Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 19 (part 2 of 4)

Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 19 (part 2 of 4)

The Prosecution have submitted documents from which can be seen how much trouble was taken by the offices subordinate to the Reich Minister Himmler to use the reserves of labor contained in the concentration camps for the construction of their own SS plants; and the Defendant Speer has supplied information during his hearing before the Court on 20-21 June regarding Himmler’s efforts to build up a separate armament industry of his own, subordinate to him only, which would render any control over the production of arms in these intended SS plants impossible, so that the SS could have provided themselves with weapons without supervision by the Army or any other offices.

The Defendant Speer successfully fought this. It was agreed that Himmler would release a part of the inmates of the concentration camps to be employed in the armament industry. The inmates of the concentration camps would thus improve their situation, since they obtained the higher food rations provided for those on long shifts or doing heavy work, as has been attested by witness Riecke; moreover, they left the large concentration camps and were no longer under SS control during working hours, but in the plants they were subject to the control of foremen and skilled workmen appointed by the plants themselves.

It is true that to avoid transportation and marching difficulties special camps were erected near the plants or working places where they were employed, and these were not accessible to the supervision of the plant managers nor to the control of the offices of the Defendant Speer but were exclusively under the direction of the offices in charge of the administration of the concentration camps. For the poor conditions prevailing in such camps neither the plant manager nor the offices of the Defendant Speer can be held responsible. In general, as attested by the letter of the department chief Schieber of 7 May 1944 to the Defendant Speer (Speer Document Book 2, Page 88), the inmates preferred work in such plants rather than be assigned by the administration of the concentration camp itself. And Schieber quite clearly states in his letter that for these reasons the employment of concentration camp inmates should be extended in order to improve their lot. But he further states that the number of concentration camp inmates employed in the armament industry amounted to 36,000 and that this figure was decreasing. The defendant’s assertion, however, at his interrogation that the total number of concentration camp workers employed in the armament industry amounted to 1 percent of the total number of workmen employed in the whole armament industry has been calculated too high. Of 4.9 million workmen engaged in the final processing of armaments, the figure of 36,000 represents only 7 per thousand. The number of concentration camp inmates employed in the armament industry represents a very small part of the total number employed in the final processing of armaments, that is, of the total number employed in the plants manufacturing finished products.

These figures show how misleading the assumption of the Prosecution is, that the employment of such prisoners in the armament industry had resulted in an increased demand for such labor and that this increased demand was satisfied by sending to concentration camps people who under normal conditions would never have been sent there. The opinion that the employment of prisoners from concentration camps in the armament industry led to an increase in the number of concentration camp inmates is disproved by Schieber’s letter already mentioned (Exhibit Number Speer-6, Page 88) and by his testimony, also submitted as Exhibit Number Speer-37. According to this the employment of concentration camp inmates in the armament industry occurred for the first time in the autumn of 1943, and the number of prisoners employed there reached its peak with the maximum figures of 36,000 in March 1944 and from that time on actually decreased. Therefore the conclusions of the Prosecution in no way bear examination. Nor has proof been brought forward that Speer had attempted to have people sent to concentration camps.

At his interrogation the defendant admitted that everywhere in Germany people were afraid of being sent to a concentration camp. The population’s dread of concentration camps was quite justified, for it depended only on the judgment of the police authorities under Himmler whether a person was sent to a concentration camp or not; further, because there was no legal authority to check the charges resulting in a transfer to a concentration camp; and finally—and this is the main reason—because it was left entirely to the discretion of the concentration camp authorities to decide for how long one was to be sent to a concentration camp.

The Prosecution have further asserted that Speer went on having concentration camp inmates work in the armament industry after he had obtained knowledge of conditions prevailing in the Mauthausen Camp after a visit he had made there. That this was not the case is proved by the evidence of the defendant on this point. As it was only a hurried visit for the purpose of instructing the camp administration to desist from tasks which served purely peacetime purposes but rather place labor at the disposal of the armament industry, the Defendant Speer could only obtain a superficial impression of the living conditions in the camp. On this point his evidence may be referred to.

Moreover, through witnesses for the Prosecution, detailed reference has been made to the fact that during such visits to concentration camps by important personalities, the camps were seen from the best side only, and any signs of atrocities, et cetera, were carefully removed so that the visitor received no unfavorable impressions.

In connection with this question we will deal with the further charge of the Prosecution, which asserts that Speer had approved using Hungarian Jews for the construction of the bombproof aircraft factories ordered by Hitler. In this respect reference must be made to the evidence of the witness Milch and that of the witness Frank. Milch stated that Speer, who was ill at the time, strongly opposed these constructions but that Hitler, who demanded that the work be undertaken, commissioned Dorsch, the leader, of the Todt Organization, to carry them out. So that the controversy between Hitler and Speer should not become known to outsiders, Dorsch officially remained subordinate to Speer; but in this matter he had to deal directly with Hitler alone and was immediately subordinate to him. In his evidence Milch further stated that these construction plans were never actually carried out. I have submitted Hitler’s order to Speer of 21 April 1944 as Exhibit Number Speer-34, Page 52, in my document book (Speer Document Book 1). This order clearly shows that Hitler designated Dorsch as being directly responsible to him, since the appointment of Speer, who was given the duty of incorporating these tasks into the building plans under him, was of a purely formal nature. The evidence given by Field Marshal Milch is thus confirmed by this letter.

To support the opinion of the Prosecution that the Defendant Speer had helped send people to concentration camps, a statement by Speer at a sitting of the Central Planning Board of 30 October 1942 on the question of shirkers is quoted. In this connection we must look at the evidence of the Defendant Speer in the witness box where he declared that upon this statement no steps to stop this evil were taken with the Plenipotentiary General for the Allocation of Labor either by the Central Planning Board or by himself. In reality, nothing was done about it. It was only in November 1943 that Sauckel issued a decree against shirkers. The term “shirker” is applied to those workers who evade their obligations by simulating illness or who stay away from work under flimsy pretexts or for no reason at all.

It may incidentally be mentioned here that economic warfare did not neglect even this question. Efforts were made in every imaginable way to dampen the worker’s spirit. By dropping leaflets and through other channels of information, the workers were told how to feign sickness and slow up their work, et cetera. At first this propaganda succeeded only in isolated cases. Since such isolated cases had an unfavorable influence on the working discipline of the personnel as a whole, the Defendant Speer discussed the possibility of police intervention. Speer did not, however, take steps of any kind which would have led to practical action on the part of the Police. It was not until a year later that a decree was issued by the Plenipotentiary General for the Allocation of Labor, first making it an obligation for the employer to use disciplinary penalties. In particularly grave cases, the trustees for production could ask for court punishment. Based on this decree sentences could be pronounced providing for transfer to a workers’ training camp for a term of 56 days. Only in exceptionally grave cases of infractions of the working law did the decree of the Plenipotentiary General for the Allocation of Labor provide for transfer to a concentration camp.

It must be mentioned here that this decree was applicable both to native and foreign workers, for in no case were native workers to be treated differently. In the cross-examination of Defendant Sauckel, the French Prosecution produced the document about a meeting of Sauckel’s labor authorities at the Wartburg. At this meeting Dr. Sturm, the specialist on questions of labor law with the Plenipotentiary General for the Allocation of Labor, gave a lecture on the punishment of workmen; and it was thereby established that only an infinitesimal percentage of workers had to be sentenced to penal punishment.

But from this it is again evident that the Prosecution have brought forward no proof for the assertion that, as a consequence of Sauckel’s decree concerning shirkers, the concentration camps were filled; so that conclusive proof is lacking that Sauckel or the Defendant Speer contributed by any measures they took to the filling of concentration camps.

In his statement before the Central Planning Board of 22 May 1944 (Page 49 in my document book, Speer Document Book 1) Speer pointed out that the escaped prisoners of war who were apprehended by the Police had to be taken back to their work. From this remark we see the basic attitude of the Defendant Speer, who did not want to see the escaped prisoners of war thrown into concentration camps but demanded that they be immediately incorporated into industry. So far the Prosecution has not been able to bring forward any proof that will stand the test for the assertion that Speer had the concentration camps filled in order to obtain labor from them.

Mr. President, perhaps now I may go into the question which you asked me at the beginning of my plea as to how I interpret Paragraph 6(a) of the Charter in regard to the Defendant Speer, especially in regard to the terminology: “The waging of a war of aggression.” I should like to say the following: The Charter, under 6(a), cites, among other punishable actions, the waging of a war of aggression. As for the definition of a war of aggression, I need say nothing here. Professor Jahrreiss has already done that in detail. Here it is only the interpretation of the term “the waging of a war of aggression” that is in question. My point of view is that a war of aggression can be waged only by the person who has supreme command. All others are only led, even if their participation may mean a considerable contribution to the war.

In the case of the Defendant Speer, therefore, the waging of a war of aggression cannot be applied. I should like to point out the following as well: In a session on about 28 February or 1 March, one of the judges told Justice Jackson that the Prosecution had represented the point of view that the charge of a war of aggression was concluded with its outbreak. I can only share this opinion.

During the hearing of evidence I had ample opportunity to state the activities of the Defendant Speer during the last phases of the war from June 1944. I can, therefore, confine myself now to proving in regard to this detailed chronological description that the entire testimony of Speer is covered almost completely by testimonies of other witnesses and by documents. The written statements of witnesses, which I refrained from reading before the Court, run entirely along the same lines, although the witnesses came from different camps and expressed themselves in a completely unbiased manner.

Beginning with June 1944 the Defendant Speer readily reported to Hitler on the situation of his armament production, and he expressly pointed out at the same time that the war would be lost if such decline of production were allowed to continue. This is proved by the memoranda of Speer to Hitler submitted as Exhibits Speer-14, 15, 20, 21, 22, 23, 24. As stated by the witness General Guderian, Chief of the General Staff of the Army, Hitler from the end of January 1945 defined any such information as high treason and subjected it to corresponding punishment. Nevertheless, as it appears also from the statement of General Guderian, Chief of the Army General Staff, Speer stated clearly time and again to Hitler as well as to Guderian his opinion about the prospects of the war.

Hitler had especially forbidden that third persons should be informed about the true situation of the war. Nevertheless, after the severest orders for destruction had been issued by Hitler, Speer informed the Gauleiter and the commanders of various army groups that the war was lost and thus helped prevent, in part at least, Hitler’s policy of destruction. This is evident from the testimonies of witnesses Hupfauer, Kempf, and Von Poser.

Hitler declared to Speer on 29 March 1945 that the latter would have to take the consequences customary in such cases, if he continued to declare that the war was lost. This conversation is contained in the testimony of the witness Kempf. In spite of it Speer traveled 2 days later to Seyss-Inquart—on 1 April 1945—in order to explain to him, too, that the war was lost. The witness Seyss-Inquart and the witness Schwebel in the interrogations of 11 June 1946 and 14 June 1946 stated that this conversation with Speer of 1 April 1945 occasioned the conferences of Seyss-Inquart with the Chief of the General Staff of General Eisenhower, General Smith. This led finally to the handing over of undestroyed Holland to the Allies.

On 24 April 1945 Speer flew once again to Berlin, which was already besieged, in order to persuade Hitler that this senseless battle should be given up, as is evident from the testimony of the witness Poser. In his last will Hitler dismissed Speer on 29 April 1945. The American Chief Prosecutor, Chief Justice Jackson, in his cross-examination was, therefore, obliged to concur with the Defendant Speer that he evidently was the only man who told Hitler the whole truth.

The representatives of the Prosecution have produced no evidence that destructions of industries took place in Poland, the Balkans, Czechoslovakia, France, Belgium, Holland during the German retreat. This is to be credited to the Defendant Speer above all who, partly even by falsely interpreting existing orders, prevented the destruction of the industries of these countries as ordered by Hitler. That Speer was convinced as early as the summer of 1944 that this destruction should be prevented in the general European interest is evident from the testimony of the witness Von Poser. It would have been easy by executing the orders to cripple completely the highly developed industries of Central Europe and of the occupied western European countries for 2-3 years and thus destroy the entire industrial production and civilized life of these peoples and even make their own reconstruction impossible for years.

The witness Seyss-Inquart has stated in his interrogation on 11 June 1946 that the calculated destruction of only 14 points in Holland would have absolutely destroyed the basis of existence of this country. The destruction, for instance, of all power plants in these countries would have produced an effect similar to the destruction in 1941 by the Soviets of two or three power plants in the Donets territory. In spite of all efforts it was not until the summer of 1943 that some scanty production could start again there. Similar and still more far-reaching consequences had to be expected from carrying out Hitler’s orders on the European continent.

After the success of the invasion of these occupied territories Speer gave the authorization to refrain from any destructions, as is confirmed by the witnesses Von Poser, Kempf, Schieber, Kehrl, Rohland, Seyss-Inquart, and Hirschfeld. Immediately after the appointment of the Codefendant Dönitz as successor to Hitler, he submitted to him orders prohibiting any destruction in the still occupied territories of Norway, Czechoslovakia, and Holland, as well as Werewolf activities, as is shown in the testimony of the witnesses Von Poser and Kempf.

Although Speer had no direct authority for the destruction of industries in the occupied territories, he had to accomplish this task on his own responsibility and through his agencies within the borders of the so-called Greater German Reich. He was kept busy in this connection trying to obstruct total destruction of all real values, which was obstinately demanded by Hitler. Information on this desire to destroy on the part of Hitler and many of his Gauleiter is furnished in the testimonies of witnesses Guderian, Rohland, Hupfauer, Von Poser, Stahl, and Kempf.

The most important document in this regard is the letter of Speer to Hitler of 29 March 1945 submitted as Exhibit Number Speer-24, in which Speer repeats again Hitler’s remarks during the conversation on 18 March 1945. This document shows clearly that Hitler had made up his mind to destroy completely the foundations of the life of the German people. This document should yield abundant information about Hitler’s time for any future historian. In connection therewith follows the evidence of General Guderian who certifies that in February 1945 Hitler, 1.) identified his inevitable fate with that of the German people, 2.) wished to continue this senseless fight by all means and thereby, 3.) ordered the reckless destruction of all things of real value. That is Guderian on Page 177 and Page 179 of my document book.

At the same time the clear demolition and evacuation orders of Hitler and Bormann, which were issued the day after the conference with Speer, have been submitted to the Tribunal as documents under Exhibits Speer-25, 28.

Ever since the middle of March 1944 Speer, considering this war inevitably lost, was determined to maintain the vital necessities for the German people, as has been confirmed by the witness Rohland. Notwithstanding the growing danger, he repeated this determination with increasing urgency to his collaborators, as the witnesses Kempf, Von Poser, and Stahl can certify for the months of July and August 1944 and the witnesses Stahl, Kempf, Von Poser, Rohland, and Hupfauer for the critical period from February 1945 onward.

Numerous orders of Speer dealing with the preservation of industrial plants issued between September 1944 until the end of March 1945 were submitted to the Tribunal. They were first partly issued without Hitler’s authorization; but by a clever exploitation of Hitler’s hope that these territories could be reconquered, they were in part subsequently approved by him. The testimonies of the witnesses Rohland, Kempf, and Von Poser, as well as Speer’s numerous memoranda regarding the war situation, prove that he exploited Hitler’s illusion, which he did not share, in order to prevent these demolitions.

Since the beginning of February 1945, Hitler no longer lent an ear to any such argument. On the contrary, the introduction to his demolition orders of 19 March 1945 shows that he considered it necessary to oppose actively such argument. In counterorders, such as those of 30 March 1945 to all industrial plants, as well as those of 4 April 1945 for all sluices and dams, Speer gave instructions—in opposition to the orders issued by Hitler—not to undertake any industrial demolitions. This likewise is corroborated by the witnesses Kempf, Von Poser, and Rohland. During the month of March the executive power for the demolition of industrial plants and of other objects of value was transferred from Speer to the Gauleiter.

During this period Speer acted in open insubordination, and on trips to the danger zones he arranged for the sabotage of these orders. Thus, for instance, by clever planning he withdrew the stocks of explosives from the grasp of the Gauleiter, as stated by the witnesses Von Poser, Kempf, and Rohland, and gave orders that the so-called industrial explosives, which were used for demolition, should no longer be produced, as is proved by the statement of the witness Kehrl, the Chief of the Office for Raw Products of Speer’s Ministry.

It seems important that Speer had urgently drawn Hitler’s attention to the consequences which the demolitions would have for the German people, as is shown in Speer’s submitted memorandum dated 15 March 1945 (Exhibit Number Speer-23). In this Speer, for example, has established that by the planned demolition of industrial plants and bridges, in the Ruhr for instance, the reconstruction of Germany by her own forces after this war would be made impossible. Thus it is without doubt mainly to Speer’s credit that the industrial reconstruction of western and central Europe can make progress today and that in France, Belgium, and Holland, according to their latest reports, production has already reached the level of the peacetime production of 1938.

Speer was the minister responsible for the means of production, that is, the factories and their installations. Thus he sat in the transmission center through which Hitler’s intended demolition orders must necessarily pass. We have noticed in this Trial how in an authoritative system such centers are in the position to carry out on a big scale the orders of the head of the State. It was a fortunate coincidence that at this decisive period a clear-thinking man like Speer directed this office of industrial demolition.

But with increasing intensification Speer took measures beyond his sphere of action in order to ease the transition for the German people and at the same time to shorten the war. Thus Speer tried to prevent the destruction of bridges. Every German knows that up to the last days of the war and to the farthest corner of the German Reich, bridges were destroyed in a senseless way. Nevertheless, his efforts had no doubt a partial success. The numerous conferences which Speer held in this connection with military commanders are testified to by the witnesses Kempf and Lieutenant Colonel Von Poser. This witness was Speer’s liaison officer with the Army, and accompanied him on all trips to the front.

These conferences were partially successful. Finally by the middle of March 1945 the Chief of the General Staff of the Army, General Guderian, and Speer, according to the latter’s proposal, tried to obtain Hitler’s agreement to alter his demolition orders regarding bridges; but they did not succeed. This is confirmed by the witness, General Guderian.

Knowing the possible consequences of those bridge demolitions, Speer finally, on 6 April 1945, issued 6 orders in the name of General Winter of the High Command of the Armed Forces to spare the bridges of essential railway lines in the Reich and in the entire Ruhr territory. These unauthorized orders were confirmed by the statements of the witnesses Von Poser and Kempf.

At the end of January 1945 he noticed that from a long-range point of view, the guarantee of sufficient food supplies for the German people and the spring tilling of fields for the harvest of 1945 in particular were endangered. Speer, therefore, allowed the requests for armament and production which were in his jurisdiction to be superseded and gave priority to the supply of food.

That this was done not only on account of the actual food situation but was mainly in order to relieve the transition period after the occupation by the Allied troops is proved by the statements of the witnesses Hupfauer, Kempf, Rohland, Von Poser, Riecke—State Secretary in the Ministry of Food—Milch, Kehrl, and Seyss-Inquart.

When Speer believed that he had new reasons for apprehension that Hitler, induced by his close collaborators in Party circles, would use poison gas in the fall of 1944 and then in the spring of 1945, he opposed this determinedly as proved in his cross-examination by the U.S. prosecutor, Justice Jackson, and by the testimony of the witness Brandt. Speer’s statement that due to this apprehension he had closed down the German poison gas production as early as November 1944 was confirmed by the witness Schieber. Speer at the same time established that the military authorities unanimously opposed such a plan.

Finally, since the end of February 1945, the Defendant Speer had tried by planning conspiracies to have the war brought to an earlier end.

The statements of the witnesses Stahl and Von Poser show that Speer had planned other violent measures. Chief Justice Jackson has established, too, in the course of Speer’s cross-examination, that the Prosecution knew of further plans which were to be executed under Speer’s leadership. Apart from all these activities, Speer’s political attitude is illuminated by two facts:

1) In Speer’s memorandum addressed to Hitler, submitted as Exhibit Number Speer-1, the defendant establishes that Bormann and Goebbels called him alien and hostile to the Party and that a continued collaboration would be impossible, should he and his assistants be judged by party-political standards.

2) In their government list of 20 July 1944 the Putschists quoted Speer as Armament Minister and as the only Minister from the Hitlerite system, as stated by the witnesses Ohlendorf, Kempf, and Stahl. Would these circles have proposed Speer as Minister, both in Germany and abroad, if he had not been considered an honest and nonpolitical expert for a long time? Is not the very fact that he, as one of the closest collaborators of Hitler, was chosen for this post a further proof for the high esteem in which he was held by the opposition.

My Lords, let me say a few more fundamental words about the Speer case itself. When the defendant took over the office of Minister at the age of 36, his country was in a life-and-death struggle. He could not evade the task with which he had been charged. He devoted his entire energy to the solution of the task, which seemed almost insoluble. The success he obtained there did not cloud his view of the actual condition of things. He realized only too late that Hitler was not thinking of his people, but only of himself. In his book Mein Kampf Hitler wrote that the government of a people always had to remain conscious of the fact that it should not plunge the people into disaster. Its duty was rather to resign at the right time, so that the people could continue to live. Naturally, such principles were valid only for governments in which Hitler had no part. As far as he himself was concerned, however, he was of the point of view that, if the German people should lose this war, they would have proved themselves the weaker nation and would no longer have any right to live. In contrast to this brutal egoism, Speer still felt that he was the servant of his people and his nation. Without consideration for his person and without consideration for his safety, Speer acted as he considered it his duty to act toward his people.

Speer had to betray Hitler in order to remain loyal to his people. One cannot but respect the tragedy which lies in this fate.

THE PRESIDENT: I now call on Dr. Von Lüdinghausen for the Defendant Von Neurath.

DR. OTTO FREIHERR VON LÜDINGHAUSEN (Counsel for Defendant Von Neurath): Your Lordship, Your Honors, “Never before has war impressed me as being quite so abominable.” This is what Napoleon Bonaparte wrote to the Directorate in Paris in the year 1799 after the victorious capture of Jaffa where he had ordered the shooting of 2,000 captured Turks. This statement by one of the most outstanding warriors of all nations stood for unqualified condemnation, not merely of war as such, but also of all means used in the conduct of war considered unavoidable but tolerated at that time. The ethical condemnation of war voiced in this phrase was not uttered in vain. As early as the middle of the last century, high-minded individuals made efforts to eliminate at least some of the horrors of war. The founding of the Red Cross in Geneva was the first far-reaching result of such endeavors, the first fruits of Napoleon’s phrase. But I dare say, this phrase is, so to speak, also the actual impetus which gave birth to this present Trial. It, too, was caused and dictated by the endeavor, not only to restrict methods of warfare, but beyond that to find means and ways to eliminate war altogether as a political measure. It strives for the same high goal: To create a body of international law to govern the relations between the peoples of all states, a law to which governments and peoples will submit, if they wish to take their place among civilized states, and by which they will be forced to abide in the same manner as the individual national of a state must abide by the law his state has established for the common existence of its people. It may be difficult for you, Your Honors, and for the entire world to understand how infinitely painful it is for us Germans that it is just our state and our people who have furnished cause for the creation of such international law by a war in which we engaged; yet my client, the Defendant Von Neurath, and I could not help but welcome this Trial, because the greatest efforts were made by my client during his entire official activity, from his first day in office to the last, to avoid war and to serve peace. And I do not hesitate to emphasize this, although it is because of an entirely new principle of law that my client is facing this Court today. Because for the first time in history the idea is to be carried into practice according to which the statesmen of a nation are to be held personally responsible and are to be punished for the inhuman acts of wars of aggression caused by them. This thought, which this High Court is about to carry into practice as a principle of law, is a novelty in the history of international law. But if the present Trial and the Charter on which it is based is to be more than a single procedure worked out and intended for this one case—in other words for this war just ended—if it arose not merely from the thought of vengeance because of harm and damage done to the victorious nations and if it really was brought forth by the will and the decision to eliminate war in itself for good by holding the statesmen of the nations personally responsible, then this constitutes a deed which the sincere conviction of every peace-loving person will welcome. It furthermore contains two elements calculated to revolutionize all that was heretofore known in this world regarding the foreign policy of states and to raise it to a new and undoubtedly higher ethical basis.

Since the famous speech made by Pericles and since Plato’s state doctrines it is an ancient, well-established postulate for the policy of a statesman to endeavor to obtain for his people, for the state under his stewardship, the highest possible level of existence, the maintenance, and improvement of its standard of living, of its position among the nations, irrespective of the means it might require. Every nation on earth includes in its history statesmen who, seen in this light, are extolled and honored as shining examples, and who went down in history as such merely because they were successful, without examining whether the means they used to obtain success were in harmony or not with the ethical principles not only of the Christian but of all leading moral philosophies. To this maxim the Charter of this High Tribunal opposes a new maxim in that it plainly stipulates that every war of aggression places culpability on the person responsible for the war, regardless of whether the war was won or lost. However, this means nothing else but subjection to the moral law—which rejects application of force of any kind as a means of policy—of every state stewardship, even the successful and the victorious.

If, however, this is to have practical meaning and is to be successful, then there follows the subjection of every state stewardship to the test and judgment of all other civilized states in the world. On that principle of the Charter established by this High Tribunal it would call for the examining and possible judgment of all inner-political measures which, in retrospect, might be seen as actions of preparation for this war. To discuss consequences resulting from this would lead too far; this must rather be left to the discussion by scholars of state law and to further developments, and I wish, therefore, to confine myself to pointing to one consequence only, the consequence that the statesmen involved in the war of aggression will be subject to such judgment of a future international world court and will be liable to punishment, even if that war of aggression ends in victory. Perhaps this is the main point, reflecting the highest ethics of the stipulations and principles established in the Charter.

If I particularly stress these points it is not because my client or I doubt that the authors of this Charter were not fully aware of these consequences too. But in the fact that this new tenet of international law is to find application for the first time before the world forum and by the Allied governments not through a power dictate but through a court procedure based on objectivity and impartiality, in this fact my client and I see proof that this court procedure had its birth in the ideal aspiration of mankind to free itself from the scourge of war.

And even if my client and I fully recognize the important issue in this Trial as based on the Charter, namely that in sharp contrast to the principles of law of all democratic states, of every democratic-liberal principle of law, it proposes to pass judgment and inflict punishment for actions which at the time they were committed were not governed by law, my client and I nevertheless are confident because of our conviction that this High Tribunal will not base its verdict on individual and incoherently joined actions, on single bare facts, but that it will scrutinize and examine with care the motives and aspirations which moved each individual defendant. If then you, Your Honors, will establish, as I am convinced you will, that from the first to the last day of his official activity as Reich Foreign Minister or as Reich Protector, my client was moved by one desire only, that all his deeds and actions were governed by one aspiration, to prevent a war and its cruelties, to maintain peace, and that the very reason for his remaining in office was to prevent war and its inhumanity through his influence and that he did not withdraw from his post until he was forced to conclude that all his efforts were in vain and that the will and determination of the highest ruler of the State, Hitler, to wage war were more powerful than he, then the fact of his membership and continuance in office in the Reich Government until that moment cannot possibly be construed as approval, much less as assistance and copartnership in the planning, preparing, or waging of war, thereby placing upon him joint responsibility for the war, and even for cruelties and atrocities committed during its course.

The very fact of the application—an application made for the first time in this Trial, at least in international law and in democratic states—of the legal doctrine, that an action already committed can subsequently be made punishable by law, results in the imperative demand that the question of the subjective guilt of the defendant—in other words the consciousness not only of the amorality and the presumed criminality of the deed in question, but also the intent to commit the deed or at least to offer active assistance despite such awareness—be examined and answered before a verdict is arrived at. Disregard of this postulate would not only rob this Trial of its high ethical importance but would open wide the door to arbitrariness, making such court procedure appear before the world, not as a real court in the truest meaning but a power dictate wearing the robe of justice.

An extraordinary responsibility is thus placed upon your shoulders, so great as has never before been placed on the shoulders of any court in the world. Carrying out the will and the vision of the father of this Trial, President Roosevelt, who passed away far too soon, it is your task, Your Honors, to lay the first cornerstone for the temple of peace of the nations of the earth. You are to lay the foundation for the attainment of the ideal he envisaged, perpetual peace. Coming generations are to continue to build on your judgment. You are to give the directives according to which those who come after us must continue to aspire to this high goal. It is not a precedent you are to establish, not an individual case you are to judge and to punish the guilty men according to your judgment, but you are to lay down the fundamental principles of a new international law which is to govern the world in the future. This alone, this task assigned to you, establishes the meaning of this Tribunal, its justification, and its high ethical inspiration, to which we yield. At the same time, however, this also includes the recognition that the verdict to be established by you in regard to these defendants is not a verdict in the ordinary meaning of the word; it is not merely a judge’s sentence pronounced on behalf of individual defendants and their deeds; but it is the new fundamental law itself, the source from which all future courts are to draw, in accordance with which your verdict is to be established.

It is, therefore, your task, Your Honors, to interpret the provisions of the Charter according to their principle and to establish in practice and for all time to come, the rules and principles of the Charter. The responsibility which you thereby assume before history puts two fundamental questions to you, the answers to which are all the more complicated because the legal concept of conspiracy incorporated in the Charter and forming the legal foundation of the Indictment is a concept foreign not only to the majority of peoples, especially the European peoples, but also because in some countries it owes its existence to its previous application to the fight against common crimes and offenses against the legal provisions governing domestic affairs and against those alone. The postulate necessarily follows that the method of interpretation and the application of this legal concept in international law must never be the same as that employed in the fight against common bands of gangsters, guilty of a breach of the social order of a particular country and of the laws promulgated for its protection. The latter ordinarily involves individuals of a more or less amoral disposition, who act for reasons of selfishness, lust for money, or other unethical instincts which place them outside the existing social order. In the last analysis, however, and particularly when wars of aggression are involved, international law does not deal with individual statesmen but much rather with whole peoples. The age of absolutism, where the will of the ruler alone determined the destiny and acts of a people, has definitely passed. In this age it may be said that one cannot imagine any avowed dictator or omnipotent despot who can rule without or against the will, or at least the tacit approval of the nation, at least its majority. And so—it is necessary to make this known to the world—invisible behind the defendants, there sits also in the prisoners’ dock our poor beaten and tortured German people, because it placed upon a pedestal and selected as leader a man who led it to its doom. From this follows of necessity the inescapable demand that, contrary to the concept of a conspiracy applied in regard to ordinary criminals, application of the concept of conspiracy applied in international law must first proceed to investigate and examine how it happened—how it could happen that an intellectual, high ranking people, a people who gave so much to the world in terms of cultural and spiritual gifts as the German people did—that it could hail a man such as Hitler, follow him into the bloodiest of all wars, giving him the best it had. Not until you, Your Honors, have taken this into consideration and examined this question, will you be able to establish a just verdict in regard to the individual defendants themselves, with due consideration for their dissimilarity—a judgment which will stand the test of history. Because of such reasoning and not merely by reason of my right as defense counsel of the Defendant Freiherr von Neurath, but also because of my duty as a German, I deemed it necessary to explain in mere outline the fact of Nazi domination which the world outside Germany cannot grasp; to make you visualize how it happened as a result of the effects of the Versailles Treaty and finally, because of the manner of its application, how it was bound to happen, true to historical necessity.

In view of the short amount of time made available to me by the decision of the Tribunal, I must refrain from reading that part of my final pleading; but I express my definite hope that the Tribunal will subsequently go to the trouble of reading it themselves and that they will consider its arguments when pronouncing the verdict.

[sm type begins]After the world-embracing battles of her great emperors, after the death of the last of them, the Emperor Barbarossa, the royal sovereignty perished and consciousness of national unity became more and more lost; the ancient hydra of dissension among the German tribes raised its multiple serpent’s head. On the decayed ruins of the German throne a new world of particularized territorial powers came into being. Spiritual and temporal princes, free cities, counts and knights formed in the course of the following centuries a shapeless confused mosaic of incomplete greater, smaller, or infinitesimal state structures, which undermined and strangled all desire for a unified state and nation. Princes, nobility, freemen, and peasants all chose their own individual ways. Particularistic and selfish interests of the different classes frustrated all attempts to classify politically the abundance of creative power within the German nation, and to reconstruct in some form the decayed unity of state and nation. In addition to all this an event occurred at the turn of the fifteenth century which was perhaps the greatest tragedy in the history of the German nation: The Lutheran Reformation, born of the deepest origins of German religious feeling and thought. This Reformation, however, instead of uniting the various German races, instead of arousing this nation split into hundreds of small parts to a common ideal and to a consciousness of national unity, brought a still greater and deeper schism, the schism of faith, to this poor dismembered people under the rule of an emperor who, though powerful again, not only failed to understand German mentality or the Reformation born of it, but even felt hostile toward it.[sm type ends]

[sm type begins]For Charles V attempted to smite this Reformation, which he considered heretical and sinful, with fire and sword and thus led the German people into the darkest hour of their history. In the subsequent wars of religion, Germans turned their weapons against Germans, forgetting their kinship to such a point that they called in foreign nations to aid them against their own German fellow countrymen and tore each other to pieces side by side with them. With the end of the Thirty Years War the helplessness of the German nation was finally settled. It became the plaything of its neighbors’ desires, the welcome battlefield of foreign nations; and all this occurred at the very time when the English people under the leadership of their gifted Queen Elizabeth, and shortly afterward under Oliver Cromwell and under a Parliament which, freely elected by its people, was possessed of a sense of responsibility, laid the foundation necessary for its ultimate position as a world power; at a time when the French people, led by their energetic and powerful kings after the defeat of a feudal aristocracy, had long been welded together into full unity and into a nation. In Germany, however, every German purpose became benumbed. Through poverty caused by the long wars all national consciousness vanished, not only in the political but also in the psychological sphere, even to the very language. The people embroidered their ancient language with foreign idioms, and the great philosophers and poets wrote in French or Latin. Thus, in the petty troubles of a miserable existence, the mass of the German people lost its last recollections of the sovereignty of their Reich.[sm type ends]

[sm type begins]Unfamiliar and no longer understood, the Gothic cathedrals tower up in this changed world as witnesses of the past glory of the German burghers. Each lived only for himself, for his poor petty existence. Was it to be wondered at that on such miserable soil, under the rays emanating from the admired French monarchy, an absolutism developed in almost all German courts, down to the smallest domains, which enabled these more or less important gentlemen to copy the Roi Soleil of France? Only when, at the beginning of the 19th century, Germany in alliance with other countries rose against the foreign rule of Napoleon, did the Germans reawaken to consciousness of their racial community by these wars of liberation.[sm type ends]

[sm type begins]After eight centuries the slumbering desire for a revival of the ancient glory of a unified and honored empire of the German nation in a new form was rekindled. But only some 75 years ago, after decades of strife and disappointment, did this ardent dream become reality, so that a unified German Reich could arise in a new form. In this hour though, for the first time in its history, the German people was taken into consultation by the new Constitution, to advise and collaborate in the direction of this new Reich. Together with this right, however, the common responsibility for the administration of the State was also imposed. However enthusiastically and joyfully this new right was received, the people could hardly judge at once of the eminent seriousness of this duty. Was it not demanding too much that a people, the bulk of whom had for centuries been excluded from any participation in the leadership of its country and its fate, should learn in a few years that which others had taken centuries to learn gradually, something which was to be an essential part of its existence, thought, acts, and feeling?[sm type ends]

[sm type begins]One of the leading men in the oldest democracy in the world, the British Prime Minister, Stanley Baldwin, in his speech in the House of Commons on 11 March 1935, declared democracy to be the most difficult system of government, which can only function if the entire population is able to think intelligently and to appreciate well-considered opinions and is not liable to be led away by propaganda and sentiment. This is the fundamental difference between the Germans and the other western peoples, which cannot be erased by any dialectics and which explains to a great part the developments of the last seven decades. An entire population, however gifted and clever it may be, cannot in a period of 50 years be trained and fully educated in a sphere previously unknown. By experience alone, and even then only gradually and slowly, are political intelligence, sense, and instinct evolved together with a gift of perception of right and the understanding of cohesion in political and social life, and likewise the knowledge that each individual is himself responsible for what is done for and in the name of his people. Inexorably the continuous action of the past in the present is reflected in the history of those nations which do not believe in this historical law nor wish to do so.[sm type ends]

[sm type begins]Inevitably, the primary consequence of nonparticipation and lack of coresponsibility in the government for hundreds of years by the German people was the belief that it could give its confidence to the men charged with the leadership, the more so if such leadership, particularly in matters of foreign policy, was in the hands of a statesman like Bismarck, under whom the young Reich incontestably flourished in all spheres, particularly in its economic life and under whom it enjoyed a blessed period of peace such as it had not experienced for a long time. Trusting and inexperienced as they still were, the German people believed it could also meet the successor of a Bismarck with the same confidence.[sm type ends]

[sm type begins]But even if in the sphere of domestic politics some opposition was gradually voiced against the new policy, the bulk of the German people was firmly convinced that in foreign policy the new leaders would not divert from Bismarck’s peaceful trend. In its lack of experience and faced with the secret diplomacy generally followed, the German people were not in a position to judge whether the policy followed by their leader was right or wrong. It therefore never occurred to the bulk of the German people, nor could it occur to them, that the policy followed by Bismarck’s successors might lead to war. To the people itself the idea of war was quite remote. It had no other wish, no other longing, but to work peacefully for the domestic development of its recently created empire, and to live for the growth of its prosperity. There was nothing beyond this wish that would have been worth the blood of its sons.[sm type ends]

[sm type begins]The nation was therefore utterly disconcerted when the first World War broke out and could not understand how other countries could possibly believe it to bear the exclusive guilt for this war after its Kaiser’s ostensible exertions for the preservation of peace. With the greatest seriousness, inspired by the most sacred conviction that it was now a matter of defending home, wife, and child against the unprovoked attacks of hostile powers, it took to arms. And for the same motive, the German nation has never, even after the collapse of its powers of resistance through enemy superiority, to this day understood or in any way sanctioned the admission of exclusive war guilt imposed upon it by the Peace Treaty of Versailles.[sm type ends]

[sm type begins]Consequently it did not feel and, to this day, does not feel this treaty to have been a real peace treaty, but a peace dictate imposed upon it by the victorious powers, a dictate which, to it, is not the expiation of a wrongdoing it committed, the kindling of a war, but solely the expression of the purpose to destroy the unity and freedom it had reconquered only a few decades back, and its existence as a nation and a state.[sm type ends]

[sm type begins]Again this poor people stood on the brink of the abyss; all that it had longed for and dreamed of during long centuries had finally become reality a few decades ago, and now everything threatened to crumble once more into rubble and ruin. Again it stood, as centuries before, at the bier of what it possessed; again it stood in danger of losing its existence as a people and a nation and of falling back again into the misery of earlier times. Only one thing was left to it at this time; and that was the consciousness of its national character, of its solidarity as a nation. And it is a veritable page of honor in the history of German social democracy that it made this consciousness; this feeling of solidarity, its rallying cry, inscribed it on its banner, preserved and strengthened it in the great masses of the people and opposed with all its influence the separatism which was once again rising, and so helped to preserve the unity of the Reich and of the nation.[sm type ends]

[sm type begins]Although a great deal, it still was not enough, because the Treaty of Versailles faced it as a terrible danger. This treaty put the axe to the roots of its material existence, to its economic life, and cast it for generations into an economic bondage which was bound to suffocate it. I do not need to review these stipulations to you in detail; they are history. After a short time they worked to the detriment of the entire world, thus proving themselves untenable. But whom did the German people have to regard as the principal author of this treaty? France alone, who thereby once more believed she could perpetuate the policy applied toward Germany since Richelieu of keeping Germany down, if not of annihilating her for all time. That was the desire and dream of a nation which proclaimed to the world the Rights of Man, the same nation which 130 years before had written on its banners the motto: Liberty, Equality, Fraternity.[sm type ends]

[sm type begins]To all this was added the internal revolution, which had deprived it of any natural and given leadership which might have been able to show it the way to combat threatening chaos. All by itself, without any help, without any experience of its own, it had to create for the first time a new nation, or rather the foundation stone for such a nation—truly a gigantic task for a people which up to this moment, in its entire past, had always been led, to which a right of self-determination and therewith a duty of coresponsibility, had only been given 50 years ago and then but to a modest extent. Was it astonishing that this task should overtax its strength, that this nation, which had not yet gained a firm political tradition and was torn internally in many directions, soon became the victim and playground of a variety of prophets who promised it salvation in all possible ways?[sm type ends]

[sm type begins]So it came about, as it was bound to come about, that a constitution was given to it in Weimar which did not suit either the actual circumstances or the character of the German people or the requirements of a strong state leadership, a constitution which did not create a real democratic people’s state but only a party state, in which not the people but rather the parties were made the supporters of the state, in which merely the mechanical counting of the votes was assured, while it was left to the parties to settle the conflicts resulting from this. The inevitable result was an infinity of parties which fought with every means for the votes of the masses and thereby created an unlimited splitting of the people into a multitude of components, all fighting tooth and nail among each other, which paralyzed any strong and consistent state leadership from the beginning and indeed rendered it impossible.[sm type ends]

[sm type begins]Right here, in the conflict of interests and allegiances of the parties struggling with one another for supremacy in the state, lies one of the tragic causes that explain the birth of National Socialism and the subsequent seizure of power in 1933. For the history, the rise, and the fall of re-emerging nations is determined by eternal laws which develop and direct events with inexorable logic. Just as without the great French Revolution a Napoleon would never have been possible, so without the basic weakness of the Weimar Constitution there could have been no Hitler. Under such conditions, which became increasingly difficult, the German people took up the fight against the destruction which threatened them.[sm type ends]

[sm type begins]Who refuses or fails to understand that they had become the football of innumerable parties which fought for their votes, who, out of egotistical interests, destroyed one government after another and thereby made any strong, unified state leadership impossible? With admirable courage and under exertion of their utmost strength, the German people, nevertheless, had taken up and carried on this almost hopeless struggle, had tried to fulfill the reparations, imposed by the Treaty of Versailles, which were bleeding them white. They had even accepted the inflation, which had left its imprint on their economic life; and for the sake of the existence, above all, of their middle classes and to avoid the selling out of their properties through foreign capital, had persevered and conquered it.[sm type ends]

[sm type begins]But all their efforts, their labors, their privations were ultimately of no avail. Their standard of living became lower and lower, more and more factories had to close their doors, sales to foreign countries increased more and more, for a piece of bread and butter more and more items of the national wealth passed into foreign hands, unemployment increased more and more, and finally almost 10 percent of the entire population were without employment and food.[sm type ends]

[sm type begins]And why all this? The Western Powers, primarily France, instead of mitigating in their own interests the impossible conditions imposed upon Germany by the Versailles Treaty, used every opportunity to weaken Germany’s situation still more and to make it more difficult, to enslave the German people still more. I would only remind you, above all, of the occupation of the Ruhr territory by France in 1922, which was the reason why, in spite of superhuman efforts, Germany was not in a position to meet the full amount of the reparations imposed upon her.[sm type ends]

[sm type begins]Already in 1920, French troops had entered the Main province on the doubtful grounds that, while subduing the Communist revolt in the Ruhr area, the Reichswehr had entered demilitarized territory. And in February 1921, at a London conference, new payment conditions were laid down for Germany as the result of a delivery of reparation coal to not quite the full amount, due to a Communist revolt in the Ruhr area. When again these simply could not be met by Germany to the full extent, Allied troops crossed the lower Rhine and occupied the bridgeheads on the left bank of the Rhine. When on 3 May 1921 the ultimatum, which had been prepared in London, was delivered in Berlin by the victor nations, whereby the payment of 132,000 million marks in 37 years, and a quarter of the German export to England and France was imposed on Germany, French and British troops already stood prepared to march in in order to enforce this ultimatum.[sm type ends]

[sm type begins]In view of the coming plebiscite concerning the division of the Upper Silesian industrial sector, the German Government had no choice but to accept this ultimatum at a time when 30,000 million marks were required to produce a 1,000 million in foreign gold currency. And as, after the division of Upper Silesia between Germany and Poland to Germany’s disadvantage, the year 1921 came to a close, Germany came under the domination of the so-called Reparations Commission, which not only dictated to Germany a number of new taxes but, moreover, also demanded at once a payment of 280 million gold marks.[sm type ends]

[sm type begins]From the Economic Conference which met at Genoa on 10 April 1922, Germany hoped in vain for deliverance. From the start France rejected any discussion of reparations and all other economic problems. It was soon to become clear to the whole world what France was aiming at by this uncompromising attitude. Weakened by the measures of the Western Powers, the loss of the Upper Silesian industrial area, and the vertiginous devaluation of the German mark, the German Government in 1922 saw itself twice forced to request delay in the payments. It had, however, to pay for this delay by the acceptance of a financial control by the Western Powers and by impotently standing by as the Germans were evacuated and driven away from Alsace-Lorraine by France, their property being confiscated by France. And when on 15 August 1922 the German term policy finally collapsed, the German Reich could no longer meet fully even deliveries in kind, so that in December 1922 the Reparations Commission believed it could establish the fact that during the year Germany, due to insufficient deliveries of lumber and telegraph poles, had been guilty of a deliberate misdemeanor. France seized the opportunity of this ostensibly deliberate misdemeanor to introduce the right to impose sanctions.[sm type ends]

[sm type begins]In contrast to England and Italy, who did not insist on territorial pledges, she permitted her troops to cross the Rhine and occupied the Ruhr area. Her dream had come true. Germany, completely without rights, had collapsed and was at her mercy. How does this open desire for destruction, which no flower of rhetoric can deny, compare with the community spirit, so strongly emphasized today by the French Prosecution, with humanity and the teachings of the Christian faith? Your Honors, I was forced to bring all these historical events once more into the open in order to show you how the soil was prepared in which grew the seed of National Socialism. Indeed, that seed had inevitably to grow, and was only recognized as dragon’s seed when it was already too late.[sm type ends]

[sm type begins]Almost simultaneously with the establishment of the Stahlhelm in northern Germany, the German Labor Party was established in southern Germany, which Hitler joined as its seventh member during 1919, immediately assuming leadership. Both were derived from the war experiences of a million soldiers and the comradeship which had been carried to the highest level during the war, both had inscribed on their banner the national idea, the re-establishment of a new national state. While the Stahlhelm was satisfied in the main with the promotion of national and socialist tradition amongst its members, which soon numbered hundreds of thousands, and did not aim at party-political goals, the German Labor Party under Hitler’s leadership soon extended its aim very much further, thus making itself the political exponent and mouthpiece of a national as well as a socialist aim, namely, that of bringing about an internal regeneration of the entire nation by blending the national idea with the social idea in approaching the problems of the day.[sm type ends]

[sm type begins]This aim was based on the conviction that at some time, as a result of Germany’s collapse, there would gradually occur a complete change in the social structure of the German people and, further, that a re-establishment of the Reich would only be possible if a really uniform racial community necessary for this were created on a national and social basis. According to Hitler’s conviction, this was only possible if socialism were based on racial community and vice versa and both were welded into one unity. He therefore gave the German Labor Party the program which is only too well known, while at the same time changing its name to National Socialist German Labor Party. This program was national in its demands for liberation from the shackles of the Treaty of Versailles and for the establishment of a new unified German Reich, socialist in those demands which, with special emphasis on the value of labor, included above all the discontinuance of an income without work or effort, nationalization of certain industries and the resources of the soil, as well as abolition of the so-called servitude of interest.[sm type ends]

[sm type begins]As soon as this program had been set up, there radiated unmistakably from it the desire and will, slumbering in millions of Germans, for a rebirth of Germany out of all her misery, for a new national and social freedom. And in connection with this program there is something which I must strictly and definitely establish once and for all before the whole world. It is not true that the much discussed Point 2 of this program, which demands the setting aside of the Treaty of Versailles, contains or contemplates a threat of force. The assertion of the Prosecution to that effect lacks all justification. Nowhere in this program was a single word said regarding force. Or does the Prosecution recognize a threat of force in the reference to the principle of a nation’s right of self-determination.[sm type ends]

[sm type begins]No wonder that this program, which, more than all other Party programs, embodied the wishes and demands of the time, gradually met with approval and exercised a greater and greater attraction. And it was the ever-recurring burdens and reverses imposed on the German people by the Western Powers, above all the occupation of the Ruhr area, which more and more enhanced this attraction. For particularly the occupation of the Ruhr territory, which the entire German nation regarded as oppression and which had brought forth this courageous opposition, permitted the awareness of national unity to flare up in all its brilliance for the first time since 1918. A great tragedy lies in the fact that the Western Powers did not recognize this first flaring up of a new German national consciousness, did not understand this symptomatic sign, and showed no interest at all. Who knows if, by a gradual loosening of Germany’s economic and political shackles on the part of the Western Powers, the development of things would not have taken an altogether different course; and the world might have been spared the bloodiest of all wars![sm type ends]

[sm type begins]But instead of loosening their grip, the Powers tightened it more and more during the following years. Under the pressure of the Western Powers the well-known Dawes Plan was drawn up in 1924, which changed the German reparation obligations into negotiable papers and thus compelled Germany to contract enormous loans abroad against the possibility that the Reichsbank might be emancipated from the Reich and placed under the supervision of a special commission, against the transformation of the Reichsbahn into a joint stock company and the mortgaging of debts, taxes, and other securities, in order to be able to comply with her reparation obligations. This, however, in face of the impoverishment of Germany due to inflation and to the enormous selling of German national property to foreign countries, together with the necessity of having to pay interest on these loans abroad, meant a still greater enslavement and subjection of German economy, of German activity in all spheres, under the rule of foreign countries and foreign capital. And the Ruhr area remained occupied.[sm type ends]

[sm type begins]In 1925 the Dawes Plan was followed by the Locarno Pact. The latter, which was in the first place a political insurance scheme of international finance against the risk contained in the granting of loans to Germany, indeed in a certain sense connected the interests of the Western Powers with Germany’s economic payment obligations and compelled them to extend a respite to Germany and also gave her, through her more or less compulsory admission to the League of Nations, the basis for her eventual struggle for the recognition of equal rights; it meant however, on the other hand, the repetition of the discrimination against Germany by the repeated recognition of all military and political obligations imposed upon her at Versailles. Meanwhile German economy indeed appeared to flourish again as a consequence of the capital pouring into Germany under the Dawes Plan; this economic prosperity, however, turned out after a short time to be sham prosperity. Another period of tremendous unemployment set in, one factory after another was forced to close down again, the standard of living constantly decreased, poverty became worse and worse.[sm type ends]

[sm type begins]The distress of wide circles of the population and the impossibility of complying with the German payment obligations became constantly more obvious. Instead of helping Germany, however, the Western Powers submitted a new plan at this moment of extreme distress, the so-called Young Plan, which indeed brought with it the evacuation of the Ruhr, although no alteration of the discriminating conditions of the Versailles Treaty, but the imposition of immense yearly reparation payments up to the year 1966. In order to protect Germany from a catastrophe, the German Government was compelled to accept this plan.[sm type ends]

[sm type begins]Not only a complete revolution of the economic structure, but also a revolution of the sociologic structure was taking place within the German people under pressure of all these events attended by their difficulties. What had already been proclaimed in World War I, and had found a definite shape during the years of the inflation, now became conspicuous and grew into a decisive factor of further development. The majority among the independent middle class and the larger part of the bourgeoisie were gradually becoming proletarian while the working classes partly sank more and more to the bottom of the social order because of increasing unemployment; property was held only by a small and dwindling part of the people. Through this revolution in social conditions and class contrasts, the difference between the bourgeoisie and the working class was practically eliminated and a large community with a common destiny grew out of the distress of the times, in which all parts of the people found themselves united.[sm type ends]

[sm type begins]This fusion of the upper and lower classes, which had hitherto been separated from one another, produced a state of mind in which the concept of racial community was innate and the inner contrasts and distinctions of which were conditioned more by participation in politics than attitude to the latter. These contrasts, this contrasting attitude toward politics culminated in two ideas, that of nationalism and that of international Communism. And here Hitler, and the NSDAP with him, began that struggle for the soul of the German people in which he took a resolute and purposeful stand in the struggle for the national idea against the international communist idea. In this struggle, which was started by him immediately after the occupation of the Ruhr with all propagandistic possibilities and by fully exploiting his indisputably extraordinarily suggestive influence on the masses, it was precisely the Western Powers, with their policy of confining the German people in ever closer bondage and driving it into ever greater distress, who furnished him his keenest weapon.[sm type ends]

[sm type begins]With this weapon, he succeeded in rekindling the national idea in more and more circles of the German people, so that in the Reichstag elections of 14 September 1930 the NSDAP was already able to figure in the Reichstag as the second strongest party. These elections showed two things of singular significance: First of all, the will of constantly expanding circles of the German people to re-establish its honor and equality in the council of the nations, the will to live of a people who for 12 years had been suppressed and humiliated in its most elementary feelings and had been gagged and threatened in its existence. However, they also showed that a large part of the people had become tired of the eternal party strife in the Reichstag and the Government and were longing for a leader to lead them out of the threatening chaos, and that this large part of the people regarded Hitler as the leader.[sm type ends]

[sm type begins]However, once again the Western Powers failed to recognize this signal. They forgot, or did not want to acknowledge, that the fundamental physical law that every living force, if subjected to pressure without an outlet, will explode the shell around it, also applies to the life of the nations, because the nations also represent a living force. They forgot this, although in their own history they had excellent examples for the correctness of this thesis: the French people in their great Revolution, the English in Cromwell. Instead of obeying this law, they continued without change in their previous policy. They replied to the elections of 14 September 1930 by withdrawing the credits granted to Germany, and France obstructed all attempts of the German Government to obtain any kind of mitigation in the economic and political fields.[sm type ends]

[sm type begins]In view of the limitation of time for their final pleas, to which the Defense have been subjected, I must desist from describing the results of this policy more closely; and I must limit myself to the statement that the need of Germany became constantly greater, while conditions in Germany were gradually becoming intolerable. No one who has not personally lived through it can quite imagine what conditions were like inside Germany at that time, and what appalling distress, what atrocious pressure assailed her. Germany at that time was literally suspended over the abyss because, in addition to the struggle for her very existence, there was the struggle for the inner change of form of the people, the struggle over the question whether the majority of the German people was willing to surrender itself to socialism on a national basis or a millenial international Communism.[sm type ends]

[sm type begins]To this question the German people first of all replied by re-electing Reich President Von Hindenburg on 13 March 1932 and finally, when even a man like Brüning no longer succeeded in forming a capable government majority from the parties of the Reichstag, by the Reichstag elections of 6 November 1932, from which the NSDAP emerged by far the strongest party of the Reich. Almost one-half of the nation had thereby uniformly expressed that it was tired of eternal party disunity, that it longed for a strong leader who was to save the German people from all its want, to tear it away from the abyss, and to lead it toward a new future.[sm type ends]

[sm type begins]Since on the other hand, however, the Communists also had achieved a great success in the elections and prepared for an open battle for power, Hindenburg saw himself confronted by the choice of either appointing Hitler Reich Chancellor as leader of the strongest party or of proclaiming military dictatorship. The latter, however, would have meant civil war. After a severe inner struggle, Hindenburg, in accordance with the democratic basic principles to which he was pledged, decided to appoint Hitler Reich Chancellor and thereby saved the German people from a civil war.[sm type ends]

[sm type begins]Thus, and in no other way, did the seizure of power in the German Reich through Hitler and the NSDAP take place. History in its logical development was uncompromising as always. The reason for Hitler’s appearance and his rise to power lies after all in the Versailles Treaty, which put the German people into intolerable chains which no people on earth could endure in the long run. It was the tragedy of Germany and of all Europe that the victor powers of Versailles refused to consider this, and instead of recognizing the unnatural condition which had been established in Versailles with its unavoidable results, proceeded to aggravate them more and more in the course of the years. Let it be said here in all frankness that it is not only the German people who bear the guilt for Hitler’s appearance but, if in history one can refer to any guilt at all, to an equal extent the effects of the Versailles Treaty. All nations on earth, as long as they harbored a spark of the will to live and strength of life within themselves, have always in days of the deepest need and dishonor produced men who, chosen by history, have risen to be leaders out of such misery by their very personality and by their ability to carry away the masses. The great tragedy of the German people lies in the fact that here was a man who did not spring from the authentic and genuine German race, did not incorporate in himself the true character, the true disposition of the German people, but was a stranger whose origin and descent is still wrapped in mystery. But at that time, in those fateful days, he must have appeared as the only one who could lead the German people from chaos to a new life, and who through the circumstances and the will of the people obtained the force and power to do so. The power of attraction of Hitler on the masses was all the greater since behind him stood the towering shape and nimbus of Reich President Von Hindenburg, who had already almost become a myth. But it must be pointed out with emphasis, in the interest of truth and for the honor of the German people, that at the first new elections after the assumption of power by Hitler the Party did not succeed in obtaining the absolute majority in the Reichstag, rather that about half the electors still followed the democratic spirit of their old parties, which proves how deeply rooted the democratic idea already was in the German people.[sm type ends]

[sm type begins]Hindenburg’s authority also backed up Hitler’s governmental actions which now followed, which from his point of view aimed logically and consistently at helping his state leadership to lend the maximum vigor and strength to his fight against the forces of decomposition still existing in the country, as well as in the struggle for economic and political freedom. Without such strong and uniform state stewardship this struggle was not feasible. This was proved by the experiences of the postwar period. It was therefore not only a consequence resulting from the personality of Hitler, even though he did endeavor to collect for his state stewardship all the forces inherent in the people for the approaching fight for their existence and then to agree, with the consent of the President of the Reich through the democratic Constitution of a freely elected Reichstag, to the so-called Enabling Act of 23 March 1933, whereby he obtained the sanction of the Cabinet to the so-called Conformity Act of 7 April 1933. Both laws served Hitler’s ambition to enable the Government to enlist all the necessary national strength in the coming fight for existence. The law concerning the unity of State and Party, as well as the dissolution of all other parties, served the same purpose. As a result of existing conditions all this was due to the demands to eliminate all internal disturbances and thereby give the Reich Government a free hand in its fight against economic distress, and at the same time to regain for Germany a fitting place in the council of nations. This demand explains also the establishment of the Secret State Police to deal with the combating and eliminating of underground Communist agitation.[sm type ends]

[sm type begins]The majority of the German people, above all the youth, lacked, besides any experience whatsoever, also the faculty to judge at that time the future extent and possible development of these measures. Above all it was the youth which in its distress rejoiced in Hitler as the longed-for leader and followed him with blind confidence as the man who was to deliver it from all unnatural shackles and all shame. Gerhart Hauptmann, the well-known German poet and great authority on national traits, who died recently, wrote a sentence in what is perhaps his profoundest psychological book Der Narr in Christo (The Fool in Christ):[sm type ends]

[sm type begins]“Nature’s greatest social unifier is always a common image of phantasy as is well known to those who wish to establish an orderly unit out of a multitude of people. Such state-building oppressors and dominating types make use of those men who, endowed with a fanatical imagination, believe in, further, and carry out their dreams, and thereby erect for the masses a common shrine for which, for long periods of time, no sacrifice is too costly.”[sm type ends]

[sm type begins]How much more must the truth of this quotation hold good with a nation which, as I have attempted to show, throughout its entire history has always been accustomed to be led, which practically never directed its own fate, which for 15 years had again and again been disappointed and had had to lose all hope that the other states would come to its aid. All the more did it approve this strength of the state leadership since it was tired of the constant party conflicts and, undisturbed by further internal fights and upsets, only desired to devote itself to the re-establishment of its economic existence. In its blind confidence, it had as yet not recognized that through government measures it could in future itself be placed in shackles, that it could itself be deprived of the possibility of taking a stand against a state leadership which was repugnant to its innermost feeling. At first confidence in Hitler was still confirmed and strengthened by the undeniable fact that Hitler succeeded in restarting the economy and banishing the specter of unemployment, for in the short span of one year Hitler had already succeeded in giving work and bread again to almost 2 million unemployed. And if these successes were partly made possible by recommencing armament and other public works, he did not promote any of the formerly somewhat belligerent desires and impulses of the German people, but met only a craving for military spectacles which had been present in the German people since olden times, together with a certain inferiority complex. General Smuts recognized this absolutely correctly in his speech before the Royal Institute of International Affairs on 12 November 1934, when he said:[sm type ends]

[sm type begins]“We are continuously told what is going on on the opposite side of the Rhine, on the subject of the secret armaments. It probably is nothing else but the consequence of an inferiority complex. It is not real militarism, but these are military stimulants for the masses. This wild behavior creates a blessed feeling of satisfaction and relief in those who consider themselves inferior or humiliated by their neighbors across the Rhine.”[sm type ends]

[sm type begins]So the German people enjoyed the military rights offered to them, not out of the belligerent impulses attributed to them by the Prosecution or even from a wild desire for aggression dormant in them, but simply because of joy in the spectacle and out of an instinctive feeling which the founder of modern historical research has expressed as follows:[sm type ends]

[sm type begins]“The national consciousness of a great people demands a suitable position in the world. Conditions abroad do not form an empire of convenience, but of essential power. The respect of a state will always correspond to the development of its interior powers, and each nation will resent not seeing itself in the place befitting it.”[sm type ends]

[sm type begins]And now these people, who had languished under this instinctive feeling of inferiority up to the seizure of power by Hitler, saw how suddenly, as if by magic forces, one discriminating chain of the Treaty of Versailles after the other dropped under Hitler’s leadership, and how Germany was about to regain her place in the family of nations, which she had had to forego for such a long time. Does it not actually almost resemble a miracle how the foreign policy conducted by my client succeeded in cleverly exploiting the foreign political constellations and incidents which occurred in the period of the following years, and how it succeeded by peaceful ways and means in removing, one after the other, all the regulations of the Versailles Treaty which gagged Germany in her foreign political position; the Western Powers who had up to that time insisted upon exact compliance with the most unimportant regulations of the Treaty of Versailles, now tolerated everything quietly and could not rise above protests on paper. Is it not actually almost grotesque that from 1933 on the same people who in former years had retaliated against the slightest nonfulfillment of the obligations of the reparations by a democratically governed Germany with military means, like the occupation of the bridgeheads on the right side of the Rhine and the occupation of the Ruhr area, suddenly reacted only by meaningless protests to measures on the part of Germany which they presumably considered violations of the most important treaties, like armaments and the remilitarization of the Rhineland, and that they did not even think of offering serious resistance? But did this not also necessarily tend to increase Hitler’s national popularity, his respect among the large masses, their readiness to follow him and their faith in him, and to make the people blind toward the measures applied within the country, which were gradually becoming more and more severe, toward the gradual throttling of cultural, artistic, and intellectual liberty, the free expression of opinion, and criticism, and toward the anti-Semitic measures. Even the bloody incidents of 30 June 1934 were hardly able to affect this attitude, and in some respects resulted in the contrary. For after the extremely clever explanation which Hitler gave them, these things could not but appear to the people as a purely internal affair of the Party which served to purge the Party from impure elements, and were not only bound to strengthen confidence in him, but also to remove any doubts and misgivings about him and his authoritarian state leadership, which had already arisen here and there. And the fact that the murder of high-ranking generals did not arouse any reaction whatsoever in the people actually only proves how little the attitude of the people was militaristic. Although in this Trial the Prosecution reproaches the entire German people with such emphatic indignation for not having revolted and risen up unanimously against this restraint and enslavement, the excesses and frightfulness of the concentration camps, against the persecution of the Jews, the following must be made clear with all emphasis: The gagging of cultural and intellectual liberty primarily and chiefly affected the upper class intelligentsia, which were relatively weak in number in relation to the entire population, and it was therefore hardly felt by the total sum of the people, because on the other hand Hitler took care to a very great extent to satisfy the needs of the masses by popular and inexpensive, in many cases free, theaters and movie performances and concerts, by the presentation of public dramas, and by other arrangements. What consequences the gagging of the intellectual upper class was bound to have, was not and could not be readily realized by the great masses, because they were kept completely busy with their work and the manifold other diversions.[sm type ends]

[sm type begins]But with respect to the concentration camps and the cruelties committed in them, I consider it my duty to state once and for all, for the honor of the German people: It is not true that the great majority of the German people, up to the last period of the war, had any knowledge about what was going on in the concentration camps. An assertion to the contrary can only be made by someone who has no idea of the actual conditions in Germany, about the cunningly devised system of keeping conditions in the concentration camps, and even the existence of most of them, a secret. After all, how could it have been possible for larger groups of the people to have learned about the conditions in the camps? The Prosecution itself has tried to prove here that only a very small percentage of concentration camp prisoners were set free again, and those who were set free had to bind themselves in writing, under threat of capital punishment, to keep absolutely silent about their experiences during their imprisonment. They knew that if they violated these obligations and the Gestapo became informed of the fact they would forfeit their lives. I have myself been faced in my practice with a number of liberated concentration camp prisoners, but I have not been able to induce any one of them to speak and it was the same with many others. And if one or other of them did tell anything, his audience was careful not to repeat it, because they knew that they incurred inevitable arrest and internment in a concentration camp if the Gestapo should become informed of the fact. When in the course of the war particulars concerning concentration camps slowly transpired, most German cities were already under the hail of Allied bombs. It is admittedly only too human that faced with the horror of daily air raids the populace should have harbored no thoughts for the fate of concentration camp internees, but rather for their own fate and that of their kinsfolk, and for sheer life, for existence. And lastly, let me ask you, Gentlemen, who should have revolted, who should have risen up with violence against the domination of Hitler and the Party? Since the outbreak of war, since the autumn of 1939, the flower of the male population was under arms and fighting a hard battle at the front. A revolution cannot be made by children, women, old people, and more or less disabled or feeble men. And who was going to take the initiative, who was going to lead it? No revolution has ever yet been carried out by leaderless masses. Always and everywhere there must be leadership to guide and lead the masses and manage them. A levée en masse, especially when undertaken by an unarmed populace against an armed and organized power, is as doomed to remain a hopeless issue in the internal sphere as it is in war. The hopelessness of a popular rising or revolt is clearly conveyed by the fact that the conspiracy of 20 July 1944 failed, long prepared as it was with every conceivable precautionary measure, by real leaders enjoying wide popular support. The fact of this conspiracy alone, however, proves one thing: that the French prosecutor, M. De Menthon, is not right when, in his very brilliant and interesting address on 11 January 1946, he represented the abhorred National Socialist ideology and its glorification of race and German racial superiority over every other nation on earth as the expression and supreme product of the German mind and of its true nature, and names Fichte and Hegel as heralds of this development: Fichte, one of the greatest and noblest champions of Christianity, Christian ethics, and morals, is worlds removed from this National Socialist ideology. And how can anyone so much as name such an ideology in the same breath with Hegel, whose philosophical system was perhaps the most idealistic of all systems, who saw in the state the union of every moral force and purpose, to whom the state appeared as the materialization of the notion of morality in a manner reminiscent of the antique ideal, as something divine on earth. And the French prosecutor forgets that it was the German nation which produced a Kant, whose imperishable doctrine of the categorical imperative, except for Christian ethics, is probably the profoundest and most august expression of the moral principle of all times. Arid he is mistaken when he brings Nietzsche, the unique thinker who stands alone in the whole German spiritual universe, and his longed-for superman, into any relation whatsoever to the ideology of the National Socialist leaders. He also is worlds removed from them. No, Gentlemen, these spiritual heroes of the German nation have nothing in common with Nazi ideology. The latter stands, in truth, in the sharpest contradiction to real, genuine German thought and sentiment, the real character and dispositions of the German nation and, most of all, its attitude toward the other nations of the world. For this nation has never assumed itself to be better or more august than other nations. Neither was it ever possessed by a desire to destroy other nations. It is, above all, ignorant of hatred and revenge. The great tragedy of the relations between the German and the French nations is precisely that the latter has always refused to understand that the German nation has not, like France from the war of 1870 to the World War, been possessed by the thought of revenge, nor obsessed, even after Versailles, by the reconquest of Alsace-Lorraine. The idea of Pan-Germanism, of the Greater German Empire, has never, even in the period of greatest enthusiasm for Hitler, stirred any echo in the German nation despite the undeniably kindred example offered by the Pan-Slavic doctrine and its enthusiastic reception by the Slav populations. And these very ideologies, preached by the spiritual leaders of the Party, immediately determined and fortified the opposition, first in the intellectual circles and classes of the German nation and then in other classes and in the very ranks of the Party, as a result of further constraints and limitations of personal freedom. For those reasons the nation in its overwhelming majority was by no means inflamed by the war initiated by Hitler in the summer of 1939. What the nation’s frame of mind was like as early as the autumn of 1938, I take the liberty of illustrating for you, Gentlemen, by a minor personal experience on 25 or 26 September 1938.[sm type ends]

[sm type begins]I happened, on this day, to have my car held up in a street leading to one of the large thoroughfares running south out of Berlin, because the whole street was jammed with vehicles. When I asked a common woman of the people, who happened to pass by, the reason for the traffic jam, she answered, “They are going to war down there,” with such an expression of abysmal despair and horror that I was chilled. Such, was the attitude of the population toward war, an attitude likewise evidenced by the fact that the departing troops were by no means hailed and cheered by enthusiastic crowds, but were gazed at with dull, frightened eyes. And if you ask me why the nation did not then rise up and revolt, you will find the explanation in what I have said before. As a nation accustomed to be led and to centuries of obedience, the German nation followed once again the order of the leader which it had raised to power. As a nation slowly but surely fettered by this leadership, it had likewise no possibility of a spontaneous, unprepared and unguided uprising against its leaders. Such a contingency could only occur as the pressure of war became ever more stringent, and when conscientious men in leading positions concurred in the attempt by slow and determined work, in order to put an end to the folly of Nazi domination and resulting war, and to save the German nation from an otherwise certain catastrophe. Nevertheless, Providence denied success to the attempt. But, I repeat, the very fact of the attempt, its support by wide circles of the nation and even of the Party, definitely proves that the Nazi ideology, which clearly governed politics since 1938, was neither in keeping with the real character of the German people nor with their nature, talents, soul, and mentality; neither was it engendered by them, but rather it was foreign and naturally opposed to them.[sm type ends]

[sm type begins]But there were not only the men connected with 20 July 1944 who had striven to do away with Hitler and the whole National Socialist domination. There were other men who were determined to reach the same goal, if by different methods, and had already taken the first steps to that end. As you heard in witness Ströhlin’s testimony, the Defendant Von Neurath was one of them. How could it have been otherwise with this offspring of an old family which has given many a trustworthy civil servant to its Württemberg home; whose whole life, inspired by the spirit prevailing in his family home, has been filled with the most ardent patriotism and devotion to his nation, whose entire aspirations were directed toward the exclusive purpose of placing all his strength and all his power, all his talents and capacities, at the service of his nation’s welfare, and to subject and, indeed, sacrifice his personal interests to it.[sm type ends]

[A recess was taken.]

DR. VON LÜDINGHAUSEN: Born as a scion of an old family which gave its small home state Württemberg so many loyal high government officials, the Defendant Von Neurath grew up with a simple and strict education in a parental home filled not only with a real Christian spirit and true love for mankind, but also with an ardent, devoted love for his German people and fatherland. From his tenderest age and during his entire life his thoughts and actions had implanted in him the desire and will, the holy duty, to place all his powers, all his ability, all his gifts and capacities at the service of the welfare of his people, to subordinate and even sacrifice all his personal interests to this. But, and this must certainly be emphasized in this place, aside from this aspiration there was alive in him and woven into his being in an equally strong degree a deep religious feeling, love of the truth and love of mankind that made him from the beginning adverse to the use of any form of violence against his fellow men not only in his private life, in his relations with his fellow men, but which ruled rather to the same extent his entire official activity, even after the Treaty of Versailles. His acts bore the stamp of this feeling and it became the law governing his official dealings as a representative of the Reich in other countries, as well as Foreign Minister and lastly as Reich Protector of Bohemia and Moravia.

Not only by his conciliatory amiability, his skill and demeanor, so understandable in a man of his origin and education, but also primarily through the love of peace and sincerity which permeated all his actions as a diplomat and statesman, he won the unlimited and sincere respect and sympathy of all people with whom he came into contact the world over, even of his political opponents. As unequivocal proof of this fact, the truth of which, Your Honors, may be confirmed by your own diplomats, it will suffice to refer to the fact that, as you know from the sworn affidavit of my client, King George V and King Edward VIII of England received the defendant in private audiences on the occasions of his presence in London in 1933 and 1935; that the British Government in the summer of 1937 and again in 1938, when he was no longer Foreign Minister, invited him to visit England for political discussions, and finally, that on his sixty-fifth birthday on 2 February 1938 the entire diplomatic corps called on him to congratulate him and to express through Monsignore Orsenigo, who at that time was doyen, its thanks and its appreciation for the reasonable and understanding manner in which he always discharged all his duties. Do you, Your Honors, credit your own diplomats and statesmen with so little knowledge of human nature, so little experience and knowledge of the world that in the course of the defendant’s 6 years’ activity they would not have found out, if the assertion of the Prosecution were true, that Herr Von Neurath had knowingly let himself and his good reputation be used as a covering shield by the Nazis, and that all his statements and assurances as Foreign Minister were mere camouflage, that is to say, a deliberate deceiving of the whole world?

In this connection, it may well be pointed out as quite obvious that such old and experienced democracies as England, America, France, as well as the Vatican, had delegated to the post of Ambassador in Berlin, the most important post at that time, their cleverest and most experienced diplomats. And I am tempted to assume that the Prosecution possibly did not realize quite clearly what a dubious compliment they paid to their own diplomats by their assertion about the defendant, when they produce in proof of this assertion only the highly fantastic report of the American Consul Messersmith. I am moreover unshakably convinced that you, Your Honors, based on the very reason of your long judicial experience, have far too much knowledge of human nature not to see at first glance that my client, by his entire personality is absolutely incapable of such a perfidious and untruthful way of acting, let alone capable of play-acting to such an extent that for 6 long years he could have fooled the ablest and most experienced diplomats in the whole world. A man like the defendant, who for 60 years has led an honorable and absolutely decent life, would never in the world at the end of such a life have lent himself to such a disavowal and negation of all that he had so far held highest. That would be contrary to personal experience.

And on the same level stands the Prosecution’s assertion that the Defendant Von Neurath, by joining and remaining in Hitler’s Cabinet, served as a fifth columnist in the conservative circles of Germany for the express purpose of winning them over to National Socialism. This slandering of the defendant which, moreover, was brought forward without any attempt of proving it, is contradicted by the sworn statements of all witnesses and the affidavits submitted, which unanimously state that the resignation of the defendant from the office of Foreign Minister was viewed in just these circles with the greatest dismay and concern, because these circles considered that this withdrawal of the defendant from the Government was in itself a sign that from then on his pronounced peace policy would be replaced by another more belligerent tendency in foreign policy, which was quite rightly considered as a national calamity. For, like everybody else, they shared the conviction of Reich President Von Hindenburg that Herr Von Neurath was the exponent of the peaceful foreign policy of the Reich and the guarantor of a consistent continuation of this peace policy against any possible, undesired aggressive experiments by Hitler and the Nazi Party and that for this reason the Reich President stipulated that the defendant should remain in the Cabinet as Foreign Minister when Hitler was called to the Reich Chancellery.

This fact is confirmed beyond doubt by the sworn statements of all the witnesses heard, as well as by the carbon copy submitted by me of the letter of the witness Dr. Koepke of 2 June 1932 to Ambassador Rümelin, Neurath Document Book 1, Exhibit Number Neurath-8, and the affidavit of Baroness Ritter, Neurath Document Book 1, Exhibit Number Neurath-3.

But the latter proves also at the same time how unwillingly and after how long a struggle the defendant finally decided to accept this call and, therefore, supports the defendant’s own sworn statement that he only decided to do so after the Reich President, whom he so highly venerated, appealed to his love for his country and reminded him of the promise he had made 2 years before not to leave him in the lurch whenever he, the Reich President, needed him.

There is certainly no need for further proof for the utter emptiness and inaccuracy of the further assertion of the Prosecution, also submitted without proof, that the defendant had used his position, his reputation, his connections, and his influence to lift Hitler and the Nazi Party into the saddle, and to help them to secure supreme power in the Reich. Therefore, I hardly need to refer again to the statements of the Defendant Göring and other witnesses, particularly Dr. Koepke, from which it appears beyond doubt that at that time there were absolutely no relations between Hitler and the Nazis and the defendant, and, therefore, even less could the defendant have taken any part in the negotiations which took place before Hitler’s call to the chancellorship.

Love for his country, a strong sense of responsibility, deepest concern about the weal and woe of his people and his promise not to leave Reich President Von Hindenburg in the lurch in this time of need, these were the only reasons which moved this man to leave the post of Ambassador in London he had come to like so much, to assume the office of Foreign Minister of the Reich at that critical and fateful hour, and to accept the task assigned him by the President of the Reich to continue to guide the foreign policy of the Reich in a peaceful manner, even perhaps against the will of Hitler.

The Defendant Von Neurath can claim rightly that he carried out this grave task at all times with all his strength and with the full allegiance of his personality, even after the death of Reich President Von Hindenburg, up to the time he was forced to admit that this task was beyond his strength, that Hitler no longer let himself be influenced by him but had decided to pursue a line of foreign policy along which the defendant, owing to his inmost convictions and his personal point of view, could not follow.

Up to 5 November 1937, the date of the famous speech of Hitler to the commanders of the various branches of the Armed Forces, the Defendant Von Neurath remained at his post, in the most faithful performance of his promise to the Reich President Von Hindenburg, even after the death of the latter. By reason of this loyalty to the deceased Reich President, he endured the odium, in many cases concerning Hitler’s domestic politics, of having been compelled as a member of the Reich Cabinet to allow in silence things to happen which were contrary to his own convictions, which did not agree with his views and even were in direct contradiction to them. It was not in his power to prevent them. So he was forced to be satisfied with trying as far as possible to mitigate their effects and consequences, as you could see from the affidavit of the Bishop Dr. Wurm, Neurath Document Book 1, Number 1, and the statements of the other witnesses heard in this connection.

The reproach of the Prosecution that he did not make such cases an excuse to lay down his office of minister, but that by remaining in office he had consciously approved and abetted them, is entirely irrelevant. The first law governing his actions was the carrying out of the duty assigned him by President Von Hindenburg, to secure the continuance of the Reich’s peaceful foreign policy. He would have broken his word had he resigned his post as Foreign Minister before this was accomplished or before there was no possibility of its accomplishment. What person thinking objectively could bring himself to reproach him regarding this, or even identify him with the Nazis, as does the Prosecution?

But this attitude of the defendant, however, is the only reason why he did not refuse, as did Minister Von Eltz-Rübenach, his nomination to the rank of honorary Gruppenführer of the SS in September 1937 and the presentation by Hitler of the Golden Party Badge at the cabinet session of 30 January 1937, which facts are made a reproach by the Prosecution and a proof of his alleged National Socialist sentiments. For as the statement of the Defendant Göring indicates, such a refusal by the Defendant Von Neurath, as was the case with Von Eltz-Rübenach, would have been resented by Hitler as an act of rudeness which would without any hesitation have been answered by the immediate dismissal of the defendant. But this was just what the defendant wished to avoid, for at that time he was still in a position to carry out to the full extent the task assigned him by the President of the Reich—to be the guarantor of peace in the foreign policy of the Reich, because he was fully justified in his conviction that his influence over Hitler was still strong enough to insure his agreement with the peace policy he was then fostering.

The evidence submitted proves beyond doubt that in both cases it was not a question of actual membership of the SS and the Party, but only a matter of uniform, an external whim of Hitler in regard to the men of his retinue during Mussolini’s impending visit; and secondly, it was a matter of a visible recognition for the services rendered by the defendant as Foreign Minister, which at the same time implied a proof of the unlimited agreement of Hitler with the peaceful foreign policy followed by the defendant—in other words, an entirely normal awarding of decorations as is practiced in every state. The conferring of decorations in the ordinary sense was not yet possible because at that time they did not yet exist in the Third Reich. That the defendant in both cases nevertheless expressed at once that under no circumstances did he wish to proclaim his entry or admission into the SS or the Party by accepting this decoration, intended by Hitler as a mark of honor, has been proved by his affidavit. Moreover, he never took the oath required of a member of the SS; he never exercised even the slightest activity in the SS and wore the SS uniform only twice in his life at Hitler’s explicit request. This has also been confirmed by his affidavit.

Both cases actually concerned a personal sacrifice of the defendant to the promise he had given Hindenburg. If the Prosecution consequently believe it must infer from these two incidents a National Socialist conviction from the defendant’s agreement with Hitler’s ideas and his entire governmental system, it has altogether missed the mark. And the conferring of the Order of the Eagle supports the Prosecution’s assertion even less. For this Order was not conferred on him nor on the Defendant Ribbentrop as a personal distinction for services rendered, but it was merely conferred on them in their positions as Reich Minister for Foreign Affairs and Reich Protector as such. This was done in order to give this Order, which was intended to be conferred on foreign personalities only, a special significance in the eyes of people abroad, which is even shown by the fact that it had to be returned by the defendant when he resigned.

The presentation of evidence, through the affidavits of all the witnesses examined in this connection, unequivocally resulted in the fact that the defendant’s attitude toward the National Socialist system and its maxims were negative from the beginning to the end, and that, therefore, certain Party circles continually bore him ill will and opposed him. For these circles knew quite well that the Defendant Von Neurath, as is proved by his own statement and by those of the witnesses Dr. Koepke and Dr. Dieckhoff, energetically and successfully opposed to the last day all attempts to introduce members of the Party as officials into the Ministry of Foreign Affairs, and in so doing, open it to Nazi influences; and that in spite of various intrigues he could not be dissuaded from his definite peace policy. On account of his inviolable sense of responsibility and his patriotism, the defendant also took upon himself this enmity and these intrigues, endeavoring only to conduct German foreign policy along those lines, which were prompted by his convictions, formed by long years of successful diplomatic activity. He was fully convinced that when he resigned his office it meant the collapse of the last bulwark against the infiltration of members of the Party and of the Nazi spirit into the Reich Ministry of Foreign Affairs. It also meant that the danger of renouncing the peace policy embodied in his policies was imminent, which indeed came true on his resignation on 4 February 1938.

It was therefore for the defendant the bitterest disillusionment in his official life when he was forced to recognize in Hitler’s speech on the ominous day of 5 November 1937 that all his efforts, his entire struggle, all his personal sacrifices during the last 5 years appeared to be in vain and that his influence with Hitler was broken, that the latter had decided to abandon him and the policy of peace and agreement advocated by him, and, if the occasion arose, to make use of military means in order to carry out his more than Utopian plans set forth in this speech. The recognition struck him like a bolt from the blue, since up to then nothing had intimated that Hitler might no longer agree on the peace policy advocated by the defendant. The heart attack which he had the next day may testify to the fact how seriously he felt this blow, which seemed to shatter all his hopes, all his efforts to protect German y from the dangers of this foreign policy, from military entanglements, and a possible, nay probable, catastrophe.

But in consciousness of his responsibility, his burning concern regarding the future of his people, before drawing the last self-evident conclusions and resigning, he considered it his duty to try once again by a very detailed and serious conversation to dissuade Hitler from persevering in his fatal plans and intentions. Yet, having to recognize from this conversation that Hitler’s decisions were unalterable, he did not hesitate for one instant to tell Hitler that he had decided under no circumstances to take part in this pernicious policy, and that for such a foreign policy Hitler must find another foreign minister. Hitler accepted his resignation by his letter of 4 February 1938.

I ask you, Gentlemen, is there a more unequivocal and clearer proof than this resignation to show the absolute inaccuracy, the entire hollowness of the charges made against my client at this Trial of having assisted or having wished to assist by his foreign policy in the planning and the preparation of wars of aggression which took place one and a half years later? Is there a more unequivocal and clearer proof of the absurdity of the application of the principles of conspiracy to the acts and deeds of statesmen and, in particular, of the defendant? Finally, is there a more unequivocal and clearer proof of the absurdity of a retrospective judgment of the policy of states, constituting as they do here one of the main bases of the whole prosecution?

All of you, Gentlemen, who are here to do justice, know from your own activity and experience at least as well as I do, how dangerous conclusions a posteriori are regarding the actions of a man, regarding the thoughts, views, and deeds of this man, several years removed in time. Tempora mutantur et nos in illis. Each of us has surely experienced the truth of this sentence more than once in his life. Convictions and views, intentions and resolutions, which we have held and carried out at a certain time, have in the course of years become changed and altered, partly because of the transformation of one’s own personality, partly because of exterior circumstances, or change of conditions. Does one really wish to expound this thesis and draw a conclusion retrospectively, that the former views, assertions, and actions were only camouflage, and that the person already intended to do and was determined to do what he did years later under quite different circumstances? Why should you demand a different standard of a politician, a statesman? He, too, is only a human being and is subject to the same changes of ideas, opinions, and intentions as others. He is even more acutely subject to exterior influences, exterior conditions, to certain imponderable circumstances than the ordinary man. Just one example for this: What would you say to a man who would dare to assert in earnest that Napoleon Bonaparte, when he went to Paris during the great revolution, or later on when taking over the supreme command of the French armies in northern Italy, already had the plan or even the intention of making himself in 1804 Emperor of the French and of marching on Moscow in 1812? I believe that whoever adopted this attitude would stand alone in the world. And an able dialectician with more or less apparent logic and justice could still base this opinion on the historical development of events, like the Prosecution with regard to their opinion that Hitler, at the time of his assumption of power, yes, already with the presentation of the Party program in 1920, had not only the intention but even the plan ready for conducting his later wars of aggression, and everything which Hitler and the Nazis or his collaborators did, from the very moment of the assumption of power, both in domestic and foreign politics, was the conscious preparation for those wars of aggression.

Your Honors, I believe whoever follows the Prosecution and their principle, which still stands on a very weak basis, and their retrospective consideration of things, overrates too highly the spiritual and statesmanlike abilities, not only of his satellites but also of Hitler himself. Because, after all, it is in any case already evidence of a certain mental limitation if a person, and particularly a statesman, founded his policy on the basis, as Hitler indisputably did, that the governments and statesmen of the remaining states would again and again let themselves be fooled and bluffed by the same methods, that they would again and again stand for actions which they considered to be violations of treaties, and that they would watch quietly until Hitler believed himself to be ready to attack the whole world by force of arms. And is it not all the more proof of a mental limitation if a statesman in this way underestimates the abilities, astuteness, and the weapons of his opponents as Hitler did? In addition to all this, however, there is something which must not be underestimated either; that is Hitler’s desultory way of thinking and the thought processes resulting in snap decisions. I do not consider it necessary to have to give you any further evidence of these, as they are generally well known. Hitler, however, was also a man who did not stand for any argument or any resistance, and who on encountering obstacles which he could not remove by an emphatic word, forthwith changed his plans and intentions and made contrary decisions, the very opposite of those he had formerly cherished.

All this speaks against the intention of planning and preparing wars at the time of the seizure of power, or even in previous years, which the Prosecution have ascribed to Hitler. The impossibility of this charge is further apparent, if one considers the following: It is indisputable that Hitler not only testified his love for peace in public speeches, addresses, and diplomatic notes on several occasions from the day of the seizure of power until 1937, as can be seen from documents presented by me, but he also made positive suggestions for the practical limitation of armament of all states, including therefore Germany, from which it can be readily seen that he declared himself satisfied with a reduced land and air power in proportion to the others, which from the very beginning excluded any aggressive war against the other states. And now just suppose that one of these offers of Hitler had been accepted by the remaining states, then the war of aggression which Hitler supposedly had been planning and preparing for years would never have been possible. All efforts, work, and expenses in connection with it would have been in vain. Or do you perhaps consider it possible that Hitler looked ahead and figured that his offers would be refused, and that he only made them in this realization? Then he would really be an almost demoniacal genius, a prophetic seer of the first rank. Do you really wish to assume from it the claim of the Prosecution that aggressive war of the year 1939 had been planned a long time before the seizure of power? And even if you should answer this question in the affirmative for the person of Hitler, do you also ascribe such a gift of second sight to his collaborators, his servants, yes, even all Party members? To ask this question is to answer it in the negative. With this question alone also falls the painfully constructed and artificial structure of the motivation ascribed by the Prosecution. And along with it falls also the classification of the whole charge, and in particular the coresponsibility of all collaborators of Hitler generally under the conception of conspiracy, at least until the period of time when it could be recognized by the most extensive circles of his followers that Hitler finally wanted war and had decided on it. Simultaneously with this, however, the unconditional accuracy of the postulate advanced by me at the beginning of my statements becomes evident after examining the subjective joint guilt of every single defendant, after the denial of the coresponsibility of each individual only from the fact of his participation in the actions which are considered as preparations for a war of aggression by the Prosecution at any period of time, simply without examination and investigation of his knowledge of Hitler’s aims and intentions. To disregard this postulate, as the Prosecution do, would be to contradict every sense of justice, the most primitive as well as the most highly developed, in every nation on earth. The summum jus sought in this Trial would become a summa injuria.

The best evidence of the truth of this assertion is personified by the Defendant Von Neurath himself. Is it not pure folly, is it not summa injuria to accuse this man of connivance in planning and preparing wars of aggression, this man who deemed it his exclusive duty, a duty to which he has made great personal sacrifice, to prevent every form of entanglement involving war—and who, the moment he realized that the task was beyond him, forthwith resigned his function and demanded his dismissal? The Prosecution obviously feel this themselves, otherwise they would not have brought as evidence of the defendant’s alleged joint culpability his presence at Hitler’s conference on 5 November 1937, wittingly omitting, however, that it was this conference and Hitler’s deviation from a peace to a war policy which caused the defendant to refuse further collaboration and thereby make it clear that he never concurred in the past and was not prepared in the future to concur in or approve of, the planning, preparation or waging of a war of aggression. Thus, every charge of guilt made in the Indictment against the Defendant Von Neurath is void, once and for all. For should he be further accused of having broken international treaties while responsible for the conduct of German foreign policy, it must be pointed out in answer that according to the clear wording of the Charter, the breach of international treaties does not constitute a punishable crime in itself, and becomes a punishable crime only when it serves the purpose of preparation for wars of aggression. If such a breach of treaty serves this purpose, it must be intended to do so by its author, or at least its author must be conscious of the fact. That Defendant Von Neurath had no such intention, nor indeed the faintest knowledge of the above implication, is quite clearly proved by his resignation from the office of Foreign Minister. But I shall moreover demonstrate to you that even the charge of violating or breaking international treaties is without foundation.

When, on 2 June 1932, the Defendant Von Neurath took over the Foreign Office at Hindenburg’s request, there were two questions that far surpassed in importance every other European problem and demanded an urgent solution; they were the problem of the German reparations and the problem of the disarmament of the victorious powers and of German equality of rights, a factor which was inseparable from it.

The defendant and Von Papen who was Reich Chancellor at the time managed to treat the first question satisfactorily at the conference held by the powers in Lausanne on 10 June 1932, a few days after the defendant’s assumption of office. At the closing session of the conference on 9 July 1932, Germany was freed of the financial servitude established by the Treaty of Versailles of a single final payment of 3 milliard marks. The Young Plan was obsolete, and only Germany’s obligations deriving from the loans granted her remained in force. Thus Part VIII of the Treaty of Versailles in which the reparation obligations were contained by virtue of Article 232 became obsolete for Germany. The first gap was made.

Matters were different with regard to the disarmament problem. This arose from the obligation for disarmament imposed on Germany according to Part V of the Treaty of Versailles which, I presume, is well known. In case of its fulfillment, the preamble to this part likewise prescribed disarmament for the highly armed victorious nations in reciprocity. Germany had disarmed. It had already fully met its obligations in 1927, an uncontested fact which the League of Nations also had expressly recognized. This was the basis for Germany’s request for reciprocal compliance by the other partners to the treaty, as provided for in the preamble to Part V. And Germany had announced its request for disarmament by the highly armed states and in conjunction therewith recognition of her equality of rights a considerable time before the defendant took office. However, during the so-called Disarmament Conference the negotiations not only had made no progress by the time the defendant took over the Foreign Office, but just at that time, the summer of 1932, they had become considerably more difficult. In view of the short time allotted for my disposal, I again refer for details to the German memorandum of 29 August 1932—my Document Book 2, Exhibit Number Neurath-40—and to my client’s interview of 6 September 1932 with a representative of the Wolff telegraph office, to be found in the same document book under Exhibit Number Neurath-41. Lastly, I should like to refer to the defendant’s declaration of 30 September 1932 before the German press, submitted to the Tribunal under Exhibit Number Neurath-45, my Document Book 2.

These declarations, all of which were made preparatory to the resumption of negotiations by the Disarmament Conference on 16 October 1932 and in order to demonstrate the seriousness of the situation to the world and to the Western Powers, prove clearly and unequivocally the great, fundamental tendency of the defendant’s ideas, his trend of thought and intentions as a human being, as a diplomat and as Foreign Minister, which dominated his entire policy from the beginning until his resignation, and which can be summarized in the statement: To avoid and prevent the settling of differences through force of arms; to realize all goals and tasks of German foreign policy by peaceful means only; to reject war as a means of policy; in a word, to strengthen and safeguard peace among the nations.

It is the same tendency which M. François Poncet, the former French Ambassador to Berlin, so eloquently referred to as a characteristic of the defendant in his letter—which I submitted to the Tribunal as Number 157 of my Document Book 5—and which was unanimously confirmed by all witnesses and affidavits.

While the opening of negotiations at the Disarmament Conference started with what really might be termed an affront to Germany, which caused the head of the German delegation to declare that under such conditions it would not be possible for him to continue to attend the negotiations, the Western Powers in the end could not close their minds to the ethics of a policy inspired by such tendencies, and following a suggestion by the British Government, on 11 December 1932, the well-known Five Power Agreement was concluded (see my Document Book 2, Exhibit Number Neurath-47a) in which England, France, and Italy, with the consent of the United States of America, recognized Germany’s equality of rights. On 14 December 1932, the main committee of the Disarmament Conference expressed its satisfaction in acknowledging this agreement, and the German delegate expressed his readiness to resume participation in the deliberations of the conference, stressing also that the equality recognized on 11 December 1932 in regard to Germany was the conditio sine qua non for this continued participation by Germany. It seemed that a great step forward had thus been made in the path leading to an understanding on the question of disarmament.

However, things were to take a different turn. Immediately following the opening of the conference meeting again in Geneva on 2 February 1933, serious clashes occurred between the German and the French delegations, in the course of which M. Paul Boncour, the French delegate, even went so far as to declare the Five Power Agreement of 11 December 1932 legally invalid because it involved five powers only. To the astonishment not only of Germany, the cause for these increasingly acute differences was the fundamental change in France’s attitude with regard to the basic question of the entire armaments problem laid down in the French plan of 14 November 1932 as a basis for these negotiations. For, contrary to the stipulations of the Treaty of Versailles and its own attitude heretofore, France suddenly took the position in this plan that armies composed of professional soldiers with a long period of service were aggressive in character and consequently meant a threat to peace and that only armies with a short period of service were defensive in character.

I regret that for lack of time I must desist not only from referring at greater length to the details of the French plan, but also to the sequence of the differences which became more and more critical between Germany and the other powers. I must assume that they are known and confine myself to stressing that the new French thesis, which the Disarmament Conference adopted as its own, was clearly and unequivocally directed against Germany and the Reichswehr as it had come into being in accordance with the disarmament stipulations of the Treaty of Versailles, a thesis which, if it was to be carried into effect, would have required the transformation of the Reichswehr into a militia army with a short period of service, thus signifying a still further reduction in its armament, inadequate as it already was for an effective protection against attack. The establishment of this thesis, however, also proved clearly that France was unwilling to disarm, which was also shown by statements of the French representative himself.

This new plan of France, as also her attitude particularly in the question of the ratio in the reduction of the individual armies, was merely a new expression of her old thesis, first security, then disarmament, which brought about the failure not only of the previous negotiations but also that of a new plan of mediation, the so-called MacDonald Plan, proposed by England to prevent the threatening break-down of negotiations.

Germany’s reference to consideration for her own security and her demand for general disarmament as a result of the right to equality by reason of recognition accorded her on 11 December 1932 were received by the other parties as a provocation, indication being given that, should negotiations fail, responsibility would rest with her.

In the interest of the clarification of these things and of the presentation of the increasing gravity of the whole situation before world publicity, my client felt it necessary to publish an article in the well-known Geneva periodical Völkerbund, on 11 May 1933—Neurath Document Book 2, Number 51—in which he discussed the result which the conference had so far achieved, described the German attitude in detail, and finally established that the German demand for the practical realization of the equality of rights of Germany by disarmament of the heavily armed countries was wrecked by the lack of will of those countries to disarm, and that Germany, therefore, in the interest of her own security was forced to start completing her armament, should the general limitation and disarmament within the framework of the English MacDonald Plan not satisfy her justified demands for security.

This conclusion was wholly justified in view of the entire foreign political situation at that time. These aggravated events which had intensified the crisis at the Disarmament Conference were only a small part, so to speak, of the expression of the international tension which prevailed since Hitler’s assumption of power. Domestic events occurring in Germany were first observed abroad with astonishment, but also with a certain lack of comprehension.

Soon after Hitler had assumed power, on 30 January 1933, an opinion was formed abroad—the discussion of which would lead too far here—about the so-called German revolution, which made it appear a European danger not only to France and her allies but also to Great Britain as well. The fear of such a danger affected the attitude of the Western Powers at the Disarmament Conference to an ever increasing degree, where Germany’s completely logical and consistent point of view was regarded as a provocation. But these worries of theirs, their insecurity in the face of the new Germany, led to even much more extensive measures and threats.

With England’s consent France began military preparations in the first days of May 1933, placing the border fortifications—which had already been provided with increased garrisons during the winter—in a state of alarm by alerting the large camps in Lorraine, the deployment area of her army of the Rhine, and carrying out a large trial mobilization between Belfort, Mulhouse, and St. Louis, at which the Chief of the French General Staff, General Weygand, appeared in person. And at the same time the French Foreign Minister Paul Boncour ostentatiously declared in his speech on 12 May 1933 before the French Senate that, in view of the revolutionary explosions in Germany, Italy would have to be kept firmly among the group of Western Powers; and, in response to Germany’s attitude at the Disarmament Conference, he added that Germany must adhere strictly to the Treaty of Versailles if she wanted to keep the Reichswehr. And these words of the French Minister, which could only be understood as a threat, were still further emphasized and confirmed by similar statements of the British Minister of War, Hailsham, and the otherwise so pacifist-minded Lord Cecil, in the English House of Commons; the latter even encouraged France to carry out further military operations. The situation was so strained that Europe seemed to be standing directly on the brink of a new war.

This increasing gravity of the situation, this obvious crisis which was leading Europe close to disaster is one of the basic reasons for the entire subsequent policy of the Defendant Von Neurath during the following years. Therefore, the question must be examined as briefly as possible, to see what consequences it was bound to have and did have, for German foreign policy, from the German point of view. One thing is undeniably clear. In the spring of 1933 Germany was in no condition whatsoever to fight a war; it would have been complete madness, a sheer desire for self-destruction, to fight a war against the armies of France and her allies, which counted millions of men and were excellently equipped with the latest weapons of attack, to fight with the small Reichswehr of one hundred thousand men which had at its disposal no motorized weapons of attack whatsoever, no tanks, no heavy artillery, no military airplanes.

Fear of an imminent warlike attack on the part of Germany could, therefore, from the point of view of the Western Powers, under no circumstances be the reason for their position and attitude. The one plausible reason could lie only in the attitude of the Western Powers with regard to the question of disarmament as such, that is, in their unwillingness to carry it out, to continue to discriminate against Germany, to continue to refuse her the realization of her equality of rights and to continue to keep her down.

In this alone, in the eyes of the leader of German foreign policy, lay the reason for the final French and English proposals at the Disarmament Conference, which were unacceptable to Germany for reasons of justice as well as for reasons of her own security and her national honor. Because even in spite of Germany’s equality recognized by the Western Powers in the Five Power Declaration, the French plan of 14 November 1932, as well as also the English plan of 16 March 1933, the MacDonald Plan, and the resolutions of the Disarmament Conference included therein, lacked practical realization of equality, even from the most objective standpoint.

What justly and objectively thinking person would reproach the German state leadership, if they drew their conclusions from all this, and recognized that this behavior of the Western Powers contained not only a violation of existing treaties and of the Treaty of Versailles with regard to disarmament, but also the will of the Western Powers to prevent Germany from fulfilling her demands justified by treaty, by force of arms if necessary, and furthermore to keep her as a second-rate state, and to refuse her the security guaranteed her also in the Treaty of Versailles?

Can you, Your Honors, reproach a state leadership which was aware of its responsibility towards its people, if this realization from now on had to be decisive for the continued direction of foreign policy? Because the highest duty of every state leadership, which is aware of its responsibility in foreign policy, is the securing and maintenance of the existence and the independence of its state, the regaining of a respected and free position in the council of nations. A statesman who neglects this duty sins against his own people. This realization should carry all the more weight because, on the part of Germany, nothing had happened which might have been interpreted as a threat against the Western Powers. On the contrary in his first program speech in a Reichstag still elected in accordance with democratic principles, Hitler had emphatically declared on 23 March 1933, punctuated by unanimous applause, his will for peace, particularly emphasizing this with regard to France; and he confessed himself prepared for peaceful collaboration with the other nations of the earth, but emphasized also that as a prerequisite for this he considered necessary the final removal of the discrimination against Germany, the division of the nations into victors and vanquished.

To these declarations of his, however, not the slightest attention was paid by the Western Powers, although they corresponded throughout with the given conditions and might have contained anything but certainly no threat. Unfortunately, they were unable to effect a change in the attitude of the Western Powers and to prevent an acceleration of the crisis.

A discernible relaxation only took place when Hitler, under the influence of the Defendant Von Neurath, at the climax of the crisis, repeated once more to the world, with the greatest emphasis, his and the German people’s will for peace in his great so-called peace address before the Reichstag on 17 May 1933—it is in excerpt form in my Document Book 2, Exhibit Number Neurath-52—and expressed his conviction that, as he declared literally, no new European war would be in the position to replace the unsatisfactory conditions of today by something better; the outbreak of such an insanity, as he described the war, would be bound to lead to the collapse of the present social and state order.

This speech of Hitler, whose honesty and sincerity cannot be denied according to the evidence, and whose power of conviction also proved irresistible to the Western Powers, effected a general relaxation of the situation; the danger of a new international war was averted, and the world took a deep breath. This, however, also marked the end of the isolation of Germany which had made for inner change and revolution, and German foreign policy gladly and with a sincere will took the opportunity for active collaboration in the political state gamble, an opportunity offered her by the suggestion of Mussolini to unite the great powers, England, France, Italy, and Germany, in a so-called Four Power Pact. This treaty, which was drawn up on 8 June 1933 in Rome and which was signed in the middle of June 1933 also by Germany, and which in its preamble also referred expressly to the Five Power Agreement of 11 December 1932, was to place the participating powers in such a position that, if further negotiations in a larger circle, as for example in the Disarmament Conference, should reach a stalemate they could meet at a smaller conference table. For Germany, the main motive lay in the fact that she again became an active member in the body of European policy in which she was participating as a partner with equal rights in an international agreement.

As a matter of fact, this pact was concluded at a time when a new international tension was already arising and increasing which again threatened to isolate Germany. This time it had its source not so much in the Disarmament Conference, the proceedings of which after the customary fruitless endeavors were again suspended on 29 June 1933 until 16 October 1933, as in the position of Germany and Austria in the World Economic Conference which opened in London on 12 June 1933. The Austrian Prime Minister Dollfuss made use of this conference to call the attention of the powers to an alleged threat to Austria’s independence by Germany, in that he accused Germany of lending support to the Austrian National Socialists in their fight against his Government. Making the Austrian question the center of gravity for European policy and calling on the powers for protection against an alleged threat to Austria’s independence by Germany—which the former considered a cornerstone in the construction of European power relations—he fanned the old embers into a new flame. What the mood was then in the summer of 1933 is shown in my Document Book 1, under Exhibits Number Neurath-11 and 12, reports of the defendant to Reich President Von Hindenburg and Hitler, dated 19 June 1933; but reference is also made to it in the speech by the defendant on 15 September 1933—Document Book 2, Exhibit Number Neurath-56—before representatives of the foreign press, which also comments on the consequences of such an attitude for the prospects of the proposed negotiations to be resumed by the Disarmament Conference on 16 October 1933, and which is reflected in his words:

“Judging by certain indications the readiness of highly armed states to carry out disarmament obligations for which they pledged themselves today seems to be smaller than ever. Finally, there is only one alternative: Realization of the right to equality or else a collapse of the entire idea of disarmament, with incalculable consequences, for which responsibility would not rest on Germany.”

This skepticism of the defendant with regard to the political situation in general, and prospects of the Disarmament Conference in particular, were only too well founded. For the new so-called Simon Plan—submitted even before the conference started by Sir John Simon, head of the English delegation, as a basis for negotiations—and to no less a degree the statement relative thereto made by Sir John, made it clear beyond doubt that the attitude of the Western Powers still continued to be the same as in the spring of 1933 and that they were even still less disposed to do justice to Germany’s demand for an equality of rights. For Sir John declared in plain language that in view of the present nonclarified conditions in Europe, and considering the seriously shaken confidence in peace, a disarmament conference, even according to the pattern of the MacDonald Plan, which Germany had declared unacceptable in the spring, was an impossibility.

This not only meant bringing an unjustified accusation against Germany—which had done no more than stand on the rights accorded it by treaty—but it also was a clear denial of Germany’s equality of rights and of disarmament. As a matter of fact, this Simon Plan falls even farther short than previous plans in doing justice to Germany’s rightful demand for equality of right and disarmament, that is, a balancing of all states’ armament in accordance with one another, including Germany.

Time being too short, I once more have to refrain here from going into detail and must confine myself to pointing out that it meant an increased restriction and reduction of German armament in favor of the other nations. For it provided that during the first half of the 8 years’ duration of the proposed disarmament, Germany alone—through the conversion of its Reichswehr into an army with a brief period of service—would practically be still further disarmed, subjecting herself, in addition, to an armament control by the powers, while the highly armed powers were not scheduled to begin disarming until the fifth year, and then only in terms of manpower reserve, not in terms of arms. These provisions demonstrated more clearly than ever that not only did the Western Powers not intend to disarm, but that they wanted to weaken Germany still more and make her tractable to their power interests. There was no more mention made of the fact that the Five Power Agreement of 11 December 1932 had agreed to recognize Germany’s equality of rights.

It really should have been clear to the Western Powers as well that such a plan depriving her of a chance to participate in further negotiations at the conference was bound to be unacceptable to Germany from the outset. However, on the strength of the lessons which German foreign policy learned in the spring of 1933—when Germany came very near having the Western Powers threaten her with war because she was unwilling to renounce her just demands—nothing was left to her this time but to answer the new threat which this plan undoubtedly involved, not only by rejecting the plan but also by withdrawing from the Disarmament Conference as well as the League of Nations. Further negotiations during the conference under such conditions were deemed hopeless from the very start and could only result in a still greater heightening of contrasts.

It is difficult to understand why the Western Powers failed to foresee Germany’s attitude and were surprised by her withdrawal from the League of Nations and the Disarmament Conference. In Hitler’s speech, already referred to here, an appeal for peace, delivered on 17 May 1933, he expressed in unequivocal terms that notwithstanding the sincere will for peace and further disarmament—provided it were mutual—on the part of the German Government and the German people, they would never consent to further humiliation and to renunciation of their claim for equality of rights but that if such were the demand they would rather assume the consequences without hesitation. Still more incomprehensible is the fact that in all earnestness the Prosecution place the blame for this withdrawal by Germany on its foreign policy, and that they believe they can find evidence of deliberate action for the preparation of wars of aggression; and this can only be understood by the fact that the Prosecution preserves complete silence on the events which led up to this withdrawal and thereby tries to create the impression that Germany’s withdrawal occurred entirely without cause. The Prosecution’s interpretation of the withdrawal as an action in preparation for war is contrary to objective history as becomes clearly apparent from the fact—which the Prosecution also passed over in silence—that concurrent with its declaration of withdrawal, the German Government, through Hitler’s speech of 14 October 1933 as well as also through the speech of the Defendant Von Neurath of 16 October 1933, not only declared with all possible emphasis their unchanging desire for peace and readiness to negotiate in the case of any disarmament plan which would consider Germany’s equality of rights, but tried to carry into practice this willingness to negotiate by submitting on her part practical proposals for general disarmament, as set forth in the memorandum prepared by my client and submitted to the powers on 18 December 1933 (Neurath Document Book 2, Exhibit Number Neurath-61).

The interview granted by the defendant to the representative of The New York Times in Berlin is an expression of the same endeavor. A government or a foreign minister that intends to prepare or even plan an aggressive war is hardly likely to make proposals for limiting or even reducing still further the armament of that country.

Diplomatic negotiations between Germany and the individual Western Powers which followed the memorandum of 18 December 1933 ended, as I may presume to be well known, with the note of the French Government to the English Government of 17 April 1934, which closed the door to further negotiations as proposed in an English memorandum of 29 January 1934 as well as another memorandum of the German Government of 13 March 1934, as this was fully stated in the speech of the Defendant Von Neurath on 27 April 1934 (Neurath Document Book 3, Exhibit Number Neurath-70).

The fact which appeared in the preceding discussions is interesting and must be emphasized here, that in their course an indisputable change was shown in relations between France and Russia, the further development of which became more or less authoritative, not only for German foreign policy, but also for the entire European policy in the coming years. The Russian representative in his speech to the Office of the Disarmament Conference on 10 April 1934 took the stand, contrary to the point of view always previously represented by Russia, that the task of the Disarmament Conference was to decide on a most wide-reaching reduction of armaments to provide maximum security, and though he admitted the failure of their disarmament efforts he did not however draw the conclusion therefrom that the conference had broken down, but on the contrary held that the creation of new security instruments of international law was the sole task of the Disarmament Conference, a point of view which was endorsed by the Russian Foreign Minister Litvinov on 29 April 1934. With this thesis Russia had adopted France’s point of view: First security, then disarmament, and, beyond that, the door was opened to the increased armament of all nations from now on. It is evident how important this fact was in the light of the French-Russian Assistance Pact which was signed one year later, made for the re-establishment of German armed sovereignty and an increase in the armament of all the remaining states. A direct path leads from this declaration of the Russian Foreign Minister via the extensive negotiations during the summer of 1934 regarding the so-called Eastern Pact to the Franco-Russian Assistance Pact of 2 May 1935 and the Russian-Czechoslovak Assistance Pact of 16 May 1935.

The French note of 17 April 1934 with its categorical “no” signified the end of one epoch and the beginning of a new one in international policy. France finally made it clear that she was no longer willing to carry on with a general agreement among all states desiring a solution of the questions of disarmament and security, but decided to go her own way from now on. The reason for this lay obviously in the fact that she recognized or thought she had recognized that the most important of the participating powers, England and Italy, were no longer prepared to follow her unconditionally, and to continue to refuse Germany the equality of rights theoretically granted her on 11 December 1932. This was expressed through the far-reaching rapprochement of the English and Italian points of view in the English memorandum of 29 January 1934 and in the declaration of Mussolini to the English Minister Eden on 26 February 1934, which dealt with the clearly outlined German point of view in the memoranda of 13 March and 16 April 1934. A similar tendency was shown in the memorandum of the so-called neutral powers, namely Denmark, Spain, Norway, Sweden, and Switzerland of 14 April 1934, and above all the speech of the Belgian Prime Minister Count de Brocqueville of 6 March 1934 (Neurath Document Book 3, Exhibit Number Neurath-66) showed the same tendency.

In this note of 17 April 1934, to which the Defendant Von Neurath referred in his speech of 27 April 1934 before the German press, he explained his attitude thoroughly and convincingly. France, as was soon apparent, finally abandoned the principles of the Versailles Treaty, the preamble to Part V which fixed in an unmistakable manner the general disarmament of all states of the League of Nations as the basis for the disarmament of Germany. The new French policy set up immediately after the note of 17 April 1934 soon made it known that she had decided to proceed along lines diametrically opposed to the basic idea of the Versailles Treaty regarding German disarmament.

On 20 April 1934 the French Foreign Minister Louis Barthou began his journey eastward, which took him to Warsaw and Prague. He first tried to prepare the ground for the resumption of diplomatic relations between the states of the so-called Little Entente with Russia, which so far did not exist, and thus prepare the way for the inclusion of the greatest military power of Europe on the side of France. He succeeded. Czechoslovakia and Romania, the most important states of the Little Entente, recognized and renewed diplomatic relations with the Russian Government on 9 June 1934. Thus France had made the first breach in the ideological and psychological opposition at that time felt by the European states against Soviet Russia, and the French Minister for Foreign Affairs, then on his second journey to the East, was not only able to gain the consent of all states of the Little Entente to the so-called Eastern Pact which France had long ago been negotiating with Russia, but subsequently was able to place it openly on the agenda of the International Policy Conference in London at the beginning of July. With this, as the Czechoslovak Minister for Foreign Affairs Beneš justly stated in his speech of 2 July 1934, a regrouping of the European powers was announced, which appeared capable of overthrowing to a certain extent all former relations on the continent.

Stanley Baldwin, who at that time was Lord President of the Council, had on 18 May 1934 already stated before the House of Commons that in view of the question of collective peace which of necessity involved the need for sanctions, England stood before one of the most difficult decisions in her history. He coined the phrase: Sanctions are war. England agreed at the beginning of July 1934, on the occasion of the visit of Barthou to London, not only to the Eastern Pact but in addition also to the entry of the Soviet Union into the League of Nations, which had been suggested by France. On 18 December 1934 the League of Nations officially resolved to accept Russia into the League. Thus France had for the most part already reached her goal, the inclusion of Russia, the strongest military power, into European politics and indeed on her side as will shortly be shown.

In spite of this heralded change in European power relations, German foreign policy under the direction of the defendant not only continued calmly and consistently in its peaceful struggle for the practical recognition of German equality—even after the French note of 17 April 1934 which it considered disastrous—but also in its policy of peace. In his speech of 27 April 1934—previously quoted—my client once more unreservedly expressed the will of Germany that she was still prepared for any understanding even at the price of further armament limitations by agreement, if this would correspond with her demand for equality. She did not, however, limit herself to this alone. In order to resume the international discussions and negotiations regarding the disarmament question, which had been interrupted by France’s “no” of 17 April 1934, Hitler met Mussolini in Venice in the middle of June 1934. The purpose and subjects of discussion at this meeting were at that time summarized by Mussolini with the words: “We have met in order to try to disperse the clouds which are darkening the political horizon of Europe.”

May I, then, for the sake of prudence, recall the fact that Italy at that time was still entirely on the side of the Western Powers. Several days later, in his speech at the Gautag at Gera on 17 June 1934 (Neurath Document Book 3, Exhibit Number Neurath-80), Hitler used the opportunity to emphasize once more his and Germany’s unshakable wish for peace, when he stated literally among other things:

“If anyone says to us: ‘If you National Socialists wish equality for Germany, then we must increase our armaments,’ then we can only say: ‘As far as we are concerned you can do so, because after all we have no intention of attacking you. We merely wish to be so strong that the others will have no wish to attack us. The more the world speaks of the formation of blocks, the clearer it becomes to us that we must concern ourselves with the maintenance of our own power.’”

There was a definite clearly defined change in power relationships and the political tendencies were taking shape, which were also the basis of the English air armament program announced before the House of Commons on 19 July 1934, and the idea became prevalent expressed by the French Prime Minister Doumergue in his speech of 13 October 1934 at the bier of the assassinated Minister Louis Barthou: “The weak nations are booty or a danger.” No matter how irrefutable this idea really was, as far as the attitude of the Western Powers toward Germany was concerned, it received as little consideration as all attempts of German foreign policy to carry on the negotiations regarding the disarmament question and as the repeated declarations of Germany about her readiness for an understanding. Now, as before, Germany was denied the de facto recognition of her equality. Apart from the encirclement policy of France which became more discernible every day, this fact also made it impossible for German foreign policy to join the Eastern Pact. The reasons for this rejection of the Eastern Pact have been presented in detail in the communiqué of the German Government of 10 September 1934 (Neurath Document Book 3, Exhibit Number Neurath-85). They culminated in the statement that Germany, in view of her indisputable military weakness and inferiority, could not take on any treaty obligations toward the highly armed states which might involve her in all possible conflicts in the East, and could make her a probable theater of operations.

It was not the lack of preparedness to participate in international treaties or even a lack of a will for peace which caused Germany to maintain this attitude, but first and foremost her notorious military weakness. Added to this was the true character of France’s policy which showed itself more and more, and that of the Eastern Pact as an instrument of the French policy of encirclement directed against Germany. This character became clear to all the world when, in the session of the Army Committee of the French Cabinet on 23 November 1934, the reporter Archimbaud described it as an undeniable fact that a formal entente existed between France and Russia on the basis of which, in the event of a conflict, France would be prepared to furnish a considerable well-equipped and well-trained army (Neurath Document Book 3, Exhibit Number Neurath-89). This fact, however, was clearly and openly proved by the declaration of the French Minister for Foreign Affairs Laval on 20 January 1935 before a representative of the Russian newspaper Izvestia, in connection with the French-Russian record of 5 December 1934 (Neurath Document Book 3, Exhibit Number Neurath-91) and Litvinov’s interpretations of it of 9 December 1934. For those well informed there could exist no further doubt of the existence of a close French-Russian alliance, even if the ratification of its final text only took place on 2 May 1935, which was then immediately followed by the ratification of the Russo-Czechoslovak Non-Aggression Pact of 16 May 1935.

It was forced upon the mind of every clear-thinking person that the French system of alliances made in this way was desperately akin to the one which had opposed Germany once already in the year 1914. This involuntary parallel was bound to make every German statesman draw the conclusion that those alliances could only be directed against Germany and accordingly constituted, at least, a menace to her. And this, much more so, as these alliances, this obvious encirclement of Germany, were by no means the only alarming events. Coupled with it, a vast increase in military armaments of nearly all non-German countries had been carried out in the course of the preceding months. Not only had England begun to carry out her large-scale armament program, as is shown by the British White Book of 1 March 1935, the submission of which does not seem necessary, since it is an official historical document, but in France too the efforts to reinforce her Army had begun under the guidance of Marshal Pétain, her most popular general at that time, while in Russia an increase in the peacetime figure of her Army from 600,000 to 940,000 men had taken place, with the joyful acquiescence of France. Czechoslovakia had introduced a 2-year compulsory service in December 1934 (Neurath Document Book 3, Exhibit Number Neurath-92) and Italy, too, was continually increasing her armaments.

After the bitter experiences of the latter years, all this was bound to be felt from the point of view of German politics, as I have shown you, My Lords, as nothing but a serious menace, and interpreted accordingly, a menace which left Germany all but defenseless.

A foreign policy, conscious of its responsibility, had to reckon at each moment with the danger that such a concentrated and continually increasing power of France and her Allies could fall upon Germany and crush her. For nothing is more dangerous than a concentration of power in one hand. According to experience, it is bound to cause an explosion sometime, if not counterbalanced by some other power, and this explosion is then directed toward the nearest country considered as an enemy. This latter was and could be only Germany, as this country alone was considered by France as her foe, and no other country in the world besides her.

And now I beg to ask you, My Lords, whether it was not an obvious command of self-defense, an obvious demand of the most primitive instinct for self-preservation of any living being—and nations, too, are living entities with such an instinct for self-preservation—that now the German Government and the German people took back the military sovereignty which had constantly been denied them for no reason and that they on their part tried to take measures of security against the menace hanging over Germany by organizing a military air fleet and by the law concerning the establishing of a peacetime army of only 36 divisions on the basis of compulsory military service. I refer to the proclamation of the German Reich Cabinet concerning the restoration of German compulsory service of 16 March 1935 (Neurath Document Book 2, Exhibit Number Neurath-97).

THE PRESIDENT: The Tribunal will adjourn.

[The Tribunal adjourned until 24 July 1946 at 1000 hours.]

ONE HUNDRED AND EIGHTY-FIFTH DAY

Wednesday, 24 July 1946

Morning Session

MARSHAL: May it please the Tribunal, the Defendants Hess and Raeder are absent.

THE PRESIDENT: The Tribunal will now hear the applications for witnesses on behalf of the various organizations, taking the SS first.

MAJOR JONES: If Your Lordship pleases, with regard to the SS organization, defending counsel have applied for seven witnesses. Five of these—Von Eberstein, Hinderfeld, Hausser, Riedel, and Reinicke—are among the 29 SS witnesses whose evidence has been heard on commission. The Prosecution have no objection to the calling of these witnesses although, as there is a certain amount of overlapping in the evidence of Eberstein and Hinderfeld, it is suggested with respect that this might be avoided when those two witnesses are examined by Dr. Pelckmann.

As to the other witnesses applied for; with regard to Rode, the Tribunal will see from defending counsel’s application that an affidavit from this witness was put in by the Prosecution as Exhibit USA-562. Dr. Pelckmann has informed me that he does not propose or desire to call Rode to testify before the Tribunal itself, but will be quite content to cross-examine Rode on commission. Therefore, if the Tribunal think that the interests of justice demand the resumption in this particular case of the taking of evidence on commission, the Prosecution have no objection to Dr. Pelckmann’s suggestion. Perhaps in fairness to Dr. Pelckmann, I ought to add that I understand that Rode only arrived in Nuremberg a few days ago.

The last witness applied for is Hermann Rauschning, the former Senate President of the former Free City of Danzig and the author of the book The Voice of Destruction, extracts from which the Prosecution have submitted in Document USSR-378, as part of the Prosecution case. No affidavit from Rauschning has ever been used by the Prosecution. I understand that Dr. Rauschning himself is now in the United States. With regard to him, the Prosecution object to his being called as a witness upon the following grounds. If the Tribunal will look at defending counsel’s application, it will be seen that there are three matters which it is desired to have clarified by Rauschning. Insofar as some of these facts may be relevant or have evidential value, I submit that those facts can be extracted from Rauschning’s book The Voice of Destruction, and that in those circumstances it is quite unnecessary to have Rauschning here as a witness himself. The Prosecution would, of course, have no objection to further extracts from that book being put in as part of the defense case of the SS organization.

THE PRESIDENT: Would the Prosecution object to interrogatories being put to Rauschning?

MAJOR JONES: No, My Lord, we should have no objection to that.

There are facts set out in the first two paragraphs of defending counsel’s application with regard to Rauschning. I submit that with regard to the first, a Cassandra-like statement by Rauschning that up to 1939 his warnings were not heeded, it has, I submit, no evidential value whatsoever. With regard to the second paragraph, in which it is stated that Rauschning has knowledge of the fact that in 1936-37 Hitler did not yet have the intention of exterminating the Jews, it is not in any way clear how Rauschning could, in fact, have had any knowledge of Hitler’s intentions at all—even the devil knoweth not the heart of man.

I do not submit that testimony of that kind from Rauschning would be wholly irrelevant. Whatever I have said, the Prosecution would have no objection to further extracts being taken from Rauschning’s book, or interrogatories being administered to him.

THE PRESIDENT: Dr. Pelckmann.

HERR PELCKMANN: May it please the High Tribunal, I am in complete agreement with what Mr. Elwyn Jones has said, as far as it applies to the rest of the witnesses.

Regarding his statement about the witness Rauschning, I should like to say the following. The decision of 13 March, Figure 6a, Paragraph 3, specifies that it is relevant to submit evidence on whether the possible criminal aims and activities of the SS were quite obvious, or were known to the bulk of the members. I tried before the Commission to prove that the aims and activities were not criminal, that the crimes committed were only individual acts or acts of certain groups, and that these acts were not known to the majority of the members. I tried to prove this by means of relatively very few witnesses, compared with the number of members as the Prosecutor has stated, by means of 29 witnesses from among thousands of affidavits. All this material will still be submitted to the High Tribunal in due course, but it all concerns the so-called legal standing of membership. The Prosecution, on the other hand, submitted their evidence against the SS, as well as against the other organizations, directly to the Tribunal through documents and through the direct testimony of witnesses, a procedure which took many weeks.

With regard to the further assertion that the bulk of the SS knew of such criminal aims of the SS and of the criminal acts of individual members or certain groups, the Prosecution did not present any proof, but merely asserted that this could be seen from the circumstances, and was a matter of course. I consider it only just and proper that in addition to the statements of SS members, which as indirect proof I shall submit in large numbers in the form of affidavits, and the probative value of which could be disputed by the Prosecution because they are statements of the people in question themselves, of the SS members—as I say, I consider it only right and proper that in addition the witness Rauschning, the only one of my witnesses who is not under automatic arrest, should testify before this Tribunal, and should testify in person. The only other witnesses who will appear in person are the five witnesses of the SS who held a relatively high rank in the SS and, therefore, have an over-all knowledge; but it can be held against them that their testimony is not quite credible.

As for the person of Rauschning and the relevance of his testimony I should like briefly to say the following: As has already been stated, he was an SS Standartenführer and President of the Danzig Senate. He had the complete confidence of Hitler until 1936, when the rupture with Hitler occurred. Rauschning emigrated and was very active in publishing material abroad. In his books, which have become well known throughout the world, he constantly warned against Hitler and his plans, and he is still known everywhere as a man who did not defend or protect the Hitler regime and its guilty members.

In his many conversations with Hitler, he learned—and now I come to the main point of my application—first, that, at least in the years 1936 and 1937, Hitler did not intend to exterminate the Jewish population. He has given detailed reasons for this statement, and the objection of the Prosecution that it was impossible to recognize Hitler’s intentions is not quite apposite, because this precisely is the task of the Tribunal, to recognize Hitler’s intentions with regard to the salient points of the Indictment. If Hitler’s intentions are recognized then perhaps one can judge the responsibility of the bulk of the members of the organizations. Of course, we have only circumstantial evidence and must, if possible, obtain and evaluate direct evidence of Hitler’s intentions. This direct evidence of Hitler’s intentions, the witness Rauschning can give on the basis of his conversations with Hitler, and I do not think that one can find a better witness for this subject. Second—continuing with the points of my application—Rauschning learned that Hitler ...

THE PRESIDENT: What is it, Dr. Pelckmann, that makes you think that Rauschning would be able to give this evidence?

HERR PELCKMANN: I know his books, My Lord.

THE PRESIDENT: Then if it is in his book, how will it help to have him say what is in his book again?

HERR PELCKMANN: Of course, his books represent only a very small part of his entire knowledge, and he certainly did not write them with this Trial in mind. The chief points brought up by the Prosecution in this Trial can now be answered much more satisfactorily by the witness himself than by quotations from his book torn out of their context.

THE PRESIDENT: I understand you to be saying that the only reason you have got for thinking that he would be able to answer these questions is because of what you see in the book. Then you do not know that he can give any further evidence than is in the book.

HERR PELCKMANN: Of course, I do not know that but it is probable, and my assumption that he can do it is based on experience. I do not think that I am asking for anything out of the ordinary. I expect a man who in the years from 1933 to 1936 concerned himself so intensively with Hitler and Nazism, and then studied this regime in later years and discussed it with foreigners—I expect such a man to know much more than is set down in his books.

And I also have the following reasons for my application. In preferring their charges the Prosecution used quotations from the books of Rauschning, and these quotations are practically identical with affidavits. The Prosecution would equally well have been able to obtain affidavits on the pertinent passages in Rauschning’s book which would perhaps have contained his assertions in more detail. According to the rules of procedure established by this Tribunal, I am entitled to ask that witnesses who have deposed affidavits for the Prosecution be cross-examined by the Defense before the Tribunal. I believe that if ...

THE PRESIDENT: I am not aware that such a rule applied to witnesses in the United States. The rule, insofar as any rule at all was made, was that people who were in this country, if they had made affidavits, might be brought here for cross-examination. That rule has never been applied to persons who were in the United States or in any other country outside this country. The case of Mr. Messersmith is an instance, and there has never been a case of anybody being brought in, except perhaps the witness Dahlerus.

HERR PELCKMANN: Since the Indictment and the Tribunal’s verdict is of great importance for all members of the SS, and since, unlike the cases of the individual defendants, I can only call members of the organization as witnesses—and this is a considerable restriction—I think I may ask the Tribunal that this witness—the only one who is not implicated and can tell the Tribunal something about conditions at that time and his views on them—that this witness be brought here; for technical difficulties should play no part in this Trial of surely world-wide significance. This is my full conviction.

May I continue, My Lord?

THE PRESIDENT: Certainly.

HERR PELCKMANN: The witness is to testify further that it was Hitler’s deliberate policy to deceive the German people, as well as foreign countries, about his plans and intentions—for instance, about his war intentions. In very intimate conversations with Rauschning, Hitler remarked—and almost joked about it—how successful he was in leading by the nose not only foreign countries but even his own people. These questions are relevant for the decision regarding evidence.

With reference to the Jewish question, I refer to the assertion of the Prosecution that the Party program resulted directly in the extermination camp at Auschwitz. The Party program, as the bulk of the SS members saw it, provided only for a solution of the Jewish question on the basis of the statute of minorities, supplemented by the somewhat more severe Nuremberg Laws of 1935. But, however this may be, it would not yet constitute a crime against humanity. If it could be proved that during this time Hitler actually did not intend to exceed this program, then the assertion of the Prosecution could no longer be upheld. If this attitude of Hitler, at that time, can be proved, then the SS and the simple SS man who followed this program could not have had any other attitude either.

Secondly, the deception of the German people. The following is clear. 1) We know today from the various documents just what did take place at that time. We need only read the Reichstag speech about Hitler’s will for peace, or the reasons given for the murders on 30 June 1934. But it would be startling if a witness asserted that Hitler had confided to him that it was his principle to deceive the Germans about his true intentions. In answer to this, the Prosecution would have to prove that just the SS was not to be deceived—that the SS, in agreement with Hitler, knew what Hitler actually wanted.

THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to hear a general argument from you upon the whole case. They are simply dealing with the question of whether this man Rauschning should be brought from the United States.

HERR PELCKMANN: If the relevance of his testimony is not disputed, then I can very well understand ...

THE PRESIDENT: Dr. Pelckmann, we have your written application before us, and you are dealing with a variety of matters which are not mentioned in that written application.

HERR PELCKMANN: I cannot, of course, set down in my application everything that I would want to include. This application, naturally, contains only my main points: (1) The Jewish question, (2) the deception of the German people, and (3) of the SS members.

THE PRESIDENT: We have indicated to you what the view of the Tribunal is—that we think that you have dealt with the application, and we do not desire to hear a general argument.

HERR PELCKMANN: Mr. President, I tried only to show the relevance of my three points of evidence. If the Tribunal can assume that these points are relevant, then, I think, I need only add this: A single witness who is outside the SS, who, it is true, at one time ...

THE PRESIDENT: You have already said that, Dr. Pelckmann, more than once, and the Tribunal are quite aware of what you have said.

HERR PELCKMANN: Mr. President, do you not want an answer to the question why we should deviate from the general rule and bring this witness here from America? Do you not want an answer to that?

THE PRESIDENT: You have already presented argument to that effect.

Now we will deal with the SD.

MR. DODD: Mr. President, counsel for the SD has asked for only two witnesses, and the Prosecution have no objection to these two witnesses being heard by the Tribunal. It seems like a reasonable number.

While I am before the Tribunal, may I go on with the applications for the Reich Cabinet and High Command as well?

THE PRESIDENT: The Reich Cabinet, we understood, was not going to be dealt with today.

MR. DODD: We received the application for one witness this morning.

THE PRESIDENT: Oh, yes. Certainly, go on and deal with these.

MR. DODD: With respect to the High Command, counsel for the defendant organization has asked for six witnesses, and our position is that it is at least twice as many as are necessary, and that three—something like three—would be a much more reasonable number to present before the Tribunal. We have no particular preferences or no objections—no particular objections—to any of the three. I understand, however, that counsel prefers Von Rundstedt, Von Brauchitsch, and Von Manstein, and we have no objections if that is his choice of the six, but we do object to six, on the ground that they are too numerous, and all of them have been heard before the Commission.

With respect to the application of the Gestapo, only two witnesses are asked for—the witness Best and the witness Hoffmann—and we have no objection to the appearances of these two witnesses.

THE PRESIDENT: The two names, Karl Heinz, are Christian names, I suppose?

MR. DODD: Yes, so I have understood, Mr. President.

I am not clear, Mr. President, whether or not you wish to have me deal with the Reich Cabinet. Shall I make known our attitude toward the one witness?

THE PRESIDENT: I think so. Certainly, you may deal with them now if they are ready. Dr. Kubuschok ...

MR. DODD: In any event, he has only asked for one witness, Mr. President, and we have no objection—the witness Schlegelberger.

THE PRESIDENT: Very well, Mr. Dodd. Unless counsel for the SD, Gestapo, and the Reich Cabinet want to say anything, the Tribunal do not think it is necessary to hear them.

Then, they would hear counsel for the High Command, Dr. Laternser. Yes, Dr. Laternser.

DR. LATERNSER: Mr. President, in view of the importance of the accusations raised against the military leaders, I am convinced that the application for six witnesses is justified. In order to be able to decide the question whether the military leaders were criminal or not, the Tribunal must first obtain a personal picture and a personal impression of some of these military leaders. If only a few of the 129 persons affected by the Indictment against the organization I defend are heard here, can one assume that the High Tribunal will have gained a true picture? My definite answer is “no.”

THE PRESIDENT: Can you tell me how many of the 129 we have already heard before the Tribunal?

DR. LATERNSER: Before this Tribunal, Mr. President—before the Commission, seven members of the group were heard, two are still outstanding.

THE PRESIDENT: I did not say before the Commission; I said before the Tribunal.

DR. LATERNSER: I put questions to about five or six persons, I believe, of this group when they appeared here.

THE PRESIDENT: Yes. Go on.

DR. LATERNSER: In estimating the number of witnesses to be heard here, I ask that the following also be taken into consideration. In regard to the calling of witnesses who could refute the statements made by the witnesses of the Prosecution, the defense of the organizations are handicapped greatly by the resolution of the Tribunal which says that witnesses can be heard before the Tribunal only if they have previously been heard before the Commission, even though in any other legal proceedings there would be extensive examinations of witnesses on many points. The circle of witnesses is thus restricted from the beginning and dependent upon the scope of the Commission’s activities.

I consider it necessary, Mr. President, to be in a position to convey to the Tribunal a personal picture of the group indicted, and I should, therefore, like to make the following suggestion, which I believe to be practicable. May I suggest that for the group which I represent—only for my group, since I am not entitled to make a similar application on behalf of the other organizations—that for my group the Tribunal fix a certain time within which I may examine my witnesses before the Tribunal, and that the actual distribution of the time allotted be left to the defense. Then I should be able to question the six witnesses for whom I asked. I would even be prepared to use only two-thirds of the time to be allotted by the Tribunal, and to put one-third of it at the disposal of the Prosecution for cross-examination. In this way, Mr. President, I merely want to accomplish one thing—in my opinion the most important point—I want the Tribunal to gain a personal impression of the persons falling under the Indictment. I assume that the Tribunal will not object to this.

I would also like to suggest for the consideration of the Tribunal that the case against the organizations ...

THE PRESIDENT: Dr. Laternser, let me make certain that I understand the suggestion. You are suggesting that the Tribunal should allot a certain time for the witnesses for the High Command, and that you, as counsel examining the witnesses, should take up two-thirds of the time, and that the Prosecution, in cross-examination, should take up one-third of the time. Is that correct?

DR. LATERNSER: Yes. I agree that within this time I may examine as many witnesses as I choose.

THE PRESIDENT: How much time are you contemplating?

DR. LATERNSER: That is rather difficult for me to answer.

THE PRESIDENT: It is your suggestion. The Tribunal would like to know how much time you are suggesting.

DR. LATERNSER: One and a half to two days in all.

I should like to make two more suggestions to the Tribunal which have some significance in this connection. All the witnesses appearing here have already been heard by the Commission, and the transcripts of the interrogations are in the hands of the Tribunal. If the same questions are put again, the evidence would certainly be cumulative. How then is the examination of the witnesses to be carried through without interruptions? Looked at from this angle, the suggestion I have just made becomes even more important, and also seems to remove the difficulties which I have described. If this is taken into consideration I believe the Tribunal would be able to follow my suggestion.

Finally, I should like to suggest the Tribunal also make a decision with regard to the handling of the final words on behalf of the accused organizations.

That is all.

THE PRESIDENT: The Tribunal would like to hear you with reference to Dr. Laternser’s suggestions, Mr. Dodd.

MR. DODD: Very well, Mr. President.

We have, insofar as we recall, made a list of the names of the people who have appeared before the Commission as members of the organization, or of the groups, and those who have appeared before the Tribunal. I stated a few minutes ago that all of those who have not appeared—such as Von Brauchitsch, who was to appear, and who may have appeared yesterday, I am not informed—will appear in a day or so.

With reference to the suggestion of Dr. Laternser that he be allowed a specific time and may use as many witnesses in that time as he sees fit, we find two difficulties. First of all, we do not feel that he is being generous enough in allotting us one-third of the time. Possibly we may require more time for such a number of witnesses. In any event, we do not want to have a restriction placed on us to the effect that we have only one-third of the time that he has. If we are to examine witnesses on the time standpoint, we feel that much of the time would be taken up before the Tribunal on matters that have already been thoroughly dealt with before the Commission. All the witnesses have been heard before the Commission, and Dr. Laternser has had a full opportunity to examine and cross-examine before the Commission, and it seems unnecessary to burden the Tribunal with a great number of witnesses here.

THE PRESIDENT: The Tribunal would like to know whether it would make any difference to the arguments just presented to us if the Prosecution were allotted the same amount of time as Dr. Laternser?

MR. DODD: Well, it would make a little difference. Frankly, I did not consider that too important a point.

THE PRESIDENT: Perhaps there is one other thing which bears upon it. The Tribunal would like to know how you think the difficulty is to be met, that it seems unnecessary for the witnesses who are called before us here to give the whole of the evidence given before the Commission, or even to enter upon the subjects which have been entered upon before the Commission; and the Tribunal would like to know how that difficulty is to be met.

MR. DODD: We have been thinking about this very problem, and we had assumed that the witnesses who have appeared before the Commission, and who have been examined there, would not go over the same grounds before the Tribunal, otherwise the proceedings of the Commission would be rather senseless, and we might just as well get up and read the record of what was said before the Commission. We had understood that the witnesses would have something new to add to what they had already said before the Commission. That is our understanding.

THE PRESIDENT: Of course, I think Dr. Laternser has said on various occasions that he attached importance to the actual presence of the witness so that the Tribunal could see him and form their own opinion of the witness’ credibility.

MR. DODD: Yes, that is what I understood to be one of the reasons, but three members ...

THE PRESIDENT: In addition to our seeing the witnesses and forming an opinion of their credibility, he would be able to summarize the evidence given.

MR. DODD: Yes, I assume that would be so. Of course, four of these members of the groups we are in the dark about—and two of the members of Naval Command, Von Brauchitsch and Milch, and a number of others.

THE PRESIDENT: Thank you.

MR. DODD: With respect to the time suggestion which I made, I repeat I do not think that is too important. I know we can confine ourselves in cross-examination to the important matters, but I think it is the experience of the Tribunal that we seldom stayed within the limits which were established.

THE PRESIDENT: I do not think it is necessary to hear further argument. We will consider your suggestion; and your arguments, Dr. Laternser, are unnecessary unless there is anything particularly new that you wish to say. The Tribunal will consider your suggestion.

We will now deal with the political leaders.

LT. COL. GRIFFITH-JONES: The Leadership Group has asked for seven witnesses: Two of them are Gauleiter, and are witnesses Kaufmann and Wahl; one Kreisleiter, Meyer-Wendeborn; one Ortsgruppenleiter, Wegscheider; Blockleiter Hirth and two experts on the staff of the Hoheitsträger—namely, a farming expert who was also a political leader, and Hupfauer who was a political leader in the DAF. The Prosecution have no objection to any of these witnesses, but we feel that the grounds could not be adequately and properly covered. And it may be of help to the Tribunal if I suggested the witnesses most important, and those which might be dispensed with.

THE PRESIDENT: Probably the Defense Counsel would wish to make their own selection.

LT. COL. GRIFFITH-JONES: My Lord, I fully appreciate that. I was only trying to assist the Tribunal if I could.

THE PRESIDENT: Yes, in indicating which appeared to you to be the most important.

LT. COL. GRIFFITH-JONES: Yes.

THE PRESIDENT: Yes, perhaps you could do that.

LT. COL. GRIFFITH-JONES: The Blockleiter Hirth, I respectfully submit, ought to be called, as he is the only Blockleiter represented. The witness Hupfauer ought to be called, because he represents the experts on these staffs. There is a certain amount of dispute about them. And also, he represents a number of political leaders who were in the DAF itself. Of the Gauleiter, Kaufmann and Wahl are experienced. Kaufmann comes from an industrial district and Wahl from an agricultural district, and I understand, if there were to be any preference, that Dr. Servatius prefers Kaufmann. There are also representing the agricultural districts, in addition to the Gauleiter Wahl, the Ortsgruppenleiter Wegscheider and the farmer Mohr. My Lord, I would respectfully suggest that certainly three of those witnesses are unnecessary. They really cover very much the same ground as each other and the Prosecution, quite frankly, would have preferred the witness Wahl. I simply put that forward to explain that they are all from agricultural areas and perhaps one, or certainly two, would be sufficient. Meyer-Wendeborn is an experienced Kreisleiter from an industrial district, and does, to a great extent, cover the same ground as the Gauleiter Kaufmann, so that the Tribunal might consider having one or the other if they felt that the present number was excessive.

Now, I do not think I can assist the Tribunal further than that.

DR. SERVATIUS: Mr. President, I named two Gauleiter; one from the industrial area—that is, the witness Kaufmann—and the witness Wahl from a rural area in the vicinity of Augsburg. I believe it would be important to get an impression of these two types of Gauleiter; one of these men was active in the Party for 20 years, and the other for 17 years, and both were political leaders. Before being able to judge the activities of the political leaders over such a wide area, and throughout such a long period of time, it is necessary to hear two people from the top level. I should, therefore, like to ask that, if possible, both witnesses be allowed. I should like the witness ...

THE PRESIDENT: Dr. Servatius, two things I should like to ask you about these Gauleiter. Did not these two, Kaufmann and Wahl, deal with exactly the same topics before the Commission?

DR. SERVATIUS: Yes, but I want to divide the topics, and ask Kaufmann about relations with the top authorities, with the Reich Government, and Wahl about relations with the lower echelons, with the Kreis and Ortsgruppen. Of course, I could limit myself to one witness, but then the topics would not lie separated and would be bigger.

THE PRESIDENT: You mean you have not asked them about it before the Commission?

DR. SERVATIUS: Yes, but in the same way, separately.

THE PRESIDENT: There is one other thing. How many Gauleiter have we heard already before the Tribunal?

DR. SERVATIUS: I should think three or four, I do not know the exact figure; but they were not questioned about this topic, because it would have disturbed the taking of evidence at the time if we had gone into such detail.

THE PRESIDENT: Go ahead and deal with the other matters.

DR. SERVATIUS: The next witnesses are for Kreis, Ortsgruppe, and Block, and I think that from each level there should be one witness who can speak of the conditions in his field. Their testimony will, of course, overlap, but it can be shortened so that the actual examination will perhaps be quite brief and not too far afield; but it is, I think, important to have one witness from each level.

THE PRESIDENT: Could you give the Tribunal any estimate of the time you think it would take to deal with these seven witnesses?

DR. SERVATIUS: I am sure I can do it in one day; it depends upon how the evidence is to be taken. I assume we shall have a brief summary and clarify only a few questions on principle.

Then there are two more witnesses, Hupfauer and Mohr. One is from the German Labor Front, from an industrial region, and the other is from the Reich Food Estate and can speak about rural conditions. Both witnesses can speak about the position of the specialist offices which were not political directing offices, and can thus differentiate between the nonpolitical and the political leaders.

That is all I have to say.

THE PRESIDENT: The Tribunal will adjourn.

[A recess was taken.]

THE PRESIDENT: The Tribunal makes the following order:

With reference to the case of the SS, the five witnesses, Brill, Von Eberstein, Hinderfeld, Reinicke, and Hausser are allowed. Rode may be called to be cross-examined before the Commissioners. Interrogatories may be administered to Rauschning, but they must be administered immediately, and they will only be considered if they are received before the case is closed. Further extracts from Rauschning’s book, which has been referred to, may be submitted to the Tribunal.

With reference to the case of the SD, the two witnesses applied for, Höppner and Rössner, are allowed.

The two witnesses applied for by the Gestapo, Best and Hoffmann, are allowed.

With reference to the application on behalf of the Reich Cabinet, the witness named must be called before the Commission.

With reference to the General Staff and High Command, General Von Manstein and two others will be allowed. If it is desired that General Von Brauchitsch should be one of the two, he must be called before the Commission, and it is necessary that these matters should be decided by counsel for the defendant organization at once.

With reference to the political leaders, the defendant’s counsel must select five out of the witnesses applied for and those five will be allowed.

That is all.

I call on Dr. Von Lüdinghausen.

DR. VON LÜDINGHAUSEN: May it please the Tribunal: Yesterday I attempted to show the weighty and compelling reasons why the leaders of the German State had to decide to reinstate Germany’s armed sovereignty.

But also before making this decision Germany had waited for the outcome of the negotiations for a general agreement on disarmament, which the British Government had opened again with the so-called London Communiqué of 3 February 1935, and in which Germany, faithful as always in its foreign policy to the principle of peace, had at once agreed to participate. Germany was prepared to wait even longer, until one could see whether or not these new negotiations would succeed; but before the negotiations had really begun, the French Government, on 1 March 1935, suddenly brought out a new defense bill prolonging military service, and almost simultaneously the British Government published its White Paper, which has already been mentioned. In view of these two measures, the German Government had no alternative: It had to take the steps which I have described, otherwise it would have betrayed its own people.

The effect of these German measures on the Western Powers was a varied one. England and Italy, it is true, at once protested against them as an alleged unilateral cancellation of international treaties; but they did not by any means exclude the possibility of further negotiations, and the British note of protest explicitly inquired whether the German Government was ready to conduct further negotiations of the nature and extent provided in the London communiqué. This inquiry was immediately answered in the affirmative by the Defendant Von Neurath. The reply was contained in the German Communiqué of 18 March 1935, Neurath Document Book 3, Document Number 98, and the then British Foreign Secretary Eden went to Berlin at the end of March 1935 for conversations about the possibilities of an agreement in the naval question.

In this connection, I particularly want to draw attention to the testimony of the witness Ambassador Dr. Dieckhoff, who was heard here. Only France, in consequence of her attitude that only the League of Nations was entitled to solve collectively the problems of disarmament and, therefore, of peace—only France considered it necessary to submit the measures taken by Germany to the League of Nations, on 20 March 1935, and to induce the League to establish that Germany had committed a violation of a duty incumbent on all nations, the duty of carrying out contracted obligations. It goes without saying that the German Government, in its note of 20 April 1935, refused to accept the renewed discrimination contained in this resolution of the League of Nations.

However, neither this resolution, nor the signing, on 2 May 1935, of the afore-mentioned Franco-Russian Treaty of Mutual Assistance, nor the Russian-Czechoslovak Treaty of Mutual Assistance which supplemented it, prevented Germany from continuing her very active efforts for an agreement with the Western Powers. On 21 May 1935 Hitler, in the German Reichstag, proclaimed a new peace program, in which he again stressed and underlined in the most emphatic manner possible his own and the German people’s irrevocable will for peace, and his full readiness to participate in any system, or in a collective collaboration, which would guarantee European peace, to re-enter the League of Nations, provided that Germany’s equality of rights was acknowledged, and to apply to the rearmament of the German Wehrmacht any restriction which the other powers might also adopt. This speech of Hitler and the diplomatic discussions with other powers, initiated at the same time, had the promising result that the well-known Naval Agreement of 18 June 1935, establishing a fixed ratio of the respective naval forces, was concluded between England and Germany.

This German-English agreement is of the greatest importance in two respects. On the one hand, from a diplomatic point of view, it constitutes no more and no less than the de facto acknowledgment, on the part of England, of German armed sovereignty, the negation of the League of Nations’ resolution and, therefore, of the French point of view, and England’s acknowledgment and approval of the German act which had been stigmatized by the League of Nations as a treaty violation. For the first time, therefore, Germany’s equality of rights was recognized not only de jure but also de facto by one of the Western Powers, and by one of the most important ones.

On the other hand, this agreement proves irrefutably, from the point of view of this Trial, that the Prosecution’s contention that Germany’s rearmament was an act of preparation for Hitler’s future wars of aggression is incorrect. On the contrary, this naval agreement shows quite clearly that German foreign policy, at that time, while it was still conducted by my client, had no warlike intentions of any sort, not to speak of plans, and that the reinstatement of German armed sovereignty was not under any circumstances an indication of warlike intentions, but an obviously defensive measure and nothing else. Would a statesman who harbors warlike intentions or plans, moreover, voluntarily consent to a restriction of his armaments to the extent provided by the naval agreement, and thus endanger the successful execution of his intentions and plans? Even the most malevolent person cannot earnestly maintain that the naval power granted Germany by this agreement was even remotely sufficient for a war of aggression; that has been clearly established by the evidence in this Trial. Through this agreement Hitler actually deprived himself of the possibility of creating a navy sufficiently powerful to wage a war of aggression. It is clear that any considerable transgression of the agreed ratio of the two navies which, as things were, could under no circumstances and by no means have been kept secret, would beyond doubt have induced England immediately either to increase her own navy accordingly or to obstruct this German intention by force, as she had the power to do at any time. From whatever point of view one may look at this naval agreement, nothing can remove the fact that it was, and is, an unshakable proof of the absolute honesty and sincerity of the repeated declarations of Germany’s will for peace, an irrefutable proof against the existence of any, even the most secret warlike designs or plans of German foreign policy and, therefore, of its leader, the Defendant Von Neurath.

In France this Anglo-German naval agreement met with general opposition. It was regarded as an arbitrary act on the part of England, a departure from the common line which still found expression in the resolution of the League of Nations, a departure, moreover, which was bound to interfere with French plans. So France was very reluctant and negative in her attitude toward the negotiations which England had begun with the aim of concluding a general air pact, and which ran parallel with the negotiations for the naval agreement. Hitler’s speech of 21 May 1935 had also been the cause for these negotiations, because in it, Hitler, referring to the London communiqué, had also offered to take part in an agreement for the limitation of air armament, and the German Government, taking up the English suggestion, actually presented a draft for such an air pact on 29 May 1935. But talks of nearly 3 months’ duration between the English and French Governments were necessary before England succeeded in inducing France to consent even to participate in these negotiations. This consent, however, was in reality not a consent at all because, among other things, it was made dependent on the condition that the realization of this air pact must keep pace with the negotiations for the Eastern treaty, and since this treaty had, at that time, to be rejected by Germany for reasons of her own security, as has already been mentioned, it was clear that the French condition would block the way to successful negotiations from the very beginning. When the Soviet-sponsored Comintern Congress met in Moscow on 25 July 1935, and it became quite clear that the Comintern’s aim was world revolution, Germany’s opposition—as will be understood—only stiffened.

It could not be surprising that on 16 September 1935 the Defendant Von Neurath informed the English Ambassador that the German Foreign Office did not consider that an answer to the memorandum of the British Government of 5 August 1935 would be opportune; that was the memorandum which had demanded answers to a number of French questions hardly connected with the air pact. Besides, the conflict between Italy and Abyssinia had already cast its shadows, which alone were sufficient to suspend further negotiations for the air pact. For how could a political agreement between the five powers of the Locarno Treaty be possible—and the German Foreign Office very rightly pointed this out—if co-operation between these powers was in a state of dissolution, and if some of these powers were even facing each other in armed readiness. On 7 September 1935, as is known, the British Home Fleet set out for the Mediterranean, and negotiations between England and France for the application of sanctions against Italy were in full swing. On 3 October 1935 war broke out between Italy and Abyssinia.

German foreign policy succeeded in keeping out of the events which now followed in Africa and the efforts of the powers to apply sanctions against Italy. But nevertheless these events proved of importance for German foreign policy, too; because they prepared, and especially the question of sanctions, a new constellation of powers, which on one hand led to a closer union between England and France and the adoption by England of France’s point of view, and on the other hand brought Germany, again defamed by the resolution of the League of Nations of 17 April 1935, naturally closer together with Italy, who was also defamed by the sanctions applied against her. These sanctions, at the same time, logically enough resulted in the dissolution of the Locarno Treaty, for it was quite impossible to consider a treaty as still justified in its existence if its participants were opposed to one another in such a hostile way that the danger of warlike actions was always present.

The efforts of the French Government, already having begun in its note of 10 September 1935 to draw England also into the net of its pacts and obligations, clearly showed the tendency of French policy, and were only to confirm the German statesmen’s conviction that France was consistently following her policy of encirclement, which was regarded as a menace to Germany. But Germany’s leaders and the Defendant Von Neurath were still reluctant to draw the consequences from this state of affairs and take the absolutely essential step for the most primitive needs of Germany’s security. German foreign policy, in its unshakable desire for peace and its readiness to negotiate, was still hoping that an agreement could be reached, that France would abandon her course, and that a really honest and sincere understanding with France could be reached. This hope, however, was soon a delusion.

On 16 January 1936 the French Foreign Minister Laval announced that after his return from Geneva at the beginning of February he would ask the French Parliament to ratify the Pact of Mutual Assistance concluded with Russia. And at about the same time the Defendant Von Neurath heard from reliable sources that the French General Staff had worked out military plans for an attack on Germany, providing for the advance of French troops from the Rhineland, along the course of the river Main, for a link with the Russian armies through Czechoslovakia. This proved even to the most naive the offensive character of the Franco-Russian pact, and there was even less room for doubt if one took into consideration the negotiations which took place inside and outside the French Chamber before the ratification of the pact. For even in France, opposition to this pact, specifically on account of its offensive character, was not small. The French veterans of the first World War headed the opposition: The Union Nationale des Combattants declared, in a resolution of 8 February 1936, that this pact contained more certainties of war than possibilities of peace. And the speech of Deputy Montigny in the French Chamber on 13 February 1936 was a single flaming protest—this is contained in my Document Book 4, Document Neurath-107. The pact, Montigny said, only widened the breach between France and Germany, and Germany must more than ever gain the impression that she was being encircled if a party dependent on Moscow, like the Communist Party, followed the policy of Delcassé, the policy of revenge and the policy of the former Russo-French pact. The greatest danger of war would arise if France were to convey the impression that she enjoyed the secret protection of Moscow.

Even the German Government made a last attempt to dissuade France from ratifying the pact. In the interview which he gave to Bertrand de Jouvenel, the correspondent of the French newspaper Paris Midi, on 21 February 1936—Document Book 4, Document Neurath-108—Hitler once again held out his hand to the French people for an understanding, for lasting peace and for friendship. “I want to prove to my people,” Hitler said, “that the idea of hereditary enmity between France and Germany is an absurdity.” And in that interview Hitler once and for all disposed of the continual references to his book Mein Kampf, which were being made at that time just as much as today in this courtroom, when he said:

“When I wrote this book, I was in prison. At that time, French troops occupied the Ruhr—it was at the moment of greatest tension between our two countries. Yes, we were enemies, and I stood by my country as I was bound to do, just as I stood by my country against yours when I spent 4 years and 6 months in the trenches. I should despise myself if, in the event of a conflict, I had not considered myself a German first and foremost. But today there is no longer any reason for a conflict.

“You would like me to correct my book, as a writer would do.... But I am not a writer; I am a politician. I make my corrections in my foreign policy, which is directed toward an understanding with France. If I achieve this German-French understanding, it will be a worthwhile correction.”

In the same interview, however, Hitler drew attention quite clearly to the inevitable consequences of the Franco-Russian pact:

“My personal efforts for such an understanding will never cease. But this more than regrettable pact would, in fact, create a new situation. Are you in France not conscious of what you are doing?

“You are allowing yourself to be drawn into a diplomatic game of a power which is interested only in causing confusion among the great European nations, a state of affairs from which this power alone will derive an advantage. One must not lose sight of the fact that Soviet Russia is a political factor with an explosive revolutionary idea and gigantic armaments.”

He concluded the interview by emphasizing again that France could, if she wanted, end this alleged German danger permanently, because the German people had complete confidence in him, their leader, and he desired friendship with France. That Hitler was honest and sincere in these declarations has been proved by the evidence of the Trial.

But it was all in vain. The French Government could no longer be moved to abandon its rigid attitude, and on 27 February 1936, the French Chamber, in spite of all warnings, voted to ratify the pact. The die was cast. On 7 March 1936 German troops again marched into their old garrisons in the Rhineland zone, demilitarized until then. The German Reich had restored its full sovereignty over the entire territory of the Reich. The last of the barriers of the Versailles Treaty, restricting this full sovereignty, had fallen.

This reinstatement of the full sovereignty of the Reich over the Rhineland, however, was of importance for a reason which, from the standpoint of existence of the German State and nation, far surpassed the politics and prestige of this step, and which was also the sole cause for the grave decision of the German Government. This reason was the security of the Reich. As long as the Rhineland was demilitarized, not only was one of the most valuable and most important provinces of the Reich, but the Reich itself, and especially its life source, the Ruhr territory, defenseless against any military attack from the West. The only protection for Germany against this terrible latent danger was the Locarno Treaty of 1925, which was guaranteed by Great Britain and Italy, and in which France and Belgium, on the one hand, and Germany on the other hand, undertook not to wage war against each other. Therefore, for the German Reich, if it was in the future to accept the vulnerability of its western frontier in the form of a demilitarized Rhineland, it was a matter of life and death that the protection which this treaty afforded should not be falsified.

But the meaning of this treaty and its essence, the protection of Germany, were, in fact, falsified at the moment when the political conditions and constellations which had existed at the time of the conclusion of the treaty changed fundamentally. When the Locarno Treaty was concluded, political conditions in Europe, and also in Germany, were governed and determined solely by the four power—England, France, Italy, and Germany—acting in unison. And, therefore, the men who made the Locarno Treaty for Germany could legitimately rely on the faithfulness to this treaty of France and Belgium as sufficient protection. These circumstances, however, ceased to exist—and, therefore, the meaning and essence of this treaty, and with it the conditions for the protection for Germany, were bound to change or to be falsified—when France altered this political relationship in Europe fundamentally by concluding her pact of mutual assistance with Russia, and thereby creating a situation which frustrated the aim and purpose of the Locarno Treaty—namely, to give Germany protection against the permanent danger arising from the demilitarization of the Rhineland.

The political constellation of Europe had been completely changed, indeed reversed, by this pact, because the world’s greatest military power, which was, moreover, at that time openly revolutionary-minded, had now entered the political arena. In the face of the obscure situation in the East, amply strewn with the seeds of a conflict, the pact could easily result in the possibility of France, in view of her obligations toward Russia, being drawn into a war against Germany, and attacking Germany who might be involved in a conflict in the East. One has to admit that it was in no way certain, or in any case highly problematical, whether the guaranteeing powers, England and Italy, would under those circumstances consider the case in point as one in which the guarantee applied, and would actively assist Germany against a French attack, or whether they would not rather prefer to stay neutral. That this possibility actually existed, also from the legal point of view of the treaty, was already shown in the German note of 25 May 1935 about the French-Russian pact—Document Book 3, Document Neurath-105—and was emphasized again in the German memorandum of 7 March 1936 to the signatory powers of the Locarno Treaty—Document Book 4, Document Neurath-109.

As I have already said, this possibility, this danger, became even greater and more imminent as a result of the events leading up to the ratification of the French-Russian pact by the French Chamber, and as a result of the ratification itself. It was, therefore, an imperative and manifest act of self-defense and self-preservation when the German Government, in realizing this tremendous danger, took the minimum steps necessary to meet this danger—namely, when it restored the armed sovereignty of the Reich in 1935, when one year later it reoccupied the demilitarized zone, the ideal base for any French attack, and thus advanced the defense line against any attack from the West forward to the border of the Reich.

With all due respect to the rights and rightful interests of other nations, the very highest, overriding duty of every government—and of all responsible statesmen—was, is now, and always will be, to maintain and safeguard the existence and life of its own state and nation. A statesman who neglects this duty commits a sin against his nation. The re-establishment of armed sovereignty, rearmament, and the reoccupation of the Rhineland were the natural reactions, the dutiful answer, of the German statesmen—and of the Defendant Von Neurath—to the policy of the French Government, in which, after all that had gone before, they saw a threat to Germany.

Far be it from, me—and I wish to state this quite emphatically—to reproach by my foregoing statements the French Government here, morally or otherwise, for its policy as I have described it. I am, in fact—together with the Defendant Von Neurath—firmly convinced, and I recognize fully, that the French policy was dictated solely by France’s interests, and that the French statesmen surely did only what they believed was right from the French point of view. And if, in doing this, they proceeded on a premise which, according to German conviction, was a false one—namely, the premise that a Germany which had regained her strength constituted a danger and a threat to France, and that the German people had always regarded the French people with blind rage, hatred, and enmity, and were animated only by a passion for aggression and a desire for revenge—then my client and I can only sincerely deplore this, but we cannot condemn it.

But, on the other hand, I, too, must claim for the German statesmen—for the Defendant Von Neurath—the right that their deeds and actions be judged on the basis of their reasons, on the basis of the needs and circumstances of the time, and from the viewpoint of German interests; and that these men not be accused of motives which in themselves are more than improbable and were, in any case, far from their minds.

Politics, diplomacy, is history come to life. Like the entire universe, like everything that lives and moves in it, this living history, too, is subject to an unchangeable fundamental law, the law of causality. And I believe, Gentlemen of the Tribunal, that I have been able to produce clear evidence that the two actions with which the defendant is charged by the Prosecution, and which are said to incriminate him, in particular, because they constituted treaty violations in preparation for war—namely, the re-establishment of the armed sovereignty of the Reich and the remilitarization of the Rhineland—were a logical and inevitable sequence of the events and the political development during the years of my client’s activity as Foreign Minister, the result of the policies of the Western Powers; and that neither he nor Hitler consciously, intentionally, or according to a preconceived plan, brought them about, but that they were the unavoidable outcome of French policy. They, therefore, not only cannot have an aggressive character or tendency, and cannot indicate preparations for war, as the Prosecution assert in their retrospective consideration of these things but, on the contrary, they served only the defensive purpose of warding off a possible attack, and have a decidedly defensive and, therefore, peaceful character. That they cannot, therefore, be viewed as actions preparatory for a future war of aggression on the part of Germany, I need hardly emphasize.

The assertion of the Prosecution proves only that it is absolutely inappropriate and quite absurd to view retrospectively and draw conclusions from single historical actions and events torn out of their context and roughly and incoherently put together. This way of viewing things is absolutely useless for the purpose of investigating and finding historical truth, which is surely the first condition and duty of this High Tribunal not only for the forming of their judgment but also for their task of showing the way for a new conception.

But a critical examination of the two steps charged against the defendant as breaches of international treaties fails, upon closer scrutiny of the circumstances, to prove the charges sound. For the Treaty of Versailles, as well as the Treaty of Locarno, had, in the course of time and events, not only lost their significance and therewith their inherent justification, but both of them had long since been broken by French policy and, therefore, annulled. The Treaty of Versailles had been broken by the obstinate refusal to carry out the disarmament obligations imposed upon France, as well as upon the other contracting nations, in return for Germany’s disarmament; and the Treaty of Locarno had been broken by the conclusion of the agreement with Russia, which was incompatible with the Locarno Treaty. History, as often before, had passed over them, and had thus shown the absurdity of applying rigidly the dogma Pacta servanda sunt, as France tried to do with regard to Germany. This fact cannot be altered by the League of Nations resolution of 19 March 1936, which had been proposed by France, and which in itself was not astonishing in view of France’s dominating position in the League of Nations; in this resolution the League stated that by reoccupying the Rhineland, Germany had violated Article 43 of the Treaty of Versailles. But history passed over that, too.

I do not think that further comments are needed upon this resolution and the statements and parleys between the participating nations which preceded and followed it; they came to nothing, in the course of events, and Europe finally made the best of the accomplished facts.

But even on the supposition that this resolution were correct, a breach of an international treaty is punishable—according to the Charter of the High Tribunal—only if it served in the preparation of a war of aggression. And during this Trial one of the gentlemen of the American Prosecution expressly stated that it was absolutely legal and justifiable to bring about the revision or annulment of treaties by peaceful means; and German foreign policy did nothing else. The whole military action of the reoccupation of the Rhineland was, in view of the small force of troops used—only one division, and the Luftwaffe did not take part in it at all—in reality only a symbolic act for the restoration of the sovereignty of the Reich; that was already evident from the fact that, as early as 12 March 1936, the German Government, through a statement of its Ambassador in London, contained in my Document Book 4, Document Neurath-113, made the proposal that in the case of reciprocity it would not reinforce its troops and would not order them to advance closer to the borders. The proposal was rejected by France.

German policy has throughout, and in every respect, remained true to its principle of peace for which it had consistently stood for many years; and in reality it only desired to serve and did serve peace and its maintenance in Europe. Both steps, the restoration of armed sovereignty and the reoccupation of the Rhineland, were—and I especially want to emphasize this here—were nothing else but the visible expression of the full and unrestricted sovereignty of the Reich. This sovereignty had already been recognized by the Western Powers in the oft-mentioned Five Power Agreement of 11 December 1932, containing the recognition of Germany’s right of equality. More conclusive evidence can hardly be found for the love of peace and the clear policy of peace of the Defendant Von Neurath than the fact that he waited for years for the realization of this recognition in order to avoid complications which, in view of the earlier attitude of the French and their policy, might possibly have arisen. He waited for years—up to the moment when, in consequence of the changed balance of power, this realization became an unquestionable necessity for the security of the Reich, a necessity of self-defense.

And German foreign policy continued unchanged in practice to follow this peaceful tendency even after, and in spite of this resolution. In the German memorandum of 31 March 1936—Document Book 4, Document Neurath-116—the German Foreign Office, on behalf of the Reich Government, once more submitted to the powers a new great peace plan for a quarter of a century of peace in Europe, by means of which, as is stated at the end, it wanted to make its contribution to the building of a new Europe on the basis of mutual respect. This again was clear and unmistakable evidence of its unalterable will for peace. It was not Germany’s fault that this German peace plan—and its absolute honesty and sincerity has been affirmed here upon oath by the defendant—was not successful and did not lead to the building of a new and peaceful Europe.

The same peaceful tendencies and intentions continued to be uppermost in the defendant’s policy during the years 1936-1937, in spite of all disappointments. Evidence of this is, above all, the treaty between the German Reich and Austria, which was concluded on 11 July 1936, as the result of negotiations which had been conducted for some time by the Defendant Von Papen. Not only the defendant’s own testimony but also the testimony of the witnesses Köpke and Dieckhoff proves beyond doubt that the view on the Austrian question, which from the very beginning the defendant consistently held and supported, was this: closer co-operation between the two countries—both in the political and particularly in the economic field—must indeed be aimed at, but Austria’s independence must, under all circumstances, be respected and remain untouched. For that reason, the defendant was an implacable opponent of any German attempts to interfere in the internal politics of Austria, and of the attempts of the Party to support the Austrian National Socialists in their fight against the Austrian Governments of Dollfuss and Schuschnigg; and he again and again protested to Hitler against them, not without success. That he, this Christian-minded and honorable man, abhorred and condemned the murder of Dollfuss from the bottom of his heart, I need not emphasize. And exactly from that point of view he welcomed the agreement of 11 July 1936, since it so fully corresponded to his own opinions. This alone refutes the assertion of the Prosecution that the agreement was concluded with intent to defraud—that is, with the intention to lull the Austrian Government into security and thereby to prepare and facilitate for the future the real intention already existing at that time—namely, to incorporate Austria by force into the German Reich.

The absolute sincerity and honesty of the defendant during the conclusion of the agreement is confirmed by the sworn testimony of the then Austrian Foreign Minister Dr. Guido Schmidt. And that the Defendant Von Neurath had no reason to doubt Hitler’s honesty and sincerity with regard to this treaty was shown quite irrefutably by the witness Köpke, who confirmed Hitler’s statements to the British Foreign Secretary Simon during his visit to Berlin in March 1935; the defendant himself gave evidence that, immediately after the conclusion of the agreement, Hitler told the leaders of the Austrian National Socialists Rainer and Globocznik that it was their duty and the duty of the Austrian Nazis to adhere strictly to this agreement. And so, from his viewpoint, the defendant considered this agreement as another step on the road toward peace in Europe, since the recognition of Austria’s independence, which he had pronounced in the agreement, eliminated the European danger point inherent in the Austrian problem.

In the same way, the defendant worked for an improvement of the relations between Germany and the Czechoslovakian Republic. It was only with this aim in mind that he so often pointed out to the Czechoslovak Ambassador Dr. Mastny that the Czechoslovak Government must at last meet the demands of the Sudeten Germans, still very moderate at that time, which were based on a promise once given by the Czechoslovak Government in Versailles, but not kept. Nothing, however, was further from the defendant’s mind, in both the Austrian and the Czechoslovak question, than the idea of a solution of these questions by force, a solution which later, after the defendant had left his position as Foreign Minister, Hitler considered right.

And his efforts to improve the relations between the Reich and the southeastern European nations also did not serve any aggressive intentions or even plans to partition Czechoslovakia with the help of these nations. If in Messersmith’s affidavit it is alleged that in order to secure this aim Germany had promised to the southeastern states, and also to Poland, parts of Czechoslovakia and even of Austria, then these are entirely absurd ideas which do not contain a word of truth. What the true value of these assertions is becomes clear from the fact that the Prosecution have not been able to submit a single report from one of the diplomats of the Western Powers accredited in the states in question, which could confirm the accuracy of these assertions. Was only Mr. Messersmith clever enough to obtain knowledge of such plans? In reality, the defendant’s efforts and his trip to Budapest, Belgrade, and Sofia served only peaceful purposes—namely, the exchange and strengthening of economic relations between Germany and these states. As the testimony of the witness Köpke showed, the defendant was particularly interested in these efforts, and they influenced his policies.

How much he opposed any policy which seemed to him even remotely out of line with his own policy of peace and international reconciliation is best proved by the fact that he rejected the negotiations with Japan, which the Defendant Von Ribbentrop had entered into and conducted in London without his assistance and completely independent of him on direct instructions from Hitler, and also the Anti-Comintern Pact which was finally concluded with Japan. He expressed his opposition clearly by refusing to sign this pact, and it was, as is well known, signed by Herr Von Ribbentrop as Ambassador, which was a most unusual procedure. The objection of the defendant to this kind of policy could hardly find a stronger form of expression.

The Defendant Von Neurath adhered faithfully and unflinchingly to his consistent peace policy up to the last moment, in spite of the influences of other circles—especially Party circles—on Hitler which made themselves felt during the defendant’s last years in office. He hoped, until the last moment, that he would be able to check these influences successfully, to eliminate them and to continue directing the policies of Germany along peaceful lines, according to his own convictions and his promise to Hindenburg.

When Hitler’s speech on 5 November 1937, and the defendant’s subsequent conversation with Hitler about it, forced him in 1938 to the conclusion that he no longer had any influence on Hitler, that Hitler would no longer shrink back from aggressive, warlike measures, he immediately took the consequences and submitted his resignation, which was accepted. His task, entrusted to him by Hindenburg, had become impossible to fulfill. He would not, and could not, have anything to do with a policy which did not shrink from warlike measures. It was completely out of the question for him to endorse such a policy with his name; it would have been the negation of his entire life work; he would have betrayed himself and his people.

But this did not mean that the defendant, who placed the welfare of his people above everything, even above all his personal interests and desires, would not make himself available again if the need arose, or if he believed that he would be able to save Germany from warlike complications, for that was the danger of the policy which Hitler now directed along a line different from that of the defendant. This attitude of the defendant readily explains why, when Hitler summoned him on 11 March 1938 to inform him of the march of German troops into Austria and, because Reich Foreign Minister Von Ribbentrop was away in London, to ask him to advise him and to answer the note of protest from the British Embassy, he declared himself willing to do so.

If the Prosecution now charge that the contents of this answer were factually incorrect, the following must be pointed out in response. In this letter the defendant only stated what Hitler himself had told him about the events. The defendant himself knew just as little about the actual events as the rest of the world, since after his resignation as Foreign Minister he no longer received political information of any sort. Hitler’s announcement that German troops were marching in surprised him just as much as it surprised everybody else, and as the order for it had surprised even the highest commander of the German Armed Forces, which Henderson himself admits in his well-known book, wherein he adds that Hitler’s decision to march in could have been made only a few days before. There was even less reason for him to doubt the accuracy of the description which Hitler had given him of the preceding events, because he had given it in the presence of Göring who had not contradicted it. It did not even occur to him—because of his own upright and true nature, and because of his entire previous official activity under clean and honest governments—that the head of the State, Hitler, could lie to him and at such an important moment, for the purpose of answering the British note of protest, give him information which was bound within a very short time to be proved manifestly incorrect. And whom could he really have consulted? Only very few men besides Göring had real knowledge; but those he could not approach, because they were not in Berlin. Göring did not contradict Hitler’s description.

I particularly want to point out that the reply which the defendant authorized to be drafted on the basis of Hitler’s description, and for which he also did not use the letterhead of the Ministry of Foreign Affairs, was not signed by him in his own name nor on behalf of the absent Foreign Minister but, as the wording of the document discloses, the description of the events was forwarded by him on the order of the Reich Government. But the Reich Government was Hitler, or rather on that day Göring. He, therefore, made perfectly plain that he was not writing in his own name, on his own responsibility, but that like an attorney, he was only forwarding information of a third person—namely Hitler. He really cannot be reproached for not having doubted the accuracy of this information and for not having checked the official description of the head of the State—and Hitler was, after all, the head of the State—quite apart from the fact that he would not have been in a position to check it.

He also cannot be reproached for the statement which he made a short time later to the Czechoslovak Ambassador Dr. Mastny. In the first place, according to the sworn statement of the defendant, the discussion in question took place in a way rather different from that described in the report of Ambassador Dr. Mastny, which apparently aimed at greater emphasis and effect. But, in any case, the penultimate paragraph of this report—Document Book 5, Document Neurath-141—shows clearly that even Mastny interpreted and understood the statement of the defendant that Hitler had no intention of attacking Czechoslovakia and, now as before, considered himself bound by the provisions of the agreement of arbitration which offered no guarantee for ever after but only for the immediate future; that is, until the action against Austria had been terminated. In view of the insufficient preparations of the Wehrmacht for a war, confirmed here by the Defendant Jodl, there was absolutely no reason to doubt the accuracy of this statement; that is, to doubt that it actually corresponded to Hitler’s wish at the time, in spite of the references of the Prosecution to Hitler’s statements, in his speech on 5 November 1937, about the conquest of Austria and Czechoslovakia. For these statements referred only to the possibility of war with other states and to a much later period.

So the accusations raised by the Prosecution against the defendant on this point are also unfounded. That already a few months after his speech on 5 November 1937 Hitler decided to incorporate Austria into Germany came as a surprise to all, even to his closest collaborators. This decision, however, was taken not only on the basis of developments in Austria, but most likely not least on the basis of conferences between Hitler, the defendant, and Lord Halifax, the then Lord President of the Council, in November and December 1937, in which, according to the sworn statement of the defendant, Lord Halifax declared that the British people would not understand why they should enter a war because two German countries had united.

[The Tribunal recessed until 1400 hours.]

Afternoon Session

DR. VON LÜDINGHAUSEN: Once more, in the autumn of 1938, the Defendant Von Neurath took it upon himself to stem the tide of events in order to spare the German people the immediate danger of war. In view of the corroboratory testimony of Göring and other witnesses, I need not describe in detail how the Munich conference, toward the end of September 1938, had come about. The fact remains that it was held and was successful—I refer to the agreement with Britain and France on the Sudeten question—and this was due in no small measure to the initiative and co-operation of the defendant.

If, however, he was able to accomplish this, it is because of a circumstance which the Prosecution, completely misunderstanding the situation, now include among the accusations—namely, that upon his resignation as Foreign Minister he was appointed President of the Secret Cabinet Council, which had been newly created by Hitler at this time. Had he not been in this position it would not have been at all possible for him to get to see Hitler in September 1938 and persuade him to agree to the Munich conference; for, contrary to the allegation of the Prosecution, even though he kept the title of Reich Minister from the day he resigned as Foreign Minister, he was no longer a member of the Reich Cabinet, which is already shown by the fact that from that day on his salary was decreased by one-third. Any joint responsibility which the defendant might have had for the policy of the Reich ceased as from that day; for, contrary to the assertion of the Prosecution, as President of the Secret Cabinet Council he was not a member of the Reich Cabinet and had no access to it, let alone a seat or a vote in the Cabinet sessions. This is established beyond doubt by the very wording of Hitler’s decree whereby this Secret Cabinet Council was created; for there it says expressly that the sole purpose of this Secret Cabinet Council was to advise the Führer personally—that is, Hitler alone—and only on questions concerning foreign policy. Even Huber’s book Verfassungsrecht des Grossdeutschen Reiches, quoted by the Prosecution under Document 1744-PS in their attempt to prove the contrary, shows that the Secret Cabinet Council and its President had nothing whatsoever to do with the Reich Cabinet, and was not a branch or an organ of it, but only one of several of the Führer’s personal offices.

As had been shown by the testimony of Göring, Lammers, and other witnesses, the Secret Cabinet Council never really functioned, and was never meant to function. In point of fact, all that was intended was to bestow a personal honor on the defendant, and thus efface the impression that differences had arisen between him and Hitler. That he himself did not look upon his appointment in any other way is proved by the fact that after 4 February 1938 the defendant lived a life of leisure on his own estate in Württemberg as a private citizen, and went only very rarely to Berlin where, however, he was not and could not have been active in any official capacity, since all information as to what was happening in the Foreign Ministry was deliberately kept from him.

If the Prosecution believe that they are able to conclude, from the documents submitted under Number 3945-PS, that the defendant received sums of money from the Reich, or the Reich Chancellery, for obtaining diplomatic information, then—apart from the defendant’s own testimony under oath—this is refuted by a letter among these documents, dated 31 May 1939, from Amtsrat Koeppen, the head of the office of the Secret Cabinet Council, which was kept going merely for the sake of appearances—a letter which proves conclusively that these not very large payments at long intervals were for covering the cost of maintaining this office, and were not intended for purposes of secret information.

And if the defendant made no use of his position as President of this Secret Cabinet Council—except for this one occasion in September 1938—he made just as little use of his position as a member of the Reich Defense Council, to which he was appointed by the Reich Defense Laws. Here, too, the Prosecution err when they make use of this membership to accuse the defendant of warlike intentions or of promoting such intentions.

Since this Reich Defense Council has already been discussed so much during the hearing of the evidence, I believe there is no need for me to examine more closely this assertion of the Prosecution, and that I can limit myself to pointing out that no aggressive tendencies of any kind were embodied in these Reich Defense Laws; but that, on the contrary, as their contents state, they merely contain—as is the custom in any country which has to reckon with the possibility of a war—the necessary provisions in the event of the Reich’s being attacked, or being drawn into a war in some other manner. How one can deduce from them that the defendant had warlike intentions, or planned for war, is utterly incomprehensible. Moreover, the defendant did not take part in a single one of the meetings of this Council, and no reports about the decisions of this Council were ever forwarded to him. The Document 2194-PS, submitted by the Prosecution as alleged counterevidence, was not sent to the defendant at all, but to a department of the Reich Ministry of Transportation attached to the Government of the Protectorate—namely, the transport department—and was intended for the latter. Also the sender of the document was not the Reich Defense Council, but the Ministry for Economy and Labor of Saxony.

All these and similar efforts will never enable the Prosecution to prove that the defendant, by his policies, was at any time directly or indirectly guilty of a crime of planning or preparing an aggressive war, or even of approving or supporting such a war. Quite the contrary. All his efforts were directed to one end, and one end only: to attain by peaceful means and in a peaceful way only those aims which had been sought by all former democratic Governments after 1919—namely, the removal of the provisions of the Versailles Treaty which discriminated against Germany and stamped the German Reich as a second-rate power, and the bringing about of a general pacification of Europe. Not one of his diplomatic actions served any other purpose, or was performed with any intention which would imply a crime in the sense of the Charter. It is not surprising, therefore, that his resignation as Reich Foreign Minister was received by the whole world with anxiety and dismay, both outside Germany—I refer to the statement of the witness Dieckhoff—as well as inside Germany, and especially in conservative circles. This alone serves to prove that the assertion of the Prosecution, that he was active in these circles as a fifth columnist, is untrue.

All the Prosecution’s references to Hitler’s speech to his generals in November 1939, and still less to the speeches by the defendant himself of 29 August and 31 October 1937, will alter none of those facts. Hitler’s speech was made at the time of the first military successes and was calculated to vindicate Hitler’s state leadership, and should be taken at its face value. The speeches made by the defendant, however, say just the opposite of what the Prosecution see fit to put into them. For both speeches, Numbers 126 and 128 in my Document Book 4, stress quite clearly the success of the peaceful intentions of the German foreign policy conducted by the defendant, and lay particular emphasis on the fact that the results were obtained entirely by peaceful means, and not by means of force. In particular, the speech of 31 October 1937, the last public speech of the defendant as Foreign Minister, is actually a résumé of his peace policy. That this was and still is a correct résumé, the Prosecution themselves have had to admit in this Court—that Hitler’s speech of 5 November 1937, which was used by my client as an excuse for his resignation, was, as described by a member of the Prosecution, the turning point in German foreign policy. Thus the Prosecution acknowledged unequivocally that up to that day German foreign policy had not been an aggressive policy of force, or pursued any warlike plans or schemes, but had been peaceful throughout.

Indeed it could not have been otherwise, in view of the defendant’s political and humane creed; and this has been unanimously confirmed by all witnesses examined here and in all of the questionnaires and affidavits in my document books. This creed was built on three main pillars: love of men, love of the fatherland, and love of peace—all three springing from and sustained by a deep sense of responsibility toward himself, toward his God, and toward his people.

When, a few days after the occupation of Czechoslovakia, Hitler called the defendant to Vienna from his well-deserved otium cum dignitate on his estate, and told him that he had been selected as Reich Protector for Bohemia and Moravia, it was this same sense of responsibility which made him feel it his duty to accept this post. At first he was opposed to the idea and struggled long with himself, for he had always been an inveterate opponent of any interference in the affairs of other nations, let alone the more or less forcible annexation of a country to the German Reich. It was for this reason that he had also condemned the annexation of Czechoslovakia and the so-called protection pact concluded with President Hacha, although at this time he had not the slightest idea of how this really came about. He got to know the true facts of this incident for the first time here in Nuremberg.

In spite of his reluctance to accept a public office once more, especially at his age, and to serve, again under Hitler and his regime of which he heartily disapproved, his sense of responsibility toward his people and his humane principles persuaded him that it would be wrong to refuse this mission. When Hitler explained to him that he had chosen him as being the only man possessing the necessary qualities to reconcile the Czechoslovakian people with the new conditions and with the German people—which Hitler said was his desire—he could not fail to recognize that the task given him was one which, in the interests of the German people, of humanity, and of international understanding, he ought not to refuse. And was it not indeed a task worthy of the utmost effort, to appease by just government and humane treatment a people who would regard every restriction and encroachment on their liberty and independence as the worst injustice that could be done them, and who would be filled with mortal hatred and resentment toward a people they felt to be an intolerable oppressor, and to reconcile them with these very people and the conditions for which they were directly responsible? But was not this aim in line with the endeavor to insure and preserve peace, which clearly and unequivocally pervaded his whole foreign policy? And he had every justification for telling himself that if he refused this task, then another man from Hitler’s entourage would in all probability be nominated Reich Protector, who would be neither able nor willing to conciliate the Czech people by humane and just treatment, but who, on the contrary, would be more inclined to hold them down by force and terror, as indeed happened 2½ years later.

Such were the only thoughts and considerations which led him to accept the appointment offered him, setting aside all personal interests and willing to face the risk that this might be interpreted and held against him in some quarters as denoting approval and support of Hitler and his regime—for Hitler had made him the definite and firm promise that he would at all times be willing to support the defendant’s intended policy of appeasement and reconciliation for the Czech people through humane and just treatment and through safeguarding the interests of the Czech people to the greatest extent.

He was fully aware that the task which he had accepted was a difficult one. I do not hesitate to admit that it was here a question of a decision, the justification of which could—if one admits the point of view put forward here by the British prosecutor that it was immoral to remain in a government which should be repudiated because of its amorality—cause embarrassment in the judgment of a man whose thoughts and dealings were different from those of the Defendant Von Neurath. But having in mind the character of Herr Von Neurath, which I hope has been described to you clearly enough, and his deep sense of responsibility, this decision was the only possible and logical one. It is a veritable tragedy, resembling those of the ancient Greeks, that the failure of this mission, which had been undertaken with only the highest ethical motives, should have brought the Defendant Von Neurath into this dock.

But at this point now, I should like to make the following comments on the Prosecution’s attempt by means of the photostatic documents which they submitted under Document 3859-PS—consisting of a letter from the defendant to the Chief of the Reich Chancellery Lammers, dated 31 August 1940, and its alleged enclosures—to discredit the defendant’s assertion that in assuming his office as Reich Protector his sole aim was to appease and reconcile the Czech people by safeguarding to the utmost their interests and their national traditions, and thus work for the well-being of this people and their prosperity as a nation. I believe that the second examination of the defendant, which the Tribunal, in their readiness to help, granted to me, has proved that those documents, particularly the two reports attached to the letter to Lammers—which indeed, with regard to the question of the Germanization of the Czech people, cannot be reconciled with the intentions and tendencies of the defendant as mentioned above—have no evidentiary value. Not only do those photostatic copies in no way tally—and the defendant has made a definite statement to this effect—with the contents and the form—that is, the length of the originals attached to the letter to Lammers, and which had been submitted to the defendant for signature and approved by him—but the photostatic copies also give rise in several places to well-founded doubts as to whether they are really identical with the enclosures to the letter addressed to Lammers, and this owing to the following facts.

Contrary to the practice adopted by all administration offices, neither of the photostatic copies bears the reference number of the letter to Lammers, or even a note that they are enclosures to a third document, let alone to the Lammers letter. Neither does the photostatic copy of the first report bear the defendant’s signature which, according to his definite statement, when he signed the letter to Lammers, he added to the report enclosed with it, which report had been drawn up by himself or by his office according to his instructions, and submitted to him in a fair copy. Another thing which strikes one is that it only bears a correction note of the copy which should have been, but actually was not, signed by an SS Obersturmführer working in the office of State Secretary Frank.

These facts support the defendant’s assertion that, if the reports from which the photostatic copies have been made were in fact annexed to the Lammers letter, they have been substituted for the original report of the defendant and for Frank’s report—the draft of which was approved by the defendant in the office of State Secretary Frank which was entrusted with the dispatch—either by the latter or by his orders. Furthermore, the defendant’s statement, made by him in order to explain the purpose of this Lammers letter and its enclosures, is quite worthy of belief: namely, in the same way as was intended by the plan contained in General Friderici’s report—dated 15 October 1940, submitted under Exhibit USA-65, Document L-150—to induce Hitler by reporting verbally to him, and on the basis of the two reports sent, to abstain from dividing the Protectorate territory and from germanizing the Czech people in any way whatever, and to prohibit any such plans, a course which the defendant repudiated for many reasons, but chiefly because he had at heart the interests of the Czech nation, which had been entrusted to him, and its national character and unity. These assertions of the defendant are confirmed by the statements of the witness Von Holleben in the questionnaire answered by him,—Document Book 5, Document Neurath-156—of the witness Dr. Von Burgsdorff, as well as by the defendant’s letter to Baroness Ritter—quoted in her affidavit, Document Book 1, Document Neurath-3.

And the defendant has actually succeeded in carrying his point, as shown by Ziemke’s report on his conversation with Hitler, submitted by the Prosecution. As long as he was in Prague, no measures were taken to germanize the Czech people; the defendant even prohibited the discussion of this entire question, as shown by Document 3862-PS submitted by the Prosecution. Especially by preventing any division of the Protectorate territory and any more or less forcible Germanization of the Czech nation according to plan, the defendant has proved, in the most striking manner, the sincerity of his aims and endeavors to protect and preserve the Czech people, their national traits, and their national unity and character, in conformity with his principles and intentions as stated publicly in his article on the New Order in Central Europe, reproduced by the Frankfurter Zeitung of 30 March 1939—Document Book 5, Neurath-143—which set forth his line of conduct for the accomplishment of his task.

In this article he himself describes his task as a fine one, but at the same time a difficult one. How difficult it really was—how nearly impossible—was to become obvious, unfortunately, only too soon.

Chief among the reasons for this was that from the beginning not only were the full powers in the Protectorate not transferred to the Reich Protector, not only was he not given the sole executive and controlling position—quite apart from his subordination to Hitler—but also his competency and powers were not sufficiently clearly defined. It is true that Hitler’s decree of 16 March 1939, establishing the Protectorate, and the supplementary decree of 22 March 1939—Document Book 5, Documents Neurath-144 and 145—had specified that the Reich Protector was subordinate to the Führer and Reich Chancellor, that he was to be the sole representative of the Führer and the Reich Government, and was to receive his directives from the Führer and Reich Chancellor. But, at the same time, not only were certain administrative branches, such as the Armed Forces, communications, the postal, telegraphic and telephone services, removed from his control at the very beginning, but the Reich Government—that is, the Reich—had also been given the right to take under its own so-called “reichseigene” jurisdiction, in the administration of the Reich proper and independent of the Reich Protector, those administrative branches which actually were Reich Protector offices, and to establish, if necessary, Reich offices which did not fall within the Reich Protector’s competence. The Reich was also given the right to take measures necessary for security and order in the Protectorate over the head of the Reich Protector himself. Furthermore—and this is the most important point of all—every one of the many supreme Reich authorities—that is, not only the Reich Ministries but, for instance, the Reichsbank, the Four Year Plan, the Ministerial Council for Defense of the Reich, and others—was given the right to decree laws and organizational measures on its own authority, quite independently of the Reich Protector and, therefore, could interfere in these administrative branches which actually were to come within the jurisdiction of the Reich Protector without the Reich Protector having either the right or the possibility to protest against or prevent such decrees or measures should they be in opposition to his own decrees, measures, and policy. On the contrary, he was bound not only to publish them in the Protectorate if asked to do so but also to supervise their execution.

Therefore, the position of the Reich Protector was, to use an example by way of explanation, by no means the same as that of the British Viceroy in India; it was more like the position—though to outward appearances on a somewhat higher level—of a Reichsstatthalter or the Oberpräsident. Therefore, it was different from what had hitherto been understood constitutionally by a protectorate; nor could it be otherwise, because this so-called Protectorate of Bohemia and Moravia belonged, according to Article 1 of the above-mentioned decree of 16 March 1939,—and to this I wish to draw particular attention here—to the territory of the German Reich—that is to say, it was a part of the German Reich. And it only had a certain amount of independent authority, a limited autonomy within the Reich, so that the laws and regulations valid in the rest of the Reich territory were introduced into the Protectorate as a matter of course. It was quite obvious that this vague and loosely defined limitation of the powers and competence of the Reich Protector was bound to lead very soon to the greatest difficulties, difficulties not only in the way of a uniform policy, uniformly conceived and directed, but difficulties which prevented the defendant himself, as Reich Protector, from governing in the way he wished and from keeping to the course already taken, difficulties and reverses which became more and more acute in the course of time.

In view of all this, it follows that the responsibility of the defendant can only be judged against this background—that is, only by taking into account the power exerted by these many other authorities. He can never be held responsible for decrees, measures, and actions which he did not decree or order himself, but which were decreed without his co-operation, without his knowledge, even against his will, by authorities or other offices outside his sphere of power and influence—decrees, measures, and actions which he had neither the right nor the power to prevent, and for which he was at most an intermediary, a link in the chain.

This is especially relevant for the accusation of joint responsibility brought against him by the Czech Prosecution—Document USSR-60(a)—for all the actions of Hitler and of the Reich Government before and after the setting up of the Protectorate. The Prosecution take as basis for their assertion the fact that Herr Von Neurath, after having given up his post as Reich Foreign Minister, remained a member of the Reich Cabinet—whereas in fact this is incorrect. I have already proved elsewhere beyond all doubt that he was not a member of the Reich Cabinet, either as a Minister without Portfolio or as President of the Secret Cabinet Council; nor was he a member of the Reich Cabinet as Reich Protector. That, too, is certain, and has never been maintained by the Prosecution before this Court. Therewith, any joint responsibility of the defendant for any actions or measures which preceded or prepared the way for the setting up of the Protectorate is disproved. Also I have already proved elsewhere that his statement to the Czechoslovak Ambassador on 12 March 1938, which has been used by the Prosecution in support of their allegation that this prepared the way, was not false, not deceitful, and therefore was not an action which prepared the way for the invasion of Czechoslovakia.

If the Czech Prosecution further deduce from Article 5 of the above-mentioned decree of 16 March 1939 that, as Reich Protector, he was wholly responsible for everything that occurred in the Protectorate during the time he was in office—that is, from 17 March 1939 to 27 September 1941—then this conclusion also is wrong and factually incorrect, in view of the actual position with regard to the division of powers in the Protectorate, as explained above. There is no system of law in the world according to which one can charge a person with criminal responsibility for occurrences and acts by third persons, acts in which he did not participate or co-operate, or which even occurred against his will.

Thus he cannot be made responsible for the fixing of the rate of exchange between the Reichsmark and the Czech crown, because this rate had already been fixed when he took over office; neither had he any hand in fixing it, nor had he the power or right to change the rate of exchange—quite apart from the question, which we need not discuss here, of whether, as the Prosecution maintain without producing proofs, the rate of exchange really was detrimental to the Czech people or not. Incidentally, I need hardly say that even if this had been the case, it would not be a crime according to the Charter, and only as such would it be punishable.

Nor can he be made responsible for the setting up of the customs union and putting it into practice. This had already been laid down in Article 9 of the decree of 16 March 1939, which reads, “The Protectorate belongs to the customs area of the German Reich and is subject to its customs sovereignty.” This regulation was a natural consequence of the fact, which I have already stressed, that the Protectorate was a part of the territory of the German Reich. However, I would like to draw special attention here to the fact that the defendant, because he regarded the inclusion of the Protectorate into the customs area—the customs sovereignty of the Reich—as detrimental and harmful to Czech economy, managed to prevent this inclusion for a year and a half, until October 1940, in spite of all the pressure exerted by the Reich Finance Minister, which is clear proof that the defendant put the interests of the Czech people, who had been entrusted to him, above the interests of the German Reich. He had absolutely nothing to do with the economic measures for the alleged transfer of Czech banks and industrial undertakings nor with filling the key positions with Germans. Those measures were taken by other offices—especially by the Reichsbank and the Delegate for the Four Year Plan—behind his back and without his collaboration. These were merely the natural consequences of the fact that already in earlier days a very large amount of German capital had been invested in these banks and undertakings, and this capital increased after the occupation because the credits given by the other countries were withdrawn by them and were now granted by German firms.

Lastly, he had nothing whatever to do with the judiciary. This was exclusively under the control of the Reich Ministry of Justice. This alone set up the German courts, including summary courts-martial, and the prosecuting authority; it alone appointed judges and prosecutors. Herr Von Neurath himself had nothing to do with these appointments and still less with the jurisdiction of the courts, as is clearly shown by the ordinances and decrees by which they were set up, especially the decree concerning the practice of criminal jurisdiction, of 14 April 1939,—Document Book 5, Document Neurath-147.

Here again I must draw attention to the fact that neither the economic measures nor the setting up of German courts in the Protectorate, which was a part of the German Reich, can even remotely fall under the category of crimes enumerated by this Charter. And this applies equally to the alleged intrusions into the Czech educational system, the appointment of German school inspectors, measures with which the defendant has been charged in the Czech indictment. These measures also were not taken by him, but by the German Reich Ministry for Education. And the closing of a larger number of Czech secondary schools was not ordered by the defendant, nor by order of the German Reich Ministry, but by the Czech Government itself even if it did so at the suggestion of the defendant. This measure turned out to be a useful one, and was in the interests of the Czech youth and, therefore, of the Czech intelligentsia and people because it obviated the danger of the formation and growth of a large well-educated proletariat. After the incorporation of the Sudeten German territory into the German Reich in the autumn of 1938 this danger had become acute, for a very large number of Czech officials and members of the free professions had streamed into the territory of the Protectorate, with the result that because of the overcrowding of all professions and the diminution of the Protectorate territory owing to the separation of the Sudeten territory and Slovakia, the chances of finding employment for the pupils leaving the secondary schools were still further diminished.

In addition to this came the closing of universities in the middle of November 1939 upon personal order of Hitler. The Czech Government could not shut its eyes to the truth of these considerations of the defendant, and itself decreed the closing of quite a number of schools. The defendant did not exercise any pressure on the Czech Government. This has been proved by the evidence. The dissolution of Czech gymnastic and sport clubs and similar organizations, however, as well as the confiscation and the use of their assets, was ordered, without knowledge or participation of the defendant, by the Police, which was not under his jurisdiction. It is not even certain, by the way, whether this dissolution took place while the defendant was holding office or only after his departure. The dissolution of the Sokol, it must be said, was a real necessity for the protection of German interests, and moreover it was a measure which was taken to appease and reconcile the Czech nation, too; for the Sokol was, beyond doubt, the focus of all anti-German efforts and of the incitement of the Czech people toward an active resistance against everything which was German.

The preceding arguments show how manifold were the encroachments of other administrations and offices on the administration of the Protectorate, and, accordingly, the difficulties and resistance which arose against a uniform policy of the defendant. They were, however, by no means removed, but, on the contrary, aggravated by the decree of 1 September 1939 concerning the organization of administration and the German Security Police—Document Book 5, Document Neurath-149. This decree was issued, without previous consultation with the defendant, by the Ministerial Council for the Reich Defense. Its first part especially is obscure and misleading. True, it placed all German administration offices and their officials in the Protectorate under the control of the Reich Protector, but this subordination was a formal one only, that is, simply on paper and not an actual one in view of the administrative duties which were actually performed.

In this respect, things remained unchanged, as had already been indicated from the authority of the supreme Reich offices, according to Article 11 of the decree of 16 March 1939 and of the ordinance of 22 March 1939. The difference was only that from now on all administrations and offices, established or to be established by other offices, were formally attached to the Reich Protector’s office and took up their functions under the official designation of “The Reich Protector of Bohemia and Moravia.” However, this by no means insured that such attached departments were put, in fact, under control of the Reich Protector himself—that is, the defendant—and that they had to receive from him their factual directives and orders to work according to his views and his directives. On the contrary, they received their instructions, just as before, from their original Reich offices, and had to observe and obey them. For instance, the so-called transportation department under the Reich Protector which had to deal with the transportation system—already taken out of the Reich Protector’s jurisdiction by ordinance of 16 March 1939—was controlled just as before by the Reich Ministry of Transportation and not by the Reich Protector, and received instructions not from him but from the Ministry in Berlin. And the same applied to other sectors, also including the purely internal administration.

According to this ordinance of 1 September 1939 of the Ministerial Council for the Reich Defense—and not, as the Czech prosecutor erroneously contends, by a decree of the defendant—a new plan was undertaken for the Protectorate territory with Oberlandratsbezirke and the Oberlandrat at their head, which official is, according to Paragraph 6 of the ordinance, the competent administrator for all administration branches of the internal administration and subordinate to the Reich Protector in an administrative sense. As such, he was invested with far-reaching authority, and also supervised the Czech authorities in the Protectorate, and this, to be sure, not by the order of the Reich Protector, but of the pertinent Reich Ministry in Berlin. This, too, was bound to result in very serious differences between the measures taken by those Oberlandräte on the basis of the directives issued to them by the Reich Ministry of the Interior in Berlin and the policy pursued by the defendant. To what extent the latter affected and influenced the Czech administrative offices does not have to be taken into consideration, since this decree, too, and its result, the control of the activities of the Czech administrative authorities by Reich German officials, is not a crime punishable according to the Charter of this Tribunal. This decree, too, is only a result of the fact that the Protectorate belonged to the German Reich.

On the other hand, this decree clarified the question of the position of the Police within the Protectorate territory, the political as well as the Security Police. This question was quite unsettled until the decree came into force and from the very first day of his activity had led to differences and difficulties between Herr Von Neurath and his State Secretary Frank.

At the time when Hitler charged the defendant with the office of the Reich Protector he had, according to the defendant’s testimony, assured him of far-reaching power, especially for protecting and fully supporting the defendant’s intended policy of conciliation and compromise in opposition to radical aims of the Party and other chauvinistic circles. The defendant deduced from this that as the representative of the Führer in the Protectorate he must and would have a decisive influence on the activity of the Police also. According to his own testimony he could not visualize at that time that a large part of the sphere of activity accepted by him became illusory from the start, since the Police had not been from the outset expressly subordinated to him. However, due to the fact that Frank—who had been made Higher SS and Police Führer in the Protectorate—was at the same time appointed to the position of State Secretary, and as such was subordinated to him, the defendant felt entitled to assume that Hitler’s intention was to centralize the police authority, if not in his own hands, at least under his jurisdiction—that is, in the hands of his State Secretary. In practice, however, this relation worked out entirely differently, since State Secretary Frank had not the slightest intention of letting his official chief, the defendant, have any authority whatsoever over the Police, and recognized only the jurisdiction and authority of Himmler, his superior, as SS and Police Leader, or of his Reich Main Security Office (Reichssicherheitshauptamt).

This actual state of affairs was established by law in the decree of 1 September 1939. For this, decree unequivocally states that the German Security Police, and thereby also the Gestapo, was not subordinated to the Reich Protector. This is already evident, in itself, from the fact that the decree completely separates the two departmental spheres—administration and Police—by dealing in Part 1 with the building up of a German administration in the Protectorate subordinated to the Reich Protector, and then dealing separately in Part II with the German Security Police. This Security Police is not under the jurisdiction of the Reich Protector, but, as was already reserved in Article V, Paragraph 5, of the decree of 16 March 1939, is taken over by the administration of the Reich itself—that is to say, it receives its orders directly from the Chief of Police in Berlin—that is, Himmler—and in part also from the Higher SS and Police Leader in Prague.

The second sentence of Paragraph 2 describes the relationship of the Police toward the Reich Protector. Its wording is as follows:

“The organs of the German Security Police are to collect and make use of the results of their investigations, in order to notify the Reich Protector and his subordinated offices about important events, and to keep him informed and offer suggestions.”

This signifies that the Reich Protector legally could not actually influence the activities of the Police in any form whatsoever. He could not oppose their orders, emanating from Berlin, prior to their execution; quite apart from the fact that he never got to see them, he had no authority whatsoever to oppose them. He had but one claim and that was to be subsequently informed by the Police about measures already taken by them and even that happened—as was proved by the evidence—only in the rarest cases. He himself did not have any right or any possibility whatsoever of issuing orders to the Police.

In consequence of this separation of powers, and in view of the totally different attitude of Frank toward the Czech people in contrast with Herr Von Neurath, the sharpest differences and contradictions were inevitably bound to crop up from the very beginning. For Frank, as a Sudeten German and one of the leaders of the Sudeten Germans, was filled with hatred and revenge against anything that was Czech. He did not want to hear of a reconciliation or an understanding between the German and the Czech peoples, and gave free rein to this anti-Czech attitude from the first day of his activity.

At first—that is to say, up to the time of the outbreak of the war—the activity of the Police was actually slight, so that these opposing viewpoints did not become so apparent. Herr Von Neurath could consequently assume that this opposition would gradually diminish, and that Frank would conform to his wishes and aims, and would show himself to be accommodating; and he, the defendant, did not yet recognize the necessity of exerting influence upon the Police. When, however, he finally realized from the gradually increasing activity of the Police and their excesses—that his expectations were not being fulfilled, he protested to Hitler orally and by letter, time and time again—as confirmed by the testimony of the witnesses Dr. Völckers and Von Holleben—and implored him to alter this ominous state of affairs, and to subordinate the Police to him, and to him only. However, all of Hitler’s promises and assurances proved to be false, and the subordination of the Police to Herr Von Neurath did not take place.

Yet, he did not want to relinquish the fight so soon, nor despair of the task he had undertaken. Now, more than ever, he wanted to try to impose his ideas and policy and, should he not be successful in major as well as in minor issues, at least try to soften the measures taken by the Police. For this purpose he had the most detailed accounts given to him personally in all cases of measures and action taken by the Police, such as arrests and other excesses, insofar as he received information about them mostly from Czech sources. Wherever he could, he exerted his influence for the release of arrested persons. This is evident from the testimony of all witnesses produced by me, above all, from the testimony of Dr. Völckers who, as head of the defendant’s office, was continually engaged in receiving such complaints. This is moreover evident from documents submitted by the Prosecution themselves, such as the notes of the defendant about his conference with President Hacha of 26 March 1940—Appendix 5 to Supplement Number 1, USSR-60—and even from the testimony of Bienert—who himself was arrested by the Police but released in a very short time upon the intervention of the defendant.

With the one exception of the testimony of Frank of 7 March 1946, submitted during the hearing of evidence, the testimony of all witnesses corresponds on the question of responsibility of the defendant for the measures taken by the Police. Frank’s testimony, however, is in direct contradiction to his own earlier testimony. At his interrogation on 30 May 1945—Document Book 5, Document Neurath-153—Frank said the following, and I quote:

“The Police, however, was not under the control of the offices of the Reich Protector.... Both Gestapo and Security Police received their directions and orders directly from the Reich Main Security Office in Berlin.”

Frank’s statement of 5 May 1945 concerning the student riots—Document Book 5, Document Neurath-152—is also typical of the manner in which the Police received its instructions directly from Berlin, over the head of the Reich Protector. Frank speaks therein of the report on the first demonstrations, which he had sent to Berlin, and in which he had asked for instructions; he had received them by return mail from the Führer’s headquarters through the Security Police in Prague, to which office they had been sent by Berlin directly and he, Frank, received them from there. There is no mention whatever of the person or even of the office of the Reich Protector during the entire proceedings; it is an internal affair of the Police involving the Higher SS and Police Leader Frank.

Because of the importance of this point, I would like to refer explicitly to the statements, made by the witnesses Von Burgsdorff and Völckers, both of whom were, on the basis of their official position, thoroughly conversant with this question during the entire time the defendant was in office. Burgsdorff testified that the Police was under Frank, who received his orders directly from Himmler. Völckers said that the defendant had no influence on Frank’s activities, and thereby on the Police. In practice, from the very start, the Police and, therefore, also State Secretary Frank took their measures independently of the defendant. This was legally confirmed later through the ordinance of 1 September 1939. All witnesses, also in their written testimonies, testify that the relations between the defendant and Frank had been as bad as can be imagined.

It is entirely impossible in such a state of affairs that the Chief of the SD and the Security Police should have been active as political adviser to the defendant. The defendant cannot at all remember a decree of May 1939 about the appointment of this man, to which reference is made in the document by the Chief of Security Police—Document Number USSR-487. In any case, according to his definite statement, he never performed any duties. The document, USSR-487, therefore, does not appear to be conclusive as evidence. The copy handed to me by the Prosecution is dated 21 July 1943. That alone proves that the appointment of the SD leader, if it occurred at all, did not take place during the defendant’s entire time in office. Aside from the date, however, the “reference” of the latter shows that this appointment does not at all concern a political adviser to the Reich Protector himself, but to the State Secretary for Security Matters—that is, Frank. The address “Der Herr Reichsprotektor” is not to be understood to mean the person, but rather the office. In German official circles it was customary to speak of the “Herr” Reichsminister, et cetera, even though he was not meant personally, but some department of his office. It is entirely credible and probable that the SD leader was appointed political adviser to the State Secretary, who at the same time was State Secretary to the office of the defendant and independent State Secretary for Security Matters.

Precisely from the so-called “warning,” given at the end of August 1939, with which the Prosecution charged my client, it can be seen how he himself felt about the ways and means of easing the minds of the population and of preventing acts of violence and insubordination on their part. According to his sworn testimony, the defendant thereby intended to discourage the population from committing acts of violence and especially to prevent acts of sabotage—which were to be expected in this time of high political tension before the war—thus preventing harsh police or legal measures which would only serve to embitter the population even more. It is doubtless more humane to issue such a warning, and thereby prevent such crimes, rather than allow crimes to be committed without previous warning and afterward mete out severe punishment. The fact that acts of sabotage, if it was impossible to prevent them, had to be severely punished in those times would certainly have been acknowledged also in any other country and taken for granted. As the defendant testified, the warning fulfilled its purpose. No special punishments were threatened or fixed; it contained no special threats of punishment whatever, but referred, as the wording proves, to criminal law already in force.

The sentence, that the responsibility for all acts of sabotage affected not only the culprit but the entire Czech population, is, of course, concerned only with the moral responsibility and not the penal one, as was also confirmed by the defendant. It means that in the case of repeated serious acts of sabotage, general measures would be taken in the respective territories, as for example, earlier curfew, ban on going out, or general stoppage of traffic or electric current, under which the entire population would have to suffer. A responsibility in the penal sense would have had to be formulated much more concretely. It was expressly mentioned at the beginning of the proclamation that anyone who committed the cited crimes thereby proved himself to be an enemy of the Reich and had to be punished accordingly. This sentence especially shows that the penal treatment of such sabotage acts was to be applied individually. At that time, nobody in Prague, not even the Chief of Police, would have thought of the idea of decreeing collective punishments or even, as the Prosecution asserted without any evidence whatever, of introducing the hostage system. In this connection, I also wish to refer to the statement made by the witness Von Holleben, Document Book 5, Document Neurath-158, in which he states, “Neurath, therefore, always refused to make a person responsible for acts committed by somebody else.”

From all that has been said previously, we see that the Defendant Von Neurath cannot be made responsible for the arrests made at the time of the occupation of the Czech territory, nor for the arrests made at the outbreak of the war of, as the Prosecution assert, 8,000 prominent Czechs sent to concentration camps or executed as hostages. These arrests, according to the defendant’s testimony, with which Frank’s testimony agrees, were made on direct order from Berlin without knowledge of the defendant nor even of Frank himself. Bienert’s contradictory testimony presented by the Prosecution is factually incorrect, and is based on completely illogical and false deductions. His deduction that this entire action was under the defendant’s direction because his order for Bienert’s release had been issued only 4 hours after his arrest is without any logic and is objectively wrong.

Finally, on the basis of the evidence, it is irrefutable that the defendant is also not responsible for the order to shoot 9 students and to arrest approximately 1,200 students during the night from 16 to 17 November 1939; that these measures, rightly called terror actions, had been ordered during his absence from Prague, and without his knowledge, by Hitler personally and had been carried out on Hitler’s direct order by Frank; and that also the proclamation of 17 November 1939 announcing it was neither issued nor signed by him, that on the contrary his name under it had been misused. It is proved by the testimony of the defendant himself and by that of the witness Dr. Völckers, who accompanied the defendant on his trip to Berlin on 16 November 1939, the day after the student riots, and had returned from Berlin to Prague with him on the very afternoon of 17 November; furthermore by the written testimony of Herr Von Holleben, and finally by the affidavit of the defendant’s secretary, Fräulein Friedrich—Document Book 5, Document Neurath-159—and of the Baroness Ritter, that the defendant, during the night of 16 to 17 November, when the shootings and arrests took place, was not in Prague but in Berlin, and the publication of these incidents was already posted on the house walls of Prague when the defendant returned to that city. The defendant is not in the least responsible for these atrocities. The order for them, as well as the simultaneous order for the closing of the universities, had, on the contrary, been given directly to Frank by Hitler in Berlin, and this, as the witness Völckers expressly affirms, in the absence and without the knowledge of the defendant.

The value, in consideration of this, which may be ascribed to Dr. Havelka’s testimony, presented by the Prosecution, is self-evident. The credibility of this witness Havelka, as well as of all the other Czech testimony submitted by the Prosecution, must in general be examined with the very greatest caution. It is subject, from the first, to two very serious objections. First, all these witnesses are members of the former autonomous Czech Government—that is, the so-called collaborationists, who are in jail today for this reason and are awaiting their sentence. It is humanly quite understandable if today they see in a different light the conditions then prevailing, judge them differently from what they really were, and involuntarily confuse the terrible things which happened after Herr Von Neurath had left Prague with the events while he was there. This results from a haziness of their memory. We must not overlook the fact that, as is quite natural, they hope by incriminating Herr Von Neurath to clear themselves.

Added to this is the fact, which is more important still, that they had no knowledge whatsoever and could not have had any of the internal, factual, and legal conditions and competences within the office of the Reich Protector, and that they therefore are not at all able to judge to what extent the defendant himself was really the man who issued the individual decrees and orders or brought them about. One example shows this very clearly. In the witness Kalfus’ testimony, it is alleged that the defendant was responsible for the customs union between the Protectorate and the German Reich. In this respect, I wish to refer only to the fact that already, in Hitler’s decree of 16 March 1939, it had been expressly announced that the Protectorate belonged to the customs district of the Reich. The witness Bienert further asserts that it was Herr Von Neurath who subordinated to the Germans the political administration of Bohemia and Moravia, which means state as well as communal administration. This is, however, also objectively wrong. As I have already proved, this subordination was ordered by the decree of 1 September 1939, which was not issued by the defendant but by the Ministerial Council for the Defense of the Reich. These examples should suffice to show how little credibility can be attached to all these testimonies, and how little the witnesses were informed about the actual conditions of organization and authority within the office of the Reich Protector. The often repeated assertion of the witnesses that the arrests and many other measures of force by the Gestapo against the Czech population were done on the order or instruction of the defendant personally is, for example, either a deliberate falsehood or proof of their ignorance of even the published official decrees announced in the Czech official gazette. For the Gestapo, as I have already proved, was not at all under the jurisdiction of the defendant. The conclusions to be drawn from this, as to the credibility of all the witnesses, are self-evident. It is obvious that in contrast thereto the sworn testimony of the defendant and of the witnesses presented by me, together with the decrees submitted pertaining thereto, deserve far more credibility.

The allegation of the Czech indictment, and of the testimony on which it is based, that Herr Von Neurath, in the middle of November 1939, ordered the closing of the universities has thus been disproved as objectively wrong. In fact, the closing of the universities took place on the express order of Hitler. As the evidence has shown beyond any doubt, the defendant immediately protested to Hitler and succeeded in obtaining his promise to reopen the universities after one year instead of only after three years. The defendant cannot be blamed for the fact that Hitler did not keep his promise. His efforts for the revocation of the closing of the universities prove, however, how much he was interested in maintaining the educational standard and the intellectual classes of the Czech nation.

The defendant did whatever he could for the Czech nation as a whole and for the individual. This applies especially to the harmful activity of the Police and the Gestapo, as far as he received information about it. According to his own testimony, which is confirmed by that of the witness Dr. Völckers, immediately after the arrest of the students in the middle of November 1939, he used all the influence at his command for their release, and as we have heard here, not only out of his own mouth but also from Dr. Völckers, he succeeded in obtaining the release of almost all the students by the time he left Prague on 27 September 1941. And he worked in the same way continuously for the release of about 8,000 prominent Czechs who had been arrested at the beginning of the war. As proved by his own testimony under oath, these arrests were ordered by Berlin directly and not by the defendant, as the Czech witnesses Bienert, Krejci, and Havelka untruthfully maintain, nor even by Frank or by any other Higher SS or Police Leader in the Protectorate. Moreover, it is also due to the defendant’s personal intervention that in 1941 the order Hitler issued at Frank’s and Himmler’s instigation for the removal and arrest of the then Czech Prime Minister General Elias was rescinded. Only after he had left was Elias arrested by Heydrich and later condemned to death by the People’s Court.

Definitely wrong is the allegation of the Czech witness Bienert that the defendant had arranged for the transportation of Czech workers into the Reich—that is, that he deported Czech workers by force into Germany. It is, on the contrary, true that, during the whole term of office of the defendant, not a single Czech worker was deported by force to Germany. Until 27 September 1941, no compulsory deportation of labor had yet taken place in any territory occupied by Germany. That happened only later. But many Czech workers voluntarily and gladly went to the Reich and accepted jobs there because of the fixed exchange rate of the Reichsmark and the higher wages; they earned much more there than in Prague and could send a great part of their earnings to their relatives in the Protectorate.

If the Czech Prosecution want further to charge the defendant with the sending by the Gestapo of arrested persons to concentration camps, and with the ill-treatment of those individuals there, it must be stated decidedly that until 27 September 1941, the end of the official activity of the defendant in the Protectorate, not a single concentration camp existed in the Protectorate. They were all established only after his departure, under his successor. The decree, too, concerning protective and preventive custody, with which the Czech Prosecution apparently wish to charge him also, was issued only after his departure, on 9 March 1942 as shown by the copy annexed to the Czech report, Document USSR-60.

Lastly, with regard to the charges of the Indictment concerning the alleged measures taken by the defendant against the Jews, in this point too the representation of the Indictment does not correspond to the facts, and is shown to be erroneous on closer examination of the documents submitted by the Prosecution themselves. Of the total of 21 decrees contained in the British Document Book Number 12b, only 4 were signed by the defendant himself; 6 were issued directly by the Reich Ministry, 10 by State Secretary Frank,—or his direct subordinate Dr. Von Burgsdorff—and one by the Czech State President Hacha.

The first decree signed by Herr Von Neurath himself on 21 June 1939, which contained nothing but the introduction of regulations valid for the entire German Reich concerning treatment of Jewish property in the Protectorate—which since 16 March 1939 was also a part of the German Reich—had been laid down for the defendant by Berlin when he assumed office. The fact, however, that it was published on 21 June 1939, 3 months later, proves the correctness of his statement, that he wanted to give the Jews time to prepare themselves for the introduction of the Jewish legislation as in force throughout the Reich. Its postponement to that day was done expressly in the interest of the Jews.

The second decree issued by the defendant himself on 16 September 1940 merely prescribed an obligation to declare securities—that is, mortgages, which were Jewish property—and corresponded to the various decrees of the same or similar kind issued in the German Reich, too, and were applicable to all German nationals.

The third decree, issued and signed by himself, of 5 March 1940, as well as the fourth of 14 September 1940, as quite clearly shown by their contents, aimed at making possible and facilitating Jewish emigration, which the course of events in the Reich had made inevitable. Therefore both decrees had been issued in the very interests of the Jews themselves, and prove that the defendant had no anti-Semitic views.

All the documents submitted by me which refer to this matter, among others the newspaper report concerning the boycott of the Jews in the spring of 1933—Document Book 1, Document Neurath-9—and the submitted depositions of witnesses, show that he did not approve of the measures taken against the Jews, particularly measures of violence, but opposed them. As shown especially by the deposition of the witness Dr. Koepke, such measures would have been in contradiction with his Christian and humane attitude and ideology. It is confirmed that until his departure from Prague not a single synagogue had been closed, and that no religious restrictions against the Jews had been decreed. No particular proof is needed to show that the defendant cannot be made responsible for the six ordinances issued by the Reich Ministry of the Interior. But neither does he bear any responsibility for the decrees signed by Frank and Herr Von Burgsdorff, in view of the independent position of State Secretary Frank and the competence of the Police concerning all Jewish matters, which I have described. In opposition to the assertion of the Indictment, it must be particularly emphasized that, according to his own sworn deposition, no persecution of the Jews occurred during his entire tenure of office.

His afore-mentioned humane and Christian attitude and ideology make the assertions in the Czech report of 4 September 1945 (Document 998-PS), concerning the alleged hostility of the defendant to the Church, appear just as unlikely. It is true that the Czech indictment of 14 November 1945 (Document USSR-60) does not make this report an object of an accusation; but, nevertheless, I should like to speak about it briefly.

It is proved by evidence that the relations between Herr Von Neurath and the Archbishop of Prague were very good, even friendly, and that the latter explicitly thanked the defendant for his support of the churches. This would certainly not have been the case if he had been opposed to the Church or if he had suppressed the churches, their organizations and clergy, or persecuted them in any other way. It is certainly not an extraordinary occurrence that there may have been differences in official matters, as obviously was the case according to the letter of the Archbishop submitted by the Prosecution; State and Church always have had differences with one another, at all times and in all countries. But this cannot under any circumstances be construed as implying, on the defendant’s side, a policy opposing the Church. It may be that members of the clergy were arrested; but, in the first place, such arrests were ordered not by the defendant, but by the Police, which was not under his control, and secondly—if the defendant knew of them at all—not on account of any church activity, but because of political intrigue. Neither is it clear from the mentioned Czech report whether the alleged actions against the Church, its organizations and clergy, actually took place during the defendant’s tenure of office. The evidence has shown that he did not decree any antiecclesiastical or antireligious measures. Pilgrimages to the Czech religious shrines, for example, were expressly permitted by him.

At this point I would also like to emphasize that the defendant was not guilty of injuring Czech national feeling in any way. Contrary to the assertion of the Prosecution, he did not destroy or close any Masaryk houses as the Prosecution would like to charge against him. As far as the closing of any Masaryk houses is concerned, the SS and the Police, which were not under his jurisdiction, are exclusively responsible. His attitude toward the Czech national feeling is best illustrated by the fact that he especially permitted the customary deposition of wreaths at the Masaryk monuments.

Nor did the defendant take measures hostile to culture, in spite of all efforts made in that direction by radical elements. Czech theater life was not touched and remained completely free, as well as Czech literature, which was not suppressed or encroached upon in any way, with the exception, of course, that anything of an anti-German or inciting character was prohibited. Also the press—which, incidentally, was not controlled or censured by him, but by the Reich Ministry for Propaganda—was not submitted to any other limitations than the German press, since the defendant’s efforts altogether were directed toward conserving and encouraging Czech cultural life in its characteristic quality and independence.

I believe it is not necessary for me to go still further into details about that subject, and that I can confine myself to referring to the defendant’s own statements and the statements of the German witnesses about this. The testimony of these witnesses shows clearly what difficulties and opposition on the part of certain radical circles and authorities, not least on the part of his own State Secretary Frank, he had to contend with in his general policy toward the Czech people.

If one wants to summarize his official activities, one may say that his entire life in Prague was one long struggle: A struggle against the forces inspired and led by Himmler; a struggle which was all the more difficult because he did not actually possess full powers in the Protectorate, and because the offices and authorities which were the most important and influential in the field of home politics—the entire Police and the Gestapo—were not subordinate to him. Nevertheless, he did not abandon this struggle, and never grew tired of protesting to Hitler again and again and demanding redress—in many cases successfully; in others, not. He fought up to the very end; he did not allow failures to discourage him, and he remained faithful to his policy of reconciliation and compromise, of pacification and conservation of the Czech people and their national characteristics. And when here again he was forced to recognize, in the autumn of 1941, that to continue his fight was hopeless—that Himmler’s influence on Hitler was greater than his own, and that Hitler had now decided to change over to a policy of force and terror, and to send Heydrich, who was known as a bloodhound, to Prague for this purpose, he immediately, just as in the winter of 1937-38 as Foreign Minister, took the consequences, resigned his post, left Prague, and retired to private life for good.

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

[A recess was taken.]

THE PRESIDENT: The Tribunal will sit in open session on Saturday morning until 1 o’clock.

DR. VON LÜDINGHAUSEN: What impression this resignation created on the Czech people, even the circles most hostile to Germany, and what interpretation was put on it appears, with a clarity that can hardly be surpassed, from the Czech report—Document USSR-60—which was truly not dictated by pro-German sentiments or love for my client, and which characterized this departure of my client as a “gehöriger Schlag” in the German text—“a heavy blow” in the English text—thereby actually disavowing its own accusations against Herr Von Neurath. And indeed I think I have proved that, while discharging the duties of his office, the defendant did not personally become guilty of a single crime against humanity punishable under the Charter of this Tribunal; and only such crime could, after all, be considered here.

And now the basic question of this Trial arises: Did the defendant become guilty—that is, guilty in a manner punishable under the Charter—of supporting or aiding Hitler and his accomplices in the commission of their crimes by accepting the office of Reich Protector and by keeping it, in spite of the war launched by Hitler a few months after his assumption of this office, and in spite of the events in November 1939, and several other occurrences? The Prosecution answer this question in the affirmative. But can an objective impartial judgment of matters really lead to this affirmative answer?

One thing should be absolutely certain after what we have heard here from the defendant himself, from the witnesses whom I questioned on the subject, and from the affidavits which I presented. Herr Von Neurath was not moved by external or material reasons to enter and remain in Hitler’s Government as Foreign Minister. Such reasons were similarly not responsible for his acceptance of the post of Reich Protector. This is already proved by the fact that he declined the donation which Hitler intended to present to him on his seventieth birthday in 1943, but finding this not practicable, he had this donation in his bank, as I have proved on the basis of the letter from his bank—Document Book 5, Documents Neurath-160 and 161—and did not touch one penny of it. And how little the supposedly illustrious position of the Reich Protector attracted or even suited him is clearly evident from his letter of 14 October 1939 to the witness Dr. Koepke—Document Book 5, Document Neurath-150, in which he compares it to a prison.

In both cases, as has been proved not only by the defendant’s own statements but also by the statements of all the witnesses and documents which I have introduced, the motive or the reason for the acceptance of and perseverance in his position was not, by any means, his approval of the ideologies of the Nazi regime with all its methods and his wish to support them, but, on the contrary, his high ethical and moral convictions which sprang from his deep sense of responsibility, as a human being and as a statesman, toward his people. Since he was not in the position and had not the power to remove Hitler and the Nazi regime, he considered it his duty, at least in a limited way within the compass and limits of his power and in the sphere entrusted to his direction, to fight the Nazi tendencies he despised and to prevent their materialization as far as his own strength permitted. Can one, I ask, really reproach Herr Von Neurath for doing this; can one condemn him, because the task he had assumed with a sense of moral duty and a consciousness of responsibility was beyond his strength, and he failed in it?

May I ask you, Your Honors, to free yourselves of all juridical and political prejudices, of the retrospective view of things with its unreliable deductions, and to penetrate into the soul of this man—his world of thoughts and his conception of life.

Brought up in a home inspired by Christian, humane, and respectable ideas, and also by a sense of responsibility toward the German people, he had grown up and reached the age of 60 in a civil service career under the various governments—first under the imperial government, then under the changing governments of the Republic. Without paying attention to their political trends, without asking whether they were conservative, democratic, or social democratic, he had served them, and had carried out the tasks assigned to him in his sphere of work. As a diplomat—as an official of the Reich’s Foreign Service—the field of internal politics was completely remote to him. He considered it his sole duty to serve his people as such, regardless of the government in office and its inner political attitude.

And thus, much against his personal wishes, upon Hindenburg’s call in the hour of distress, he took over the Foreign Ministry and thereby entered the Government of the Reich and remained in it also after Hitler was appointed, not as the representative of any particular political party, but as Hindenburg’s special confidant in the field of foreign politics. He was the guarantor of the Reich’s peace policy, the rocher de bronze in this field. His entire education, his sense of responsibility toward his people, would not permit him to do anything else than remain at his post after he had been drawn into the whirl and dynamics of the National Socialist movement, and then necessarily saw how this Movement was turning in a direction and making use of means which he, too, could only condemn.

But just as their sense of responsibility and duty to their own people had driven other respectable and patriotic Germans to the decision to remove Hitler and the Nazi regime by force, so it was with the defendant, whose sense of responsibility and duty, not only toward himself but also toward his people, forced him to set aside his personal abhorrence of the immorality of this regime and, by remaining in office and continuing to conduct its affairs according to his own principles, to fight actively against this immorality, and thus at least keep it away from the department under his control and protect his German people from this immorality of the Nazi regime and its consequences—namely, war—as long as he was able to do this.

And then, a year and a half after his resignation, when the call came to him again to accept a position—this time as Reich Protector of Bohemia and Moravia—and Hitler declared to him that he had expressly selected him for this position because he considered him the only suitable person to carry out his intended policy of real reconciliation between the Czech people and the new conditions and the German people, the very same sense of duty and responsibility forced him to follow this call. For was it not natural for him to deduce from the fact that Hitler—in spite of knowing his opposition to the National Socialist regime, its policies and methods—desired to entrust him with this task, that Hitler really and honestly meant to effect a reconciliation and appeasement with the Czech people? Here he was confronted with a task, the achievement of which would not only be of the highest benefit to his own but also a foreign people, a task which not only served for the reconciliation of two nations but also for the ideal of humanity and Christian brotherly love, as well as for the protection of the Czech people from the pernicious methods of the Nazi regime.

And now I ask: Is it not at least just as moral and ethical to pledge one’s self and one’s person for such a goal, to work actively—if only to a limited extent—against this regime which one has recognized and repudiated as immoral and corrupt through an apparent collaboration, if only outwardly appearing as such, to prevent the use of the methods of this system and thereby save innocent people from misery and death, as it is to withdraw grumbling out of personal aversion and look on inactively while this regime rages against humanity without restraint?

Not everyone has an aggressive character, is a revolutionary who can use violence against the hated system and its leaders. And do not forget, Your Honors, that at that time under Hitler’s autocratic regime there were only these two possibilities to work really actively and positively against the Nazi regime and its terror. Under this regime there were not the thousand and one possibilities of fighting a hated and accursed government, as is the case in free democratic countries with free and independently elected parliaments. In Hitler Germany any form of active or even public opposition only meant a completely useless sacrifice. And therefore I beg you, Your Honors, in judging these matters and in answering my question, to free yourselves from the democratic conditions and circumstances which you take so much for granted, but which are completely incomparable with the conditions in Germany under Hitler at that time—the lack of consideration of which fact has already caused much disaster up to very recent times.

And did not the Defendant Von Neurath save the freedom and lives of thousands of people, whose freedom and lives would have been irretrievably lost without him, by his very acceptance of the office of the Reich Protector, and by remaining in it despite the fact that he had to realize that through no fault of his, he could not fulfill the task connected with this office, that he did not have at his disposal the necessary means for its accomplishment, but yet, in spite of all this, continuing his fight against the terror of the Nazi regime? Is this not worth a thousand times more; is it not much more moral and ethical than if he had retired immediately, full of abhorrence and moral indignation?

I do not hesitate to answer this question, just as my first question, in the affirmative, and to express my conviction that no one can condemn me for this. Or shall a Sophoclean tragedy be unfolded before us here in the fate of the defendant, in which a man becomes guilty, due to no fault of his own, because he obeyed his conscience and his sense of responsibility?

Your Honors, I believe I have shown and proved by my preceding statements that not a single one of the actions with which the Prosecution have accused my client is criminal within the meaning of the Charter, and that not one of these actions by the defendant was aimed intentionally at committing a crime within the meaning of the Charter of this High Tribunal, so that no criminal action exists, either objectively or subjectively. But I believe I have shown also, over and above this, that all my client’s actions as a whole had just the opposite purpose of what the Prosecution claim they did—namely, not the perpetration, but the prevention of just such actions as the Charter defines as punishable crimes, whether crimes of planning, preparation, or the waging of aggressive wars, be they crimes of war or crimes against humanity.

But there still remains one thing for me to do: to draw the conclusion from all that as to how impossible, indeed, how paradoxical it would be to apply the principles of the conspiracy with regard to my client—his participation in it from the very outset, which sanctions or will sanction the preparatory or any other actions in this respect by the remaining members for attaining this criminal aim.

But when, as the Prosecution are deliberately doing, one regards approval of the criminal objective, and all preparatory actions for its achievement by each one of the other members in their official capacity, as proved in international law, merely by the fact of the assumption of or remaining in an office in spite of knowing the criminal aims, and from this fact alone deduces a criminal coresponsibility on the part of each individual, the consequence inexorably follows with compelling logic that the application of the principle of coresponsibility due to the assumption of an office or simply remaining in it, without consideration of whatever decent and ethical reasons may have caused one to do so, calls for the punishment of one who not only disapproves of these criminal intentions, plans, and actions of the others but even opposed them actively, and who only accepted his appointment or remained in his position for this reason, as was the case with the Defendant Von Neurath.

In a court which not only represents justice—the legal and ethical conscience of all civilized nations on earth—but is also going to show the way to universal peace to the coming generations, I need not prove to you, Your Honors, that such a result is contrary to not only every natural but also to every legal sense of justice and ideas of justice; that it is contrary to that which this High Tribunal have to strive for and are striving for; that it is contrary to every moral and ethical postulate. This task can only be fulfilled if you show mankind once more that any generalization, and leveling, any treatment, and thus also any judgment and conviction of people and of their activities only on the basis of corporative—I could say, gregarious—concepts, and not on the personality, the will, and the designs of the individual, is evil. Such treatment denies the holiness of the individual and in the long run leads inevitably to the adoration of mere force. But this adoration of force, this belief in force, was precisely the underlying cause of the terrible events which once more have been unfolded before us here.

You can only then do justice to and fulfill your double task—to punish where chastisement should be applied according to divine and human law, and, at the same time, to show mankind the way to international peace—if by your sentence you take away from mankind the belief in force and give back, instead of this belief, to all nations on earth, and not least of all to the German nation, the belief in and the respect for the holiness of the individual, whom the Lord once created in his image.

Fully convinced of the truth of this conception, I now confidently place the fate of my client, the Defendant Baron von Neurath, in your hands!

THE PRESIDENT: I now call on Dr. Fritz on behalf of the Defendant Fritzsche.

DR. HEINZ FRITZ (Counsel for Defendant Fritzsche): Mr. President, the result of the evidence in the case of Fritzsche is a relatively clear one.

Although I am one of the last to plead, a close examination of legal problems cannot be avoided. Above all, these problems arise from the fact that Fritzsche was characterized by the Prosecution, in a particularly striking manner, as an accomplice. However, at first I must examine what position Fritzsche had in the Propaganda Ministry, and what part he played in the German propaganda in general. It is these facts which ought to be conclusive in determining what part he supposedly played in the alleged conspiracy.

At the beginning of the Trial, Mr. Albrecht submitted as evidence the organizational structure of the Government of the Third Reich, as of March 1945, in the form of a diagram. Mr. Albrecht admitted himself that Fritzsche’s name did not appear in it in the position of one of the main leaders of the Propaganda Ministry. It is true, he added, that his importance had been greater than one would be led to think from his position as shown on this diagram. He closed his statement by saying that evidence to this effect would be submitted to the Tribunal (Session of 21 November 1945). Has this been done, and was the hearing of evidence really able to prove that Fritzsche had greater importance?

At the session of 28 February 1946, Sir David Maxwell-Fyfe introduced as evidence a “compilation of the elements of guilt” which, in a particularly impressive manner, demonstrates in how far the individual defendants are connected with the facts of which they are supposed to be guilty in the opinion of the Prosecution. The classification of the individual defendants follows from the table which is attached to this compilation as Appendix A. The Tribunal will have noticed that the Defendant Fritzsche is the only one not to appear on this table at all. This follows from the fact that he does not belong to any of the organizations which are to be declared criminal here.

A look at the organizational plan of the Propaganda Ministry, which was submitted in Brief E by the Prosecution (Session of 23 January 1946), also shows clearly that Fritzsche, even in his last position as Ministerial Director and Chief of the Broadcasting Division, was only one of 12 officials of the same rank. Such a position in itself excludes a priori the assumption that he could have determined the principles of policy, the principles of news presentation, and the principles of what may or may not become known to Germany and the world. It is true, Captain Sprecher pointed out—evidently in order to increase Fritzsche’s importance—that the Chief of the German Press Division held a unique position, but also did not pass over the fact in silence that he had predecessors and successors in this allegedly unique office.

When, in November 1942, Fritzsche was appointed Chief of the Broadcasting Division by Goebbels, he did not obtain a higher position in the civil service hierarchy as a result. His activity was purely administrative. It concerned technical organizational questions. In his affidavit of 7 January 1946 my client describes the administrative work connected with it. He also lists his numerous predecessors. Did it occur to anybody to indict these other persons also as major war criminals, or to call them supreme commanders of a propaganda instrument? Since this is not the case, the conclusion must probably be drawn that it was not Fritzsche’s official position which formed the basis for the Indictment.

Justice Jackson, too, pointed out (Session of 28 February 1946) that within the framework of the organizations under indictment here not all administrative civil service employees and division chiefs or state officials have been included as a whole; only the Reich Cabinet was named. Therefore, it can also not be imputed to Fritzsche—as is allegedly possible in the case of the members of the organizations—that from his position alone, and from the close connection of the individual members of the organizations they must necessarily have known, and fully and clearly understood the plans of the alleged conspiracy by virtue of their membership alone.

During Fritzsche’s cross-examination, an attempt was also made by the Russian Prosecution to magnify Fritzsche’s position. They introduced three protocols as evidence—namely, the interrogatories of the witnesses Schörner (Document USSR-472), Voss (USSR-471), and Stahel (USSR-473). But these documents cannot be considered as evidence. These depositions were used only to confront the defendant with isolated passages from them. Because of this limitation, I was able to dispense with the cross-examination of the three persons who signed these protocols. But Fritzsche did not fail to express his opinion on these passages, which were held up to him while he was being questioned on the witness stand.

In this connection I have to point to only one more thing: Not one of these three persons has even claimed to have had any insight into the internal organization of the Propaganda Ministry. None of the three depositions contains any definite statement of Fritzsche. On the contrary, these depositions contain mere judgments, judgments which we do not want to have from witnesses, especially not in a case where they cannot furnish any kind of substantial facts. For this reason alone, any value as evidence must be denied them. But aside from that aspect, they represent completely wrong judgments. They can by no means be derived from Fritzsche’s own statements which were submitted in this Trial by the Prosecution—namely from his radio addresses. If evidence against the Defendant Fritzsche bearing out these judgments could have been submitted, then, in view of the fact that the Prosecution could have obtained all of his radio addresses it would have been more to the point to submit here these statements made by him which would have enabled the Tribunal to form their own judgment. The transcripts of the interrogations contain only the summarizing statement that Fritzsche was Goebbels’ “deputy.” I confronted the witness Von Schirrmeister with this assertion, and he termed it as pure nonsense. Fritzsche had to say the same on the witness stand. There can be no doubt that the concurring testimony of both witnesses is correct. Finally, there are still hundreds of others who formerly worked in this Ministry who could verify the truthfulness of these statements from their own knowledge. I can state, therefore, that the attempt at magnifying Fritzsche’s positions, contrary to the facts given in the organizational chart of the Propaganda Ministry as submitted by Mr. Albrecht, is a complete failure.

Beyond that, the hearing of evidence had shown that Fritzsche was not the creator of the great control apparatus for the German press, as was furthermore claimed by the Prosecution (Session of 23 January 1946). On the contrary, it was Dr. Goebbels and other associates of his. Fritzsche could not have been the creator because of the time element alone. In the first place, for years he had merely been an employee. Then he became a consultant—Referent—and it was only since the winter of 1938-39 that he was one of the 12 division chiefs of the Ministry. When he became Chief of the German Press Division, the policy of the press was determined by Reich Press Chief Dr. Dietrich. As has been said already, he became Chief of the Broadcasting Division only in November 1942 and did not create anything fundamentally new there. Neither Goebbels nor Dietrich ever allowed the control of the German press and radio to be taken out of his hands. With regard to the details I wish to refer to the testimony of the witness Von Schirrmeister.

The fact that Fritzsche could have been neither the creator of the Press Division nor a leader of the German propaganda, as far as it emanated officially from the Ministry, is also shown by the other numerous statements both by Fritzsche, when questioned about it on the witness stand, and by the witness Von Schirrmeister. During his entire activity, Fritzsche actually never possessed any authority to give orders in these fields and could not have had it, owing to his rank in civil service, which would justify his being called the creator or leader of the press and radio in the Third Reich. On the contrary, between Dr. Goebbels, Dr. Dietrich, and himself, there were quite a number of other higher intermediary offices. In this connection I can also refer to what Lieutenant Meltzer stated in general about the importance of a state secretary in the Reich Propaganda Ministry and that of the Reich Press Chief, when he referred to an affidavit by Amann of 19 December 1945. He pointed out that the holders of these positions exercised complete control over the news service in Germany (Session of 11 January 1946; Document 3501-PS). Fritzsche never held either one of those positions. Incidentally, the Propaganda Ministry did not have only one, but three state secretaries. Besides, Dr. Goebbels had surrounded himself with a ministerial staff (Ministeramt). I believe it is appropriate to point here to this low rank because the Prosecution thought, as they did in other cases—for instance, in the case of the Defendant Göring—that they could conclude a special responsibility from a high rank; that is, from a defendant’s outward position alone. Therefore, one can by no means start from the assumption that Fritzsche exerted any decisive influence upon the conduct of propaganda in general and upon the policies which were pursued by the press and radio.

The tasks which Fritzsche accomplished on the technical side of the news system involved him only as a journalist and expert. They had nothing to do with the contents of the propaganda which was pursued by the state leadership. In this respect, too, he was only a person who carried out directives. It is true that he set up the technical organization of the journalist news agencies; he thereby modernized and perfected them. It is also true that this news system played a very important part later in the war. In that respect, Fritzsche’s work extended only over the period from 1933 to 1938. But it is a fact that in those years he did not have the least influence upon the contents and political trend of the news, particularly in view of the fact that he was a mere employee at that time.

I make these references to Fritzsche’s official position within the Propaganda Ministry also for another reason. In admitting what he did and said, and wanting to assume full responsibility for it—Fritzsche had an opportunity to explain in detail the cause for and contents of all the excerpts from his radio addresses submitted to him—he cannot, on the other hand, answer for theses which were championed by other offices of the state propaganda apparatus and also within his own Ministry. Still less can he answer for the unorganized propaganda of the Party. Fritzsche described the various controlled and uncontrolled kinds of propaganda of the Third Reich and pointed out their effects. May I remind the High Tribunal that the witness Von Schirrmeister testified to the effect that even Goebbels could not do anything with the “Party doctrines” and the “myth” in the field of propaganda. According to the witness, Goebbels did not regard them as things with which to lure the masses. When the Defendant Speer mentioned the secret agitation about the miracle weapons, he was able to point to other sources of unorganized Party propaganda. Fritzsche does not bear any responsibility for all that. His official position was not influential enough to be able to fight effectively against all faulty conditions and abuses. Therefore, his repeated attempts to have Der Stürmer banned—he considered this paper an excellent means of anti-German propaganda—remained without success. The Party propaganda with all its practical consequences played a much more important part than that which Fritzsche with his comparatively very limited functions could ever have played. I recall the fact that, according to Fritzsche’s testimony, even Dr. Goebbels was afraid of Bormann. This was explained by the portentous sentence according to which it was not the State which had to give orders to the Party, but inversely the Party to the State.

The hearing of evidence—especially the examination of the witness Von Schirrmeister—has thus shown, without any doubt, that the decisive directives for the propaganda of the Third Reich came from other agencies. Goebbels, from whom Fritzsche kept his distance personally, did not allow any of the subordinate officials in his Ministry to interfere with his plans. It has become evident that he carried out his plans with the authority of his position, with the adroitness of his arguments—which the world knows—and, if necessary, by means of fraud. The leadership of the German press policy—let us consider only this limited sphere—was and remained in the hands of Dr. Goebbels and Dr. Dietrich. The same thing happened with the radio, as the witness Von Schirrmeister has stated, when Fritzsche took over its direction in November 1942. Dr. Goebbels, one of the oldest and closest of Hitler’s collaborators, and Dr. Dietrich, Hitler’s permanent escort—during the war he was present almost uninterruptedly in his headquarters—never allowed the leadership of the press and radio to be taken out of their hands, especially by a man who, like Fritzsche, had no connections of any kind with Hitler and had not even had a single conference with him. Ultimately, Hitler’s will was decisive here, too.

We have furthermore heard the influence—it is of no importance here whether it was due to Hitler, Goebbels, or Dietrich—which other governmental agencies successfully exercised on the press and radio. Here I will mention the Foreign Office, the High Command of the Armed Forces, and other ministries, the heads of which were much more closely connected with the three afore-mentioned personages than, for instance, Fritzsche.

In order to avoid a misunderstanding, I would like to point out that the assertion of the Indictment that Fritzsche was in some way closely connected with the Party propaganda apparatus, for instance, with the so-called Reich Press Agency of the NSDAP, or the radio department of the Party, has been positively withdrawn by the Prosecution in the course of the Trial. With this, I think that I have sufficiently established the limits of the defendant’s responsibility. This limitation shows the inaccuracy of the widely spread opinion that Fritzsche occupied a very important and influential position in the “gigantic propaganda apparatus” of the Third Reich. This limitation not only takes into account the legal but also the moral facts, which have been clearly indicated by the hearing of evidence.

Thus to a certain extent I have already taken a stand against the charge that Fritzsche was a member of the alleged conspiracy. The Prosecution have repeatedly tried to incorporate Fritzsche’s work, at its different stages, in the alleged group of conspirators, and have drawn from it conclusions which go so far as to say that Fritzsche was therefore also responsible for War Crimes, for Crimes against Humanity, and even for Crimes against Peace (Session of 23 January 1946). Even in the arguments of the Indictment, these attempts seemed to have little relevant justification.

It is hardly any improper criticism if I declare here that it caused the Prosecution a certain embarrassment to display Fritzsche’s subordinate position as an official as so important and full of meaning. Today, now that the hearing of evidence is complete, it seems to me that the attempts to include Fritzsche in the circle of conspirators have failed. Fritzsche cannot be found at any of the sessions at which Hitler discussed any plans or actions with the closer or wider circle of his collaborators. And apart from this, he never actually took part either in any discussions which might have been of a nature to plunge the world into the blood bath of wars of aggression. He was neither an “old Party fighter,” nor was he decorated later on with the Golden Party Badge. He did not belong, as I had to emphasize especially, to any of the organizations which are here alleged to be criminal. Up to the end he fulfilled the functions of an official in a ministry and received directives like any other official. He could never have been a political adviser.

In view of the circumstances, the bridge between himself and the alleged conspiracy could have been spanned only by the person of Dr. Goebbels. The witness Von Schirrmeister has repudiated such an assumption. According to his testimony, Fritzsche did not even belong to the closer circle around Dr. Goebbels. Indeed, Von Schirrmeister could even state that Fritzsche often had to apply to him because he could not get Dr. Goebbels’ opinion on some question other than through him, as he was Dr. Goebbels’ personal press assistant. Communicating through the state secretaries—for instance, Dr. Dietrich, Dr. Naumann, to mention only a few—also involved certain difficulties. That is not the manner in which conspirators usually communicate. Moreover, the witness Von Schirrmeister has said that it was out of the question that Fritzsche could even have embarked on an exchange of ideas with Dr. Goebbels with a view to forming plans. Now, it would have been the task of the Prosecution to prove to the Defendant Fritzsche where his participation in the conspiracy can be seen. I say that one cannot consider any count of the Indictment as proved.

I think that it was not Fritzsche’s official positions at all which led to the bringing of an indictment against him. I rather assume that the latter is solely to be traced back to his broadcast speeches which made him and his name known—but only during the war—both in Germany and perhaps also in a part of the rest of the world. All the serious charges leveled against him can be traced back only to these radio addresses. The other assertions concerning his position within the state or Party apparatus are only based on assumptions or combinations without any factual basis, which is especially evident, for example, from the purely personal and refuted statements of Schörner, Voss, and Stahel. But his name became so well-known only because of the technical means he utilized. Only the great significance of the radio for the modern transmission of news made him appear in a special light. It cannot be denied that in this way he had a great influence on the German people, but from our own experiences of Nazi-ruled Germany, I can well say that every Gau speaker (Gauredner) and many a district leader (Kreisleiter) used much stronger language. But, as a rule, their speeches were published only by the local press.

The defense was handicapped with respect to these radio addresses insofar as the complete text of all of them could not be made available. Unfortunately, the excerpts quoted during cross-examination by the Russian Prosecution could not be supplemented by the entire text of the respective speech; thus there was no possibility of reproducing the sense which the respective address had at the time of delivery. I shall come back to this and give an example later. To submit only single passages or quotations to the Tribunal is especially inadequate, because such excerpts do not show that in his speeches Fritzsche always put the events of the day in the foreground. It was only rarely and incidentally that he drew any general ideological conclusions. But even what Fritzsche has said here about those of his addresses which the Prosecution were able to produce in their entirety shows a completely different picture of the cause and motives of his broadcast speeches. From 1932—that is, already before the seizure of power by National Socialism—up to 1939, these speeches were nothing but a political press review. And that is what they were called. They were therefore a collection of quotations from domestic and foreign newspapers.

Fritzsche does not dispute the fact that these collections were made on the basis of the interests of the National Socialist State. Only during the war—but right up to the end they were still based on quotations also from the foreign press—did these speeches become the platform for the polemical controversy which in time of war is naturally carried on from both sides. Without any doubt, they greatly contributed toward the formation of political opinion in Germany; but there is also no doubt that many people in Germany listened to Fritzsche’s speeches not for their polemics but in order to learn from his quotations at least something about the opinions expressed abroad. For years these speeches constituted purely private work carried out alongside his official position. Only during the war did they come to be considered as semiofficial because of their increasing political news value. Thus—to make it clearer—they assumed approximately the character of editorials in a newspaper which, as one says, is closely connected with the government. It would have been easy for the defense to submit to the Tribunal tons of newspapers dating from the same time, the editorials of which showed the same trend, and even—this can be said quite definitely—used considerably stronger language.

Fritzsche has been able to repudiate most decidedly—and in my opinion quite rightfully—that these addresses constituted an incitement to race hatred, to murder or violence, to hatred among nations, or to wars of aggression. If such an effect could really have been produced by these speeches, absolutely the same reproach should fall upon any editor of the Third Reich who received the “daily directives” from the Reich Press Chief. Fritzsche seems to be accused before this Tribunal only because through technical means he could be heard over a wide range. But it is, especially in wartime—and only since 1939 did his speeches have a political news value at all—in the nature of things, that the controversialist becomes himself the subject of controversy, especially the one whose influence, considered from the standpoint of political news value, extended further technically than the influence of an article in a local paper. Only in this manner did his name become better known to outsiders than names of people who were much more powerful than the publicist.

How far the Prosecution went in their accusations against Fritzsche in his capacity of a publicist is shown by the fact that not only is he supposed to have belonged to the plotting group of conspirators, but that he is also accused of Crimes against Peace. If a propagandist is subjected to such an accusation, there immediately arises the question whether public radio speeches would not be the least proper means for carrying through criminal aims of a secret conspiracy. Speeches, which can be heard all over the world, could at best be suitable for camouflaging such aims and for misleading the world. But actually, just the opposite reproach is leveled against Fritzsche: he is supposed to have incited other people.

I think I have now dealt at sufficient length with the nature and the character of these speeches. Their importance had to be adjusted to the proper scale in view of the far-reaching conclusions of the Prosecution.

Before going into the details of the charge that by radio speeches, or by other means, Fritzsche contributed toward the various wars of aggression, it is necessary, in a case in which accusations to that effect pertaining to criminal or international law are raised against a publicist, to deal with a legal problem. At no point, as far as I can see, did the Prosecution consider the question of whether and to what extent propaganda—that is, the attempt to influence minds—especially during war, was or still is subject to the rules of international law. Perhaps the problem did not come up only because this question, once it was asked, would have had to be definitely denied. While it is true that the Indictment speaks of the “gigantic propaganda apparatus” during Hitler’s dictatorship, which was created as a consequence of the supervision and control of all cultural activity, it does not draw any conclusions for a judgment according to international law. For, as a matter of fact, no generally or specially valid rules concerning this field have ever been established, no sort of prescriptive law developed in this sphere either.

In this connection, it is interesting that in the textbooks of international law no attention at all—as far as I could find out—is paid to this problem. A certain number of textbooks, however, especially those with a tint of natural law, regularly contain in their catalogs of fundamental international law a section on national honor or national dignity. These chapters deduce from the equality of nations, and their living together in a community governed by international law, the demand that the nations treat each other with respect. And they furthermore demand that insults directed against other countries by private persons from their own sphere of influence be prevented, and that if committed, such excesses be punished. But this idea found its positive legal expression only in a number of national criminal codes in which—naturally in peacetime only—the insulting of foreign chiefs of state, for instance,[1] is made a punishable offense. Another doctrine, which is based less upon natural law, holds that this is not a question of legal obligation but one of international courtesy only. Be that as it may, an international law precisely defined in some way does not exist, not even for times of peace, especially not as far as private propaganda through press and writings is concerned. And as to war, any directive in this respect is lacking altogether as I have already pointed out. According to existing rules of international law there are no limits to propaganda against foreign countries in time of war. Consequently, there is only one barrier to this propaganda—namely, the great barrier which governs all the rules of warfare that everything is permitted quod ad finem belli necessarium est.

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[1] Crimes Against Foreign Countries, Swiss Gazette for Penal Law (Schweizer Zeitschrift für das Strafrecht) 1928, Page 317.

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In view of the tremendous importance of psychological influence upon the will of individuals and nations, it is beyond doubt that propaganda can be an important and, in certain cases, even decisive means of war, no less important than, for instance, economic warfare or even warfare with weapons. Propaganda in this case has a double task: First, to serve as a means for increasing the power of resistance of one’s own nation, and second, to undermine the fighting powers of the opponent. This influence—whitewashing on one side, slandering on the other, concealment of facts, et cetera—is essentially nothing else but a stratagem which, within the framework of the rules of land warfare, has been expressly declared as a permissible instrument of warfare, according to Article 24 of the Hague Rules of Land Warfare. In this connection, it may be pointed out that spying—also a form of war stratagem—had likewise been declared as a permissible instrument of warfare by the Hague Rules of Land Warfare.

What has been said here is in complete accord with what is practiced by all countries; defamation of the opponent and his statesmen, making the opponent contemptible, falsifying the motives and intentions of the enemy, slanderous assumptions, assertion of unproved statements—all this belongs unfortunately to those means of propaganda which during a war are used on all sides and at an increasing rate.

Minor attempts, but only for the purpose of preventing war, are known from the time before the first World War. At that time, they had an even farther-reaching aim—namely, to contribute in general to an understanding among nations by means of a general moral and spiritual disarmament (désarmement moral). However, this goal was not reached before the first world conflagration of this century. After 1918 though, as a reaction after the great armed conflicts, this aim received a stronger uplift and became known to the world through the tasks imposed upon the League of Nations in this respect. This was indeed the first real attempt to start an intellectual disarmament. At the fifth session of the League of Nations in 1925 in Paris it was decided to found an institute for intellectual co-operation (coopération intellectuelle).

Further investigations, which lasted for years, resulted in numerous proposals, in the establishment of general committees and subcommittees, of sections and committees of experts with an incalculable wealth of documents. But nevertheless none of these great efforts converted the idealistic impulse and the longing of the nations for a “spiritual disarmament” and intellectual co-operation into sober and concrete legislation which would have imposed legal obligations on the individual states as well as on their nations. No results were achieved in pointing a way which in time of war would prevent hatred, incitement, distortion of facts, and provocation of other nations or nationals of other countries in all the possible modern forms of expression.

Even such well-defined and comprehensive propositions for a moral-intellectual disarmament as those presented by the Polish Government to the League of Nations in two memoranda of 17 September 1931[2] and 13 February 1932[3] had the same fate. These propositions aimed at using national legislation to prohibit any propaganda which might become dangerous for peace, and even any propaganda which aimed at a mere disturbance of the good relations between nations. Influence was to be exerted not only upon the big public news media but also upon the vast ramifications in the administration of every modern state, including even the revision of schoolbooks. These propositions which advised member states not to recoil even from censorship and measures of prohibition finally came to nought because they stood in direct contradiction to the deeply rooted conception that freedom of expression of opinion in intellectual matters could not be undermined by such exceptionally far-reaching police measures; this freedom of expression had to be preserved as an “inalienable right” granted by the Creator. And this opposition on fundamental principles ended matters. We have in the course of the Trial seen ample evidence of the effect which censorship and control of the press, radio, and films may have.

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[2] Letter of the Polish Foreign Minister to the General Secretary of the League of Nations. Official Number C. 602. M. 240. 1931. IX (Conf. D. 16); also reproduced in Peter Dietz’ Geistige Abrüstung, Pages 137-143; Erlangen Library under the Number U 36/3564.

[3] Propositions of the Polish Delegation covering the progressive achievement of moral disarmament. Official Number Conference D. 76; reproduced also in Dietz, Pages 143-145.

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The few bilateral agreements which were concluded after the failure of the Polish propositions of 1931 and 1932 are not worth mentioning here. They are concerned with certain forms of propaganda only, and solely with periods of good international relations. We can only express here the hope, therefore, that on the basis of international solidarity it will in the future be possible also to reconcile these two still opposing theses on a higher level.

In the course of this Trial a secret order was produced which had been issued by the High Command of the Armed Forces on 1 October 1938 (Document C-2). This document showed that the division for international law in the OKW had drawn up a chart for the event of an armed conflict, and this chart was to show the principles for dealing with any possible violation of the rules of warfare by friend and foe. With the knowledge of the legal vacuum existing in the field of propaganda in its broadest sense, it is stated there that from the point of view of international law it is absolutely permissible to make the opponent contemptible and to try to undermine his strength “regardless of how many lies and falsehoods are used for this purpose,” and that from the legal standpoint a rule for the future could even be established to the effect that if the enemy employed such propaganda, defense by means of “counterattacks” would be legally possible, and whereby “naturally the propagation of atrocity lies” must also be used. This may sound cynical and brutal. But unfortunately it fitted in with the customs of war, or rather, this undisguised statement originated in the legal lacuna which could actually be found in international agreements and in prescriptive law. Dr. Kranzbühler rightly stated here: In war the duty to tell the truth does not exist.

Owing to the period of time which has elapsed since the first World War and its propaganda methods on both sides, we can today consider the events of those days as belonging to history. At that time, too, all belligerents gave great consideration to their efforts to undermine the enemy by means of propaganda. But the legend of children’s hands cut off by German soldiers—a war lie, as Arthur Ponsonby proved in his book Falsehood in Wartime[4]—was still alive in a French schoolbook even in the midst of peace, nearly 10 years after the first World War.[5] Publications of all belligerent countries—drawings and cartoons dating from the time of the first World War alone—can be found in masses in all libraries. Many will still remember the film The Four Horsemen of the Apocalypse which showed terrible atrocities, and circulated almost throughout the whole world at the time of the first World War. Legally, this matter had unfortunately to remain unsettled up to this point. In view of the goal striven for by Justice Jackson in this Trial of creating a new international law, can the case of the Defendant Fritzsche as a publicist in the Nazi State be included retroactively? Can the desire of the Prosecution to see Fritzsche punished as a war criminal be derived from their assertion of a logical development of existing laws (Sir Hartley Shawcross, Session of 4 December 1945, a. m.) when up to now nothing, absolutely nothing, has been legally and properly ruled upon in the field of propaganda, and no promising beginnings of any kind have appeared in this direction? Here it is certainly not a question of only an apparent legal loophole (Session of 4 December 1945).

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[4] Arthur Ponsonby, M.P., Falsehood In Wartime, containing an assortment of lies circulated throughout the nations during the great war, published In London by George Allen and Unwin Ltd., Museum Street, 1928.

[5] In a schoolbook for Lorraine: Deuxième livre du syllabaire Langlois: (Second book of the Langlois Primer); which was still in use in 1927, and which refers to these alleged events on Page 156 under the heading “Remember”; reproduced in the Informations d’Alsace-Lorraine of 20 March 1927.

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What has been said, of course, does not include those cases in which individual crimes were actually incited by means of propaganda. Therefore, I shall now go into the individual charges of the Prosecution in order to show that Fritzsche is not guilty of having committed such acts.

As far as the alleged crime against peace is concerned, the Prosecution act on the assumption that any important political and military attack on the part of the German state leadership was preceded by a press campaign. Therefore, the Nazi conspirators must have used the press also as an instrument of foreign policy and as a feint to cover subsequent aggressive action. From that general, perhaps even correct, description of such intentions, the far-reaching conclusion is drawn that Fritzsche may also be partly responsible for them. Such responsibility would be based merely on the chronological circumstance that he was the Chief of the German Press Division within the official Ministry of Propaganda from December 1938 to the spring of 1942. But the premises are lacking for this conclusion. It could only be justified if it had been successfully proved that Fritzsche was the real creator and inspirer of all those press campaigns. But Fritzsche, if only because of his subordinate position—subordinate not only in regard to the departmental organization but also compared with the real leaders of propaganda, Hitler, Goebbels, Dietrich, and others—could know only what his superior passed on to him—as well as to other civil servants—as the historical truth.

May I bring to mind the fact that all witnesses who have testified in any way about the influence of the foreign policy on the press always pointed out that before beginning any political—and especially before beginning any military—operation, the Foreign Office justified the measures taken in the field of high policy before the public in White Books prepared by them. Just as in the case of other intentions or goals of the highest leaders of the Third Reich, the press, too, was informed in these cases only of that which the general public was permitted to learn, while matters not destined for publication were kept secret.

After hearing the evidence, what was the actual relation between the propaganda furnished by Fritzsche and the various military invasions, and what did he know of their background?

At the time of the occupation of Bohemia and Moravia, instructions were given him by the Reich Press Chief only a short time before the decisive step of 15 March 1939. These consisted, as in all other cases, of so-called “daily directives” (Document Number 3469-PS) which were given out at press conferences. Such daily directives thereby received publication in the headlines of German papers. It may be mentioned here, that the best known organ of the Party—namely, the Völkischer Beobachter, due to its direct connection with the Reich Press Chief and, during the war, with the Führer’s headquarters—was more independent of such daily directives, considering that it had a foreign news service of its own. What was printed in the Völkischer Beobachter does not, therefore, represent what had been approved by Fritzsche as leader of the German press. At that time, Fritzsche had already—and this attitude is of greatest importance with regard to all of his activities—established the principle for his press reports that untrue news should never be given to the press. The apparent reason for that was the fact that his predecessor in the German Press Division, Berndt, had had all kinds of news spread during the Sudeten crisis, by which he lost the confidence of German editors. Fritzsche, as well as the witness Von Schirrmeister, gave details about these matters on the witness stand.

It is not apparent in what respect Fritzsche played a greater part than any other officials or officers when the German troops marched into Czechoslovakia. Fritzsche knew just as little about what has been disclosed in this Trial about Hitler’s secret intentions at that time as he could have known about the Case Green plan. As head of the domestic press, he could have exercised no influence whatsoever on the propaganda possibilities which were to be made use of within Czechoslovakia proper (Document Number 998-PS).

The same is true of the Polish campaign. Here too, Fritzsche did not speak a single word in favor of any armed conflict, or deliberately spread any stories which might have supported any bellicose intentions. Even in his radio broadcast of 29 August 1939, which was held against him during his cross-examination (Session of 28 June 1946, Document USSR-493) he points out explicitly that there could not in fact exist any serious doubt about the German desire for peace. These and many other passages are particularly significant in proving Fritzsche’s good faith. He has expressed here his and the German nation’s disappointment that this desire for peace, which Hitler emphasized repeatedly, proved to be a lie, even a fraud. If one examines the full text of all the other broadcasts by Fritzsche shortly before and during the Polish campaign, none of his statements can be interpreted as favoring that war of aggression. The official reasons given at that time convinced Fritzsche, as well as millions of other Germans, that right was on Germany’s side. It was because Fritzsche had shared such a conviction, at that time, that he declared here on the witness stand that he, too, felt that he had been deceived by Hitler.

It was no different in the case of Yugoslavia. Here likewise, Fritzsche was able to learn only what facts were given to him and the many editors by the Reich Press Chief, facts which Fritzsche had no opportunity to verify if only because of the speed with which these events were developing, even if the thought could have struck him during the course of events that maybe the press was being made use of to provoke warlike measures.

The role of the press before the surprise attack on the Soviet Union was made particularly clear during this Trial. For reasons of strategy alone the entire propaganda machine—also including Fritzsche, as head of the Home Press Division—was not permitted to know the slightest thing about it in advance. It was especially this same campaign which Goebbels cleverly kept secret by simulating an intended German invasion of England. At that time, Goebbels deliberately led even his closest assistants on that wrong track, as was stated here by the witness Von Schirrmeister.

Fritzsche’s statement that he did not know anything about the secret preparations through the formation of a so-called Eastern Ministry was not refuted by the so-called Rosenberg report, which was read to him during cross-examination (Document Number 1039-PS). This is a document which has also played a part in other connections because of the many names it contains. At the same time, it is the only document which includes the name of Fritzsche in connection with any secret plans. From that document, which according to established facts was drafted by Rosenberg and some of his associates sometime around 28 or 29 June 1941—thus, after the start of the campaign—it is impossible to draw the conclusion that Rosenberg spoke with the Defendant Fritzsche before the decisive date. The draft does not bear any date or signature. Besides, Fritzsche is mentioned in it by the title of Ministerial Director which he was not given until the fall of 1942. This does not in any way appear to disprove Fritzsche’s statement on the witness stand that he never had been informed by Rosenberg either about an impending war with the Soviet Union or about the intended formation of an Eastern Ministry. Not until after the beginning of that campaign, and after the official announcement that a new Ministry had been established, were Rosenberg’s wishes with regard to the treatment of Eastern problems in the German press forwarded to him by the former’s assistants.

Thus Fritzsche’s deposition still holds, that in the case of the war against the Soviet Union, just as in the other cases, he did not learn anything until the moment when he was given the pertinent news for publication. You will grant that this does not permit the conclusion that he played the role of a conspirator who helped draw up the general plan, or at least knew of it. And it cannot properly be assumed that Fritzsche knew anything about the plans of the High Command of the Armed Forces in June 1941 (Document C-26), or even of the Bormann Protocol of 16 July 1941 (Document L-221)—both of which were submitted to him during his cross-examination. These negotiations show that actually they could have taken place only in the innermost circle. Moreover, the evidence which did not concern Fritzsche directly has shown that even military methods of deception had been used to conceal the plans. This has been stated by the witness Paulus and becomes clear from the report of the German military intelligence service (Document 1229-PS). The nature of all these things was such that they could well be withheld from a newspaper man. Even the witness Gisevius, who after all was always engaged in ferreting out secret ends, had to point out how much effort was required even within the High Command of the Armed Forces to obtain information, at any time, as to whether Hitler was planning a war or not (Session of 25 April 1946).

Accordingly, I can state in conclusion that the emphatic assertion of the Prosecution that Fritzsche as Goebbels’ accomplice helped the latter to plunge the world into a blood bath of wars of aggression (Session of 23 January 1946) is not justified. During my examination of Fritzsche he pointed out, in contrast to this, that whatever the facts may have been in individual cases, at every moment, from the advance into Austria to the invasion of Russia, he and the German public were given only such information as seemed to justify the necessity of the German actions.

Now, one could also conceive the charge of a crime against peace to be that Fritzsche constantly called on the German people to hold out during the conduct of a war of aggression. Naturally he did not spread any defeatist propaganda in the course of his radio speeches. I must, therefore, discuss the question whether this, or any sort of participation in a war of aggression, after the latter had broken out, should be considered as participation in the crime against peace and should be punished accordingly.

The French Chief Prosecutor, M. de Menthon, tried to draw the conclusion—proceeding from a literal interpretation of Article 6, Paragraph 2 (a) of the Charter, without regard for the real meaning of this article—that the soldiers and other agents of the aggressor state could not undertake any military operations at all which could be justified by international law. However, he was obviously compelled to recognize that in practice this idea must lead to impossible consequences. Thus, for example, he recognized the Hague Convention for the Rules of Land Warfare as a law which not only obligates aggressor and attacked nations alike, but also gives them rights. He thereby let it be clearly recognized by implication that, in his opinion, this stipulation of the Charter is to be interpreted restrictively.

In Article 6, Paragraph 2 (a) of the Charter the following are defined as Crimes against Peace: “The plan, the preparation, the introduction, and”—according to the German translation “Durchführung”—“waging of a war of aggression.” “Durchführung” is the translation of the English word “waging.” It would probably be more correct to translate it by “unternehmen” (undertaking). But in its natural sense, “unternehmen” means about the same as “beabsichtigen” (intending); whoever undertakes, pursues, intends something, has not executed it yet. The word “durchführen” could create the opinion that the crime against peace was not concluded with the outbreak of war, and therefore could extend over its entire duration. The result of this conception would be that all persons who participated in war operations, as, for instance, the Army leaders, all members of the Armed Forces, and, besides that, all persons who supported the war in any way—even by deliveries of war material and through radio broadcasts—would be punishable according to this stipulation. They had thereby at least contributed support to the waging of war. These persons could even be criminals against the peace, if they had in no way participated in the planning or preparation of it before the outbreak of the war, and even if they had no idea that any aggression was involved.

In reply to this, the following must be stated: Only those persons can be considered as waging a war of aggression who planned it themselves. They were just carrying out their common plan by starting the war, with or without a declaration of war. Thus “carrying out” is to be placed on the same level as “beginning.” The accusation of a crime against peace can affect only those who also planned it. This is supported by the following reasons. The punishment is intended to protect the peace against wars of aggression—that is, against unlawful wars. At the moment that such unlawful wars start—are “unleashed,” as the Indictment puts it—the rightful domain of peace has been violated; the crime against peace is consummated and accomplished. Therefore, no other meaning but “bring about,” “proceed to execute the plan,” can be attributed to the term “carry out,” or “undertake”—“waging.”

This interpretation is also consonant with the historical development of the concept of “crime against the peace” in international law. For years international law has made a distinction between war crime in the narrower sense and war guilt in the broader sense. War crimes are offenses against the rules of warfare, which have been established by agreement or custom, against the customs of war and, going further, also offenses against humanity. War guilt means being guilty of having brought about war, in particular an unjustified war of aggression.

This distinction also made its appearance during the negotiations about the peace treaty after the first World War. This has found expression in Article 227 et sequentes of the Treaty of Versailles. There can be no doubt that the concept of a crime against the peace within the meaning of the Charter is intended to be the same as this war guilt in its previous sense in international law. Article 6, Paragraph 2 (a) is supposed to refer to war criminals—that is to say, those who bring about an unlawful war.

The view that the subsequent support of a criminally instigated war was likewise a crime against peace necessarily led to entirely untenable consequences. In such a case, hardly one citizen of a country which had started a war of aggression would be guiltless. In its present-day form, war is no longer, as in former times, limited to an armed conflict between the armies. Just as both World Wars have shown, it has been extended to include the belligerent nations in their entirety and all their spheres of life. It has grown into total war—total in the sense that everybody participates in it. Even the woman who is making screws in a factory is a participant in this total war. And, as Professor Exner so vividly explained in his final speech, in a war of aggression every capture of prisoners would mean a deprivation of liberty, every requisition a robbery, and every shot a murder. To want to make all members of a nation responsible as authors of crimes against peace would be absurd. Moreover, a classification as to the kind and degree of a person’s contribution toward a war which had broken out would be impossible as a practical matter.

Crimes against Peace, therefore, can only be committed by those who participated in breaking the peace—while the vast majority who did not participate in it could not be counted in this category.

The point of view which has been developed here is, in my opinion, also represented in the Indictment. The latter views the crime of breaking the peace as realized by the act of “unleashing” (Entfesselung). In no place has it even been hinted that the crime itself, or its continuation, is seen to consist in the participation in a war or in supporting it by furnishing services or supplies of any kind. Even according to the phrasing of the Indictment, from the moment of the beginning of war onward, only crimes of the second and third group come into question—that is to say, War Crimes in the narrower sense of international law, and Crimes against Humanity.

In my opinion, Justice Jackson in his opening speech of 21 November 1945 also adopted the point of view which has been advanced here, whereupon Justice Biddle pointed out to him in the session of 1 March 1946 that, at that time, he had indicated that beginning the war was the essence of the crime and not actual waging of the war. That means, in other words, that with the beginning of the war of aggression, the Crime against Peace within the meaning of Article 6, Paragraph 2 (a) of the Charter, was consummated (breach of peace).

From these statements it follows that any activity in furtherance of the war during the war cannot represent any criminal act, nor can Fritzsche’s radio broadcasts which he made during the war.

THE PRESIDENT: The Tribunal will adjourn now.

[The Tribunal adjourned until 25 July 1946 at 1000 hours.]

ONE HUNDRED AND EIGHTY-SIXTH DAY

Thursday, 25 July 1946

Morning Session

THE PRESIDENT: The Tribunal will sit on now until 1 o’clock without any interruption.

I have an announcement to make.

When counsel for the Defendant Hess first made his argument, the Tribunal directed that he should rewrite it and submit it for the Tribunal’s consideration, as he had continually disregarded the Tribunal’s directives that the alleged unfairness of the Versailles Treaty should not be argued.

The argument as now rewritten by Dr. Seidl has been carefully considered by the Tribunal. It still contains many allusions to the unfairness of the Versailles Treaty, irrelevant material, quotations not authorized by the Tribunal, and other matters which have nothing to do with the issues before the Tribunal. The Tribunal have, therefore, deleted the objectionable passages and have directed the General Secretary to hand a marked copy containing the deletions to Dr. Seidl.

That is all.

The Tribunal direct Dr. Seidl to get in touch with the General Secretary’s representative. He will then see the passages which the Tribunal consider objectionable.

Now, Dr. Fritz.

DR. FRITZ: Mr. President, Gentlemen of the Tribunal: Yesterday afternoon I concluded my statement in response to the charge that the Defendant Fritzsche was guilty of a crime against peace.

The next group of accusations leveled against the defendant is, for instance, characterized by such terms as incitement against Jews, incitement against foreign nations, instigating the exploitation of occupied territories, propaganda for the master race.

On the witness stand, Fritzsche made a declaration which represents a summary of the knowledge he gained after the collapse and, above all, here in Court. It ran as follows: An ideology in whose name 5 million people were murdered must not be permitted to survive such a record. Now, to what extent did Fritzsche make propaganda for this anti-Semitism? Could he, by doing so, foresee the murder? Did he approve of it or at least accept it as inevitable? The Prosecution went very far in their assertions. They imputed that Streicher, as “the chief Jew baiter of all times,” could hardly have surpassed Fritzsche in his defamation of Jews. Fritzsche defended himself against this accusation, and rightfully in my opinion. A mere comparison of the slogans from the “arsenal of anti-Semitism,” which Sir Griffith-Jones read for hours from excerpts from Der Stürmer at the session of 10 January 1946, with Fritzsche’s statements submitted here by the Prosecution, shows this very clearly. Fritzsche, supported by the affidavit of Scharping, dated 17 May 1946 (Document Number Fritzsche-2), was able to point out what actions he undertook against this paper. It must also be noted here that the language and arguments of Der Stürmer found no echo in any German newspaper or at a single broadcasting station even of the National Socialist regime.

Before the war Fritzsche carried on no anti-Semitic propaganda of any kind. All utterances and statements of his submitted by the Prosecution originated during the war. They are, however, not directed against the Jews as a people or as a race, but are related only to the question of the origin of the war. They were merely casual, polemical remarks on the Jewish question in the propaganda battle which was fought in this war alongside the battle of arms. This explains the fact that the radio addresses submitted by the Prosecution never contain more than casual remarks, and never speak of the Jews alone. Every one of his radio speeches may be examined in this respect. Nor does there exist a speech by him which dealt exclusively with the so-called Jewish problem. He never undertook to talk on such a subject. Fritzsche always spoke, at the same time, of “plutocrats,” “bolshevists,” “democrats,” and used other such phrases by means of which the propaganda of the Third Reich felt obliged to conduct its fight. During his interrogation he dealt in detail with each of the radio addresses submitted in the Trial and discussed the reason he had each time for making his merely incidental remarks on this subject. An examination of all of his statements over the radio would show that of all the fundamental propaganda subjects of Nazi ideology, Fritzsche mentioned and advocated anti-Semitism least of all. This takes all foundation from the conclusion of the Prosecution. For there cannot be any connection between such occasional remarks on the part of Fritzsche and the murder order given by Hitler. I therefore expressly protest against the accusation that Fritzsche be considered more guilty than those men who carried out the shootings (Session of 23 January 1946).

In the course of this Trial we have heard much testimony as to what secret and ultrasecret means and methods were used by the really guilty ones to carry out this horrible murder. So many statements cannot be put aside as irrelevant and unreliable. In contrast with former assumptions, this Trial should have made it clear that there existed only a small group of instigators and abettors. It has not been proved, in the least, that a man like Fritzsche belonged to this closest circle of Hitler’s despotism. The Trial has even shown that he made the acquaintance of the majority of his codefendants only here in the dock. To draw such far-reaching conclusions against Fritzsche would necessarily lead to the assumption that everybody who took a public stand for anti-Semitism as such—if only with reservations—bears the same criminal guilt. The extent of the moral guilt is much greater. But we are concerned with it only insofar as the moral guilt is identical with the criminal guilt. And, therefore, there is no need to discuss here how far a mere error—even a political one—may at the same time become immoral. The accusation, however, of being coresponsible for these murders, was an especially deep blow to Fritzsche.

With regard to this it might be objected that, although Fritzsche did not maintain very close relations with his chief Goebbels and the other heads of the news service, he was yet one of those persons who had access to the foreign press and radio news. This is perhaps the reason why Fritzsche is accused of having had knowledge of almost everything that happened during Hitler’s rule. Fritzsche was able to state in the witness stand, while giving many details, that even with this opportunity his good faith was not shaken in the decisive—perhaps also moral—questions. Just as little as his profession as journalist gave him the opportunity to follow rumors up on his own, just so little in this way would he realize what was actually happening. The barriers which had been erected around the misdeeds, however, could not be broken down by him through these means.

With regard to foreign reports on atrocities and other misdeeds, Fritzsche, as well as Von Schirrmeister and, especially, Dr. Scharping, have stated that the examination by the office “Schnelldienst”—express news service—which was carried out in all cases, resulted time and again in official replies which eliminated doubts as to the inaccuracy of such statements from abroad. This office, the “Deutscher Schnelldienst”—German news speed service—which had an entirely different significance from that claimed by the Prosecution, was a control agency created especially by Fritzsche in order to have foreign news tested as to the truth of its contents through inquiry at the competent German official agencies. If the Defense had succeeded in submitting the records of this “Schnelldienst” to the Tribunal, documentary evidence could have been offered in every detail for the way in which German authorities answered inquiries of this kind. For instance, the Reich Security Main Office knew in a masterly and deceptive way how to make its replies sound credible. The foreign propaganda which was to serve a definite purpose could in comparison lay no claim to a greater power of persuasion—this all the more since the enemy propaganda in wartime also brought, of course, really incorrect reports, of which fact Fritzsche often felt quite convinced.

Furthermore, Fritzsche has been accused of advocating the doctrine of the master race. The only statement by Fritzsche himself which the Prosecution submitted in regard to this point shows clearly that Fritzsche neither championed nor promoted such an idea; that, on the contrary, he expressly rejected it. An examination of the quotation presented by the Prosecution does not leave any doubt about it. Beyond what the hearing of evidence—the witness Von Schirrmeister and the affidavit of Dr. Scharping—has shown as to how Fritzsche prohibited the use of the words master race for press and radio altogether, Fritzsche himself under oath termed this accusation nonsensical. Therefore, after thorough examination of all obtainable speeches by Fritzsche, I can only state that this charge is untrue. Nothing is changed in regard to this statement by the fact that Voss and Stahel (Documents USSR-471 and 473) judged differently without giving any concrete facts. I have already dealt with the value of those documents as evidence.

Fritzsche allegedly stirred up hatred against foreign peoples. To prove this serious charge the Prosecution emphasized several excerpts from two of Fritzsche’s radio addresses, which were held on 5 and 10 July 1941. In order to be able to understand correctly the circumstances underlying the speeches, one must take into consideration the dates on which they were held. They were made shortly after the attack on the Soviet Union. He is not charged with any further statements—made, for instance, at a later time—or similar ones which might lead one to suppose some systematic line of thought. When the passages cited by the Prosecution were supplemented by the full text of the speeches, and by the examination of Fritzsche on the witness stand, it was shown that Fritzsche did not slander the peoples of the Soviet Union. Neither could what had led up to these speeches have given him any reason to stir up hatred against that country. They were held shortly after German sources, and in particular war correspondents, had reported atrocities in towns in Galicia which had been conquered by German troops. These were things which were reported everywhere in Germany—and also by foreign correspondents—in print, pictures, and motion pictures. In this respect, there was an especially great volume of material, and in his speeches Fritzsche expressly referred to it. Fritzsche’s statements reflect the agitation of the German public over these reports, and he pointed to those presumed to be guilty of the atrocities. The facts, as such, were also confirmed by the Russians. The latter added, however, that not the Russians but the Germans were guilty of these actions. What happened was only that, on the basis of undeniable facts, a controversy had flared up as to the responsibility—just as happened later in the famous case of Katyn—in which both sides morally condemned the instigators.

In neither of those speeches, as an examination of their entire contents would reveal, did Fritzsche designate entire nations as inferior or subhuman. His phrases about subhumanity referred only to those culprits whom in real indignation he pilloried as morally contemptible. He found it reasonable to believe the proofs presented by the Germans, and, therefore, there is no reason to assume that, at the time he held the speeches, he could have predicted what actually was to happen in the East much later. Therefore, there could not have existed any intention on his part to stir up his audience to engage in similar actions. It is impossible to establish any causative connection on the basis of two such words he had once spoken.

The same is true of the excerpts from a speech of 29 August 1939, which General Rudenko read to him during his cross-examination (Document USSR-493). That broadcast also refers to atrocities committed shortly before the outbreak of the war in Bromberg, and concerning which, on the day of the speech—that being the reason for it—an official White Book had been published. It contained a short account of the results of an investigation of those atrocities. Only the guilty ones were designated by Fritzsche as inferior human beings. But it is not justifiable today to generalize this opinion to such an extent, as if he had designated the entire Polish nation as inferior. Fritzsche considered the representation in the official White Book as correct. He could not have doubted the fact that Poles had killed Germans. However, no word in that speech allows for the conclusion to be drawn that he envisaged the possibility or even suggested that the Slavic nations be exterminated. Fritzsche no more than the German people could imagine anything like it at that time.

General Rudenko attempted in his cross-examination to prove that my client had made false statements. For that purpose an excerpt from his broadcast of 2 May 1940 was presented to him (Document USSR-496, Session of 28 June 1946). This is the example I mentioned before as proof of the insufficiency of such evidence in general. In it Fritzsche gives a description of the towns, villages, and hamlets in Norway which he had visited shortly before, and which had been spared by the war. The Russian prosecutor pointed to the official report of the Norwegian Government (Document 1800-PS) enumerating the damages caused by the war. Thus the impression was created that Fritzsche had lied to his audience. The full contents of that speech show, however, that the quoted sentences regarding undamaged houses in Norway stand directly next to other sentences in which Fritzsche himself depicts the destruction caused by the fighting in Norway. The speech does not contain a lie if Fritzsche reported in it that in other parts of the country he visited not the slightest trace of fighting was found. His description, therefore, is not in the slightest contradiction to the Norwegian Government report.

At this point, I should like to insert a few remarks about the case of the Athenia, and the part that Fritzsche played in this connection. This case shows to what extent Fritzsche was at pains not to retransmit reports until they were proved to be true and reliable. But it shows, also, how dependent Fritzsche was on the version of the official German offices. This is evidence of his good faith; for it seemed natural to him, and he took it for granted, that official announcements were to be accepted without questioning, and this conviction could not, at that time, be shaken.

That particular article in the Völkischer Beobachter, dated 23 October 1939, has been rightly described in this Trial by all parties as contemptible. Now, Fritzsche also engaged in polemics on this point in sharp although not similar terms. I take the liberty of pointing out that such remarks could be morally condemned only if Fritzsche had known beforehand that it was actually a German submarine which sank the Athenia, but, as he has testified under oath, this fact first became known to Fritzsche here in Nuremberg, in December 1945. Up until then, he was the very person from whom this decisive circumstance was withheld although he had, through the naval liaison officer, undertaken investigations at the High Command of the Navy, and other official offices within the Ministry of Propaganda, concerning the assertions made in foreign reports.

To support the charge that Fritzsche instigated the ruthless pillage of the occupied territories (Session of 23 January 1946), the only evidence submitted is a statement made on 9 October 1941. In this, a passage from a public speech made by Hitler a few days before is reproduced. I have taken the greatest pains to find any instigation for the ruthless pillage of occupied territories in this quotation, or in the remarks made by Fritzsche about it in his radio address. It is impossible for me to see how any one sentence can possibly convey anything to this effect. I can only assume that it is a case of a misunderstanding and leave it for the Tribunal to judge. In no other connection has Fritzsche spoken a word or given a hint to this effect and, least of all, openly called for such a thing. Moreover, it is to be gathered from Dr. Scharping’s affidavit, dated 17 May 1946 (Document Fritzsche-2), that the use of any kind of coercive means against other nations would have run counter to the purpose of his whole work, including that within the Ministry of Propaganda—namely, to gain the voluntary co-operation of the European peoples.

It has also not been proved that Fritzsche really knew about the manner in which foreign workers were actually recruited. I would point out that the Defendant Sauckel stated that he had only one brief and unofficial talk with Fritzsche, and that in the beginning of 1945. In his affidavit Fritzsche further gave exhaustive details on the fact that he obtained extensive material from competent authorities to be brought to the attention of the German public, and in which the voluntary character of the recruitment of workers for employment in Germany was continually pointed out. It is not to be assumed that any information concerning this was given to the Ministry of Propaganda other than that provided by Sauckel in his report to Hitler (Document 407-PS).

Moreover nothing has proved that Fritzsche approved, or even used for propaganda purposes, the violations of international law already committed or intended, such as the so-called Commissar Order, or the lynching of enemy aviators who had been brought down. With regard to the Commissar Order, the Russian Prosecution charged that the defendant, as a soldier, a member of the 6th Army, received knowledge of this decree. This has been confirmed by Fritzsche. He could, however, point out that his attitude had not only been passive; he even, and this must be said, took a successful stand against this by way of proposals to his commander-in-chief, the witness Paulus (Session of 12 February 1946). General Rudenko’s charge that in spite of this he remained in Hitler’s service—although he should at least have assumed that Hitler was the author of such an order contrary to international law—is not a reason for accusing Fritzsche as a propagandist, or even as far as his ethics are concerned. Gentlemen, if such an accusation with a criminal legal foundation could be made, it would affect every German soldier who fought on for his fatherland in the East after the autumn of 1942.

Fritzsche also protested against the fact that Allied fliers were to be treated contrary to international law. When he learned this, he spontaneously refused any propagandistic activity for Goebbels in this respect. These facts have been definitely ascertained through thorough examination of him on this subject and through Dr. Scharping’s affidavit (Document Number Fritzsche-3).

Furthermore, no charges can be made from what he said in his radio speeches, about the use of new weapons and the Werewolf movement with which he has been charged by the Russian Prosecution on cross-examination (Document USSR-496). I can be spared mentioning particulars in this connection because Fritzsche testified in detail. The speech of 7 April 1945 (Document USSR-496), with which he is reproached, does not in the least glorify forms of warfare contrary to international law. It rather attempted to find a psychological reason or excuse for the active participation of civilians in the fighting toward the end of the war by referring to the suffering of the German people through the effective air warfare of the Allies.

I still have one point of the evidence to refer to. General Rudenko submitted to Fritzsche a short document at the end of his cross-examination (Document USSR-484). It is a copy of a short message, signed by Fritzsche, dated 19 October 1944, addressed to Major Von Passavant, a wireless expert of the Propaganda Branch of the OKW. The Russian Prosecution wish to conclude from the contents of this communication that Fritzsche had committed himself in the preparation and execution of some kind of “biological war.” Such a conclusion cannot possibly be drawn from the contents. It is merely a covering message of five lines referring to the transmission of a letter of a radio listener to another department. Fritzsche’s department received daily whole stacks of letters from unknown radio listeners. A subordinate official looked through such letters, of which hundreds arrived daily, and directed them wherever they would perhaps receive special consideration. The letter of the radio listener Gustav Otto, from Reichenberg, which apparently contained a suggestion to carry out biological warfare, followed exactly the same route. Although Fritzsche, in his capacity of department chief, signed the transmitting letter composed by the subordinate official, he naturally did not know anything about the contents of the listener’s letter. In view of the large number of daily communications from listeners, it was completely impossible for him to read them. This listener’s letter, in any case, did not receive any special attention in the broadcasting department. The copy of the transmitting letter, as can be seen from pencil notes made thereon, was also immediately filed. How can anything unfavorable be deduced against the Defendant Fritzsche from this sort of evidence? Especially as it is completely unknown what the unknown listener meant by a “biological war.”

Finally, I have yet to point out the following. General Rudenko read the document on the occasion of the cross-examination (Volume XVII, Session of 28 June 1946), and from a Russian text; the German text, which appears in this form in the German transcript, and the English text, which appears in this manner in the English record, differ considerably in content from the original German text. If notwithstanding the insufficiency of this document—the meaning of which could in any case be clarified only by the appendices which are lacking—the Tribunal believe it deserves consideration, the first requirement would be to have exact translations made from the original German text.

In concluding my evaluation of evidence, I wish to say that none of the documents brought up during the cross-examination of the Defendant Fritzsche could modify the impression which he gave us during direct examination—that is, his having spoken sincerely and truthfully before this Tribunal, and that because of his own desire also to make every possible contribution on his part so that an actual foundation for a proper judgment may be found. And going even further, all the statements made by Fritzsche were supported in all decisive points by the documents which I submitted, and particularly through the testimony of the witness Von Schirrmeister. The latter, who during the most important period between 1938 and 1943 was the daily companion of Goebbels, was able to report directly, and, I dare say, with great clarity, on the true conditions in the Ministry of Propaganda. The result of the evidence—I may repeat here what I expressed in my introduction—was unequivocal for my client.

Contrary to the announcement made by Mr. Albrecht, which I mentioned at the beginning of my final pleading, nothing during the proceedings could corroborate the contention that Fritzsche’s importance in reality was greater than that shown in the diagram of the Ministry of Propaganda. The discussion of the bare facts alone ought to have made clear that Fritzsche can bear no responsibility for what is the actual part that may have been played by the extensive propaganda machinery of the Third Reich in the plans which were in the hands of a small initiated circle. If the restricted department in which Fritzsche worked was misused, then Fritzsche himself was misused. The assumption that Fritzsche was Goebbels’ closest collaborator, his right-hand man, so to speak, and even his acting deputy—an assumption from which the bulk of the accusations leveled at him are probably derived—is refuted by facts which have come up for discussion. The odium against Fritzsche, on the alleged ground that he bears a responsibility equal or similar to that of Goebbels, has already been definitely shown by the evidence to be unfounded. Even from the dealings and actions themselves of my client it ought to have become clear that the assertions of the Prosecution have gone much too far.

In the legal consideration of those acts and dealings of Fritzsche by Captain Sprecher, it was quite striking that—as far as I can see, at only one point and here, too—as distinct from the other defendants was the quite general conclusion drawn that Fritzsche was, during a definite period, a principal conspirator because he was directly entrusted with the manipulation of the press (Session of 23 January 1946). I need not mention again at this point that the factual prerequisites for such an opinion did not exist. Now I am only concerned with establishing, with regard to the legal qualification by the Prosecution themselves, that in discussing his case his activity will be judged only in the sense of forms of participation.

The Indictment points out in several places (23 January 1946 a. m.) that Fritzsche had been called to account by this Court because of aiding and abetting. He is characterized as an accomplice of Goebbels; he is said to have assisted in producing propaganda material, helped create an atmosphere of hatred, lent support, et cetera; whereby it becomes obvious that he could not have been one of those who did the planning. On the other hand, it is also said of this defendant that he was an active instigator and inciter and that, therefore, he stirred up and aroused people’s passions. The first question now is: Does the accessory also belong to the participators within the meaning of Article 6 of the Charter? This question, it seems to me, has not yet been discussed by Dr. Stahmer; but the case of Defendant Fritzsche offers an opportunity for this because by the Prosecution themselves he has been characterized only as an accomplice. I am, therefore, compelled to give the question closer scrutiny.

The four concepts, leader, organizer, instigator, and participator, are presented as being equally important. Perpetrators coming within these four possibilities are also to be dealt with equally. These four concepts, insofar as they differ textually, can consequently only explain in what different forms a plot can be fashioned. One person instigates, the other organizes, another leads the gang, still another takes part in the plot in some other way. Therefore, all four concepts are closely connected with the common plan. They are united only because of the common plan. Only that makes them true accomplices. To make plans jointly, to want jointly to carry something out, that is the primary concept ruling these four secondary concepts. Only the functions in themselves may, of course, be different. They can also be divided by the conspirators themselves. If the conspirators have jointly invented the plan, have formulated it or, by agreement, have merely furthered it, then it should be of no consequence which part each one of them plays in its execution. It should, therefore, also be basically unimportant whether within this plot someone is the leader, the inspirer, or merely another participant in the plan. But, everyone presumably must be a party to the plan. At least, he must have recognized its purpose, for according to the words of the Charter, he must have participated in it, and that either (a) in the formulation, or (b) in the execution—but only of a common plan—or (c) in some other conspiracy for the commitment of an individual crime. Only then is he responsible for others when in the execution of such a common plan someone commits a crime. The word “accomplice” refers therefore to the plan. He is an accomplice in the plan, and is in no respect different from the leader or instigator. A wider meaning in an accessory sense must therefore be not far removed from this concept.

In common law, the concept of accomplice as a guiding principle has also an altogether different meaning than accessory. By accessory, according to the prescriptive legal conception, only one of the forms of complicity is understood, and that is the form by which a deed by another person is only supported or furthered, a deed which the accessory does not exactly want to be his own; it means the mere support of the main deed. Article 6, last paragraph of the Charter, cannot have such a meaning. There the participant is to be put on an equal basis with the accomplice, whereas in common law the accessory, as subordinate participant, can never be accomplice in a punishable deed. In common law the assistants are merely accessories. It cannot have been the intention of the creators of the Charter to regard the mere accessory as participant in the plan; for whoever participates in a plan is to answer fully for the deeds of others, even if he has only subordinately participated in the formation of the plan. But if the opposite is true, then it must follow that whoever does not participate at all in the formation or discussion of a common plan can therefore not be charged with full responsibility for what others have done. It is thereby immaterial whether the others committed a crime in the execution of a plan or only incidentally upon the occasion of its execution. The responsibility of the one for the deeds of the other can only exist when the plan binds them together. It is for this reason that the concept of conspiracy presupposes of necessity the idea that what is being done takes place under the impulse of a common will and a common knowledge in relation to the plan.

This description of participation as restricted to the plan is, in my opinion, expressed also in other parts of the Charter. In Paragraph 1—and not only in Paragraph 6, Section 1—it is stated that in execution of the Four Power Agreement of 8 August 1945, at first the “principal war criminals,” the “principal culprits,” the “principal conspirators,” should be called to account here before this Court. Assistants, accomplices, simple agents of execution, and all other merely dependent, accessory perpetrators who do not belong to the central body—that is to say, who are not connected with the conspiracy plan or in closer agreement for the carrying out of a single crime—cannot be considered as belonging to such a group. Within the meaning of conspiracy and the responsibility of the one for the other connected with it, there can be no simple “helpers” at all.

As concerns the Defendant Fritzsche, I have demonstrated that—if only due to his position in the State and the Party structure—he can neither belong to the restricted group of conspirators nor to the wider group of the organizations. Moreover, Captain Sprecher has himself pointed out (Session of 23 January 1946) that Fritzsche is not represented by the Prosecution as the type of conspirator who would have thought out the all-comprehensive strategy, that his particular field lay even outside the framing of the plan; but that it was not necessary for him to have correctly understood the basic strategy—to have perceived the aim when he was the spokesman of the conspirators. I believe that this conclusion, if the concept of “participator” within the meaning of the conspiracy is rightly estimated, contains an error of thought. He of whom it is said that he even stood outside those who made the plan definitely does not belong to the group of conspirators.

After these legal arguments, which are even supported by the opinion of the Prosecution, I come now to this conclusion: The Defendant Fritzsche, against whom it has not been proved here that he took part in any common planning, can on this account not have been a participator in the alleged conspiracy. At any rate, he cannot be punished according to Article 6, last paragraph of the Charter. According to the underlying conceptions of the Charter there should be somewhere a limit fixed concerning the indictment of an individual person in these trials. When is someone still an accomplice, and when is he no longer that but only a tool or accessory? Where is this boundary through which the responsibility for one’s own deeds can be separated from the responsibility for what others have done? Because there must be a dividing line for this collective responsibility also. I think the common plan constitutes this dividing line. He who does not belong to those who do the planning must also be left out of the group of conspirators.

On the other hand, the framers of the Charter provided for the possibility (a) of pronouncing an individual culprit a criminal even though he does not belong to the group of conspirators, and (b) of declaring an organization as such a criminal organization.

If the Defendant Fritzsche does not belong to the group of conspirators and, as is definitely established, was never a member of even one of the organizations being prosecuted here, he could be convicted only if he as an individual had committed crimes as covered by Article 6, Paragraph 2(a) to (c) of the Charter. In that case, however, just as in any ordinary criminal procedure, the Prosecution must furnish proof of a criminal offense. If he does not belong to the conspiracy, if he does not belong to an organization, the Prosecution cannot rely on a so-called legal assumption, an assumption which is supposed to result from the mere membership in an organization. It is not possible to reverse the evidential proof. The second question then is: Did Fritzsche, as an accomplice or abettor, belong to the class of those criminals of whom it has been proven that they as individuals committed crimes against peace, violations of law governing warfare, or crimes against humanity? He as an individual is not charged with committing any one of these crimes with his own hands. The charge is directed against him only by reason of his activity as an accessory.

As far as I can see, the concept of the accessorial accomplice is not foreign to English and American criminal law.[6] However, common law is governed by the principle that the accessory falls into the same class as the accomplice, in other words, that, irrespective of the measure of his personal culpability, he should be punished, in principle, just like the perpetrator. It seems that at all times English law was inclined to apply the principle of equal punishment for perpetrator and accessorial accomplice.[7]

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[6] Chronological differentiation: Accessories before the fact, principals, accessories after the fact. A differentiation of principals is also made according to the degree of the matter, dividing them into matter of first degree and of second degree; the latter are also segregated into those who assisted in execution itself through advice (abetting) or those who lent aid during commission of the deed (aiding).

[7] Mention should be made that an English law (act of 1861), for example, makes a differentiation between accessories and abettors, abandoning—even though merely as a matter of choice—infliction of equal punishment in the case of different types of crimes, so that in the case of felonies equal punishment may be inflicted: “may be punished”... In case of misdemeanors, it is true, equal punishment must be imposed: “shall be liable to be punished.”

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The reason for referring here to English common law is merely in order to establish a link with the German concept of law. It is, therefore, sufficient to establish at present that English and American law also differentiate between the concept of a perpetrator and that of a mere accessorial accomplice. On that point, therefore, a decisive difficulty arises, resulting from the fact that there is a difference in the concept of right and wrong between the Prosecution and the defendants. The concepts are bound to be different because their statute law is not the same. That is the reason why I cannot as yet conclude my legal argumentation. Differences in conceptions, although familiar to both legal spheres, result in entirely different legal inferences as far as statute law is concerned.

The British chief prosecutor (Session of 4 December 1945 a. m.) referred to the individual responsibility of each single defendant according to the meaning of Article 6, Section 2(a) to (c) of the Charter. In that connection he remarked that it is a commonplace in common law that persons who help a criminal and shield him, who give advice and help to a criminal, are criminals themselves. By stating this he possibly represented the view that, according to the spirit of the development of English law, such persons, by reason of their complicity in someone else’s deed, must be punished in the same manner as the main perpetrator—that is, the accessorial quality of the accomplice, if I understood Sir Hartley Shawcross correctly, is in principle of no importance even with respect to common law. In practice this might mean that a legal distinction between accomplices and accessories plays no part here, or at best might determine the degree of the respective responsibility for the measure of the individual guilt. Is the one who merely supports the deed of someone else to be judged, in principle, in exactly the same way as the one who wants the deed to be carried out as his own? I may refer to the effects which such an interpretation could have on the measure of punishment for example.

At this point it might be in order to say this: the legal maxim propounded by Sir Hartley Shawcross may indeed be commonplace for every adherent to the English and American law, but this does not hold true for a German defendant. As I also infer from the argument of the French prosecutor, Dubost, this does not seem to hold true for French common law, either, because he pointed out that, according to the principle of penal law, strictly speaking, none of the defendants could in that case be considered as main perpetrators but merely as accomplices. And because the confines of common law concepts are too narrow, it is the opinion of the French Prosecution that the deeds which are to be adjudicated here are not equal to common law with its rationalistic statics, that it would be necessary to apply a law which goes beyond this (Session of 1 February 1946 a. m.). The concept of conspiracy, therefore—the science of the plot (Komplottlehre)—and the possibility to declare an organization criminal, are to be the vehicle by means of which it will be possible to go beyond common law.

However, how about the case of a defendant who does not belong to the conspiracy nor to an organization? After all, law is to be applied! This then leaves nothing but common law for judging the individual deed. Which law is otherwise to be applied for such general concepts as for instance, guilt, intent, negligence, but also for the accessorial quality of the accomplice? It is possible that through the establishment of new facts, the Charter created new substantive law. But what is the juridical concept with which to approach these new facts? The classification of the actual circumstances of a case will probably have to be made only by means of the analogy of penal law concepts. With regard to the facts of the case listed in Articles 6(b) and (c) of the Charter, these correspond essentially with the facts of a case in common law. A defendant as an individual who did not take part in drawing up the plan, and who did not belong to an organization, can then be judged only according to principles which also must apply for every other delict of common law. If concepts such as, for instance, an accomplice who acted as an accessory are involved, argumentation against a defendant can take place according to common law only.

German legal ethics have had to face the most complicated legal problems, particularly in connection with the doctrine of the forms of participation; in other words, with the question as to how an accessory should be classified according to the various possibilities of participation. From this in particular results the decisive question: Is it possible that the Charter went so far—I repeat, what is involved are common law concepts—as to prohibit taking into account the deep-rooted legal concept of those accused here in judging an accomplice who acted as an accessory? Is it possible that it entirely ignored even the completely different structure of statute law?

In view of the utterly different nature of statute law, especially with reference to the question of accessorial assistance, I ask permission to make a few remarks on the legal dogmatic conception of German law. In all fairness, and at least as far as the concept of an accessorial accomplice is concerned, a German defendant can be charged only with what is known to the concept of law adopted by his people and which, at the same time, is in keeping, morally, with his sphere of knowledge. That is the decisive point!

By reason of the provisions of statute law in Paragraph 49 of the Reich Penal Code, there is not only a strict separation between the accomplice and the perpetrator, as far as the concept is concerned, but necessarily, and as a matter of principle, he is also to be punished less severely than the perpetrator himself. Jurisprudence and the administration of justice, therefore, have made a sharp distinction between the perpetration of an act itself and the mere abetting or support of somebody else’s act by the accomplice. This distinction, is made not only in accordance with external characteristics, objective factors, but also with regard to what occurs in the mind, and thus with subjective factors. During decades of German administration of justice, particularly that of the Reich Supreme Court, this is expressed in such a way that, in the case of assistance in somebody else’s action, the accessory is said to have the animus socii, but the perpetrator himself the animus auctoris. According to German law the assistance seen from the exterior—that is, according to objective factors—is only a furtherance and support of the action of the principal perpetrator; the accessory must have helped to bring about success by his support.[8] If he has not helped to bring about this success, then he is not an accessory—then his action is not punishable.

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[8] Reich Court 56, 168: “A condition for the action of another person must be established objectively.”

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Concerning the mental side of the deed, the intent, the will of the accessory animus socii must be directed to the end that somebody else’s action is supported with his knowledge. And so when judging what is going on within the mind of a perpetrator, German law also makes a sharp distinction between will and knowledge.[9] And this discrimination is furthermore decisive as to whether somebody has given assistance at all.

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[9] If I am not mistaken, this corresponds roughly to the distinction between the act of intent (vicious will) and the ability to distinguish between good and evil (some blameworthy condition of mind) of English legal theory.

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I have stated before what Fritzsche could have known about plans or their execution from his duties. Only if it has been proved that he had a definite knowledge and will as an accessory to the plans, could he be convicted. It would also have to be investigated in the case of the Defendant Fritzsche whether what he knew and wanted in connection with an alleged furtherance is identical with what someone, as a principal perpetrator of a crime, then actually did. Only when the knowledge and intent of both agree, can there be question of an accessory at all. In this connection, it is to be emphasized that a vague knowledge, a very general intent, is not sufficient to establish the state of being an accessory. The accomplice must be concretely aware of the elements of a plan which another is to carry out in accordance with his intention.[10]

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[10] These legal principles have been developed on the basis of Paragraph 49 of the Reich Penal Code in many decisions of the High Court of Justice of the Reich; the reproduction of at least one of these decisions seems appropriate to explain the German legal theory. As early as in its decision of 7-10-1890 (RG. 21, 95) the High Court of Justice of the Reich formulated the question as follows: “Because the substance of being punishable as an accessory lies in knowingly furnishing help in the commission of the perpetrator’s offense, it does not only presuppose that the accomplice must have had knowledge of all the essential characteristics of the deed to be committed, but also that his will, his intent, was directed toward supporting and furthering the execution of this specific, concrete deed of the perpetrator by his assistance. The deed that was actually committed or intended must coincide to this extent with that which was knowingly supported by the accomplice in all essential characteristics. If this agreement is lacking, especially should the perpetrator use the assistance given him for the execution of another deed or for a more serious deed which for special reasons remained unknown to the accomplice, this cannot be ascribed to the accomplice. His criminal responsibility extends only as far as his intention to furnish assistance goes and finds fulfillment.” Compare to this also the decisions, in RG. 15, 316; RG. 37, 323; RG. 56, 350.

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The Prosecution, however, also charge Fritzsche in various points with instigating specific crimes as an accessory. And so the third question is: Has Fritzsche been the instigator of any single crime?

At the beginning of these legal statements, I already referred to the details of Captain Sprecher’s prosecution speech (Session of 23 January 1946). To me it is doubtful if here the concept of instigation is meant in the legal-dogmatic sense of common law. The concept of incitement is used essentially to the extent that it corresponds to the German legal concept of mere invitation (Aufforderung). This charge of instigation can only be raised insofar as it can be said to concern the individual responsibility of Fritzsche for a specific crime mentioned in Article 6, Paragraph 2(a) to (c). The assumption that Fritzsche was a possible instigator to a common plan within the group of conspirators cannot be substantiated, in any case, in accordance with what I have already explained earlier. Instigation as an accessory form of participation in the general legal sense presupposes, however, contrary to the case of an accomplice in which, a criminal will is only to be supported or maintained, that such a will must first of all be produced in the perpetrator. The psychological influence does not consist in affirming or strengthening the intention of the individual who has already decided to carry out the deed, as in the case of the accomplice, but in first producing or creating the will for the deed.[11]

The means for this can be of the utmost variety, but the perpetrator must be brought to change his ideas in that direction.[12]

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[11] Compare “accessory before the fact” with the two possibilities, that of the “instigator” who first produces the decision, or that of the “abettor” who gives intellectual assistance before the execution.

[12] From a decision of the Supreme Court (Reichsgericht) in RG. 36, 404: “An attempt at instigation presupposes that the person to be incited is not already determined to commit a criminal act of his own accord or under the influence of others.” Compare with this also RG. 26, 362.

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Assistance and instigation as accessorial forms of participation correspond to one another, in that also in the case of instigation a conscious and causative connection, also willed by the instigator, must exist between his instigation and the decision of the perpetrator. The principle of equivalence is valid just as in the case of assistance. The perpetration of a deed must correspond with the conception and the will of the instigator. The instigator is therefore only responsible to the extent of his intention. A possible excessus mandati cannot be attributed to him. From this stems the accessoriness not only of assistance but also of instigation.

The evidence has not furnished the slightest proof in the Fritzsche case that he has committed an individual crime as instigator through his transmission of news; there is not the slightest evidence to show that he has instigated a single person to murder, cruelties, deportations, killing of hostages, massacre of Jews, or other crimes mentioned in the Charter, or had, as instigator, caused a single crime by his speeches to the public. Not a single passage from his nearly 1,000 wireless speeches could be produced from which such individual responsibility could be deduced. That was not possible with public speeches, anyway. The crimes which were committed were carried out by people completely indifferent to Fritzsche’s propaganda. They received their impulses or instructions from altogether different sources. Were not these deeds to be kept secret? The official news service was to avoid handling this as much as possible. As this Trial has shown in a particularly impressive manner, the perpetrators took the greatest pains to limit the knowledge of, for example, the annihilation of the Jews to a very small circle. What was self-evident with every other state constitution—namely, that occurrences throughout the country should be handled through the press—was not permissible in our dictatorship. The people were not to be asked whether they approved such occurrences. The crimes, established by this Trial, were not to be given any publicity. Can one assume that under such circumstances the press and the radio were suitable means to instigate the perpetration of crimes? Is it not more probable that such occurrences were specially kept secret from the press and the radio? For not a single case—even though the speeches of Fritzsche may have had a marked tendency—can it be said that he, through public speeches of all things, could have instigated a single individual to commit punishable deeds.

Possibly the juridical indications of the Prosecution do not go so far. The Prosecution will then reproach Fritzsche for his contributing to an “atmosphere of hate” (Session of 23 January 1946). Only through such propaganda was it at all possible for gruesome crimes as these to be committed in Germany. This reproach, however, is legally irrelevant. This charge would have legal importance only if the Defendant Fritzsche had been among the group of so-called conspirators, if he had been the instigator of a common plan. I believe I have proved that this absolutely does not hold true. If he had actually created an “atmosphere of hate,” this would not, outside of the group of conspirators, have enabled him from a legal point of view to instigate anyone to commit certain crimes. Furthermore, according to the provisions of the German penal law, exhortations disseminated by radio would even exclude the fact of an instigation in a criminal sense. According to German jurisdiction, as practiced for decades, an instigation would legally be impossible because the influence exerted could not have been centered on a certain individual. Furthermore, German law concerns itself merely with instigation to commit a concrete deed and not with an instigation to commit punishable actions in general.[13] In principle, therefore, any sort of exhortation directed toward a group of persons individually undefined, does not constitute an accessory instigation; it is rather outside the framework of legal relevancy altogether.

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[13] Compare “Decision of Reichsgericht” (German Supreme Court) in RG. (Reichsgesetzblatt, Reich Law Gazette) 34, 328: “It is not sufficient to influence someone along the line of criminal thinking, or of direction of will per se, to justify the assumption of punishable instigation. It is adopted practice, therefore, that the concept of instigation does not exist as long as it involves persuasion of another person to commit criminal deeds in general—even though of a defined category—unless evidence is established that commission of the recent punishable action which actually occurred was in that person’s intent who originated the general summons.” Also compare RG. 26, 362.

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It is quite self-evident, however, that Fritzsche’s radio addresses were perforce directed to an entirely unlimited number of persons. Inasmuch as he was seriously striving to find for the German press and radio propaganda a “foundation based on truth,” could he have had the intention at all to instigate to criminal actions? My client admitted in an impressive and unequivocal manner that he followed the tendency of the official German policy in his news reports and comments. In other words, he did not take advantage of the fact that international law did not place him under any restraint, and nothing in the evidence submitted has refuted his good faith. However, in the light of the law, when it is concerned with incitement to complicity, or with assistance given as an accomplice, good faith is equivalent to lack of will and lack of purposefulness.

This establishes: 1) That the Defendant Fritzsche did not belong to the scheming group of conspirators; 2) that he was never, at any time, a member of a group or an organization which is to be declared criminal here; 3) that for factual and for legal reasons, he is not personally guilty of a war crime or a crime against humanity, neither as an accomplice nor—according to the law—as an instigator, and not even—also according to the law—as an assistant.

And so, I believe I have sufficiently discussed the question of evidence and the legal conclusions to be drawn therefrom.

It is necessary, though, to mention one other thing. The Fritzsche case also has its human aspect. Apart from the pros and cons of the legal potentialities, another obvious question must not be left unanswered: Can it be directly attributed to Fritzsche, as a human being, that he had knowledge of or was co-originator of all the horrors which came to light in this Court?

In the sense of the Indictment, he is an instrumentum dolosum in the hands of the conspirators—of whom Goebbels was perhaps one—who had knowledge of their aims and purposes. Fritzsche’s measures and utterances, however, were not dictated by criminal will. During his examination before this High Tribunal, Fritzsche never put forward the argument of superior orders. But he added that as far as his own person is concerned he was never expected to do anything criminal. And he furthermore declared: No one was obliged to feel compelled to carry out a criminal order. Undoubtedly, Fritzsche sacrificed his own convictions and made many a compromise. This, however, he did not do where he thought he discovered injustice, violence, and inhumanity. As is fitting to a journalist, he examined with care whatever reports reached him from abroad. Despite personal danger such as beset those who would penetrate the veil of secrecy, he followed the news which came from within Germany itself. He did not permit himself to be put off with paltry, vague explanations. He reported many details. I merely refer to his visits to Glücks, Heydrich, and his investigations in the Ukraine.

Wherever he learned about criminal plans, such as the Commissar Order and the inhuman plan to revenge the air bombardments on Dresden, he opposed them with determination, in the latter case even with the help of a foreign ambassador. And he was successful, too, as these two conspicuous examples show. He did this because he followed the voice of his conscience. He did not first engage in lengthy deliberations as to the pros and cons. With regard to the Commissar Order he merely had heard of it as a soldier—he had never read it, nor did he know whether it actually was carried into practice at any time—and he at once raised a protest. When Goebbels ordered him to announce a mass murder of Allied fliers, he did not mind incurring the anger and the fury of his Minister. Dr. Scharping described this in detail (Document Number Fritzsche-3). When he learned of cruelties in the concentration camp at Oranienburg, he protested. The culprits were punished at that time. Dr. Scharping’s affidavits (Document Number Fritzsche-2) which I submitted, and others, prove his implicit willingness to assist those who were persecuted, for political or racial reasons, when they appealed to him. Significant of his tolerance is the fact that he made possible the continued publication of the Frankfurter Zeitung (Document Number Fritzsche-5). Other proofs along that line, which are also submitted with my Document Book 2, are not negligible, and in the very case of Fritzsche certainly cannot simply be passed over with the comment that he cold-bloodedly handed men over to their death (Prosecution Address of 23 January 1946). He was not willing to sacrifice his dignity as a human being to false idealism, nor for the sake of an oath he had taken.

While the Prosecution have tried to darken the picture, I can point to brighter spots—namely, those which picture him as the representative of propaganda.

Was he a liar—perhaps a notorious liar? That Goebbels was one became clear by the revelations of this Trial. And as it was wrongly assumed that Fritzsche was his right-hand man, the implication was, of course, that Fritzsche had the same attributes. This assumption should now clearly be refuted. It is my conviction that, had not Goebbels evaded his responsibility by seeking a way out through death, we should not see Fritzsche in the dock here as representative of the Propaganda Ministry. The further assumption that all collaborators of Goebbels must wittingly have made use of lies, too, is unjustified. It would only be justified if it had been established here that Fritzsche was in a position to grasp all the real and deep-lying connection and causalities. But only this Trial made that possible. Fritzsche remained entangled in error like millions of other Germans. Glaring abuses were to be seen everywhere. Fritzsche was not unaware of them. Indeed, he has declined to be characterized before this Tribunal as an opponent of Nazism. He does, however, claim for himself to have opposed abuses insofar as he could recognize them. This entitles him to be put on a higher moral plane.

Neither was he a zealot or a fanatic, obsessed by one idea or by the adoration of power and success, and inaccessible to criticism. Of course, it was a sin, indeed the grievous sin against the spirit, to have continued to serve the system. The decisive point is, however, whether he was in a position to detect more than mere abuses. Falsehood was already built into the foundation, and anything built upon that was bound to be deceitful. It was not only the “thousand-door ministry,” as it was once called, that was poisoned. The real reason why everything in Germany was poisoned by falsehood could best be detected by those who lived in a purer atmosphere.

Fritzsche did not keep immune from the phraseology; but he used it perhaps with better taste than many others. He was in a position to state here—and this is no mere empty phrase—that he has always acted fairly and honorably in every respect in his professional work. Dr. Scharping, too, has emphasized this in his affidavit. Is this not an indication that he really did not detect that the whole foundation upon which his work was built up was hollow and deceitful? Had he been a professional liar, he would not have been interested in doing clean, honest work, in checking foreign reports, and in all that which induced him to find a truthful basis for the press and radio.

The Prosecution, have laid stress upon his rise in the Propaganda Ministry. Did they mean to imply thereby that he was particularly qualified as a liar? Actually, his career—however modest it was, compared to that of Hitler’s other vassals—has quite a different foundation as has also been clearly determined here. He got ahead only because he was qualified as a journalist, as an expert, not because he was particularly good at lying, but because he had a better command of speech than many others.

As proved by the affidavits of Dr. Scharping and Frau Krüger (Document Number Fritzsche-8) Fritzsche lived on a modest scale. During his activity in the Propaganda Ministry he gathered no riches, possessed no luxurious dwelling; nor would he have accepted any presents. The Prosecution, moreover, made no claims to the contrary. It therefore does not appear astonishing that those who had not only heard his voice on the radio but also knew him personally should have emphasized his humane qualities. Dr. Scharping declares in his affidavit, “it was considered a distinction to be allowed to work with him.” Is it in keeping with human experience that a man who lies could have won such respect? I believe human esteem can only be won by an honest character. Those who are in daily intercourse with a person can find out whether he is a liar or not. And if his speech does not betray him, then his eyes will.

There may be many possibilities to clarify the contradiction that somebody who has co-operated in the propaganda of the Third Reich is nevertheless honest and a lover of truth. The most immediate explanation is probably that which can well be taken from Fritzsche’s own remark, which I repeat here: He said he felt—and this may well be significant for the verdict if not for history—that he, too, was deceived by Hitler. Before this Tribunal Fritzsche has not only defended himself but the German people as well. To what extent he himself is responsible to the German people for the fact that he, again and again, and till the end, urged them to see the war through, is not a matter to be decided here. Even though Fritzsche may not, like others, have realized at an earlier date that he was serving an evil cause, or although he may not have divorced himself from the state leadership because he wanted to share the cup of bitterness with the German nation to the last dregs, he is not guilty in the sense of the Indictment brought against him before this Tribunal. I ask for his acquittal.

THE PRESIDENT: The Tribunal will adjourn until 2 o’clock.

[The Tribunal recessed until 1400 hours.]

Afternoon Session

MARSHAL: May it please the Tribunal, the Defendants Streicher and Raeder are absent.

THE PRESIDENT: The following is the order of the procedure to be followed in the cases against the organizations:

Paragraph 1: The Tribunal draws the attention of counsel for the organizations to the order of July 1st, which directed that any of the evidence taken on commission which counsel for the Defense or the Prosecution wish to use should be offered in evidence and thus become part of the record, subject to any objections. It will be convenient to the Tribunal, if it is desired, to offer the whole of the evidence at the outset of the proceedings.

Paragraph 2: The counsel for the Defense will then put in their document books, subject to any objections.

Paragraph 3: The witnesses for the Defense will then be called and examined by defense counsel who will bring out the matters they regard as important, given in evidence before the Commission, and any new relevant matters. Each organization will be dealt with in turn, and the whole of the evidence for that organization, both examination and cross-examination, heard before dealing with the next organization.

Paragraph 4: Counsel for each organization will then make his closing speech, dealing with the evidence given before the Tribunal, and making the necessary references to the documents introduced in evidence. He will also draw the attention of the Tribunal to the matters contained in the evidence given before the Commissioners and in the summaries of the affidavits which he deems important and which he wishes the Tribunal specially to consider.

Paragraph 5: The Counsel for the Prosecution will reply when all the speeches of the defense counsels have been made.

Paragraph 6: The Tribunal is of the opinion that the closing speeches of counsel for the Prosecution and Defense ought to be short, not exceeding one-half day in each case. If this time is thought likely to be exceeded, a special application must be made to the Tribunal, stating the grounds for such extension of time, not later than Monday next, July 29th. That is all.

I call on Doctor Seidl for the Defendant Hess.

DR. ALFRED SEIDL (Counsel for Defendant Hess): Mr. President, Honorable Judges. Before beginning with the final plea for the Defendant Hess, I beg permission of the Tribunal to represent the defense counsel for Defendant Göring and submit on his behalf two exhibits. Both have been allowed by the Tribunal, and they refer to the Katyn case, that is to say, the question of the murder of 11,000 Polish officers in the neighborhood of Smolensk. The first is Exhibit Number Göring-60, an extract from the German White Book, referring to the report on the post-mortem examination conducted by the Bulgarian Professor Borotin. The second is Exhibit Number Göring-61, which is also an extract from the German White Book, and refers to the Katyn case. It is the report of the International Medical Commission of 30 April 1943.

Mr. President, Honorable Judges: When the German people, having lost the first World War, set out in 1919 to rebuild their public life on democratic principles, they found themselves facing difficulties which were caused not merely by the war itself and the material loss resulting therefrom. The Defendant Rudolf Hess was among the first comrades-in-arms of Adolf Hitler and belonged to those who time and again reminded the German people of the great dangers which would of necessity arise for Germany’s domestic economy and for world economy as the result of the reparations policy of the victor states of 1919. The consequences of that policy were bound to be all the more devastating for Germany when in 1923 France proceeded to effect the military occupation of the Ruhr territory, the center of Germany’s economic power. At that time of economic collapse and complete disarmament of Germany, Adolf Hitler made the first attempt on 9 November 1923 to seize the power of the state by revolution. The Defendant Rudolf Hess also took part in the march to the Feldherrnhalle in Munich. Together with Adolf Hitler, after having been convicted by the People’s Court, he underwent imprisonment at Landsberg Fortress, where Hitler wrote his book Mein Kampf.

When in 1925 the Party was established again, Rudolf Hess was one of the first to resume with Adolf Hitler the struggle for a national rebirth of the German people. During the first years after its rebirth the Party began its slow ascent. Germany’s domestic economy had recovered from the worst effects of the Ruhr invasion. The currency had been stabilized and owing to very extensive foreign credits it had even been possible to bring about an economic boom.

Very soon, however, it was revealed that the economic progress of the years 1927-29 in reality was but an illusory prosperity for which in Germany, at any rate, there was no foundation in a sound and well-balanced national economy. It is true that the economic crisis which began in 1930 was a general crisis in world economy and that the decline which Germany experienced at that time was but a part of the general disintegration in world economy. It is just as certain, however, that it was not a question here simply of a seasonal decline within the capitalist economy—such as had been experienced repeatedly by individual commercial economies of states and by world economy—but a case, in this instance, of structural changes owing to different causes, one of the most important of which, however, undoubtedly was the disruption in the exchange of products and legal tender caused by the unreasonable reparations policy.

It is just as certain that the consequences of the crisis in world economy were devastating in Germany, 7 million having been thrown out of work, because the changes brought about in the national economy as a result of reparations payments were far-reaching. If, however, the National Socialist German Workers’ Party won a major electoral victory in the Reichstag elections of 14 September 1930 and entered the new Reichstag with no less than 107 delegates, it is to be attributed to the economic crisis then prevailing, to the great unemployment, and indirectly to the economic absurdity of the reparation payments and the refusal of the victorious states to consent to a new arrangement despite the most urgent warnings. True, the reparation payments stipulated in the Treaty of Versailles and the mode of settlement were amended by the Dawes and Young Plans. It is, however, just as true that these amendments came too late and demands were continued for payments from Germany to an extent and under conditions which were bound to, and did in fact, lead to an economic catastrophe. In this connection I must point to the following fact: the Prosecution have produced an extensive amount of documentary evidence in reference to the rise of the NSDAP until its seizure of power. A comparison of the Reichstag representatives in the years from 1930 to 1932 with the unemployment figures for the same period would disclose that these figures ran parallel. The more hopeless the social consequences of unemployment became—and in 1932 no less than 25 million people including family members may be estimated to have been affected by the consequences of unemployment—the more impressive became the electoral successes of the National Socialists. I hardly think there could be a more convincing proof of the existence of a causal relation between the consequences of the reparation policy of the victorious powers of 1919 and the rise of National Socialism. The causal relation may be summed up in a short formula: No Versailles Treaty, no reparations—no reparations, no economic collapse with its particularly catastrophic effects upon Germany, which found expression in an unemployment figure of nearly 7 millions—and without this collapse, no seizure of power by the National Socialists. The political and historical responsibility of the authoritative foreign statesmen resulting from this causal connection is so crystal-clear that further demonstrations of it are superfluous in the framework of this Trial.

This formula may appear too pointed and it may furthermore be true that it was not the economic emergency and the high unemployment figure alone which induced millions of Germans to vote National Socialist on 14 September 1930 for the first time and which led to the subsequent progress of the Party’s rise to power. Nevertheless, these causes were assuredly among the foremost, and even the other causes which played a part in the decision of many voters can finally be traced back to the fatal effects of the Treaty of Versailles and refusal of the victorious powers, especially France, to consent to a revision of the treaty. This applies in the first place to the claim for equality of rights raised by all subsequent democratic governments.

When the German nation had disarmed in fulfillment of the Versailles Treaty, it was entitled to expect the victorious powers to disarm also, in accordance with the obligation assumed by them in the treaty. This was not carried out and there can be no doubt that their denial of the equality of rights as evidenced by their refusal to disarm themselves figures among the most decisive causes of the rise of National Socialism in the years 1931 and 1932. And if any of Hitler’s arguments ever found a response in the German nation, it was that equality of rights could not be denied in the course of time, even after a lost war, to a nation like the German nation, with a population of over 75 millions, situated in the heart of Europe and with a cultural past of which few other nations can boast. It has already been remarked in this courtroom that a nation which has produced a Luther, a Goethe, and a Beethoven cannot be indefinitely treated as a minor nation.

Again and again Hitler had occasion to remark upon the fact that the statesmen of the Weimar Republic left no method untried to arrive at a peaceful revision of the more unbearable clauses of the Treaty of Versailles. For 8 years the statesmen of democratic Germany, Stresemann and Brüning, went to Geneva to obtain at last the repeatedly promised equality of rights for Germany and they were repeatedly sent home with empty hands. The dangers produced by this situation could not remain concealed from anyone. In fact, the world was warned by German statesmen, as well as by shrewd politicians of Germany’s former enemies. All these warnings were scattered to the winds.

When finally in 1932 the National Socialist Party with 230 seats in the Reichstag had become by far the strongest party in Germany, it could only be a question of time until Hitler and his Party would be entrusted with the taking over of government leadership. In the long run this could be avoided all the less since the previous Governments of Herr Von Papen and General Schleicher had no appreciable following in the Reichstag at their disposal and exercised their governmental authority exclusively by the means of emergency decrees in accordance with Article 48 of the Weimar Reich Constitution. When, on 30 January 1933, Adolf Hitler was actually appointed Reich Chancellor by Reich President Von Hindenburg and was entrusted with the formation of a new cabinet, this was done altogether according to the clauses of the Reich Constitution.

At the Reichstag election in 1932 the National Socialist Party received more votes than had been received by any party since the beginning of the German Reich. If the leader of this strongest party was entrusted with the formation of the cabinet, this was by no means extraordinary, particularly in view of the parliamentary conditions prevailing in Germany at that time, and there cannot be the slightest doubt that Hitler and his Party came to power legally, that is, according to the Constitution. However, it is correct that in the course of the following years the constitutional structure of the German Reich and particularly Hitler’s position underwent a change. There is, however, no evidence on hand that this development as well was not legal. In this respect, in order to avoid repetition I am referring to the statements of the witness Dr. Lammers.

In this case it may be left completely undecided whether one wants to attribute this development to Hitler’s absolutely autocratic rule by the creation of a so-called prescriptive state law or whether one avails oneself of another theory. For the scope of this Trial it seems to me much more decisive that not a single nation with which Germany maintained diplomatic relations raised any objections whatsoever or even drew diplomatic or international legal conclusions either at the seizure of power or on the occasion of the transformation of the constitutional structure carried on openly before the entire world. Neither at the seizure of power nor at any later period was the question of diplomatic and international legal recognition of the National Socialist State in doubt.

In addition, may it merely be pointed out that the law, which in the following period was to become of the greatest importance for the relationship between citizen and state, was still issued by Reich President Von Hindenburg pursuant to Article 48 of the Reich Constitution. I have in mind the decrees of the Reich President for the Protection of the People and the State, dated 28 February 1933 (Reichsgesetzblatt, Part 1, Page 83). In Paragraph 1 of this decree, the most important basic laws of the Weimar Constitution were voided, and curtailments of personal liberty—the rights of free speech, including freedom of the press; the right to organize and assemble; interference in the privacy of the letters and mails, telegraph and telephone; orders for searching of homes; and confiscations, as well as property restrictions—were declared valid, even beyond the legal limitations otherwise imposed.

From a formal viewpoint there can be just as little doubt about the legal validity of this decree as there can be about any other so-called constitutional or basic state law issued by the Reichstag, the Reich Cabinet, the Ministerial Council for Reich Defense, or by Hitler himself.

Gentlemen of the Tribunal, on behalf of the Defendant Rudolf Hess I have already stated that he assumes the full responsibility for all laws and decrees which he has signed in his capacity as the Deputy of the Führer, as Reich Minister and member of the Ministerial Council for Reich Defense. Therefore I have refrained from presenting documentary evidence in reference to accusations which, as a sovereign state, merely concern the domestic affairs of the German Reich and have no bearing on the crimes against peace and crimes against the laws of war mentioned by the Prosecution. I shall, therefore, now only touch on such laws and constitutional and political measures which have some recognizable connection with the actual Counts of the Indictment and the Common Plan or Conspiracy asserted by the Prosecution.

The Indictment accuses the Defendant Rudolf Hess of having sponsored the military, economic, and psychological preparations for war and of having participated in the political planning and preparation of wars of aggression. As evidence for this assertion, the Prosecution pointed to the fact that the Defendant Rudolf Hess, in his capacity as Reich Minister without Portfolio, cosigned the law of 16 March 1935 for the reconstruction of the Armed Forces. This law reintroduced general conscription in Germany and stipulated that the German peacetime army was to be divided into 12 corps commands and 36 divisions. For this Trial the proclamation which the Reich Cabinet directed to the German people in connection with the publication of this law and which was placed above the law in the Reichsgesetzblatt, appears to me no less important than the contents of this law. I refer to the contents of this proclamation which has been presented as an exhibit. This proclamation of 16 March 1935 contains no essential arguments on this question which had not already previously been brought out by the democratic German governments at the time of the Weimar Republic.

Your Honors, the Tribunal have permitted me to read at least part of my brief in connection with this question. However, in view of the fact that counsel for the Defendant Von Neurath has already referred to this question in detail, I shall merely refer to his argument in this connection and I shall therefore, on my part, forego detailed comment.

The reintroduction of general military service by the law of 16 March 1935 is apparently not considered in the Indictment as a punishable offense in itself, but only as part of the general plan as asserted by the Prosecution, designed to commit crimes against peace, against the laws of war, and against humanity. Whether such a plan ever existed at all, whether and to what extent the Defendant Rudolf Hess was involved in it and what part the reintroduction of general military service may have played in both an objective and a subjective way in this plan, I shall take up in detail later.

Within the scope of the common plot, of having planned and prepared a war of aggression, the Defendant Rudolf Hess is also accused of having, in his capacity as Deputy of the Führer, set up the Auslands-Organisation of the NSDAP, the League for Germans Abroad, the German Eastern League, the German-American Bund and the German Foreign Institute. The documents submitted by the Prosecution in this connection do not furnish proof to the effect that the Defendant Hess himself issued directives or orders to these organizations, which could have caused them to pursue activities similar to those of a fifth column. The testimony of the witnesses Bohle, Ströhlin, and Alfred Hess has, on the contrary, proved that the Defendant Hess, in particular, clearly forbade these organizations and leaders to interfere with the internal affairs of other countries. The Prosecution have not been able to prove in any way that the afore-named organizations had actually developed activities which were aimed at undermining the structure of foreign states from within.

Under these circumstances it is superfluous to go into the activity of the afore-named organizations in more detail, all the more so since there is nothing at all tending to prove that there was any causal connection between the tasks and functions of these organizations and the events which later led to the outbreak of war in the year 1939.

The Prosecution furthermore tried to prove that Defendant Rudolf Hess also took a decisive part in the occupation of Austria on 12 March 1938. I do not intend to enter into details of the history of the annexation and to consider from the legal point of view the facts which actually led to the annexation of Austria to the German Reich in the year 1938.

[sm type begins]There is one point, though, that must be established here: The right of self-determination of nations was a salient factor among the Fourteen Points of President Wilson. It is a fact, however, that of the postulates of the American President none was realized by the Treaties of Versailles and St. Germain to so small an extent as just this right of self-determination. The Tribunal has already been offered in evidence the resolution of the Provisional Austrian National Assembly of 12 November 1918. In this new basic law the following is ordained, inter alia: “German Austria is a democratic republic. All legislative and executive powers are instituted by the people. German Austria is part of the German Republic.” The declarations made by the then Social-Democrat Federal Chancellor, Dr. Karl Renner, in justification of this constitutional law are no less definite when he says, among other things:[sm type ends]

[sm type begins]“Our great nation is beset by misery and distress, the nation which was always proud to be called the nation of poets and thinkers, our German nation of humanism, of mutual love among the nations; it is bowed down with sorrow! Yet in this very hour when it might be easy and convenient, and perhaps even tempting, to prepare a separate account, and maybe, gain advantage from the enemy’s trickery—in this very hour let our people everywhere know: We are of one race and share a common fate!”[sm type ends]

[sm type begins]Contrary to the expressed will of an overwhelming majority of the Austrian population a union of the two German nations was vetoed by the Entente. The victorious powers, by threat of a hunger blockade, prevented a plebiscite on the question of the Anschluss voted for by the Austrian National Assembly on 1 October 1920. Nevertheless some of the provinces carried out such a plebiscite independently, with the result that an overwhelming majority voted for the Anschluss. Indeed nothing could describe the situation better than the following passage in State Secretary Lansing’s book, The Peace Negotiations, published in the year 1921: “A more patent denial of the ostensible right of self-determination than this veto against the Anschluss with Germany, willed almost unanimously by the German-Austrian people, can hardly be imagined.” This wish of the Austrian people to be united with the German Reich did not only show immediately after the first World War, but remained alive in the times afterward. It is a moot question as to the specific reasons for this trend and what reasons prevailed at one time or another. Certainly there can be no doubt that such a wish did exist, and that the Anschluss would have been realized but for the opposition either of the Entente or of other powers which believed they had thus to defend so-called interests. In this connection reference may be made to the declaration of Federal Chancellor Dr. Renner of 12 November 1928, which has likewise already been submitted by the Defense, which reads inter alia:[sm type ends]

[sm type begins]Today, 10 years after the 10th of November 1918, and forever, we shall faithfully abide by this resolution and confirm it by our signature.... The Peace of St. Germain has destroyed the right of self-determination of the Germans in Austria.... Let the people of Austria vote freely and 99 percent will vote for the reunion with Germany ...” And this is what really happened:[sm type ends]

[sm type begins]When the German troops marched into Austria on 12 March 1938 they did not come as conquerors but were received by a jubilant population in one triumphal procession.[sm type ends]

In order to save time I shall refer to the extensive statement made by counsel for the Codefendant Dr. Seyss-Inquart.

Whatever now concerns the participation of the Defendant Rudolf Hess and the Party in bringing about the annexation, the evidence has only shown that the annexation of Austria was an incident which did not really have anything to do with the National Socialist Party in the Reich as such. It is sufficient to refer in this connection to the testimony of the Defendant Göring and to that of Dr. Seyss-Inquart on the witness stand, which shows that the question of the annexation was solved exclusively by the Reich, that is, by state authority and not by the Party.

If any doubts should still have existed on this point, they were removed by Document Number 812-PS, Exhibit Number USA-61, presented by the Prosecution. It deals in this case with the letter of the Gauleiter of Salzburg, Dr. Friedrich Rainer, to Reich Commissioner Gauleiter Josef Bürckel, in which he states, among other things:

“... Soon after the seizure of power in the Ostmark, Klausner, Globocznik, and I flew to Berlin in order to give a report to the Deputy of the Führer, Party member Rudolf Hess, about the incidents which led to the seizure of power.”

A report naturally would not have been required if the Deputy of the Führer and the Party itself had been directly and decisively participating in the solution of the annexation question. I do not mention this in order to give reasons of justification or excuses on behalf of the Defendant Rudolf Hess. The findings are rather made exclusively in the interests of historical truth.

I now come to the question of the Anschluss of the Sudetenland. 3.5 million Sudeten Germans were incorporated into a state with 8.5 million Czechs and Slovaks, without being granted a decisive influence on the state. All attempts of this national group to receive autonomy within the Czechoslovakian state structure remained futile. When the question of annexation with regard to Austria was solved, it was inevitable that the future position of the Sudeten Germans, which after all consisted of 3.5 million persons who undoubtedly belonged to the German nation, would be subjected to a test.

Now, I do not intend to take a detailed legal stand on all questions of the annexation of the Sudetenland to the Reich. In view of the fact, however, that the Prosecution in the trial brief which they presented before the Tribunal against the Defendant Hess treated the Sudeten German question and have also presented several documents as evidence, it appears necessary to take a brief stand concerning them.

Document Number 3258-PS, Exhibit Number GB-262, deals with a speech of the Deputy of the Führer at the meeting of the Auslands-Organisation of the NSDAP on 28 August 1938. The latter in general phrases takes a stand on the Sudeten German question by emphasizing the principle of nationalities and the right of self-determination of the nations. Also the remaining documents presented by the Prosecution, Document Number 3061-PS, Exhibit USA-126, Document Number 388-PS, Exhibit USA-26, do not show on what a decisive participation of the Defendant Rudolf Hess in the solution of the Sudeten German question could be based.

However, the extent of this participation can be completely ignored, as the annexation of the Sudetenland to the Reich cannot in itself constitute facts for a criminal charge according to international law. After all, the annexation of the Sudetengau was not carried out on the basis of a one-sided act of Germany or on the basis of a perhaps disputable agreement between the German Reich and the Czechoslovak Republic. The annexation, rather, took place on the basis of an agreement which had been concluded in Munich on 29 September 1938 between Germany, the United Kingdom of Great Britain, France, and Italy. In this agreement exact and very detailed stipulations were made about the evacuation of the territory to be ceded and the step-by-step occupation by German troops. The final determination of the frontier was carried out by an international committee.

Without wishing to go into further details, it can still be said with certainty that this is a treaty which had been concluded on the basis of a free agreement and that all those participating expected that it might provide the basis, or at least a considerable prerequisite, for an improvement of international relations in Europe.

I now come to another point of the Indictment. Within the limits of the Indictment as a whole, as well as in the personal accusation raised by the Prosecution against the Defendant Rudolf Hess, the latter is accused of having participated in the outbreak of war and of being responsible for it. The Defendant Rudolf Hess actually did take a stand in several speeches on the question of the Polish Corridor and the problem of the Free State of Danzig. In this case, however, the following must be stated:

By the establishment of the Polish Corridor, not only the right of self-determination of the nations was violated—after all, more than one million Germans came under Polish domination in this manner—but in addition to this, through the partition of the state territory of the German Reich into two areas completely separated from each other, a situation arose which was not only contrary to all economic common sense but which, moreover, was bound to become the cause of constant discord from the very outset. Indeed, from the day of the signing of the Versailles Peace Treaty, the demand for a revision of the treaty, especially in the question of the Polish Corridor, has never been silenced at any hour. There was no party and no government in Germany which did not acknowledge the necessity of a revision of the treaty, primarily in this point. There can be no doubt that if Poland ought to have an independent access to the Baltic Sea under all circumstances, this problem could have been solved much more sensibly than by the establishment of the so-called Corridor and the thereby stipulated partition of the German Reich into two areas which were completely separated from each other.

Something similar applies with regard to the status of the Free State of Danzig on the basis of international law and state sovereignty. It is not necessary to look at the facts more closely in this case, which in the course of time have led to constantly increasing difficulties and which in the end necessitated a change with regard to international law and the state sovereignty of this purely German city.

It is just as unnecessary to go into greater detail with regard to the minority problem which was raised by the Polish Corridor and the establishment of a Free State of Danzig. The fact is that in the course of two decades, no less than approximately one million Germans were forced to leave their settlement area, and especially under circumstances which could not remain without effect on the general political relations between the German Reich and the Polish Republic. The problems raised here have been publicly discussed even before Adolf Hitler came to power.

Under these circumstances, it could not surprise anyone if after the seizure of power by Adolf Hitler and his Party, the questions raised by the Polish Corridor and the separation of Danzig from the Reich were subject to re-examination. This was all the more unavoidable since after the conclusion of the German-Polish Treaty in the year 1934, Poland’s increasing attempts to exclude the German element did not cease.

I do not intend to discuss in further detail the negotiations which were conducted by the German Reich with the Polish Republic, the aim of which was to find a modus vivendi, taking into consideration Poland’s justified interests. Nevertheless, it appears important to me to keep the following facts in mind, and this seems to be essential for the reason that the Prosecution stated again and again that the defendants, the German Government, should have done everything to clarify those questions and that especially the German Government should have conducted negotiations, and that the one thing that they should not have done was to start a war. The following statements are to show that attempts were made to solve pressing problems by negotiations.

For the first time the Reich Minister for Foreign Affairs, in the course of a conversation with the Polish Ambassador on 24 October 1938, discussed the question raised by the Corridor and the separation of the city of Danzig and suggested a solution which was to be based on the following foundation:

“1. The Free State of Danzig returns to the German Reich.

“2. An extraterritorial Reichsautobahn belonging to Germany and likewise an extraterritorial railroad with several tracks would be constructed across the Corridor.

“3. Poland likewise obtains an extraterritorial road or Autobahn, a railroad, and a free port in the Danzig area.

“4. Poland is guaranteed a market for her goods in the Danzig area.

“5. The two nations recognize their common frontiers or the territories of both sides.

“6. The German-Polish Treaty is to be extended by 10 to 25 years.

“7. Both countries include in their treaty a consultation clause.”

The Prosecution themselves submitted to the Tribunal the reply of the Polish Government to this proposal. The document is Document Number TC-73, Number 45, which describes the attitude of the Polish Foreign Minister Beck of 31 October 1938 and his instructions to the Polish Ambassador Lipski in Berlin. In this document the German proposal is flatly turned down on the grounds that “...any attempt to incorporate the Free City of Danzig into the Reich would invariably lead to a conflict, and the resulting difficulties would not merely be of a local nature, but would prevent any possibility of Polish-German understanding in all its aspects.”

In fact, such also was the stand taken by the Polish Ambassador during another conversation which he had with the Reich Foreign Minister on 19 November 1938. When asked about the Polish Government’s attitude regarding the German proposition of an extraterritorial Reichsautobahn and an extraterritorial railway through the Corridor, the Polish Ambassador declared that he was not able to make an official statement on these questions.

It is impossible to deny that the proposal made by Germany was very restrained and contained nothing incompatible with Polish honor or the vital interests of that state. One should be all the more willing to admit this, as the creation of the Corridor and the separation of East Prussia from the Reich was really felt by the German people to be the heaviest burden of the Versailles Treaty. If, nevertheless, the Polish Government turned this proposal down, for reasons which excluded any prospect of finding a solution in subsequent negotiations, the conclusion could be drawn that already at that time Poland had no sincere wish to enter into an agreement, which would take into consideration Germany’s legitimate interests. This impression was confirmed by the negotiations during the visit of the Polish Foreign Minister Beck to Berlin on 5 January 1939, and the return visit by the Reich Foreign Minister to Warsaw on 21 January 1939. When, in spite of this attitude of Poland, the Reich Foreign Minister repeated the proposition made on 24 October 1938 in another meeting with the Polish Ambassador on 21 March 1939, we must conclude that the German Government was sincerely desirous of solving, by means of negotiation, the questions relative to the Corridor and the separation of the city of Danzig. Thus it cannot be seriously denied that the German Government tried to solve the Danzig question and that of the Polish Corridor by negotiation and that it made very moderate proposals in that respect.

The reply to the German proposals of 21 March 1939 was a partial mobilization of the Polish armed forces. The connection between the partial mobilization ordered by the Polish Government and the British proposal for consultation, dated 21 March 1939, need not be discussed, nor whether, incidental to the transmission of this consultation proposal in Warsaw, the declaration of guarantee of 31 March had already been promised or contemplated by the British Government. There can be no doubt, however, that the partial mobilization of the Polish armed forces, as also admitted by the British Prime Minister Chamberlain in a declaration before the House of Commons on 10 July 1939, was not calculated to create favorable prerequisites for further negotiations. As a matter of fact, the subject of the memorandum of the Polish Government given by the Polish Ambassador Lipski on 26 March 1939 was a complete rejection of the German proposal. It was declared that extraterritoriality for the highways was out of the question, and that a reunion of Danzig with the Reich could not be considered. In the conversation between the Reich Foreign Minister and the Polish Ambassador, which followed the transmission of the memorandum, the latter declared quite openly that it was his unpleasant duty to point out that to pursue the German plans further, particularly insofar as they had a bearing on the return of Danzig to the German Reich, would be tantamount to a war with Poland.

The connection between the Polish mobilization of 23 March 1939 and the Polish memorandum of 26 March 1939 containing a complete rejection of the German proposal on the one hand, and the proposed British guarantee-pledge of 31 March 1939 on the other hand, which I said may be left open, appears justified with regard to the proposed “formal declaration” made by the British Government as early as 21 March in Warsaw, as well as in Paris and in Moscow. This “formal declaration” was to announce the opening of immediate discussions on measures of mutual resistance against any attack on the independence of any European state. Furthermore, the speech by Prime Minister Chamberlain on 17 March in Birmingham, and the speech of the British Foreign Minister, Lord Halifax, of 20 March in the House of Lords, reflected a point of view bound to encourage the Polish Government all the more toward stubbornness. As a matter of fact, the proposed step of “a mutual formal declaration” already proposed on 21 March 1939 by the British Government to the Governments in Warsaw, Paris, and Moscow proved to be the opening of lengthy discussions whose purpose it was to place an iron ring around Germany.

It was thus clear from the very outset that, under such conditions, bilateral negotiations between the German and the Polish Governments promised but little success, in any case as long as those discussions lasted. In another memorandum handed to the Polish Foreign Minister on 28 April 1939, already submitted by the Prosecution, the German Government nevertheless once more explained its attitude completely and established once more its readiness for further negotiations. Contents of this memorandum, including proposals made in March 1939, were announced publicly by Adolf Hitler in his speech delivered in the Reichstag on 28 April 1939.

In reply to the memorandum of the German Government of 28 April 1939, the Polish Government transmitted on 5 May 1939 a memorandum which has also been submitted by the Prosecution. That memorandum contained even more emphatically a complete rejection of Germany’s proposal for solving the problem of the Corridor and the Danzig question.

Negotiations which began on 21 March 1939 between London, Paris, Warsaw, and Moscow for the purpose of establishing an alliance exclusively directed against Germany, did not proceed as desired. Nor was it possible for the French and British military missions, sent to Moscow on 11 August 1939, to eliminate completely the difficulties arising from evidently far-reaching political differences of opinion. It need not be established how important was the fact that Poland, which was to obtain a guarantee by England, France, and the Soviet Union, obviously refused to accept military assistance from the Soviet Union. It also remains uncertain whether it is correct that the Soviet Foreign Commissar Molotov asserted during the special meeting of the Supreme Soviet on 31 August 1939 that England had not dissipated Poland’s apprehensions but, on the contrary, had increased them. It seems more important to examine the fundamental differences of opinion.

I was about to refer here to an extract from the well-known book written by the former British Ambassador in Berlin, Sir Nevile Henderson. In consideration of the fact that the Tribunal do not desire to have this quotation read, I shall merely refer to it.

Meanwhile, the following had actually occurred: At the Eighteenth Congress of the Communist Party on 10 March 1939, the President of the Council of People’s Commissars of the USSR, Stalin, made a speech in which he intimated that the Soviet Government considered it possible or desirable to reach a better understanding even with Germany. Hitler understood this hint perfectly well.

Foreign Commissar Molotov expressed himself similarly in his speech before the Supreme Soviet on 31 May 1939. Thereupon, the discussions between the German and the Soviet Governments were followed by the conclusion of a German-Soviet Trade and Credit Agreement. This agreement was signed in Berlin on 19 August 1939. But already during these economic negotiations, questions of general political nature were discussed which, according to the Soviet Russian News Agency Tass on 21 August 1939, made known the desire of both Governments to bring about a change of their policy and to ban war by concluding a nonaggression pact. This nonaggression pact was signed in Moscow on the night of 23 to 24 August 1939—therefore, as shown by the presentation of evidence in this Trial, 2 days before the attack of the German Army against Poland was ordered for the morning of 26 August 1939.

Besides this nonaggression agreement, a “Secret Supplementary Protocol” was signed as an important part of the agreement. On the basis of the presentation of evidence, especially on the basis of the affidavit of Ambassador and Chief of the Legal Department of the Foreign Office, Dr. Friedrich Gaus, on the basis of the testimony of Baron von Weizsäcker, State Secretary in the Foreign Office, and on the basis of the statements of the Defendants Von Ribbentrop and Jodl, the following contents of the Secret Supplementary Protocol can be considered as established: In the case of territorial-political reorganization in the territories belonging to the Baltic States, Finland, Estonia, and Latvia should fall into the sphere of interest of the Soviet Union, whereas the territory of Lithuania should belong to the sphere of interest of Germany. For the territory of Poland, the division of spheres of interest was made so that the territories lying to the east of the rivers Narew, Vistula, and San should fall to the sphere of interest of the Soviet Union, whereas the territories lying to the west of the demarcation line determined by these rivers should belong to the German sphere of interest. In other respects an agreement was reached concerning Poland, that both powers would act on mutual agreement on the final settlement of questions concerning this country. With regard to southeastern Europe, the limits of spheres of interest of both sides were made so that the Soviet side stressed its interest in Bessarabia, whereas the German side disclaimed any interest whatsoever in this territory. According to the testimony of all witnesses, but especially on the basis of the statements by Ambassador Dr. Gaus and State Secretary Von Weizsäcker, it is established that this secret agreement included in it a complete new settlement concerning Poland and the future fate of the Polish State.

The efforts nevertheless to come to an understanding with Poland with regard to the question of Danzig and the Corridor, made after the conclusion of the German-Soviet Non-Aggression Agreement and of the Secret Supplementary Protocol, failed. The Pact of Assistance which was made on 25 August 1939 between Great Britain and Poland did not prevent the outbreak of the war, but simply delayed it for a few days. I have no intention of going into particulars of the diplomatic negotiations which were conducted after the conclusion of the German-Soviet Agreement of 23 August 1939 to reach an agreement. One thing, however, can be said with certainty: If the unilateral guarantee declaration of England of 31 March 1939 meant to influence the already stubborn Polish Government not to accept the German offers, then an assistance pact with Great Britain would tend to dampen Poland’s desire to negotiate. The failure of the negotiations which were carried on between Germany and Poland are all the less surprising when one bears in mind the testimony of the witness Dahlerus before the Tribunal. Has not this witness confirmed that the Polish Ambassador in Berlin, Lipski, declared on 31 August 1939 that he was not interested in discussing the proposals of the German Government? He based this negative attitude on the statement that in case of war a revolution would break out in Germany and the Polish Army would march toward Berlin.

Whatever the news might have been which induced the English Government to conclude the treaty with Poland and which possibly intimated a rift in the German-Italian alliance and symptoms of deterioration in the German State structure—and here I refer to the testimonies of the witnesses Dahlerus and Gisevius—the future was to prove that such ideas were not based on any facts.

When on 1 September 1939 war broke out between Germany and Poland, it was at first a question of a localized conflict between two European states. But when Great Britain and France declared war on Germany on 3 September 1939, this conflict expanded into a European war, into a war which as all modern wars between great powers tended from its very beginning to develop into a world war because of inadequate international organization and the complete collapse of the system of collective security. This war was to bring immeasurable suffering to all humanity, and when on 8 May 1945 the European war ended with Germany’s unconditional surrender, it left behind a Europe in ruins. Adolf Hitler did not live to see Germany’s collapse and its unconditional surrender. Twenty-two former leaders of the National Socialist Germany stand before the bar of the Tribunal in order to answer charges of having committed crimes against peace, against the rules of warfare, and against humanity in the execution of a common plan.

The so-called London Agreement of 8 August 1945, concluded between the Government of Great Britain and Northern Ireland, the Government of the United States of America, the provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics, is the basis of this Trial. The present Tribunal was created pursuant to this agreement, the composition, competence, and tasks of which were established by the Charter of the International Military Tribunal, which is a considerable part of the agreement concluded by the four Governments on 8 August 1945.

The Charter of the International Military Tribunal, however, does not only contain the regulations dealing with composition, competence, and tasks; besides those, it includes—and these are the most important parts of the Charter—the regulations of material-juridical contents. This applies above all to Article 6 which contains the definitions of Crimes against Peace, War Crimes, and Crimes against Humanity, with their characteristic facts. Paragraph 3 of Article 6 of the Charter, which enumerates the characteristics of the so-called conspiracy in detail, has to be considered above all as the penal facts of the case. Furthermore, Articles 7, 8, and 9 of the Charter are to be considered as material-juridical regulations.

The explanations following were not approved by the Court. They are substantially identical with the declaration made by the Defense at the beginning of the Trial on 21 November, and I beg to refer thereto.

I continue on Page 40 with the last paragraph.

In the Indictment the Defendant Hess is charged with having supported the seizure of power of the so-called Nazi conspirators, the strengthening of their control over Germany, and furthermore the furthering of the military, economic, and psychological preparations for war. He is furthermore charged with having participated in the political planning and preparation of wars of aggression and of wars in violation of international treaties, agreements and assurances, and in the preparation and planning of the foreign political schemes of the so-called Nazi conspirators.

[sm type begins]The Prosecution finally asserts that he approved of, directed, and participated in War Crimes and Crimes against Humanity as enumerated in Counts Three and Four of the Indictment respectively.[sm type ends]

THE PRESIDENT: This ought to be a convenient time to break off.

[A recess was taken.]

DR. SEIDL: Your Honors: Count One of the Indictment refers to the so-called Common Plan or Conspiracy according to which all the defendants and various other persons are alleged to have participated for a number of years prior to 8 May 1945 in the planning or execution of a common plan as leaders, organizers, instigators, and collaborators. This plan aimed at and brought about the commitment of crimes against peace, of crimes against the laws of warfare and against humanity. It is asserted that the defendants planned, prepared, unleashed and directed wars of aggression, and committed war crimes and crimes against humanity in the execution of this common plan.

While the Charter only knows three specifications of crimes—crimes against peace, against the rules of warfare, and against humanity—the Indictment contains four of them. In the Indictment, the Common Plan or Conspiracy is made an individual and independent count of the charge, without the Charter’s establishing sufficient reasons for this. It may be left undecided whether conspiracy is considered a particular type of crime according to Anglo-American law. In view of the fact that the Charter rejects the use of both Anglo-American and continental law, but has established its own standards of law, and these sui generis, only the text and spirit of the Charter itself is decisive.

According, however, to what is expressly stated in Article 6, Paragraph 3 of the Charter, regarding the drafting or the execution of a plan for the perpetration of a crime against peace, against the customs of war, or against humanity, there surely cannot be an independent state of criminality as stated in Count One of the Indictment under the heading of Common Plan or Conspiracy, in all events, not on the basis of the provisions of the Charter.

Since the Defendant Hess has been charged with all four Counts of the Indictment it is necessary first to answer Count One of the Indictment: The Indictment places at the center of the Common Plan or Conspiracy the National Socialist German Workers’ Party of which Adolf Hitler had become the leader in 1921, and which the Defendant Rudolf Hess also joined as early as 1921. Even the Indictment does not, apparently, claim that the Party program of the NSDAP was actually criminal in itself. It appears all the less necessary to probe further into this question, as in the subsequent routine of political life the Party program by no means played the part which could probably be supposed. Moreover, the appraisal of evidence has definitely revealed, as far as the position and rise of the NSDAP is concerned, that up to 30 January 1933 the National Socialist Party had the same status as other parties; that it fought with the same legitimate means as other parties for the attainment of its objectives; and that not least among the factors of its rise is that Germany experienced in 1931-32, as a consequence of the reparations policy of the victor powers in 1919, an economic and social decline of uncommon magnitude; and that finally on 30 January 1933 the Party, being the strongest, was entrusted by the provisions of the Reich Constitution with the formation of the Government and its leader, Adolf Hitler, was nominated Reich Chancellor.

During the so-called period of struggle the Party, like all other parties, openly fought for the principles it represented, and the Prosecution could not submit in evidence a single argument from which the conclusion could be drawn that by using illegal means the Party and its leaders had been participants in a common plan aiming at launching a war of aggression. In fact, one need only keep in mind the political, economic, and military condition of Germany in the first years after the end of the first World War to recognize how improbable such a plan, aiming at starting a war, is for that time. The conception put forward by the Indictment reveals not only an entirely false idea of the economic, political, and military conditions which Germany faced as a consequence of the peace settlement by Versailles, but this conception also discloses complete failure to appreciate the intrinsic virtue of any policy.

When Adolf Hitler as the leader of the strongest party had been appointed Reich Chancellor by Reich President Von Hindenburg on 30 January 1933, it was necessarily out of the question for him and his Government, in which also other parties participated, to start drafting a common plan aiming at a war of aggression, in complete misjudgment of the political and, above all, economic conditions. The problems which the German Reich Cabinet faced at that time resulted directly from the fact that 7 million unemployed people in Germany had to be put to work. As the witness Dr. Lammers stated, the elimination of economic and social distress actually was the most important question at the first cabinet session. There was no question at all of a common plan aiming at launching a war of aggression and, in fact, it is inconceivable that in the circumstances at that time even one member of the Government could consider such an idea in any concrete shape. Furthermore, it has been established through the testimony of Dr. Lammers and other witnesses that the subject matter of the first cabinet meeting and the resolution there passed are contained in the governmental declaration of 1 February 1933, made known to the German people in the form of a manifesto of the German Government.

According to the Indictment, abrogation of the armaments restrictions imposed on Germany through the Versailles Treaty was the first aim of the conspiracy charged by the Prosecution. The final refusal of the victor powers to disarm in their turn, according to their pledge, contained in the treaty, at least accorded the German Reich the right to obtain an equalization of armament through its own rearmament. This was not done in secrecy by any means but in public, through the announcement of the law on the reintroduction of general conscription on 16 March 1935. The Prosecution have not been able to show evidence for their assertion that this law was connected with, and was part of, the common plan aimed at bringing about a war of aggression. The exclusive purpose of this law was rather to re-establish Germany’s right to equality at least for that question, 16 years after the end of the first World War. Here too, with regard to the details I also refer to the statements of counsel for the Defendant Von Neurath.

In this connection brief reference is appropriate to a document which the Prosecution produced, together with nine other documents, so-called key documents, which first of all are intended to serve the purpose of establishing the proof for existence of the common plan claimed in the Indictment. This is the written record of a discussion at the Reich Chancellery of 5 November 1937, Document Number 386-PS, Exhibit Number USA-25. As is known to the Court, this is not a literal reproduction of Adolf Hitler’s statements, but a report of Colonel Hossbach which was drafted by the latter 5 days later, namely, on 10 November 1937. I have no intention of entering any further into the contents of this document. I refer here to the testimony given by the Defendants Göring and Raeder and to the statements which other defendants’ counsels have made on this question. I only mention the fact that when addressing the Commanders-in-Chief and the Minister for Foreign Affairs at that time, Hitler had a chronological plan in view which reveals no conformity whatever with the subsequent events. In these circumstances, the existence of a determined and well-outlined plan by Hitler himself even seems very unlikely. Only one conclusion can with certainty be drawn from the contents of this document: Namely, that until 5 November 1937 Hitler himself only thought of an amicable settlement of the territorial problems raised by the Versailles Treaty. For this very reason, therefore, there can have been no question of a common plan aiming at the launching of a war of aggression—at least, up to this time.

This document, however, is worthy of notice for still another reason: The report begins with the Führer’s assertion:

“... that the subject of today’s conference is of such importance that its discussion in other states should belong to the forum of the government cabinet. He—the Führer—however, considering the importance of the matter, refrained from making it the subject of discussion in a full session of the Reich Cabinet.”

First of all, it can be left undecided in how far other questions from 1937 on were still dealt with by the Reich Cabinet in cabinet sessions, or in the so-called circulation procedure, in the administrative procedure or in the legislative way. The conclusion can, however, be drawn with certainty from the presentation of evidence and in particular from the witness Dr. Lammers’ statements and those of other witnesses, and from a great number of documents submitted by the Prosecution themselves, that, at the latest, from 5 November 1937 on, all problems concerning the question of war and peace were no longer dealt with by the Government as state authority, nor by another larger constant circle of collaborators, but exclusively by Adolf Hitler himself. In all probability this situation already existed in the year 1933. In this connection I should like to draw attention to the statements of several defendants in the witness box who, for example, were informed of the reoccupation of the demilitarized zone of the Rhineland in the same way as any other citizen, that is by means of the press and radio.

It is certain, however, that all important political and military decisions were taken by Adolf Hitler alone after 5 November 1937, and particularly after the so-called Fritsch crisis and the transformation of the Reich War Ministry into the High Command of the Armed Forces which it involved. According to the witness Dr. Lammers’ statements, general conferences between the Reich Government, the Reich Party Directorate and the generals never took place. According to the statement of this witness and others, a closer connection never existed between these three institutions. Indeed, not a single one of the documents submitted by the Prosecution reveals anything which might tempt us to admit the existence of an independent collaboration between the Reich Government, the Reich Party Directorate and the Reich War Ministry or afterward the High Command of the Armed Forces and the Commanders-in-Chief of the branches of the Armed Forces and their chiefs of staff. On the contrary, if a positive conclusion can really be drawn from the presentation of evidence, it is that the power was concentrated exclusively in the hands of Adolf Hitler, that the Reich Government, the Reich Party Directorate and the Armed Forces received their orders and directives only from him, that it was Hitler’s own policy to prevent a working and independent combination of these institutions.

It can thus also be explained that in all questions of a political or military nature, only those offices were included which had directly to do with the task to be carried out. It is clear from all the documents submitted by the Prosecution that, as a rule, at the conferences presided over by Hitler, there was no question of conferences as are perhaps customary in parliamentary democracies, but they were essentially only concerned with the issuing of orders.

It is not necessary to examine in detail the statements in their relation to Adolf Hitler made by nearly all the defendants, nor is it necessary to assume an attitude toward the statements on the stand taken by a whole series of other witnesses regarding Adolf Hitler’s position in the German governmental system. One thing can be said with certainty: at the latest, from 5 November 1937 on, Hitler’s position was so commanding and his exclusive dealing with all decisive political and military questions so firmly established that for this reason alone there could be no grounds left for the supposition of a common plan.

The Defendant Rudolf Hess, though the Führer’s Deputy and the highest political leader for Party matters, did not contribute to nor take part in any of the conferences or any other important political or military decisions characterized by the Prosecution as being essential to prove the existence of a common plan, just as little as he contributed to or took part in the conference of the Führer in the Reich Chancellery on 5 November 1937 (USA-25).

The same holds good, for example, for the next exhibit, USA-26, Document Number 388-PS, submitted by the Prosecution. This is the top-secret Case Green, Czechoslovakia. Without having to enter any further into the details of this document, it can be said without more ado that it deals with what is entirely the work of the General Staff, which was originally intended only as a problem, and afterward elaborated into a real operational plan. This operational plan was not put into action, the documents referring to Case Green, on the contrary, conclude with Directive Number 1 of the Führer and Supreme Commander of the Armed Forces, which refers to the occupation of the Sudeten German areas separated from Czechoslovakia by virtue of the Munich Agreement of 29 September 1938. Under these circumstances, it is superfluous to deal further with the letter of 27 September 1938, of the Chief of the High Command of the Armed Forces to the Führer’s Deputy which is also contained in the documents for the Case Green and refers to the mobilization measures which were to be taken without the issuing of a mobilization order or a corresponding code word.

What I have already said concerning Exhibit Number USA-25 applies similarly to Document Number L-79, Exhibit Number USA-27. This is another so-called key document having as subject the instruction by the Führer of the Commanders-in-Chief of the branches of the Armed Forces and the chiefs of the general staffs in the new Reich Chancellery on 23 May 1939. Without intending to enter into the importance or the value of this document as evidence—the Führer’s speech closed with the order to set up a small research staff in the High Command of the Armed Forces—this document shows clearly that no common plan in the shape asserted by the Prosecution can have existed, especially not among the defendants now facing their trial. Not a single minister or official of civil administration took part in this conference at the Führer’s headquarters—which in reality was not a conference but again an instruction and issuance of orders.

The next three documents submitted by the Prosecution as key documents refer to one and the same subject, namely, to Adolf Hitler’s speech addressed to the Commanders-in-Chief of the Wehrmacht on 22 August 1939. The following are the documents in question: Exhibit Number USA-28, Document Number L-3; Exhibit Number USA-29, Document Number 798-PS; and Exhibit Number USA-30, Document Number 1014-PS. I will not enter any further into the value of these documents as evidence, although it is obvious that these documents cannot be of equal value, and though it is quite clear that even an approximate reproduction of Adolf Hitler’s exposition is out of the question. None of these documents reveal their authorship. Moreover, the statements differ considerably as far as volume and contents are concerned.

Document Exhibit Number USA-29 seems to contain the most complete reproduction of Hitler’s statements. And here again the conclusion is most worthy of notice, a conclusion which throws some light upon the situation at that time and the events which made it possible for Hitler to make such a speech to the Commanders-in-Chief.

“I was convinced that Stalin would never accept the English offer. Russia is not interested in the existence of Poland and then Stalin knows it means the end of his regime, it being immaterial whether his soldiers are victorious or vanquished. Litvinov’s removal was decisive. I gradually changed our attitude toward Russia. In connection with the commercial treaty we engaged in political talks. Proposal for a nonaggression pact. Then came a general proposition from Russia. Four days ago I took a special step which caused Russia to signify her willingness to conclude it, yesterday. Personal contact with Stalin is established. Von Ribbentrop will conclude the treaty the day after tomorrow. Poland is now in the position in which I wanted her to be.”

Besides the Commanders-in-Chief, no minister or leader of the Party, specifically not the Defendant Rudolf Hess, attended this speech of the Führer. The same is true of Document Number 789-PS, Exhibit Number USA-23. The subject of this document is a conference with the Führer on 23 November 1939. It appears from this document that here again only the Commanders-in-Chief of the Armed Forces were assembled to receive the Führer’s directions for the imminent operations in the West.

The next key document is Exhibit USA-31, Document Number 446-PS, Directive Number 21 for “Case Barbarossa.” This was a question of a directive by the Führer and Supreme Commander of the Armed Forces which has an exclusively military character and was intended only for the sphere of the Armed Forces. Any participation by civilian administrative offices or of the Party, even in the person of the highest political leader, namely, the Defendant Rudolf Hess, is excluded by the nature of this directive.

It appears also from Document Number 2718-PS, Exhibit Number USA-32, the subject of which is a file memo on the result of a conference on 2 May 1941 about Case Barbarossa, that neither the Deputy of the Führer nor any other political leader took part in this conference.

The last so-called key document to be discussed is Exhibit Number USA-33, Document Number 1881-PS, an account by Minister Schmidt of the conversation between the Führer and the Japanese Foreign Minister Matsuoka in Berlin on 4 April 1941. By the very nature of this conference there could be as a matter of course no question of any participation in it by the Defendant Rudolf Hess or by any other political leader of the Party. However, something else appears from this document, namely, the fact that it is not only false to talk about a common plan within Germany aiming at a war of aggression but, even more than this, that no kind of close political or military co-operation existed between the so-called Axis Powers, in any case as far as the relations between Germany and Japan are concerned.

What conclusion can now be drawn from the contents of these so-called key documents which the Prosecution themselves have characterized as particularly relevant to show the existence of a so-called common plan? Whether these documents are relevant or not, it is established by these notes that the Defendant Hess was not present at any of these conferences or when these orders were issued. If, in appraising this circumstance, one considers the further fact that the Defendant Rudolf Hess was the Führer’s Deputy and therefore the highest political leader, and that furthermore, after 1 September 1939, he was designated as the Führer’s successor after the Defendant Hermann Göring, then there would in fact seem to be no basis for the assumption of a common plan in the form asserted by the Prosecution.

In this connection, may I refer to the report of the Chief of Staff of the United States Army to the Secretary of War for the period from 1 July 1943 to 30 June 1945. I quote:

“... The available evidence shows that Hitler’s original intent was to create by absorption of Germanic peoples in the areas contiguous to Germany and by strengthening of her new frontiers, a greater Reich which would dominate Europe. To this end, Hitler pursued a policy of opportunism by which he succeeded in occupying the Rhineland, Austria, and Czechoslovakia without military opposition.

“No evidence has yet been found that the German High Command had any over-all strategic plan. Although the High Command approved Hitler’s policies in principle his impetuous strategy outran German military capabilities and ultimately led to Germany’s defeat. The history of the German High Command from 1938 on is one of constant conflict of personalities in which military judgment was increasingly subordinated to Hitler’s personal dictates. The first clash occurred in 1938 and resulted in the removal of Von Blomberg, Von Fritsch, and Beck, and of the last effective conservative influence on German foreign policy.

“The campaigns in Poland, Norway, France, and the Low Countries developed into serious dissensions between Hitler and the General Staff as to details of execution of strategic plans. In each case the General Staff favored the orthodox offensive, Hitler an unorthodox attack, with objectives deep in enemy territory. In each case Hitler’s views prevailed and the astounding success of each succeeding campaign raised Hitler’s military prestige to the point where his opinions were no longer challenged. His military self-confidence became unassailable after the victory in France, and he began to disparage the ideas of his generals even in the presence of junior officers. Thus no General Staff objection was expressed when Hitler made the fatal decision to invade Soviet Russia.

“When Italy entered the war, Mussolini’s strategic aims contemplated the expansion of his empire under the cloak of German military success. Field Marshal Keitel reveals that Italy’s declaration of war was contrary to her agreement with Germany. Both Keitel and Jodl agree that it was undesired. From the very beginning Italy was a burden on the German war potential. Dependent upon Germany and German-occupied territories for oil and coal, Italy was a constant source of economic attrition. Mussolini’s unilateral action in attacking Greece and Egypt forced the Germans into the Balkan and African campaigns, resulting in overextension of the German armies which subsequently became one of the principal factors in Germany’s defeat.

“Nor is there evidence of close strategic co-ordination between Germany and Japan. The German General Staff recognized that Japan was bound by the neutrality pact with Russia, but hoped that the Japanese would tie up strong British and American land, sea, and air forces in the Far East.”

The statements which the Defendants Keitel and Jodl have made on the witness stand are essentially the same as the statements of the American Chief of Staff, so that further details on this point are superfluous. It may be considered as proven that not even among the most intimate circle of Adolf Hitler’s associates did a complete agreement exist on the measures to be taken in the political and military field, whereby the constitutionally established relationship of rank between the officers of the Armed Forces and the head of the State and Supreme Commander need not be considered. It is plain that the existence of a common plan aiming at war cannot be accepted even in the case of that group of persons for whom it first seemed most likely.

The second common goal of the conspiracy is declared by the Indictment to be the appropriation of the territories which Germany had lost as a result of the World War of 1914-18. The preamble to the Treaty of Versailles provides for the possibility of a revision of the treaty. Going beyond this, the demand for the reunion of Austria to the German Reich and the annexation of the Sudeten German regions cannot in itself be concluded to rest on the existence of a plan which was to have been realized at the proper moment by the use of violence or by way of war. As a matter of fact, by a disregard of the right of self-determination of nations, these territories had already been prevented in the year 1919 from annexing themselves to the German Reich. On this question I can refer to the statements I made at the beginning. Actually, the annexation of Austria took place—this may be said as a result of the presentation of evidence—under circumstances which cannot be described as warlike and which permit us to conclude that the greater part of the Austrian population approved the annexation. Concerning the Sudeten German question, it suffices here to refer to the Munich Agreement between Germany, Great Britain, France, and Italy by which the reunion of the Sudeten Germans with the Reich was settled.

And finally, the third aim of the common plan was described as the annexation of additional territories on the European continent which should serve the conspirators as “Lebensraum.” The Indictment is not clear in this point and lacks substance. But in fact the question of the so-called “Lebensraum” is a problem which is completely independent of the National Socialist ideology and is determined by the size of the area and number of inhabitants. Every German Government had to and still must deal with this question. If any argument by Hitler found a lasting response in the German people, it was the demand made by him for an appropriate share for the German people in the material wealth of the world. This demand appeared to be all the more justified for the German people as the relation between the area and the number of inhabitants is very unfavorable compared to other countries.

[sm type begins]For instance, in the European part of Russia alone there are 22.1 inhabitants per square kilometer; in the United States of America the density of population is only 17 people; and France with a population of 74.6 per square kilometer owns a territory of no less than 11.5 million square kilometers. England has 47 million inhabitants and disposes of no less than 35 million square kilometers of ground. Compared with these figures Germany had, on 1 September 1939, over 80 million subjects, a density of population of 140 and not even 600,000 square kilometers of territory. These figures speak for themselves. The question of territory is closely related to the problem of a fair distribution of the most important raw materials.[sm type ends]

I need not give detailed reasons on the inadequate distribution of the most important sources of raw materials nor mention that certain raw materials are completely monopolized. It is certain that the bitterness about the unjust distribution of the material wealth of the world was bound to increase in the German people, as not only was every reasonable revision rejected, but moreover it was said by the opposite side in an unmistakable manner that the nations were divided into two classes, namely the “haves” and the “have-nots”. In fact, this classification could be felt as nothing but scorn.

Moreover, even after 1933 there was no unanimous opinion about the possible solutions concerning the removal of the difficulties resulting from the need for space. Thus, for instance, the Defendant Rudolf Hess belonged precisely to those who wanted to solve the problem of “Lebensraum” by the acquisition of colonies, if possible. For instance, in a big speech in Stettin, on 21 March 1936, he said:

“The most natural way to make more food available for the people of Germany is to improve our living standard, that is, to supplement it by having colonies. Therefore, the Führer by stating his willingness to return to the League of Nations, hoped that the question of colonies would be submitted to examination. The Führer knows that a people without sufficient area, without a sufficient food basis, a hungry people, must in the long run become a center of unrest because of its instinct of self-preservation against which even the most ingenious statesman is powerless. For hunger is a natural instinct which cannot be subdued either by warnings or by orders. Our desire for colonies is therefore only the desire for a pacification of Europe for a long time, and therefore the question of the allocation of colonies to Germany is part of the Führer’s big proposal of pacification...”

The world knows that the fulfillment of this demand as well as the fulfillment of all other demands for revision was refused.

The connection between the unjust distribution of the material goods of the world which contradicts all economic reason and the political tensions which shake the peace of the world again and again, simply cannot be overlooked.

[sm type begins]Generalissimo Stalin, Chairman of the Council of the People’s Commissars of the USSR, stressed these facts clearly enough in his long speech of 11 February 1946 on the occasion of the elections for the Supreme Soviet, stating inter alia as follows:[sm type ends]

[sm type begins]“It would be wrong to think that the second World War was caused by chance or was the result of mistakes made by various statesmen, although such mistakes had undoubtedly been committed. In reality the war was an inevitable result of the international economic and political forces founded on modern monopolistic capitalism ... Perhaps we might escape the catastrophes of war if there were a chance of redistributing the raw materials among the countries according to their economic weight by virtue of agreed and peaceful decisions...” Somewhere else in his speech Stalin says:[sm type ends]

[sm type begins]“This is the position regarding the question of the origin and the character of the second World War. Now everyone presumably recognizes that this war never was and never could be a matter of chance in the life of the nations, that it indeed changed into a war involving the nations and their existence, and that for this reason it could not be a blitzkrieg quickly running its course...”[sm type ends]

[sm type begins]There is no need to add anything to these statements; they speak for themselves.[sm type ends]

Your Honors, I now turn to the legal evaluation of the state of affairs which may be considered as actually established: As I have already stated, Article 6, Paragraph 3 of the Charter is not the formulation of an independent state of criminality, but the expansion of the criminal responsibility of the leaders, instigators, and participants who have taken part in the drafting or in the execution of a common plan for committing one of the crimes mentioned in Paragraph 2. According to the regulation mentioned, these persons are to be responsible not only for the acts which they themselves have committed, but they also are to take upon themselves the penal consequences for all acts which were committed by any person in the execution of such a plan.

In Article 6, Paragraph 2a, of the Charter the fact of a crime against the peace is defined as follows:

“The planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing.”

While it is expressly defined in Article 6, Paragraph 3 of the Charter that the criminal responsibility of the participant in the drafting of a common plan is limited to acts which “have been committed by any person in execution of such a plan,” the crime against the peace is according to Article 6, Paragraph 2a, of the Charter already completed with the “agreements or assurances or participation in a Common Plan or Conspiracy for the accomplishment of a plan which has as its aim the preparation, initiation, or waging of a war of aggression.” In contrast to Article 6, Paragraph 3, it is here not necessary that an act of execution be actually committed.

I do not intend now to deal with the question more specifically whether the war as such and especially the starting of a war of aggression was a crime according to international law valid at the time of the outbreak of war, on 1 September 1939. This question has already been discussed in the opening speech of the Defense. This examination of the legal side of this question has shown that neither the League of Nations agreement nor the Briand-Kellogg Pact contains anything which would permit the conclusion that the starting of a war was a criminal and therefore punishable offense. International law knew neither a criminal responsibility of the state as a corporate body and even less a criminal responsibility of the agencies of the state, such as the head of the state, the members of the government, the military commanders, the economic leaders, et cetera.

The causes for this unsatisfactory state of international law need not be discussed. It has already been correctly pointed out that the idea of sovereignty and the refusal of the great powers in particular to relinquish some of these rights of sovereignty in the interest of a better supernational organization, was also a reason for the unsatisfactory status of international law especially on this question. In connection with this there is another fact which does not seem to be less important to me, namely, that it was not possible until now to create an effective organization and a procedure which would satisfy the justified claims of the peoples for a proper participation in the material goods of the world, and which would also in other respects take care of a just settlement of the conflicting interests.

On the basis of this examination alone there can hardly be any doubt that a crime against the peace, as it has found its factual definition in Article 6, Paragraph 2a, of the Charter, does not exist. This section of Article 6 of the Charter does not have a sufficient basis in existing international law.

I omit the following decisive statements as they concern the effect of the secret German-Russian treaty of 23 August 1939 on the jurisdiction of the Tribunal. The Tribunal will have to consider officially to what degree the jurisdiction can still be considered valid in view of this secret treaty. I continue on Page 63. Mr. President, I am in a difficult position, as by omitting these statements from Pages 59 to 62, an incorrect picture would be created, as my actual statements concerning the contents of the German-Soviet secret treaty of 1939 could be misunderstood because of its legal consequences. I therefore ask the Tribunal to decide.

THE PRESIDENT: The Tribunal has fully considered this matter and does not desire to hear your point.

DR. SEIDL: Moreover, the following is to be said about Article 6, Paragraph 3 of the Charter: The concept of a conspiracy, as it has been expressed in Article 6, Paragraph 3, is a typical institution of Anglo-American law. The continental European law does not know any such criminal concept. But there cannot be any doubt that international penal law, insofar as there is any such law, and if one does not understand by it the sum total of the rules which are to be observed in the application of national or foreign law, likewise does not know the concept of conspiracy as constituting a crime in criminal law.

But it is not only the question of prevailing international law and the agreement of the Charter with the same which is to be examined. The issue in connection with this requires an answer to the following question also:

In the opening speeches of the four chief prosecutors and also in the discussions prior to the Trial concerning its legal basis, two entirely contradictory arguments were advanced. While some argued that the Charter was a complete expression of the prevailing international law and was in agreement with the common legal beliefs of all members of the international legal community, the others asserted that one of the main tasks of the International Military Tribunal which was then to be set up would be to develop international law further. This latter opinion, for example, stands out clearly in the report of the American chief prosecutor to the President of the United States of 7 June 1945. Here, word for word, it states among other things:

“In initiating this Trial, we must also remain aware of the aims with which our people assumed the burdens of war. After we entered the war, and our men and our wealth were mobilized to eradicate this evil, there was the general feeling among our people that out of the war there should arise unmistakable rules and a practical machine from which anyone who entertains the thought of a further predatory war should realize that he will be held personally responsible and that he will be personally punished...”

Or in another part of this report, the following is stated literally:

“...According to the international law of the nineteenth and early twentieth century, the waging of war was not generally considered as unlawful or as a crime in the legal sense. Summed up, the prevailing doctrine held that both parties in any war were to be considered as being in the same legal situation and therefore had the same rights.”

The legal considerations in the report then actually conclude with the following challenge:

“...An attack against the fundamental principles of international relations must be considered as nothing less than a crime against the community, which rightly must protect the integrity of its fundamental agreements by punishing the aggressor. We therefore propose to raise the challenge that a war of aggression is a crime, and that modern international law has abandoned the justification according to which he who instigates or wages a war acts in accordance with the law.”

And as a matter of fact, it would not be necessary to raise the demand for a new penal law if the action under consideration was already threatened with punishment by existing law.

It is obvious that the fulfillment of such a demand by a court of law—whatever the legal basis for its proceedings—would be contradictory to a principle derived from the penal legislation of nearly all civilized nations and which finds its expression in the rule nulla poena sine lege, that an act can only be the object of punishment if the act was declared punishable by law before the act was committed. This state of affairs seems all the more remarkable, since the rule nulla poena sine lege is a principle firmly rooted in the constitution of practically all civilized nations. Thus, for example, it is contained in Article 39 of the English Magna Charta of King John of 1215, in the American Constitution of 1776 and in the declarations of the French Revolution in 1789 and 1791. This principle of nulla poena sine lege is not only contradictory to the assumption of a crime against peace as the Prosecution expects the Tribunal in the further development of prevailing international law to define as a punishable act, but rather it is also contradictory to the creation of another independent concept of conspiracy in criminal law by judicial dictum, in the further development of hitherto existing international law. In this it cannot make any distinction as to whether this conspiracy was directed toward committing a crime against the peace or committing a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent crime in criminal law is not compatible with the principle of nulla poena sine lege. What are applicable here are rather—as already correctly expounded by the French chief prosecutor—are only the rules defining participation according to the law of the perpetrator’s own country or according to the law in the place of perpetration. Under given circumstances, these rules defining participation are limited to the extension of the threat of punishment to cases of complicity, instigation, and assistance.

Apart from his participation in the Common Plan or Conspiracy, as defined in Count One of the Indictment, the Defendant Rudolf Hess, in connection with his personal responsibility for War Crimes and Crimes against Humanity, is essentially accused by the Prosecution on the basis of the contents of only one document, and that is Document Number R-96, Exhibit Number GB-268.

This concerns a letter from the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery on 17 April 1941, which deals with the introduction of penal laws against Poles and Jews in the incorporated Eastern territories. The Defendant Rudolf Hess plays a part in this only insofar as the letter mentions, among other things, that the Deputy of the Führer had proposed the discussion of the introduction of corporal punishment. If one considers that the staff of the Deputy of the Führer alone comprised 500 officials and employees, and that for questions of legislation, there was a special department which dealt directly with the separate ministries, it seems very doubtful whether the Defendant Rudolf Hess was personally concerned in this matter at all. In this connection I refer to the affidavit of the witness Hildegard Fath, Exhibit Number Hess-16. Considering, however, that the measure proposed for discussion by the Deputy of the Führer was not introduced, the knowledge of the defendant should not matter very much. Without it being necessary to probe any deeper into the subjective elements of the case, it can be said that, in application of principles such as can be derived from the penal law of all civilized countries there is here not even question of an attempt. The attitude of the Führer, or, more correctly, the Deputy of the Führer, as expressed in the letter of the Reich Minister of Justice is irrelevant from the point of view of criminal law. We need not consider in this connection whether a penal law would have been violated if the measure proposed for discussion had actually found legislative expression in a Reich law.

Another document submitted by the Prosecution is Exhibit USA-696, Document Number 062-PS. This refers to the order of the Deputy of the Führer of 13 March 1940, which deals with the instructing of the civilian population as to the proper attitude to be adopted in case of landings by enemy aircraft or parachutists on German national territory. This is the same document concerning which I have already applied for a correction of the translation because the translation from German into English was at any rate in my opinion not correct. This document, however, is neither contained in the trial brief submitted by the British Prosecution nor was it mentioned by Colonel Griffith-Jones on 7 February 1946 when he discussed the personal responsibility of the Defendant Rudolf Hess. In consideration, however, of the fact that this order was officially submitted as documentary evidence, it is necessary to go into it at least briefly.

The reason for this order of 13 March 1940 was the fact that the French Government had given instructions to the French civilian population officially and by radio as to how they were to conduct themselves in case of landings by German aircraft. On the basis of these instructions of the French Government, the Commander-in-Chief of the German Air Force considered himself also called upon on his part to inform the German population via the official Party channels. He therefore issued a directive about the attitude to be adopted in the case of landings by enemy aircraft or parachutists, which was used as an appendix to the afore-mentioned order of the Deputy of the Führer of 13 March 1940.

This directive, however, does not contain anything which is contrary to the laws and customs of warfare, as they have been expressed, for example, in the Hague Rules on Land Warfare. This applies particularly to Figure 4, which contains the order that enemy parachutists are either to be arrested or rendered harmless. According to the text as well as the sense of this Figure 4, there cannot be the slightest doubt that this was only meant to say that enemy parachutists were to be fought and subdued if they did not surrender voluntarily and tried to avoid their arrest by using force, particularly by the use of firearms. This becomes evident from the word “or” alone. First of all, the attempt was to be made to take them prisoner. This alone in the interest of the intelligence service. Only if this proved impossible because of resistance were they to be rendered harmless, that means subdued.

Any other interpretation of this order would not only be contrary to the text and the sense, but moreover would also be contrary to the fact that up to the French campaign the war had been waged according to rules such as had been established, among others, in the Hague Rules on Land Warfare and that, at any rate at that time, March 1940, the war had not yet developed into the mutual struggle for annihilation that it was to become after the outbreak of the German-Russian war. The fact that a different interpretation is absolutely impossible is also evident from the so-called “Commando Order” of the Führer of 18 October 1942, which was presented by the Prosecution under Exhibit Number USA-501, Document Number 498-PS. The deliberations preceding this order—which, by the way, was issued under completely different conditions—and the fact that this Commando Order was decreed by Hitler himself, in spite of the opposition of the High Command of the Armed Forces and the Chief of the Armed Forces Operations Staff, would have been entirely superfluous, if the Commander-in-Chief of the Air Force had already issued instructions which served the same purpose in March 1940. It is furthermore expressly specified in Figure 4 of the Führer Order of 18 October 1942, that captured members of Commando groups were to be handed over to the SD.

As the German text of this directive about the order of 13 March 1940 is completely unequivocal and does not leave any room for doubt, I refrained from procuring additional evidence about this question. In the event, however, that the Tribunal should not share this assumption, it would be unavoidable for the complete clarification of the facts that the Tribunal should, on their own initiative, procure the instructions which the French Government issued at the beginning of the year 1940 to the French civilian population in case of landings by German aircraft or German parachutists.

It is not necessary to go into any more detail into Exhibit Number GB-267, Document Number 3245-PS, which is also brought forward against the Defendant Hess, as the contents of this document can under no circumstances be considered a crime against the rules of warfare or against humanity, if the afore-mentioned principles are applied.

Besides being indicted as an individual, Rudolf Hess is also indicted as a member of the SA, the SS, the Corps of Political Leaders and the Reich Cabinet. As far as his membership in the SA and the SS is concerned, more detailed explanations are superfluous. From the documents presented by the Prosecution, it becomes evident that the Defendant Rudolf Hess held only the honorary rank of an Obergruppenführer in both of these organizations. No command or disciplinary powers were connected with it.

As Deputy of the Führer, however, the Defendant Rudolf Hess held the highest office which existed in the Corps of Political Leaders. I cannot assume the task of commenting in detail on the charge which is brought against the Corps of Political Leaders under, and in application of, Article 9 of the Charter, and which is characterized by its motion to declare the Corps of Political Leaders a criminal organization. Considering the fact, however, that the Defendant Rudolf Hess, although not the only political leader here on the defendants’ bench, was nevertheless the highest political leader, there arises the occasion for making a few fundamental remarks.

According to Article 9 of the Charter, the Tribunal can declare to a member of an organization that the organization to which the defendant belongs or belonged was a criminal one. According to the Charter, a necessary condition for this is that the declaration of the Tribunal be connected with an act for which the defendant is convicted. By an “act” within the meaning of Article 9 of the Charter one can only understand a deed of commission or omission for which the defendant is personally accountable and to blame, but not the extended liability for the act of another resulting in a given case from Article 6, Paragraph 3. Since, however, neither in the Indictment nor in the trial brief dealing with the personal responsibility of the Defendant Rudolf Hess, is an act of any kind charged against him which satisfies the conditions constituting a war crime or a crime against humanity, a conviction of the Defendant Hess, in this case also—namely as a member of the Corps of Political Leaders—would be synonymous with the establishment of a criminal responsibility for the acts or omissions of another. Although the Defendant Rudolf Hess was the highest political leader and although no action is charged against him personally which constitutes a crime according to any penal law, he is to be convicted as a member of the allegedly criminal organization of which he was the leader; it cannot be denied that this is a legal situation which does not happen every day.

But something else appears more important. The Defense were compelled to attack the very heart of the Charter, namely Article 6, as not being consistent with generally valid principles of international law. Article 9 of the Charter is no less in contradiction with the common legal beliefs of all members of the international legal community. There is neither a legal statute in international law nor a legal statute in any national law which declares the membership in an organization as criminal without examining in each individual case whether the person concerned has made himself personally guilty by his own actions or omissions. Contrary to the general principles of criminal law, as they are derived from the penal laws of all civilized countries, the Charter provides in Article 9 for a criminal responsibility and collective liability of all members of certain organizations and institutions, and this without any consideration as to whether the individual member has incurred any guilt.

The Charter thus abandons a principle which is an integral part of any modern system of criminal law. The rule of “no punishment without guilt”—and the declaration that a certain organization is criminal is a punishment for the members affected by it—is an essential part of the idea of the criminal law of our time, insofar as one understands by guilt the sum total of those necessary conditions for punishment of the culprit. If the fact of membership in a certain organization alone becomes the object of a penal sentence, then the act which constitutes the charge no longer appears as a legally objectionable expression of the culprit’s personality. This must particularly apply to organizations which had hundreds of thousands, and even millions of members. For that reason punishment without guilt has hitherto existed only in primitive law. Therefore, Von Liszt, the great German teacher of criminal law, who was at the same time a constructive thinker in the field of international law, says appropriately:

“Just as religious teaching does not oppose the visiting of the sins of the fathers on the children and on the children’s children, just as in the dramas of the ancients the place of guilt is taken by blind, inexorable fate and in the literature of today by the law of heredity, so even the oldest law of all nations knows of no penalty without guilt.”

Only in primitive law did there exist a criminal responsibility without guilt. As a matter of fact, in the legal history of all countries, the so-called criminal responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility attaching to the guilty only and thereby that state was reached which is alone compatible with the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a regrettable contribution to the hastening of the apparently inevitable reduction of men to mere members of a mass, but it is, moreover, a relapse to the first beginnings of concepts of criminal law. Considering these facts, it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal beliefs of all the members of the community of international law and from the general principle of criminal law in all civilized nations.

Rudolf Hess is finally accused as a member of the Reich Cabinet. Insofar as his membership in the Secret Cabinet Council is concerned, the following may be said: The presentation of evidence has shown that this Secret Cabinet Council was only created so that the resignation of the former Reich Foreign Minister Von Neurath would not appear to the public as signifying a breach between him and Adolf Hitler. Actually, no session of this Secret Cabinet Council ever took place. The council did not even meet to outline its sphere of activity.

With reference to the Reich Cabinet, it is established on the basis of the results of the presentation of evidence that no cabinet meetings took place after 1937 at the latest. The tasks to be performed by the Reich Cabinet, especially its legislative functions, were taken care of by the so-called circulating procedure. The presentation of evidence has shown further that from 1937 on at the latest, the major political and military decisions were made exclusively by Adolf Hitler alone without the members of the Reich Cabinet having been informed of them in advance. After Hitler’s appointment as Reich Chancellor, and surely much earlier than 1937, the Reich Cabinet as an institution probably made no ultimate decision on politically or militarily important questions. It would be completely misleading to assume that the members of the Reich Cabinet in the National Socialist State had a position even approximately like the position which is a matter of course in a state governed by parliamentarian principles. Just as little as there was a common plan or conspiracy among the men sitting on the defendants’ bench, was there anything of the kind within the Reich Cabinet.

It was even partly true that forces with divergent aims became apparent within the Reich Cabinet, which in itself would have made it impossible to agree on a common plan, such as was expressed in the Indictment. It is sufficient here to point to the testimony of the witness Lammers and to the fact that Adolf Hitler, from whom such facts could not remain hidden, finally issued a prohibition to the effect that the individual Reich ministers no longer had the right to assemble for conferences on their own motion.

In this connection, something else cannot be left unmentioned. If the presentation of evidence in this Trial has revealed anything with certainty, then it is the proof of the position of enormous political power and unimaginable authority which Adolf Hitler held within the German governmental system. When Generaloberst Jodl testified on the witness stand that there was no one who could successfully contradict Hitler in the long run and that such a person could not exist, then one might say that he expressed the true state of affairs in a few words. That may perhaps be regrettable, but cannot in any way alter the facts as such. Now, if one also bears in mind that this dominant position of Hitler became constantly greater during the course of the years, then this alone should be sufficient to exclude the assumption of a common plan, such as is alleged in the Indictment.

In any case, the following must be said: The former Party leaders, generals and cabinet members indicted before this Tribunal receive an importance in this Trial because of Hitler’s death which it is apparent they actually did not have in public life in the past. While the entire political life of Germany was overshadowed during the past 12 years by the overwhelming influence of Hitler’s personality, the absence of this man from the defendants’ bench affects this Trial in such a manner that it undoubtedly must result in an entirely distorted picture of the political reality of the past 12 years.

Your Honors, I come now to the event which was to conclude the political career of the Defendant Rudolf Hess—his flight to England on 10 May 1941. For several reasons this undertaking is of importance in this Trial as evidence. As is shown by the presentation of evidence, the Defendant Rudolf Hess had made the decision for this flight as early as June 1940—that is, immediately after the surrender of France.

The execution of the plan was delayed for a number of reasons: In particular, certain technical conditions had to be fulfilled in advance. Moreover, considerations of a political nature played a part, namely, that such an enterprise could be attended by success, if at all, only when political conditions and especially the military situation appeared favorable for the opening of peace-negotiations; for re-establishment of peace was undoubtedly the aim which Hess pursued in his flight to England.

When the Defendant Hess was led before the Duke of Hamilton on the day after his landing, he declared to the latter, “I come on a mission of humanity.” During the conversations which the defendant had with Mr. Kirkpatrick of the Foreign Office on 13, 14, and 15 May, he explained to him in detail the motives which had induced him to take this extraordinary step. At the same time, he informed him of the conditions under which Hitler would be prepared to make peace.

On 9 June 1941, a conversation took place between Rudolf Hess and Lord Simon, who appeared on the order of the British Government. I submitted the transcript of this conversation to the Tribunal as evidence and am referring to it.

It is shown by this document that the motive for this extraordinary flight was the intention to avoid further bloodshed and to create favorable conditions for the opening of peace negotiations. During the course of this conversation, the Defendant Hess handed a document to Lord Simon which stated the four conditions under which Hitler would have been prepared at that time to conclude peace with England. The conditions were:

“1. In order to prevent future wars between the Axis and England, a delimitation of spheres of interests is to take place. The sphere of interests of the Axis Powers is to be Europe, and that of England her Colonial Empire.

“2. Return of the German colonies.

“3. Indemnification of German nationals who were domiciled prior to or during the war in the British Empire and who suffered damage to life or property because of measures taken by the Government in the Empire, or through incidents such as pillage, riots, et cetera. Indemnification to British nationals on the same basis by Germany.

“4. Conclusion of an armistice and peace treaty with Italy at the same time.”

Rudolf Hess explained to Mr. Kirkpatrick, as well as to Lord Simon, that such were the terms on which Hitler was prepared to make peace with Great Britain immediately after the conclusion of the French campaign and that this position of Hitler had undergone no further change since completion of the campaign against France. There are no indications of any kind why this account of the defendant should not appear plausible. On the contrary, it is fully in harmony with many statements which Hitler himself had made concerning relations between Germany and England. In addition to that, the Defendants Göring and Von Ribbentrop likewise confirmed while in the witness box that the terms which Hess disclosed to Lord Simon corresponded completely with Hitler’s views.

If the terms announced by Hess provided that Europe was to be the sphere of interests of the Axis Powers, the conclusion can in no way be drawn from this that this was synonymous with a domination of Europe by the Axis Powers. The declarations made by Hess—they are included in written notes on the conversation between him and Lord Simon—rather demonstrate with all clarity that this was merely to eliminate any interference by England in continental Europe.

What legal consequences result from these facts? In the Indictment, the Defendant Hess is charged—together with the other defendants—with having co-operated in the psychological preparations of the German people for war. To the extent that the psychological preparation for war alleged by the Prosecution is part of the common plan, it is sufficient to refer to the remarks I have made in that connection. However, if the Prosecution also want to allege that the Defendant Hess went further and personally engaged in this psychological preparation for war, then the contrary is proved at the very least—apart from his numerous speeches in favor of peace—by his flight to England and the intentions behind it.

Without going into detail as regards general circumstances and the personal relations between Hitler and the Defendant Hess, one thing can still be said with certainty: By his flight to England the Defendant Hess accomplished a deed which in view of his position in the Party and in the State, and especially in view of the fact that after Göring he was marked as Hitler’s successor, can only be characterized as a sacrifice, a sacrifice which Hess made not only in the interest of the restoration of peace, and in the interest of the German people, but also in that of Europe and the whole world. This sacrifice was all the greater as Hess was one of the very few whose relation to Hitler was based on intimate personal confidence. If, nevertheless, the Defendant Hess decided to stake his position in the Party and in the State and his personal bond with Hitler for the re-establishment of peace, this must lead to the conclusion that the Defendant Hess likewise saw in war the ghastly scourge of mankind and that it must appear quite improbable for this reason alone that it was his intention to prepare the German people for war.

Your Honors, the following statements deal with the question of what legal conclusions are to be drawn from the flight of the Defendant Hess to England with respect to his participation in the Common Plan or Conspiracy alleged by the Prosecution, particularly, in view of the attitude of the defendant, to what extent any criminal responsibility can still be assumed, even after the flight to England. The Defendant Hess himself does not wish to have any favorable conclusions drawn for him in the course of this Trial from this flight and from the intentions connected with it. He has, therefore, also asked me to omit a part of the following statement. Nevertheless, I consider it my duty as the defense counsel to draw all the legal conclusions resulting from the flight of the Defendant Hess and his intentions in connection with it and to point out the facts and points of view which in any way speak in the defendant’s favor.

As I have explained, it must be assumed on the basis of the evidence presented, that the plan alleged by the Prosecution did not exist. In the event, however, that the Tribunal should judge the results of the testimony differently and in application of Article 6, Paragraph 3 of the Charter, should accept the existence of such a plan, directed toward the beginning of a war of aggression, it becomes necessary to examine the question of what legal consequences the flight of the Defendant Rudolf Hess to England and his intentions in connection with it had on his participation in the common plan as asserted by the Prosecution.

To this the following can be said: Article 6, Paragraph 3 of the Charter extends the criminal responsibility of the defendant to include all acts committed by any person while carrying out the common plan alleged by the Prosecution. The Charter itself contains no provisions as to whether and under what conditions a separation or withdrawal from a common plan is possible. This does not justify the conclusion, however, that such a withdrawal should be excluded as a matter of principle. That assumption is precluded by the very reason that the Charter quite clearly does not purport to give an exhaustive ruling on all questions of substantive and procedural law. If a withdrawal is permitted in Anglo-American law as a matter of fundamental principle, this should be possible with more reason under the Charter. For the Charter represents a compendium of principles in which institutions of continental European law are also given consideration. Continental European law proceeds quite unequivocally from the idea that the responsibility of the perpetrator under criminal law extends only so far as his actions or omissions are controlled by his will. The withdrawal from the attempt, as a reason for acquittal, has therefore become an institution which can be found in almost all European codes of law. If, according to Anglo-American law, withdrawal from the conspiracy is possible, there can be no doubt as to that possibility’s existing, in principle, according to the Charter. There is all the more reason for that assumption, in that it has been a practice on principle to apply German law in cases where the Charter fails to establish a binding rule. With regard to the Defendant Rudolf Hess, there should be even less reason for doubt, because the acts charged against the Defendant Rudolf Hess were committed within the territory of the German Reich. According to generally accepted principles of law, as they find expression in particular in the so-called international penal code of all nations, the so-called lex loci, that is, the law of the place where the act was committed, is binding in this case.

Applying these principles to the behavior of the Defendant Rudolf Hess and to his flight to England of 10 May 1941, it follows in the first place—and the evidence likewise did not produce anything to the contrary—that all the subsequent developments could not have been controlled by his will. His influence on the course of events within the development of the war as a whole ceased, at the latest, with his flight to England. It contradicts all principles of penal law, as they are derived from the codes of law of all civilized nations, to hold someone criminally responsible for acts and results upon which he had no influence, and was no longer able to exert any influence, and which he did not adopt by his own volition.

In this connection reference should also be made to the Prosecution’s contention that the Defendant Hess did not undertake his flight to England in order to create favorable conditions for peace negotiations. That, on the contrary, it was his intention—this is the argument of the Prosecution—thus to protect Germany’s rear in her planned campaign against the Soviet Union. The documents submitted by the Prosecution do not provide any basis for this assumption. To begin with, this is contradicted by the fact that the Defendant Hess had already decided on the flight as early as June 1940, in other words, at a time when no one in Germany thought of a campaign against the Soviet Union. On the contrary, from the letter which the Defendant Hess left behind and which was handed to Adolf Hitler at a time when Hess had already landed in England, it becomes perfectly clear that Hess had no knowledge of the impending campaign against the Soviet Union. In this letter the Defendant Hess did not state by a single word—and this is established by the testimony of the witness Fath, who read the letter herself—that the purpose of his flight was to cover Germany’s rear for the impending campaign against the Soviets. In that letter Hess did not mention the Soviet Union by a single word. It must rather be assumed, with a probability which almost amounts to certainty, that if Hess had had knowledge of the proposed attack, and if he had intended to combine the intention with his flight, which the Prosecution now claims, Hess would have dealt with that question. In this connection I should like to refer the Tribunal to Exhibit Number USA-875, Document Number 3952-PS which also clearly shows that Hess can have had no knowledge of the impending campaign against the Soviet Union.

But even if Hess had had definite knowledge of the planned campaign against the Soviet Union, this would not oppose the reason for his acquittal under criminal law in regard to the subsequent period of time. Evidence has shown that in ordering the attack against the Soviet Union, the idea of anticipating a forthcoming attack on the part of the Soviets was by no means last in Hitler’s mind. I refer to the report of the American Chief of Staff Marshall, which I have already read.

It is immaterial in connection with the question to be examined here, whether such an attack was actually planned by Soviet Russia and was imminent. Statements made by the Defendant Jodl while in the witness box must make this appear at least very likely, if not absolutely certain. The decisive point here is merely that on the basis of the reports he had before him Hitler personally was of that opinion. Had the Defendant Rudolf Hess been successful in establishing the necessary conditions for armistice and peace negotiations in England, the political and military situation in Europe would have been so fundamentally changed that under these modified conditions an attack by the Soviet Union on Germany would have appeared most unlikely, and the apprehensions entertained by Hitler would have become untenable. The attempt made by the Defendant Hess in his flight to England would also maintain its character as a reason for acquittal under criminal law for all that happened after 10 May 1941, and in carrying out the common plan alleged by the Prosecution, even if it were argued that it was not the fear of an imminent Soviet attack which prompted Hitler in his decision, but the embarrassing economic situation in which Germany found herself as a result of the failure of the invasion of England. For with the ending of war with England, this embarrassing economic situation of Germany would also have come to an end; at least it would not have been so stringent.

In conclusion, it may be said that in undertaking his flight to England, which was linked with his plans for the restoration of peace, the Defendant Hess committed his entire person in an attempt which obviously sprang from the desire to avoid further bloodshed at all costs. In application of principles of law such as are derived from the penal codes of all civilized nations, and especially in application of German penal law—which if doubt arises is to be taken as a basis for this question—the conclusion must be drawn that the criminal responsibility of the Defendant Hess will in any case be confined to acts which were committed prior to the flight to England.

Your Honors, the past war has brought misery upon the whole of mankind to an almost unimaginable extent; it has turned Europe into a continent bleeding from a thousand wounds and left Germany a field of ruins. It appears certain that at the present stage of modern technical developments, humanity would not survive another world war. As far as it is humanly possible to foresee, this would completely annihilate civilization, which has already suffered unspeakably in this war. It appears therefore only too understandable if, under these circumstances, an endeavor should be made in the name of humanity, which is struggling for its existence, to leave nothing untried, even from the legal standpoint, to prevent the repetition of such a catastrophe.

There can, however, be no doubt that the law, whatever its strength may be in social life, can only play a subordinate part in the prevention of war. This applies without any limitation as long as the community of nations is composed of sovereign states which acknowledge no legal code derived from a superior authority, and as long as no procedure and no organization exists which by virtue of its own authoritative power could establish laws legally limiting the legitimate claims of the nations and bringing them into harmony with one another. As long as these conditions are not fulfilled, justice cannot be in the domain Of international relations the regulating force it is in national life where it rests directly upon the power of the state which is behind it. Tempting as it may be to try to establish at least an improved and more powerful body of international law on the ruins left us by the past world war, such an attempt must be doomed to failure from the outset if it does not coincide with a comprehensive new order of all international relations and if international law is not simultaneously an essential part of an order which guarantees the indispensable rights of all nations and which assures in particular the satisfaction of the legitimate claims of every nation to a proportionate share of the material wealth of the world. The Charter of the International Military Tribunal is undoubtedly not part of such a general new order. It was enacted by the victorious powers for a limited duration, namely, as a foundation for a criminal trial against the statesmen, military commanders, and economic leaders of the Axis Powers which had been defeated in war. The contents of the London Agreement made the Charter of the International Military Tribunal, which constituted an essential part of this agreement, appear as a legislative measure ad hoc by reason of the very time limit of one year stipulated by Article 7. As a matter of fact, it can scarcely remain doubtful that essential parts of the Charter are not in accordance with the general convictions of all members of the international legal community and that they do not, therefore, constitute really valid international law. Under these circumstances, a conviction for a crime against the peace and for participation in a common plan to initiate a war of aggression could only take place at variance with prevailing international law if the Tribunal decided, in violation of the principle nulla poena sine lege, upon a juridical extension of international law. Great as this temptation may be, its consequences would be incalculable. Not only would a principle be violated which is derived from the principles of the criminal law of all civilized nations and constituted in particular an integral component of international law, namely that an act can be penalized only when its penal character has been juridically specified prior to the commission of the act; but above all, in view of the fact that in the present Trial facts were revealed which excluded jurisdiction on Counts One and Two of the Indictment and the jurisdiction of the Tribunal so far, the violation of the principle nulla poena sine lege, combined with these special circumstances, must put the concept of law in doubt altogether.

[sm type begins]A violation of so fundamental a legal principle inherent in all judicial systems—and that applies to international law as well—as expressed in the maxim nulla poena sine lege, and even more so in the postulate that nobody must be a judge in re sua, would not only obstruct any further development of international law but would, furthermore, indubitably lead to an increased legal insecurity.[sm type ends]

If the way for genuine progress in international legislation is not to be obstructed, then only the actual international code which was valid at the time the acts were committed can be considered as the legal basis for the judgment of this Tribunal.

THE PRESIDENT: The Tribunal will now adjourn.

[The Tribunal adjourned until 26 July 1946 at 1000 hours.]

ONE HUNDRED AND EIGHTY-SEVENTH DAY

Friday, 26 July 1946

Morning Session

THE PRESIDENT: I call on the chief prosecutor, the United States of America.

MARSHAL: May it please the Tribunal, the Defendant Hess is absent.

MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): Mr. President and Members of the Tribunal: An advocate can be confronted with few more formidable tasks than to select his closing arguments where there is great disparity between his appropriate time and his available material. In 8 months—a short time as state trials go—we have introduced evidence which, embraces as vast and varied a panorama of events as has ever been compressed within the framework of a litigation. It is impossible in summation to do more than outline with bold strokes the vitals of this Trial’s mad and melancholy record, which will live as the historical text of the twentieth century’s shame and depravity.

It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be “progress.” The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first. These two-score years in the twentieth century will be recorded in the book of years as one of the most bloody in all annals. Two World Wars have left a legacy of dead which number more than all the armies engaged in any way that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi Inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilization.

Goaded by these facts, we were moved to redress the blight on the record of our era. The defendants complain that our pace is too fast. In drawing the Charter of this Tribunal, we thought we were recording an accomplished advance in international law. But they say we have outrun our times, that we have anticipated an advance that should be, but has not yet been made. The Agreement of London, whether it originates or merely records, at all events marks a transition in international law which roughly corresponds to that in the evolution of local law when men ceased to punish crime by “hue and cry” and began to let reason and inquiry govern punishment. The society of nations has emerged from the primitive “hue and cry,” the law of “catch and kill.” It seeks to apply sanctions to enforce international law, but to guide their application by evidence, law, and reason instead of outcry. The defendants denounce the law under which their accounting is asked. Their dislike for the law which condemns them is not original. It has been remarked before that: “No thief e’er felt the halter draw with good opinion of the law.”

I shall not labor the law of this case. The position of the United States was explained in my opening statement. My distinguished colleague, the Attorney General of Great Britain, will reply on behalf of all the chief prosecutors to the defendants’ legal attack. At this stage of the proceedings, I shall rest upon the law of these crimes as laid down in the Charter. The defendants, who except for the Charter would have no right to be heard at all, now ask that the legal basis of this Trial be nullified. This Tribunal, of course, is given no power to set aside or modify the agreement between the Four Powers, to which 18 other nations have adhered. The terms of the Charter are conclusive upon every party to these proceedings.

In interpreting the Charter, however, we should not overlook the unique and emergent character of this body as an International Military Tribunal. It is no part of the constitutional mechanism of internal justice of any of the signatory nations. Germany has unconditionally surrendered, but no peace treaty has been signed or agreed upon. The Allies are still technically in a state of war with Germany, although the enemy’s political and military institutions have collapsed. As a military tribunal, this Tribunal is a continuation of the war effort of the Allied nations. As an International Tribunal, it is not bound by the procedural and substantive refinements of our respective judicial or constitutional systems, nor will its rulings introduce precedents into any country’s internal system of civil justice. As an International Military Tribunal, it rises above the provincial and transient and seeks guidance not only from international law but also from the basic principles of jurisprudence which are assumptions of civilization and which long have found embodiment in the codes of all nations.

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The Prosecution’s case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation.

But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for the possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilization of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of international law had it not been utilized to goosestep the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge, and intent.

We charge unlawful aggression but we are not trying the motives, hopes, or frustrations which may have led Germany to resort to aggressive war as an instrument of policy. The law, unlike politics, does not concern itself with the good or evil in the status quo, nor with the merits of the grievances against it. It merely requires that the status quo be not attacked by violent means and that policies be not advanced by war. We may admit that overlapping ethnological and cultural groups, economic barriers, and conflicting national ambitions created in the 1930’s, as they will continue to create, grave problems for Germany as well as for the other peoples of Europe. We may admit too that the world had failed to provide political or legal remedies which would be honorable and acceptable alternatives to war. We do not underwrite either the ethics or the wisdom of any country, including my own, in the face of these problems. But we do say that it is now, as it was for sometime prior to 1939, illegal and criminal for Germany or any other nation to redress grievances or seek expansion by resort to aggressive war.

Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the Counts charged against him in the Indictment. Any result that the calm and critical judgment of posterity would pronounce unjust would not be a victory for any of the countries associated in this Prosecution. But in summation we now have before us the tested evidences of criminality and have heard the flimsy excuses and paltry evasions of the defendants. The suspended judgment with which we opened this case is no longer appropriate. The time has come for final judgment and if the case I present seems hard and uncompromising, it is because the evidence makes it so.

I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full and put before you only the bold outlines of a case that is impressive in its simplicity. True, its thousands of documents and more thousands of pages of testimony deal with an epoch and cover a continent, and touch almost every branch of human endeavor. They illuminate specialities, such as diplomacy, naval development and warfare, land warfare, the genesis of air warfare, the politics of the Nazi rise to power, the finance and economics of totalitarian war, sociology, penology, mass psychology, and mass pathology. I must leave it to experts to comb the evidence and write volumes on their specialities, while I picture in broad strokes the offenses whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, “splash at a 10-league canvas with brushes of comet’s hair.”

The Crimes of the Nazi Regime.

The strength of the case against these defendants under the conspiracy Count, which it is the duty of the United States to argue, is in its simplicity. It involves but three ultimate inquiries: First, have the acts defined by the Charter as crimes been committed; second, were they committed pursuant to a Common Plan or Conspiracy; third, are these defendants among those who are criminally responsible?

The charge requires examination of a criminal policy, not of a multitude of isolated, unplanned, or disputed crimes. The substantive crimes upon which we rely, either as goals of a common plan or as means for its accomplishment, are admitted. The pillars which uphold the conspiracy charge may be found in five groups of overt acts, whose character and magnitude are important considerations in appraising the proof of conspiracy.

1. The Seizure of Power and Subjugation of Germany to a Police State.

The Nazi Party seized control of the German State in 1933. “Seizure of power” is a characterization used by defendants and defense witnesses, and so apt that it has passed into both history and everyday speech.

The Nazi junta in the early days lived in constant fear of overthrow. Göring, in 1934, pointed out that its enemies were legion and said:

“Therefore, the concentration camps have been created, where we have first confined thousands of Communists and social democrat functionaries” (2344-PS).

In 1933 Göring forecast the whole program of purposeful cruelty and oppression when he publicly announced:

“Whoever in the future raises a hand against a representative of the National Socialist movement or of the State must know that he will lose his life in a very short while” (2494-PS).

New political crimes were created to this end. It was made a treason, punishable with death, to organize or support a political party other than the Nazi Party (2548-PS). Circulating a false or exaggerated statement, or one which would harm the State or even the Party, was made a crime (1652-PS). Laws were enacted of such ambiguity that they could be used to punish almost any innocent act. It was, for example, made a crime to provoke “any act contrary to the public welfare” (1390-PS).

The doctrine of punishment by analogy was introduced to enable conviction for acts which no statute forbade (1962-PS). Minister of Justice Gürtner explained that National Socialism considered every violation of the goals of life which the community set up for itself to be a wrong per se, and that the acts could be punished even though it was not contrary to existing “formal law” (2549-PS).

The Gestapo and the SD were instrumentalities of an espionage system which penetrated public and private life (1680-PS). Göring controlled a personal wire-tapping unit. All privacy of communication was abolished (1390-PS). Party Blockleiter appointed over every 50 householders spied continuously on all within their ken (1893-PS).

Upon the strength of this spying individuals were dragged off to “protective custody” and to concentration camps without legal proceedings of any kind (1956-PS) and without statement of any reason therefor (2533-PS). The partisan Political Police were exempted from effective legal responsibility for their acts (2347-PS).

With all administrative offices in Nazi control and with the Reichstag reduced to impotence, the judiciary remained the last obstacle to this reign of terror (2469-PS). But its independence was soon overcome and it was reorganized to dispense a venal justice (784-PS). Judges were ousted for political or racial reasons and were spied upon and put under pressure to join the Nazi Party (2967-PS). After the Supreme Court had acquitted three of the four men whom the Nazis accused of setting the Reichstag fire, its jurisdiction over treason cases was transferred to a newly established “People’s Court” consisting of two judges and five Party officials (2967-PS). The German film of this “People’s Court” in operation, which we showed in this chamber, revealed its presiding judge pouring partisan abuse on speechless defendants (3054-PS). Special courts were created to try political crimes, only Party members were appointed judges (2065-PS), and “judges’ letters” instructed the puppet judges as to the “general lines” they must follow (D-229).

The result was the removal of all peaceable means either to resist or to change the Government. Having sneaked through the portals of power, the Nazis slammed the gate in the face of all others who might also aspire to enter. Since the law was what the Nazis said it was, every form of opposition was rooted out and every dissenting voice throttled. Germany was in the clutch of a police state, which used the fear of the concentration camp as a means to enforce nonresistance. The Party was the State, the State was the Party, and terror by day and death by night were the policy of both.

2. The Preparation and Waging of Wars of Aggression.

From the moment the Nazis seized power, they set about feverish but stealthy efforts, in defiance of the Versailles Treaty, to arm for war. In 1933 they found no air force. By 1939 they had 21 squadrons, consisting of 240 echelons or about 2,400 first-line planes, together with trainers and transports. In 1933 they found an army of 3 infantry and 3 cavalry divisions. By 1939 they had raised and equipped an army of 51 divisions, 4 of which were fully motorized and 4 of which were Panzer divisions. In 1933 they found a navy of 1 cruiser and 6 light cruisers. By 1939 they had built a navy of 4 battleships, 1 aircraft carrier, 6 cruisers, 22 destroyers, and 54 submarines. They had also built up in that period an armament industry as efficient as that of any country in the world (EC-28).

These new weapons were put to use, commencing in September 1939, in a series of undeclared wars against nations with which Germany had arbitration and nonaggression treaties, and in violation of repeated assurances. On September 1, 1939, this rearmed Germany attacked Poland. The following April witnessed the invasion and occupation of Denmark and Norway, and May saw the overrunning of Belgium, the Netherlands, and Luxembourg. Another spring saw Yugoslavia and Greece under attack, and in June 1941 came the invasion of Soviet Russia. Then Japan, which Germany had embraced as a partner, struck without warning at Pearl Harbor in December 1941 and 4 days later Germany declared war on the United States.

We need not trouble ourselves about the many abstract difficulties that can be conjured up about what constitutes aggression in doubtful cases. I shall show you, in discussing the conspiracy, that by any test ever put forward by any responsible authority, by all the canons of plain common sense, these were unlawful wars of aggression in breach of treaties and in violation of assurances.

The third group of crimes was: Warfare in Disregard of International Law.

It is unnecessary to labor this point on the facts. Göring asserts that the Rules of Land Warfare were obsolete, that no nation could fight a total war within their limits. He testified that the Nazis would have denounced the conventions to which Germany was a party, but that General Jodl wanted captured German soldiers to continue to benefit from their observance by the Allies.

It was, however, against the Soviet people and Soviet prisoners that Teutonic fury knew no bounds, in spite of a warning by Admiral Canaris that the treatment was in violation of international law.

We need not, therefore, for the purposes of the conspiracy Count, recite the revolting details of starving, beating, murdering, freezing, and mass extermination admittedly used against the Eastern soldiery. Also, we may take as established or admitted that the lawless conduct such as shooting British and American airmen, mistreatment of Western prisoners of war, forcing French prisoners of war into German war work, and other deliberate violations of the Hague and Geneva Conventions, did occur, and in obedience to highest levels of authority (R-110).

The fourth group of crimes is: Enslavement and Plunder of Populations in Occupied Countries.

The Defendant Sauckel, Plenipotentiary General for the Utilization of Labor (1666-PS), is authority for the statement that “out of 5,000,000 foreign workers who arrived in Germany, not even 200,000 came voluntarily” (R-124). It was officially reported to Defendant Rosenberg that in his territory “recruiting methods were used which probably have their origin in the blackest period of the slave trade” (294-PS). Sauckel himself reported that male and female agents went hunting for men, got them drunk, and “shanghaied” them to Germany (220-PS). These captives were shipped in trains without heat, food, or sanitary facilities. The dead were thrown out at stations, and the newborn were thrown out the windows of moving trains (054-PS).

Sauckel ordered that “all the men must be fed, sheltered, and treated in such a way as to exploit them to the highest possible extent at the lowest conceivable degree of expenditure” (054-PS). About two million of these were employed directly in the manufacture of armaments and munitions (016-PS). The director of the Krupp locomotive factory in Essen complained to the company that Russian forced laborers were so underfed that they were too weakened to do their work (D-316), and the Krupp doctor confirmed their pitiable condition (D-288). Soviet workers were put in camps under Gestapo guards, who were allowed to punish disobedience by confinement in a concentration camp or by hanging on the spot (3040-PS).

Populations of occupied countries were otherwise exploited and oppressed unmercifully. Terror was the order of the day. Civilians were arrested without charges, committed without counsel, executed without hearing. Villages were destroyed, the male inhabitants shot or sent to concentration camps, the women sent to forced labor, and the children scattered abroad (3012-PS). The extent of the slaughter in Poland alone was indicated by Frank, who reported, and I quote:

“If I wanted to have a poster put up for every seven Poles who were shot, the forests of Poland would not suffice for producing the paper for such posters” (2032-PS).

Those who will enslave men cannot be expected to refrain from plundering them. Boastful reports show how thoroughly and scientifically the resources of occupied lands were sucked into the German war economy, inflicting shortage, hunger, and inflation upon the inhabitants (EC-317). Besides this grand plan to aid the German war effort there were the sordid activities of the Rosenberg Einsatzstab, which pillaged art treasures for Göring and his fellow-bandits (014-PS). It is hard to say whether the spectacle of Germany’s Number 2 leader urging his people to give up every comfort and strain every sinew on essential war work while he rushed around confiscating art by the trainload should be cast as tragedy or comedy. In either case it was a crime.

International law at all times before and during this war spoke with precision and authority respecting the protection due civilians of an occupied country and the slave trade and plunder of occupied countries was at all times flagrantly unlawful.

And the fifth group of crimes is: Persecution and Extermination of Jews and Christians.

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