic and reason, would have had to indict the real heads of National Socialism.
But apart from all this, it is not at all proved, in my opinion, that the Defendant Bormann is intentionally evading trial as long as the possibility exists that the defendant is dead. It is true that the Charter does not recognize such an assumption in the proceedings against a defendant who cannot be found. The Charter is very reserved on this particular point and I have already stated that I am convinced that following the hearing of the witness Kempka the Tribunal should once more examine very carefully whether they should exercise their right in this special case of the Defendant Bormann. Considering the finality of the verdict it seems to me fair and just in the case of Bormann to consider the general legal principle of all civilized countries, by which a defendant must be guaranteed a hearing even if only after his arrest. Thus, by suspending the proceedings now, one would avoid creating accomplished facts so long as it is still possible that Bormann’s absence can be excused.
May I point out in this respect that in the second part of Article 12 of the Charter, the Tribunal refers expressly to the interests of justice that they should consider, in examining the question, whether they intend to take proceedings in absentia for any other reason than that the defendant cannot be found. These interests of justice are not unilateral and are not directed against the defendant only. True justice is always universal and demands in all legal systems of the world that, as far as that is possible, the interests of the defendant shall be protected as well.
Owing to the state of health of the Defendant Krupp, the Tribunal has already exercised their right not to try a person in absentia. Even if this last-mentioned case cannot be compared with that of the Defendant Bormann, this decision should be given consideration in the present instance, too.
Having in view the peculiar character of the case and the testimony of the witness Kempka, it can by no means be considered as proved that the Defendant Bormann is deliberately absenting himself from the Tribunal, for in whatever way the matter is viewed one cannot dismiss the possibility that—even if he had been rescued and had not fallen into the hands of the Allies—he may have suffered such serious lasting injury that he is neither physically nor mentally able to surrender himself to the Tribunal. In my considered opinion it is precisely for this reason that the Tribunal in the interests of true justice should suspend proceedings against the Defendant Bormann even now.
Such a decision, however, is also justified according to the second principle, which was formulated by the Russian law, namely, that proceedings shall, as a rule, be admitted only if the facts of the case no longer leave any room for doubt.
The Defendant Bormann is absent. He has not been able to defend himself against the charges for which he is indicted. He has not been able to give me any information, neither could I find any witnesses who know the circumstances sufficiently well, and who would have been able to disclose to me any exonerating evidence concerning the accusations made.
During the course of these long proceedings the man Bormann and his activity have remained shrouded in that obscurity in which the defendant, by his predisposition, held himself during his lifetime. The charges which many codefendants have made against him, perhaps for very special reasons, and obviously in order to assist their own defense and exonerate themselves, cannot for reasons of fairness be taken as the basis for a judicial decision. The Prosecution has stated on more than one occasion through its representatives that the defendants would seek to throw the chief blame upon dead or absent men for the acts which are now being judged by the Tribunal. In their pleadings some of my colleagues have followed these tactics of the defendants. Perhaps it was right to do this. I cannot judge. Besides, I have no authority to form a judgment.
But nobody knows what the Defendant Bormann could have said in answer to these men if he had been present. Perhaps he would have been able to show that all his activities were not the cause of the happenings arraigned in the Indictment, also that he did not possess the influence which is imputed to him as the Secretary of the Führer and of the Party.
It has always been a well-known fact that secretaries and chiefs of central chancelleries, in the same way as valets to princes in the times of absolutism, were attributed a considerable influence upon their superiors and lords, for in the nature of things everything which can only be handled officially must pass through the hands of this secretary. But what in a modern state can evade the Moloch of bureaucracy?
The document book and the trial brief presented by the Prosecution contain no conclusive evidence that in the incriminating events and measures Bormann personally had any effective and outstanding influence on the actions and dealings of the Third Reich, of the NSDAP, or even of Hitler himself nor of how strong that influence had become.
In the comments on the Bormann decree, reproduced in Volume II of the official collection of Verfügungen, Anordnungen und Bekanntgaben der Parteikanzlei, Page 228, submitted as Document Number Bormann-11 in my document book, it is stated that the Party Chancellery was an agency of Hitler, which he used for directing the NSDAP. Stress is laid on the fact that on 12 May 1941 Hitler again assumed full and complete responsibility for the leadership of the Party. The Chief of the Party Chancellery, at that time Bormann, had been charged with keeping Hitler continually informed about the work of the Party and to bring to his knowledge any circumstances about which he should know when making decisions in Party affairs. This had to be done according to Hitler’s basic directives, and the Chief of the Party reserved for himself the right to determine these, especially as far as political affairs were concerned.
Thus it followed that the Party Chancellery was the central chancellery for matters concerning the home policy of the Reich leadership, and through this channel all suggestions and information from below were passed upward to Hitler and all directives from Hitler were passed down through it to the lower levels.
THE PRESIDENT: The Tribunal will adjourn.
[The Tribunal recessed until 1400 hours.]
Afternoon Session
DR. BERGOLD: It is true that a man in a position such as I described to you this morning can have great influence, if there is a man at the top who can be easily influenced; but it is equally correct to say that a man in such an office can play a purely formal role as the head of a liaison agency, if at the top there is a dictatorial autocrat who cannot be influenced and if the chief of the office has no special ambition nor any special abilities.
The proceedings which have been held for many months here have shown which of the two alternatives is more likely. It is obvious that, seen from lower levels, the head of the Chancellery would appear influential even in the case of the second alternative, because everything goes through his hands and because any blame arising from subordinates passes through his agency and because all mistakes which arise in the vicinity, committed by other officials, are reported there. These officials and subordinates, however high a rank they may have held, and even though in part they may have feared the chief of the Party Chancellery—perhaps indeed only for reasons originating in their personality or their errors—these are not the right people to enlighten us as to which of the two alternatives described is the proper one. As long as Bormann does not appear and is not heard, personally, the true part he played remains obscure. Nobody, not even the High Tribunal, could ever pass just sentence. All the facts remain dubious. They remain dubious even in the individual points. I would like to demonstrate this by just a few examples.
My esteemed colleague of the Defense, Dr. Thoma, has stated that Bormann prevented the Defendant Rosenberg from following his policy. To make his point he referred to the memorandum of Dr. Markull, submitted as R-36. But this document is nothing more than a comment on an unknown and unproduced Bormann document. Markull declares expressis verbis that he put Bormann’s formulations into the language of a simple member of the German civil service and presented them more pointedly. Only Bormann could enlighten us in this case and tell us whether he wished his writing to be understood in this way at all or whether Markull twisted the meaning and sense of Bormann’s words, so that only Bormann could disclose whether this writing, like almost all the Bormann documents submitted, did not simply transmit the utterance of another Reichsleiter or of Hitler. So this very case, too, seems altogether doubtful. An explanation can hardly be expected. Furthermore, it must be pointed out that almost all the documents which the Prosecution have gathered in their document book are, in general, mere reproductions and publications of a Hitler decree or a Hitler instruction. Bormann transmitted these instructions to the subordinate agencies with an accompanying letter in order to inform the agencies concerned. This is an activity which, as office work, has to be done even under the most reprehensible and tyrannical despotism; how much more so in a modern state like the National Socialist Reich. Someone has to forward all the instructions and orders to the subordinate agencies; that is a purely formal activity. It is immaterial whether it is done by a plain office assistant or by a brilliant Reichsleiter.
The official transmission of such instructions—I mention for example the Documents Number 069-PS, 1950-PS, 656-PS, 058-PS, 205-PS, and even the famous Document Number 057-PS—can only be considered a transmission of directives and opinions of Hitler; from such a method of transmission nobody can draw the conclusion that the forwarding party had any influence on the decrees, orders, and decisions. It is possible, but it has not been proved with certainty.
But before a sentence is passed, this question of influence should be entirely clarified. Because even if one could see any offense in the transmission of an order, according to Chancellery routine—whereby one would even have to sentence the women who wrote such orders on the typewriter—the just verdict would have to distinguish between the extent and severity of the punishment for such clerical work; and that should fall upon a man whose collaboration was a decisive factor in causing such orders and decisions and who by his influence and advice led the chief of the state to issue them. All this is not clear in Bormann’s case and continues to be uncertain. The empty statements of the codefendants, whose motives can never be entirely unveiled, to the effect that Bormann exercised great, even diabolic, influence are no proof.
The other documents of the Prosecution only prove that Bormann, in keeping with the decree of 29 May 1941, Document Number 2099-PS, and the decree of 24 January 1942, Document Number 2100-PS, arranged for an exchange of correspondence between the individual Reichsleiter and forwarded their desires and suggestions. As an example I mention Documents Number 056-PS, 061-PS, 072-PS, 205-PS, and 656-PS. Nobody can derive with certainty from these activities as a go-between, which were necessary from the administrative standpoint, the extent and true nature of Bormann’s influence.
Further documents show that Bormann very often served as a mere stenographer, taking the necessary notes during Hitler’s discussions with some of the defendants. This is proved by Document Number L-221, concerning the annexation of the Eastern Territories, and the Russian Document Number USSR-172. But in any case such documents do not make clear whether and in what way Bormann influenced the policies and the measures of the Third Reich during such meetings. According to all rules, a stenographer has no influence at all. He only fulfills an automatic function.
I would not like to be misunderstood here. Far be it from me to dispute the fact that Bormann occupied quite an important position within the leadership of the Third Reich. But no clear view has emerged during this Trial as to Bormann’s actual importance or to what extent it was exaggerated and vilified by the bad conscience of third parties and, finally, of what his influence actually consisted. Statements of the other defendants, which were made for their own defense, do not constitute relevant evidence. At any rate the document book of the Prosecution contains, almost exclusively, documents like those I have just examined more closely. Bormann scrupulously did only what was legal in Germany; this was revealed in the documents I submitted—for instance Documents Number Bormann-2, 3, 5, 7—in which he repeatedly pointed out to Party offices that no illegal action against Jews was permitted.
It is characteristic of Bormann’s case that measures against Jews could not be proved against him personally. He never did more than forward such instructions, divulge, or publish them, as this was prescribed by law and as it followed from his position as Party secretary. Even the big conference of 12 November 1938, which was held under the chairmanship of Herr Göring and from which emanated a series of laws against the Jews, can only be brought into relationship to Bormann insofar as Bormann forwarded to Göring Hitler’s instruction ordering that such a conference be held. In any case it has not been made clear at all what influence Bormann himself had on these questions. But how can a just and fair Tribunal determine the extent of appropriate punishment, if the part played, if the participation of an individual defendant in an offense, is not clearly established? Nobody can say then that there is no doubt about the circumstances of the case.
At first glance it seems to be most certainly proved by the document book of the Prosecution that Bormann was one of the most zealous in the fight against the Christian churches. Most of the documents quoted in the trial brief referred to this point. It is certainly correct to say that Bormann, because of his philosophy, was a violent opponent of the Christian doctrine. But such attitude of mind, in itself, is neither an offense nor a crime before mankind, which embraces so many different conceptions of the world and which will perhaps give birth to many more.
In modern times there are countless convinced atheists. In other countries of the world, too, there are officially recognized organizations which oppose the Christian doctrine; and at the turn of our century there were big associations in many countries which raised pure materialism to a philosophical system and openly proclaimed the negation of spiritual facts and truths. No one can be punished for wishing to teach others the precepts of his ideology or for wanting to convert them to his point of view. The modern world still recalls the horrors of the Inquisition.
Therefore Bormann could only be punished if it were proved that he participated in a real religious persecution and not merely in an ideological struggle.
In my opinion the two most important pieces of documentary evidence which the Prosecution have produced against Bormann—namely, Documents Number D-75 and 098-PS—do not show that the Defendant Martin Bormann on his own authority undertook anything against the churches as religious institutions. The gist of Document Number D-75 is contained in the sentence which says that from the incompatibility between National Socialist and Christian ideology it must be deduced that any strengthening of existing Christian denominations and any promotion of new ones is to be avoided by the Party. It is of no importance for what pressing reasons Bormann came to such a conclusion at the end of his letter. It goes without saying that failure to support a religious concept which one opposes on philosophical grounds does not constitute religious persecution. Nobody is obliged to support a religious view. It is not fair to consider his antireligious attitude and to disregard the fact that nothing came of it.
Furthermore, it is important in this connection to note that we received only one copy of this document, a copy which a Protestant minister by the name of Eichholz made out for himself. Whether the reproduction of the contents of Bormann’s statement in this document is correct in every detail has not at all been proved. In any case the document in this form does not constitute authentic evidence.
In Document Number 098-PS, which may be recognized as being authentic, Bormann takes a very definite stand indeed against the Church. It ends, however—and this is the only fact which should be considered for the verdict—by saying that no National Socialist teacher should be reproached for teaching Christian religion and even that in such a case the original text of the Bible should be used; any new interpretation of, comment on, or analysis of the text of the Bible is to be avoided. Therefore Bormann, despite his previous philosophical attack upon the Church, takes here the legal standpoint that Christian dogma may be freely propagated. Could a more loyal action ever be expected of such a strong opponent of a doctrine?
The remaining documentary evidence does not reveal any real persecution either. The fact that Bormann, on Hitler’s orders, prohibited the admission of priests or of members of certain religious associations to the Party and that, on Hitler’s order, he forbade priests to be appointed to leading positions in the Party, in order to prevent dissension, is not religious persecution. The fact that during the war he demanded that the Church make the same financial sacrifices as other state institutions does not represent a criminal act undertaken for religious reasons. That, while closing many lay institutions in order to make use of the human reserves of the nation, he tried to close down religious institutions too; that, considering the limitation on the number of copies and number of pages of lay publications, he wished Church publications to be limited also, does not come under the provisions of Article 6 of the Charter. It is true that in this respect he followed, among other things, his anticlerical attitude. But when, aside from this, the same measures were taken in Germany against other institutions and other publications—measures which were supposed to be only temporary war measures—one cannot speak of actual religious persecution. That Bormann might have been coresponsible for the persecution of priests has not even been submitted or proved at all. All documents indicate that Bormann always adhered to the legal stipulations in effect; and since he desired to comply in every way with Hitler’s orders, it is to be assumed that he observed Hitler’s decree at the beginning of the war which directed that all measures against the Church be discontinued.
Therefore it may be said in conclusion that this matter, too, cannot be really cleared up despite the numerous documents presented. Documents alone do not suffice to dissipate all doubts on the case. Especially with respect to the importance and weight of Bormann’s share in measures aimed at persecution of the Church, it seems necessary to determine Bormann’s personal responsibility. This fact therefore also remains somewhat obscure. A basis for a just determination of the punishment to be inflicted cannot be established.
I shall not take up the time of the High Tribunal by bringing up further details. I think that the indications I have just given are sufficient to show that even the documents presented by the Prosecution prove, in any case, only one thing with certainty—namely, that Bormann in his capacity as chief of the Party Chancellery held “as ordered by the law” an intermediary position in official and secretarial communication between the head of the Reich and the subordinate agencies and among those subordinate agencies themselves. Anything else is only an assumption which has not been definitely proved—in any case not with the certainty necessary to render a just verdict in absentia and without hearing the defendant and to determine the severity of the punishment. Unfortunately, a legend has already been woven around Bormann’s personality, his activity, and his survival. But for the sober judgment of jurists legends are not a valid basis for a verdict free from any doubt.
In view of the innovation created by the Charter—completely novel in the history of law of all times and all nations—in passing a final, irreversible sentence upon an absent defendant, I beg the High Tribunal to make use of their right to adopt such a procedure only after having considered the hitherto existing legal concepts and, especially when examining the case, to consider the prerequisites set down in a precise manner by Russian law. I therefore expressly propose that the Tribunal decide either to suspend the proceedings against the Defendant Bormann because of his proved death, or to postpone his trial until he is personally heard and can personally state his case and that the Tribunal make no use of its right according to Article 12.
THE PRESIDENT: I call on Dr. Kubuschok on behalf of the Defendant Von Papen.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Before beginning my final plea I should like to submit to the Tribunal a few completed interrogatories which have since been received and of which some have also been translated. Since I refer to them in my final plea, I should like to submit them now.
THE PRESIDENT: Yes, Dr. Kubuschok.
DR. KUBUSCHOK: First of all I submit the completed interrogatory which has been received from the witness Tschirschky as Document Number Papen-103. I now submit a copy in English and in French.
On this occasion may I draw the attention of the Tribunal to the fact that Tschirschky was the secretary of the Defendant Von Papen who, at the time when he was in Vienna, was called to Berlin by the Gestapo and then emigrated to Great Britain, where he has presumably obtained British citizenship by now. The correspondence with reference to this Tschirschky case was the subject of the cross-examination. With reference to the numerous questions dealing with Papen’s vice-chancellorship and his activities in Vienna, the witness has expressed himself in great detail and in all cases answered in the affirmative.
Presumably the Tribunal do not want me to discuss these questions in detail now. The copies submitted to the Tribunal will be sufficient. But perhaps I could quote the last paragraph from Question 1:
“Regarding his relation to the NSDAP, I can say that during the time when I was working with Von Papen, Von Papen’s attitude was a negative and, in fact, a hostile one in every respect.”
It appears important to me to refer to the answer to Question 2, which deals with the safety measures during the formation of the Government on 30 January ...
THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you to comment twice on the interrogatory. If you want to comment upon it to the Court in your speech, well and good. You comment now as you put it in, and then presumably you may make some observation later on in your speech.
DR. KUBUSCHOK: Mr. President, during the plea I will refer only very briefly to the special questions answered in this interrogatory. On the whole I do not refer to them in my plea. In my plea I merely give a summary of the answers, but I do not deal with the questions themselves again.
THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the appropriate course for you to take is to put in these interrogatories now, and when you deal with them in your speech, you can refer to any particular passage that you want.
DR. KUBUSCHOK: Yes. In its present written form the reference is very brief and does not even consist of a sentence. Besides ...
THE PRESIDENT: When you get to it ...
DR. KUBUSCHOK: Shall I read it then?
THE PRESIDENT: Yes.
DR. KUBUSCHOK: Very well. I have submitted the completed interrogatory of Tschirschky as Document Number Papen-103 and then the completed interrogatory of Archbishop Gröber as Document Number Papen-104. Gröber has to do with the conclusion of the Concordat. I am also submitting the interrogatory of Archbishop Roncalli as Document Number Papen-105, and finally, the interrogatory from the Polish Ambassador Jan Gavronski, which is Document Number Papen-106. These are documents which I received already translated. In addition I would like to ask the Tribunal to allow me another document, which in spite of all my efforts I have not yet been able to have translated. It is an affidavit from a foreign correspondent, Rademacher von Unna. He had transmitted in a letter to my colleague Dr. Dix, on 29 May 1946, an affidavit for Papen which arrived here about 3 weeks ago. Of chief interest in this affidavit is one paragraph. I should be most grateful to the Tribunal if I could read the paragraph so that the Tribunal would be in a position to see if this affidavit is relevant, and if so, to permit me to submit this document. Then I would submit the original, and the translation could be supplied as soon as completed.
THE PRESIDENT: You have not shown it to the Prosecution yet, have you?
DR. KUBUSCHOK: I had submitted the German text at the time, but now it has been in the Translation Division for 2 weeks, and I have not been able to get it yet. I have already mentioned the document during the last session when we discussed evidence, and the Tribunal informed me that I should submit it on another occasion, when the matter came up for discussion.
THE PRESIDENT: Is it long?
DR. KUBUSCHOK: It is not long. The document is a page and a half, and I will read a paragraph which is shorter than half a page. Only that paragraph is of real importance to me.
THE PRESIDENT: Does the Prosecution object to this?
MAJOR JONES: My Lord, I have not seen a copy of this document, but we have no objection in principle; I have not seen the document myself, and it is a little difficult to give any opinion as to whether we would object, if we had the opportunity of examining it.
THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read the document and the Prosecution can move to strike it out of the record if they object to it.
MAJOR JONES: Yes, My Lord. That would be quite a convenient course for the Prosecution, My Lord.
DR. KUBUSCHOK: I shall read from that affidavit from Rademacher von Unna, dated 29 May 1946, which was executed in Milan, half of the penultimate paragraph. The executor of the affidavit in this communication is referring to a statement made by Von Papen which is worded as follows:
“He, Papen, would, however, not allow himself to be deterred by anybody from carrying out his mission in the way he himself understood it: to be an intermediary and peacemaker; and therefore he would show anyone the door who might wish to misuse him in Austria for obscure purposes.
“In this connection it is worth mentioning that a member of the Austrian Government, a state secretary whose name I have forgotten, was making efforts to establish personal, but secret, contact with the German Ambassador in order to offer him his services for the German cause. Herr Von Papen turned down this offer, giving as his reason the fact that he refused to participate in conspiracies which were directed against the official policies of the Ballhausplatz. Up to now he had attempted to co-operate openly and loyally with the Federal Government; and he, on his part, would not use any other means.”
As an explanation I should like to add that the member of the Austrian Government who is mentioned here is Neustädter-Stürmer.
Your Lordship, may it please the Tribunal, Papen is accused of taking part in a conspiracy to commit a crime against peace. With respect to time the Prosecution limit the discussions of the facts of the case to the termination of his activity in Vienna. They admit that as far as the subsequent period is concerned, especially during his activity as Ambassador in Ankara, no indications were found to support the accusation. In other words, according to this viewpoint Papen is said to have taken part in the preparatory actions for unleashing a war of aggression—which actions the Prosecution have placed very far back chronologically—but he is not said to have actively participated in the immediate preparations and in the crime against peace itself.
The Prosecution deal with Papen’s activity as Reich Chancellor in the last pre-Nazi Cabinet, with the part he played as Vice Chancellor in Hitler’s Cabinet until 30 June 1934, and with his activity as Minister in Vienna. They were faced with the task of proving that during this period preparatory actions for a crime against peace actually took place, and that Papen, in full recognition of these aims, collaborated in the preparations. Since the counts of the Indictment deal with a field of activity which is in itself a legal one, and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective sphere. The Prosecution are faced with the fact that Papen’s own views, which often came to light, and the policy which he actually pursued cannot be made to agree with the interpretation given by them. Therefore, they seize upon the premise that he is a double-faced opportunist who has sacrificed his real sentiments, or those displayed, to the existing conditions of the day and to Hitler’s will.
In consequence, it must be the task of the defense to elucidate his personality in order to prove that Papen’s actions and statements follow a uniform, consistent line and that his entire attitude de facto was such as to preclude connecting him with the offenses of the Charter and that those of his actions which are under discussion must have been undertaken in pursuit of other aims than those which the Prosecution think they can recognize. Furthermore, the defense will outline Papen’s entire political activity with regard to its legality; and within the framework of this activity it will deal with the actions considered punishable by the Prosecution and will finally submit counterevidence showing that he actively worked against a political development as represented by the facts brought forward in this Indictment.
We shall arrive here at a just evaluation only if the question of political expediency and correctness is left out of discussion and if we accept the politician as he reveals himself to us with the opinions and attitudes derived from heritage and tradition. Moreover, an essential element in judging fairly will be the necessity of eliminating what we have learned during the Trial concerning later years and this later period. We shall have to direct our consideration only to the time of the actions themselves, and only then shall we obtain a clear picture of what Papen could see and expect at that time.
The Prosecution gives the date of Papen’s initial participation in the conspiracy as 1 June 1932, the date of his appointment as Reich Chancellor. However, it does not answer the question as to what circumstances are to indicate to us Papen’s entry into the clique of conspirators alleged to have been already in existence. Indeed, it is impossible to give an answer to this. Papen’s activity as Reich Chancellor cannot be regarded in any way as activity having to do with a Hitler conspiracy. The idea behind the formation of the Cabinet, the entire leadership of the Government during his chancellorship, and finally his departure from office are too clear to allow us to read into them a promotion of National Socialist ideas, a paving of the way for National Socialism, or even participation in a conspiracy allegedly already in existence. The Papen Cabinet was formed at the time of an unusual economic, political, and parliamentary depression. Unusual means had already become necessary under the preceding Cabinet. They were to be continued now, in part on entirely new lines. In times of unusual crises a parliamentary legislative body probably always offers certain difficulties. Therefore, even in the days of Brüning’s Cabinet, the Reichstag was practically completely excluded from legislation which the Emergency Powers Law gave to the Reich President. It was now thought necessary to work along completely new lines. A cabinet of men who were experts in their own field but who were not bound to any party was to do away with these difficulties. Therefore the new Cabinet was intentionally created without the collaboration of parties. The task with which the new Government was faced and the program necessarily resulting from the conditions of the time brought with them, of necessity, an attitude hostile to National Socialism. To strike at the roots of the depression, government policy would have had to attack the causes for the growth of the National Socialist movement. These consisted of discontent with economic conditions and the political situation abroad.
But on the other hand one could think of doing peaceful reconstructive work of any lasting benefit only if some modus vivendi could be found with the National Socialist Party. The Party had not only constitutional power practically to paralyze every government activity; but with nothing more than influence on the masses by its propaganda it promised amelioration of domestic political conditions, the first prerequisite for far-reaching economic measures. Papen was faced with this situation in the last days of May 1932, when to his complete surprise he was commissioned by Hindenburg to form a presidential cabinet.
With regard to his governmental activity, I wish to limit myself in my defense against the Indictment to the following details: The formation of the Cabinet of 1 June 1932 took place contrary to previous parliamentary custom without any previous consultation with the National Socialist Party. Epoch-making new economic laws subsidized by unprecedented financial appropriations were decreed in order to combat unemployment and at the same time to stifle at its source the seemingly invincible growth of the National Socialist Party. The aim of the new economic measures and the limited financial possibilities demanded application of these measures over a long period of time. The labor market was to be stimulated by the use of funds to consist of the future savings in public taxes if the measures were successful. The economic laws were based only on this exploitation of financial possibilities. No use was made of unproductive public work projects intentionally, nor was the labor market artificially stimulated by armament orders. These long-range economic measures, which could be successful only during an uninterrupted government policy, made their acceptance by the Reichstag appear especially urgent.
In the field of foreign politics Papen continued the course which the Brüning Cabinet had pursued; and in so doing he placed particular emphasis on these points of honor, the recognition of which would have brought no damage to the other parties of the treaty but which would have taken from the National Socialist Party a powerful propaganda weapon to influence the masses.
At the conference of Lausanne Papen openly explained the domestic political situation in Germany. He pointed out that ideological points mainly were involved, the nonrealization of which would give the National Socialists the impetus they desired. He explicitly emphasized that his efforts were the last attempt of a nonradical Cabinet and that in the event his policy failed only National Socialism would profit from it.
Papen strove to make the National Socialist Party take a share of the responsibility without wishing to entrust to it the key position of Reich Chancellor—a share in the responsibility which would have forced this party of negative politics to recognize actual conditions and which would thus have eliminated its attractive demagogic propaganda.
These first attempts by Papen to bring about the participation of the National Socialist movement in the work of government are regarded by the Prosecution as paving the way for National Socialism. However, this is actually nothing but an attempt to find a basis of some kind for practical governmental work, an attempt which had to take into account the experience of the Brüning Cabinet and the development of the National Socialist Party.
The fact could not be disregarded that already the Reich presidential election in March 1932 had brought Hitler 36.8 percent of all the votes. If one takes into consideration that Hindenburg was the opposing candidate and that Hindenburg’s personality certainly caused many followers of the NSDAP to vote in this special case not in accordance with Party directives, the fact follows that a heretofore hardly known opposition party had arisen which outnumbered by far all the other parties and the antagonism of which was able to paralyze a priori any governmental activity. Hence followed, what was a foregone conclusion for Papen, the endeavor to get this party out of its status as an opposition party. This decision would be all the easier if the firm conviction were there that a share in the responsibility of government would turn the opposition party from its radical course and above all curb it considerably in its further development.
The best evaluation of Papen’s governmental activity, seen from the standpoint of the National Socialists, comes from the fact that it was the National Socialist Party which opposed Papen’s decisive economic legislation and with its vote of no confidence—pronounced jointly with the Communist Party—brought about the end of the Papen Cabinet. The subsequent negotiations of the still acting Reich Chancellor, especially the events of 1 and 2 December 1932, show again his unequivocal attitude toward the NSDAP.
Papen proposed a violation of the Constitution to Hindenburg. He wished to exhaust this last means in order to avoid a Hitler chancellorship. Schleicher opposed this solution on the grounds that in the event of a civil war, which might then break out, the Government would not remain master of the situation with the police and military forces at its disposal. In the light of these clear historical events, the attempt of the Prosecution to give a different interpretation to the facts and to these clearly recognizable unequivocal motives is of little avail.
What then are the points which the Prosecution believe that they can marshal in the face of this?
For one thing, Papen in his first negotiation with Hitler, and a short time after forming his Government, consented to rescind the order prohibiting the wearing of uniforms, a measure which, even if it had merely been taken as a political deal to have the Cabinet accepted, is quite natural according to parliamentary rules. Not only was the NSDAP the strongest party in the Reichstag, but due in particular to its general political influence in public life it constituted an instrument of power of the first order. Therefore, it could not a priori be driven into a state of opposition if it was intended at all to pursue a realistic policy of long duration and seriously to try to overcome the emergency through a revolutionary economic program.
The repeal of the prohibition of uniforms was based also on more basic reasons, since it was a one-sided prohibition against a single party; the opposing organizations were not limited in this respect and the acknowledgment of the law of parity here could only eliminate dangerous propaganda material. The repeal of the prohibition of uniforms was furthermore by no means the announcement of a license for political acts of violence. It was reasonably to be expected that the warning of the Reich President, announced with the proclamation of the decree, that acts of violence resulting from the decree would bring about an immediate prohibition of the organizations as such, would prevent just such pernicious results.
The claim of the Prosecution that the repeal of the prohibition concerning uniforms was the main cause of the increase in the number of National Socialist seats at the July election is completely at variance with the facts. I refer to the already-mentioned result of the Reich presidential election of March 1932, at which the real situation did not even become completely manifest because of the fact that Hindenburg was the opposing candidate. The election of 21 July 1932 brought 13,700,000 National Socialist votes, whereas in the Reich presidential election of 10 March 1932 Hitler had already received 13,400,000 votes. There are no grounds whatsoever for assuming that the appearance of uniforms, which, incidentally, had been replaced earlier by camouflage standardized clothing even during the period of prohibition, might have had any determining influence on the outcome of the elections.
Much more important and in a negative sense more decisive for the outcome of the elections was certainly the general prohibition of political parades and demonstrations proclaimed by the Papen Cabinet at the beginning of the election campaign. Public meetings and political parades are the most important expedient for a demagogically led party. To lose this possibility just before the election was undoubtedly a much greater loss for the NSDAP than the previous advantages it had received in the form of permission to wear uniforms.
In the letter of 13 November 1932 in which Papen again tries to induce Hitler to participate in the Government, the Prosecution see an effort, undignified in its form, and blameworthy in its essence, to smooth the path of National Socialism to power. They forget that Papen conducted the November elections in sharp opposition to the NSDAP, because he tried to remove the Party from the key position in which it could not, without Hitler, numerically form a majority with the parties from the Social Democrats to the parties of the extreme right. They forget that this result had not been achieved, that the key position even with 196 seats remained with Hitler and that, therefore, it was necessary to make another attempt to win Hitler over for a presidential cabinet under some conservative chancellor. They overlook in this respect that Papen’s proposals here again had the definite aim of excluding the NSDAP from the Reich chancellorship. For National Socialism a cabinet under a conservative politician, who would have had to determine the principles of the policy in line with the Constitution, would only have permitted the Party’s influence to be felt in this or that department; but in return for this influence it would have been obliged to share the responsibility through its participation in the government. Seen in retrospect from the standpoint of the opposition to National Socialism one could indeed have welcomed nothing more enthusiastically than just such a participation by the Party in the government, limited in influence and sharing the responsibility. The end of an opposition policy which was so tremendously favorable for propaganda purposes would undoubtedly have stopped the growth of the National Socialist movement and the conversion of its radical elements.
To write the letter in a polite form was the official duty of the Reich Chancellor toward the leader of the strongest party in the Reichstag. It is a foregone conclusion that, in using this form and because of the purpose of the letter, the writer does not refer to negative points only but also to those positive elements which could lead to co-operation in the Government.
In order to be able to find the least indication during the period of Papen’s Reich chancellorship of his sympathy with the ideas of National Socialism, the Prosecution have seen in the temporary elimination of the Prussian Government by the decree of 20 July 1932 intentions which in no way could pass the test of an objective examination.
The so-called coup d’état of 20 July, as the Prosecution term the execution of the decree of 20 July 1932, had not the slightest thing to do with promoting the National Socialists. In the opinion of the Reich Cabinet and according to the decisive judgment of Reich President Von Hindenburg, domestic political needs required that the open toleration of Communist acts of terror by the Prussian Cabinet in office be brought to an end. Hindenburg drew the logical conclusion and issued the Emergency Decree of 20 July 1932. By a decision of the then still independent Reich Supreme Court, it was determined that this decree with regard to constitutional law was permissible within the framework of state political necessities.
If in carrying out this decree the request was indeed actually conveyed by police authorities to the Minister of the Interior, who had been suspended, that he leave his offices, the word coup d’état lends a meaning to this measure which goes far beyond what actually happened. Also in considering the effects of this measure any assumption that here the way was paved for National Socialism is not justified by any facts. The appointed Reich Commissioner Bracht belonged to the Center Party. The key position of police president in Berlin was entrusted to a man on whom the hitherto existing Braun Cabinet had previously conferred the office of police president in Essen. Briefly, the result of the change was only that, on the one hand, an effective co-operation was now assured with the Reich authorities and, on the other hand, new people filled some political positions which up to now had been the almost exclusive monopoly of the Social Democrat Party to an extent which, from the point of view of parity, could no longer be justified. That in filling these positions the National Socialists were passed over was a charge which was made against Papen time and again by the National Socialists.
Consequently, Papen’s entire term of office in the Government constitutes a clear line of realistic politics which show that, on the one hand, he did not relinquish the pilot wheel in carrying out necessary measures, especially economic ones, while, on the other hand, he tried to get a numerically large opposition party to collaborate. Papen’s attitude toward the NSDAP became even more manifest after he had been asked by the Reich President, late in November 1932, to collaborate in the efforts to form a new cabinet.
In this he showed he had the courage to go to the extreme. Realizing that it was impossible to go on with a non-National-Socialist Government, according to parliamentary principles, he submitted to the Reich President the proposal to rule with the aid of armed force, even if he thus caused a violation of the Constitution and risked causing a civil war.
It is just as difficult to reconcile oneself with such a proposal, when one adheres to thinking along lines of constitutional law, as it is impossible to overlook in retrospect that the proposed temporary violation of the Constitution was probably the only way to avoid the solution which then became necessary on 30 January 1933.
Any other temporary solution could not have had a satisfactory result. Sooner or later the opposition party would have forced the resignation of any non-National-Socialist cabinet. With that political unrest with its consequences on the entire economic life would have become a latent state—a state of affairs, which, through its repercussions, would only strengthen the National Socialist movement to such an extent that in the end the result would have been the fulfillment of its entire totalitarian claim for assuming unlimited power.
The part played by Papen in the formation of the Cabinet of 30 January 1933 might in itself be disregarded. It is sufficient to be aware of the fact that all endeavors to bring about a parliamentary government without Hitler could not succeed from a purely numerical standpoint, and that such a parliamentary solution with Hitler was wrecked by his opposition. A measure born out of political and constitutional necessity cannot, according to the Indictment, be considered as evidence of intentional planning of a crime in the sense of the Charter. The purpose of this count of the Indictment must be considered. By maintaining all parliamentary rules Hindenburg, in his capacity as chief of State, appoints a Government the head of which is the leader of the strongest party. This Government, when presented before the Reichstag, finds an overwhelming majority. That which Papen is accused of, the knowledge of the activities of the National Socialist Party in the past, holds true to the same extent also for the other participants, for Hindenburg and all consenting members of the Reichstag. The reproach leveled against Papen thus includes also an accusation against Hindenburg and the entire consenting Reichstag. For this reason alone probably the first attempt to include in an Indictment a self-evident, constitutional procedure of a sovereign state must fail.
If despite this fact I go into the events which occurred before the formation of the Government, it is only in order to show clearly the unequivocal standpoint of Papen, who on the one hand did not wish to close his eyes to the real facts, but on the other hand desired to undertake everything in order to prevent the danger of an uncontrollable development of this reorganization. The Prosecution consider the Hitler-Papen meeting at the home of Schröder on 4 January as being the beginning of the efforts to form the Government of 30 January 1933. As a matter of fact the meeting at Schröder’s was nothing else than an exchange of ideas on the existing situation during which Papen and Hitler maintained their previous opinions and Papen pointed out that Hindenburg, owing to the apprehensions which he had expressed, would in no case agree to Hitler’s taking over the position of Reich Chancellor. Hitler would have to accept the position of Vice Chancellor, since Hindenburg took the standpoint that further development would take place after he had stood the test of time.
This meeting in Cologne took place upon Hitler’s request. I refer in this instance to Schröder’s communiqué published by the press, which I submitted as Defense Document Number Papen-9, and which I erroneously indicated during the cross-examination as being a joint communiqué issued by Papen and Schröder. Schröder established in it that he alone took the first step toward having this meeting.
That this meeting was in no way the basis for the formation of the Government of 30 January is obvious from the fact that the discussion was immediately reported by Papen to Schleicher and Hindenburg and that subsequently until 22 January Papen had nothing to do with the solution of the problem of a new government. Schleicher as well as Hindenburg endeavored to obtain parliamentary support for the Schleicher Cabinet through negotiations with the leaders of the parties, efforts which failed, however, due to the pressure of the political facts. The main effort was to split up the National Socialist Party by inviting the collaboration of the Strasser wing in the Government. These efforts failed when Hitler’s position became so strong after the result of the elections in Lippe that he regained absolute control over the Party against all attempts to split it up. The outcome of the elections in Lippe of 15 January 1933 was generally considered as a barometer of public opinion with respect to the political situation. All parties had mobilized their entire organization and propaganda machinery, and therefore one could gauge public opinion from the result of this election. The result showed that the losses suffered during the November elections were almost completely regained. Thus everybody could recognize that the decline of the National Socialist movement was stopped and that with the continuance of the momentary political and economic situation a further gain was to be feared.
The necessity for a decision became more and more urgent when, on 20 January 1933, the Ältestenrat (Council of Seniors) of the Reichstag—by convening the Reichstag for 31 January—granted to Schleicher’s Cabinet a period of grace up to that date, since a vote of no confidence by the left and the NSDAP meant its immediate fall. The meeting in the house of Ribbentrop on 22 January, when Hindenburg wanted to learn through his son and the State Secretary of the Presidential Chancellery, Dr. Meissner, Hitler’s opinions about the political situation, has to be considered from this point of view.
The part Meissner played and also his general part in the formation of the Hitler Government cannot be established with certainty by means of the data at hand. In any case, as a member of the immediate circle around Hindenburg who finally took the ultimate decision, he was by no means uninterested in the matter. He has been judged at least very differently. Because of his own interest in the case he can in no event be considered as a classical witness for the judgment of the events of that time. His testimony seems certainly in one point highly improbable. He maintains that he opposed Hindenburg’s decision, after the latter decided to appoint Hitler to the office of Reich Chancellor. This is said by the same man who during the session of the Cabinet concerning the Enabling Act did not consider it necessary to maintain the right of the Reich President to proclaim laws, the same man who after the events of 30 June 1934 obviously collaborated in isolating Hindenburg from all those who could give him a true presentation of the events. I make these remarks because a part of a Meissner Affidavit was read during the hearing of evidence against Papen. Although according to the decision of the Tribunal the part which was read will not constitute a basis for the verdict, during the cross-examination questions were nevertheless asked in reference to the affidavit which might raise doubts. The decision of the Tribunal relieves me of the obligation further to discuss in detail the contents of the affidavit and to indicate a number of inaccuracies which could be easily refuted.
The hearing of evidence has shown that until 28 January 1933, Papen made no attempts whatsoever as regards the formation of a government. On that day, in view of the imminent meeting of the Reichstag, Schleicher had to bring about a decision. On 1 December 1932 he advised Hindenburg against an open fight with the Reichstag and declared that the use of armed force in a possible civil war would be hopeless. Now he thought that he himself could find no other solution than to beg to be permitted the use of those forces which he previously considered as being insufficient. But since no change in the situation had occurred since that time which could offer reasons for Schleicher’s change of opinion, since moreover the position of the NSDAP was strengthened by the elections in Lippe and the general political situation had become still more tense through the attitude of the parties, Hindenburg upheld his decision of 2 December. Thus the resignation of the whole Schleicher Cabinet was inevitable. Now the events took the course which necessarily and logically they had to take if the use of arms was to be avoided. There was only one solution now: negotiations with Hitler. Hindenburg commissioned Papen to conduct the negotiations for the formation of the government. On Hitler’s part it was clear that he could maintain his unwavering demands—namely, to take over the office of Reich Chancellor himself. The task, clearly recognized by Papen, was now to set limits to the political activities of the new party which had not yet been tested on such a large scale.
First of all, a change of course had to be avoided in those ministries in which any radicalism would have been particularly detrimental—namely, the Foreign Office and the War Ministry. Hindenburg reserved for himself the right to fill these two key positions. In order not to entrust the new chancellor with appointing the remaining ministers, as had been customary heretofore, Papen was charged with this task as homo regius. He succeeded in limiting the number of National Socialist ministers to a minimum. Three National Socialist members of the Government faced eight non-National-Socialists, who for the main part were taken over from the former Cabinet and who guaranteed a conservative policy in their ministries. That was not all; within the framework of the Constitution the authority of the Reich Chancellor was to be limited in a manner hitherto unknown. Papen was appointed to the position of Vice Chancellor. His function was not connected with a special department but mainly intended to constitute a counterpoise to the position of the Reich Chancellor. It was decided that Hitler in his capacity of Reich Chancellor should report to Reich President Von Hindenburg only in the presence of the Vice Chancellor. Thus, a certain control was established when the Reich President formed his opinion on the requests presented by the Reich Chancellor. In view of Hindenburg’s personality, which one might reasonably expect to have exerted quite considerable influence upon Hitler, this control over the information Hindenburg received promised that a shift toward a radical course would be avoided. This was the part the defendant had in the formation of the Hitler Government. The Prosecution see herein a decisive, conscious step toward the transfer of full power to National Socialism.
By considering the Case objectively, even in retrospect, one can only arrive at the conclusion that in view of the inevitable necessity of ceding the leadership of the Cabinet to the National Socialist Party, every possibility for limiting the importance of this measure was exhausted. The position of Reich Chancellor and the appointment of only two National Socialist ministers represented the concession made to Hitler’s demands.
For the consideration of the present proceedings it would not matter if the solution adopted on 30 January was the only possible one or not. Even if one were of a different opinion, the only thing that matters in looking at the case from a criminal angle is whether Papen could consider this solution as a necessity or in general only as a mere political expediency. Even if, contrary to all the facts, one regarded his opinion as utopian, it should be taken into consideration from the point of view of penal law that one could only speak of guilt if he had known the future consequences and the future plans of aggression and if in spite of this he had collaborated in the formation of the Government. The facts just mentioned have proved that there is not even the slightest supposition for this.
In considering the case, it is of decisive importance also that the two ministries, which in connection with the accusation of breaking the peace are the most important or which are the only ones to play a part at all—namely, the Foreign Office and the War Ministry—were placed in the hands of men who enjoyed Hindenburg’s confidence and had had no connection at all with Hitler, and from whom an unbiased direction of the ministries could be expected. It is not unimportant to consider in this instance what expectations one might have from Hitler and his future policy.
The leader of the opposition party now took for the first time the responsibility of a party, the structure and development of which could certainly occasion many misgivings and apprehensions, a party which had developed on the basis of an absolutely negative attitude toward the hitherto existing government leadership, a party which, noisy and boisterous as it was, had certainly made many concessions with regard to the composition of its membership, a party which had laid down a new program including points which seemed far from reality and impossible to carry out but which—and this is the only essential fact within the scope of our consideration of the case—apparently did not have any criminal character.
On the other hand one cannot disregard the experience of life and history that propaganda and responsible work are two very different things, that a party which develops from nothing needs, according to experience, more negative and noisy propaganda than an old existing party. Even if the Cabinet of 30 January had consisted exclusively of National Socialists, even if there had been no moderating element in the person of Hindenburg, one could have assumed according to the rules of reason and experience that Hitler, who acceded to power by means of propaganda, would take into account the existing conditions in this practical, responsible work and would show himself in his activities essentially different from what he appeared during the propagandistic preparation before his accession to power.
One instance had already shown the difference between a party in opposition and in responsible government work: The same National Socialists with their same program and their same propaganda who now on 30 January took over the position of Reich Chancellor had already held the leadership or participated in the governments of some German states. We see Frick, the leader of the Reichstag faction, acting as responsible minister in Thuringia. His field of action included even the police and we saw the National Socialists zealously tackling various economic problems in these states. But we did not see them commit excesses or even pursue an unreasonable policy, which would have been at least in approximate agreement with their propaganda. Could it not be expected then that now in the Reich too, with the greater tasks, the natural sense of responsibility would increase? And that, especially in view of the safety measures taken, matters would not take a dangerous course?
It is not superfluous to discuss Hitler’s personality in this connection. Hitler, especially after the failure of the attempt to split the Strasser group, was the absolute autocrat of his party. Undoubtedly he did not show in the leadership of his party, in his speeches, and in his appearance that reserve which should have been a matter of course for the leader of such a big party.
However, all signs indicated that Hitler had his party under control to such an extent that he would be able to put through even unpopular measures which had to be taken under the pressure of reality. In the questions concerning the participation in the government he had pursued a policy in keeping with his intentions, wise in its tactics but often unpopular with the impatient masses, because he took the facts into account. Could it not be expected then that this man who now had reached his aim—namely, to take over the leadership of the Cabinet—would abandon the unrealistic ideas he advocated when he was in the ranks of the opposition and would submit to the real exigencies of national and international life?
It is also a general fact known from experience that a man confronted with particularly great aims and with a particularly grave responsibility grows as a ruler and as a man in proportion with these aims and this responsibility. In view of this general historic experience one could not assume that a man entrusted with responsibility, after certain attempts which could be interpreted as being promising, would soon revert to the theses of his former opposition ideas, that after a couple of years this man would throw overboard every positive idea he had emphasized—I remember for instance Hitler’s professing his adherence to the Christian foundations of the state—and that he would even surpass the negative ideas he formerly advocated and increase to an immeasurable extent his aims and his methods. We see now Hitler in his full development before us; and we are perhaps tempted to interpret his actions during the last years—because they represent something which is so monstrous and therefore so impressive—as being the manifestations of his whole personality, assuming that during the preceding time he had already been such.
It is not possible, within the scope of this Trial, on the basis of events, his speeches, and especially his actions, to interpret and to understand Hitler psychologically from the beginning of his political activity until its end. His well-known fear of disclosing himself and the mistrust he showed more and more toward nearly everybody in his immediate surroundings makes it particularly difficult to judge his personality. The individual facts which occurred lead, however, to the certain conclusion that Papen, too, despite the fact that he was close to Hitler, could not suspect him in 1933 of being the man he showed himself during later years.
Papen as homo regius was fully aware of his responsibility in agreement with Hindenburg’s wishes and did what he could to prevent radicalism from getting the upper hand. After the formation of the Cabinet he did not sit back and take the easy way favorable for him from an opportunist point of view. He undertook to form a counterpart to the National Socialists at the elections of 5 March 1933 through a union of the conservative parties of the right. For one who had adopted the National Socialist ideas or even agreed to offer blind obedience to their leader, the next thing to do would have been to put an end to the opposition of this large newly constituted conservative group and to let it effect a union with the party which had recently come to power, a way which at that time appeared to many absolutely natural. Papen entered the election contest as leader and organizer of the oppositional group “Black-White-Red.” His speeches of that time, excerpts of which I submitted in the document book, give a clear picture of his aims and intentions. They were the affirmation of a national idea, free from the unrestrained propaganda of National Socialism and its doctrines. In any case his program was in irreconcilable contrast to what later turned out to be the unpredictable extension and unlimited transgression of the confirmed aims of the NSDAP. The formation of the political action bloc Black-White-Red was to guarantee what Papen had tried to achieve by the composition of the Cabinet of 30 January: a coalition cabinet which, as an inevitable result of parliamentary rules and the entire political situation, left the post of Reich Chancellor to the leader of the strongest party, who, however, was forced to rule within the framework of a coalition cabinet with all the limitations which derived from it.
THE PRESIDENT: Would this be a convenient time to recess?
[A recess was taken.]
DR. KUBUSCHOK: I believe that I have made it sufficiently clear by these statements that Papen’s collaboration in the formation of the Cabinet of 30 January does not constitute an attempt to place National Socialism in a position of exclusive power. The opposite has been proven by facts. With regard to the Defense, I have gone far beyond what would be necessary to obtain a verdict of not guilty. If, even at this stage, somebody had co-operated in really giving the National Socialist Party an exclusive influence, there still would not be proof in this of a preparatory action for the punishable crimes in the sense of the Indictment.
The program laid down by the National Socialist Party and the statements of the Party leaders of that time—which in view of their propaganda value must be construed much more narrowly from an objective angle—can be misinterpreted as much as one likes, and one may read into them in retrospect any number of facts which became recognizable later; but one cannot see in all this the road to the crimes set out in the Charter.
In Papen’s activities as Vice Chancellor during the period from 30 January 1933 to 30 June 1934, the Prosecution think they can see a continuation of his efforts toward a conspiracy for the purpose of consolidating the powerful position to which he had helped to bring National Socialism. The Prosecution have charged him in this connection with collaboration in the various laws passed during this period by the Government, which, according to their opinion, merely served the afore-mentioned aims. I will demonstrate, however, how the work of the defendant developed in detail—that also in this respect he did not deviate from his original policy. The Prosecution deal with a number of laws passed by the Cabinet at the beginning of its activity which must be considered as a compromise between the demands of the National Socialists and the conservative ideas of the other members of the Cabinet. Problems are here touched upon which National Socialism made the subject of discussion and propaganda for years. The conservative members of the Cabinet were then facing the following situation: The strongest party and the Reich Chancellor could not entirely ignore these questions; they had to be solved in some form.
The principle of every coalition cabinet entails a compromise for both parties. In compromising, the other party need not change its opinions. If, for example, in a coalition cabinet which is led by a labor party the program of the labor government, which perhaps contemplates a general socialization, is to be carried out in practice, the collaboration of the other members of the cabinet will consist in preventing a general extension of this measure and in limiting its effect to those cases which, in their opinion, deviate least from the course followed before. One cannot expect from the strongest party and from its leader, who occupies the constitutional position of Reich Chancellor, to continue the policy of his predecessors. The other members of the coalition must make sacrifices if any governmental activity is ever to be possible.
Since in the framework of this Trial we do not have to judge considerations of political expediency and not even moral conceptions but only whether what happened was done with a criminal purpose in the sense of the Charter, the task set for the Defense is comparatively simple.
In the legislation we see the ideological problems raised by National Socialism partly solved. We must concede that the non-National-Socialist cabinet members involved in considering these laws had in mind a final solution and not a temporary one. Their experience, based on the past, on the political life of all countries, taught them that a problem settled by law is normally concluded. It was unthinkable—for it was incompatible with a normal governmental activity and the maintenance of the authority of a legislative body—that after the issuance of a law, a problem already dealt with should continually be considered anew in the following years and each time given a more radical solution. Papen has proved that he carefully tried to keep the concessions made to the opponent within a more or less tolerable limit. The fact that in the laws of that time National Socialist doctrines appear only rarely and in moderate terms shows sufficiently that the composition of the Cabinet of that time had a retarding influence on the penetration of National Socialist ideas. Without this influence it would not be understandable why Hitler agreed to a relatively unpopular limitation of previously advocated aims of the Party.
The restraining hand of the defendant which helped shape the individual laws is clearly discernible. The classic example for this is his endeavors in bringing about the Enabling Act. It was a necessary piece of legislation for that critical time. The preceding years had shown that, owing to time-consuming deliberations in the Reichstag, urgently needed legislation was not passed. Therefore, already in Brüning’s time, almost all the legislative power was put in the hands of the Reich President in that important laws were issued in the form of emergency decrees by unilateral legislative acts of the Reich President. For these compelling reasons, the legislative power which could not in practice be left in the hands of the Reichstag, was transferred to the Cabinet and this constituted a compromise. As shown by the result of the Reichstag vote on the Enabling Act, none of the parties, including the Center Party, failed to recognize this.
Then there was the question as to whether the rights of the Cabinet, in which according to the Constitution the Reich Chancellor had to establish the fundamental lines of policy, would be limited by the fact that the right of making laws was reserved for the Reich President. The personal State Secretary of the Reich President declared in a cabinet session that he did not think it necessary that Hindenburg be given the responsibility of making all laws because of the latter’s right to proclaim them. Von Papen’s direct intervention with Hindenburg immediately afterward remained without success, as stated by the witness Tschirschky.
Mr. President, would this be an appropriate time for me to present the essential points of the questionnaire which was answered by Tschirschky?
THE PRESIDENT: Well, you can comment on it, but you aren’t going to read the whole document, are you?
DR. KUBUSCHOK: With your approval, I will give a summary of it.
THE PRESIDENT: Yes.
DR. KUBUSCHOK: This is Document Number Papen-103, which I submitted a while ago.
I have already read Question 1. Question 3 concerns the controls just discussed. The witness says that they were surely intended to prevent Hitler and the NSDAP from carrying out their policy. In the next question the witness affirms the alleged aim of the conservative bloc Black-White-Red. In Question 5 the witness confirms the development, which I still have to present, toward an authoritative government by Hitler. The answer to Question 7 shows that Papen in the Cabinet strongly resisted the suggested legislation in many points. Question 10 concerns the attitude of Papen toward the Church. The last sentence is particularly important:
“Von Papen believed that, by concluding the Concordat, Hitler and the NSDAP would be placed under such strong contractual obligations that the anti-Church attitude would be arrested.”
The next answer, 11:
“I do not consider it possible that Von Papen himself participated in a later violation of the Concordat or that he even used his religious conviction for political trickery.”
Question 12 confirms what I shall say about the Marburg speech.
The answer to Question 14 is significant:
“It is not known to me that Von Papen expressed opinions to the effect that the Hitler Government would have to solve Germany’s foreign political aims through war and aggression. In the years 1933 and 1934 such ideas would have been absurd.”
The answer to Question 15 is to the same effect. The answer to Question 18 confirms Papen’s efforts after the events of 30 June to reach Hindenburg in order to effect a change.
THE PRESIDENT: In the answer to Question 14, does the answer begin “It is not known” or “It is known”?
DR. KUBUSCHOK: “It is not known to me.”
THE PRESIDENT: In the translation it says “It is known.”
DR. KUBUSCHOK: The answer to Question 16 confirms Papen’s statement that he wanted to prevent Germany’s withdrawal from the League of Nations at all costs. I have already spoken of Question 18. From the answer to 18 it is also shown that Papen’s firm attitude after 30 June was his insistence on resigning.
Questions 19 to 23; here the second sentence of the answer is especially important:
“... It is correct that Von Papen accepted the post of Ambassador Extraordinary to Vienna for the sole reason that he hoped to prevent the insane policy of Hitler and the NSDAP in Austria. It is correct that Von Papen made his acceptance of the mission at Vienna depend on Hitler’s pledge to forbid any Party interference in Austrian matters, to call back Gauleiter Habicht at once, and to refrain from any aggressive action. It is true that these and still other stipulations were accepted by Hitler after lengthy protest and that they were then put down in writing.”
In the answer to 25, Tschirschky confirms the fact that during the witness’ period of observation Papen steadfastly adhered to this policy. The answer to Question 26 refutes the contents of Messersmith’s affidavit. Papen was not concerned with an aggressive policy in the southeastern area. The answer to Question 27 sums up the attitude of the witness to the effect that Papen did not strive for an Anschluss to be obtained by force.
Continuing on Page 22 we see Papen again in the foreground when the problem of anti-Semitism had its first legal effect. At that time, the situation was the following:
There were the broad masses who for years had been influenced in this direction, and there was a predominantly National Socialist group for whom anti-Semitism was an important plank in the Party platform. We saw the effects of propaganda on the masses which manifested themselves in the afore-mentioned individual actions during the first weeks after the formation of the Hitler Government.
The conclusions to be drawn from this situation were clear. A problem which had been stirred up and which had already shown pernicious results had to be legally settled. It was clear that in this question National Socialism, through its exaggerated propaganda, had contracted a certain obligation toward its followers. It was difficult to determine the extent of the legal limitation, which for the incited people always had to be disappointing. The way out could only be a compromise. The settlement was directed to a field where a change in the hitherto existing situation seemed to be the least severe.
Whereas in accordance with the contents of the Civil Service Law (Berufsbeamtengesetz) only those were dismissed from their position who occupied their position not on account of their professional qualification but due to their membership in a political party; all Jewish government employees who were appointed after 1918 were also dismissed. As a rule, a right of pension was maintained. Papen’s successful endeavor aimed to limit numerically the effect on the Jewish government employees concerned. He remonstrated with Hindenburg, who favored the idea of protecting war veterans. Through Hindenburg’s personal influence on Hitler, Jewish war veterans and dependents of fallen soldiers were then exempted from this law.
Since an overwhelming part of the young government employees who had been employed since 1914 were war veterans, the number of those thus exempted was quite considerable. This is made especially clear by the official figures published concerning the conditions in the legal profession, which were presented in Defense Document Number Papen-33. Furthermore, the defendant is charged with the measures taken against the labor unions. First consideration must be given to the fact that the measures were not carried out by a regulation based on a Reich law. It is, moreover, important that under the changed circumstances the continuation of labor unions of a Social Democrat character might have appeared as an anachronism. Papen’s attitude with respect to the problem of labor unions is shown by his speech of 4 March 1933, Defense Document Number Papen-10.
Here, too, it must be considered that at the time the measures were taken one could not have foreseen the extent of their further development. Considering its many rather sound ideas for the settlement of social questions, the German Labor Front at the time of its foundation did not merit the judgment it now deserves for the countless coercive measures taken at the end.
The amnesty decree, as was shown during the hearing of evidence, is no novelty. Already in 1922, in order to put an end to a period of political unrest, an amnesty decree was issued, which also pardoned crimes punishable by the death sentence. The establishment of special courts was a measure of expediency to speed up the sentencing of political offenders, because longer normal proceedings did not have the desired element of intimidation. It is significant that the order concerning crimes of violence in the case of the Potempa murderers (Document Number Papen-1, Pages 6 and 7) was applied for the first time during Papen’s Reich chancellorship, against National Socialists. Thus it is erroneous to see in the nature of those laws approbation of misdeeds or a promotion of the Nazi idea.
The Prosecution, in criticizing Papen’s legislative activity during this time, emphasize the Political Co-ordination Act for the States of 31 March 1933, thus touching first of all a question of domestic policy, which is really far outside of a field of discussion in the sense of the Indictment.
If in this the Prosecution have the sole purpose of showing that Papen has in this respect changed the point of view he advocated previously, it must be said that political opinions are in general subject to alterations and often must be altered, and that from a change of conception with respect to political expediency measures one can by no means draw a conclusion as to a general change of opinion. As a matter of fact, the first Statthalter Act was designed to eliminate a dualism between the Reich and the states, which Papen had always considered as disadvantageous. Papen has always advocated, especially with respect to Prussia, a solution as in Bismarck’s time, when the office of President of the Prussian Council of Ministers and that of Reich Chancellor were united in one person. Thus, this question, which ought to be touched only in passing, hardly involves even a change of opinion, much less a proof of a change of sentiment.
The following must be considered with respect to the legislative work of the Defendant Von Papen in the Cabinet: His position of Vice Chancellor was without an administrative province. The influence, even in general political questions, which the head of the regular ministry had in cabinet sessions, did therefore not exist in the case of Papen. He could only express misgivings or objections from a general point of view, without being able to base them on departmental grounds.
Considering the small number of cabinet session protocols available—despite all my efforts I did not succeed in procuring the remaining ones—the extent of Papen’s opposition and that of other ministers cannot be proved by documents. The fact that he voiced this opposition was revealed by the hearing of evidence. But, as admitted, his success was small. Thus it is the duty of the defense to investigate more deeply the reasons why Hitler’s power gradually increased and why the influence of the non-National-Socialist ministers decreased; in short, why the guarantees which had been provided when the Government was formed on 30 January failed.
At the beginning the course of the cabinet sessions did not deviate from the normal procedure. The questions which arose were made the subject of discussions. Hitler refrained from carrying through the bills which were rejected for good reasons. A clear description to that effect is given by the affidavit of the former Minister Hugenberg—Defense Document Number Papen-88.
The elections of 5 March, with the overwhelming success of the National Socialist Party, brought along a substantial change. Beyond their purely parliamentary repercussions, they strengthened Hitler in his conviction that he was the deputy of the German people. He thought that now the time had come for him to make use of his right, granted to him by Article 56 of the Constitution of the Reich, to determine in his capacity as Reich Chancellor the fundamental lines of policy, even when the ministers opposed such a course.
With respect to the constitutional situation I refer to Document Number Papen-22, which shows that in questions of fundamental policy even a majority decision of the ministers was ineffectual against the decision of the Reich Chancellor. Now Hitler became inaccessible to any suggestions. Hitler took opposition to mean resistance and soon it became evident that objections made in the Cabinet were useless in changing Hitler’s attitude. At the best one could hope, as the Defendant Von Neurath declared as a witness, to influence Hitler outside the Cabinet in a direct discussion.
The most essential factors in Hitler’s development into an autocrat were his increasingly strengthened position with regard to Hindenburg and his ever-increasing influence on the Reich Defense Minister, Von Blomberg.
Hitler’s first measures which, in Hindenburg’s eyes, indicated a desire to restore order, had constantly improved Hitler’s personal relations with Hindenburg. He skillfully adjusted himself to Hindenburg’s mentality. Therefore he succeeded very soon in abolishing the original stipulation concerning the obligation of making joint reports. Thus, Papen was practically deprived of the chief means of influencing Hindenburg. The attitude of the War Minister, Von Blomberg, was the second decisive point in Hitler’s further course.
The Wehrmacht was a powerful factor. Hitler knew that its men and officers were probably essentially unpolitical but that by no means—especially as far as its leadership was concerned—were they inclined to National Socialist ideas. A radical turn in the government might therefore always give rise to resistance on the part of the Armed Forces. It must be added that owing to his personality, Hindenburg listened willingly to reports coming from military circles. As long as the War Minister was not a disciple of Hitler, the latter was prevented from carrying out any radical ideas.
It is not possible even today to gain a historically clear picture which would enable one to explain the reason for Hitler’s influence on Blomberg. We must only state the fact that Blomberg very soon became an ardent admirer of Hitler and that on his part no sort of resistance could be expected against any extensive radical development whatsoever of Hitler’s policy. The 30th of June 1943 was to prove this very clearly.
In retrospect, the logical consequence of this development becomes clear. Hitler could only be impressed by actual power. The Wehrmacht at the beginning, especially with regard to the position of the Reich President Von Hindenburg, was a powerful factor with which even Hitler and his Party would not have been able to cope in a showdown. That is the reason for Hitler’s endeavor to win Hindenburg’s confidence, the reason for his comparatively cautious maneuvering during the time prior to Hindenburg’s death, which by no means could envisage the intensified procedure later on. From the time of Hindenburg’s death, Hitler appeared as a ruthless dictator especially in the domestic scene.
In addition to the legislative activity of the Cabinet, the Prosecution dealt with the question as to what extent Papen was responsible for the oppression of political opponents and for certain acts of violence which occurred during the period which the terminology of that time called “national revolution.”
During the cross-examination Papen was asked whether he knew about the arrest and mistreatment of individual Communist and Social Democrat personages named to him. Papen gave a generally negative answer. However, he knew that on the basis of the Decree for the Protection of People and State issued by the Reich President measures had been taken which suppressed the personal liberty of a great number of leftists. The decree was issued by the Reich President, outside Papen’s responsibility, and by suppression of the relevant constitutional stipulations. It was established under the impression created by the Reichstag fire, an event which up to the present day has not been fully elucidated, but for which the official statement that Communist circles had been the instigators seemed to be entirely credible, especially since a search of the Liebknecht House, the Communist headquarters, had produced, according to Göring’s declaration, very serious evidence concerning actions planned against the Reich Cabinet. The investigation proceedings were held by a judge of the Reichsgericht (Reich Supreme Court), a personality whose impartiality was beyond any doubt. Therefore Papen could understand the legal security measures which the Ministry of the Interior thought necessary. But knowledge of the arrest of these politicians is by no means connected eo ipso with the knowledge of the details and of the extent of the measures taken at that time.
During the years of the National Socialist regime he learned again and again that the knowledge of acts of violence remained restricted to the narrow circle of the direct participants. The measures taken to silence an internee before his release were evidently successful. Thus we see again and again that there was always only a small initiated circle from the immediate environment of returned internees. This explains the fact which sometimes amazes one afterward, namely, that wide circles were not informed of the kind and extent of the excesses committed. It is evident that close relatives and close friends of the politicians arrested at that time knew of what had happened to their people. The extent of the secrecy is shown best by the fact that the witness Gisevius assumes that the conditions in concentration camps did not become generally known to Gestapo officials until 1935.
Thus it seems to me quite clear that Papen knew very little about the measures which, during the first months, were almost exclusively taken against political opponents of National Socialism coming from leftist circles. At any rate his knowledge did not go beyond the fact that in this respect arrests were made within the scope of the Decree for the Protection of People and State.
It was a different matter, however, with the later encroachment on the rights of Church offices and organizations, which were closer to him and which he energetically tried to help. The same holds true for the measures in connection with 30 June 1934, which will be discussed later on.
In any case it is a decisive fact that the measures, as far as they were outside the law, were subject to the jurisdiction of the Police and the Ministry of the Interior. The law itself is an emergency decree of Hindenburg’s. It came about legally. The now broadened conception of protective custody does not in itself constitute a crime.
With regard to anti-Jewish excesses the Prosecution accused Papen of having sent a telegram to the New York Times on 25 March 1933, describing the situation in Germany as quiet on the whole, and of having pointed out that individual actions had occurred but were now prohibited by an order from Hitler.
From the sources which were accessible to him, Papen had of course heard of the excesses of which individual SA men had become guilty in this unsettled period. If on 12 March 1933 Hitler categorically forbade such actions by individuals and ordered the strictest punishment for any culprits in the future, Papen could assume with a clear conscience that this order which emanated from the highest authority would henceforth be obeyed.
In passing it is interesting in this connection to refer to a public announcement of the League of Jewish Front Soldiers of 25 March 1933. This proclamation also stated the fact that the situation with respect to the Jewish population was in general quiet and that excesses were confined to actions by individuals, which had now been forbidden by Hitler. I shall submit this publication of the League in my document book for the Reich Government. The same standpoint was taken in a publication of the American Chamber of Commerce in Cologne on 25 March 1933, which publication I shall also present during the hearing of evidence for the Reich Government.
The anti-Jewish boycott, which was announced some days later and which was carried out on 1 April 1933, was, contrary to the opinion of the Prosecution, no government measure but exclusively a Party measure which Papen, too, as well as others in the Cabinet, sharply opposed. The publication of the Times submitted with Defense Document Number Neurath-9 proves that over and beyond this Papen made representations to Hindenburg and had the latter intervene with Hitler. For the rest, one must take into consideration the fact that the anti-Jewish boycott had been announced as a defensive countermeasure which was to be limited in time and to be extended only to business life. It had been expressly forbidden to use force and excesses were to be prevented by corresponding measures.
The Prosecution have presented the domestic policy in such a light that it would seem that through the measures taken the position of the National Socialist Party was to be strengthened, so that it should then be possible to turn to the aims dictated by a foreign policy of force which had been decided upon beforehand. Still more important than the discussion of domestic conditions is, therefore, an examination of the foreign policy of the Reich during the time Papen was Vice Chancellor.
Hindenburg’s reservation that he would appoint the Foreign Minister and the appointment of Von Neurath, who had been Foreign Minister until then and was not a National Socialist, to this post necessarily led one to expect a foreign policy along the course hitherto taken.
Hitler’s first measures seemed not only to justify this expectation but even to go beyond it. The first speech on matters of foreign policy, made on 17 May 1933, dealt with Germany’s relations with Poland which in the past had never been entirely satisfactory. The subject of the annexation by Poland, recently revived, of large territories formerly belonging to the German Reich had brought with it a latent tension between these states. Hitler was the first to take up this problem and to resolve, according to his declaration in the Reichstag, to bring about a policy of friendship with Poland by recognizing the Polish State and its needs. If one considers the fact that the thought of renouncing all claims to a revision in regard to Poland was not only generally unpopular but also stood in sharp opposition to previous propaganda, it was impossible to foresee the development of later years. One was necessarily convinced that here was an internally strong government supporting its domestic reconstruction with a policy of peace abroad.
Germany’s joining the Four Power Pact and her renewed profession of adherence to Locarno served to underline this conviction. The struggle in foreign politics for ideological values lay in a different direction. The question of eliminating the clause in the Versailles Treaty which stipulates Germany’s exclusive guilt and the question of equal rights for this large country, which had pursued a persistent policy of peace since 1918, were demands which, on one hand, did not seem to burden the other side with unbearable sacrifices but which were suited to remove from the German people an ideological burden which was considered oppressive.
Germany’s withdrawal from the Disarmament Conference must be considered from these viewpoints. It took place after lengthy negotiations had produced no positive results and because it was in no way evident that the powers were inclined to bring about a fulfillment of the German demands. The declaration of the Reich Government and of Hindenburg that this step was to be looked upon as a tactical step and that the same objectives were to be retained, namely, the preservation of peace under recognition of equal rights—all this therefore had to appear credible and reasonable.
From the same points of view Papen also approved of this step. With regard to the simultaneous withdrawal from the League of Nations opinions could have differed. Here, too, one might hold the view that the withdrawal was necessary as a movement of protest and that one could prove through factual efforts in the matter itself that it was intended to adhere to a policy of peace.
Papen figured among those who felt obliged to advise against withdrawal from the League of Nations, even though he himself had experienced as Reich Chancellor that the negotiations in the assembly of the League of Nations caused certain difficulties in some questions. On the other hand, however, he was so convinced of the institution of the League of Nations being an instrument of understanding and an instrument to facilitate the technical possibilities for agreement that he wished to avoid withdrawal from the League of Nations. He advocated this opinion very strongly. Since he could not persuade Hitler in Berlin, he followed him to Munich shortly before the decision in order to lay his well-founded opinion before him there. We see Papen here working actively in a field for which in his position as Vice Chancellor he actually had no responsibility, aiming at a solution which, if one takes as a basis the views of the Prosecution concerning the withdrawal from the League of Nations, can only be considered as a step toward peace.
Because of the fundamental importance of the withdrawal from the League of Nations the measure was submitted to the German people in the form of a plebiscite enabling it to state its opinion. On the occasion of this plebiscite, Hitler, the Government, and Hindenburg issued proclamations which emphasized expressly that this step was not intended to constitute a change of policy but merely a change of method. Preparations for the plebiscite were carried out in line with this statement.
The Prosecution accuse Papen of having glorified in his Essen speech the successes of Hitler’s Government and of having unconditionally advocated an affirmative attitude toward the questions to be decided by the plebiscite. If Papen did the latter, it was because he felt obliged to do so, the decision having been cast once and for all—a decision which had to be justified before the world. If the responsible leaders actually did not strive for anything but a change of methods, no objections could be made. The position of German foreign policy would have been shaken if the people had shown in the plebiscite that they opposed the measure already taken. It was therefore quite natural to approve of this policy in public within the framework of the solemn assurances which had been given. Moreover, it could not be overlooked that in a plebiscite on government measures the vote of confidence could not fail to affect internal politics altogether.
We have to take the date of the speech into consideration. In November 1933 Hitler had made progress in urgent matters which were in the foreground—namely, the amelioration of economic distress and the elimination of unemployment. His measures were taken on a large scale and at first showed apparent success. Here, too, one cannot measure things by the same standard that one applies to them today in full knowledge of their development. At that time the course taken seemed justified by its success. In his electoral speech which demanded demonstration of confidence for the Government for the purpose of acknowledging a matter of foreign policy, Papen felt obliged to refer appreciatively to this positive development in domestic politics.
In his introductory speech Mr. Justice Jackson himself acknowledged in the following words the conditions of 1933 which have been described:
“After the reverses of the last war we saw the German people in 1933 regain their position in commerce, industry, and art. We observed its progress without distrust and without malice.”
Of all problems of foreign policy it was perhaps the question of German-French relations which interested Papen most. In his own testimony he has stated his views on this subject and has related how, as early as in the twenties, he collaborated in various political and Catholic bodies with the idea of promoting mutual understanding between France and Germany. I refer in this connection to Document Number Papen-92 and to the meeting between Papen and the French Colonel Picot described therein, which is characteristic of Papen’s attitude.
In the new Government, Papen, as Commissioner for the Saar territory, paid special attention to this question. We see how he tried to avoid in the Saar question as well everything that could in any way impair, even temporarily, the relations between the countries. Therefore he suggested that there should be no recourse to a plebiscite which might give renewed impetus to political chauvinism in both countries. Hitler, himself, not only before he took over power but as responsible chief of the Cabinet, had stated time and again that Germany had no intention of bringing up the question of Alsace-Lorraine, but that the Saar question was the only problem still to be settled between the two countries. And in so doing he followed entirely the suggestions of Papen, which aimed at a peaceful settlement.
Papen is also accused of having deceived the contracting party, namely, the Vatican, by concluding the Concordat in July 1933. By concluding the Concordat Papen allegedly intended to strengthen Hitler’s position and to enhance his reputation abroad.
The hearing of evidence has shown that the Concordat in its effects, too, was a bilateral pact, and that the legal obligations of the Concordat during the treaty violations on the part of Germany which followed soon afterward, also offered certain legal protection for the violated party. The questionnaire of Archbishop Gröber concerns the conclusion of the Concordat. I refer to Document Number Papen-104 which I submitted today, and I summarize it as follows:
Archbishop Gröber is of the conviction that the Concordat was concluded because of the initiative of Papen. Furthermore, he confirms that Papen succeeded in persuading Hitler to the conditions of the Concordat. In the answer to Question 4, in particular, he confirms that Papen’s activities while the Concordat was concluded were dictated by his positive position toward religion. Finally he confirms, in the answer to Question 6, that the Concordat was a legal “bulwark” and a support in face of the later persecution of the Church. Answer 7 confirms in fact that the Work Association of Catholic Germans, which I shall mention later, was not an organization protected by the Concordat.
In any case, it is entirely wrong to suppose that Papen had any knowledge of intended future violations of the treaty and that for that reason he had brought about its conclusion. If he had wished to enhance Hitler’s reputation abroad, this means would have been the least suitable that could be imagined. A struggle against the Church without the Concordat would have met, it is true, with an unfavorable reception abroad, but it would nevertheless have been an internal German affair. The existence of the interstate treaty made these Church persecutions at the same time a violation of an international treaty and lowered our prestige. One cannot conclude a treaty for the purpose of gaining prestige if immediately after its conclusion one proceeds to violate the same treaty. This consideration alone refutes the assumption of the Prosecution. Beyond this the accusation of the Prosecution shows a characteristic tendency.
Every action of Papen’s which has in any way come to light must be interpreted, they feel, in the sense of the conspiracy theory to Papen’s disadvantage; and the simplest procedure for doing so is to place the later development into the foreground, claiming Papen’s co-operation in and knowledge of this development and to denote his previous contrary statements of opinion as ambiguous and double-faced. This procedure is simple, if one considers the knowledge of later developments in retrospect as self-evident and if one does not picture the true factual situation at the time—above all, if one makes no effort to go into the logic in the proclaimed original intention and the further developments. Only in this manner can one, as in this instance, come to a conclusion which on closer consideration presupposes the folly of the person acting at the time.
But quite apart from these deliberations, the attitude of the defendant toward religious matters removes the slightest doubt of the sincerity of his intentions. In the hearing of the evidence it was set forth that not only his closest personal advisers in Church affairs but also the highest dignitaries of the Church, who were in closest personal as well as professional contact with the defendant in these matters, emphasized that his attitude as a Catholic was absolutely beyond reproach at all times.
The lack of foundation of the whole Indictment with regard to Church questions is already made clear by the refutation of the assertion of the Prosecution that Papen himself broke the Concordat by dissolving the Work Association of Catholic Germans. I refer in this respect to the unequivocal testimony of the former secretary of the Work Association of Catholic Germans, Count Roderich Thun, Defense Document Number Papen-47. It must be stated, however, that Papen not only regretted the subsequent violations of the Concordat by the Reich but that he actively tried to oppose them. The entire activities of the Work Association of Catholic Germans consisted practically of nothing else but the establishment of such violations of the Concordat in order to furnish Papen with evidence for his constant interventions with Hitler. After Papen’s departure for Vienna, the practical possibility of such interventions ceased to exist.
From all of Papen’s speeches it is evident that his attempt at safeguarding the churches did not emanate from considerations of political expediency of the day but from his fundamental religious attitude. I believe there is no speech in which he did not express himself on this problem, emphasizing time and again that only the Christian philosophy of life and thus the Christian churches, could be the foundation for the orderly government of a state. In just this Christian foundation he saw the best protection against the tendency of the Party to give preference to an ever-increasing extent to the idea of sheer might over right.
With regard to Papen’s report to Hitler of 10 July 1938, Document Number 2248-PS, which was submitted during the cross-examination, the Prosecution fell victim to a quite obvious misunderstanding. Papen refers in it to the favorable result there would be in the field of foreign politics if one could succeed in eliminating political Catholicism without touching the Christian foundation of the state. Papen does not state here his opinion on the past and present situation but furnishes advice for the future. The content of this advice is definitely positive in the ecclesiastical sense. It states that one may eliminate political Catholicism; but the purely ecclesiastical interests themselves, that is, the Christian foundation of the state, must remain untouched. These directives destined for future times obviously contain criticism of the past as well. We see here how, in connection with foreign political activities, matters could be discussed and brought up to Hitler which in themselves belong to another field.
In his own testimony Papen replied to the accusation of the Prosecution that as a good Catholic he should have resigned after the Pope had issued his Encyclical Letter “With Grave Apprehension” of 14 March 1937. Papen could refer, in this connection, without any criticism and with full approval, to the standpoint of the Church itself, which has always been of the opinion that one should hold a position so long as it still offers the slightest opportunity for positive work. Owing to this wise attitude and to its feeling of responsibility for the German Catholics, the Church up until the end never completely broke with the Third Reich. One cannot ask an individual Catholic to take any other standpoint in this respect. This all the less as Papen, in his purely foreign political activities, came into no conflict whatsoever with his Catholic conscience.
The accusation that in the fall of 1938 he should have protested to Hitler about the treatment of Cardinal Innitzer is also without foundation. Papen himself can no longer remember today when and in what form he heard of these occurrences at all. The German press did not publish anything about it, and in no case did such matters reach the public via internal Church channels, as the Prosecution assume. In any case at that time Papen had no possibility whatsoever to intervene, being merely a private person and besides in very bad standing with Hitler at the moment.
I have already dealt with Hitler’s development into an autocrat. After the cessation of joint reports to Hindenburg, Papen’s influence was reduced to a minimum. Protests in Cabinet sessions coming from a single man, who was unable to base these protests on requirements of his own department, were of purely declaratory nature. Meanwhile the Nazi doctrines were being applied more and more in practice. It became clear that the willingness of the early days to compromise in agreeing to a rule by a coalition was slowly abandoned and that the National Socialist doctrine kept gaining ground in all fields. It was clear to Papen that he would not follow that course. It was likewise clear that within the framework of his official position he could not alter the general trend, apart from his efforts to help in many individual cases. On the other hand his position of Vice Chancellor, which still existed in theory, gave him certain weight in public life. Thus he had to face the problem as to whether he should launch out on a policy of public criticism of all the prevailing abuses as a last attempt to influence the development by public discussion of the problems. In case of failure, he would have at least publicly branded these abuses even if, as a natural consequence, Papen would have to give up his position and would thus no longer be able to aid many people in individual cases.
In his Marburg speech of 17 June 1934 Papen distinctly branded all abuses which had become apparent until then. Such extensive public criticism remained unique in the history of the Third Reich.
He realized that the danger of Nazism lay in the fact that its different doctrines were so interlocked that they formed an iron ring of oppression on all of public life. Had only one link of that ring been smashed, the dangerous character of the entire system would have been averted. If only one of the points discussed had met with practical success in a favorable sense, it would have meant a total change of conditions. The system objected to could not have existed another day if the freedom of speech demanded by Papen had been granted. It could not have been upheld if the conception of justice and of equality before the law were recognized. It could not have existed if freedom of religion were guaranteed. A Marxist mass theory cannot be upheld if the maxim of the individual’s equality, common to all confessions, is advocated.
Each of Papen’s attacks in his Marburg speech—he had dealt with the racial issue already in his Gleiwitz speech—was in itself an attack upon the development of the entire Nazi doctrine. Here a leading member of the opposition in the Government clearly indicated the source of the abuses.
The consequences of such an action were foreseen by Papen from the very beginning. Either Hitler would take into consideration the new state of affairs after it had become a matter of public discussion, or Papen was going to offer his resignation, since he could no longer reconcile further co-operation with the path chosen by Hitler.
Evidently Hitler at that time did not consider it necessary to make a concession to public opinion by deviating from his line of action. He tried to kill the opposition by forbidding the publication of the speech and by penalizing its distributors. Papen resigned. Hitler did not accept this resignation immediately, since he obviously had to take Hindenburg into consideration, wishing to clear up the situation first of all with him. Meanwhile the events of 30 June took place. What fate had originally been destined for Papen in the course of those events will probably never be known definitely. Particularly, it will never be elucidated whether different people were moved by different intentions.
The course of the actions becomes most apparent by the manner in which they were carried out against the office of the Vice Chancellor. Bose was the first victim, in the very building of the Vice Chancellery. Jung, who was arrested outside of Berlin, was also shot. His fate, however, became known to Papen and the public only much later, as it had been hoped at the beginning that he had left Berlin and had gone to Switzerland, having been warned by the measures taken as a result of the Marburg speech. The other members of the staff who could be apprehended were taken into custody by the police and later sent to concentration camps. As to Papen himself one hesitated to make a final clear decision as to his fate. His close relationship to Hindenburg made it seem advisable not to add to the list of victims of 30 June so prominent a name, especially after it had been burdened enough, as far as Hindenburg is concerned, with the crime camouflaged as self-defense against Schleicher.
At any rate, within the framework of the Indictment it suffices to establish that whatever Papen’s fate has been in the end, the measures taken against him and his people demonstrate his absolute opposition against Hitler and the Nazi policy.
During the cross-examination the Prosecution presented letters to Papen which outwardly seem to show at first a certain divergence from his usual attitude. In those letters Papen assures Hitler of his attachment and loyalty and hides his real and material desires under polite phrases which otherwise were in no way customary in his relations with Hitler. It may appear surprising that a man who opposed the system, who had been persecuted for that reason, and upon whose associates such incredible things had been inflicted, chose to write such letters. But for a fair judgment a correct understanding of the state of affairs at that time is required. A state of lawlessness existed at that time. It offered a favorable opportunity to get rid of troublesome opponents: The examples of Schleicher, of Klausner and others have sufficiently shown that. There was no way of knowing beforehand when and in what manner the measures taken against the persons already involved in these matters would end. The heated imagination saw in every man with opposing ideas a conspirator with these SA groups who sooner or later had really intended to revolt against Hitler.
How far indeed persons of the right, because of their opposing attitude, had joined hands with the SA, which was a powerful factor at that time, has not been established with certainty up to now. However, it could not be judged at that time whether or not Hitler’s statements in regard to persons not belonging to the SA were correct.
For Papen the situation at that time was as follows: He knew of Bose’s assassination but was as yet unaware of Jung’s fate. He hoped that the latter had escaped. Three of his co-workers were in a concentration camp. These had first to be released. And also in view of the future the suspicion had to be dispelled that any one of them, as well as Papen himself, had been in contact with the SA circles in revolt. If Papen ever wished to make any representations with Hitler, the first requirements for any possible success would be to show that he was far removed from such SA circles. Papen therefore felt obliged to assure Hitler of his loyalty and faith. Besides, Papen had been convinced for years that Himmler and Goebbels were behind the attack on him and the Vice Chancellery and that Himmler in particular wanted to eliminate him, having been prevented from doing so only by Göring and that therefore in order to protect himself against these two it was necessary to assure Hitler of his irreproachable attitude.
In judging these letters it is not their form but their contents which is essential. The whole gist of the letters is the demand of rehabilitation for his own person and his associates. He demands court action. He advises Hitler to strike out from his intended Justification Law all actions directed against persons outside the SA circle.
But what is the meaning of these demands of Papen? Their real significance is his adherence to legality with regard to the illegal actions of 30 June. He demands an objective and judicial clarification of all that is to be condemned in the events of 30 June. When we consider these events of 30 June, we must always bear in mind that they fall into two parts. The first were measures against the SA leaders, whose radicalism had always been known and who were always connected with acts of violence and independent activities which in the past had had to be condemned. Intervention against such people could be explained as an act of state defense against dangerous forces which were ever ready for revolt. The other part consisted of measures against individuals outside the SA circle. A court investigation would have resulted in the clearing up of these events and in condemning the persons responsible.
I believe that an objective study of the events at that time leads one to the conviction that Papen’s letters really had no other purpose than to achieve what he had proposed to Hitler, namely, rehabilitation by means of a court action of those persons who had been unjustly persecuted and the insistence on a decree to establish the illegality of the measures in question. If we come now to the heart of the matter and to what was actually desired we can by no means give to the form of these letters the meaning which is ascribed to them by the Prosecution. That this form in particular did not represent an approval of the measures of 30 June but was merely used for the above-mentioned purpose is best shown by the examination of the letter of 17 July. Though at that time Papen had succeeded in having his co-workers released from the concentration camp, his other demands were not fulfilled by Hitler. So we now see a piece of writing which is entirely lacking even in the most elementary forms of politeness, merely objective statements and objective requests, a piece of writing signed only with the name of Papen, without even a closing courtesy formula.
With regard to the subject Papen does not retreat from his line of conduct for a single moment. He insists upon his resignation and demands immediate action on it, as the letter of 10 July 1934 shows; he refuses to play any part in future government activities. He leaves Hitler immediately after having had him called out of the Cabinet session on 3 July. He keeps aloof from the Reichstag session at which the Justification Law is passed. He rudely declines the offer to accept the comfortable post of Ambassador at the Vatican. Such was his negative attitude.
As to the positive one, he strives to bring about the intervention of the Armed Forces. He turns to his friend Generaloberst Von Fritsch. Blomberg, because of his attitude, is out of the question. Fritsch will not act without an express order from the Reich President. So now Papen endeavors to get in touch with Hindenburg. But Hindenburg’s entourage keeps him off.
THE PRESIDENT: You might stop there.
[The Tribunal adjourned until 23 July 1946 at 1000 hours.]
ONE HUNDRED AND EIGHTY-FOURTH DAY
Tuesday, 23 July 1946
Morning Session
DR. KUBUSCHOK: Yesterday I stopped at the point where I was describing what Papen did in the course of the measures of 30 June. I mentioned his resignation, his refusal to co-operate in any way. I shall continue at the bottom of Page 46, the last paragraph.
On the positive side he strives to have the Armed Forces intervene. He applies to his friend General Von Fritsch. Blomberg, because of his attitude, is out of the question. Fritsch will not act except on the express orders of the Reich President. Papen then endeavors to contact Hindenburg. But Hindenburg’s entourage keeps him off. All access to his estate, Neudeck, is blocked by SS guards. Papen sends his secretary Ketteler to Hindenburg’s neighbor and old friend Herr Von Oldenburg in order to obtain access to Hindenburg by this means, but that attempt also fails. He is left to witness how far Hindenburg has obviously been influenced when he publicly approves of Hitler’s conduct in an official telegram on 30 June.
What steps were left for Papen to take with the prospect of even moderate success? In his negotiations with Hitler he had tried to put matters on a legal basis. His attempts to mobilize the only factor of power, the Armed Forces, had failed. Hindenburg was unapproachable; his advisers had evidently influenced him in the opposite direction.
The Prosecution hold that this was the time for Papen to refer openly to the criminal events of June 1930: by so doing he could have brought about the collapse of the entire Nazi system. That assertion is untenable. Apart from the fact that, as we have demonstrated, Papen could no longer make an official statement of this nature, subsequent developments in Germany have made it plain that no individual protest of the kind would have had any effect on Hitler’s power either at home or abroad. Hitler’s prestige in Germany was already so great—and it increased as time went on—that such a protest, assuming that it reached the public at all, would certainly have found no echo in the masses of the population. The great masses saw only the economic improvement and the strengthening of Germany’s position abroad, and only a comparatively small number of them realized the true danger of this development. Foreign countries were, for the most part, better informed of the events of 30 June than were the Germans themselves. A statement by Papen would not have made matters clearer to the German people. No conclusions were drawn from the available knowledge by foreign countries either at that time or later.
The Prosecution even believe that such a step might have led to the reoccupation of the Rhineland by the French. I cannot imagine on what the Prosecution base this assertion. It is contradicted by the fact that later events, not connected with internal politics, but vitally affecting other countries—for instance, the introduction of compulsory military service and the occupation of the Rhineland—called forth no military reaction.
By his resignation and his open refusal to attend cabinet and Reichstag sessions, Papen made it clear to the public that he was opposed to the state of affairs. His conduct was a public protest against the measures of 30 June and their perpetrator. The Prosecution cannot deny these outward signs, which are historical facts. They attempt, however, to construct an antithesis between his outward behavior and his inner convictions. The only evidence at their disposal for that purpose are the letters addressed by Papen to Hitler in July. Even if the real nature and purpose of these letters were not clearly discernible from their contents, as in fact is the case, such an attempt would fail in any case in face of the facts just stated—since the means at hand were, from their very nature, inadequate.
In this connection, I would like, in general, to make the following observations: What reason could Papen have for assuming in public a hostile attitude toward Hitler during his vice-chancellorship, and during the events of 30 June, if he had been, in fact, his loyal follower? What reason could Hitler who, according to the Prosecution, conspired with Papen, have had for desiring this, and this, after all, would only be a result of the conspiracy? Could Hitler have wished Papen to disclose in his Marburg speech all the weaknesses and abuses of the Nazi system? What reason could Hitler have had for wishing Papen to remain so obviously aloof from the lawless proceedings of 30 June? It could only have been in line with his policy to show the unity between Vice Chancellor and Reich Chancellor to the public. If these points are taken into consideration, there is only one possible conclusion: There is no logical basis for the Prosecution’s interpretation of Papen’s inner conviction.
This thesis of unconditional obedience to Hitler, despite certain facts apparently indicating the contrary—but actually for purposes of camouflage—is again applied by the Prosecution to Papen’s acceptance of the Vienna post. Before discussing this problem, let me briefly state the following. In my opinion the final development in the Austrian question—which occurred after Papen’s recall, and undoubtedly without his co-operation—namely the marching-in on 12 March 1938—does not represent a crime in the sense of the Charter either. The Charter considers as punishable the preparation and waging of a war of aggression, or a war by violation of international treaties. In the three counts of the Indictment, the Charter confines itself to the arraignment of what appears to be crime at its gravest, with terrible and all-embracing consequences. The forbidden war of aggression itself, the crimes against the laws regulating the conduct of warfare, the crimes against humanity in their most brutal form, the immeasurable consequences of these grave actions—all these things have justified this unusual trial. The Charter does not charge the Tribunal with the punishment of all the injustices which have occurred in the course of the development of National Socialism. In particular it does not charge the Tribunal with the task of investigating every political measure in order to determine whether it was necessary or permissible. Such a task is no part of the functions of this Tribunal, if only for technical reasons and for lack of the necessary time. It is not the task of the Tribunal to examine whether or not international treaties were observed. This question is only of importance if wars were caused, or if the crimes of violence which are to be described in detail have to be accounted for. The march into Austria is not a war, however far one stretches the meaning of the term, from the standpoint of international law. Here the sole decisive factor is that no force was employed, and not the slightest resistance offered; but that, on the contrary, the troops were received with jubilation. Furthermore, the march into Austria cannot be considered in connection with the later acts of aggression. It was a special case, based on an obvious predicament, which found its expression since 1918, in the fact that efforts had been made by both the Austrians and the Germans to effect some kind of constitutional union between the barely viable Austrian State and Germany. Therefore, the actual events must be considered apart from Hitler’s war plans, and even from his purely military plans of preparation—with which I shall deal later—and must be regarded as the solution of a state political problem which had become acute, and the result of which had always been desired by both sides, independently of Hitler.
Papen’s activity in Vienna is clearly characterized by three episodes: The circumstance of his appointment on 26 July 1934; his letter to Hitler dated 16 July 1936—Defense Exhibit Papen-71, Document 2247-PS—after the conclusion of the July agreement; and his recall on 4 February 1938.
The following circumstances led to his appointment. A crucial event had occurred: Dollfuss had been murdered. Not only were Austro-German relations strained, but they had reached an extremely dangerous stage of development. The international situation was acute. Italy was mobilizing at the Brenner. It was to be feared that Austria would now turn finally to one of the groups of powers interested. A situation which would definitely and finally render impossible the maintenance of even tolerable relations between Germany and Austria seemed to be impending. In this difficult situation, Hitler obviously thought it necessary to discard his objections to Papen’s person and to entrust him with the mission in Vienna.
Papen was particularly fitted to initiate a policy designed to overcome the deadlock caused by the assassination of Dollfuss. In the Cabinet, Papen had always been in favor of developing friendly relations with Austria. Papen had an international reputation as being the representative of a reasonable policy of mutual understanding. He naturally had strong misgivings in taking over this post, however. His recent experience in home politics, his personal attitude to his own and his colleagues’ treatment on 30 June, his attitude to the murder of Dollfuss, with whom he had remained on the most friendly terms since his previous office, were against his accepting the post. It was, therefore, a very difficult decision for Papen to make; but the consideration that he alone was in a position to fulfill this task in the spirit of genuine appeasement was bound to outweigh everything else. Could he assume that any other man had the necessary strength of will, as well as the power, to insure that the way of appeasement now begun would be followed to the end? The personal independence which he himself enjoyed could not be expected of a German Foreign Office official, much less of a Party man. Papen brought to this his experience as Vice Chancellor. He knew the difficulties of convincing Hitler by arguments of fact alone. He alone had any prospect of insuring a consistent peace policy in the future, in spite of the opposition of Hitler’s extremist advisers. On the other hand, he had learned caution from his experiences.
He stated conditions and demanded the establishment of a clear policy based on facts. He demanded that no further influence be exerted on the Austrian Nazi movement, and that this be insured, in the first place, by the dismissal of the man who had played a direct or indirect part in the criminal act—Landesinspektor Habicht. He asked that he himself be subordinated to Hitler personally in order to assure compliance with the conditions as he had proposed them, and to avoid their being weakened by administrative channels. He succeeded in doing something ordinarily impossible in his relations with the head of the State: The conditions under which he accepted the post of Ambassador were laid down in writing. They were signed by Hitler. He wanted always to be in a position to force Hitler to keep to his written word. We obtain a clear picture of these events through the testimonies given by witnesses, particularly by the statement made by Von Tschirschky, a man who, as the Prosecution have stated, is certainly not suspected of viewing the defendant in a favorable light.
The Prosecution assert that Papen, as a faithful follower of Hitler’s already known plans of aggression, had, from motives of sheer opportunism, eagerly and willingly accepted the new post. On the other hand, can the form of the appointment and the extreme precautions taken by the defendant really harmonize with such an attitude? These secret conferences, this unpublished document signed by Hitler, which was in Papen’s possession, cannot really be regarded as a pretense made in order to create a false impression, as the charge made by the Prosecution would infer. These things were not intended to be publicized and were, in fact, never made public. The circumstances connected with his acceptance of the Vienna post can only lead us to conclude that Papen was sincerely eager to maintain the appeasement policy agreed upon. It is absurd to speak of opportunism in this connection. Papen had declined the position of Ambassador to the Vatican. The position of Ambassador in Vienna was hardly an enticing post of honor for a former Reich Chancellor and recent Vice Chancellor. The soundness of Papen’s own financial situation excluded all thought of material motives.
Papen’s letter of 16 July 1936 to Hitler is a report on the success of his many years of work in the interests of settled peaceful relations between both countries. The treaty of 11 July 1936 put the seal upon this. There can be no question as to the value of this document as evidence. It gives a clear account of Papen’s assignment and the way in which he carried it out. Papen points out that the task for which he was called to Vienna on 26 July 1934 is now concluded. He considers his work as finished with the conclusion of the treaty. There can be no clearer proof of the truth of Papen’s statement, in regard to his task and the way in which it was carried out, than that furnished by this letter.
And yet, what far-fetched and dubious motives have been imputed to him in connection with this mission! He is said to have acted as Hitler’s willing tool in accepting the task of preparing and carrying out the forcible annexation of Austria. He is said to have been instructed to undermine the Schuschnigg Government and to co-operate for this purpose with the illegal Nazi movement in Austria. Everything he did with a view to mutual appeasement is described as camouflage to help him to carry out his underground plans. And here is a report of his work which is addressed to his employer and is above suspicion. Is it camouflage, intended to create an impression entirely incompatible with the facts—this letter, found by the Allied troops in the secret archive of the Reich Chancellery, and now obligingly placed at the disposal of the Defense Counsel by the Prosecution?
The third episode which clearly indicates the nature of Papen’s activity in Vienna is his recall on 4 February 1938. The numerous recalls and appointments made on that date clearly showed reorganization of the most important military and political posts. The identity of the military men and diplomats recalled makes clear what the sole reason was for the unusual and extensive changes made at that time. If Hitler at such a time recalled Papen from his post, without any other definite cause for doing so, entirely unexpectedly and without giving reason, this clearly proves that Hitler, embarking upon a foreign policy of extremism, no longer considered Papen the right man for Vienna.
These three points are in themselves sufficient and unequivocal proof of the peaceful nature of Papen’s activities throughout the entire duration of his Austrian mission. As the Prosecution, however, tries in this case to interpret isolated incidents in a manner unfavorable to Papen, I shall briefly consider this period also.
We see Papen engaged in a steady struggle against the illegal movement. The charge that he had conspired with it is best refuted ad absurdum by the fact that plans made by the illegal movement, and stated by Foreign Minister Schmidt to be genuine, reveal that members of this same illegal movement had planned to murder Papen. The documentary evidence from the available reports sent by Papen to Hitler also leads in one direction only. This, too, is absolutely clear proof, since the routine reports regularly made to Hitler certainly exclude any possibility of deliberate deception of the public. It is regrettable that the reports could not be found in their entirety so as to furnish us with a clear and complete historical picture of Papen’s activities. Only a fraction of the reports are in our hands. But if Papen sent carbon copies of all his reports abroad at the end of his period of activity, as the evidence has shown, he surely could only have done it in order to justify his policy of appeasement in the eyes of history. This constitutes absolutely clear proof that his policy, as shown in the complete series of reports, must have been a policy contrary to the development affected by other quarters in March 1938. All the witnesses who have appeared in court, and who could give information on conditions in Austria, have stated under oath that Papen’s policy was a policy of appeasement, and that he opposed any attempts made by the illegal movement to interfere in politics.
In view of these facts, what can be concluded from the presentation of the Prosecution? That Papen, by reason of his position as German Ambassador, and in accordance with the state treaty concluded with Austria, had to maintain a certain external connection with members of the Austrian Nazi movement—a connection, which was in no way secret, which was purely for purposes of observation, and which was necessary to enable him to fulfill his obligations to report to Berlin on actual conditions in Austria? If he had actually collaborated with the illegal movement in the way the Prosecution state he did, this would most certainly have been mentioned in his reports to Berlin. He does not work out any secret plans with the illegal movement. On the contrary, we see him openly negotiating with the Austrian Government over the part to be played by the National Opposition in the work of the Government, as agreed upon in the July treaty. Finally, since we have before us in Rainer’s report the written history of the illegal movement, we see their activities proceeding during those years without the slightest co-operation or support from Papen.
What conclusions can be drawn to the disadvantage of the defendant from the fact that he was interested in the activities of the Austrian Freiheitsbund, when this organization is described as representing a non-Nazi trade union, an Austrian organization which was thought to be willing to follow Schuschnigg and in support of his Cabinet? What conclusions can be drawn to the disadvantage of the defendant from the fact that he also watched the situation of the Government in Austria and reported on it to Berlin? Or when, in this connection, he expresses a wish that this or that combination may favor the development of friendly relations with Austria?
During the cross-examination the Prosecution presented reports from offices abroad, which Papen forwarded to Berlin. They believe that Papen had made use of the contents of these reports. This supposition must be wrong. The object of sending reports made by the foreign secret service to Berlin for purposes of information is clear. In addition, the following facts must be established: Papen also made a special point of forwarding to Berlin those documents containing criticism of conditions in Germany which came into his hands; the witnesses Gisevius and Lahousen have pointed out that Hitler was incorrectly or insufficiently informed by his closest co-workers; the critical reports originating abroad, which Papen sent directly to Hitler, could fulfill the aim of drawing Hitler’s attention to abuses and of making him abolish them, and they were intended to do so—this is particularly often the case with statements about anticlerical conditions in Germany. The same applies to the reports on the activity of the Gestapo in the Tschirschky case—these have already been mentioned in the course of cross-examination. Some of Papen’s regular reports to Hitler also deal with conditions in neighboring states. Inspection of their contents shows that these reports deal entirely with problems directly connected with Austria’s foreign policy in the Balkans and, therefore, formed part of the assignment of the accredited Ambassador in Vienna.
Finally, Messersmith’s affidavit must be considered. He describes events which happened 10 years earlier in Papen’s case, apparently entirely from memory. Time and information acquired later have obviously clouded the picture so completely, for example, that Papen’s explanations of his assignments in the southeastern area, contained in both affidavits, are two altogether different accounts. Apart from this, I may limit my criticism to the statement that the contents of the affidavit run counter to every rule of experience and logic. A diplomat cannot have revealed the secret aims of his policy to the representative of another state who meets him with deliberate reserve. It is impossible that Papen should, as Messersmith says elsewhere, not only have revealed to him his alleged plan to overthrow Schuschnigg—to whose Government Papen himself was accredited—but that he should even have spoken of it in public. It is impossible that such disclosures should have produced no reaction, and that they should have been written down for the first time in an affidavit made in 1945. No judgment can therefore be based on these two affidavits, even apart from the fact that their contents are refuted by the other evidence submitted with regard both to Papen’s plans and to his actions.
I return to Gavronski’s questionnaire, which was read yesterday—Document Papen-106. The answers which the Polish Ambassador Gavronski gave to this questionnaire form a thorough refutation of the Messersmith affidavit. This testimony from the diplomat of a country with which Germany was at war, from September 1939 on, seems particularly remarkable. Gavronski had an opportunity of observing Papen during the whole period covered by his activities in Vienna, from 1934 to 1938. In answering the questionnaire, the year 1937 was given by mistake, instead of 1934—which is correct—as the beginning of Gavronski’s activities in Vienna. All the charges which Messersmith makes against Papen—his collaboration with the illegal Nazi movement, the carrying on of intrigue, the plan to overthrow Schuschnigg’s regime, the policy of aggression in the southeastern area, the partition of Czechoslovakia between Poland and Hungary—are all refuted by Gavronski’s testimony.
In addition, I refer to Rademacher von Unna’s affidavit, part of which was read yesterday. By his refusal to enter into a secret agreement with an Austrian minister, Papen shows very clearly that he was not engaged in subversive activities, since he refused to take advantage of this propitious and convenient opportunity. I believe this suffices in regard to the period during which Papen acted as Ambassador Extraordinary in Vienna.
In addition, the Prosecution have taken into consideration Papen’s co-operation in the discussion at Berchtesgaden on 12 February. This Berchtesgaden conference was not the beginning of a new policy, but the result of previous development. In conversations held months before, Papen and Schuschnigg had already decided that a meeting between the two statesmen would be desirable in the near future. The July treaty had naturally left many points of difference unsettled. The testimony of the witness Guido Schmidt has given us a clear picture of the situation; a numerically strong opposition party, officially prohibited but tacitly tolerated—as a result of actual circumstances—and looking for all its ideological guidance to the man in Germany who was—spiritually at least—its leader. In Germany the leader of the Party was, at the same time, head of the state. From the standpoint of foreign policy, it was necessary to separate the parties in both countries. The inner ideological unity was bound, however, to lead to repeated disputes. The Austrian Government accordingly maintained an understandable attitude of reserve, and made constant efforts to prevent this movement from increasing its influence in the administration and Government. The questions arising from the July treaty were in practice treated in a manner suitable to these interests. It was natural that Austria should try to apply the stipulations of the treaty on as restricted a scale as possible. It was only natural that Germany should wish to make the fullest possible use of the opportunities offered by the treaty. The establishment of direct contact between the responsible heads of both countries—and in the case of Germany this meant also the head of the Party—could only be regarded, therefore, as reasonable. Papen’s recall on 4 February threatened to interrupt this development. Perhaps the adoption of the extremist line of policy, which was expected, would cause the indefinite postponement of a meeting of this kind, which it was hoped would speed the removal of existing difficulties. To say the least of it, the results to be expected at a later date, and in a tenser atmosphere with an extremist successor, might be very different from those which Schuschnigg and Papen were hoping to attain. It is therefore perfectly understandable that, when discussing business with Hitler during his farewell visit on 5 February, Papen, although he had already been recalled, agreed to make definite arrangements for the prospective conference and to accompany the Austrian delegation to Berchtesgaden for this purpose.
The Prosecution reproach Papen with the fact that the program for the subsequent talks had already been settled at that time. Contrary to this, Papen testified in his interrogation that he was only instructed to arrange the discussion in order to clear up all points of difference on the basis of the July treaty. The Prosecution have failed to submit proof for their claim to the contrary. In view of Hitler’s personality, no conclusions can be drawn from the events of 12 February as to his real thoughts when such a meeting was first mentioned on 5 February, much less as to how much of his plans he had made known. The evidence has shown that the points voiced by Hitler on 12 February are identical with the demands raised by the Austrian National Socialists immediately before the discussion and transmitted to Hitler through their own channels. From this it can be seen that the subject of conversation chosen by Hitler in the discussion of 12 February could certainly not have been decided upon on 5 February. If the Austrian Nazis hurried to Berchtesgaden ahead of Papen with their demands, this refutes the Prosecution’s opinion that Papen had conspired with Hitler and the Austrian party. In this case he himself would probably have been the best liaison between the Party wishes and Hitler. This is further emphasized by the testimony of the witnesses Seyss-Inquart and Rainer, who have stated clearly that they had no contact with Papen during this period. Rainer also points out in his report that Papen believed that the fact of the prearranged discussion was kept secret from the Austrian party.
In order to incriminate Papen, the Prosecution also claim that at the reception of the Austrian delegation on the German-Austrian frontier he had called Schuschnigg’s attention to the presence of generals. Whether this is really in accordance with the facts was not disclosed by the evidence. The sole evidence which can be used in respect to this is the testimony of Schmidt. The latter was no longer in a position to state with certainty whether Papen had spoken of one general, namely, Keitel, who is known to have remained constantly in Hitler’s entourage after taking over his new office—or of several generals. Papen himself does not remember whether, and in what form, he made such a remark to Schuschnigg at the time. Neither does he remember whether he was at all aware of the presence of generals at the time. It is quite possible that it came to his knowledge on the night spent in Salzburg, where he stayed at a different hotel from that of the Austrian delegation. In any case, we cannot overlook the fact that even if Papen had made the statement alleged by the Prosecution, this statement was made before the visit, and he therefore did not take part in any attempt at intimidating the Austrian delegation and taking them by surprise.
The part he took in the discussion has been clarified by the evidence. Hitler was in sole command and, with a brutality which surprised even those who knew him, tried to impress Schuschnigg. Technical details were negotiated with Ribbentrop. Papen was present more or less in the capacity of a spectator, which also was accounted for by the fact that he no longer occupied an official position. The testimonies of those who attended the conference are unanimous in stating that he viewed his part in the proceedings as that of exerting a modifying influence, which the circumstances made necessary.
His position must be taken into consideration; he saw his project doomed to failure through Hitler’s behavior, which was such as no reasonable human being could have anticipated. He saw a man with a naturally violent temper in his excitement betray his lack of all the qualities necessary for a reasonable discussion at a conference of statesmen. He heard Hitler’s threats, and was bound to feel that he was determined to let things take an irrevocable course should the negotiations be broken off abruptly. Considering the situation, therefore, the fact that certain concessions were obtained—Hitler acquiesced with regard to the Army Ministry, the economic demands, and the postponement, achieved after a hard struggle, of the final settlement until ratified by the Austrian Government and the Federal President—was the best possible solution of the dangerous situation. Although in this point Papen agreed with the Austrian statesmen, who undoubtedly were only prepared to sign the document provisionally while safeguarding the interests of their State to a reasonable degree in the prevailing conditions, Papen cannot be charged with approving and intending the result from the outset.
Hitler’s opinion of Papen’s previous activities in Austria and the part he played in the conference at Berchtesgaden is best shown by the fact that no further post of any kind was assigned to him in Vienna. It is highly unlikely that Hitler would not have given some assignment to a man who was wholeheartedly and actively interested in the result of the conference at Berchtesgaden. He would not have replaced him by new men from Berlin, nor, at a time when the diplomatic situation was becoming increasingly complicated, would he have dispensed with the services of the man who, by reason of his years of service, had an intimate knowledge of all the conditions. The personal contacts with Austrian statesmen, which qualified him more than others to continue working on Hitler’s plans, would certainly have been utilized. If the Prosecution were correct in interpreting as deceitful the maneuvering by which Papen attempted to bring about an understanding during the discussion in Berchtesgaden, there is little doubt but that Papen would have been permitted to continue working along these lines, and would not have been replaced by men instructed to carry on a program along much more radical lines.
Papen’s memorandum on his farewell visit to the Prime Minister is revealing. A man who in his own commentary to Berlin passes on Schuschnigg’s view—that to some extent he had acted under pressure in Berchtesgaden—as “worthy of note” is not likely to have played an active part in the coercive negotiations.
The record of evidence has proved that Papen held no further public appointments for some time afterward. The new Chargé d’Affaires, Freiherr von Stein, a pronounced National Socialist, took charge of the Embassy. He was assisted by Keppler, a close confidant of Hitler. Papen, on the other hand, made his farewell calls and went to stay at Kitzbühel, a winter sport resort.
In the meantime things grew more and more critical. The plebiscite announced by Schuschnigg led to a development the proportions of which perhaps even Hitler had not intended. The visit of Seyss-Inquart and Rainer to Papen on 9 March was only a casual one; there were no deliberations of any kind and no decisions were made. If Papen, as Rainer asserted, expressed the view that, considering the way in which the questionnaire was formulated, no decent Austrian could be expected to say “no,” and was therefore bound to follow Schuschnigg’s instructions, that suffices to indicate the contrast between Papen’s views and those of the Austrian Nazis and the intentions which were subsequently made plain in Berlin.
If, in conclusion, I may still refer to Papen’s presence in Berlin on 11 March, I must say that even when I consider the matter in retrospect, I can give no clear explanation for Hitler’s desire to have Papen in Berlin. There might have been many reasons. If Hitler had been, at that time, already determined to force the solution which was later adopted—although there may be doubts as to that—the reason might have been that he did not trust this representative of appeasement in Vienna, or that he assumed that the desperate position in which they found themselves might induce the Austrian Government officials to turn to him, and that with Papen’s help proposals for a settlement might have been made. I may remind you of a similar situation prior to the beginning of the campaign against Poland, when Hitler was afraid “some swine might still come along at the last minute with a proposal for an understanding.” On the other hand, it is also quite conceivable that Hitler wished to have Papen in Berlin so that, in the event that the Austrian Government yielded, he might not be deprived of the advice of a man who was familiar with conditions. As far as the Indictment is concerned, any attempt to understand Hitler’s real motives is superfluous.
The sole deciding factor is constituted by Papen’s actions while he was in the Reich Chancellery. Upon his arrival he expressed to Hitler his desire that the tension be lessened by a postponement of the plebiscite. His attitude toward later events is documented by his comments on the military preparations and the cancellation of the order to march in. The shorthand notes of the telephone conversations carried on by Göring afford us a vivid picture of the events in the Reich Chancellery. His testimony shows that, in the main, he was the driving force, and occasionally went even further than Hitler intended. He emphasized that he had all along made consistent efforts to find a solution, and that he now needed no further advice and no further time to reflect on his decision. Seherr-Thoss’ affidavit makes clear Papen’s attitude on the evening of the day in question. He remarked to a circle of friends that he had advised against marching in, but that Hitler, against his advice, had just been “mad enough to give the order to march in.”
Finally, we find another clear expression of Papen’s attitude in his conversation with the witness Guido Schmidt, which took place years later. At that time, the annexation of Austria had long been a historical fact, and was considered by most Germans to be a great political achievement. Papen, on the other hand, severely criticized Hitler’s method and acknowledged anew those fundamental principles of legality and faithfulness which in this case had been abandoned—a step which, in the long run, would prove harmful to Germany.
My conclusion is that—independent of the legal question of whether the case of Austria can be dealt with at all within the limitations of the Charter—Papen’s defense is completed by the production of evidence to the effect that the defendant himself played no part in bringing about the march into Austria, nor did he prepare the way for it by a policy directed to that end; and that his activity in Austria was exclusively directed toward the aim which he assumed on his appointment on 26 July 1934—a policy which was to restore friendly relations between the two countries—a lawful aim which had no connection with a special or general policy of aggression.
I should like to make the following remarks, which are not in my manuscript. This aim taken over by Papen is in no way contrary to the hopes, cherished since 1918 by the overwhelming majority of Germans and Austrians, for some form of close constitutional union as the result of a normal development. It was clear that in view of the existing restrictions imposed by the peace treaties, a good many difficulties would have to be overcome. But was Papen not in a position to assume with a clear conscience that the parties to the treaty would not refuse to sanction a wish of both peoples, a wish furthered by the political and economic impossibility of maintaining the status quo? Was this not the moment to apply the principle of the self-determination of peoples, the great principle of the twentieth century? The many opinions expressed abroad at the time—his talk with Ambassador Sir Nevile Henderson, mentioned in Papen’s report of 1 June 1937, Defense Exhibit Papen-74, Document 2246-PS; the attitude of neighboring countries, which is also shown in the report, and, finally, the progress made in handling the question of reparations—might lead him to hope that the solution might some day be found in an international understanding. The first necessity for this was the initiative of a sovereign and independent Austrian Government. This could be based only on a genuinely friendly relationship with Germany. Papen’s mission might, therefore, be a basis for the fulfillment of the national wishes publicly expressed in both states.
I continue from my manuscript.
The subsequent period is not taken into consideration by the Prosecution; but the Defense must deal with it for the purpose of refutation. It is a simple matter to establish facts, in connection with this period, which prove that the assertions made by the Prosecution, with regard to the earlier period, must be false. The Prosecution drop Papen at the end of his activities in Vienna and give no explanation for his inactivity since that time. There is no apparent reason or occurrence which might have induced such a change in conduct on the part of the alleged conspirator.
We now come to the period covering the immediate preparations for war and the outbreak of the war itself. The Prosecution assume that, at this time, in spite of the numerous opportunities which must have been open to him, the former conspirator Papen abandoned his previous course. The Prosecution must find some explanation for this transformation if the arguments by which they attribute a criminal intent to the actions of the earlier period are not to be considered inconclusive.
After the incorporation of Austria, Papen retired to the country and remained there, aloof from public life for over a year, until April 1939. This fact is significant in the light of the situation at that time. The events of 4 February 1938 were doubtlessly responsible for the adoption of a more rigorous course in German foreign policy. In the opinion of the Prosecution Papen was Hitler’s willing tool in the actions which preceded and paved the way for this policy. If this were the case, the results achieved by Papen would cause him to be regarded as a hundred-percent successful diplomat. But this most successful diplomat and conspirator does not proceed to some place where he can continue his activities, and where similar preparations might be necessary as, for example, the Sudetenland. He is not sent to some place, where the main strands of European politics cross—in Paris, London, or Moscow, where, on the basis of his international reputation, he would undoubtedly seem the most suitable man to support the Hitlerite policy. This man retires from public life at a time when Hitler’s whole foreign policy, the Sudeten crisis, the incorporation of Czechoslovakia, and the preparations for the war against Poland were creating great political tension. The fact that Hitler did not even consider his services at such a time makes it quite clear that Papen was not a conspirator and not even a follower of Hitler and that he did not even bring about the first success won by the Hitlerite policy—the incorporation of Austria.
From this angle, too, it is significant that Papen was first called upon when there was no question of occupying a country or of preparing for intended operations. Papen was called upon at a time when the Italian policy of expansion into Albania was causing difficulties, and complications with Turkey were to be feared. So there he had a clearly defined mission, that of maintaining peace.
The Prosecution is unable to utilize his activities in Ankara in support of his case; it cannot refrain from judging Papen’s acceptance of the post unfavorably. I am therefore compelled to go into this point also.
Papen was very reluctant to accept this new appointment. He had already refused the appointment twice, in more peaceful times on general grounds, and because he no longer wished to accept any official position. Now he sees reasons which he can no longer refuse to acknowledge. He believes it his duty to devote himself to this new task. The entire political situation was extremely strained after March 1939. Even a secondary issue might easily cause a large-scale conflict. A conflict between Italy and Turkey could, if existing treaties were honored, lead to a general war. If by his activities he could, to this extent at least, prevent war, Papen must have believed himself justified in accepting the assignment. He was confronted with the problem which confronts all those called upon to play a part in a system of which they disapprove. To stand aside and to remain completely passive is, of course, the easier way, especially if there is no other reason which might induce the person in question to accept the post. It is much more difficult to take over a mission which forms part of a general policy of which one disapproves, but has in itself an aim worthy of attention. And if this mission is of such importance that it may prevent possible outbreak of war, the decision to accept it is understandable and praiseworthy. Private interests and feelings must take a back seat if there is even the remotest possibility of attaining such a goal.
When we consider briefly what Papen really did after taking over this mission to Ankara, and see that, as a result of his intervention in the spring of 1939, it was possible for Germany to exercise a moderating influence on Italy and for war to be avoided; and if we further consider that Papen succeeded later on in preventing the war from spreading to Turkey and the other southeastern countries, we can only say, in the light of events, that in taking over the mission against his personal feelings, he made the right decision.
During the presentation of evidence we saw the extent of Papen’s efforts to secure a peace through compromise as early as the year 1939. We must therefore approve his acceptance of the mission for this reason also—no matter what final success might crown his efforts, and even if there was only the smallest possibility of attaining the desired goal. Finally, his acceptance of such a position would be justified from the moral point of view if he had had even an infinitesimal success, as, for example, the rescue of 10,000 Jews from deportation to Poland which has been confirmed by Marchionini’s affidavit.
In this connection I want to discuss a misunderstanding which might arise from the judicial inquiry with reference to this affidavit. Marchionini points out in his affidavit that the lives of the Jews concerned were saved by Papen’s intervention. On being interrogated Papen confirmed the correctness of the affidavit. This confirmation corresponds also to the facts. This does not mean, however, that the significance of that action, as recognized by Marchionini today, and mentioned for that reason in his affidavit, was recognized at the time. Papen knew, of course, that this deportation to Poland for an unknown purpose, and to an unknown destination, was an extremely serious matter. For that reason he intervened. Like Marchionini, he did not know what he now knows very clearly—namely, that the path of these people was destined to lead them not into deportation and hard labor, but straight to the gas chambers.
Now I should like to refer to Document Papen-105, the questionnaire filled out by the last apostolic nuncio in Paris, Roncalli, who describes in detail from his own personal knowledge the steps Papen took in Church affairs and his attitude toward them.
His Ankara activities have been described in detail by the witnesses Kroll and Baron von Lersner. They clearly indicate a unified peace policy, a peace policy which was independent of the military and political situations of the moment, and which laid stress on a peace through compromise even at the peak of the German victories. Rose and Kroll state that Papen was horrified by the outbreak of the Polish war, and that he condemned it from the first.
How can this attitude and these activities be reconciled with the assertions of the Prosecution? Papen is supposed to have brought about the war in conspiracy with Hitler. The Prosecution believe they can deduce his guilt in this criminal act from his behavior years before the war. No facts have been submitted to show what might have turned the conspirator Papen into an advocate of peace. The Prosecution have rested their accusations on the insecure foundation of deduction and omitted examining whether their assertions were even remotely in accord with the whole personality of the defendant. In view of the nature of the Indictment, it is not enough to solve the problem by crediting him with a split personality and an opportunist attitude. The Indictment includes crimes of monstrous proportions. Such an Indictment must also take into consideration the personality of the accused. Participation in such conspiracy is only conceivable in the case of a man who identifies himself completely with the doctrines discussed in the proceedings under the name of “Nazism” and accepts their full implications. A conspirator, in the sense of the Indictment, can only be a man who has dedicated his whole life and personality to that aim. He must be a man no longer conscious of even the most elementary moral obligations. A personality of this kind cannot be a temporary phenomenon; the predisposition to such a crime must be present in the character of the accused.
In contrast to the distorted picture of Papen’s character drawn by the Prosecution, his true personality has appeared very clearly in the course of these proceedings. We see a man whose origin and education are on traditional and conservative lines—a man of patriotic feeling, conscious of responsibility toward his country, and who for precisely these reasons is naturally considerate of his fellows. His personal ties with Germany’s western neighbors and his knowledge of the world suffice in themselves to prevent him from looking at things from a one-sided point of view—according to his own patriotic wishes. He knows that life requires understanding and readiness to understand. He knows that international life, too, is built on sincerity and faith, and that one must stand by one’s word. We have before us here a man who, on account of his deep religious feeling, the principle on which all his actions are based, must necessarily oppose the ideology of National Socialism. We have followed his political career and have seen that through all the periods of his activity he held fast to his basic political creed, which was built on these elements. In accordance with this fundamental principle and with full consciousness of his responsibilities, he did not evade any of the tasks assigned to him. And though at the end we witness the collapse of his hopes and the failure of his endeavors, this is no touchstone for the sincerity of his convictions.
To arraign such a man at all under the charge of committing a crime in the sense of the facts established in the Charter was surely only possible on the basis of the simplifications which an Indictment on the count of conspiracy offers to the Prosecution from the legal point of view. Considering the facts in the case against Papen, even this interpretation must fail. The Prosecution have failed to prove that Papen, at any time, was involved in the alleged conspiracy. The truth is opposed to this. In the evidence offered in refutation, facts are established which make it impossible to connect his person even remotely with the facts of the Indictment.
The final conclusion is obvious: Franz von Papen is not guilty of the charge brought against him.
THE PRESIDENT: The Tribunal will adjourn.
[A recess was taken.]
THE PRESIDENT: I call on Dr. Flächsner, Counsel for the Defendant Speer.
DR. HANS FLÄCHSNER (Counsel for Defendant Speer): Mr. President, may it please the Tribunal:
The Prosecution have charged the Defendant Speer with violations of all four points of the Indictment which essentially covered the stipulations of Articles 6(a) to (c).
The French Prosecution, which substantiated more definitely the individual charges against the Defendant Speer, refrain from charging him with the violation of Article 6(a) of the Charter and demand only the application of Articles 6(b) and (c) against him. However, since the legal concept of conspiracy has frequently been dealt with during the oral proceedings by citing the person of the Defendant Speer as an example, and since it was asserted that the Defendant Speer also had made himself guilty within the meaning of Article 6(a) of the provisions of the Charter, details must be given by way of precaution.
The defendant has, in addition, been charged with the planning, preparation, launching, or conduct of a war of aggression, or a war violating international treaties, although at the time when the defendant assumed the office of Minister of Armaments—which was only expanded to a Ministry for Armament and War Production 1½ years later—the German Reich was already at war with all the countries to which it capitulated in May 1945. Thus, at the time the defendant took charge of government affairs, all the events mentioned under Article 6(a) had without exception taken place, and the Defendant Speer’s activity did not alter the existing situation in the slightest degree.
The defendant had done nothing at all to bring about this situation. His previous activity was that of an architect, who occupied himself exclusively with peacetime construction and did not contribute by his activity either to the preparation or the launching of a war violating international treaties. I refer to my document book, Page 19, Document 1435-PS.
If the circumstances which Article 6(a) of the Charter materially and legally characterizes as criminal acts were applied to international law, and if the individual criminality of persons who bring about these conditions were generally recognized in international law, the Defendant Speer in my opinion could still not be held responsible for these conditions; for not the slightest evidence has been produced during the Trial thus far that Speer contributed in the least toward bringing about these conditions. In this connection we must consider that criminality of attitude requires that the person in question must have contributed in some way to bring about the circumstances which have been declared punishable, that is, he must have functioned as a cause of the result which was declared punishable. If, however, as in the case under consideration, the Defendant Speer entered the Government without having contributed anything at all to the so-called Crimes against Peace, he cannot be charged with criminal responsibility for this, even if such responsibility were applicable to other members of the Government.
The Prosecution have asserted that by joining the Government the defendant had accepted, or rather approved of, the preceding Crimes against Peace. This is a concept taken from the field of civil law, and it cannot be applied to criminal law. Criminal law applies only to circumstances consisting of actions which serve to bring about the circumstances declared punishable. Nor is this altered by the introduction of the legal concept of conspiracy. In this connection reference may be made to Dr. Stahmer’s detailed statement on conspiracy. The legal views set forth in that statement are also made the subject of my own statement, I refer to it, and to Professor Jahrreiss’ statements, in order to avoid repetition. It can, therefore, be confirmed that the Defendant Speer cannot be charged with a so-called crime against peace.
The personal interrogation of the defendant and the cross-examination regarding his activity in the Party have shown that Speer, by virtue of his position as an architect, exercised purely architectural and artistic functions even in the Party set-up. Speer was the Commissioner for Building in the Hess staff; it was a purely technical assignment and had nothing at all to do with any form of preparation for war. The Party, which strove to seize and influence all the vital functions of the people, had created the position of Commissioner for Building, to insure uniformity in Party buildings. In their building projects, the Gauleiter and the other Party offices could confer with this office, but they availed themselves of the opportunity only to a very limited extent.
THE PRESIDENT: Dr. Flächsner, the Tribunal think it might be appropriate, at some time convenient to you, if you were to deal with the question of the meaning of the words “waging of warfare of aggression” in Article 6(a). I don’t want to interrupt you to do it at this moment in your speech, but at some time convenient to you the Tribunal would like you to give your interpretation of the words in Article 6(a) “waging of a war of aggression.”
DR. FLÄCHSNER: Yes, Mr. President. Perhaps I might return to this point later, Mr. President, when I have concluded this topic.
Naturally, it was for purely artistic reasons that the Party took over responsibility for building. It strove to give its buildings a uniformly representative character. Considering the peculiar nature of the architectural feeling, it was natural that each architect should follow his own line in solving the problems put to him. The activity of the defendant as Commissioner for Building was, therefore, relatively restricted and of minor importance, since he did not even have an office of his own at his disposal. It would be erroneous to try to deduce therefrom any participation by the defendant in any Crimes against the Peace. The same is true of the defendant’s other functions prior to and during the war up to his assumption of office as Minister.
Although the defendant was given the task of replanning the towns of Berlin and Nuremberg, this activity had nothing at all to do with Crimes against Peace. On the contrary, his activities must rather be regarded as hampering war preparations, as his task required large quantities of raw materials and equipment which might otherwise have been used directly or indirectly for rearmament. The construction projects assigned to Speer were, moreover, calculated and planned far ahead. They could only give Speer the impression that Hitler was counting on having a long period of peace. The defendant cannot, therefore, be said, prior to his assumption of office as Reich Minister, to have contributed directly or indirectly to the emergence of the events characterized by Article 6(a) of the Charter as Crimes against Peace. The fact, too, that the defendant was a member of the Reichstag after 1941, cannot be quoted in support by the Prosecution because, as the Prosecution themselves pointed out, the Reichstag sank into complete insignificance under the totalitarian regime and became merely an institution which accepted and acclaimed the Führer’s decisions. Responsibility for war guilt is out of the question here, too; for no activity on the part of the Reichstag in connection with extending the war to the Soviet Union and the United States can be recognized.
The French Prosecution, therefore, rightly refrained from charging the defendant with the violation of Article 6(a) of the Charter.
The Prosecution further charge the Defendant Speer with having participated in War Crimes committed during his term of office by forcibly transferring workers from the occupied countries to Germany, where they were employed for the purpose of warfare or of producing war materials. The following should be said in this connection.
The Prosecution charge the defendant with violations of Article 52 of the Hague Convention on Land Warfare, which states that services may only be demanded of nationals of the occupied country to cover the requirements of the occupying forces, that they must be in proportion to the resources of the country, and that they must not oblige the persons concerned to take part in military actions against their native land. In Article 2, the Hague Convention on Land Warfare lays down that all countries participating in the war in question must be signatories—general participation clause (Allbeteiligungsklausel). As the Soviet Union was not a signatory of the Convention on Land Warfare, the latter could apply to conditions created by the war against the Soviet Union only if the legal principles laid down in the convention were considered as universally valid in international law. We must start, therefore, from the principle that those areas belonging to signatories of the Hague Convention on Land Warfare must be judged on a different legal basis from areas belonging to nonsignatories of the treaty.
In examining the question, we must first decide whether the deportation of laborers from territories occupied in wartime by an enemy power can be justified on the basis of Article 52 of the Hague Convention. Article 52 constitutes a limitation of Article 46 of the Hague Convention on Land Warfare, which lays down the principle that the population of occupied territories and their property are in general to be subjected to as little damage as the necessities of war will allow. Starting from this principle we must examine whether it involves the absolute prohibition of deportation for the purpose of securing labor for the essential war economy of a belligerent country. It must be remembered in this connection that the situation is altered if the deportation carried out by the occupying belligerent state is in accordance with agreements made with the government of the country occupied. The Prosecution have defended the view that such agreements are legally invalid because they were made under the pressure of the occupation and because the Government existing in France during the time of the occupation could not be considered as representing the French nation.
The first point does not support the Prosecution’s contention. The contents of treaties concluded under international law will always be influenced by the respective power of the contracting parties. In every peace treaty concluded between a victor and a vanquished state, this difference of power will be reflected in the contents. This is not, however, contrary to the nature of treaty-making.
The second point, by virtue of which the Prosecution reject the plea of an agreement between the German Government and the French Government, then in power, relating to the assignment of labor, is equally ineffectual. The so-called Vichy Government, then in power, was the only government existing in French territory; it was the lawful successor of the government in office before the occupation—and from the point of view of international law—by the fact that states which were at that time not yet involved in the war maintained diplomatic relations with it.
It cannot, moreover, be assumed that the willingness shown by the French Government in this agreement to co-operate with the German Reich, which was then gaining military victories, ran counter to the real opinion of the French people. Reference can be made in this connection to Document R-124, Page 34 of my document book. Particular attention must be paid to the economic situation of occupied France at the time. After France’s withdrawal from hostilities, the total blockade was extended to cover the whole of French territory in Europe, with the result that raw materials not produced in France were no longer obtainable, and production came to a standstill. Important sections of French production were, in this way, put out of action, and many workers deprived of the means of earning a living. In addition, the French Government did not pledge themselves unconditionally to send labor to Germany, but made this dependent on concessions such as the liberation of prisoners of war, et cetera.
Whether, and in what measure, the hopes placed in the treaty by the French Government were actually fulfilled, is irrelevant in determining whether the treaties in question were authentic treaties or not. From the legal point of view, there is no doubt that these agreements have the character of treaties. From this point of view, there is no justification for the accusation made by the Prosecution that workers were taken from occupied French territory against their will and, therefore, illegally.
No judgment of the legality of the measures relating to the workers from Belgium and Holland can be based on agreements such as those concluded between the German and French Government offices, since in those countries the Government had left the country, and consequently no political authority existed. The general secretaries remaining there could not be considered as representatives of the Government, and the decrees regulating the dispatch of workers to Germany were enacted by order of the Reich commissioners or the military commander. Dr. Steinbauer in his exposition on the Defendant Seyss-Inquart’s activities in Holland has already explained in detail that particular rules must apply to those countries and to the dispatch of laborers from them. In order to avoid repetition, I refer you to these remarks.
With regard to the Eastern countries, we must start with the fact that the Soviet Union did not sign the Hague Convention on Land Warfare. It remains, however, to be seen whether the principle laid down in Article 46 of the Hague Convention on Land Warfare, with reference to the treatment of civilians in war, and the case of occupation of a belligerent country by the enemy, must not be considered as a universally valid international law and therefore applicable even if the belligerent country concerned is not specifically a party to the Hague Convention on Land Warfare. An examination of this question would show the deportation of workers from occupied territories to be illegal unless some special factor emerges to cancel its illegality. A state of emergency in the sense of international law can be considered as one such factor. It is true that it is a matter of international law whether and in what measure such an emergency can legalize a practice which is in itself illegal; but such a state of emergency must be admitted in cases when the state is fighting for its bare existence.
It may be considered that after the Allies had declared the unconditional capitulation of Germany to be their goal such a state of emergency existed for the German State, since there remained no doubt that the enemy intended to destroy the existing German State to its very foundations. This state of emergency may, however, be considered as existing at an earlier period, when it became clear that the war had ceased to be a settlement of differences between two states, in the sense of the Hague Convention on Land Warfare, and had become a war aimed not only against the fighting forces of the belligerent nations but also, and primarily, at their economic forces, and thus at their so-called war potential.
The Hague Convention on Land Warfare is based upon a conception of war which was already out of date in the first World War and much more so in the second. If in the first World War the belligerents sought to attack each other’s economy by blockade and counterblockade, this is all the more true of the second World War, in which, in addition to the more indirect effects of the blockade, they introduced the element of direct attack on the enemy by destroying his productive installations by means of aerial war. In contrast to the conception of war on which the Hague Convention on Land Warfare is based, a complete change has come about. In view of the fact that a country can only resist an adversary who is well-equipped from the technical point of view if it has at its disposal an unimpaired capacity for production, the main objective in this war was the destruction of the enemy’s capacity for production. This was the aim of the British blockade not only of Germany but of every country in the German sphere of influence. Dr. Kranzbühler has already discussed the questions connected with this subject. I herewith refer to the relevant parts of his statement.
From this point of view, too, the war in the air was waged primarily not only to attack German national territory but also to destroy production capacity and possibilities in the occupied territories. Through continual air raids, the aerial war was directed against economic targets in France, Belgium, Holland, Czechoslovakia, Poland, and Austria, and had as its further aim the interruption and disruption of the whole system of communications—not only on the front and immediately behind it but also hundreds of kilometers away from it—in order to paralyze vital functions of the adversary. The Allied air offensive against Japan is a particularly clear indication of this. This war went beyond the bounds of the Hague Convention on Land Warfare. It ceased to make any further distinction between the adversary’s territory proper and the occupied territories, which were likewise included in the enemy blockade. In this war which sought not only to destroy the adversary as a nation but also to ruin its economic system and its power of production, we may speak of a real national emergency.
When the Defendant Speer was appointed Minister, the economic war just described was in full swing on both sides. In fact, the task assigned to Speer’s department was that of solving the production problems caused by it. Speer, therefore, found himself in the thick of this war of economies; and we now have to decide whether, and to what extent, the measures taken on the German side were capable of alleviating the state of emergency.
THE PRESIDENT: Dr. Flächsner, I would like to ask you this question. Is there any communication between states, either at the League of Nations or elsewhere, since the war of 1914-18, which suggests that the Hague Rules on Land Warfare were no longer applicable? Perhaps you would consider that question and answer it at your convenience?
DR. FLÄCHSNER: Mr. President, I can answer this question immediately in the negative. In the period between the two wars, these problems were dealt with only very superficially and, as far as I am acquainted with the facts, the questions considered lay in the sphere of naval warfare and also land warfare in connection with the treatment of prisoners of war. The Hague Convention on Land Warfare itself contained no additions or amendments whatsoever, apart from separate agreements concerning particular methods of conducting warfare. I might add that in the meantime various methods of warfare have been banned by treaties. But, as far as principles are concerned—and that is the basis of my argument—the principles laid down in the Hague Convention have undergone no changes through treaties in the meantime.
THE PRESIDENT: Yes. Then I understand you to say there has been no communication between states, since the 1914-18 war, which suggests that the Hague Rules on Land Warfare are no longer applicable?
DR. FLÄCHSNER: Yes, that is correct.
We must decide whether, and to what extent, the measures taken on the German side were effective in remedying the state of emergency. In the course of the Trial, the Prosecution have claimed, on several occasions, that the imported labor was to be used to release workers for service at the front. This is certainly one reason why the recourse to foreign workers was used, but it is by no means the decisive reason—not even the most important reason. It is a fact that the total blockade of the German Reich carried out by the adversary compelled the Reich to an increasing extent to build plants for the production of substitute raw materials in order to carry on the war in the technical form which it had now assumed. It is also a fact that the disturbances caused in economic life by aerial warfare made it essential to employ an increased number of workers. As an example, let me say how much additional labor was necessary for the repair of air raid damage. This situation involved a state of emergency insofar as the waging of a war of self-preservation would no longer have been possible without the erection of such additional production plants.
Should it be contended that it is impossible to speak of an emergency overriding the illegality of the proceedings in terms of international law, since the war was begun as a war of aggression and was, therefore, illegal from the outset, it may at least be said in favor of the Defendant Speer, that he believed in the existence of such a state of emergency and had reason to do so.
The examination of evidence has revealed that the underlying causes which led to the war, so far as they have been exposed here by the Prosecution, were not known to most of the defendants, and least of all to the Defendant Speer. Insofar as the deportation of foreign workers to the Reich constitutes an objectively illegal measure according to international law, it remains to be examined what share of it can be charged to the Defendant Speer. At his interrogation prior to the beginning of the Trial, on 18 October 1945, the Defendant Speer admitted knowing that, at least as far back as September 1942, foreign workers had ceased to come voluntarily to the Reich. He said he had countenanced that because there was no possibility of meeting the labor requirements otherwise. It must be concluded from this declaration that the defendant was convinced of the necessity for this emergency measure. Subjectively, therefore, he must be credited with believing in the existence of such a state of emergency overriding illegality.
But in the first place, we must examine to what extent the Defendant Speer actually contributed to the dispatch of deportees to Germany. Here we must start from the principle that the Defendant Speer had a purely technical assignment which he described adequately in his evidence, to which reference can be made. In order to carry out this assignment, he stated his labor requirements. The way in which these requirements were met has been described in detail by the witnesses Schieber and Schmelter. Requirements were submitted in terms of totals needed, and it was incumbent upon the Defendant Sauckel to satisfy them. These requirements referred to the total number of workers as a whole, and it was the Defendant Sauckel’s task to meet these requirements as far as possible and in accordance with his judgment. He had power to exhaust the entire resources of the home labor potential as well as to recruit foreign labor. The witnesses Schieber, Kehrl, and Schmelter stated, in the course of their interrogations, that the Defendant Speer tried to procure German labor, in the first place, for assignments given to him by the Government.
The testimony of the witness Saur affords evidence that the satisfaction of the labor requirements necessary to enable Speer to accomplish his assignment of increasing armament production was of considerable, though not decisive, importance—Document Book 2, Page 146. According to this testimony, the number of workers in the direct armament industry rose from 4,000,000 to 4,900,000—for the whole of the armament industry—during the defendant’s activity as Armament Minister, while the manufacture of basic products for armament increased five and a half to seven times in many departments. It must, therefore, be borne in mind that the increase in armament production which the Defendant Speer was required to produce was achieved, in the first place, not so much through an increase in the number of workers employed as by means of technical and organizational measures. It follows from this again that, for the defendant, the procurement of labor was admitted to be an important, though not decisive, element in the fulfillment of the task assigned to him.
The defendant made the credible statement that he had applied to Sauckel for workers, but had stressed the fact that he wanted German workers first of all. In the defendant’s opinion, an increased number of workers could have been found in the economic sector under his control without having recourse to foreign labor to the extent that it was done. The measures taken by the defendant to prevent the transfer of workers from the West into the Reich have been adequately described by the evidence. In taking those measures—that is, in transferring the production of consumer goods and the manufacture of high priority armament parts, such as, for instance, forged parts, railway equipment, et cetera, to the western countries and in installing protected industries there—Speer was actuated by the belief that the conscription of workers from France, as well as from Belgium and Holland, would be halted. The result of his talks with the French Minister Bichelonne, as the defendant explained during his interrogation, was for all practical purposes to end the deportation of workers to Germany. The results have been accurately described by the Plenipotentiary General for the Allocation of Labor at the session of the Central Planning Board held on 1 March 1944—see Page 32 of my document book.
In spite of all the opposition made to this policy—compare Sauckel’s letter to Hitler, dated 17 March 1944, Document 3819-PS—Speer persevered in his purpose. The decision adopted at Hitler’s conference on 4 January 1944—a report of which was submitted by the Prosecution under Document 556-PS—also reveals that the protected industries, the abolition of which was urged by Sauckel, were to remain out of bounds to Sauckel’s labor conscription. Speer wanted to employ the French workers in France, in an effort to transfer the production of consumer goods and products which did not represent armament production to the occupied western territories. He wished to utilize for armament production the German workers released as a result of the closing down of German plants—see Document R-124, Pages 33-34 of the Speer document book. In this manner Speer was able to increase production because German workers could more easily be retrained, as there were no language difficulties and no difficulties regarding food—compare Kehrl, Page 110, the Speer document book. The result of this policy was that workers from the western areas were mainly used in the production of civilian goods, but not in armament production.
On the question of employment of foreign labor in the protected industries, it must also be said the statute is based on two factual circumstances: Deportation for forced labor and forced labor itself.
Forced labor in France was ordered by a decree from the French Government. According to international law there could be no objection to this, unless the view were taken that the French Government was not entitled to take such measures and to issue such decrees. As the Defendant Speer stated, the French economic leadership obtained its independence through the agreement with Bichelonne, naturally with the restrictions imposed by the agreement.
As established by Berck—see Document Book 1, Page 38, Document 1289-PS—co-worker of the Defendant Sauckel, 20 percent went from the protected industries of France to French economy, whereas more than 40 percent went from the consumer goods industry into French hands. It follows that the French armament industry did not manufacture weapons and actual implements of war, for the German authorities would scarcely have left these to the French agencies.
In the session of 20 June 1946 the Tribunal summarized its misgivings as to the manner in which we presented our evidence by stating that questions of suitability were irrelevant. On the other hand the Defense may be said to represent the viewpoint that this speech was only intended to clarify the question of legality. If the French Government were justified in decreeing compulsory labor service, and if plants employing French workers on the basis of this decree or on the basis of voluntary labor contracts were provided with German orders, no legal objection could be raised. The establishment of protected industries, which prevented the withdrawal of workers and their transfer to Germany, and the removal of single branches of production to France, Belgium, and Holland permitted the objective—that is, satisfaction of the requirements of the German economy—to be attained in a manner which was legally unobjectionable. Even though the Defendant Speer did not completely check the transfer of workers, he nevertheless did succeed in decreasing their commitment appreciably. Instead of the policy pursued by other Reich offices of removing foreign workers to the Reich, the defendant aimed at employing the labor needed for his purpose in the workers’ homeland—Exhibit Speer-9, Page 24, and Exhibit Speer-11, Page 27 of the Speer document book. To this extent he counteracted the tendency to deport workers from their native country.
In order to prove the assertion that Speer played a decisive part in intensifying deportation for forced labor, the Prosecution refer to Document 556-PS, which is a file memo by Sauckel of a telephone conversation he had with Speer on 5 January 1941. In contrast to this Speer Exhibit-35 has been submitted, the copy of the minutes of the Führer conference of 3 and 5 January 1941, which was the object of the telephone conversation. Even if sharp remarks by Hitler are reproduced here also, the exhibit, nevertheless, does not reveal the tendency which was noted by Sauckel in his file memo. The Defendant Speer was already at that time on bad terms with Sauckel. The order issued to Speer in the minutes of the Führer conference, with reference to the control of the French armament industry, gave him a pretext for the establishment of protected industries. For all practical purposes the termination of labor commitments from France was thereby achieved—just the opposite, therefore, of what the Prosecution would like to prove. Reference must be made in this connection to Document F-515, Exhibit RF-22. There it is asserted that, owing to the Speer-Bichelonne agreement, labor commitments to Germany from October 1943 onward were one-tenth less—compare Page 41 of my document book.
In weighing the question as to what extent this exonerates the defendant, it is of no importance whether he acted in such a way for reasons of expediency, or with the conviction that the other procedure was illegal. The only thing that matters in this case is the result, which actually put a practical stop to the transfer of laborers to Germany, as is evident from the document quoted, RF-22. It is certainly clear from the Führer’s minutes of 19 to 22 June 1944—Exhibit Speer-12, Page 19 of the Speer document book—and from the testimony of Seyss-Inquart, 11 June 1946, that in spite of the loss of industry in the western territories and the intention of other departments to bring the unemployed workers to Germany, Speer succeeded in maintaining his protected industries, and thus the plan to commit more foreign workers to Germany finally collapsed.
In the case of the Defendant Speer, we cannot say that it was his duty to examine how far Sauckel’s measures were admissible from the point of view of international law, and this for the following reasons. When he took over his post in the year 1942, the transfer of foreign labor to Reich territory had already been practiced for some time. Speer relied on the assumption that the legal foundations for these measures had been examined before their introduction. It was not his duty, in the eyes of the law, to examine them individually; he could be sure that the offices which handled the allocation of labor commitment had examined the legal basis of their activity. During his years of office, he was repeatedly assured by the Plenipotentiary General for the Allocation of Labor that the transfer of labor to the Reich was carried out strictly within legal limits. He could depend on it that the authorities who were entrusted by the State with the tasks of labor procurement would examine, from the point of view of their legal admissibility, the measures they took in order to carry out these tasks.
The activity of the defendant within the framework of the Government could, if transferred to the sector of civil law, be compared with that of the technical plant manager of a factory, and in this case Sauckel’s position would correspond to that of a director of the personnel office. In such a case the technical plant manager’s duty is not to examine whether, and to what extent, the employment contracts concluded with the individual workers conform to legal regulations.
He has only to see that the manpower he is given to carry out his tasks is employed in the right place and in the right manner. This cannot be met with the argument that the Defendant Sauckel merely considered himself as the deputy of the Defendant Speer. This would not present a fair picture of the way in which the different tasks had been distributed between the two codefendants by the state leaders. The fact cannot be overlooked that of all the sectors of the economy which sent in their requests to the Defendant Sauckel, those presented by the Defendant Speer were the most important for the conduct of the war and, therefore, had priority over the others. This does not mean, however, that it was Sauckel’s duty to satisfy all the demands of the department represented by Speer before all the others. He did not do so, as can be seen from the evidence—in particular from the testimonies of the witnesses Schieber, Document Book 2, Page 114, and Kehrl, Document Book 1, Page 106—and moreover he could not do so since the demands of the other branches of economy, which were all known as “Bedarfsträger,” were very often equally urgent, and the labor potential at hand was not sufficient to fulfill all the demands to the same extent. Had Sauckel not been more than a deputy of Speer, a mere tool who had only to carry out the instructions of Speer, the profound differences between the two could never have come into existence.
It has been emphasized by the Prosecution that the appointment of the Defendant Sauckel as Plenipotentiary General for the Allocation of Labor was only made possible through the intervention of the Defendant Speer, and that this gave reason to believe that Sauckel had been more or less a tool of the Defendant Speer, or depended on him to a large extent. This assumption does not correspond with the actual facts. When he took over his office as Armament Minister, the Defendant Speer soon discovered that the supply of labor to plants, which had been carried out until then by the Ministry of Labor, could not equal the demands made on it. Within the field of work of the Ministry of Labor, this activity represented only a small fraction of its over-all functions.
The Defendant Speer declared in the course of his interrogation that the Ministry of Labor was constantly coping with the temperaments of the different Gauleiter in their districts, because it was the ambition of every Gauleiter to do everything within his power to prevent the transfer of workers from his Gau to another. The Ministry of Labor, which was organized on purely bureaucratic lines, did not seem to the Defendant Speer to be equal to its task, and the suggestion was made to the state leadership that a Gauleiter be entrusted with this task. When Speer’s suggestion was followed up by the request that a Gauleiter, charged with the procurement of labor, be put under him, it was not granted by the state leadership because of other existing competencies. The person proposed by Speer was also turned down, and the Defendant Sauckel was appointed instead. So that in Speer’s endeavors to create a Plenipotentiary General for the Allocation of Labor, the reasons involved were merely of an organizational nature with the purpose of overcoming the afore-mentioned opposition, which was directed against the activity of the labor procurement office in the Ministry of Labor. But to draw from these facts the conclusion that the Defendant Speer was responsible for all the measures ordered by the Defendant Sauckel would be erroneous.
The fact that the defendant, as a member of the Central Planning Board, participated in sessions at which the problem of the procurement of labor was discussed, cannot be used to support the claim of the Prosecution. The Prosecution attempt to prove from the sessions of the Central Planning Board that the Defendant Speer played a leading part in the procurement of labor from foreign countries. In reply to this the following must be stated. The Prosecution have only submitted the text of the minutes of a session, but not the decisions which were made on the basis of this session. And yet, it is exactly these which are decisive. Since all the Defendant Speer’s records, including also the notes on the decisions of the Central Planning Board, were placed by him at the disposal of the Allied authorities, it would have been easy for the Prosecution to present such decisions which would have shown the exact participation of the defendant in the procurement of labor. But such conclusions do not exist and, therefore, the fact that at the conferences of the Central Planning Board questions of labor mobilizations were mentioned should not lead to the conclusion that the Central Planning Board had taken this point over in its sphere of activity.
The decree regarding the establishment of the Central Planning Board is given under Number 42 in Exhibit Speer-7. The scope of the Central Planning Board in labor questions is clearly outlined, and it is stated that the procurement and distribution of labor need not be included in the sphere of competence of the Central Planning Board, as the new office of the Plenipotentiary General for the Allocation of Labor has been specially created for it. It is clear also from the testimony that when the Codefendant Sauckel discussed questions concerning the policy of labor commitment before the Central Planning Board, he underlined sharply his independence of the Central Planning Board, and stressed the fact that when he made his decisions he was responsible only to the Führer in the last instance and was independent of the Central Planning Board. For this I refer to the testimonies of the witness Kehrl and the witness Schieber, Exhibits Speer-36 and 37. This does not mean that no attempts were made in the Central Planning Board to exert an influence in the sphere of the Plenipotentiary General for the Allocation of Labor. These attempts, however, did not have any results. In principle we must take the stand that the responsibility of the Defendant Speer for the transportation of labor from the occupied territories to the Reich cannot be deduced from his activity within the Central Planning Board.
If the Prosecution charge the defendant with the fact that he knew that a great portion of the workers made available to him by Sauckel had been brought to Germany against their will, and that he used these workers in the industry which was under his control, this conclusion encounters legal criticism. If, and insofar as, the removal of labor to the Reich was a violation of international law, this crime would be limited, at the most to the removal of labor to the Reich. The fact that the persons removed into Reich territory were assigned to work is, legally speaking, a new fact to which the Prosecution apply the concept of slave labor.
In this connection the following should be considered. By reason of the Reich Service Law, and the decree which enforced it, there existed for every German an obligation to contribute his services to the war effort. Through the labor office as the highest instance, the leaders of the State could dispose of the work of every citizen for any purpose they considered appropriate, and they did so.
Foreign workers who were removed to Germany likewise became subject to this regulation. We, on our part, do not deny that the Hague Convention on Land Warfare itself contains no provision which would support the extension of compulsory labor service from German nationals to the inhabitants of the occupied territories. Since the Hague Convention on Land Warfare reflects the influence of a different concept of warfare, it is impossible that it should have taken into consideration conditions produced by economic warfare. Yet, it is not possible to answer in the affirmative the question of whether the Hague Convention on Land Warfare finally and definitely regulates all the powers of an occupation authority. Such an answer is contradicted by the practice of all the nations which participated in this war. But here, too, we can resort to the afore-mentioned aspect of national emergency to obtain a correct evaluation and appreciation of the case. It should be admitted that the Prosecution are right in that this extension of liability to compulsory labor can be justified from that point of view only.
If we accept the Prosecution’s contention that there is no legal justification for the extension of liability to compulsory labor to foreign nationals of occupied territories, we are still obliged to check the extent to which the Defendant Speer has rendered himself guilty in the employment of labor subject to such compulsion. In this connection we may refer to what was said earlier about deportation. That the Defendant Speer, although he was not responsible for this, still attempted to mitigate the living conditions of these workers, and that he also took steps to correct bad conditions—insofar as these came to his attention—is shown by Exhibits 3, 4, and 5 of the Speer document book and Pages 7, 8, 9 of the Speer document book. Reference must also be made to the testimony of the defendant himself, in direct examination, as well as in cross-examination, where he described his activity in that field.
Justice Jackson, the American chief prosecutor, when placing before the Defendant Speer, during his cross-examination, a series of documents to demonstrate the bad treatment of foreign workers by the firm of Krupp in Essen, himself stated that he did not intend to hold the Defendant Speer responsible for such individual incidents. (Session of 21 June 1946 p. m.) The documents involved were Dr. Jäger’s affidavit—Document D-288—discussed by Dr. Servatius, and a letter of the locomotive manufacturing department of the firm of Krupp, dated February 1942, shortly after the Defendant Speer’s appointment as Reich Minister. The conditions described therein had caused Speer to intervene with Hitler in March 1942—Exhibit Speer-3, Page 7 of the Speer document book. A further document submitted, Document D-321, describes the conditions under which Russian laborers came to Essen in 1941—that is, before the Defendant Speer took office. Document D-258, Exhibit USA-896, which was submitted during cross-examination, was not produced in order to incriminate the defendant, as stated by Justice Jackson—it may therefore be passed over. Further documents submitted all deal with incidents in the Krupp works. As far as he was able to do so, the defendant explained all of them.
These documents show that abuses of a general nature, for which the firm of Krupp might be held responsible, were caused by air bombardments and the resulting demolition of living quarters. But even if the incidents cited had actually occurred on the premises of that firm—which the Defense is not in a position to verify—these incidents would not supply adequate ground for the assumption that the conditions under which foreign laborers worked in armament industries were the same everywhere. No conclusions may be drawn as to a whole system simply by selecting and investigating one firm. Only evidence showing the general prevalence of such conditions would be relevant.
It is true that the activity of the Defendant Speer would not affect the criminal evaluation of his actions in principle, but it would be of decisive import in establishing the degree in which he participated. When the defendant took office, the practice of employing foreign labor and prisoners of war was already in existence. Thus he cannot be considered as the originator, which fact must also be taken into consideration when passing judgment; for it appeared impossible to depart from the established practice. The employment of foreign labor in German economy was nothing unusual. Many foreign laborers were employed in agriculture, mining, and surface and underground construction in peacetime as well. During the war many foreign laborers from both East and West had already been brought to Germany before the Defendant Speer took office, and only part of these belonged to the sector under Speer’s control.
In order to define the spheres of responsibility of the two defendants, Sauckel and Speer, it will be shown below how the assignment and distribution of workers was handled in the establishments last controlled by the Defendant Speer. Acting as organs of the Speer Ministry, commissions and pools assigned certain production tasks to individual establishments as part of the armament program. The factory then calculated the number of workers needed. This was reported simultaneously to the Armament Command and to the Labor Office, where the labor requirements of all employers in need of workers were recorded. The Armament Command examined all requests received from plants under its jurisdiction and passed them on to the Armament Production Office. Labor requirements reported to the Labor Office were forwarded by them in turn to the Gau labor offices. Armament Inspection Offices collected the requests and forwarded them to the Speer Ministry, labor allocation division. The Gau labor offices directed applications which they received to the Plenipotentiary General for the Allocation of Labor.
It must be noted in this connection that in 1942 the Speer Ministry controlled only construction work and ground forces armament. Navy and air armament made their requests for labor independently. In the spring of 1943 Navy armament was assigned to the Speer Ministry, and, from that time on, labor requisitions for this purpose were handled through the labor allocation division. In the fall of 1943 the rest of production was added, while aircraft armament continued to handle its requisitions independently through the Plenipotentiary General for the Allocation of Labor until August 1944.
An account of these details is indispensable to disprove the Prosecution’s assumption that Speer was the main beneficiary of Sauckel’s mobilization of labor. The fact that along with the Speer Ministry there existed essential labor employing agencies of equal importance as, for instance, the Armed Forces Administration, the Transport System, and so forth, need be mentioned only incidentally, but has also been confirmed by the testimony of witnesses. The Plenipotentiary General for the Allocation of Labor distributed the labor at his disposal among the various labor employing agencies and assigned the required labor to the Gau labor office which in turn referred them to the local labor offices where workers were assigned to individual establishments on the strength of applications previously examined by the Armament Office. An exception to this cumbersome procedure was made by the introduction of the so-called “red-slip process” which was used in the case of exceptionally urgent production assignments—I refer to Page 122 of the document book. A certain number of red slips were issued monthly by the Plenipotentiary General for the Allocation of Labor and placed at the disposal of the Armaments Ministry for distribution by the latter to the plants under its supervision through the industry’s administrative agencies. The plant itself then presented these red slips to the Labor Office, which had to satisfy these red-slip requests for workers regardless of the requirements of other consuming agencies. Not until this had been done could allocations be made to other establishments. General requests for labor were involved in all instances. The allocation was exclusively in the hands of labor authorities directed by the Defendant Sauckel, so that neither the individual factory nor the offices of the Defendant Speer, nor the Defendant Speer himself, had any influence on the distribution. The question of whether local, foreign, or prisoner-of-war labor should be used to satisfy requisitions was left for the labor authorities to decide—document book, Pages 8 and 9.
In concluding the presentation of evidence, the Prosecution submitted the decree of 1 December 1942, Document 4006-PS, issued jointly by Speer and Sauckel. The Prosecution contend that this document, and the decree of 22 June 1944 submitted at the same time, furnish a basis for appraisal of the power ration between Speer and Sauckel. Some comment on this is, therefore, appropriate.
The decree of 1 December 1942 leaves no doubt that the Plenipotentiary General for the Allocation of Labor was authorized to examine requests for labor submitted to him which came from the armaments industry. Thus, when a factory asked for additional laborers in order to carry out the production job assigned to it, the Plenipotentiary General for the Allocation of Labor reserved for himself the right to examine the requests submitted with a view to determine whether they were necessary. The intention was to make each factory practice the greatest possible economy in the use of labor within its own precincts.
Another purpose of these commissions was to determine the extent to which an establishment might be able to release its own labor for work in other plants, without prejudice to the task assigned to it. It was the task of the Ministry for Armament and War Production, and of the agencies subordinate to it, to determine the sequence of priority of requests for labor received by establishments under its jurisdiction. They also had to determine which of the plants was in a position to release workers for other plants manufacturing similar products for similar Armed Forces requirements. To give an example: The supply program of a plant manufacturing component parts for vehicles was modified, then it was left to the Armament Command to decide that the labor power thus set free should be assigned to another factory in the same line of production.
In general, the allotment of labor remained in the hands of the Plenipotentiary General for the Allocation of Labor. The agencies of Speer’s Ministry were merely concerned with directing the labor already available in this economic branch which had been procured and assigned to these establishments by the Plenipotentiary General for the Allocation of Labor. The procurement of labor from other plants remained in the hands of the Plenipotentiary General for the Allocation of Labor, and the Plenipotentiary General for the Allocation of Labor participated authoritatively in the examination of the question as to what extent plants could release labor in order to make it available to others—the so-called combing-out action.
The authority of the Plenipotentiary General for the Allocation of Labor was, therefore, not limited to any considerable extent through this mutual agreement between him and the Reich Minister for Armament and War Production. His task, now as before, was merely to procure labor for the plants. He was even given a considerable amount of authority in labor questions—to look over the armament plants under the control of the Defendant Speer and to examine if, and to what extent, these plants could make available labor for other plants.
The decree of 22 June 1944 ordained that labor which was already available was to be used in accordance with the directives of the central authorities or according to the orders of the Chairman of the Armament Commission. It must also be noted in this respect that it was not a matter of using new labor, which was unskilled in armament work, and which was still procured through the Plenipotentiary General for the Allocation of Labor, but solely of so-called transfer actions from one armament plant to another. Therefore, the Sauckel agencies, in accordance with this decree, could no longer check the demands for labor made by the plants which were controlled by the Speer Ministry, if the Chairman of the Armament Commission had recognized these demands. This decree brought about a change in the basic distribution of authority, according to which the Plenipotentiary General for the Allocation of Labor had to procure the required labor and to handle the whole allocation of labor. If the agencies of the Plenipotentiary General for the Allocation of Labor allocated labor in response to demands which had been checked, then it was left to their judgment as to what type of labor, whether native or foreign, et cetera, was to be furnished. The authority of the agencies of the Minister for Armament and War Production in questions of the commitment of labor was limited to a large extent to the execution of so-called transfer actions, that is, the assignment of labor from one armament plant to another.
It would be wrong to try to conclude from these decrees that there was a considerable limitation of the authority of the Plenipotentiary General for the Allocation of Labor and a fundamental expansion of authority on the side of Speer. It would be just as wrong to conclude from this that the influence of the Ministry for Armament and War Production had been increased over other authorities of the Plenipotentiary General for the Allocation of Labor.
In order apparently to characterize the relationship between Speer and Sauckel, the Prosecution have finally submitted a file note by General Thomas, the Director of the War Economy and Armament Division in the OKW, regarding a discussion which took place on 24 March 1942 between the Defendant Speer on the one hand, himself, and the directors of the armament offices of the three branches of the Armed Forces on the other hand, in which Thomas states that the Führer considered Speer as his main authority and his agent for all economic spheres. This note can only be understood in connection with the report of the account given by General Thomas of his activity as Director of the War Economy and Armament Office, and which has been presented to the Tribunal in excerpt form under Document 2353-PS.
Prior to Speer’s appointment as Minister for Armament and War Production, Thomas had to try to bring about an expansion of the position of Plenipotentiary for Economy as it had been provided in the Reich Defense Law, so that it should become an office which would control the whole war economy. When now the armament economy was confronted with heavy demands in connection with the first winter campaign in Russia, and the losses which had been sustained there, and Hitler, after the death of Dr. Todt, appointed Speer to be his successor in the Ministry for Armaments and Munitions, Thomas thought he would find in Speer a personality who would receive the authority which he had striven to obtain for the Plenipotentiary for Economy.
This, however, did not occur. As has been shown from the evidence, Speer was entrusted only with the equipment of the Army and construction tasks. The control of the new office of the Plenipotentiary General for the Allocation of Labor by his Ministry, for which the Defendant Speer was striving, was not sanctioned by Hitler. Speer’s rights as Minister for Armament and War Production are stated in the decree. The expectations which General Thomas held on the whole with regard to the appointment of Speer, were therefore not fulfilled in any way. Speer only received increased authority when in the year 1943 he took over industrial production from the Ministry of Economy. But even then he was still far from having the same field of tasks as General Thomas had expected for him. Relying on his expectations, General Thomas thought that he had found in the person of Speer the man appointed by Hitler who would settle matters on all economic questions. In the file note of General Thomas, which confines itself merely to generalities, it is a matter of an expression of opinion which was not justified by the actual state of affairs. It offers no grounds on which to answer the question as to how we must distribute responsibility for the policy of the labor commitment to which the Prosecution object.
In summarizing, it must be stated to this count of the Indictment: Speer is not responsible for the means employed for the procurement of foreign labor, nor for its removal to Germany. He is at the most responsible for the utilization of part of this labor in Germany.
As a further count of the Indictment, it has been stated that the defendant employed prisoners of war in the economic sector which was under his direction, and that he thereby violated Article 32 of the Geneva Convention of July 1929, regarding the treatment of prisoners of war. The defendant never denied that he employed prisoners of war in plants under his control. This, however, cannot be regarded simply as a violation of Articles 31 and 32 of the previously mentioned agreement.
The expression “armament economy” and/or “armament plant” has not the same meaning as “plant” or “economy,” the task of which is the manufacture of arms and direct war requirements.
The term “armament plant” can only be understood from its development. When, at the beginning of rearmament, there began to be a limitation of raw materials, plants which were working for rearmament were given preference in obtaining raw materials. These plants were controlled by the armament inspections, which were set up by the Armed Forces and called “armament plants.” In addition to all other plants, those were included in it which served the manufacture of iron, steel, and metals, as well as those plants which manufactured machine boilers, vehicles, and appliances; also the entire manufacture of raw steel in the first stages of preparation—foundries, rolling works, forges—as well as the whole remaining subsidiary supply industry, for example, electro-technical plants, plants which produced optical instruments, plants which manufactured ball bearings, cogwheels, et cetera. This is shown by the testimony of the witness Schieber—Question 9, document book, Page 114.
Only 30-35 percent, roughly, of the whole iron production was used for the production of armaments to the extent previously described, and 60 percent for the maintenance of production for other consumers—Reich railroads, the construction of merchant vessels, agricultural machines, export goods, appliances for the chemical industry, et cetera. We refer to the testimony of the witness Kehrl, which has been submitted under Exhibit Speer-36, and particularly to his answer to Question 5.
Since the iron quota assigned to the armament industry also includes the production of raw steel and the different stages of manufacture, it can be safely presumed that of all the plants which were combined in the armament inspections, only approximately 20-30 percent manufactured armament products in the sense implied in the Geneva Convention. These details had to be examined in order to gain an idea as to what extent Article 31 of the Geneva Convention could be violated by the employment of prisoners of war.
The Prosecution have presented an affidavit of the American economic statistician Deuss under Document 2520-PS, in order to prove thereby how many prisoners of war and foreign workers were employed in the armament industry. This compilation, which is principally supported by figures taken from the documents in the possession of the Defendant Speer, does not, however, state in which branches of the armament industry the individual prisoners of war worked. A large enterprise which falls under one of the above-listed categories and as a result thereof was considered an armament plant in its entirety, needs only to manufacture a fraction or perhaps no weapons or equipment at all which stand in direct relationship to war activities. If prisoners of war are employed in it, then their occupation does not represent a violation of Article 31 of the Geneva Prisoners of War Convention. Such a plant, however, appears in its entirety in Deuss’ affidavit. The affidavit thereby loses its value as evidence as to what extent Article 31 of the Geneva Convention was violated. Thus we have no proof of whether, and to what extent, Article 31 was violated by the employment of prisoners of war in the armament industry.
The French Prosecution have taken the point of view that the employment of French civilian workers who had been released from confinement as prisoners of war, and who were employed in the armament industry, was also to be considered a violation of Article 31. This is not applicable. From the time of their release the former prisoners of war were free people who were unlimited in their freedom of movement, and who were restricted only by the obligations embodied in their labor contracts. In addition to this, no French prisoner of war could be forced to agree to his release under the obligation of putting himself as a worker at the disposal of German industry. It was his own free decision if he preferred to accept his release as a prisoner of war under these conditions. If he did so, from this moment onward he was no longer a soldier, and was no longer subject to military discipline; he received his working wages like every free worker, and was not subjected to any camp discipline or any other restrictions of the same nature. To those prisoners of war who preferred to agree to their release under these circumstances, the advantages apparently appeared far greater than the protection which they enjoyed as prisoners of war. If they did so, then their occupation, even in work which in itself is prohibited for prisoners of war in accordance with Article 31, cannot be considered a violation of this article.
The employment of prisoners of war in the industry of the country which is holding them prisoner is not prohibited by the Geneva Prisoners of War Convention. Only that work is prohibited which is directly connected with military operations—for example, the use of prisoners of war for fortification works for a combat unit. The Defendant Speer cannot be accused of anything of that kind. It is also prohibited for them to manufacture and transport weapons of all kinds, as well as to transport war material for combat units. In the armament economy under the control of the Defendant Speer, the only thing which could be considered as a violation of the afore-mentioned rule is the manufacture of weapons and munitions of all kinds. Such a violation, however, has so far not been proved by the Prosecution at all.
It must furthermore be examined how the assignment of prisoners of war to plants took place. According to the testimony of the Defendant Sauckel, this as a matter of principle was done by the war economy officers with the military district commanders, who submitted the number of prisoners of war available for work to the Gau labor office; and the transfer of the prisoners of war to the plants then took place in the same manner as with ordinary labor. The only difference was that the camp officers—the prisoners of war were billeted in so-called enlisted men’s camps (Stammlager)—were responsible for seeing that the directives issued by the OKW for the employment and treatment of prisoners of war were complied with. It was the responsibility of these camp officers to see that in the employment of prisoners of war any violation of Article 31 of the Prisoners of War Convention was made impossible. The commitment officers (Einsatzoffiziere) appointed by the camp commanders had constantly to control and examine the working conditions and the nature of the occupation of prisoners of war in armament plants, and they had to watch to see that no prohibited work was imposed on the prisoners of war. The Defendant Keitel has given an exact description of the manner in which the control of prisoners of war in the home area was carried out. Documents have also been submitted which give information about the treatment of prisoners of war.
The prisoners of war who were confined in assembly camps were constantly being examined by camp commitment officers to see that their employment was in accordance with Articles 31 and 32 of the Geneva Prisoners of War Convention. As far as French prisoners of war were concerned, a special authority existed for them in the person of Ambassador Scapini, who had to forward to the OKW any complaints which were made against the use of prisoners of war for labor in a way which violated international law. Complaints of this kind by Ambassador Scapini were immediately investigated, and if they were found to be justified, improvements were made. It is, of course, possible that mistakes sometimes occurred in view of the vast organization necessitated by the large number of French prisoners of war. Measures for the correction of mistakes of this kind are, after all, provided by the Geneva Prisoners of War Convention itself in its regulations. These regulations were also effective in the last war. The representatives of the protecting powers intervened against bad conditions brought to their attention through complaints, and they also demanded and achieved their abolition. If such mistakes were recognized and reported, they were then immediately remedied. It would be wrong to try to conclude from individual occurrences that there was a premeditated plan. The protection which prisoners of war found through the labor commitment officers even laid Defendant Speer open to criticism by individual plant directors as being too extensive.
In this respect, as far as the Defendant Speer’s position in law is concerned, we must first examine whether the employment of prisoners of war in the armament industry is to be fundamentally regarded as a violation of the rules of international law. After the previous statements as to the character of the plants which were combined in the armament industry, this must be answered in the negative. Only insofar as prisoners of war were actually employed in the production of arms and in the production of urgent war materials could there be any mention of a violation of Article 31. That this regulation may have been violated in individual cases we will not deny. If, for example, as the photographs submitted by the American Prosecution show, prisoners of war were used near the front lines to unload munition trains, then this undoubtedly represents a violation of the regulations of Article 31. The Defendant Speer, however, cannot be accused of such incidents, as they do not fall within his competence. To use the fact of the employment of prisoners of war in the armament industry to conclude a violation on a large scale of the regulations of the Geneva Prisoners of War Convention is not justified.
THE PRESIDENT: The Tribunal will adjourn.
[The Tribunal recessed until 1400 hours.]
Afternoon Session
M. JEAN JACQUES LANOIRE (Assistant Prosecutor for the French Republic): Mr. President, I would request the authorization of the Tribunal to make a very short statement in the name of the French Prosecution. Even though it is not the custom that the Prosecution should intervene in the course of the discussion, the counsel for Speer gave a few opinions which it seems to me I must go into without waiting for my turn, and also request the Tribunal to reject them.
THE PRESIDENT: The Tribunal does not think it is appropriate that the speeches of the defendant’s counsel should be interrupted by counsel for the Prosecution. Counsel for the Prosecution are going to speak afterward, and they will then have a full opportunity of answering the speeches that have been made on behalf of the defendants.
M. LANOIRE: Certainly, Mr. President.
THE PRESIDENT: Dr. Flächsner, if you will wait one moment, I have an announcement to make. The Tribunal refers to its order of 23 February 1946, Paragraph 8 of that order, which is on the subject of the statements which the defendants may make, under Article 24 of the Charter.
In view of the full statements already made by the defendants and their counsel, the Tribunal assumes that if it is the defendants’ desire to make any further statements, it will be only to deal with matters previously omitted. The defendants will not be permitted to make further speeches or to repeat what has already been said by themselves or their counsel but will be limited to short statements of a few minutes each to cover matters not already covered by their testimony or the arguments of counsel.
That is all.
DR. FLÄCHSNER: Mr. President, Your Honors, I now continue my speech. A further charge of the Prosecution refers to the violation of Article 32 of the Geneva Prisoner of War Agreement, according to which prisoners of war were employed in unhealthy work, insofar as prisoners of war had been employed in mines. For this reference is made to the minutes of a meeting of the Central Planning Board where the employment of Russian prisoners of war in mines is discussed. The employment of prisoners of war in mines is not to be considered as forbidden in itself, and it has been practiced in all industrial nations. The employment of Russian prisoners of war in mines is, therefore, not to be objected to, insofar as the prisoners concerned were in a physical condition that enabled them to do heavy mining work. It has not been established and proved by the Prosecution that these prisoners of war were not physically fit for the work given them. From the fact that the employment of prisoners of war in mines was discussed and approved by the Central Planning Board, it cannot be concluded that Article 32 of the Prisoner of War Agreement was violated. The treatment of prisoners of war has to be examined legally from various points of view. The German Government have taken the point of view that Soviet prisoners of war should be treated on a different legal basis from the subjects of the Western States, who were all parties to the treaty of the Geneva Prisoner of War Convention of 1929, whereas the Soviet Union did not sign this agreement. The Soviet Prosecution have presented Document EC-338, USSR-356, an investigation of the Foreign Counter-Intelligence Office (Amt Ausland Abwehr) in the High Command of the Armed Forces concerning the legality of the regulations issued on the treatment of Soviet prisoners of war, according to international law, and leveled sharp criticism at the latter. The essential point is that in this report the view is expressed that, as a matter of fundamental principle, Soviet prisoners of war cannot be treated according to the rules of the Geneva Prisoner of War Agreement because the Soviet Union did not participate in this. Moreover, this report refers to the decree of the Soviet Union of 1 July 1941 concerning the treatment of prisoners of war regarding which the opinion of the Counter-Intelligence of the Armed Forces confirms that on essential points it agrees with the rules of the Geneva Prisoner of War Agreement. It is, however, characteristic that in this decree it is ordered that noncommissioned officers and enlisted men taken as prisoners of war may be put to work for industry and agriculture inside the camp or outside and that the only restriction is that the use of prisoner-of-war labor is forbidden: (a) in the combat area, (b) for personal needs of the administration as well as for the needs of other prisoners of war, so-called orderly service (see Pages 12-13 of the Speer document book, Document Number EC-338).
An order restricting the use of prisoner-of-war labor according to Articles 31 and 32 of the Geneva Prisoner of War Agreement is not to be understood from the above-mentioned command. It now remains to investigate whether the stipulations of Articles 31 and 32 of the Geneva Prisoner of War Agreement flow from general rules of international law, which should be observed even if there were no special ruling by treaty, such as the Geneva Prisoner of War Agreement represents. This cannot generally be affirmed. The above-mentioned treaty regulations cannot be regarded as the prescription by treaty of a generally valid legal concept, if so important a member of the group observing international law as the Soviet Union does not accept a ruling of this sort.
Proceeding from this idea, the employment of Soviet prisoners of war in work forbidden by Article 31 of the Prisoner of War Agreement is not to be objected to. The Italian military persons interned in Germany after Italy’s fall do not come under the regulations of the Geneva Prisoner of War Agreement since no state of war existed between Germany and Italy. Moreover, these military internees did not come under the restrictions of Article 31 in their employment as manpower. It must, however, be pointed out that these military internees are comprised in the enumeration of Mr. Deuss of prisoners of war occupied in the armament industry.
In conclusion, the following is to be said on this point:
The procurement of prisoners of war for the factories was effected exclusively through the offices of the Plenipotentiary General for the Allocation of Labor. The control of the proper allocation in accordance with the Prisoner of War Agreement depended on the labor commitment officer of the Stalag, who in return was himself finally responsible to the general for prisoner-of-war affairs at the Army High Command. It was not possible for the Defendant Speer to have any influence on the distribution of prisoners of war and their occupation. The Prosecution have not been in a position to bring any proof from which the participation of the Defendant Speer in unlawful employment of prisoners of war might be deduced. These assertions of the Prosecution have remained unproved.
The Prosecution have now further brought against the defendant the charge that the Todt Organization, at the head of which Speer was placed in February 1942 after Dr. Todt’s death, had used native workers to build fortifications in the French coastal areas. As far as the Todt Organization is concerned, it is a purely civilian institution of the general construction inspector for road maintenance. It worked on a private economic basis, that is, it allocated the construction work that it intended to carry out to private firms, also to foreign firms, which were established in the respective countries; and it merely supervised the execution of the constructions. The private firms could undertake the procurement of the necessary materials and labor themselves. For the very reason that native construction enterprises were used, it was possible to eliminate the difficulties which otherwise would have opposed themselves to the execution of the work. The workyards of the Todt Organization enjoyed a certain favor with the natives because the workmen had the assurance that they could not be compelled to go to Germany to work in industry there because these places of construction of the Organization Todt were considered as urgently important. The workers went voluntarily to the firms which were active for the Todt Organization to obtain this security. The example, quoted by the Defendant Speer during cross-examination, of 50,000 Todt Organization workers who were once taken from France to Germany to repair damages caused to two west German valley dams by air attacks, made such a bad impression on the workers employed in other Todt Organization construction sites that there was nothing else left to be done but to send these 50,000 workers back to France. In the meantime, many workmen of the Todt Organization construction sites in France disappeared, because they feared they would be taken to Germany sooner or later against their will, while up to then they had regarded employment in enterprises which worked for the Todt Organization as insurance against an eventual transfer to Germany. Only the return of the above-mentioned 50,000 workers to France, which was brought about by the Defendant Speer when these unfavorable consequences developed, restored the hitherto existing state of confidence.
Here, too, the fact should be emphasized that, as a result of the event described, the Todt Organization workers were free to go where they wished in France—in any case, that no coercion was used against them. The consequence of this was that when the protected plants (Sperrbetriebe) were established in France, all enterprises working for the Todt Organization were declared protected plants and therefore could not be otherwise employed. This instance shows that the view of the Prosecution that the workers of the Todt Organization were forced into the Todt Organization plants against their will is a wrong interpretation.
As it is established that the French Government agreed to the use of French workers in construction sites under administration of the Todt Organization as well as in any other armament industries in Germany and the occupied territories, illegality is excluded. It should not be left unmentioned here that, after the conclusion of the Armistice Agreement with France, the latter took no part in military hostilities. The Armistice Treaty certainly did not mean an agreement for a truce but, de facto, a final end to hostilities and was to serve as a preparation for the conclusion of peace. It was no longer a period of war, but it was not a definite return to peacetime conditions regulated by treaty. A resumption of hostilities was, however, according to both partners to the Armistice, completely out of the question. The Armistice was exclusively to regulate the situation until the definite conclusion of peace. Stipulations of the Hague Convention for Land Warfare as well as of the Prisoner of War Agreement forbidding services which run counter to loyalty toward one’s own country still at war do not apply because the country is no longer at war. After a general armistice the production of arms and munitions can no longer be directed against the ally which has retired from hostilities but only against other allies still in the field. The afore-mentioned principle of respecting the loyalty to one’s own country can no longer be applied in such cases.
It must, moreover, be pointed out that the Todt Organization was in no way a paramilitary organization as has been falsely asserted. Apparently this false assumption has been strengthened by the fact that the German members of the administration of the Todt Organization abroad wore a uniform. These people were considered as Armed Forces followers; but on the other hand the labor engaged by the firms and the construction workers of the firms, as well as the technical personnel, stood in no such relation. The charge cannot be made, therefore, that these native workers were indirectly incorporated into an Armed Forces’ organization.
A further charge against the Defendant Speer consists in the fact that prisoners from concentration camps were employed in the economic sector controlled by him. The defendant admitted this. Criminal responsibility because of this fact does not, however, stand the test of a legal verification. The employment of convicts for work of an economic nature has always been a practice in Germany. It could be carried out in various ways, partly by employment within the convict prison itself, partly outside. Owing to the shortage of labor due to the intensification of the economic war, it was necessary to draw upon the labor available in the concentration camps.