4000bce - 399
400 - 1399
1400 - 1499
1500 - 1599
1600 - 1699
1700 - 1799
1800 - 1899
1900 - 1999
THE PRESIDENT: The Tribunal will adjourn this afternoon at four o'clock to sit in closed session.
Dr. Seidl, will you present the case of the Defendant Frank?
DR.ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords. The Defendant Dr. Hans Frank is accused in the Indictment of having utilized his posts in Party and State, his personal influence, and his relation with the Fuehrer, for the purpose of supporting the seizure of power by the National Socialists and the consolidation of their control over Germany. He is also accused of having approved, led, and taken part in the War Crimes mentioned in Count Three of the Indictment, as well as in the Crimes against Humanity mentioned in Count Four, particularly in the war crimes and crimes against humanity committed in the course of the administration of occupied territories.
As I have already explained in the case of the Defendant Hess, the Indictment fails to adduce any facts in substantiation of these accusations. It is similar in the case of the Defendant Frank; here again the Indictment contains no statement of factual details to substantiate the accusations. Like all the other defendants, the Defendant Frank is accused of having taken part in a common plan which is alleged to have had as its object the planning and waging of wars of aggression and the commission in the course of these wars of crimes which infringe upon the laws and customs of war.
The evidence has shown that the Defendant Frank joined the National Socialist Party in the year 1928. Both before and after. the assumption of power by the National Socialists he was concerned almost exclusively with legal questions. The Reich Law Department was under his control as Reichsleiter of the Party until the year 1942. After Adolf Hitler's appointment as Chancellor, Frank became the Bavarian Minister of Justice. In the same year he was appointed Reich commissioner for the co-ordination of legal institutions. This task consisted in the main of transferring to the Reich Ministry of Justice the functions of the
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administrative legal departments of the component states of the Reich. That was completed by the year 1934. When the affairs of the Bavarian Ministry of Justice had been transferred to the Reich, the office of the Defendant Frank as Bavarian Minister of Justice came to an end. In December 1934 he was appointed Reich Minister without Portfolio. In addition he became, from 1934 onward, President of the Academy for German Law, which he himself had founded, and President of the International Chamber of Law. Finally, he was the Leader of the National Socialist Lawyers Association.
This list of the various posts held by the Defendant Frank in Party and State would alone be sufficient to show that his work was almost exclusively concerned with legal matters. His tasks were in the main confined to the execution of Point 19 of the Party Program, which demanded a German common law. And in actual fact almost all speeches and publications by the Defendant Frank, both before and after the assumption of power by the National Socialists, dealt with legal questions in the widest sense of the term.
In the course of his examination in the witness box, the Defendant Frank testified that he had done everything he could to bring Adolf Hitler to power and to carry out the ideas and the program of the National Socialist Party. But whatever the defendant undertook in this respect was done openly.
The aims of the National Socialists before they assumed power can be expressed in a few words: Liberation of the German people from the shackles of the Versailles Treaty; elimination of the mass unemployment which had arisen in consequence of that treaty and the unreasonable reparations policy of Germany's former enemies; counteraction against the symptoms of degeneracy- political, economic, social, and moral-connected with that unemployment; and finally, the restoration of the sovereignty of the Reich in all spheres.
The Prosecution was unable to produce any evidence to show that the revision of the Versailles Treaty was, if necessary, to be carried out by violent means and by war. The political, military, and economic situation in which Germany found herself before the assumption of power-a situation in which it could only be a question of eliminating the terrible consequences of the economic collapse and of enabling seven million unemployed again to play their part in the economic process-could not but make any serious thought of a war of aggression appear futile.
Moreover, the evidence brought forth nothing to show the existence of the common plan as stated in Count One of the Indictment, as far as one understands thereby a definite and concrete plan among a narrow uniform circle of persons. The evidence,
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in particular the testimony given by the witness Dr. Lammers and the defendant himself in the witness box, has shown on the contrary that Frank did not belong to the circle of Hitler's closer collaborators. The Prosecution was unable to present to the Tribunal a single document dealing with important political or military decisions with which the Defendant Frank was connected. In particular, the Defendant Frank was not present at any of the conferences with Hitler which the Prosecution considers especially important in proving the alleged common plan, the minutes of which conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to 34.
The only statute which is important in this connection is the Law on the Reintroduction of General Conscription of 16 March 1935. The facts have already been explained, and will be further enlarged upon, which led to the promulgation of that law and why it cannot be looked upon as an infringement of the Versailles Treaty. The Defendant Frank signed that law in his capacity as Reich Minister, as did all the other members of the Reich Government. That law, which had as its object the restoration-at least in the military sphere-of the sovereignty of the German Reich, did no harm to any other nation. Nor did the content of that law, or the circumstances which led to its enactment, admit the conclusion that it was part of a common plan with the object of launching a war of aggression.
The German people had been obliged to realize, during the preceding 17 years, that the voice of a nation without military power, and in particular a nation in Germany's geographical and military situation, cannot make itself heard in the concert of nations if it has not at its disposal adequate instruments of power. The Government of the Reich faced the consequences of this realization after equality of rights had been promised the German people over and over again for 14 years and that promise had not been kept, and in particular after it had become clear in the years 1933 and 1934 that the Disarmament Conference would not be capable of fulfilling its appointed functions. For the rest, I refer to the proclamation of the Reich Government to the German people, which was issued in connection with the publication of that law.
Further, the work of the Defendant Frank, even after the assumption of power and up to the beginning of the war, was confined almost exclusively to the execution of tasks connected with the leadership of the Academy for German Law and the National Socialist Lawyers Association. The objects of the Academy for German Law are apparent from the law concerning its establishment of 11 July 1933. It was intended to encourage
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the reform of German legal procedure and, in close and constant co-operation with the appropriate legislative authorities, to put the National Socialist program into practice in the whole sphere of law. The academy was under the supervision of the Reich Minister of Justice and the Reich Minister of the Interior. The function of the academy was to prepare drafts of statutes; legislation itself was exclusively restricted to the Reich ministries for the various departments.
One of the tasks of the academy was to exercise the functions of the legal committees of the former Reichstag. In actual fact the work of the academy was done almost exclusively in its numerous committees, which had been established by the defendant. Acceptance into the academy was not dependent on membership in the Party. Most of the members of the academy were legal scholars and eminent legal practitioners who were not Party members. Moreover, it is well known that the Academy for German Law kept up close relations with similar establishments abroad and that numerous foreign scholars gave lectures in the academy. These facts entirely exclude the assumption that the academy could have played any important part in the common plan alleged by the Prosecution. The same is true of the position of the Defendant Frank as leader of the National Socialist Lawyers Association.
Adolf Hitler's attitude toward the conception of a State founded on law, insofar as any doubt could still have been entertained about it, has become perfectly clear through the evidence presented at this Trial. Hitler was a revolutionary and a man of violence. He looked on law as an impeding and disturbing factor in the realization of his plans in the realm of power politics. Incidentally, he left no doubt about this attitude of his and discussed the subject of the State founded on law in a number of speeches. He was always very reserved in his dealings with lawyers, and for this reason alone it was impossible from the outset that any close association could have developed between him and the Defendant Frank. The Defendant Frank considered it his life's work to see the conception of the State founded on law realized in the National Socialist Reich and, above all, to safeguard the independence of the judiciary.
The Defendant Frank proclaimed these principles as late as 1939, before the outbreak of war, in a great speech he made before 25,000 lawyers at the final meeting of the Congress of German Law at Leipzig. Among other things he declared on that occasion:
"First, no one should be sentenced who has not had an opportunity of defending himself.
"Second, no one shall be deprived of his property, provided that he uses it unobjectionably from the point of view of the
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community, except by judicial sentence. Legal properties in this sense include honor, freedom, life, and earnings.
"Third, an accused person, no matter under what procedure, must be enabled to procure someone to defend him who is capable of making legal statements on his behalf; and he must have an impartial hearing according to law. If these principles are applied to their full extent, then the Germanic ideal of law will be fulfilled."
These principles constitute a definite repudiation of all methods employed in a police-ruled State and imply, moreover, the definite rejection of the system of concentration camps. The Defendant Frank had actually spoken against the establishment of concentration camps before the date indicated. The evidence has shown that in the year 1933, in his capacity as Bavarian Minister of Justice, he was opposed to the concentration camp at Dachau, that he urged the application of the so-called legality principle, that is, the prosecution of all offenses by the State, even in these camps, and that, over and above this, he demanded the dissolution of the concentration camp at Dachau. That this last point is a fact is shown by the evidence given by the witness Dr. Stepp, who was questioned elsewhere.
The Prosecution also appears to see in the sentence, "Right is what benefits the people," an indication of the participation of the Defendant Frank in the alleged common plan. Such a conclusion could only be drawn in complete misapprehension of the idea which the Defendant Frank wished to express by means of this sentence. This was merely a challenge to the exaggeratedly individualistic legal idea. In the same way as by the phrase, "The common good before one's own," the sentence quoted is intended to express the demand for a legal system which, to a greater extent than in previous years, should take account of common law and socialist tendencies. It is in reality nothing more than a different way of saying: Salus publica suprema lex.
These material differences alone would have been sufficient to make it unthinkable that the Defendant Frank could have belonged to the inner circle of Hitler's collaborators. The differences of outlook in regard to the functions of law were bound to become more pronounced in the course of the war. It could therefore cause no surprise that after the death of the former Reich Minister of Justice, Dr. Guarantor, it was not the Defendant Frank who was appointed his successor, but the President of the Peoples' Court, Dr. Thierack.
Summing up, it may be said that there is no factual foundation for the assumption that the Defendant Frank participated in a common plan, a common plan which had as its object the waging
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of an aggressive war and in connection therewith the commission of crimes against the rules of war. Before I turn to the points of accusation brought against the Defendant Frank within the framework of his career as Governor General, I will refer shortly to his responsibility under penal law as a member of the organizations accused of criminality.
So far as Frank's responsibility as member of the Reich Government is under investigation, I can here in the main refer to the statements which I shall later make in the case of the Defendant Hess. The only difference lies in the fact that whereas Hess, too, was only Reich Minister without Portfolio, he had-as the Fuehrer's Deputy under the Fuehrer's decree of 27 July 1934- a considerable influence on the preparation of laws. That, however, was not the case with the Defendant Frank. Frank had hardly any influence at all on the legislation of the Reich. That is why he was cosignatory of so extraordinarily few Reich laws. With the exception of the law of 16 March 1935, by which general conscription was reintroduced, his name is to be found under none of the laws which the Prosecution has presented to the Tribunal as relevant to the proof of the criminal nature of the Reich Government as an organization.
The Defendant Frank, in his capacity as Reichsleiter and Leader of the Reich Law Department, was also a member of the Leadership Corps of the National Socialist German Workers' Party. An investigation of this point of accusation seems all the less called for since in this respect no act can be attributed to the Defendant Frank which fulfills the requirements of any penal law. For the rest, here too I can refer to my statements in the case of the Defendant Hess.
In Appendix A to the Indictment it is alleged that the Defendant Frank was a general of the SS. The evidence has shown that Frank at no time belonged to the SS and that he did not even have the honorary rank of a general of the SS. On the other hand, he was an Obergruppenfuehrer in the SA. With respect to the application made by the Prosecution to declare that organization as criminal, too, the same may be said as in the case of the application to declare the Leadership Corps criminal. The Charter and the Prosecution here again depart from the principle which hitherto has been considered an indispensable component of any modern criminal law practice, namely, that no punishment is admissible unless guilt has been established in every individual case.
I now pass to the points of accusation in connection with the career of the Defendant Frank as Governor General. When the Polish Government had left the country after Poland's military collapse, the German occupying forces were faced with the task
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of building up an administration without the help of any parliamentary representation or any representatives of the former Polish State. The difficulties arising out of this situation were bound to be all the greater because, in spite of the comparatively short time that the war had lasted, the war damage, especially to the communications system, was not inconsiderable. Above all, however, the establishment of an orderly administration was rendered more difficult by the fact that the homogeneous economic area of the former Polish State was divided into three parts. Of the 388,000 square kilometers which made up the territory of the former Polish State, about 200,000 were taken over by the Soviet Union and 97,000 formed the Government General, while the rest was incorporated in the German Reich. A change came on 1 August 1941. On that date Galicia was annexed to the Government General as a new district, whereby the territory of the Government General was increased to an area of approximately 150,000 square kilometers with about 18 million inhabitants. This frontier delimitation made it all the more difficult for the administration, as the agricultural excess production all went to the Soviet Union, while on the other hand important industrial cities such as Lodz, and above all the coal fields of Dombrowa, fell to the Reich.
Directly after the military collapse of Poland, a military government was set up to cover the four military districts of East Prussia, Posen, Lodz, and Krakow, Commander Von Rundstedt being placed at the head of that government. The Defendant Frank became Supreme Chief of Administration (Oberverwaltungschef). The military government ended on 26 October 1939 with the coming into force of the decree of the Fuehrer and Reich Chancellor concerning the administration of the occupied Polish territories under. the date of 12 October 1939. Under this decree the Defendant Frank was appointed Governor General for the occupied Polish territories which were not incorporated in the Reich and which shortly afterward became known as the Government General.
As the time at my disposal is short, I will not go into detail on the question as to whether the administration of the territories of the former Polish State, jointly designated as the Government General, should have conformed to the principle of occupatio bellica (occupation of enemy territory), or whether it should not rather be assumed that the principles of debellatio (complete subjection and incorporation in a foreign state) were applicable in that case.
I come now to the question of the powers vested in the Defendant Frank by virtue of his office of Governor General. According to Article 3 of the Fuehrer's decree of 12 October 1939 the Governor General was directly subordinate to the Fuehrer. The same provision placed all branches of the administration in the hands of the
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Governor General. In actual fact, however, the Governor General had by no means such wide powers as it would seem at first sight. The Fuehrer's decree itself provided in Article 5 that the Ministerial Council for the Defense of the Reich could also make laws for the territory of the Government General.
The Delegate for the Four Year Plan had the same power. Article 6 provided that, moreover, all supreme Reich authorities could issue decrees necessary for planning within the German living space and economic area and that these would be effective also for the Government General.
Apart from this limitation of the authority of the Governor General as provided in the Fuehrerdecree of 12 October 1939, other powers were conferred at a later date which no less impaired the principle of uniform administration. That is particularly true of the position of the Plenipotentiary General for the Allocation of Labor. I refer at this point to the appropriate documents presented by the Prosecution and the Defense, in particular to the Fuehrer's decree of 21 March 1942, in which it is expressly provided that the powers of the Plenipotentiary General for the Allocation of Labor extend to the territory of the Government General. The whole armament industry in the Government General was at first in the hands of the OKW, but after the establishment of the Reich Ministry for Armaments and War Production it came under the jurisdiction of the latter.
The evidence has shown that in other directions, too, the principle of uniform administration was extensively infringed upon. For this I refer to the statements of the witnesses Dr. Lammers and Dr. Bubler and to the content of the documents submitted by me, especially Document USA-135. This deals with the directives in "special matters concerning instructions Number 21 (Case Barbarossa)," in which it is expressly provided that the commander-in-chief of the Army shall be entitled "to order such measures in the Government General as are necessary for the execution of his military duties and for safeguarding the troops" and in which the commander-in-chief is empowered to delegate his authority to the army groups and armies.
All these infringements of the principle of a uniform administration of all special powers, however, pale beside the special position allotted to the Reichsfuehrer SS Himmler also in respect of the territory of the Government General. The evidence, and particularly the testimony of Dr. Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939 when the defendant was appointed Governor General, a secret decree was issued in which it was provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Reichsfuehrer SS and Chief
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of the German Police, Himmler. Similarly, it is provided in the decree-of the Fuehrer and Reich Chancellor for the Preservation of German Nationality that the ReichsFuehrer SS shall be directly empowered to effect the planning of new German settlement areas by means of resettlements. These two decrees conferred on the Reichsfuehrer SS Himmler powers which, from the very first day of the existence of the Government General, tended to confront its administration with almost insurmountable difficulties. It was very soon evident that the general administration under the Governor General had at its disposal no executive organs, in the true meaning of the term. Since the Higher SS and Police Leader, East received his instructions and orders direct from Reichsfuehrer SS Himmler and refused to carry out instructions emanating from the Governor General, it was very soon seen that in reality there were two separate authorities ruling over the Government General. The difficulties which thus arose were bound to become all the greater, as Higher SS and Police Leader Kruger, who for no less than 4 years was Himmler's direct representative in the Government General, did not even inform the administration of the Government General before carrying out police measures.
It is a well-known experience in the life of any state that an administration lacking executive police organs is in the long run not capable of carrying out its appointed functions. This is true even under normal conditions, but it must be all the more pronounced in the administration of occupied territory. If we remember, moreover, that not only did the ReichsFuehrer SS Himmler issue his instructions direct to the Higher SS and Police Leader, ignoring the Governor General, but that over and above this the Offices III, IV, V, and VI of the RSHA also gave direct orders to the Commander of the Security Police and the SD in Krakow, we can well assess the difficulties with which the civil administration of the Government General had to wrestle day by day.
Under these circumstances the Governor General had no choice but to make every attempt to reach some form of co-operation with the Security Police, unless he was prepared to relinquish any hope of building up a civil administration in the Government General. And in fact the history of the administration of the Government General-which lasted for over 5 years-is for the greater part nothing but a chronicle of uninterrupted struggles between the Governor General and the administration on the one hand, and the Security Police with the SD as represented by Reichsfuehrer SS Himmler and the Higher SS and Police Leader, East, on the other.
The same applies to the activity of Himmler and his organs in the field of resettlement. As Reich Commissioner for the Preservation of German Nationality, Himmler and his organs carried out
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resettlement measures without even establishing previous contact with the administration of the Government General or informing the Governor General.
The numerous protests of the Governor General, addressed to Dr. Lammers, the Reich Minister and Chief of the Reich Chancellery, with regard to the measures taken by the ReichsFuehrer and the Higher SS and Police Leader, East, and the difficulties they put in the way of the administration of that territory, have been established by the evidence. These protests led in the year 1942 to an attempt at redirecting the relationship between the 'administration and the Police. In retrospect, it can be said today as a result of the evidence that even this attempt was only utilized by Himmler and the Security Police to undermine internally and externally the position of the Governor General and his civil administration.
By a decree of the Fuehrer dated 7 May 1942 a State Secretariat for Security was established in the Government General, and the Higher SS and Police Leader was appointed State Secretary. According to Article II of this decree, the State Secretary for Security also became the representative of the Reichsfuehrer SS in his capacity as Reich Commissioner for the Preservation of German Nationality. The decisive provision of this decree is contained in Article IV, in which it is stated verbatim:
"The Reichsfuehrer SS and Chief of the German Police issue direct instructions to the State Secretary for Security in matters pertaining to security and the preservation of German nationality."
Herewith, the contents of the secret decree issued in 1939 on the establishment of the Government General-which also provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Berlin central offices and particularly from the Reichsfuehrer SS in person-was expressly, and now publicly, confirmed. It is true that Article V of the Fuehrer decree of 7 Slay 1942 provided that in cases of difference of opinion between the Governor General and the ReichsFuehrer SS and Chief of the German Police the Fuehrer's decision was to be obtained through the Reich Minister and Chief of the Chancellery.
The Chief of the Reich Chancellery, Lammers, was interrogated on this subject when he appeared as a witness before this Tribunal. He testified that insofar as he found it possible at all to gain the Fuehrer's ear in these matters, the latter on principle invariably approved Himmler's view. This is not surprising if we remember Himmler's position in the German governmental system, particularly during the later war years. This deprived the Defendant Frank of the last possibility of influencing in any way the measures taken by Himmler and the Higher SS and Police Leader, East.
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In consequence of Article I, Paragraph 3, of the Fuehrer decree of 7 May 1942 the scope of duties of the State Secretary for Security had to be newly defined. Both the Higher SS and Police Leader and, backing him, the Reichsfuehrer SS attempted to bring as wide a field as possible under their jurisdiction in connection with the new regulation of the competence of the State Secretariat; on the other hand, the Governor General, in the interest of the maintenance of some sort of order in the administration, naturally tried to obtain control of at least certain departments of the Regular Police and the Administration Police. There is no doubt at all that it was the Police that emerged the victor in these struggles.
On 3 June 1942 the Governor General was obliged-in a decree concerning the delegation of duties to the State Secretary for Security-to declare himself willing to transfer to the State Secretary all the departments of the Security Police and the Regular Police. I have submitted this decree to the Tribunal (together with its two Appendices A and B) in the course of the evidence as Exhibit Number Frank-4. The two appendices list all the functions of the Regular and Security Police that have ever existed in the German police system. In Appendix A, which covers the departments of the Regular Police, there are 26 headings in which not only all the departments of the Regular Police are transferred to the State Secretary for Security, but over and above that, almost all the departmental functions of the so-called Administration Police. I will only mention Heading 18 as one example among many. This transfers to the Regular Police, and thereby to the Higher SS and Police Leader, all matters connected with price control. What is true of the Regular Police applies in even greater measure to the departments of the Security Police. No change as compared with the earlier situation was brought about by placing under the jurisdiction of the Higher SS and Police Leader the whole of the Political and Criminal Police, political intelligence, Jewish affairs, and similar departments; these competencies were already his as leader of the Security Police and the SD, and were made entirely independent of the administration of the Government General under the secret decree of 1939. Departments were also transferred to the State Secretary for Security which had only the remotest connection with the tasks of the Security Police, for example, matters such as the regulation of holidays and so on.
Of considerable importance are the two last headings in the Appendices A and B. in which it is expressly provided that at conferences and meetings, particularly with the central Reich authorities, on all matters pertaining to the Regular and Security Police, the Government General-not the Governor-should be represented by the Higher SS and Police Leader. Therewith any
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competency possessed by the Governor General, even in regard to comparatively unimportant branches of the Administration Police, was transferred to the organs of Reichsfuehrer SS Himmler, and the Government General was thus deprived of even the last remnants of an executive of its own.
Only by considering these facts and the development of the conditions obtaining between administration and police in the Government General is it possible to form an even approximately correct appreciation of the events in the Government General, which form part of the subject of the Indictment in this Trial.
Your Lordships, the Prosecution seeks to prove its accusations against the Defendant Dr. Frank in the main by quotations from the defendant's diary. In this connection I have the following basic observation to make.
That diary was not kept personally by the Defendant Frank but was compiled by stenographers who were present at Government conferences and other discussions of the Governor General. The diary consists of 42 volumes with no less than 10,000 or 12,000 pages of typescript.
With one exception, the entries do not represent. the outcome of dictation by the defendant, but take the form of stenographers' transcripts. For the greater part-and this is evident from the diary itself-the authors of this diary did not record the various speeches and remarks word for word, but made a summarized version in their own words. The entries in the diary were not checked by the defendant, nor-again with one single exception- were they signed by him. The attendance lists stapled into several volumes of the diary-they are only contained in such volumes as relate to Government conferences-cannot be looked upon as a substitute for a confirmatory note.
Moreover, the evidence has clearly established that very many entries in the diary were not made on the basis of personal observations but came about through the fact that the author was told by participants about the subjects of Government meetings or other conferences after they had taken place, and then expressed it in the diary in his own words. Moreover, by an examination of the diary it can easily be ascertained that the entries cannot be considered complete.
All these facts bring us to the conclusion that the material evidential value of this diary must not be overestimated. The evidential value of this diary can in no way be compared with the evidential value of entries made personally by the person concerned.
Above all, however, it seems to me essential to point out the following: The contents of any document are of material
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evidential value only insofar as the document is appreciated in its entirety. The diary of the Defendant Frank with its 10,000 or 12,000 pages is one uniform document. It is improper to put in as evidence certain individual entries without showing the
context in which alone some of them can be understood. But it is particularly improper-and this infringes upon the principles of any presentation of evidence-to select from some uniform whole, such as a long speech, a few sentences and put them in as evidence. In Document Book Number 2, I have listed a few examples of this and hereby refer to them.
As the Defendant Frank himself rightly pointed out in the witness box, the diary is a uniform whole; only in its entirety can it be probative and form part of the presentation of evidence. I have read through that diary of more than 10,000 pages and can only confirm his opinion. And that was why I did not use individual entries in presenting my evidence but put in the whole diary.
If I myself, in presenting evidence, have read certain single entries from the diary and if in the course of my present address I shall quote a few more passages from it, then, just as in the case of the extracts put forward by the Prosecution, their evidential value can certainly be gauged only within the framework of the whole diary.
The following may also be looked upon as having been established by the evidence: As the diaries show, and as is evident in particular from the testimony given by the witnesses Buehler, Boepple, and Meidinger, the Defendant Frank in his capacity as Governor General often made two or three improvised speeches in the course of one day. The extracts from the diary presented by the Prosecution consist, for the most part, of single sentences from such speeches. If we take into consideration both the temperament of the defendant and his habit of expressing himself in an incisive manner, then that is another reason which tends to reduce the probative value of these extracts from the diary. And we actually do find many diary entries which flatly contradict other entries on the same subject occurring a little earlier or later.
In connection with the many speeches made by the Defendant Frank, the following must not be left out of consideration and may also be looked upon as established by the evidence: It was a foregone conclusion that the Defendant Frank, as an avowed champion of the idea of a State founded on law and of the independence of the judiciary, would come into increasingly sharp conflict with the representatives of the police-state system; this developed to an even greater degree in the course of the war,
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both within the Reich and in occupied territory. The representatives of the police state, however, were Reichsfuehrer SS Himmler and, for the area of the Government General, the Higher SS and Police Leader, East, above all and in particular SS Obergruppenfuehrer and General of Police Kruger. The relation between the Defendant Frank on the one hand, and Reichsfuehrer SS Himmler and his representative, Obergruppenfuehrer Kruger, on the other, had been extremely bad even at the time the Government General was established. They deteriorated still more as the divergence of outlook concerning the tasks of the Police came ever more openly to the fore; and the Defendant Frank was forced to lodge increasingly strong protests with the Chief of the Reich Chancellery, Dr. Lammers, and the Fuehrer himself regarding the violent measures taken by the Security Police and the SD.
As I have already mentioned, the Governor General, lacking an executive of his own, had no choice but to make repeated attempts to co-ordinate the work of the general administration with that of the Police, in order to be in a position to carry out any administrative work at all. Obviously these objectives demanded-at least on the face of things in a certain degree-a conciliatory tendency toward the general attitude of the Security Police and, above all, of the Higher SS and Police Leader, East. Moreover, the evidence has further established that the tension existing between the Governor General and the Higher SS and Police Leader often reached such a degree that the Defendant Frank could not but feel himself menaced and-to quote the words of the witness Buehler-was no longer a free agent and master of his own decisions.
The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no doubt on this point. Quite rightly, therefore, the witness Dr. Buehler also pointed out that the Defendant Frank expressed himself with particular vehemence when the Higher SS and Police Leader or the commander of the Security Police and the SD were present at conferences, while his utterances were made on quite a different note when he was speaking to an audience composed only of members of the administration. Even a cursory inspection of the diary will confirm this. All these circumstances must be taken into consideration in assessing the substantive evidential value of the Defendant Frank's diary.
It should also be noted that these diaries constituted the only personal property that Frank was able to rescue from the castle at Krakow. On his arrest he handed over all the diaries to the officers who took him into custody. It would have been an easy matter for him to destroy these documents.
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Your Lordships, I now turn to the individual accusations brought against the defendant, and their legal aspects. The Defendant Frank is accused of having approved of, and participated in, War Crimes and Crimes against Humanity in the administration of occupied territory.
As the law stands, it rests on the principle that only a sovereign state, not an individual, can be a subject of international law. To make international law binding on an individual, such law itself would have to lay down that a certain set of facts constitutes a wrong and that the rule thereby established is applicable to an individual creating such a set of facts. Only in that way can individuals, who under the law as it stands are subject only to the criminal law applying in each state, by way of exception be directly bound by international law.
Deviating from this rule, existing international law permits, in exceptional cases, a state to punish the national of an enemy state who has fallen into its power, if before his capture he has been guilty of infringing the rules of war. But even here punishment is excluded if the deed was not committed on the person's own initiative, but can only be attributed to his state of allegiance. Moreover, the conception of war crimes and their factual characteristics are the subject of great controversy both in judicial decisions and in legal literature.
Nor do the Hague Rules on Land Warfare, which form the Appendix to the IVth Convention on the Laws and Customs of War on Land and purport to be a codification of certain subject matter of the laws of war, list any facts which could be interpreted as a basis for the criminal liability of individuals. In Article 3 of this convention it is, on the contrary, expressly provided that not individuals but the state which infringed the rules may, under certain circumstances, be liable to pay an indemnity and is also responsible for all acts done by persons belonging to its armed forces.
In connection with the Hague Rules for Land Warfare of 1907 the following should also be noted: The principles therein enunciated were evolved from the experience of wars in the lath century. Those wars were confined in the main to the armed forces directly concerned therein.
Now the first World War already overstepped this framework and not only in respect of the geographical extent of conflict. On the contrary, the war became a struggle for extermination of the nations involved, a struggle in which each belligerent party utilized the whole of its war potential and all its material and imponderable resources. War technique having meanwhile been considerably perfected, the second World War was bound altogether to
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destroy the framework set up for the conduct of war by the Hague Rules for Land Warfare. That can be seen at a glance-the condition of Europe today reveals it. If we remember in addition that in Germany alone the greater part of almost every city has been destroyed as a result of bombing raids; and not only that, but that considerably more than a million civilians thereby lost their lives and that in a single major raid on the city of Dresden almost 300,000 people were killed, then it will be possible to realize that the Hague Rules for Land Warfare, at any rate in respect of many activities coming under the rules of war, can no longer be an adequate expression of the laws and customs to be observed in waging war. But if any doubt should exist on this subject, then that doubt will certainly be removed on contemplation of the consequences of the two atom bombs which razed Hiroshima and Nagasaki to the ground and killed hundreds of thousands of people.
Taking these circumstances into consideration, it is not possible to adduce the provisions of the Hague Rules for Land Warfare, even indirectly or by way of analogy, to establish individual criminal liability. Seeing that this is the case, it must be looked upon as impossible to give a clear and general definition of the factual characteristics of so-called war crimes. Referring to the fact that even Article 6 of the Charter of the International Military Tribunal only purports to furnish a list of examples, it will be realized that the question as to whether a certain line of conduct amounts to the commission of a war crime or not can only be answered on the merits of each particular case, and then only if all the circumstances are taken into consideration.
In the course of the presentation of evidence for the personal responsibility of the Defendant Frank, the Prosecution submitted as Exhibit USA-609 (864-PS) minutes of a conference held by the Fuehrer with the Chief of the OKW on the future form of Polish relations to Germany. This conference took place on 17 October 1939. It is alleged that these minutes alone, by which the administrative goals of the Defendant Frank in the Government General are said to be established, reveal a plan or conspiracy at variance with the laws of warfare and humanity. This is an inadmissible conclusion, at least insofar as the Defendant Frank is concerned.
The Prosecution was unable to prove that the Fuehrer entrusted the Defendant Frank with a task in conformity with the administrative aims demanded in that conference. Moreover, this seems very unlikely, because the directives laid down at that conference dealt mainly with measures which could not be carried out by the general administration, but only by the Security Police, the SD, and the other organs and offices under Reichsfuehrer SS Himmler. In this connection special mention should also be made
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of the powers vested in Reichsfuehrer SS Himmler before the date of that conference in his capacity of Reich Commissioner for the Preservation of German Nationality. Actually, there is at the end of Exhibit USA-609 a reference to a commission with which Himmler was charged. In consideration of the fact that the Defendant Frank, in the course of a short interview with Hitler about the middle of September 1939, had been told to take over the civil administration of occupied Polish territory as Chief of Administration and had not seen Hitler for a very long time after that, it can safely be assumed that the directives laid down at the conference between Hitler and the Chief of the OKW were intended, not for the Defendant Frank, but for Reichsfuehrer SS Himmler, who was the only person to have the necessary executive organs at his disposal.
THE PRESIDENT: We will adjourn now.
[A recess was taken.]
DR. SEIDL: Mr. President, My Lordships, another document to which the Prosecution has referred and which is also alleged to show the criminality of the administrative aims of the Defendant Frank is Exhibit Number USA-297, which is EC-344(16). The content of this document is a discussion which the Defendant Frank is said to have had on 3 October 1939 with a certain Captain Varain. The Defendant Frank testified in the witness box that he had never made any such or similar statements to an officer. Moreover, a comparison of the dates shows that this conversation, even if it should have taken place, can have no connection with the subject of the conference between the Fuehrer and the Chief of the OKW, the latter not having been held until 17 October 1939, that is, at a later date.
Not within the framework of the evidence presented in connection with the personal responsibility of the Defendant Frank, but in connection with the accusation of so-called Germanization, a document was submitted with the Exhibit USA-300, 661-PS. This is a memorandum entitled "Legal Aspects of German Policy toward the Poles from the Ethno-Political Point of View." According to a note on the title page, the legal part of this was to serve as a model for the Committee of the Academy for German Law which dealt with legal nationality questions. This document can have no probative value in connection with the personal responsibility of the Defendant Frank. He testified in the witness box that he had given no instructions for the writing of that memorandum and that he was not aware of its contents. Over and
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above this, it would seem that no substantive evidential value can be attached to that document within the scope of this whole Trial. Nor is it evident, from the memorandum, who wrote it or who gave instructions that it should be written. Its whole form and content would seem to show that it is not an official document, but rather the work of a private individual. It was stated to have been found at the Ministry of Justice in Kassel. But in actual fact there has been no Ministry of Justice at Kassel for many decades. All these circumstances would seem to indicate that the material probative value of this document is, to say the least, extremely small.
But whatever the evidential value of minutes of conferences that took place in the year 1939 on the occasion of the establishment of the Government General, the following should be pointed out:
In judging the conduct of the Defendant Frank it is not of such essential importance to know what Hitler, he himself, or other persons said on one occasion or another, but what policy the Defendant Frank actually pursued toward the Polish and Ukrainian peoples. And here there can be no possible doubt-on the basis both of the general result of the evidence and, in particular, of entries in the diary of the defendant himself-that he repudiated all tendencies and measures designed to effect Germanization. That is shown with great clarity by the extracts from the diary which I have submitted to the Tribunal. Thus on 8 March 1940 he declared at a meeting of department chiefs, that is, to an audience of men who as leaders of the various main departments were deputed to put his directives into practice:
"I have been charged by the Fuehrer to look upon the Government General as the home of the Polish people. Accordingly no Germanization of any sort or kind is possible. In your departments you will please see that the two-language principle is strictly observed; you will also point out to district and provincial officers that no violence is to be used in opposing such safeguarding of Polish national existence. We have in a certain sense herewith taken over on trust from the Fuehrer the responsibility for Polish national life."
This declaration alone makes it apparent that the directives laid down in the conference between Hitler and the Chief of the OKW on 17 October 1939, as contained in Exhibit USA-609, 864-PS, cannot possibly have been made the subject of the duties with which the Defendant Frank was charged. On the other hand, in view of the entire activities of the Higher SS and Police Leader, East from the first day of his appointment, it can safely
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be assumed that it was Reichsfuehrer SS Himmler whom Hitler charged with carrying out the directives laid down at his conference with the Chief of the OKW.
A diary entry of 19 February 1940 is on the same lines; in this the Defendant Frank advocates the formation! of a Polish government or regency council.
On 25 February 1940, at a service conference of officials of the District of Radom, the Defendant Frank gave out, in program form, his directives regarding general administration. On this occasion the Defendant Frank said among other things:
"1. The Government General comprises that part of the occupied Polish area which is not a component part of the German Reich . . .
"2. The Fuehrer has decreed that this territory shall be the home of the Polish people. The Fuehrer and Field Marshal Goering have impressed on me over and over again that this territory is not to be subjected to Germanization.
"3. In accordance with the instructions we have received under the Fuehrer's decree Polish laws will remain in force here."
On 7 June 1942 the Defendant Frank stated word for word as follows:
"It is not as rulers by violence that we come and go in this country. We have no terroristic or oppressive intentions. Welded into the interests of Greater Germany, the living rights of the Poles and Ukrainians in this territory are also safeguarded by us. We have not taken away from the Poles and Ukrainians either their churches, their schools, or their education. We Germans do not wish to denationalize by violent means. We are sufficient unto ourselves, and we know that people must be born into our community and that it is a distinction to belong to it. And that is why we can look the world in the face in this our task."
These examples could be amplified by many more, which all show clearly that the measures taken, at any rate by Frank, were intended to care for the Polish nation and that he repudiated any terror policy.
I now come to the so-called "peace-enforcing action." When the campaign against Poland had ended in September 1939 that did not mean that all resistance had ceased. Very soon afterward new centers of resistance sprang up; and when on 9 April 1940 German troops occupied Denmark and Norway and on 10 May 1940 the German western army had begun their attack, the leaders of the Polish resistance movement believed that, in consideration
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of the general political and military situation, the time for action had come. This resistance movement was all the more dangerous because dispersed but not inconsiderable remnants of the former Polish Army were active in it. A large number of entries in the diary of the Defendant Frank show that the security situation deteriorated from day to day during that period. Here for instance is an entry for 16 May 1940:
"The general war situation requires that the most serious consideration be given to the internal security situation of the Government General. A large number of signs and actions lead to the conclusion that there exists a widely organized wave of resistance on the part of the Poles in the country and that we are on the threshold of violent happenings on a large scale. Thousands of Poles are already organized in secret circles; they are armed and are being incited in the most seditious manner to commit all kinds of violence."
In consideration of this menacing general situation, the order was given-as the diary shows, by the Fuehrer himself-that in the interest of the maintenance of public security all measures were to be taken to suppress the imminent revolt. That order was given through Himmler to the Higher SS and Police Leader. The administration of the Government General at first had nothing to do with it. It intervened, however, in order as far as possible to prevent the Security Police and the SD from taking violent measures and to make sure that innocent people should under no circumstances lose their lives.
The testimony given by the Defendants Frank and Seyss-Inquart in the witness box and the evidence given by the witness Dr. Buehler have shown that the efforts made by the administration of the Government General were so far successful in that all the members of the resistance movement rounded up by this special action were brought before a drumhead court-martial introduced by a decree issued in 1939; and moreover, the decisions of this court were not carried out before being submitted to a Board of Pardon which in many cases modified the sentence. The chairman of this Board of Pardon, until his appointment as Reich Commissioner for the Netherlands, was the Defendant Dr. Seyss-Inquart. As his testimony revealed, no less than half the death sentences pronounced by the summary court were commuted to imprisonment by the Board of Pardon. For the rest, in regard to the so-called peace-enforcing action, I refer to the oral testimony and to the extracts from the diary of the Defendant Frank which I read into the record.
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Within the scope of the charges against him personally, the Defendant Frank is accused of having supported the resettlement plans of the Reich Commissioner for the Preservation of German Nationality (Himmler) and of having thereby also committed a war crime. There is no question but that resettlement, even when carefully planned and well prepared, means great hardship for those who are affected by it; in many cases a resettlement means the destruction of a person's economic existence. Nevertheless, it seems doubtful whether resettlement constitutes a War Crime or a Crime Against Humanity, for the following reasons:
Germany today is being flooded with millions of people who have been driven from their homes and who own no property but what they carry with them. The misery thereby caused, which is bound to increase to an immeasurable degree in consequence of the devastation wrought by the war, is so terrible that the bishops of the Cologne and Paderborn ecclesiastical districts were moved on 29 March 1946 to bring this state of affairs to the attention of the whole world. Among other things they said:
"Some weeks ago we found occasion to comment on the outrageous happenings in the East of Germany, particularly in Silesia and the Sudetenland, where more than 10 million Germans have been driven from their ancestral homes in brutal fashion, no investigation having been made to ascertain whether or not there was any question of personal guilt. No pen can describe the unspeakable misery there imposed in contravention of all consideration of humanity and justice. All these people are being crammed together in what remains of Germany without means for earning a livelihood there. It cannot be foreseen how these masses of people who have been driven from their homes can become other than peace-disturbing elements."
My Lords, I am not mentioning this in order to point out the enormous dangers connected with such measures, dangers which must arise, if only out of the fact that in view of her planned deprivations of territory, Germany-with an area reduced by 22 percent as compared with 1919-will have to feed a population increased by 18 percent and that in future there will be 200 inhabitants to the square kilometer. I am, further, not pointing to this state of affairs to show that if the present economic policy is continued and the so-called industrial plan is maintained, Germany is heading for a catastrophe the consequences of which cannot be confined to the German people. The evidential relevance of these facts is however shown by the following:
Millions of Germans were driven from their ancestral homes in accordance with a resolution taken at Potsdam on 2 August 1945
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by President Truman, Generalissimo Stalin, and Prime Minister Attlee.
GENERAL RUDENKO: Mr. President, excuse me for interrupting the defendant's counsel, but it seems to me that his legal considerations and the criticism of the decisions taken at Potsdam have no bearing on the present case.
DR. SEIDL: Mr. President, may I briefly define my attitude on this?
As far as I am concerned, I do not wish to criticize the decisions of the Potsdam Conference. However, I am anxious to find out whether, employing the rules of the Charter, a certain conduct which has been alleged on the part of the Defendant Frank constitutes evidence for War Crimes or Crimes against Humanity. It is only within the framework of investigating that question that I find myself forced to go into the decisions of the so-called Potsdam Conference and bring them up in my argument.
THE PRESIDENT: Dr. Seidl, the Tribunal considers that your references to the Potsdam Declaration are irrelevant, and the objection of General Rudenko is therefore sustained. You are directed to go on to some other part of your argument.
DR. SEIDL: Mr. President, I presume that the Tribunal have the translation of my presentation at hand. I am not quite clear about the question as to whether the final conclusion, which appears on Page 38, is also affected by the decision of the Tribunal which you have just announced.
THE PRESIDENT: It is affected by that, and I think you can pass on to Page 40, where you begin to deal with the subject of the Jews. That is the second paragraph on Page 40.
DR. SEIDL: Very well, Mr. President.
The Defendant Frank is further accused of having approved and carried out a program for the extermination of Jews of Polish nationality, thereby infringing upon the laws of war and humanity.
It is true that in a number of speeches given by the Defendant Frank in his capacity as Governor General, he revealed his point of view on the Jewish question. The extracts from the diary submitted by the Prosecution in connection with this matter comprise practically everything relevant thereto in the Defendant Frank's diary of 10,000 or 12,000 typed pages. Nevertheless it shall not be denied that the Defendant Frank made no secret of his anti-Semitic views. He spoke in detail on this question when giving his testimony in the witness box.
But the question of the importance to be attached to the diary entries submitted by the Prosecution is quite another matter.
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Almost all of them consist of statements made by the Defendant Frank in speeches, but there has not even been an attempt by the Prosecution to prove the existence of a causal connection between these statements and the measures carried out against the Jews by the Security Police.
As a result of the evidence, in particular of the testimony given by the witnesses Dr. Bilfinger and Dr. Buehler, it can be looked upon as certain-in connection with the secret decree concerning the jurisdiction of the Security Police and the SD, of the year 1939, and the decree concerning the transfer of certain tasks to the State Secretary for Security-that all the measures concerning Jews in the Government General were carried out exclusively by Reichsfuehrer SS Himmler and his organs. That is true for both the initiation and the organization of ghettos and the so-called final solution of the Jewish question.
In regard to the latter it may be said here, on the basis of the testimony given by the witnesses Wisliceny and Hoess and of the documents presented by the Prosecution, that these measures were undertaken on Hitler's express orders and that only a small circle of persons was concerned in their execution. This small circle was confined in the main to a few SS leaders of Department IVA, 4b of the RSHA and the personnel of the concentration camps that had been selected for the purpose.
The administration of the Government General had nothing to do with these measures. The above facts also show that the anti-Semitic statements by the Defendant Frank as submitted by the Prosecution have no causal connection with the so-called final solution of the Jewish question. Since a causal link must be established before the question of illegality and guilt can even be considered, it does not seem necessary to dwell further on the matter-all the less because the factual elements of any punishable offenses can only be said to exist if at least an attempt has been made, that is, if the commission of the offense has at least been begun. Under the principles derived from the criminal law of all civilized nations, the statements contained in the diary of the Defendant Frank do not even constitute preparatory acts. In consideration of the tense and sometimes extremely frangible relationship between the Government General, on the one hand, and the Reichsfuehrer SS Himmler and the Higher SS and Police Leader Kruger, on the other, it would also seem to be impossible to look upon the statements of the Defendant Frank as acts of incitement or complicity. The evidence has shown on the contrary that all the efforts of the Defendant Frank to investigate successfully the rumors about the elimination of the Jews, at least within his own administrative district, failed completely. Only to complete
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the picture need it be mentioned that the Concentration Camp of Auschwitz was not in the Government General, but in that part of Poland which was annexed to Upper Silesia. For the rest it cannot be clearly seen whether the erection and administration of concentration camps is in itself to be looked upon as fulfilling the requirements of a war crime or a crime against humanity, or whether the Prosecution considers the establishment of such camps solely as part of the so-called common plan. Setting aside the crimes committed in the concentration camps and considering the nature of concentration camps to be that in which people are confined for reasons of state and police security on account of their political opinions and without an opportunity of defending themselves in an ordinary court of law, it appears at least doubtful whether an occupying power should not have the right to take such necessary steps as this in order to maintain public order and security: Apart from the fact that it was not National Socialists and not Germans at all who first established such camps, the following must be mentioned:
In the American Occupation Zone alone there were, according to a statement...
DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States): Mr. President, we raise an objection. This matter is completely irrelevant.
THE PRESIDENT: Dr. Seidl, do you wish to say anything in answer to the objection?
DR. SEIDL: Mr. President, I beg you to overrule the objection by the Prosecution, and I should like to say the following: I am not interested in criticizing an occupying power; I am only concerned with the question of whether certain conduct of which the Defendant Frank has been accused by the Prosecution constitutes the evidence of a criminal act.
I base my case on the assumption that what is proper for one occupying power must, under similar circumstances, be allowed for another occupying power, especially when it is a question of accusations made against the defendant concerning actions carried out during the war, while, the state of war with Germany having ceased on 8 May 1945 at the very latest, these urgent reasons now perhaps no longer exist to that extent.
THE PRESIDENT: The Tribunal sustains the objection. There is no evidence of the statements which you have made. And in any event, the Tribunal considers them entirely irrelevant.
DR. SEIDL: I assume, Mr. President, that in that case I may continue with the last paragraph on Page 44.
THE PRESIDENT: I think so, yes, the last paragraph.
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DR. SEIDL: It is not necessary to go into this matter in more detail here, because the evidence has shown that it was the Defendant Frank who from the first day of the National Socialists' assumption of power fought against the police-state system and, above all, decried the concentration camps as an institution which could in no way be made to harmonize with the idea of a state founded on law. In this connection I refer to the testimony given by the witness Dr. Stepp, to the defendant's own statement, and above all to the extracts from the defendant's diary which I put in evidence. The evidence has further shown that the establishment and administration of the concentration camps lay within the sphere of Reichsfuehrer SS Himmler's organization. The camps, both in Reich territories and in all areas occupied by German troops, were exclusively under the command of the SS-WVHA or the Inspector General of the Concentration Camps. Neither the Governor General nor the general administration of the Government General had anything to do with these camps.
A further point of accusation against Frank is the charge that he supported violence and economic pressure as a means of recruiting workers for deportation to Germany. It is true that during the recent war many Poles came to work in Germany. But in this connection the following should be noted:
Even before the first World War, hundreds of thousands of Poles came to Germany as vagrant workers. This stream of vagrant workers continued to flow also during the period between the first and the second World Wars. In consequence of the unfortunate demarcation line, the Government General became an area that was distinctly overpopulated. The agricultural excess production areas had fallen to the Soviet Union, whereas important industrial areas were incorporated into the Reich. Under these circumstances, and because there were no riches to be found in the soil, the only valuable means of production lay in the working capacity of the population. And this-at any rate for the first few years-could not be utilized to a sufficient extent, because the other production factors were lacking. In order to avoid unemployment, and above all in the interest of maintaining public order and security, the administration of the Government General was bound, if only for reasons of State policy, to try to transfer as many workers as possible to Germany.
There can indeed be no doubt that during the first years of the administration most of the Polish workers went to the Reich voluntarily. When later, in consequence of the continuous bombing raids, not only Germany's cities but also her factories crumbled to ruins and a not inconsiderable part of Germany's capacity for the production of war materials had to be removed to the Government
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General for reasons of security, the aim of the Defendant Frank necessarily was to put a stop to any further transfer of labor. Over and above this, however, the Defendant Frank had from the very beginning opposed all violent measures in recruiting labor and solely for security reasons and in order not to create new centers of unrest had insisted that no compulsory measures were to be used and only propagandistic methods employed. That is established by the testimony of the witnesses Dr. Buehler and Dr. Boepple, and also by a large number of entries in the diary. In my presentation of evidence I have already referred to several of them. Thus, for example, the Defendant Frank said, among other things, on 4 March 1940:
". . . I refuse to issue the decree demanded by Berlin establishing compulsory measures and threatening punishment. Measures that, viewed from the outside world, create a sensation must be avoided under all circumstances. There is everything to be said against the removal of people by violence."
On 14 January 1944 he made a similar statement to the Commander of the Security Police. I quote:
"The Governor General is strongly opposed to the suggestion that police forces should be used in recruiting labor."
These quotations could be amplified by many more.
I refer further to the evidence presented by me in respect to the treatment of Polish workers in Germany. The Defendant Frank continuously and repeatedly pleaded for better treatment of the Polish workers in the Reich.
For the rest, the legal position in the matter of recruiting foreign labor does not appear to be quite clear. I do not intend to go further into the legal questions pertaining to this matter. The defense counsel for the Defendant Sauckel will go into this matter fully and I just wish to say the following:
In the literature of international law it is undisputed that the conception of vital stress (Notstand) as recognized in criminal law would, in international law, too, preclude illegality in the case of a given violation of law. If the vital interests of a State are endangered, that State may, these interests being preponderant, safeguard them if necessary by injuring the justified interests of a third party. Even those writers who deny the application of the "vital stress" theory to international law-they are in the minority-grant the threatened State the "right to self-preservation" and therewith the right to enforce "necessities of state" even at the cost of the just interests of other States. It is a recognized principle of international law that a State need not wait until the direct threat of
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extinction is at its very threshold. There-can be no doubt that after the entry into the war of the United States, with which for all practical purposes the productive capacity and the military might of almost the whole world were gathered together to overthrow Germany, the German Reich was faced with a situation which not only threatened the State as such with extinction but over and above that placed the bare existence of the people in jeopardy. Under these circumstances the right of the State leadership to make use of labor forces, even those in occupied territory, in this defensive struggle had to be acknowledged.
In addition, the following should not be passed over: The Prosecution alleges that many, if not most of the foreign workers were brought to Germany by force and that they were then obliged to do heavy labor under degrading conditions. However one may look upon the evidence on this question, the fact cannot be ignored that there are hundreds of thousands of foreign workers still living in Germany who were allegedly deported thither by force. They refuse to return to their homes, although no one now attempts to hinder them. Under these circumstances it must be assumed that the force cannot have been as great, nor the treatment in Germany as bad, as is alleged by the Prosecution.
Another allegation refers to the closing of the schools. It may be left out of account whether international law recognizes any criminal classification which would make the closing of schools appear as a war crime or a crime against humanity. In time of war this would seem to be all the more unlikely as it is well known that schooling in wartime was considerably reduced, not only in Germany, but also in many other belligerent countries. There is all the less reason to investigate this question more thoroughly, as the evidence has shown that the schools were for the most part already closed when the defendant assumed office as Governor General. During his whole period of office he left no means untried to reactivate, not only the elementary and vocational, but also the higher forms of school. In this connection I will only mention the university courses which he initiated.
The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree issued by the defendant to combat attacks against German reconstruction work in the Government General, dated 2 October 1943. There is no question but that this decree setting up a drumhead court-martial is not in conformity with what must be demanded of court procedure under normal circumstances. However, this decree can only be judged correctly if the circumstances which led to its promulgation are taken into consideration.
In general it should first be said that the reconstruction work of the administration of the Government General had to be carried
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on in a difficult territory and under circumstances which must be among the most difficult that have ever fallen to the lot of any administration. After the collapse of the Polish State, the German administration found, so to speak, a vacuum in which to organize and administer. In all spheres of administration they had to start completely afresh. If, in spite of the difficulties, they succeeded fairly quickly in repairing the war damage, particularly in the communications system, then that is incontestably to their credit.
The year 1940 was, however, to prove the only one in which the work of restoration in the area of the Government General could be carried out under fairly normal conditions. As the year 1941 began, the Germans proceeded to concentrate their troops for action against the Soviet Union and therewith initiated a period of immense strain for the administration of the Government General. The Government General became the greatest repair workshop and the greatest military transit territory that history has ever known. This carried in its train an increasing deterioration of the security situation. The resistance movement began to reorganize on an intensified scale. But the menace inherent in the security situation developed to a still more alarming degree when the German armies
were forced to arrest their progress in Russia and when-after the catastrophe of Stalingrad-their march forward was transformed into a general retreat. In the course of the year 1943, the activities of the resistance movement and in particular of the numerous guerrilla bands, in which thousands of lawless elements were grouped, reached extremes that represented a danger to any kind of orderly administration. The administration of the Government General was forced again and again to deal with this matter. Thus on 31 May 1943 a service meeting of the authorities of the Government General was held to deal with the security situation. At that meeting the President of the Chief Department Internal Administration felt
obliged to state among other things-I quote from the diary:
". .. In their activities the guerrilla bands have revealed an increasingly well-developed system. They have now gone over to the systematic destruction of institutions belonging to the German administration; they steal money, procure typewriters and duplicating machines, destroy quota lists and lists of workers in the communal offices, and take away or burn criminal records and taxation lists. Moreover, raids on important production centers in the country have multiplied, for instance, on sawmills, dairies, and distilleries, as also on bridges, railway installations, and post offices. The organization of the guerrillas has become strongly military in character."
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In the course of the summer and autumn of the year 1943, the increasing activities of the partisans and the improvement in their military organization and equipment so endangered security in the Government General that it might perhaps under the circumstances have been better to turn over its entire administration to the appropriate army commanders and to proclaim a state of emergency. It is indeed not possible to describe conditions then existing in the Government General as anything else but a state of war. It was the period when at any moment the possibility had to be taken into account that a general revolt would break out over the whole country.
All this notwithstanding, the Defendant Frank even then made every effort under all circumstances to thwart any violent measures by the Security Police and the SD. It was in order to exercise at least a modifying influence on the Security Police and the SD and to have at least some guarantee against excesses that the Defendant Frank agreed to the order dated 9 October 1943 setting up a drumhead court-martial.
It is quite obvious from the content of this decree that its main purpose was to serve as a general preventive. It was meant as a deterrent to the guerrillas, and there can be no question but that in this it was temporarily successful. For the rest, the evidence has shown that even while this drumhead court-martial order was in operation, the Boards of Pardon continued to act and that many sentences passed by the drumhead court-martial were reversed by the boards.
In the course of the present Trial repeated mention has been made of the report by SS Brigadefuehrer Stroop concerning the destruction of the Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). Both that report and a number of other documents reveal that all the measures in connection with the Warsaw Ghetto were undertaken exclusively on the direct instructions of Reichsfuehrer SS and Chief of the German Police Himmler. I refer in this connection to the affidavit of SS Brigadefuehrer Stroop of 24 February 1946, submitted by the Prosecution as Exhibit Number USA-804 (3841-PSi and to the affidavit of the same date given by the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske. That is Exhibit Number USA-803 (3840-PS). These documents show quite clearly that those measures, like all others within the competence of the Security Police and undertaken on direct orders from either Reichsfuehrer SS Himmler, the Higher SS and Police Leader, East, or on instructions from the RSHA, were carried out exclusively by the Security Police and the SD and that the administration of the Government General had nothing to do with them.
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The Soviet Prosecution has also put in evidence as Exhibit USSR-93, under Article 21 of the Charter, the Report of the Polish Government. That report makes no distinction between the areas which were incorporated in the Reich and the territories of the former Polish State which were grouped together in the Government General. But particularly in view of the fact that the report makes no substantial statements as to the personal responsibility of the Defendant Frank, it does not seem necessary to delve further into this voluminous document. Like the Indictment itself, the report constitutes an accusation of a general nature; it does not deal in detail with the results of investigations and with evidence which might justify the conclusions drawn in the report. The objections to be raised to the report must appear all the more valid, since, to take only one example, in Appendix (1) of the report directives for cultural policy are appended which obviously purport to represent instructions given by the Governor General or his administration. Actually, however, nothing of the kind is to be found either in the Official Gazette of the Government General or in any other documents. The witness Dr. Buehler stated during his interrogation that the administration of the Government General had never issued such or similar directives. In consideration of this alone, it' would seem at most admissible to attach substantive probative value to this Exhibit USSR-93 only insofar as the statements therein made are confirmed by genuine documents and other unobjectionable evidence.
According to the Indictment, and in particular according to the statements in the trial brief presented by the Prosecution, the Defendant Frank is also alleged to be responsible for the undernourishment of the Polish population. Actually, however, the Prosecution is unable to produce any evidence to show that in the area governed by the Defendant Frank either famine occurred or epidemics broke out. The evidence has revealed on the contrary that the efforts of the Defendant Frank in the years 1939 and 1940 were successful in inducing the Reich to deliver no less than 600,000 tons of grain. That made it possible to overcome the food difficulties caused by the war.
It is true that in the following years the Government General contributed in no small degree to the war effort by itself delivering grain. But it must not be overlooked that these deliveries were made possible by an extraordinary increase in agricultural production in the Government General. And this was in its turn made possible by a farseeing economic policy, especially by the distribution of agricultural machinery, seed corn, and so on. Nor should it be forgotten that the deliveries of grain by the Government General from the year 1941 onward also served to feed the Polish
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workers placed in Reich territory and that in general these grain deliveries were utilized to maintain the internal balance between the European economic systems. In principle, however, the following should be said concerning this question:
In a number of points of accusation the Prosecution has leveled reproaches against the administrative activities of the Defendant Frank in his capacity as Governor General without making an attempt to give an even approximately adequate description of the general work of the defendant and without pointing out its inherent difficulties. There can be no question but that such an attitude transgresses the fundamental rules of any criminal procedure. It is a recognized principle derived from the criminal law principles of all civilized states that a uniform natural process must be judged in its entirety and that its evaluation must take into account all the circumstances of the case that are in any way fit for consideration by the court when passing judgment. This would seem to be all the more necessary in the present case, as the Defendant Frank is accused of having pursued a long-term policy of oppression, exploitation, and Germanization.
My Lords, if the Defendant Frank had in truth had any such intentions, then he could certainly have attained his goal in far simpler fashion. It would not have been necessary to issue hundreds of decrees every year, decrees which for example for the year 1940 reached the proportions of this volume that I hold here in my hand. The Defendant Frank, from his first day of office, set himself to integrate the entire economic policy in a manner which one can only term constructive. Certainly he did this partly in order to strengthen the production capacity of the German nation engaged in a struggle of life and death. But at the same time there can be no doubt that the success of these measures also benefited the Polish and Ukrainian peoples. I do not intend to go into this matter in detail. I will only ask the Tribunal in this connection to take notice of the report given by the Chief of Government on the occasion of the fourth anniversary of the existence of the Government General on 26 October 1943. I have included this report in the document books I put in evidence. It is in Volume IV, Page 42. The report gives a concise summary of the measures taken and the successes achieved by the administrative acts of the defendant during these 4 years in all fields of industrial economy, in agriculture, commerce, and transport, in the finance and credit system, in the sphere of public health, and so on. Only in consideration of all these facts is it possible to form an approximately correct estimate of the whole position. For the sake of completeness I will add that the defendant by his administration succeeded in reducing the danger of
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epidemics-in particular typhus and typhoid-to a degree which had been found impossible in this area in the preceding decades.
If much of what had been achieved by the Defendant Frank in the Government General was destroyed in the subsequent fighting, that can certainly furnish no grounds for reproach against the general administration, which had nothing to do with military measures.
My Lords, I am certainly not going to deny that in the course of the recent war terrible crimes were committed in the territory known as the Government General. Concentration camps had been established in which mass destruction of human beings was carried out. Hostages were shot. Expropriations took place, and so on. The Defendant Frank would be the last to deny this; he himself waged a 5-year struggle against all violent measures. The Prosecution has put in evidence, as Exhibit Number USA-610 (437-PS), a memorandum which Frank addressed to the Fuehrer on 19 June 1943. In this memorandum, on Page 11, he listed nine points in which he sharply condemned all the evils which had arisen in consequence of the violence practiced by the Security Police and the SD and of the excesses committed by various Reich authorities, against which all his efforts had proved unavailing.
These nine points are in the main identical with the points of accusation against Frank. The content of the memorandum of 19 June 1943, however, shows very plainly that the defendant denies responsibility for these abuses. It reveals, on the contrary, quite clearly that neither the defendant nor the general administration of the Government General can be held responsible for the said evils but that the whole responsibility must be borne by the institutions mentioned above, in particular the Security Police and the SD, or the Higher SS and Police Leader, East. If the Defendant Frank had had the instruments of power wherewith to abolish the evils he condemned, it would not have been necessary for him to address that memorandum to Hitler at all. He would then himself have been able to take all necessary steps. In addition to this the evidence has shown that that memorandum of 19 June 1943 was not the only one addressed to the Fuehrer on the matter. It is clear from the testimony of the witnesses Dr. Lammers and Dr. Buehler and the defendant's own statements in the witness box that from the year 1940 onward he sent protests and memoranda at regular intervals of a few months both to Hitler personally and to the Chief of the Reich Chancellery. These written protests were invariably on the subject of the violent measures taken and the excesses committed by the Higher SS and Police Leader and the Security Police, including the SD. But none of the protests met with success.
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As can also be said on the basis of the evidence, the Defendant Frank continually made suggestions to Hitler on the subject of improving relations between the administration of the Government General and the population. The memorandum of 19 June 1943 is also cast in the form of a comprehensive political program. It includes, moreover, all the essential points of protest contained in a memorandum presented in February 1943 to the Governor General, at his own desire, by the leader of the Ukrainian Chief Committee. This latter memorandum was put in evidence by the Prosecution as Exhibit Number USA-178 (1526-PS). Such suggestions were also consistently rejected by Hitler.
Under these circumstances it is pertinent to ask what else the Defendant Frank could have done. Certainly he should have resigned. But that too he did. He offered his resignation no less than 14 times, the first time as early as 1939. His resignation was rejected by Hitler as often as it was tendered. But the Defendant Frank did more. He approached Field Marshal Keitel with the request that he be allowed to rejoin the Armed Forces as a lieutenant. That was in tine year 1942. Hitler refused his consent to that too. These facts allow of only one conclusion, namely, that Hitler saw in the Defendant Frank a man behind whose back he (with the help of Himmler and the organs of the Security Police and the SD) could carry out the measures he considered requisite for attaining the aims of his power policy.
My Lords, when it became more and more obvious that Hitler and Reichsfuehrer SS Himmler were about to abolish the last remnants of a State founded on law; when it became increasingly apparent that the power of the Police knew no bounds and that a police state of the purest water was in process of development, the Defendant Frank came forward and addressed four great speeches to the German public with a last appeal on behalf of the idea of a State founded on law. He did that when Hitler stood at the summit of his power. He addressed this appeal to the German public at a time when the German forces were marching on Stalingrad and into the Caucasus, when the German Panzer Armies in Africa stood at El Alamein, barely 100 kilometers from Alexandria. In the course of the evidence I read some extracts from these great speeches which the Defendant Frank made in Berlin, Heidelberg, Vienna, and Munich. Those speeches contained a clear repudiation of every form of police state and championed the idea of the State founded on law, of the independence of the judiciary, and of law as such. These speeches found a tremendous echo among lawyers, but unfortunately not in wider circles. Nor in particular were they echoed by the men who alone would have possessed the power to ward off the threatening catastrophe.
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The consequences of this attempt to avert the extinction of the idea of the State founded on law by a last great effort are well known. The Defendant Frank was deprived of all his Party offices: he was dismissed from his post as President of the Academy for German Law. The leadership of the National Socialist Lawyers Association was conferred on the Reich Minister of Justice, Thierack. Frank himself was forbidden by Hitler to speak in public. Although the Defendant Frank again on this occasion sent in his resignation as Governor General, Hitler refused to accept it, as he had always done before. The reason for this, as given in a letter from the Reich Minister and Chief of the Reich Chancellery to the Defendant Frank, was that considerations of foreign policy had caused the Fuehrer again to refuse this latest request of Frank to be allowed to resign. According to everything that has emerged from the evidence in this Trial it may be looked upon as certain that it was not only, and probably not even mainly, for such reasons that Hitler refused to accept Frank's resignation.
The decisive factor was obviously the consideration that it was better policy not to let the Security Police and Reichsfuehrer SS Himmler's other organs fulfill their appointed task openly, but rather to let them continue their work under cover while maintaining a general civil administration under the Governor General.
Naturally this open breach between the Defendant Frank, on the one hand, and Hitler and the State Police system represented by Reichsfuehrer SS Himmler and the Higher SS and Police Leader, East, on the other, could not fail to have repercussions on the position of the defendant in his capacity as Governor General. Still more than before the various Reich authorities now began to interfere in the administration of the Government General. Above all, 'however, it was quite clear from the summer of 1942 onward that the Higher SS and Police Leader, East, together with the organs of the Security Police and SD subordinated to him, took no more notice at all of any instructions issued by the Governor General and the general administration.
Both in the Government General and in the Reich itself legal institutions receded more and more into the background. The State was transformed into an unadulterated police state, and developments took the inevitable course which the Defendant Frank had foreseen and feared-the course which on 19 November 1941 he had outlined at a congress of the principal section chiefs and Reich group leaders of the National Socialist Lawyers Association in the following words:
"Law cannot be degraded to a position where it becomes an object of bargaining. Law cannot be sold. It is either there
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or it is not there. Law cannot be marketed on the stock exchange. If the law finds no support, then the State too loses its moral stay and sinks into the depths of night and horror."
THE PRESIDENT: We will begin again at 10 minutes past 2.
[The Tribunal recessed until 1410 hours.]
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THE PRESIDENT: Dr. Pannenbecker.
DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President, Gentlemen of the Tribunal:
The American Prosecution, through Dr.Kempner, has charged Defendant Frick with criminal actions according to Article 6, Items a, b, and c of the Charter. I should like first to examine the question as to whether Article 6 of the Charter, with its list of criminal acts, is to be considered as the authoritative expression of material penal law which would lay down, in a manner irrevocably binding on, and not subject to revision by the Tribunal, what actions are to be regarded as punishable; or whether Article 6 of the Charter concerns a rule of procedure defining the competence of this Tribunal for specific subject matters.
THE PRESIDENT [Interposing7: Perhaps it will be for the convenience of the interpreters if I say that we might, as it is now nearly half past 2, sit without a break until 4 o'clock, when we rise.
DR. PANNENBECKER: The latter interpretation was implied in the Prosecution's presentation of the case by Sir Hartley Shawcross' remark that although Article 6 of the Charter fills a gap in international penal procedure, the material penal law to be applied to the defendants has already been previously standardized by positive laws. Part II of the Charter, beginning with Article 6, is accordingly entitled: "Jurisdiction and General Principles," and it may be inferred therefrom that Article 6 is intended to establish a ruling as to the competence of this Tribunal as to procedure in specific groups of crimes.
Sir Hartley Shawcross' statements were directed against the objection that it is inadmissible and in contradiction with a basic legal principle to punish someone for an act which had not vet been forbidden at the time it was committed; an objection which has as a basis the conception that the Charter has created new material penal law with retroactive effect. It should be examined whether the prohibition of retroaction of penal laws is a legal principle of such importance that it should not be infringed. I need not state to this Court the reasons why this legal principle found general recognition in all civilized countries as a prerequisite and basic precept of justice.
In contrast to this, the Prosecution has in its speech charged the defendants with the fact that they themselves had continuously disregarded law and justice, and inferred from this that the defendants in this Trial could not appeal to such a legal principle. I do not believe, however, that such an argument can be decisive in this
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Trial. The Prosecution has replied in the negative to the further question of whether it would not have been right to pay back in the same coin and not allow the defendants of this Trial any possibility at all to defend themselves in a proper legal procedure. Such a course of simply exercising the power of the victor over the defendants has purposely not been assumed by the signatory powers for reasons presented in detail by the Prosecution. On the contrary, Sir Hartlev Shawcross has appealed to the Tribunal to apply in this procedure-I quote-"the undisputed principles of international custom."
If, however, it is intended to proceed in such a manner, then an examination must take place in keeping with the same principles of law, to determine the question whether the deeds with which the defendants are charged can be regarded as criminal acts for which punishment is possible according to the recognized principles of international custom. It is not, according to these principles, an argument if the use of a legal principle as fundamental as the prohibition of retroaction in penal law is in actual application to be made dependent on whether or not the defendants concerned themselves with law and justice. The decision of the signatory powers to subject, on the basis of considerations which have been seriously weighed, the conduct of the defendants to a proper trial recognizing all legal principles of international custom, therefore signifies not only the observance of legal procedure with all assurances of fair trial, but such a decision by the signatory powers also signifies adherence to the fundamental principles of a material guarantee of justice, of which the prohibition of retroactive penal laws is one.
In this connection I should like to point out that the decreeing of the retroactive validity of penal laws, when so ordered by the National Socialist Government for certain individual cases, to which Dr. Stahmer has already referred, shocked the entire civilized world. At that time, the violation of such a principle of law was generally condemned as a deplorable retrogression in civilization. I also ask the Tribunal to recall that one of the first measures taken by the occupation powers for deliverance from the National Socialist abuse of the law was to declare void any laws which had a retroactive effect on the material penal legislation.
In view of this situation there exist valid reasons, I believe, why Article 6 of the Charter should, in accordance with its heading, be regarded as a ruling on the jurisdiction of this Tribunal, all the more so as the signatory powers have already and with so grouch emphasis insisted on a renewed strict and uniform observance of the prohibition against retroactive penal laws.
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On the basis of such an interpretation, whereby Article 6 establishes the jurisdiction of this Tribunal, it would be for the Tribunal by its own examination not only to determine whether the charges on which the Indictment is based are proved, but also to rule on the legal question as to whether, for the facts established in each case by the Prosecution, there exists a criminal law which makes punishment possible. To revert in this way to provisions of material criminal law in existence at the time the act was committed does not mean that it would be impossible for this Tribunal to call the accused to account for offenses which are punishable under all circumstances. There are, however, a number of restrictions resulting from this which in the opinion of the Defense it would be better to accept rather than violate a principle so essential to just procedure as is the prohibition of retroaction in criminal laws. I am therefore of the opinion that it is entirely possible, and not incompatible with the necessity for just expiation for war crimes, to interpret Article 6 in accordance with its heading as a ruling on the jurisdiction of this Court, but not as new material criminal law. The next remarks concern themselves with the conspiracy, a matter which has been dealt with by Dr. Stahmer to such an extent that I can omit these pages. I continue now on Page 7 with the summary.
The Charter does not impose the interpretation that a defendant is responsible also for such acts of commission as exceed the measure of his participation in the common plan. The wording of the Charter, "in the execution of a common plan," does not contradict the interpretation that the Charter establishes liability for acts of commission which remained within the scope of the said plan. To that extent the assumption of liability for the actions of others complies with a demand of justice, but beyond that it would
* Proceeding from this interpretation of the Charter there arises the need for a discussion on how the Indictment is to be construed with respect to the conspiracy charged therein. This construction is based on the legal concept of Anglo-American law which determines the responsibility of a plurality of persons differently and in a more far-reaching way than the German penal code, which contains the principles of law to which the accused were subject at the time when they committed the deed. The German penal code also provides that a person can be held responsible for offenses committed by others provided he participated in a common plan which was later carried out by others. But the German penal code places decisive weight on determining the extent to which the acts committed at a latter date correspond to the common plan. Since in the serious crimes which are being prosecuted before this Court the determination of the form of guilt in the original plan is necessary in order to permit punishment, later acts of commission by others can be charged against a defendant only to the extent to which they corresponded to arrangements to which the defendant deliberately agreed. A defendant who participated in certain plans cannot be held responsible for subsequent plans of a wider scope, or for acts of commission which far exceeded the original plans without his co-operation.
Responsibility for subsequent plans and acts of commission can be established according to German law only if it can be proved that the defendant, without participating in those subsequent plans and actions, at the time of his original
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violate essential legal principles. The Defense therefore advocates the concept that, as far as the actions of others are concerned, for which a defendant is to be made liable, proof must be required that these actions, in the manner of their execution, corresponded to the intention of the defendant. To give an example:
The participation of a defendant in rearmament against the regulations of the Versailles Treaty does not in itself justify the assumption that that defendant also desired a war of aggression which was later on planned by others in the further plan of restoring military power to the German people.
I should now like to turn to the various categories of crimes of which the Defendant Frick is accused, taking first of all the assertion of the Prosecution that the defendant participated in the planning and preparation of wars of aggression. With regard to the problem as to whether a war of aggression is a criminal offense according to the concepts off law for the period in question, I refer, in order to avoid repetition, to the statements of Professor Jahrreiss, with which, in behalf of the Defendant Frick, I fully concur.
By virtue of these convincing statements, there exists only one possibility of punishing co-operation in a war of aggression as a criminal offense capable of being perpetrated by individual persons, namely, when, contrary to the statement of Sir Hartley Shawcross, the Charter is applied as a standard of material penal law which has for the first time defined, with retroactive effect, a war of aggression as a criminal offense by individual persons. From the point of view of the other interpretation, which regards Article 6 of the Charter as a procedure regulating the jurisdiction of this Court, the Defense holds that the deduction is cogent that the Court is indeed declared competent to judge offenses against peace, but that the criminal guilt of the individual defendants is not proved
participation recognized and approved this manner of development and execution and, in other words, deliberately encouraged it.
To revert to the example of the Prosecution:
He who participates in the plan for robbing a bank is responsible if this plan is carried out, even though he does not personally participate in the execution. But a person does not at the same time become guilty of premeditated murder if the active members subsequently and without his participation discuss murdering the guard or in case one of the members should shoot one of the guards without prior agreement, because the latter has caught him in the act.
Nobody can be convicted of premeditated murder if he did not participate in a plan to commit murder, unless it can be proved that when he participated in the plan for robbing the bank such killing of a guard was already contemplated and that in spite of this he approved the plan for the bank robbery. In that case he, too, would have deliberately contributed to the murder. In other words, according to the provisions of German substantive criminal law there does not exist a liability for so-called excesses of the immediate culprits or for an unforeseen development of plans not originally conceived on such a wide scope, so that a more far-reaching interpretation in line with the concept of conspiracy in Anglo-American law, which at the time when the accused committed their deed did not exist, would violate the principle which prohibits retroactive application of penal laws
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therewith because one condition for this is lacking, namely, the possibility of establishing that the defendants have offended against a principle of generally valid international custom or a principle of national law which defined the war of aggression at the time it took place and declared it punishable as a crime of which a single individual could be guilty.
As it happens, the statesmen, during the period between the two World Wars, have neglected to establish adequate measures of
general validity, by which it would have been made clear that anyone who, after the first wholesale slaughter of peoples, organized a second World War, would go about with a rope around his neck. The statements of the Prosecution, that such rules of international law are necessary, appear to be absolutely convincing, but the fact cannot be overlooked that such rules were nevertheless not created by the statesmen of that period at the right time. A missing rule of law, fashioned to fit a special case, cannot be replaced subsequentlv by an order of procedure or by the sentence of a Court whose task is to apply the general law, but not to create it for a single special case.
I shall now turn to the actual statements of the Prosecution concerning the participation of the Defendant Frick in the planning and preparation of wars of aggression.
The Prosecution sees such activity already in Frick's earliest cooperation with the Party, which he continued until the year 1933, in order to bring Hitler to power. The Prosecution appraises in a
similar way the subsequent activity of Frick after the taking over of the Government by Hitler, when he helped to consolidate the power of the Party and its leaders through measures of domestic police, especially by his participation in the legal measures by which armed forces were created, and finally by his collaboration in measures by which direct preparations were made in case of war.
Proceeding from the interpretation that only deliberate participation by the defendant in the preparation of a war of aggression is of penal significance, I shall not take up the question as to whether the Prosecution has proved that Frick was aware that his collaboration in the advancement of the Party and its aims constituted a preparation for war, and intended it as such, and therefore helped to bring the war about.
In this connection the Prosecution has made the assertion that Hitler and his Party from the very beginning openly pursued the aim of bringing about a change in Germany's situation in foreign politics by means of war. On the basis of this statement the Prosecution has declared that no special proof is necessary that in working for Hitler and his Party each of the defendants also knowingly collaborated in the preparation of a war of aggression.
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As proof of the fact that Hitler and his Party had from the beginning planned a war of aggression, the Prosecution refers to the Party Program, which names as one of its aims the abolition of the Treaty of Versailles. No word is said, however, in the Party Program that this aim should be achieved by force of arms. In the Party Program, as the testimony of the Defendant Von Neurath has also shown, among other things, there is nothing to prove an intention existing from the very beginning to wage a war of aggression. Nor is anything different found in the other official publications of the Party from the time previous to Hitler's assumption of the Government. Because as the Party did not, on the basis of its official publications, reveal any intention of bringing about the revision of the Versailles Treaty by force of arms, it was even before 1933 authorized outside the territory of the Reich, as for example in 1930 in Danzig, when it received the sanction of the then High Commissioner of the League of Nations and of the Polish Resident General.
From the time of his assumption of power on 30 January 1933 Hitler, as responsible head of the Government, adopted a quite unequivocal attitude with regard to the ways and aims of his foreign policy, both in official speeches and discourses as well as in private conversations. Unchangingly, and upon every occasion that presented itself after his assumption of power, he stressed his absolute desire for peace and his abhorrence of war, and he always defended this attitude with convincing reasons. He repeated again and again that he intended to obtain certain revisions of the Versailles Treaty by peaceful means only. I need not repeat the quotations to that effect from Hitler's speeches, which were read by the Prosecution to prove how Hitler deceived the world, and the people he ruled, by his peace talks. And the world, including the German people, took these speeches which he, as responsible head of the Government, made again and again, quite seriously. In the face of that, warning voices which at an early stage were convinced that Hitler wanted war, remained a hopeless minority throughout the world.
The Prosecution has repeatedly alluded to this world belief which took Hitler's assertions of peaceful intentions seriously, and the best proof of this delusion about peace even among the foreign
statesmen, who also knew the Party Program, would certainly appear to lie in the fact that these statesmen neglected to so vast an extent to arm against Hitler's war of aggression, in which nobody in Germany and in the world believed seriously except those who were directly initiated into Hitler's most secret plans. From the Party Program and from isolated wild speeches made before 1933 during the period of parliamentary opposition, it is not possible to prove a continuous preparation for a war of aggression
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since the twenties, which is alleged to have been discernible to anybody who took a glance at the Party Program.
The Prosecution contends further that even if the warlike intentions were not discernible in a general way at first, the intention of Hitler to prepare a war of aggression must have been clearly visible to the Defendant Frock on account of the duties which he had to fulfill after 30 January 1933 in his capacity as Reich Minister of the Interior. These duties included measures for the strengthening of the internal political power of Hitler and his Party. The Prosecution referred in this connection to the collaboration of Frick in the legal decrees by means of which the opposition against Hitler's system of government was destroyed in parliament and in the country; further, to the legislative measures which eliminated real self-government in the cities and communities, and to legislative and administrative decrees by which opponents of the National Socialist system were excluded from taking any part in the business of the State and in economic life.
The Prosecution has submitted that without these measures Hitler could not have conducted another war, for the beginning of which the complete destruction of opposition in the country was said to be a necessary prerequisite-particularly the establishment of Hitler's absolute dictatorship. Yet in all the measures I have enumerated, a direct connection with the preparation for war is lacking. For these measures had equal meaning and significance, unconnected with a subsequent war, merely as projects of a National Socialist domestic policy. It has not been proved that beyond that the Defendant Frick was informed of Hitler's more far-reaching plans, namely, after consolidating his power at home to pursue the aims of the Party's foreign policy not by peaceful but by military means.
By establishing retrospectively that the strengthening of Hitler's inner political authority was a necessary condition for his intentions for war as revealed later, nothing is achieved unless proof is forthcoming that Hitler had from the beginning aimed at power in the domestic sphere only as a first step toward the waging of wars, and that Frick was aware of this when he took part in the measures of domestic policy of which he is accused. Otherwise, as purely domestic measures, they do not come under the jurisdiction of this Tribunal according to the provisions of the Charter.
But there is no such evidence, and it is much rather to be assumed that Frick, as a typical official connected with domestic politics, considered his measures as absolutely independent acts which had nothing whatsoever to do with the solutions by force of questions of foreign policy. Nor can another view of the situation be derived from the measures dealing directly with Germany's
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rearmament, that is, the reintroduction of general conscription and the occupation of the demilitarized zone of the Rhineland. In his capacity as Reich Minister of the Interior, Frick issued the orders of the civil administration for the mobilization of men liable for military service, and consequently he himself also signed the Armed Forces Law.
Yet even these measures in themselves were not to be recognized as preparation for a war of aggression. The reintroduction of compulsory military service and the assumption of military sovereignty over the demilitarized Western Zone were explained by Hitler himself, to his collaborators and the world, by arguments whose soundness was then widely accepted" and after the first shock many foreign statesmen still believed in Hitler's well-founded assurances of peace, and advocated the opinion that there was no reason to fear any belligerent intentions on the part of Hitler.
To be sure, Hitler personally declared to his Commanders-in-Chief on 23 November 1939 that he had created the Armed Forces in order to make war. I refer to Document 789-PS; Exhibit Number USA-23. But Hitler previously cleverly obscured this intention by another argument which at that time still found credence in Germany and abroad, and-as proved by the evidence-even those collaborators in his own Cabinet who had not been initiated into his secret plans believed in it.
Thus it is that several defendants refer to the fact that they approved of the reconstruction of the German Armed Forces in the face of the provisions of the Versailles Treaty, but that they did not want a war and did not consider that by their collaboration they were participating in the planning of a war of aggression. As for the Defendant Frick, the view of the defense is that there is no proof that Hitler had informed him of his plans for war, and therefore his collaboration in the measures concerned with the reconstruction of the German Armed Forces cannot be charged against him as intentional collaboration in the planning of wars of aggression. A similar situation arises with regard to the defendant's activity in organizing the civil administration in general for the eventuality of war, a task entrusted to the defendant as Plenipotentiary for Administration of the Reich by the second Reich Defense Law dated 4 September 1938.
I beg to point out again that the position of Plenipotentiary for Administration of the Reich was created only by this second Reich Defense Law of 4 September 1938, and thus was not included in the first Reich Defense Law of 21 May 1935.
To be sure, long before, even before 1933, experts from the various ministries held conferences dealing with the subject of Reich defense, meeting at irregular intervals after 1933 as the Reich
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Defense Committee, as shown in the documents submitted by the Prosecution. These meetings had nothing to do with an agreement to wage a war of aggression. They dealt with general questions of Reich defense, as is customary also in other countries. By the Reich Defense Law of 21 May 1935, the organization for Reich defense was more closely co-ordinated, particularly by the appointment of a Plenipotentiary for War Economy, and at his interrogation the Defendant Schacht explained in detail that the purpose in creating that position was not preparation for a war of aggression (according to the duties and regulations to be found in the first Reich Defense Law) but the organization of the economy for defense in the event of a war of aggression by other states.
The same holds true with regard to the position of Plenipotentiary for Reich Administration as created by the second Reich Defense Law of 4 September 1938, which was conferred on the Defendant Frick by virtue of his position as Reich Minister of the Interior. This position signified the co-ordinated establishment of the entire civil administration for the purpose of Reich defense. Regardless of whether, according to documents which have been submitted to the Tribunal, Hitler already wanted war at the time when he authorized the second Reich Defense Law, it is nevertheless relevant for the defense of the defendant whether Frick at that time was able to recognize the aggressive intentions of Hitler from the law itself and from his preliminary work thereon or from other evidence or information which was communicated to him then. From the law itself it cannot be discerned that Hitler's intention was to use it in the sphere of civil life as an instrument of preparation for a war of aggression.
The kind of tasks which were given to the Defendant Frick in his capacity as Plenipotentiary for Reich Administration had to do merely with the concentration of domestic administration of Germany in case of a possible war or threat of war, and nothing else can be seen from Document Number 3787-PS (Exhibit Number USA-782), which was submitted subsequently.
The law is so formulated that it always refers only to the defense of the Reich in case of war. It speaks about the "state of defense" and mentions the case of a "surprise threat to the Reich territory," in the event of which certain measures must be taken. Beyond this the law does not vouchsafe any hint, which would be in keeping with Hitler's oft-repeated principle not to divulge any more of his plans than the person concerned had to know for his own work- a principle which he strictly adhered to even with his closest collaborators. In view of this principle it should not be assumed, nor has it been at all proved, that when the order for this law was given to the Ministry of the Interior any other information was
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imparted than the necessity for taking precautionary measures, by concentrating the full strength of the domestic administration of the country, against a surprise threat to Reich territory through a possible attack by other states.
It is not necessary for me to state in detail that such a measure cannot be considered as a premeditated preparation for a war of aggression when it had been explained to the competent authorities of the domestic administration that it was essential for the defense of the Reich against the threatening attack by another state. Hitler knew very well how to hoodwink all those who had no need to know about his secret plans, yet nevertheless should understand the reasons for the armament and the organization of the state ordered by him for the eventuality of war.
I will deal now very briefly with some further documents bearing on the activity of the Defendant Frick as Plenipotentiary for Reich Administration. Frick, in his speech of 7 March 1940, referred to this position-Document Number 2608-PS, Exhibit Number USA714-and stated that the planned preparation of the administration for the possible event of war had been already effected during peacetime by the appointment of a Plenipotentiary for Reich Administration. This speech therefore merely confirms that which is already revealed by the text of the law. The same applies to Document 2986-PS, Exhibit Number USA-409, an affidavit by the defendant to the same effect. Therefore, according to this law, the position of the Plenipotentiary for Reich Administration, combined with the appointment of a Plenipotentiary for Economy and the post of Chief of the OKW, cannot be described as a "triumvirate" holding governmental authority in Germany. Nothing has ever become known either inside or outside Germany of a government by such a triumvirate, and the witness Hammers has also referred to the strictly subordinate tasks performed by these persons by means of ordinances-tasks which had nothing to do with the preparation of a war of aggression.
Another field of the defendant's activity is likewise appraised by the Prosecution as participation in preparation for a war of aggression, namely, Frick's work for the Association for Maintaining Germanism Abroad. I refer to Exhibit Number Frick-14 and Document Number 3258-PS, the latter submitted as Exhibit Number GB-262. Both documents reveal that Frick supported the said association as a union for the fostering of German cultural relations abroad and promoted its cultural efforts. It cannot, however, be gathered from the documents that Frick engaged in any capacity whatsoever for the furtherance of the aims of a so-called "Fifth Column" abroad. Another document from which the Prosecution deduced the approval of the policy of aggressive war by Frick is the
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affidavit of Messersmith, Document Number 2385-PS, Exhibit Number USA-68. This affidavit has been characterized by several defendants as inaccurate, and the Defendant Schacht in particular showed at his examination that in essential points it cannot be correct at all. The Prosecution was not able to produce the witness for cross-examination. I object on behalf of Frick against any use of the affidavit, all the more so since an additional clarifying interrogation of the witness through a written questionnaire only led to the result that the witness, by using general phrases, avoided giving concrete answers to the questions put to him. The answers to the questionnaire show plainly enough that Messersmith cannot make concrete statements at all and that in his affidavit he obviously was considerably deceived himself as to the extent of his memory.
I do not believe that his affidavit, which has been refuted in essential points, can be made use of for passing legal judgment. As to the question whether the Defendant Frick participated in conscious preparation for a war of aggression, the Prosecution further submitted Document D-44, Exhibit Number USA-428. From this document it is seen that the Reich Ministry of the Interior is supposed in the year 1933 to have issued a directive that official publications were not to be drawn up in a form which might enable people abroad to infer an infraction of the Versailles Treaty from such publications. This document does not reveal whether by these directives actual treaty violations were to be masked or whether it vas only a question of avoiding the appearance of treaty violations.
The same problem applies to Document 1850-PS, Exhibit Number USA-742. This contains the minutes of a conference between the Leadership of the SA and the Reich Defense Minister, who proposed to the SA in 1933 that budgetary funds of the Reich should be set aside by the Reich Ministry of the Interior for the military training of the SA. The document does not throve any light upon the attitude of the Reich Ministry of the Interior toward this proposal, and even if it had accepted it, this again would have proved only that the Reich Ministry of the Interior furthered the restoration of the Armed Forces, a fact which anyhow is already proved.
Thus, none of these documents furnishes proof that the Defendant Frick recognized as preparation for a war of aggression the measures ordered by Hitler as necessary for the defense of the Reich.
It is true that during the war, in 1941, a few days before the outbreak of the war with the Soviet Union, a conference took place between the Defendant Rosenberg and representatives of various ministries concerning measures in case of a possible occupation of parts of the Soviet Union. This is shown in Document 1039-PS, Exhibit Number USA-146, Rosenberg's report concerning these discussions, in which it is stated that negotiations took place with
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"Reich Minister Frick (State Secretary Stuckart)." This parenthesis means that the Reich Ministry of the Interior was represented in these negotiations by State Secretary Stuckart, therefore that Frick did not personally participate in the negotiations. As the negotiations took place only a few days before the beginning of the war in the East, it is not proved by the document that Frick himself was informed about the negotiation before the beginning of the war which, as it is generally known, was afterward proclaimed by Hitler as a necessary measure of defense against an imminent attack by the Soviet Union. It has been made clear by abundant evidence in this Trial how far Hitler kept his true aggressive intentions secret, and how well he knew how to cover up the true aim of all his political measures for years with thousands of convincing reasons to justify the individual measures of his policy of aggression
There was a very small circle of collaborators whom Hitler informed about his war plans, but this circle was not selected according to the position of the person concerned in the Cabinet, or according to his position in the Party hierarchy, but exclusively from the point of view of whether it was necessary for the person concerned, with respect to his own tasks in the field of preparations for the war, to know the aggressive character of Hitler's general policy or even his detailed plans of aggression. Document 386-PS, Exhibit Number USA-25, shows how systematically the principle of secrecy was kept, even as regards the older members of the Party and the administrators of important departments in the Reich Cabinet. Whoever, such as the Minister of the Interior, had merely to carry out measures within the framework of preparations for war which could well be similar to tasks of a purely defensive character was, in accordance with Hitler's principle, not informed of the latter's aggressive intentions. For this reason, the presence of the Defendant Frick is not shown in even a single one of these secret conferences in which Hitler informed a circle of selected men about his plans for foreign policy and his war aims. In the Document 386-PS just mentioned, Hitler especially emphasized and gave reasons for the exclusion of the Reich Cabinet as a body to which such plans should be made known.
In another record concerning a similar conference-Document L-79, Exhibit Number USA-27-the additional principle is laid down that no one should be told anything concerning the war plans who does not need to know these plans for his actual work.
Frick's name is not only missing from the list of those present at Hitler's conferences on his policy of aggression which took place before the war, but the same applies also to the numerous con
ferences concerning Hitler's further war aims and aggressive intentions which were held during the war. The Defendant Frick was no
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more informed of the later attacks or included in their preparation, as is shown by the list of those present at Hitler's lectures concerning his plans, which have in part been submitted here.
Frick, purely an expert in domestic administration who was not considered competent for military questions and questions of foreign policy, was deemed good enough to organize the civilian administration for the eventuality of any possible war, but in Hitler's opinion, his foreign policy and military plans were none of Frick's business. However, the Prosecution asserts further that after the conquest of foreign territories and their occupation, the Defendant Frick regulated the administrative policy in those territories and that he is responsible for it. The Prosecution considers this activity, of the defendant, according to Article 6, Letter (a) of the Charter, as "participation in the execution of wars of aggression." According to the submission of the Prosecution, Frick exercised an over-all control of the occupied territories, especially in his capacity as chief of the Central Office for the occupied territories. On the basis of the same function, he is deemed to be responsible for all War Crimes and Crimes against Humanity which were committed in the occupied and incorporated territories before and during the war, up to his dismissal as Reich Minister of the Interior on 20 August 1943.
It is a question of legal interpretation whether the activity in the administration of occupied territories, pursuant to Article 6, Letter (a) of the Charter, is to be considered as the "execution of wars of aggression," or whether criminality comes into consideration only under the point of view of crimes against the rules of war or against humanity. In deciding this question it appears important to me that it is not one of the tasks of an official of a civil administration to examine, after the conclusion of military operations, whether it is a case of legal or illegal occupation according to the standards of international law. An obligation for such an examination would be an exaggerated demand to make of the department of the civil administration or the administrative chief, whose activity cannot be described as illegal on the grounds that the territory administered by him had been annexed a short or even long time ago in violation of the regulations of international law. There is no obligation for such examination in the practice of civil administration. The Charter moreover does not demand such an interpretation because, when naturally construed, the military operations themselves might be understood to constitute an execution of wars of aggression, but not the later civil administration of conquered territories.
The punishment of crimes which occurred in the administration of the occupied territories would not be made impossible through such an interpretation. In any case these crimes are subject to punishment as Crimes against Humanity or against the rules of war
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according to the Charter. And now mention must be made of those territories in particular for which the Defendant Frick bears a responsibility.
First of all there are the territories which were incorporated in accordance with constitutional law into the commonwealth of the German Reich, which are therefore called "incorporated territories." By their constitutional incorporation these territories came under the administration of the Reich, but only to that extent did they come under the authority of the Reich Minister of the Interior, in that the Defendant Frick bears the constitutional responsibility of a minister for the internal administration of these territories up to 20 August 1943. In the East, this mainly concerned the territories of West Prussia, Posen, and Danzig, in other words, the so-called returned Eastern territories which belonged, until the Versailles Treaty, to the commonwealth of the German Reich. In the East, the Memel district received the same constitutional treatment; in the West, the Eupen-Malmedy district; and in the Southeast, the Sudetenland. Furthermore the country of Austria was incorporated into the commonwealth of the German Reich. For all those territories Frick has a share in the laws and administrative measures brought about by the incorporation. He bears the usual responsibility of a Minister of the Interior for the domestic administration of these territories up to the time of his dismissal in August 1943. For the territory of Bohemia and Moravia on the other hand there existed a special Protectorate Government, which was described as autonomous in the decree concerning the establishment of the Protectorate-Document 2119-PS-and was therefore not controlled by the Reich Ministry of the Interior. In a similar way, an administration not dependent on the Reich Ministry of the Interior existed in the Polish territories, which were collectively designated "Government General" and were put under the jurisdiction of a "Governor General." In contrast to the so-called "incorporated Eastern territories," the Reich Ministry of the Interior had no right to issue orders or to handle administrative matters in the Government General, as can be seen from Document 3079-PS which contains Hitler's decree concerning the administration of the occupied Polish territories. The same appears from numerous other documents, among them Document USSR-223, the Frank diary, in which he states that no Reich central offices are authorized to intervene in the government of his territory.
The same applied to all other occupied territories for which a special administration was established under any legal form. These separate administrations were not dependent on the corresponding departmental ministries in the Reich, but were under the jurisdiction of the administrative chief for the corresponding territories, who was himself directly subordinate to Hitler.
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This applies to the occupied Soviet Russian territories, the entire administration of which was under the jurisdiction of a Reich Minister for the Occupied Eastern Territories. The same applies to Norway, where a Reich Commissioner was appointed. In a similar way, a Reich Commissioner was appointed for the Netherlands, who was also independent of the Reich Ministry of the Interior and was directly subordinate to Hitler. In Luxembourg, Alsace, and Lorraine, there were chiefs of civil administrations who were also not dependent on the Reich Ministry of the Interior, while in Belgium and northern France there was a military administration of which the same was true.
In the same way the administrative chiefs of the territories which were occupied in the Southeast of Europe were completely independent of the Reich Ministry of the Interior. For part of the occupied territories there exists, in the decrees issued at the time concerning the creation of a separate civil administration, a stipulation that the Reich Minister of the Interior was designated the central agency, and from this formulation the Prosecution has deduced a responsibility of the Defendant Frick for the administration of all the territories, as is stated in the Indictment.
The actual tasks of the central agency can be seen from the order concerning the establishment of a central agency for Norway- Document 3082-PS, or Number 24 in the Frick document book. The witness Dr. Lammers has given a further explanation of the tasks. At that time it was the primary task of the central agency to put personnel at the disposal of the chiefs of the civil administrations in the occupied territories on request. Therefore, if a civil official was needed for any district, the administration of the district concerned applied to the central agency in the Reich Ministry of the Interior, which then put some official from the Reich at the disposal of the chief of the civil administration. The Reich Ministry of the Interior was especially fitted for this, as it had at its disposal numerous officials of the domestic administration in Germany.
But the transfer of an official from his own department to another office, which will alone give orders to that official from that moment on, does not establish responsibility for the further activity of that official in his new department, to whom the Reich Ministry of the Interior could issue no orders whatsoever. To take as an example: If the Minister of Justice transfers one of his officials to the Foreign Minister, naturally only the Foreign Minister is responsible for the further activity of this official. This activity of the central agency therefore does not justify the assumption of responsibility by Frick for the administration of the occupied territories.
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The requisitioning of officials for the occupied territories was concentrated in the Reich Ministry of the Interior. That is, as the examination of the-witness Lammers indicated-and I quote from the above-mentioned Document 3082-PS-"the unified co-operation adapted to the needs of Norway, of the supreme Reich authorities with one another and with the Reich Commissioner."
In like manner, the hearing of evidence for the Defendants Rosenberg, Frank, and Seyss-Inquart, who functioned as chiefs of civil administrations in the occupied territories, has on no occasion revealed any co-operation of any kind with the Defendant Frick either in his capacity of Reich Minister of the Interior or Director of the Central Agency in this Ministry.
Now, the Prosecution has referred to several documents in order to prove that the Defendant Frick exercised extensive control over all occupied territories. Actually, however, those documents do not reveal an administrative activity of any greater extent than I have just stated. Document 3304-PS gives proof of an administrative activity for the incorporated Eastern Territories. This coincides with my statement that the incorporated Eastern Territories, in their internal administration, were subject to the Reich Ministry of the Interior by virtue of their constitutional incorporation into the German Reich. The document, however, bears no reference to the administration of the Occupied Eastern Territories, that is, the Government General or to the occupied Soviet Russian territories.
The other document submitted, 1039-PS, Exhibit Number USA-146, proves the transfer of administrative personnel from the department of the Reich Ministry of the Interior to the Reich Minister for the Occupied Eastern Territories, a typical task of the Central Agency which I have already discussed. The Prosecution has submitted further documents which reveal that the Reich Ministry of the Interior had a hand in the bestowal of German citizenship. Even this does not, however, prove any administrative authority of the Defendant Frick for the occupied territories, but merely a typical activity of a Minister of the Interior whose department is competent for the general regulations concerning German citizenship, including cases where persons living outside the Reich territory are involved. This activity of the Minister of the Interior can also furnish no proof of an extensive administrative policy and a general responsibility of the Defendant Frick for the administration of the occupied territories. In particular, in the occupied territories which were not incorporated into the Reich territory, Frick had no authority or competence whatsoever as far as the tasks of the Police were concerned.
Hitler directly commissioned Himmler to carry out police work in the occupied territories-see Document 1997-PS, Exhibit Number
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USA-319, Hitler's decree concerning police security measures for the Eastern Territories, for which Himmler was directly responsible. The same is revealed by Document 447-PS, Exhibit Number USA-315, a directive of the OKW dated 13 March 1941, to the effect that the Reichsfuehrer SS in the Occupied Eastern Territories is charged with special duties in the execution of which he will act independently and on his own responsibility. The same applies to the police tasks in the other occupied territories, which were assigned either to the Reichsfuehrer SS Himmler or to the SS and police leaders who took their orders only from Himmler, although in many cases they were ostensibly assigned to the civil administrative chief in question, such as for example the Governor General in Poland (see excerpt from Frank's diary in the Frick document book under Number 25, also USSR-223). In no case, therefore, were police tasks in the occupied territories under the Defendant Frick's jurisdiction. Consequently, the Defendant Frick bears no responsibility for crimes against the laws of war and against humanity in the occupied territories, since in these territories he could neither order crimes nor prevent them.
Concerning the territory of the German Reich I must now examine the claim of the Prosecution as to the responsibility of the Defendant Frick for all the police measures, including the Gestapo, as well as for the establishment and administration of concentration camps. May I first refer to the documents submitted by me in evidence, which reveal that the Police, including the political police, was in 1933 still the concern of the individual states within the Reich, such as Prussia, Bavaria, et cetera.
In Prussia, the Secret State Police (Gestapo) and the concentration camps were established and administered by Goering in his capacity as Prussian Minister of the Interior. The tasks of the political police were then transferred by a Prussian law, dated 30 November 1933, to the office of the Prussian Prime Minister, which was also administered by Goering. So when the offices of the Reich and the Prussian Minister of the Interior were merged, in the spring of 1934, Frick did not assume the tasks of the political police which still remained incumbent upon Goering in his capacity as Prime Minister.
A similar regulation prevailed in the other states, where Himmler was gradually given the duties of special deputy for the political police. During this period, the Reich Minister of the Interior had only the right of so-called "Reich supervision" over the states, which Frick made use of for the enactment of general instructions and legal ordinances; and this is the only point where Frick, as Minister of the Reich, could exercise any influence on the affairs of the political police and concentration camps.
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Frick made use of this possibility, in accordance with his basic attitude as confirmed by the witness Gisevius, to prevent and repress arbitrary actions by the political police as far as was in his power in the circumstances then prevailing. He endeavored, by the enactment of provisions of law and procedure, to restrict the arbitrary practices of the political police in the states.
I refer to Document 779-PS, submitted by me as Exhibit Number Frick-6. This is a decree dated 12 April 1934, containing restrictive provisions of this sort under a significant preamble-which I quote: "In order to remedy abuses occurring in the infliction of protective custody." This is followed by directives to the governments of the states forbidding the application of preventive custody in numerous cases where it had previously been improperly ordered by the Gestapo. In this struggle of Frick against arbitrary actions by the political police in the states, the police had, it is true, ultimately come out better because they were under the direction of Goering and Himmler, with whom the "bureaucrat" Frick-as Hitler disdainfully called him-could not compare as regards influence in the Party and State. For that reason the political police in the states in practice frequently disregarded Frick's ordinances. But Frick did not stand by idly as long as there was reason to hope that through his intervention the unrestrained practices of the political police in the states could be directed into orderly and legally regulated channels. I refer to Document 775-PS, Exhibit Number Frick-9, a memorandum from Frick to Hitler which clearly and unequivocally calls a spade a spade, mentioning legal insecurity, unrest, and embitterment, and severely criticizing individual cases of misuse of the right to order protective custody by the political police of the states. Here I would insert that the same document also proves that in the struggle over the churches, the defendant clearly took their side. This is also proved by Exhibit Number Neurath-1.
In his testimony the witness Gisevius refers to an additional memorandum which he himself drew up for Frick as a further attempt to restrain through severe criticism and by suggestions for legal control the arbitrary practices of the political police in the states. All of these attempts failed because Frick's political influence was too insignificant and he could not assert himself against Goering and Himmler, and because at the time Frick himself could not yet see that the practices of Goering and Himmler were essentially in harmony with what Hitler actually wanted himself. Thus the documents submitted by the Prosecution, taken in conjunction with the evidence offered by the Defense, show that in the domain of the political police and in ordering protective custody, Frick had a certain competency at a time when the police was still a service administered by the individual states. This evidence also shows
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that during that time Frick's jurisdiction was very limited and it further shows that Frick, acting within the bounds of his competency, took action solely in order to intervene against the terror and arbitrary actions of the Gestapo through general instructions and through repeated complaints in individual cases, so that the conclusion is not justified that Frick in any way actively participated in the Gestapo's measures of terror and violence.
At a later period the legal situation changed. With Hitler's decree of 17 June 1936-Document 2073-PS, Document Book Frick Number 35-police tasks for the entire Reich were combined and uniformly transferred to Himmler, whose department was formally made a part of the Ministry of the Interior under the title "Reichsfuehrer SS and Chief of the German Police in the Reich Ministry of the Interior."
The question now is whether this new regulation conferred on Frick, in his capacity as Reich Minister of the Interior, any authority of command or any right to issue instructions which could be enforced with regard to the political police, its offices and its functionaries. When Himmler, in accordance with his own wish, which he could gratify because of his influence on Hitler, was appointed Police Chief for the entire Reich, there did not exist in Germany a police or security ministry, properly speaking.
This is the reason why the uniform direction of the police through Himmler in person was formally attached to the Reich Ministry t>f the Interior. But Himmler wanted to be more than a department chief in the Ministry of the Interior. Therefore a position entirely novel in German administrative law was created for him and his purposes. The entire sphere of the police was separated from the rest of the activities of the Ministry of the Interior and placed under Himmler's special jurisdiction under a newly created title of office which, as a government office, contained the words "Reichsfuehrer SS," thereby making it possible for Himmler to carry out political police tasks under a title of office characterizing him as Reichsfuehrer SS and in that capacity giving him independence from any instructions issued by a minister of state.
In order to accentuate further the independence of his office within the bureaucratic hierarchy as well, Himmler was given the additional right from the very beginning to represent police matters before the Cabinet independently and on his own responsibility, like any Reich minister; this is also shown in the decree concerning his appointment, Document 2073-PS. This decree is a typical example of the overlapping of competencies which Hitler favored to excess in his government system. Himmler became part of the Ministry of the Interior and, as an official of the Ministry of the Interior, was formally bound to abide by instructions of the
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Minister. However, he was also an independent Chief of Police with the-right to represent before the Cabinet on his own responsibility matters pertaining to the Police, thus excluding Frick in that respect. In addition to that, his orders simultaneously carried the authority of the Reichsfuehrer SS, in which Frick had no authority at all to interfere.
In actual effect this involved arrangement also enhanced the tremendous influence of Himmler on Hitler. In keeping with his convictions, and to safeguard a well-ordered state apparatus, Frick repeatedly tried to intervene through general instructions intended to restrain the arbitrary acts of the political police. As late as 25 January 1938 he tried through a decree to curtail the admissibility of protective custody and he forbade it in a number of cases of improper application. I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which under Number 36 appears in the Frick document book. He prohibited protective custody in lieu of, or cumulative to, a legal penalty, forbade its application by police authorities of the intermediate or subordinate levels, and gave orders that the accused should be heard before arrest. He decreed periodical examination of the reasons for the continuance of confinement and on principle forbade the protective custody of foreigners, whom the Police had authority only to expel from the Reich in case of acts endangering the State.
An obvious argument is that the Gestapo in practice disregarded all these instructions of Frick and that Himmler and his subordinates maintained an absolute reign of terror and violence. This is correct and has been confirmed in detail by the witness Gisevius. But something else appears of importance to me in the defense of Frick: To show that Frick himself disapproved of such arbitrary acts and that he tried to do all in his power to prevent them. Finally, however, Hitler forbade even this. He informed him through Lammers-as confirmed by the latter as witness-that he was not to concern himself with police matters, that Himmler could manage that better by himself and that the Police was doing well under Himmler.
Thus Himmler finally got complete control of the Police, and he gave outward expression to this by later dropping, with Hitler's consent, from his official title, the words "in the Reich Ministry of the Interior," simply referring to himself as "Reichsfuehrer SS and Chief of the German Police," which is also shown in the testimony of the witness Lammers.
I believe that, in view of the circumstances, the problem of the Defendant Frick's criminal responsibility for the political police and their arbitrary measures is not established by the fact that the entire Police was formally incorporated in the Reich Ministry of the
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Interior after the year 1936, since it has been proved that Frick himself did not participate in arbitrary acts, but on the contrary tried again and again to intervene against such arbitrary practice with all the power he possessed, which however was no match for the personality of Himmler and his influence with Hitler.
In order to insure fair judgment, I request that the actual situation as to power of command and authority, and not the purely superficial circumstances of a formal incorporation of the tasks involved in the Reich Ministry of the Interior, be taken into account.
I insert the following here: The Prosecution, during their presentation on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in connection with that document that it proved that the political police were not only formally incorporated in the Ministry of the Interior, but that Frick was in fact responsible for the measures of the Police. Actually the document shows only that Frick as Minister of the Interior was officially contacted in the matter of the sterilization of those suffering from so-called hereditary diseases. The document has nothing to do with any measures of the Police, least of all with any measures of the political police. Moreover there is no information in it regarding Himmler's position in the Ministry of the Interior.
Now I will continue with lay plea: In this connection, I must briefly deal with the reference of the Prosecution to the fact that Hitler's decree concerning the appointment of Himmler as Chief of the German Police-Document 2073-PS-had been countersigned by Frick himself.
I believe that the relationship between Frick and Himmler, as well as their divergent relations to Hitler, are sufficiently clear to justify the conclusion that the appointment of Himmler simply amounted to an agreement between Hitler and Himmler, to which Frick would have objected in vain. We are confronted with the same problem which applies to so many defendants, namely, that of the formal countersigning of an order issued by Hitler, which was then signed as a matter of form by the head of a department, although that department head had no influence on the order and could not have prevented it, especially as it would have had full constitutional effect as a Fuehrer decree without the minister's additional signature.
I now have to deal with several documents which the Prosecution consider to have a bearing on actual activity by the Defendant Frick within the sphere of tasks of the political police. I have already dealt with Document 3304-PS, to which the Prosecution referred in this connection. It concerns an ordinance on the assignment of a Higher Police Leader to the Reichsstatthalter (Reich Governor) in the Eastern territories which were incorporated into the commonwealth of the German Reich, and hence deals with the
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administrative organization of the Reich Governor's office in a part of the Reich. This decree therefore falls within the scope of the general competence of the Ministry of the Interior, and accordingly does not furnish proof of any specific police activity. Moreover, this decree has nothing to do with any arbitrary acts of the Gestapo.
On the same lines in the decree of 20 September 1936-Document 2245-PS-concerning the appointment of police experts in the Prussian provincial administrations, which were also subordinate to the Reich Ministry of the Interior as offices of the general internal Reich administration, the assignment of a police expert to the office of general administration in the province is a measure of internal Reich administration. This measure, too, had no connection with arbitrary acts of the Gestapo, and more particularly it does not prove that the defendant issued any instructions to the Gestapo.
The situation is no different with respect to the documents which have been appraised by the Prosecution as demonstrating the participation of the defendant in the establishment and administration of concentration camps, or as a sign of approval of terror methods used by the Gestapo. In their statement of 22 November 1945, the Prosecution referred to Document 2533-PS as proof of the approval of these arrangements by the Defendant Frick. I need not go further into the contents of the document; it represents an article by the Defendant Frank in the journal of the Academy of German Law, of which Frick has erroneously been called the author by the Prosecution.
A further document does not, in the opinion of the Defense, contain sufficient evidentiary value to be utilized in giving legal judgment. I have in mind Document 2513-PS, Exhibit Number 235, which contains an excerpt from a speech which Frick allegedly made in the year 1927. But the excerpt is taken from a provincial Social Democrat newspaper, a small paper opposed to Frick, the reporter thus having no authentic copy of the speech at his disposal-and we all know what mistakes and misunderstandings are apt to be contained in such short reports, the wording of which cannot be checked by the speaker himself. Thus this document, according to which Frick is said to have stated that history is written not only with the ballot, but with blood and iron, is not a reliable source.
The Prosecution refers to dealings concerning the expropriation of land in order to extend the grounds of the Auschwitz Concentration Camp. The general domestic administration is competent for expropriation matters, and for this reason an official from the Ministry of the Interior was called into negotiations, who stated, however-Page 2 of the English translation of the document-that he was not authorized to dispose of the freehold of the land. Thus one cannot from this document either construe any political police
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activity on the part of the defendant, or an approval of the concentration camp system. Finally, in this connection the Prosecution states that the Defendant Frick personally visited the Oranienburg and Dachau Concentration Camps. The defendant does not deny the visit to Oranienburg in 1938, about which witness Hoess testified. At that time, as witness Hoess himself testified, the outward aspect of the camps was still generally that of a military training area. In any case, an official visitor to a camp at that time could not observe any indication of murder, ill-treatment, or similar crimes, so that such a visit is not a decisive argument for knowledge of crimes in the Concentration camps.
On the other hand, Frick never visited the Dachau Concentration Camp, contrary to the testimony of the witness Blaha. I refer to the testimony of Gillhuber in regard to this, who as the constant companion of Frick must have known about such a visit if it had taken place. I take the liberty of pointing out that the two other constant companions of Frick were also named by me as witnesses, but in agreement with the Prosecution were considered by the Tribunal as unnecessary on the grounds that one of the companions would be sufficient as a witness.
Before concluding this chapter, I still have to go into the matter of an allusion made by the Prosecution which described Frick at one time as the Chief of the Reich Security Main Office. I beg to refer to the testimony of the witness Ohlendorf, who stated to the Court that the Reich Security Main Office (RSHA) was a creation of Himmler, who combined in this office his state police tasks and his functions as Reichsfuehrer SS, with which Frick had no connection of any kind, much less any powers of command. The sole chief of this of lice was thus Himmler himself.'
I must go further into the charges which are made against the Defendant Frick with respect to the persecution of members of the Jewish race. Frick did collaborate in legal measures, particularly the Nuremberg Laws, and in administrative measures which he regarded as an expression of a National Socialist racial policy. On the other hand there is no proof that Frick himself shared in or knew of the measures of physical extermination which, on Hitler's direct orders, were carried out by Himmler and his organizations and kept absolutely secret from those who themselves had no part in these frightful events. Further, in his capacity as Minister of the Interior, the defendant is also accused of collaboration in the killing of the sick and insane. Hitler's basic order is contained in Document 630-PS, Exhibit Number USA-342. This document shows that Hitler did not give an order for this to any government office but to two separate individuals, namely, Bouhler and Dr. Brandt, so that this was quite outside the ministries' authority. Moreover, contrary to
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all rules, Hitler did not sign this order himself in an official capacity as Fuehrer and Reich Chancellor, but used private stationery with the heading "Adolf Hitler." This shows, a fact that the witness Lammers has confirmed, that Hitler did not give an order for these measures to the Ministry of the Interior or some other government office, but to two of his Party comrades, and the Party emblem is the only sign on this stationery. On the other hand, the documents submitted by the Prosecution prove that complaints were made which also reached the Ministry of the Interior, but they do not prove that, in contradiction to Document 630-PS, Frick personally was contacted on the subject of measures for the killings, or that he could have prevented them.
After his dismissal as Minister of the Interior on 20 August 1943 Frick was appointed Reich Protector of Bohemia and Moravia. Here he was given a task which from the start was definitely limited in its competence.
I refer to Document 3443-PS, which is also included as USSR-60 and under Number 29 in the Frick document book, and to 1366-PS, submitted by me as Exhibit Number Frick-5a. Furthermore, I refer to the testimony of the witness Lammers. The office of the Reich. Protector was originally the unified representation of Reich authority in the Protectorate. In actual practice, however, its authority passed more and more to Frank, the Reich Protector's State Secretary at that time.
With the appointment of Frick in August 1943 through a Fuehrer decree which was not made public, the executive authority was now formally transferred to Frank, who from that date received the official title of "The German Minister of State in Bohemia and Moravia." From that time on the Reich Protector retained essentially the right of representation and the right of pardon, improper use of which by Frick has been neither maintained nor proved by the Prosecution. On the other hand Frank, as "German Minister of State" according to the above-mentioned Fuehrer decree, derived his executive authority directly from Hitler by whom he had been directly appointed, and from whom he received his instructions without Frick's interpolation, Frick being in no way competent to exercise any influence thereon. Considering this state of affairs, the Defendant Frick cannot be incriminated by Document 3589-PS, Exhibit Number USA-720.
I now come to the Prosecution's charge that Frick, by his membership in certain organizations, is responsible for certain criminal actions. The SS was one of these organizations mentioned by the Prosecution, to which, however, Frick never belonged. Thus he was never a general in the SS, as stated by the Prosecution. I
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would assume this to be merely an error on the par's of the Prosecution. In any case, the Prosecution did not submit any form of proof. Frick was likewise never a member of the SA, as shown- probably by mistake-in the chart indicating the defendants' membership in various organizations. For this too, there is no proof.
The Prosecution has further charged Frick with being the supreme head of the Gestapo, and therefore designated him as a member of this organization, with the argument that since the appointment of Himmler in 1936 as Chief of the German Police the Gestapo has been formally incorporated into the Reich Ministry of the Interior. But the Gestapo had its own chief in the person of Himmler, from whom alone it took orders, and Himmler's formal subordination to the Minister of the Interior does not make the latter a member of that organization, which was exclusively under Himmler's orders.
The Defendant Frick is further charged, in his capacity as Reichsleiter, with membership in the Political Leadership Corps. My colleague, charged with the defense of this organization, will in his turn deal with the character of this organization. As to the Defendant Frick, I have only to point out that he held the formal position of a Reichsleiter in his role as chairman of the Reichstag faction of the NSDAP. The Reichstag itself having lost all political importance after 1933, which requires no further explanation, this position of Frick's was in practice equally unimportant and could not be compared with the position of a Reichsleiter who administered important political departments.
Finally Frick, as Reich Minister, was a member of the Reich Cabinet. With regard to the character and the authority of this organization I also refer first of all to the statements, which are yet to follow, of my colleague who has been appointed defense counsel for this organization.
I refer here only to the testimony of Lammers and Gisevius, and further to the excerpt from the book of this latter witness, which I have submitted as Exhibit Number Frick-13 as evidence of the position and authority which the Reich Cabinet had with respect to the dictatorial practices-of Hitler. From all this, the Defendant Frick appears as a person who certainly took action politically to bring Hitler to power, and who temporarily exercised a decisive influence on internal policy after his goal had been achieved. All his measures, however, had inner political aims; they were not intended to have anything to do with the foreign political aims of a war of aggression, much less with Crimes against Peace or against the rules of warfare-and, as also specified by Article 6 of the Charter, only in such cases would this Court have jurisdiction, as stated by the Prosecution itself.
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When Frick realized later that the policy was taking a course of which he could no longer approve, he tried to exert all his influence to bring about a change. But he had perforce to find out more and more clearly that Hitler would not listen to his remonstrances and complaints. On the contrary, he was forced to realize that these complaints destroyed Hitler's confidence in him, and that he preferred to be advised by Himmler and similarly minded persons, so that finally, after the year 1937, Frick was no longer received by Hitler when he wanted to present complaints. Frick then gave up such hopeless attempts to bring about a change in the situation. Things would not have been altered by his resignation either, which the evidence has shown he repeatedly tendered in vain. Thus his tragedy lies in his entanglement in a system, in the first steps of which he had participated enthusiastically and the development of which he had imagined would be quite different. In any case, it appears important to me, in judging his personality and his actions, that even this presentation of evidence, which has gone on for months, has not given any proof of the personal participation of the defendant in any crime.
It is not without reason that John Gunther in his book Inside Europe, which I have presented to the Tribunal as evidence, describes precisely the Defendant Frick as "the only honest Nazi." At the same place Gunther goes on to call him a "bureaucrat through and through." Hitler himself kept calling him the "pen pusher" ("Paragraphenschuster",1 because Frick-which was typical of him- did not become acquainted with him at some public meeting, but in his office in the police department in Munich in the year 1923.
This man felt enthusiasm for Hitler's suggestive power, so lacking in himself, a Hitler who with big words appealed to his heart, his honor, and his patriotism. It was Hitler who made him proud of being able to participate in the reconstruction of a German nation which, through powerful armed forces, was to be in a position to play a peaceful yet active role in world politics.
And it was again Hitler who knew how to make his program appear to the bourgeois official Frick as the only way to forestall Bolshevik rule in Germany-this and many more superficial truths, twisted statements, and devices of propaganda which fooled so many people who fell for the suggestive power of Hitler, not realizing in time that they had subordinated themselves to the hypnotic will of a criminal, who was prepared to overthrow the pillars of civilization for his aims and who finally would leave Germany a monstrous spiritual and material field of rubble, for the removal of which I pray that this Trial may also contribute through a sentence in accordance with law and justice.
THE PRESIDENT: Dr. Marx.
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DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen of the Tribunal, Mr. President.
I begin the speech for the defense of Julius Streicher.
When in May of the past year the final battles of the greatest and most horrible war of all time came to an end, the Germans were slow to rise again from the stupor in which they had, for the most part, spent the last months of the war. Like all the peoples of Europe they had suffered unspeakably for years. The last months in particular, with their hail of bombs, had brought so much misery to both the country and the people that it almost surpassed human endurance. This terror was increased by the knowledge that the war was lost, and by the fear of the uncertain fate which the occupation period would bring. And when finally the periods of first anxiety had passed, when the German people were slowly beginning to breathe again, paralyzing horror spread once more.
Through the press and radio, through newspapers and motion pictures, knowledge was spread of the atrocities which had taken place in the East, on the steppes and in the concentration camps. Germany learned that people, men of its own blood, had slaughtered millions upon millions of innocent Jewish people. Most people felt instinctively that these deeds would necessarily be the greatest of all the accusations the world had to level against Germany.
The question of whether the German people in its totality had known and approved of these actions was, and is, the truly fateful question. It is the touchstone by which the decision must be made as to whether or not Germany will ever be able to return again as a nation with equal rights into the common cultural and spiritual sphere of the world. As in every case of guilt, there immediately arose here also the question as to who was responsible, and the search for that individual. Who had ordered these atrocities, who had carried them out, and how could such inconceivable things have happened at all, the like of which cannot be found in history even in the earliest days?
During all this asking and guessing, the news arrived that the former Gauleiter of Franconia and publisher of Der Sturmer, the present Defendant Julius Streicher, had fallen into the hands of the American troops. From the echo this news aroused in the press, which was exclusively directed and published by the occupying power, as well as in the radio news, it was to be gathered that the world was of the opinion that in the person of Julius Streicher not only had one of the numerous anti-Semitic propaganda agents of the Third Reich been taken prisoner, but in short Enemy Number One of the Jews.
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Throughout the rest of the world the opinion evidently prevailed that in the person of Julius Streicher not only the most active propaganda agent for the persecution and extermination of the Jews had been seized, but that he had also participated to the highest degree in carrying out these acts of extermination. He was said to have been, as one heard, not only the greatest hater of the Jews and the greatest preacher of extermination of the Jews, but also the person to whose direct influence one could trace back the extermination of European Jewry.
N is only from this angle that it can be explained why the Defendant Streicher should sit here in the dock, together with the other defendants, among those chiefly responsible for the National Socialist system. For neither by virtue of his personality nor measured by his offices and positions does he belong to the circle of leaders of the NSDAP or to the Party's decisive personalities. This view was probably also held in the beginning by the Prosecution, but was abandoned by them at an early stage, for the written Indictment already no longer charged the Defendant Streicher with any personal and direct part in the abominable mass murders. Rather did it state that there was less guilt with which he would be charged than in the case of any of the other defendants; only his propaganda, his activities by the written and spoken word, were made the subject of the accusation against him.
As far as particulars are concerned, the Counts of the Indictment against the Defendant Streicher were summed up as follows:
I. Support of seizure of power and consolidation of power of the NSDAP after the latter's entry into the Government.
II. Preparation of aggressive wars by propaganda aimed at the persecution of the Jews.
III. Intellectual and spiritual preparation and education to encourage hatred against the Jews,
(a) in the German people,
(b) in the German youth, and
(c) in the active extermination of Jewry.
Without Julius Streicher, no Auschwitz, no Mauthausen, no Maidanek, no Lublin-thus the Indictment may be summed up briefly.
As far as Count One of the Indictment is concerned, the defendant does not deny that as regards the Party's later seizure of power he supported and promoted it with all his might from its earliest inception. His support went to the extent of placing a whole movement which he had built up personally in Franconia at the disposal
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of Adolf Hitler's Party which was small after the first World War, as one can imagine, and limited to southern Bavaria only. Furthermore, after Hitler's release from the fortress of Landsberg, he immediately joined him again and subsequently championed. his ideas and goals with the greatest determination.
THE PRESIDENT: I think this is a good time to break off. The Tribunal will adjourn.
The Tribunal adjourned until 12 July 1946 at 1000 hours.7