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MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent today.
PRESIDENT: Would it be convenient to Counsel for the Prosecution and the Defense if at 2 o'clock today we were to deal with those interrogatories and affidavits which have come in since the last applications were made?
SIR DAVID MAXWELL-FYFE: (Deputy Chief Prosecutor for the United Kingdom): My Lord, it would be perfectly convenient for the Prosecution.
THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the Defense Counsel to deal with those matters at 2 o'clock?
DR. SAUTER: Certainly, Mr. President; I will inform the other defense counsel that these applications will be discussed at 2 o'clock.
DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my colleague, Dr. Sauter, that this should be done. But if this is done at 2 o'clock it will interrupt my final speech. I should be very grateful if it could be done immediately after Dr. Sauter finishes his speech, so that I could present my plea coherently. It would be very awkward if I were interrupted.
THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately after Dr. Sauter's plea.
DR. SAUTER: May I speak now, Mr. President?
THE PRESIDENT: Yes, Dr. Sauter.
DR. SAUTER: May it please the Tribunal; before the adjournment on Friday, I explained in conclusion the position and the attitude of the Defendant Funk with respect to the Jewish question. On this occasion I pointed out that in connection with the executive instructions issued late in 1938 on the legal exclusion of the Jews from economic life' the Defendant Funk acted only in his capacity as a Reich official and in the performance of the duties of that office.
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On Friday, I finished my statements in that respect with the words:
It was a sense of duty on the one hand, and humane feeling on the other, which kept the Defendant Funk in of lice and thus brought him into a situation where he is today charged with criminal action.
Now, Gentlemen of the Tribunal, I turn to the last chapter of my appraisal of the Defendant Funk, of his motives and actions, and will now deal with the gold deliveries by the SS to the Reichsbank, and with the relation of the Defendant Funk to the concentration camp question. That is to say, I am going to refer to Page 58 of the written speech which has been submitted to you.
It is a peculiar tragedy in the life of the Defendant Funk that he was not only forced by fate in the year 1938 to issue executive instructions for laws which he always inwardly condemned and repudiated more than anybody else' but that once again, in the year 1942, he became involved in a particularly horrible manner with Jewish persecutions. I am thinking now of the deposits made by the SS in the Reichsbank, that is to say, the matter on which a film was shown here of the steel vault of the Frankfurt Branch of the Reichsbank and about which two witnesses have testified, namely, Vice President Emil Puhl and Reichsbank Councillor Albert Thoms.
The Defendant Funk was already examined about this matter of the gold deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS); at that time, however, no details were disclosed to him, and Funk made the same statement then as he did before this Tribunal, namely, that he was only briefly told about the matter in question on a few occasions, and that he had not attached any importance to it at all. That is also the reason why the Defendant Funk could not at first recall those happenings very well during the proceedings here. He did not know anything more about them than he had already said.
Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this matter would be brought up in the Trial, at any rate in the cross-examination. And this was actually done by the American Prosecution on 7 May 1946, who submitted an affidavit by the witness Emil Puhl, Vice President of the Reichsbank, in which at first sight Puhl appeared to make serious accusations against the Defendant Funk. Now it is remarkable that since the beginning of this Trial the Defendant Funk has repeatedly referred to this very witness Puhl for various points, and that since December 1945 he has repeatedly requested that the latter be interrogated. Measured by ordinary human standards, Funk would certainly not have done this if he had had a bad conscience and had reason to expect to be compromised in the most damaging way by his own
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witness regarding the concentration camp matter. But the oral examination of the witness Emil Puhl here before this Tribunal showed beyond a doubt that Puhl could no longer in any way maintain the incriminating statements in his affidavit, as far as the character of the Defendant Funk and his knowledge of the particulars of the SS deposits were concerned.
It is true that Funk, as he recalled after Puhl's testimony (and concerning this I submitted on 17 June 1946 a corrected copy of his sworn testimony), was once asked by ReichsFuehrer SS Himmler whether articles of value which had been seized by the SS in the Eastern Territories could be deposited in the vaults of the Reichsbank. Funk answered this question in the affirmative and told Himmler that he should delegate somebody to discuss the matter with Vice President Puhl, and settle the details. Hammer at that time told Funk that his GruppenFuehrer Pohl could do this and that the latter would get in touch with Vice President Puhl. That was all that Funk at that time, I believe in 1942, had discussed with Reichsfuehrer SS Himmler and which he on that occasion also repeated to his Vice President Puhl who was actually directing the business of the Reichsbank and therefore responsible for this affair.
There was nothing extraordinary in this question of Reichsfuehrer SS Himmler, at least nothing which Funk could recognize. For, as far as Funk knew, the SS was at that time in charge of the entire police service in the Occupied Eastern Territories. For that reason it often had to confiscate valuables just as the ordinary police did in the interior, that is, within Germany. Moreover, all gold coins, foreign currency, et cetera, in the Occupied Eastern Territories had to be turned in according to law, and these deliveries in the Eastern Territories were naturally made to the SS, because there were no other state offices equipped for that purpose. Funk also knew that the concentration camps were under the direction of the SS and thought that the valuables which were to be given to the Reichsbank by the SS for safekeeping belonged very probably to that category of valuables which the entire population was obliged to deliver.
Finally, as has been ascertained in the course of this Trial, the SS was constantly just as much engaged in the fighting in the East as the Armed Forces, and like the latter the SS had also collected so-called booty in the abandoned and destroyed towns of the East and delivered it to the Reich. Therefore, there was nothing at all extraordinary for Funk in the fact that the SS possessed gold and foreign currency and brought it in for delivery in the regular way.
Now, the essential point in this whole business is the question whether the Defendant Funk knew or saw that among the objects delivered by the SS there were unusual quantities of gold spectacle
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frames, gold teeth, and similar objects which had come into the hands of the SS not through legal but criminal confiscations. If-and I emphasize, Gentlemen, if-it could be proven that the Defendant Funk had seen such objects in the deposits of the SS, this would naturally have caused him some surprise. But we heard the witness Puhl say in the most positive way that the Defendant Funk had no knowledge of this and, indeed, that Vice President Puhl himself knew no further details about it. In any case Funk never saw what particular gold objects and what quantities the SS delivered.
Now, it has been said against Funk that he himself entered the vaults of the Berlin Reichsbank several times, and from this one felt entitled to draw the conclusion that he must have seen what objects had been delivered to the Reichsbank by the SS. This conclusion is obviously wrong because the evidence shows that during the entire period of the war Funk went to the vaults of the Reichsbank only a very few times for the purpose of showing these vaults and the bullion of the Reichsbank stored there to special visitors, especially foreign guests. But on those few visits to the vaults he never saw the deposits of the SS. He never observed what in particular the SS had deposited in his bank. This is established beyond doubt, not only by the sworn statement of the Defendant Funk himself, but also by the oral testimony of Vice President Puhl and Reichsbank Councillor Thoms here in this courtroom. This Prosecution witness, who is certainly free from suspicion and who by his own admission volunteered to testify, has declared here under oath that the valuables were delivered by the SS in locked trunks, boxes, and bags and were also stored away in these containers, and that Funk was never present in the vaults when the bank employees made an inventory of the contents of an individual box or trunk. The witness Thoms, who was in charge of these vaults, never saw the Defendant Funk there at all. Therefore, Funk neither knew of the proportions which the deliveries of the SS gradually assumed in the course of time, nor did he know that the deposits contained jewelry pearls, and precious stones, and also spectacle frames and gold teeth. He never saw any of those things and none of his officials ever reported to him about them either.
Now it is the opinion of the Prosecution that Funk, as President of the Reichsbank, surely must have known what was kept in the vaults of his bank; but this conclusion is also evidently mistaken and does not take into consideration actual conditions in a large central issuing bank. Funk, who was also Reich Minister of Economics, had in his capacity as President of the Reichsbank no occasion whatever to bother about the deposit of an individual customer, even if this happened to belong to the SS. As President
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of the Reichsbank he did not bother about any deposits of other clients of his bank either, since this was not his job. On only one occasion, following a suggestion of his Vice President Puhl, he asked Reichsfuehrer SS Himmler-this was during his second conversation with him-whether the valuables deposited by the SS in the Reichsbank could be converted into cash in the legal course of business at the Reichsbank. Himmler gave his permission and Funk passed this information on to his Vice President Puhl. But in this matter he was only thinking of gold coins and foreign currency, that is to say, of those particular valuables which had to be turned in to the Reichsbank as a matter of course in the German Reich and which could be and had to be converted into cash by the Reichsbank. The idea never occurred to Funk that the deposits might contain gold teeth or other such remarkable objects which had their origin in criminal acts in concentration camps. He heard about these things to his horror for the first time here in the courtroom during the Trial.
The only remaining point in the statement of the witness Puhl which might excite a certain amount of suspicion, Your Honors, was the question of preserving secrecy, which in fact played a very important part indeed in the examination of the witness. Vice President Puhl stated here at the beginning of his testimony that the Defendant Funk had told him that the matter of the SS deposits must be kept especially secret. Funk, on the other hand, has always denied this in the most insistent manner and declared under oath that he never talked to Puhl at all about any such secrecy. Thus at the very beginning, here in the courtroom, we had one statement pitted against another, oath against oath. Vice President Puhl's statements regarding this point, however, seemed somewhat contradictory from the beginning For on one occasion Vice President Puhl said that this secrecy had not struck him as anything extraordinary, since after all secrecy is preserved about everything that occurs in a bank. In answer to a special question, Puhl then stated repeatedly that he did not notice at all that the Defendant Funk had supposedly spoken about preserving secrecy.
When, however, the affidavit of the witness Thoms of 8 May 1945 was read and pointed out to the witness Puhl, the latter finally stated here under oath on 15 May 1946 that it was plainly visible from this affidavit that the desire for secrecy emanated from the SS. The SS considered it important that this business should be transacted secretly. The SS, as Puhl said, had been the ones originally responsible for the imposition of secrecy. This was the literal conclusion of the witness Puhl's sworn statement and at the end of it he again confirmed that the obligation for secrecy was desired and imposed by the SS.
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The initial contradiction regarding this point between the statements of the Defendant Funk and those of the witness Puhl was hereby completely eliminated, Your Honors, in favor of the defendant. Puhl himself could no longer maintain his original assertion that it was Funk who had ordered the SS deposits to be kept secret. Therefore, in arriving at your verdict, you must proceed from the premise that the statement of the Defendant Funk is correct in this point also and deserves preference, for he has declared under oath from the very beginning and with the utmost certainty that he himself knew nothing about keeping anything secret and that he had never spoken of any such secrecy to Puhl, either. Moreover, there was absolutely no reason for Funk to say anything to Puhl about any special secrecy, since Funk was obviously of the opinion that the valuables involved were only of the kind which had to be turned in and confiscated, and which came within the regular lawful business of the Reichsbank and need not be kept secret, regardless of whether these things which had to be turned in were the property of a prisoner in a concentration camp or the property of a free individual.
It was never made clear by the evidence submitted why the SS on their part stressed the importance of preserving secrecy to Vice President Puhl and why, furthermore, the SS opened the deposit in the name of Melmer instead of in the name of the SS, and the Prosecution for their part did not attach any importance to clearing up this point. However, in any case, the demand of the SS for secrecy evidently did not strike Vice President Puhl as unusual any more than it did the witness Thoms who had nothing at all to do with the matter but who confirmed the fact that this secrecy was nothing unusual. But nevertheless, Your Honors, one thing is still a fact, namely, that nothing was kept secret from the numerous employees of the Reichsbank about exactly what kinds of objects were involved. On the contrary, the Reichsbank personnel was even entrusted by Vice President Puhl with the task of sorting the valuables delivered and converting them into cash at the pawn shop. Dozens of Reichsbank officials who regularly entered the vaults could see the various articles every day, and the Reichshauptkasse, an institution entirely separate from the Reichsbank, from time to time settled accounts for the conversion of valuables into cash with the Reich Ministry of Finance in a quite open and thoroughly routine way. Naturally, the Defendant Funk did not know, and still does not know today, whether and to what extent agreements had been reached between the Finance Minister and Reichsfuehrer SS Himmler for accounting for the gold articles to the Reich. He was never interested in it, and indeed it did not concern him.
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From all these facts, as shown by the evidence, one can readily conclude that Funk himself knew nothing about the things which were turned over to the Reichsbank at the time, and that even Vice President Puhl and Reichsbank Councillor Thorns did not think there was anything bad connected with the things, although Thoms, at least, had seen of what the deposits actually consisted.
For this reason there is no longer any need to examine the obvious question as to whether the initial statements of Puhl with regard to the deposits of the SS should not have been received with a certain skepticism from the very beginning. Puhl apparently had the understandable desire at least by his written affidavit to shift responsibility from himself to the shoulders of his President Funk in order to free himself of his own responsibility for the unpleasant facts of the case when he was told during his imprisonment that the gold articles of the SS consisted mostly of spectacle frames and gold teeth and had been taken from victims of concentration camps. At the beginning, even Puhl apparently did not see anything wrong in the whole business. For him the matter was an ordinary business transaction of the Reichsbank for the account of the Reich, which he dealt with in the same manner as he dealt with gold articles and foreign currency that had been confiscated by the Customs Investigation Office or the Office of Control for Foreign Currency or any other State authority. Gentlemen, whatever one may judge the responsibility of Vice President Puhl to be, at all events these things lie outside the responsibility of the Defendant Funk who is the only one with whom you are concerned in connection with this point here. In the period after this time Funk had only two or three very brief and unimportant conversations with Puhl regarding these gold deposits with a view to converting into cash gold coins and foreign currency delivered in the regular way. Outside of this, Funk did not concern himself at all with this whole matter any more. He knew even less about the matter than Puhl, and it is not without significance that Puhl declared here under oath that he would never have permitted these gold objects to be deposited in the Reichsbank at all if he had had the slightest notion that the things had been taken from concentration camp victims under criminal circumstances by the SS. If Vice President Puhl did not know that and could not have guessed it, then Funk could have known even less about it, and Puhl's initial statement which was to the effect that-as he said at the time-"the gold articles had been accepted by the Reichsbank with Funk's knowledge and agreement and had been converted into cash with the assistance of the Reichsbank personnel," was a grossly misleading statement to the Prosecution. Subsequently during his imprisonment when Puhl first learned of the true circumstances, he surely must have
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felt the same compunctions as Funk, however innocent the latter was in the case. In conclusion, Puhl declared here under oath that he would not have tolerated such transactions either, and that he would have brought the matter to the attention of the Directorate of the Reichsbank as well as to that of President Funk if he had known that the valuables were taken from victims of concentration camps and had been informed about the nature of these valuables.
In connection with this topic, therefore, I come to the following conclusion: The Reichsbank certainly transacted business for the account of the Reich, the subject matter of which was derived from criminal acts of the SS; but the Defendant Funk knew nothing of this. He would not have tolerated such transactions had he known the true circumstances. Therefore, he cannot be made criminally responsible for this.
The same is true, Your Honors, with regard to Reichsbank credits for the business agencies of the SS, concerning which I shall limit myself to a few sentences. In his written affidavit of 3 May 1946 the witness Puhl has given a completely misleading account of this matter also. For he stated originally that credits of 10 to 12 million Reichsmark furnished by the Gold Discount Bank upon the instruction of the Defendant Funk were used-and I am now quoting literally: "for financing production in SS factories by workers from concentration camps."
In his oral examination as a witness, Puhl then was asked whether Funk had any knowledge that persons from concentration camps were employed in these factories at all. In reply to this, Puhl declared literally: "I am inclined to assume this, but I am not in a position to know it." Therefore, he was not able to give any definite evidence concerning Funk's knowledge, but only to express a conjecture. In contrast to this, Funk's own statement in regard to this matter is quite clear and convincing. It was to the effect that he knew, indeed, about the request for credit by the SS, and that he even granted it, but that he knew nothing about the nature of the SS enterprises concerned and about the people who were employed in them. Funk stated this under oath. Accordingly, this credit transaction, which moreover occurred about 2 years before the affair of the SS gold deposits, that is, prior to 1940, incriminates neither the Defendant Funk nor the witness Vice President Puhl. At that time, in 1940, neither of them was acquainted with the conditions in the concentration camps. They only learned about them much later, that is, in the course of this Trial. Nor did the Defendant Funk know that persons from the concentration camps were working in the afore-mentioned SS factories for which the credit was intended.
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Gentlemen, in this connection it appears necessary to devote a few more sentences to a discussion of the question whether Funk ever visited a concentration camp. The witness Dr. Blaha, who was examined here, stated that Dr. Funk was once in Dachau in the first half of 1944. This visit was supposed to have occurred as a sequel to a conference of the Finance Ministers at Berchtesgaden, or in some other place in this region, in which Funk is said to have participated. Yet, Gentlemen, when he was examined here, the witness Dr. Blaha was unable to say that he had personally seen the Defendant Funk in Dachau, but had only heard from camp inmates at Dachau-that is, from other persons-that the Reich Minister of Economics, Funk, was with many other visitors allegedly present. He did not see him; nor would he have known him if he had. From the very beginning Funk himself has flatly denied this visit to Dachau. He also stated this under oath, and the affidavit made by his constant companion Dr. Schwedler (contained in the Funk document book under Number 13 submitted to you) proves beyond a doubt that Funk never was in a concentration camp, Dr. Schwedler is in a position to know this, as at that time he was the constant companion of the defendant and knew where Funk was from day to day. Moreover, Funk was never a Finance Minister, as the witness Dr. Blaha assumed, and never took part in a conference of Finance Ministers. Therefore, it appears beyond any doubt that what the witness Dr. Blaha stated here purely from hearsay is based on false information, or he has confused Funk with another visitor, which was very easily possible since the Defendant Funk was comparatively unknown to the public. The conclusion, therefore, is that Funk never visited a concentration camp and never personally became aware of the conditions prevailing in such camps.
Now, by this assertion Funk by no means wishes to allege that he knew nothing at all about the existence of concentration camps. Funk was naturally cognizant of the fact, just as almost any other German, that there were concentration camps in Germany after 1933; just as he knew that there were and still are penitentiaries, prisons, and other penal institutions in Germany.
But what he did not know, and what I want to stress here, was the very large number of such concentration camps and the hundreds of thousands, even millions, of their inmates. Equally unknown to him were the countless atrocities committed in these camps, which first became known only in this Trial. In particular it was only during this Trial that Funk learned that there were extermination camps which murdered millions of Jews. Funk had no knowledge of this; he has stated this under oath and it also appears absolutely credible, for one of the most important results of this
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Trial, in the opinion of the Defense, consists in providing proof of the fact that the German people in general knew nothing about the large number of concentration camps or the conditions within them, but that on the contrary those conditions were kept secret in such a cunning and cruel way that even the highest officials of the Reich including the very ministers knew nothing about them.
Your Honors, the Defense have now presented their views on that part of the Indictment which, had it been true, would have tragically incriminated the man Funk. One may think as one pleases about acts of violence during a political and economic struggle, especially in stormy revolutionary periods, but in the opinion of the Defendant Funk himself there can be no disagreement on one point, namely, with regard to the concentration camp atrocities committed for years, especially against the Jewish population. Anyone who participated in such unheard-of atrocities should be made to atone for them in the severest way, according to the opinion of the entire German people.
That is also the point of view of the Defendant Funk, which he expressed here on 6 May 1946 when he replied to the American prosecutor from the witness stand that as a man and as a German he felt deeply guilty and shamed for the crimes which Germans committed against millions of poor people.
Gentlemen, I have now reached the end of my consideration of the Funk case as far as criminal law is concerned, And that is the duty of the Defense in this Trial.
The examination of the evidence with regard to the Funk case has, in the opinion of the defendant, produced proof that a legal guilt, a criminal guilt, on his part does not exist, and that he can ask you for his acquittal with a clear conscience because he has never committed any criminal acts in his life.
Your task as judges will now be to find a just verdict for the Defendant Funk, a verdict which will not make him atone for the crimes of others, crimes he could not prevent and which he may not even have known about, but a verdict which only establishes the degree of his own guilt and not the degree of his political guilt, but of his criminal guilt which is the sole object of these proceedings. This verdict should be valid not only for today but also recognized as just in the future when we shall view these terrible events in the proper perspective and dispassionately as we would ancient history; a verdict, Your Honors, which will not only satisfy the nations which you represent, but which will also be recognized as just and wise by the German people as a whole; a verdict, finally, which is not only destructive, retaliatory, and which will sow hatred for the future, but one which will make it possible for the
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German people to move forward toward a happier future of human dignity and charity, of equality and peace.
THE PRESIDENT: Mr. Dodd, will you or Sir David deal with this. Sir David, I have got a document drawn up by the General Secretary which shows in the first place, in the case of the Defendant Goering, that there are four interrogatories which have been submitted, and to which the Prosecution has not objected. Is that right?
SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is no further comment with regard to that first application.
THE PRESIDENT: Yes. Then, with reference to the Defendant Ribbentrop, there are two affidavits to which there is no objection, and there are three further affidavits which have not been received, I understand.
SIR DAVID MAXWELL-FYFE: That is so, My Lord.
THE PRESIDENT: And one document to which the defendants' counsel wants to refer in its entirety, namely, TC-75, is that right?
SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. There is no objection to that.
THE PRESIDENT: Perhaps I had better go on to the end of the documents and then call upon Dr. Horn for what he has got to say about those three, because as far as I can see, there are only these three documents and an affidavit for Seyss-Inquart from a man called Erwin Schotter, and another from a man called Adalbert Joppich, which have not yet been received.
SIR DAVID MAXWELL-FYFE: That is so, My Lord.
THE PRESIDENT: And three letters from Seyss-Inquart to Himmler which have not yet been produced.
SIR DAVID MAXWELL-FYFE: That is so, My Lord.
THE PRESIDENT: Also, in the case of Fritzsche there are two interrogatories of Delmar and Feldscher which have not yet been received.
SIR DAVID MAXWELL-FYFE: My Lord, with regard to the three letters of the Defendant Seyss-Inquart, they have been received, but they have not yet been translated into French, and I think, My Lord, the simplest way would be if the Tribunal took it that provisionally there is no objection but that the French Delegation reserve their right to make any objection if, upon receiving the translation, they find there is any objection to make.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: My Lord, the French Delegation will let the Tribunal know if they find there is any objection.
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THE PRESIDENT: Yes. Now, with reference to the rest, so far as the Prosecution are concerned, what are the objections, if any?
SIR DAVID MAXWELL-FYFE: My Lord, I think the only objection there is concerns the application of Dr. Servatius for the Defendant Sauckel. Your Lordship sees that after the interrogatories granted by the Tribunal there are certain documents which were introduced on 3 July by the Defendant Sauckel to be considered by the Tribunal, and then there is a number which is lettered "A" to `'I." The Prosecution suggests that these documents are cumulative of the large number of documents already introduced on behalf of this defendant, and, My Lord . . .
THE PRESIDENT [Interposing]: Just one minute, Sir David. These documents "A" to "I," were they applied for after the case had been closed?
SIR DAVID MAXWELL-FYFE: They were submitted on 3 July, Sir. That would be after the case had been closed.
THE PRESIDENT: But that was at the time, was it not, when we were asking for supplementaries?
SIR DAVID MAXWELL-FYFE: Yes, at the very end.
THE PRESIDENT: That very day?
SIR DAVID MAXWELL-FYFE: Yes. My Lord, I am sorry, but the case was not technically closed, for that day was open for any defendant to put in.
THE PRESIDENT: Are these documents which you have just been referring to-"A" to "I"-are they already all in the document book?
SIR DAVID MAXWELL-FYFE: Dr. Servatius tells me they are.
My Lord, I have just been having a word with Dr. Servatius and he says that the one to which he attac0hes the greatest importance is "A," the decree by the Defendant Sauckel as to return transportation of sick foreign workers. My Lord, I am quite prepared on that assurance by Dr. Servatius not to make any objection to number "A," and Dr. Servatius, on the other hand, says that he does not press for the others.
My Lord, there is another application which has just come in on behalf of the Defendant Sauckel for a document. It is an affidavit by the defendant himself, dated 29 June 1946. The Prosecution have no objection to the application.
My Lord, I think the only other matter with regard to the Defendant Sauckel is with regard to an affidavit from a witness called Falkenhorst. My Lord, that again, the Prosecution submits, is cumulative.
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THE PRESIDENT: You say Falkenhorst?
SIR DAVID MAXWELL-FYFE: Falkenhorst, Sir. My Lord, it is the very last application on my list.
DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): Mr. President, may I make a statement concerning the witness Falkenhorst? This witness was called for Bormann; I waived his examination and submitted this affidavit with the approval of the Tribunal, and since, in my opinion, it was approved, I waived the witness. I assume that this is quite clear and is confirmed by the Prosecution also.
THE PRESIDENT: Do you mean, Dr. Servatius, that the affidavit from Falkenhorst had already been granted before?
DR.SERVATIUS: I assume it was granted at that time. The witness was waiting outside and I was asked whether I would like to question him, and I said in reply that I had an affidavit which was limited to one particular incident and it would be sufficient if I could submit the affidavit. Me was the last witness who was supposed to be examined here, after the end of the actual hearing of evidence.
SIR DAVID MAXWELL-FYFE: My Lord, I do not insist in the opposition in these circumstances. My Lord, that is all the comment the Prosecution have to make.
THE PRESIDENT: What about these two affidavits asked for by Dr. Steinbauer from Erwin Schotter and Adalbert Joppich?
SIR DAVID MAXWELL-FYFE: My Lord, we have not got these yet. As I understand it, they have been admitted by the Tribunal subject to any objection, and I am afraid we cannot tell until we have seen them.
THE PRESIDENT: I see; well, then for the rest you have no other objections? ,
SIR DAVID MAXWELL-FYFE: No other objections.
THE PRESIDENT: Sir David, we have just had another document placed before us which contains an application on behalf of the Defendant Sauckel to call as a witness his son Friedrich Sauckel. The Prosecution has objected to that on the ground of irrelevance and cumulativeness.
SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the position.
It did not seem, on consideration of the outline of the evidence, that the evidence of the defendant's son would contribute anything fresh.
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THE PRESIDENT: And that application was made after the 3 July? No, I see that is wrong. It was submitted before, but it was not mentioned on 3 July.
DR.SERVATIUS: Mr. President, it was an application to bring the witness here from England, since presumably he can give information regarding a number of things. I have not yet made a formal application. It was just a request to have him brought from England to Nuremberg for the purpose of finding out whether he knows anything of importance, as he claims.
SIR DAVID MAXWELL-FYFE: My Lord, I would not make objection to the defendant's son being brought here for the purpose of Dr. Servatius' having a talk with him and seeing whether he can contribute anything.
THE PRESIDENT: The difficulty that these sorts of applications put the Tribunal in is that the case never closes.
SIR DAVID MAXWELL-FYFE: Yes, My Lord, I quite agree.
DR. SERVATIUS: I did not know that the witness was in England. He was a prisoner and there had been no news about him previously.
THE PRESIDENT: Then, Sir David, do we have an affidavit from the Defendant Sauckel himself which you have already dealt with?
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: Then there is an affidavit by the Defendant Jodl on behalf of Kaltenbrunner; the application has been received at the General Secretary's office on 5 July.
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: That was after the last date when the defendants' counsel were asked for their applications.
SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid I have not been able to collect the views of the Prosecution on that point.
My Lord, the substance of that affidavit was contained in Dr. Kauffmann's speech. I do not think it really has any materiality, I mean that there is any real-that there can be any objection to the affidavit, because I am almost positive I remember this passage occurring, or an equivalent passage, giving the Defendant Jodl's views on Kaltenbrunner in Dr. Kauffmann's Speech. My Lord, therefore, I do not think we should occupy time discussing it and therefore I think we should let the affidavit go in.
THE PRESIDENT: Very well. Then there is an application from the Defendant Rosenberg for a document entitled "Tradition in Present Times." That has been objected to as cumulative.
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SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: Dr. Thoma, are you wanting to say anything in support of that application or is it sufficiently covered by your speech?
DR. THOMA: I am of the opinion that it has been sufficiently dealt with in my speech.
THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one from Ribbentrop and one from Schulze, not yet put in. Do you want them?
DR.MARTIN HORN (Counsel for Defendant Von Ribbentrop): Mr. President, there must be some mistake about the Schulze affidavit. I have not submitted any Schulze affidavit or made any application for it.
THE PRESIDENT: It was a mistake. Then, as to Ribbentrop's affidavit, are you asking as to that or have we already dealt with that?
DR. MORN: No, I am asking that official cognizance be taken of the affidavit of Ribbentrop, and of Document TC-75. The other two affidavits of Thadden and Best have already been approved.
THE PRESIDENT: Yes. Why do you desire the Defendant Ribbentrop to make an affidavit? He has given his evidence in full. Is it something that has arisen since?
DR. HORN: The Defendant Ribbentrop only commented on a few documents which were submitted to him during his cross-examination when he had an opportunity to speak only very briefly about them. I did not want to make my final speech any longer with a detailed discussion of the other documents and, therefore, I have submitted this affidavit and beg the Tribunal to approve it.
THE PRESIDENT: Then, with regard to TC-75 .. .
SIR DAVID MAXWELL-FYFE: My Lord, that is one of our original British documents. I have no objection to Dr. Horn using it.
THE PRESIDENT: How about the translation, though? I suppose it is a German document, is it not?
DR.HORN: Yes, it is a German document which was only translated in part and I have referred to the entire contents in my final plea.
THE PRESIDENT: Is it a very long document or not?
DR.HORN: No, it has only nine pages, Mr. President. The Prosecution submitted one page of the document to the Court in evidence. Then later I ascertained that there were two copies of the document. I then took the second copy, which represents the
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complete document, and submitted it to the Tribunal, and have had it translated.
THE PRESIDENT: It has been translated?
THE PRESIDENT: Very well then, that is all right then.
Now, Dr. Steinbauer, what about these two affidavits that you are asking for, one from Erwin Schotter and another from Adalbert Joppich?
DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): I have submitted the two documents for translation and since the Translation Division is very busy I have not received the translation yet. But I should like to submit the two originals to the Tribunal under the numbers already given, Seyss-Inquart-112 and 113.
THE PRESIDENT: Has the Prosecution seen the substance of the affidavits or not?
SIR DAVID MAXWELL-FYFE: No, My Lord, we have not. My Lord, they are very short affidavits. I will ask someone to read them in German through the day and let the Tribunal know before the Tribunal rises tonight.
THE PRESIDENT: Was the application made before 3 July, or when was it made?
DR. STEINBAUER: Yes, on 3 July exactly. I received both of these two documents on 3 July through the General Secretary and presented them on the same day.
THE PRESIDENT: The Tribunal will consider the matter then and they will be glad to hear from the Prosecution if they have any objection.
DR. STEINBAUER: Mr. President, may I present one more document on this occasion? The Tribunal had approved the interrogation of Dr. Renter and the day before yesterday I received the answer with the questions of the Prosecution...
THE PRESIDENT: What was it you were saying, Dr. Steinbauer?
DR. STEINBAUER: That I received the approved document containing the interrogation of the witness, Dr. Renter, on Saturday in a German and English translation. I should like to submit the original to the Tribunal under Number 114.
THE PRESIDENT: What is the name of the person who was interrogated?
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DR. STEINBAUER: The physician, Dr. Gero Renter. He was questioned about health conditions in the Netherlands. The Tribunal expressly granted me that interrogatory.
THE PRESIDENT: Well, that will be considered, then.
DR.STEINBAUER: Then I shall submit it to the Court under Number 114.
THE PRESIDENT: Sir David, perhaps you can look at that later.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I understood that the Tribunal had already approved and that this was just putting in the answer.
THE PRESIDENT: Yes, that is all.
SIR DAVID MAXWELL-FYFE: Then, My Lord, there can be no objection.
THE PRESIDENT: I ought to say that in order to save time, all these documents which we are now dealing with must be taken to be offered in evidence now because some of these defendants' cases have been finally dealt with.
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: And they must, therefore, be given the appropriate numbers as exhibits, and defendants' counsel must see to that. They must give numbers to them and give them in with those numbers to the General Secretary so that the documents will be identified as exhibits on the record.
SIR DAVID MAXWELL-FYFE: My Lord, I appreciate that. I gather that Dr. Steinbauer has just given that the Number 114.
THE PRESIDENT: Yes, and the same applies to all the other defendants' counsel, the counsel for Goering and Ribbentrop and the counsel for Raeder and the other defendants, because these are dealing with a considerable number of interrogatories and affidavits' all of which ought to have exhibit numbers.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.
My Lord, Dr. Siemers just wanted to know that his applications were covered. I think he is quite safe.
THE PRESIDENT: Yes. Well, then, the only thing that remains is Dr. Fritz's on behalf of the Defendant Fritzsche. There are two interrogatories which have not been received, as I understand, from Delmar and Feldscher. Those have been granted, and the interrogatories and the answers will be put in when you get them.
SIR DAVID MAXWELL-FYFE: That is the way I understand it, My Lord.
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THE PRESIDENT: Well, then, the Tribunal will consider all these matters and make the appropriate order upon it.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.
THE PRESIDENT: We will adjourn now. Wait a minute, wait a minute!
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): In the case of the Defendant Von Papen there are still a number of interrogatories which have not been received. In the meantime, I have received four interrogatories with answers, but they are still with the Translation Division. Three interrogatories have not yet come back. I request an opportunity to present them later on.
THE PRESIDENT: They have been granted before, I suppose? Have they been granted?
DR. KUBUSCHOK: Yes, they had already been granted, with the exception of one affidavit which I have also dealt with here but which has not yet been translated and has been in the Translation Division for some time.
THE PRESIDENT: Yes, but the application for that interrogatory had been allowed, I suppose?
DR. KUBUSCHOK: I presented this application recently. I was told to have this affidavit translated, but I have not yet received the translation. I shall submit this document together with the others as soon as I receive them from the Translation Division.
THE PRESIDENT: Very well. We will adjourn now.
[A recess was taken.]
THE PRESIDENT: Go on, Dr. Dix.
DR. DIX: Mr. President, Gentlemen of the Tribunal A mere glance at the dock reveals the singularity of Schacht's case and the story of his imprisonment and defense. There in the dock sit Kaltenbrunner and Schacht. Whatever the powers of the Defendant Kaltenbrunner may have been, he was in any case Chief of the Reich Security Main Office. Until those May days of 1945, Schacht was a prisoner of the Reich Security Main Office in various concentration camps. It is surely a rare and grotesque picture to see jailer and prisoner sharing a bench in the dock. At the very start of the Trial this remarkable picture alone must have given cause for reflection to all those participating in the Trial: judges, prosecutors, and defense counsel alike.
Schacht was banished to a concentration camp on the order of Hitler, as has been established here. The charge against him was
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high treason against the Hitler regime. The judicial authority, the Peoples' Court, headed by that bloodthirsty judge, Freisler, would have convicted him, had not his imprisonment turned into detention by the victorious Allied Powers. Since the summer of 1944 I was assigned to defend Schacht before Adolf Hitler's Peoples' Court; in
the summer of 1945 I was asked to conduct his defense before the international Military Tribunal. This, too, is in itself a self-contradictory state of affairs. This, too, compels all those participating in the Trial to reflect on the personality of Schacht. One involuntarily recalls the fate of Seneca; Nero, as a counterpart to Hitler, put Seneca on trial for revolutionary activities. After the death of Nero, Seneca was charged with complicity in Nero's misgovernment and cruelties, in short, with conspiring with Nero. A certain wry humor is not lacking in the fact that Seneca was then declared a pagan saint by early Christianity as early as the fourth century. Although Schacht does not indulge in such expectations, this historical precedent nevertheless forces us to remain always conscious of the fact that the sentence to be pronounced by this High Court will also have to be justified before the judgment seat of history.
The picture of the Third Reich has been revealed to the Tribunal in a thorough and careful presentation of evidence. It is a picture with a great deal of background. An opportunity was given to depict this background also, as far as it was possible within the limits of such a thorough-going investigation entailing a judicial presentation of evidence which, to be sure, though thorough enough, was nevertheless concluded as soon as possible according to the requirements of the Charter.
In order to learn what it was like under Hitler in German countries, there is still enough which has been left to the intuition of the Court. It is not possible, and never will be possible, to understand Hitler Germany from a constitutional point of view, according to the scholarly conceptions and views of people with a legal mind. As a scholarly topics "The Constitution under Adolf Hitler" is a locus a non lucendo. Mark my words, "The Constitution"-that is, the reduction of the Hitler State to a legal system, and not the attempt as made in the final plea by Jahrreiss' to explain the tyranny of a despot under the aspect of legal research. A scientific sociology of the Third Reich would, although feasible, be very difficult and therefore has not yet appeared.
Only very few Germans living in Germany knew the conditions and the distribution of power within those circles of people who were seemingly or actually called upon to contribute their share toward the formation of a political will. Most Germans will be surprised when this picture is unveiled. How much less possible
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was it for a foreigner to form a correct judgment of the constitutional sociological, and inner political conditions of Hitler Germany at the time when the Indictment was presented. But a correct judgment of these things was the prerequisite for an Indictment correctly founded in both fact and law.
I am of the opinion that the members of the Prosecution were thereby confronted with a task which defied solution. I am furthermore of the opinion that the Prosecution would never have presented their criminal charges against the defendants under the count of a conspiracy if they had been able to see the distribution of political power in Hitler Germany in the same way as this may perhaps be today possible, although with great difficulty for an intelligent, politically gifted observer and listener at this malt
A conspiracy within the meaning of the Indictment was, as a practical matter, not possible in Adolf Hitler's Third Reich, as my colleagues have already pointed out. The only thing possible in the Third Reich' was a conspiracy by the opposition against Adolf Hitler and the regime. Several such conspiracies were formed, as was here proven. The relationship between conspirators is somewhat different than that between an accomplice and the chief perpetrator. The part to be played by the individual conspirator in the execution of the common plan may vary. Some, or a single one, of the conspirators may hold a leading position within the conspiracy. At all times, however, co-operation is necessary. Common usage of the term in itself precludes speaking of a conspiracy when only one commands and all the others are merely executive agents.
I am, therefore, of the opinion that that which was defined as a crime here in this had can never constitute the elements of a conspiracy according to criminal law. Other legal factors which might enter into the question are of no interest to me as defense counsel for the Defendant Schacht, because no criminal charge whatsoever can be brought against Schacht personally, as an individual, and without connecting him with deeds of others-in other words merely on the basis of his own actions. Schacht himself desired only the permissible and the beneficial, and his actions served these intentions. To the extent that he erred politically, he is in all candor prepared for the verdict of history. Yet even the greatest dynamics of international law cannot penalize political error. If it did this the profession of the statesman and politician would become impossible. World history is more affected by mistakes and errors than by correct perceptions. According to Lessing's wise words, the perception of absolute truth is God's privilege. There remains for man as his greatest blessing only the
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quest for truth. Nescis, mi Eli, quanta stultitia mundus regitur, as old Axel Oxenstierna once said, and he was probably right.
Schacht declared here that he felt that he had been most grossly deceived by Adolf Hitler. He thereby admitted that certain of his decisions and actions had been wrong. The Prosecution disputes Schacht's good faith and imputes to him the doles of having deliberately worked for a war of aggression as Adolf Hitler's financial agent, thereby becoming by implication criminally responsible, from the point of view of the conspiracy, for all the cruelties and atrocities which were committed by others during this war. The Prosecution itself was not able to produce any direct proof of these allegations. They attempted to do so first by means of alleged documentary evidence in the form of misinterpreted statements by Schacht, torn from their context. For this the Prosecution referred to witnesses who could not be made available for examination before this Court because some of them were absent and some had died. I recall, for example, the affidavits of Messersmith and Fuller, and Dodd's diary notes. Their lack of value as evidence was clearly set forth to the Tribunal by Schacht during his examination. In the interest of saving time I do not wish to repeat things which have already been said, and which surely must still be within the recollection of the Court.
The Prosecution further attempted to base its charges on actions of Schacht which had been established beyond reasonable doubt. All these arguments of the Prosecution are mistaken conclusions from allegedly incriminating circumstances. I shall confine myself to an enumeration of the most essential wrong conclusions. The others either result from these directly or by analogy.
Schacht was opposed to the Treaty of Versailles, says the Prosecution. That he was indeed. The Prosecution does not hold this opposition in itself against him. However, it concludes from this that Schacht wanted to do away with the treaty by force. Schacht favored colonial activity, says the Prosecution. He did so indeed. They do not reproach him for this, either, but conclude from this fact that he wanted to conquer the colonies by force, and so it goes on.
Schacht as President of the Reichsbank and Minister of Economics co-operated with Hitler, consequently he endorsed Nazi ideology. Schacht was a member of the Reich Defense Council, consequently he was in favor of a war of aggression. Schacht helped to finance rearmament during its first phase until early in 1938, consequently he wanted war. Schacht welcomed the union with Austria, consequently he approved of a policy of violence against that country. Schacht devised the "New Plan" in commercial policy, consequently
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he wanted to procure raw materials for armament. Schacht was concerned about the possibilities of livelihood for the excess population in central Europe, consequently he wanted to attack and conquer foreign countries and to annihilate foreign peoples. Over and over again Schacht warned the world against an anti-German policy of oppression and the moral defamation of Germany, consequently Schacht threatened war. Because no written evidence has been found that Schacht resigned from his official positions as a result of his antagonism to war, the conclusion is that he resigned from these official positions merely because of his rivalry with Goering.
The list of these false conclusions could be continued ad infinitum. It finds its culmination in the fallacy that Hitler would never have come to power if it had not been for Schacht, that Hitler would never have been able to rearm if Schacht had not helped. But, Gentlemen, this kind of evaluation of evidence would convict an automobile manufacturer because a taxi driver, while drunk' ran over a pedestrian. In his speeches or writings Schacht never advocated violence or even war. It is true that after Versailles he pointed out again and again the dangers which would result from the moral outlawing and economic exclusion of Germany. In this opinion he is in the best international company. It is not necessary for me to cite before this Tribunal the numerous voices, not of Germans, but of members of the victor states, heard soon after the Versailles Treaty and all in the same tone as the warnings of Schacht. Moreover, the correctness of these objections to that treaty will be absolutely valid for all time. At no time did Schacht however recommend, or even declare possible, other ways than those of a peaceful understanding and collaboration. As an avowed economic politician, it was clearer to him than to anybody else that war can never solve anything, not even if it is won. In all of Schacht's utterances his pacifist attitude was expressed again and again; perhaps the shortest and most striking of them was that statement at the Berlin Congress of the International Chamber of Commerce, when Schacht in the presence of Hitler, Goering, and other exponents of the Government called out to the assembly: "Believe me, my friends, all nations desire to live, not to die!" This pronounced pacifist attitude of Schacht is indeed confirmed by all witnesses and affidavits. .
For the few in the world-and I purposely say in the world, not only in Germany-who from the very beginning recognized Hitler and his Government for what they were, it certainly was a cause for anxiety and sorrow, or at the very least puzzling' to see a man like Schacht placing his services and his great professional ability at the disposal of Adolf Hitler after he had come to power. The witness Gisevius also shared this anxiety, as he has testified here.
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Later on he convinced himself of Schacht's honorable intentions through the latter's upright and courageous behavior in 1938 and 1939. In his interrogation Schacht outlined for us the reasons which caused him to act in this manner. I need not and do not wish to repeat them in the interest of saving time. The evidence has not shown anything which would refute the veracity of this presentation by Schacht. On the contrary, I only refer for example to the affidavit of State Secretary Schmid, Exhibit Number'41 of my document book, containing detailed statements on this subject on Page 2, which are in complete agreement with Schacht's description. A consideration of the remaining testimony and affidavits as a whole leads to the same result. In order to understand the manner in which Schacht acted at that time both directly after the seizure of power as well as after he had recognized Hitler and his disastrous activity it is absolutely necessary to form a clear picture of Adolf Hitler's pernicious spell and his system of government. For both are the soil in which Schacht's actions grew, and by which alone they can be explained. I realize that one could speak about this for days and write volumes about it if one wished to treat the subject exhaustively. However, I also realize that before this Tribunal short references and spotlights will be sufficient in order to gain the Tribunal's understanding.
The disintegrating collapse of imperial Germany in 1918 presented the German people, who were heterogeneously composed and had never become an organic unit, with a parliamentary democratic form of constitution. I venture to assert that all political thinking which is not directed by selfish motives must strive for democracy, if this is also understood to include the protection of justice, tolerance toward those of different convictions, freedom of thought, and the political development of humanity. These are the highest timeless ideals which, however, in their very constitutional forms actually harbor dangers in themselves. When democracy appeared for the first time on the European continent, reactionary political thinkers like Prince Metternich and the like opposed every democratic impulse, because they saw only the dangers of democracy and not its educative qualities and historical necessity. In pointing to these dangers they were unfortunately right. Perhaps the cleverest nation which ever lived, the Greeks of antiquity, had already pointed out the danger of democracy developing through demagogy to tyranny; and probably all philosophizing political thinkers from Aristotle to Thomas Aquinas, and down to the present time, have pointed out the danger of this development. This danger becomes all the greater if democratic freedom in the theoretical constitutional sense does not arise and grow organically, but becomes more or less a chance gift to a nation.
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En fait d'histoire it vaut miens continuer que recommences, a great French thinker once said. Unfortunately, this has made Germany the latest and, it is to be hoped, the last example of a tyranny of a single despot established by means of a diabolical demagogy. For there is no doubt that the Hitler regime was the despotism of an individual, whose parallel is to be found only in ancient Asia. In order to understand the attitude of any individual toward this Government-not only that of Schacht and of the Germans, but that of any person and any government in the world which has collaborated with Hitler, and on the part of the foreign countries such collaboration based on confidence was much greater toward Hitler than toward any government of the intermediate Reich or of the State of the Weimar Constitution-it is necessary to analyze the personality of this despot, this political Pied Piper, this brilliant demagogue who, as Schacht testified here in his interrogation with understandable agitation, not only deceived him, but also the German people and the whole world. In order to accomplish this deceit, Hitler was forced to bring under the spell of his personality innumerable clever and politically trained individuals besides Schacht, even those outside the German frontiers. He succeeded in doing this even with prominent foreigners, including those in leading political positions. I shall refrain from citing names and quotations to prove this point. The fact is generally known to the Tribunal..
I shall now skip the next lines and continue on Line 10 of the same page. How was this influence of Hitler possible, both in Germany and abroad? Of course, Faust also succumbed to Mephistopheles. In Germany, all the circumstances of the conditions prevailing at that time, which have been described here in the evidence given by Schacht and others, favored this influence. The complete collapse of the parliamentary party system and the resulting necessity, felt already at the time by the existing Government, of having to rule by emergency decrees enacted without parliamentary participation, thus establishing a dictatorship of ministerial bureaucracy as a forerunner of the Hitler dictatorship, produced in nearly every quarter a cry for stronger leadership. The economic crisis and unemployment opened the ears of the masses, as misery always does, to demagogic insinuations. The complete lethargy and inactivity of the center and leftist parties of the time also created among critical and intelligent observers, of whom Schacht assuredly was one, the inward readiness and longing to welcome spirited political "dynamics" and activity. If someone, like the sharp-witted and perspicacious Schacht, already at that time discovered faults and dark sides, he could hope, as Schacht did, by his very active penetration into the Movement or by co-operation with
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leading State departments quickly and easily to combat these shady aspects, which in any case beset every revolutionary movement. "When the eagle soars, vermin settle on his wings," replied the late Minister of Justice Gurtner, quoting from Conrad Ferdinand Meyer's novel Pescara, when I pointed out these shady sides to him after the seizure of power. These considerations are in themselves reasonable and plausible. The fact that they contained a political error even in Schacht's case does not deprive them of their good faith and honest convictions. However, we ought not to forget that here, during the proceedings, we heard of a message from the American Consul General Messersmith, dating from 1933, in which he joyfully hails the report that decent and sensible people are now joining the Party too, as this gave reason to hope that radicalism would thereby cease. I refer to the relevant document submitted here by the Prosecution, Document Number ~198, report Number 1184 by the American Consul General Messersmith to the Secretary of State in Washington.
"Since the election on March 5th, some of the more important thinking people in various parts of Germany have allied themselves with the National Socialist movement, in the hope of tempering its radicalism by their action within rather than from without the Party."
But what Messersmith very reasonably says of ordinary Party members of that time, naturally applies also, mutatis mutandis, to the man who offered his co-operation in a leading Government post. The reasons Schacht gave for his decision at the time to accept the post of President of the Reichsbank and later of Reich Minister of Economics are, therefore, thoroughly credible in themselves and have no immoral or criminal implication. Schacht, indeed, has acknowledged his activity. He only lacked the intuition to recognize at thee outset the personalities of Hitler and some of his henchmen for what they were. But that is no punishable act; neither does it indicate any criminal intention. This intuition was lacking in most people both within and without the German frontiers. The possession of intuition is a matter of good fortune and a divine gift unfathomable by reason. Every man has his limitations, even the most intelligent. Schacht is certainly very intelligent, but in this case reason prevailed at the cost of intuition. In the last analysis this process can only be fully appreciated when those mysterious forces are taken into account which affect world events, and of which Wallenstein says: "The earth belongs to the evil spirit, not to the good" where he speaks of "the sinister powers of evil which lurk in the bowels of the earth." Adolf Hitler was a prominent example of these powers of darkness and his influence was all the more nefarious since he
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lacked the grandeur which accompanies Satan. He remained a half-educated, completely earth-bound bourgeois who also lacked any sense of the law. The Defendant Frank said truly of him that he hated jurists, because the jurist appeared to him as a man of law, as a disturbing factor in the face of his power. Thus he could promise everything to everybody and not keep his promise, for a promise to him meant only a technical instrument of power, and signified no legal or moral obligation.
Neither was the pernicious influence of Himmler and Bormann detected by Schacht at this time, or probably by anybody else. Yet all those crimes that are now covered by the Indictment matured within this very trio, for to Himmler politics were identical with murder, and in his purely biological view he regarded human society as a breeding farm and never as a social and ethical community. A personality like Adolf Hitler, and his effect upon men, even including such intelligent men as Schacht, can only be correctly judged by following the prophetic vision of the poet, as I have already just tried to do, thereby achieving insight otherwise inaccessible to the mind of man. The demon undoubtedly became incarnate in Adolf Hitler to the detriment of Germany and the world, and perhaps I can summarize by quoting-and this is absolutely necessary for an understanding of Schacht's conduct, as well as that of all those others who deliberately and in all purity of heart offered their services to Hitler-a passage from Goethe, which in a few words sums up and discloses the mystery. Here lies the key to the understanding of all those who flocked to follow Hitler. May I quote from "Poetry and Truth," Part 4, Book 20, as follows:
'Although the demoniac can manifest itself in everything material and immaterial and indeed be singularly apparent in beasts, it assumes its most extraordinary form when associated with man, and constitutes a power which if not contrary to is yet a disturbing element in the moral world order. There are innumerable names for the phenomena which are brought to light in this way. For all philosophies and religions have tried both in prose and in poetry to solve this riddle and to dispose of the matter once and for all, which they may well continue to do in the future. But the demoniac assumes its most dreadful form when it manifests itself preponderantly in any one human being. During my lifetime I have had occasion to observe several such persons, either closely or from afar. They are not always the most distinguished persons, either in intellect or in talent, and they rarely excel by their goodness of heart; yet a tremendous force emanates from them, and they exercise an incredible power over every creature and even over the elements, and
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none can tell how far such influence will extend. No coalition of moral forces can prevail against them; it is in vain that the better part of humanity attempts to put them in disrepute as victims of deception, or as impostors. The masses are attracted to them. They seldom or never find contemporary equals, and nothing short of the universe itself, against which they begin the fight, can overcome them; and these observations may perhaps have inspired that curious but monstrous saying: Nemo contra Deum, nisi Deus ipse."
I think I have demonstrated that the fact that he served Hitler does not incriminate Schacht and that it can by no means be concluded from this act that at that time he embodied the criminal deeds of Hitler and his regime into his own intentions. He did not even think them possible. Therefore he followed no dolus eventualis either; on the contrary: Insofar as the violent character of the regime disturbed him he believed he would be able, through his appointment to an important post, to contribute to the abolition and prevention of those attendant phenomena of which he also disapproved, and to aid Germany's recovery within his sphere of activity in a decent and peaceful manner.
That being the case, not the slightest reproach could be made against him for not only serving Hitler after the seizure of power, but also for helping him to gain control. This latter charge is, therefore, completely immaterial as evidence of criminal behavior or of criminal intent. However, there is no need for this argument at all, since as a matter of fact Schacht did not help Himmler to gain power. Hitler was in power when Schacht began to work for him. Hitler's victory was already assured when the July elections of the Reichstag in 1932 brought him no less than 230 seats. These represented about 40 percent of the total votes. There had been no such election result for any party for decades. But the immediate political future was thereby established under a Government headed by Hitler, thanks to the very rules of the German democratic Constitution and every other democratic constitution. Any other path was beset with the danger of civil war.
It was only natural that Schacht, who at that time honestly believed in Hitler's political mission, did not wish to take this path. It was likewise natural that he should take an active part whenever he believed that thereby he might be able to prevent harmful radicalism in the economic political domain. A wise French statesman says:
"Every epoch confronts us in some way with the task of creating benefits or preventing abuses. For this reason, in my opinion, a patriotic man can and must serve any government which his country appoints for itself."
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By serving Hitler2 Schacht, in his opinion, was serving his country and not Hitler. This opinion may have been the greatest of mistakes, and it has subsequently revealed itself as completely erroneous as far as Hitler was concerned, yet Schacht can never be criminally charged for acting as he did at that time, neither directly nor circumstantially. And indeed we must not forget that the Hitler of 1933 not only seemed to be a different man from the Hitler of 1938 or even of 1941, but actually was different. Schacht has already referred during his interrogation to this transformation, which was caused by the poison of mass worship. Moreover' the transformation of such personalities is a psychological law. History proves this in Nero, Constantine the Great, and many others. In the case of Hitler there exist many irreproachable witnesses for the truth of this fact, irreproachable in the sense that a purpose or an intention to violate the law, to raise terrorism to a principle, and to attack mankind with a war of aggression, can never be imputed to them. I merely wish to quote a few of them. I could multiply the quotations a hundredfold. In 1934 Lord Rothermere wrote an article in the Daily Mail, entitled: `'Adolf Hitler from Close By." I quote only a few sentences:
"The most prominent figure in the world today is Adolf Hitler. . . Hitler stands in direct line with those great leaders of mankind who seldom appear more than once in two or three centuries . . . it is delightful to see that Hitler's speech has considerably brightened his popularity in England."
THE PRESIDENT: Dr. Dix, I thought the Tribunal had refused to allow the writings of Lord Rothermere to be put in evidence or used.
OR DIX: I interpreted the decision of the High Tribunal barring quotations from Lord Rothermere from the document book to mean-and this is also the reason given in the Indictment-that this was a matter for argument which should not be submitted in evidence as a fact, and that it would be irrelevant in the hearing of the evidence that Rothermere and others were of this opinion; and from this I drew the conclusion-and I am still of the opinion today that this conclusion is correct-that in the course of my argument, that is, in the course of my appraisal of the evidence, I could cite passages from the literature of the entire world, insofar as it is known, in order to support a line of thought. That Rothermere said that is not a fact which I want to submit to the Tribunal as evidence, but only in support of the assertion forming part of my argument that not only Schacht but also other intelligent and prominent people, even outside of Germany, at first had the same opinion of Hitler's personality...
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THE PRESIDENT: Dr. Dix, the Tribunal has already indicated its refusal to allow this to be used as evidence, because it does not pay any attention to the opinions expressed by this author. Therefore, we think it would be better if you went on to some other part of your argument.
DR. DIX: Then I ask-the Tribunal surely has a translation of my final speech before it-that I be allowed to quote a short passage from Sumner Welles, and then a passage, which seems very important to me, from the book written by the last British Ambassador. I should be very grateful if I could quote both of these two passages for, if one wants to prove that even an intelligent man can hold a certain opinion and is entitled to hold it, then I do not know but what the most obvious and convincing proof for that lies in the fact that other intelligent and completely objective people also held the same view. I shall lose an important point of my argument if I am not permitted to quote the two short passages, and I should like to ask that they be heard briefly; it is only the quotation from Sumner Welles and Henderson.
THE PRESIDENT: I have not said anything about Sumner Welles. It was only because we had expressly excluded the writings on this subject of Lord Rothermere that we thought it was inappropriate that you should quote him. I do not think we excluded these other books to which you here refer in your speech and therefore we thought you might go on to that.
DR. DIX: I quote from Sumner Welles' book Time for Decision published in New York in 1944:
"Economic circles in each of the western European democracies and the New World welcomed Hitlerism."
And it is only right, when Great Britain's last Ambassador in Berlin, even during the war, states on Page 25 of his book:
"It would be highly unjust not to recognize that a great number of those who joined Hitler and worked for him and his Nazi regime were honest idealists."
Further on he makes this interesting remark:
"It is possible that Hitler was an idealist himself in the beginning."
And the Government of the United Kingdom would surely never have concluded a naval treaty with Hitler Germany in April 1935, and therewith have contributed in the interests of justice to a modification of the Versailles Treaty, if they had not had entire confidence in Hitler and his Government. Finally, the same holds true for all the international treaties concluded by Hitler, including the treaty concluded with Russia in August 1939. And it is a striking fact, even today, that so intelligent a man of such high
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ethical standing as the late British Prime Minister Chamberlain declared in a speech as late as January 1939-at a time when Schacht had already long been treading the dark paths of conspiracy against Hitler, in the face of the events of 1938-that he had gained the definite impression from Hitler's recent speech that these were not the words of a man who was making preparations to plunge Europe into another war. I do not doubt that these words were not spoken as a matter of tactics, but reflected the speaker's true opinion. Such examples could be quoted in great number. Is it desired to deny to a German, in 1933 and the following years, the right to come to the same opinion about Hitler in good faith?
The fact that Schacht did not enter office as Minister of Economics until after 30 June 1934 is not inconsistent with this either. Only in retrospect does the full enormity of these events become clear. In June 1934 we were still in the midst of revolutionary turmoil, and history will be able to show similar occurrences in any revolution of this kind. I do not have to give detailed proof of this, nor do I wish to do so. The events of 30 June provided just as little, if not less, motive for Schacht to turn away from Hitler with disgust, as they did for the governments in the world who not only continued diplomatic relations with Hitler in full confidence, but also rendered him great honors and allowed him to score important successes in foreign policy, especially after 1934.
If Schacht, however, cannot be criminally charged with the fact that he placed himself at the disposal of Hitler's Government, it is surely completely superfluous, indeed it would be beside the point, to attempt to make long statements in excuse of individual acts, such as his petition addressed to the Reich President in 1932, or his letter to Hitler in the same year. Anybody who knows life can find a thoroughly natural explanation for them in the fundamental attitude of Schacht. If this attitude is proved to be unobjectionable from the point of view of criminal law and the rules of evidence, then no such documents can be used in argument against Schacht. It is the principle that matters. The same holds true for Schacht's participation in the so-called meeting of industrialists. On this subject I should only like to remark by way of correction that Schacht neither presided at this meeting nor administered these funds exclusively for the National Socialist Party.
Now one witness here has passed judgment on Schacht's attitude toward the seizure and consolidation of power during this period:
"Schacht was an untrustworthy person," he said. "Schacht betrayed the cause of democracy at that time. I therefore
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refused in 1943 to join a Government proposing to overthrow Hitler with Schacht's participation."
This was the former Minister Severing who, according to his own statement, relinquished his ministerial and premises on 20 July 1932, when the Berlin Chief of Police and two police officers called on him, demanding his withdrawal with the assertion that they had been authorized to do so by the Reich President. Severing withdrew, as he said himself, to avoid bloodshed. In spite of the great respect which I feel toward Severing's clean political character, I am forced to my regret to deny him any right to pass competent judgment on statesmen who, unlike him and his Government coalition, did not remain lethargically passive. Severing and his political friends indeed bear a disproportionately greater responsibility than Hjalmar Schacht for Adolf Hitler's seizure of power because of their indecision and, finally, their lack of political ideas; but they do not have to answer for this to any judge except history. And this responsibility will be all the greater since the witness indeed makes the claim that at that time he had already recognized that Hitler's accession to power meant war. If one may really believe that he possessed this correct political intuition, then his responsibility, and that of his political friends, will be all the greater in view of their passivity on that and later occasions, and again this responsibility will be disproportionately greater than that of Hjalmar Schacht. Our German workers are certainly no greater cowards than the Dutch. Our hearts rejoiced to hear a witness here describe the manly courage of Dutch workers who dared to strike under the very bayonets of the invading army. The following which Severing and his political friends deservedly had in the German working class might perhaps have induced them not to watch the dissolution of the trade unions with such dull passivity as was the case in 1933, had only their natural leaders such as Severing and his colleagues been a little more daring and willing to expose themselves. In the last resort, the Kapp revolt in 1923 was also overcome by the general strike of the workmen. The Hitler regime was not so strong in 1933 that it did not have to fear the truth of the poet's words addressed to the workers: "All wheels stand still at your strong arm's will." The National Socialist Government at that time was quite well informed about this and was consequently apprehensive. This is also apparent from Goering's interrogation on 13 October 1945, the transcript of which was quoted and submitted by Professor Kempner on 16 January 1946. Goering said: "You must consider that at that time the activity of the Communists was extraordinarily strong and that our new Government as such was not very secure." But even this strong arm which I have just mentioned required a guidance which was denied to the working class and for
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which men like Severing would have been indicated. In all justice they will have to account for their passivity, not before the judge in a criminal court, but before history. I do not presume to pass a final judgment. I confine myself to revealing this problem and to attributing a full and embarrassing measure of self-righteousness to the witness Severing, although I respect him as a man, if he feels himself called upon to accuse others, when studying the question as to who from the view point of history is guilty of the seizure and consolidation of power by Nazism-especially if, in contrast to Schacht, he intuitively foresaw the later evolution of Hitler- instead of submitting himself with humility to the judgment of history, relying on his undoubtedly unimpeachable views and his undoubtedly pure intentions.
Let us always bear in mind, in the interest of historical truth, that especially at the beginning of the Nazi rule there were only two power groups, with the exception of foreign intervention, which could perhaps have liberated Germany, namely, the Army and the working class, provided, of course, that both were under the proper leadership.
I had to go into more detail on this point because such a detrimental remark by such a blameless and distinguished man as Severing brings with it the danger of unjust deductions regarding my client. It would have been agreeable to me if I could have been spared this discussion of Severing's incriminating testimony. Severing has further brought the charge of political opportunism against Schacht. In politics, to be sure, the boundary between opportunism and statesmanlike conduct dictated by expediency is very fluid. Before appraising Schacht's conduct in 1932 and 1933 as opportunistic, his past should also have been considered. After 1923 this past lived in the public eye. It has partly been a subject of these proceedings, partly it is already known to the Court. This past speaks rather for the fact that Schacht does what he judges to be right, not only with a great disregard of consequences, but also with great courage. Indeed, he has also proved this courage as a conspirator against Hitler, as is bound to appear from an examination of this activity as conspirator, and as Gisevius expressly described here.
But let us go back with Schacht to the year 1923. At that time he stabilized the mark against all parties interested in inflation; in 1924 he blocked credits against all hoarders of foreign currency; in 1927 he deprived the exchange speculators of the credit basis for their exchange manipulations. From 1925 to 1929 he fought against the debt and expenditure policy of the municipalities and thereby incurred the enmity of all the mayors. In 1929 he signed the Young Plan and thus defied the opposition of the heavy industry circles and continuing this policy, he fought openly since 1934 against the
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perversions and abuses of the Nazi ideology and never personally carried out a plan or an order which was contrary to his conscience or his sense of justice.
Every statesman must make certain concessions during a time of fanaticism. Certain sticklers for morality-of whom there are many today-who demand a steely hardness for the protection of principles, should not forget that steel has two qualities, not only solidity but also flexibility.
My Lord, I have now finished one particular section; the next one would take longer. I certainly will not finish it until after 1 o'clock. I should be grateful if Your Lordship would call the noon recess now. I am now coming to Appendix Number I...
THE PRESIDENT: Dr. Dix, I think you had better go on until 1 o'clock.
DR. DIX: Your Honors, in the translated copy which you have before you, there are two appendices at the end. I had to employ this device because the matters dealt with in this annex occurred after I had given my speech to be translated. Therefore, I had to work in my comments on this subject somehow, and could only do it by way of an appendix.
And so I now come to the reading of "Appendix I, which is at the back, and to the opinion of the testimony of Gisevius as expressed by my colleague, Dr. Nelte, since I am here concerned with evaluating the testimony of witnesses.
Insofar as my colleague Dr. Nelte criticized the objective reliability of the testimony of Gisevius regarding his statements incriminating the Defendants Keitel, Goering, and so on, I refrain from any statements. The Prosecution may take any standpoint it desires. This is not my task.
But now Dr. Nelte has also attacked the subjective credibility of Gisevius in the personal character of this witness and thus also indirectly the reliability of his testimony concerning Dr. Schacht. This demands a statement of my opinion, and a statement of a very fundamental nature.
Your Honors, it is here that minds part company. A gap that cannot be bridged opens up between Schacht's standpoint and the standpoint of all those who adopt the train of thought with which Dr. Nelte attempts to discredit the character of Gisevius, the deceased Canaris, Oster, Nebe, and others. I most certainly owe it to my client, Dr. Schacht, to state the following fundamental point very clearly and unequivocally:
Patriotism means loyalty to one's fatherland and people and fight without quarter against anyone who criminally leads one's fatherland and people into misery and destruction. Such a leader
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is an enemy of the fatherland; his actions are infinitely more dangerous than those of any enemy in war. Every method is justified against such a criminal State leadership, and the motto must be: a corsairs, corsairs et demi.
High treason against such a State leadership is true and genuine patriotism and as such highly moral, even during war. Who could still entertain the slightest doubt after the findings of this Trial, and finally after the testimony of Speer about Hitler's cynical remarks regarding the destruction of the German people, that Adolf Hitler was the greatest enemy of his people' in short, a criminal toward this people, and that to remove him any means were justified and any, literally any, deed was patriotic. All those on the defendant's bench who do not recognize this are worlds apart from Schacht.
I had to make this point in order to clear the atmosphere. After this fundamental clarification I can refrain from refuting details in Dr. Nelte's attacks against Dr. Gisevius. Insofar as Dr. Nelte fails to see any willingness for active service among these resistance groups to which Dr. Schacht belonged, I need only point to the many hundreds who were hanged on 20 July alone; Schacht numbers among the very few survivors, and he too was to be liquidated in Flossenbuerg. I point to the dead victims of the political judiciary of the Hitlerian State whose numbers run into thousands. Truly, the waging of a war of conspiracy against Hitler and the necessity for cunning and dissimulation in connection therewith were no less dangerous to life and limb than exposing one's self at the front.
During the very fair cross-examination conducted by my colleague, Dr. Kubuschok, Gisevius immediately admitted his mistake resulting from the ban on publication, in the affair of Papen's resignation. I have nothing more to say about this.
THE PRESIDENT: The Tribunal will adjourn.
The Tribunal recessed until 1400 hours.7
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DR. DIX: May it please the Tribunal, I had concluded with the consideration of the probative value of the statements made here by the witnesses Severing and Gisevius. '
Now, on concluding the evaluation of Schacht's conduct up to about 1935 and entering the period from 1935 to 1937, I would emphasize once more that in order to save time I will not repeat the arguments which were presented to the Tribunal in detail during the cross-examination, as for instance the nonparticipation of Schacht in the legislation which led to the total disregard for international law, because this took place before his entry into the Cabinet. The decisive event for the stabilization of Hitler's power, the merging of the offices of the Reich President and of the Chancellor of the Reich in the person of Hitler, also lay outside his co-operation and responsibility. By this decree the Army took its oath to Hitler. The Chancellor of the Reich not only had police authority as heretofore but also authority over the Army. It is not my task to investigate who bears the political responsibility and thus the historic guilt for this law; in any case, it is not Schacht.
All the basic anti-Jewish laws were also enacted before he entered into office as a minister. He was completely surprised by the subsequent Nuremberg Laws. The decree dealing with the exclusion of the Jews from German economic life dated 12 November 1938 and the ordinance concerning the use of Jewish property and possessions of 3 December 1938 were issued after he had left his post as Minister of Economics and thus without his active collaboration. The same applies to the decree excluding Jews from the Reich Labor Service, which moreover probably hardly inconvenienced them. The law providing for the death penalty for secret reserves of foreign exchange, the so-called Law of Betrayal of the People, was not directed specifically against the Jews but solely against big industry and high finance; also it was not evolved by Schacht but by the Minister of Finance. Schacht did not want to effect a breach of relations on account of such laws because he believed it was his duty to perform a more important task. In any case, this can hardly be regarded as important, for in the Jewish question Schacht, by his public speeches and his reports to Hitler, showed such a favorable attitude toward the Jews that it would be unjust to disqualify him politically and morally for such a reason, much less from the angle of criminal law. As examples I would remind you of the Reichsbank speech after the anti-Jewish pogrom in November 1938, the speech at Konigsberg, the memoranda of the year 1935, and so forth. In the Third Reich Schacht was considered the most courageous and active protector of the Jews. I only remind
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you of the letter of the Frankfurt businessman, Merton, which was submitted to the Court, and of the illuminating statement of the witness Hayler. According to the latter, when Hayler reproached Himmler for the events of November 1938, he replied that after all it had been the fault of the economic administration that matters had reached such a point. Of a man like Herr Schacht one could not expect anything better than that he should exercise a constant restraining influence in the Jewish question and be opposed to the will of the Party.
In response to my further inquiry Justice Jackson defined this specific charge of the Prosecution as follows: Schacht is not being charged with anti-Semitism, but for activities which have a causal connection with the atrocities committed against the Jews within the framework of the planned war of aggression. Thus it follows that a denial of guilt as to a war of aggression leads with compelling logic to the denial of any guilt as to the atrocities which were committed against the Jews during the war. Justice Jackson made some phases of the legislation in respect to the Jews during Schacht's term as Minister the subject of his cross-examination. I shall refrain from this part of the cross-examination; going into the questions put to Schacht and answered by him is irrelevant according to the Charter and the previously mentioned authentic interpretation of this part of the Indictment by Justice Jackson. The anti-Semitic legislation of the Third Reich and the personal attitude of an individual defendant toward it are, according to the Charter, relevant in these proceedings only insofar as they are connected with other crimes which are subject to punishment according to the Charter, as for example the conspiracy to wage war, mass extermination, and so forth. According to the Charter they cannot constitute an offense in themselves, not even one against humanity. Only those defendants are punishable for their deeds who can be proved to have participated in the planning of a war of aggression with its resulting inhuman consequences for the Jews. A prerequisite for their conviction on this account, however, is that they recognized and desired this goal and its result. There exists no purely objective liability for the outcome in criminal law. According to the Charter, he who desired the war and thus also the inhuman actions connected with it is punishable; but the incriminating activity must always have occurred in the course of the execution of such a plan. This purely legal consideration in itself excludes the conviction of Schacht on the grounds of atrocities against the Jews.
Another discrepancy between the Prosecution, especially with regard to the statements of Justice Jackson, and myself must likewise be clarified at this point, otherwise we will be talking at cross
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purposes. During the cross-examination Justice Jackson repeatedly pointed out that the defendant is not being charged with anti-Semitism as such, that he is not being-charged with his opposition to the Treaty of Versailles, that he is not being charged with his ideas and statements on the so-called Lebensraum problem as representing the food problem of the central European nations, that he is not being charged with his colonial aspirations; but that he is being charged with all this only to the extent that it served, with his knowledge and desire, for the preparation of a war of aggression. By this objection Justice Jackson meant to preclude certain questions and discussions. This would have been justified and I too could now forego such arguments, were not the Prosecution taking away with one hand what it is giving with the other, because in the course of argumentation all this, namely, Schacht's alleged anti-Semitism, et cetera, is used as indirect proof, that is, as circumstantial evidence that Schacht had prepared and desired this war of aggression. The Prosecution of course does not count all that as a criminal fact in itself, but as indirect proof, as circumstantial evidence. Therefore in evaluating the evidence, I must also treat these problems. I think I have finished dealing with the Jewish question. With regard to the problem of Lebensraum, in order to save time, I can probably refer to what Schacht has stated here during his interrogation in justification of his statements and activities in this respect. The colonial problem was the subject of crossexamination by Justice Jackson insofar as he tried to prove that colonial activity by Germany was impossible without world domination, or at least the military domination of the seas. Further development of this train of thought would result in the Defendant Schacht being charged with the fact that his striving for colonies logically depended on the planning of a war of aggression. That is a false conclusion. I think that Justice Jackson's conception of colonial policy is too imperialistic. Anyone desiring colonies for his country without attendant domination of the world or the sea bases his colonial activity on a lasting state of peace with the stronger maritime powers. He must necessarily believe in peace with these powers. Germany also possessed colonies from 1884 until the first World War; her merchant marine carried on the necessary traffic with these colonies. Her merchant marine before this war would also have been sufficient. Aviation, in reply to Justice Jackson's question, would not have been essential. Nothing supports the presumption that in his desire for colonies Schacht would have striven to eliminate foreign naval supremacy by means of war. In view of his general conduct one can hardly credit him with being as foolish as all that. France and Holland likewise possess colonies, the sea routes of which they certainly do not control.
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This charge of the Prosecution is therefore inconclusive. Moreover, the Tribunal knows that during the years before the war nearly all the statesmen of the victorious powers were sympathetic to these colonial aspirations of Germany, as is shown in many of their public speeches.
I now come to the subject of rearmament, that is, to the activity of Schacht in his capacity as President of the Reichsbank and Reich Minister of Economics until 1937, in other words, up to the time when he changed from a loyal servant of Adolf Hitler to a traitor against him and took to the dark ways of artifice and dissimulation while making preparations for an attempt on his life.
The Prosecution considers the violation of the Versailles Treaty, the Locarno Pact, and other treaties as indirect proof, that is, as circumstantial evidence, of his criminal intention to wage a war of aggression. This involves first the question of whether any treaty violations took place and, if so, whether these treaty violations must be judged as indications of an intent to wage a war of aggression on the part of members of the Reich Government, Schacht included. It is impossible, and also unnecessary, to discuss exhaustively in this plea the problem of whether actual treaty violations were committed and to what extent. My colleague Dr. Horn has already touched upon this question. A short remark can serve to show at least the problematical nature of this question. This again is important for a proper evaluation. There are no lasting treaties, neither in the domain of civil jurisdiction nor, still less, in the domain of international law. The clausula rebus sic stantibus often plays a much more important role in the domain of international law affecting the political intercourse between nations than in private dealings between individuals. One must be very careful not to apply, offhand, the relatively narrow principles of civil law to the breadth and depth of international law. International law has its own dynamics. The highly political intercourse between nations is subject to other juridical aspects than the commercial and personal relations between individuals. The most striking proof of the correctness of this thesis is the juridical basis of the Indictment, particularly insofar as it deals with the sentence nulls poena sine lege poenale and demands, instead of sanctions, the individual punishment of the leading statesmen of an aggressor nation. Whoever upholds the conception of the Prosecution in this respect, acknowledges the dynamics of international law and the fact that international law develops according to a process of its own.
History has taught us that treaties based on international law do not usually come to an end by a formal repeal but succumb to the development of events. They inevitably sink into oblivion. In specific instances opinions may differ as to whether this is the case
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or not; but that does not affect the basic truth of this statement. The militarization of the Rhineland and the introduction of general conscription, the extent of rearmament which Schacht approved of and strived for, the voluntary "Anschluss" of Austria to Germany, which was also basically desired by Schacht, all of these certainly are offenses against the meaning and text of the above-mentioned pacts, particularly the Versailles Treaty. If, however, such violations are only answered by formal protestations, and otherwise very friendly relations continue to exist and honors are even conferred upon the offending nation, and if agreements are concluded which alter the basic stipulations of such a treaty, as for instance the Naval Pact with Great Britain, the view is fully justified that because of all this such a treaty is gradually reaching a state of obsolescence and extinction, or at least there is cause for such a subjective point of view.
I beg you to consider that the prerequisite for the conclusion of an armament pact, as for instance the Naval Pact with Great Britain, is the military sovereignty of both nations. The denial of such sovereignty to Germany was, however, one of the main aspects of the Versailles Treaty. I do not wish to speak here about the justice or injustice of this treaty. I know the Court's wish, or rather prohibition, in regard to this matter, and of course I shall observe it. But I must speak about the legal possibility and therefore the innocence, criminally speaking, of Schacht's personal opinions on the question of treaty violation. Even if, therefore, one still wished to defend the point of view that the said treaties have not become obsolete, one cannot, at least as far as its inherent honesty is concerned, doubt the justification of an opinion to the contrary. But if this is recognized, these treaty violations no longer provide any proof of the criminal intention of a war of aggression. And that is all that matters. For the violation of treaties in itself is not considered a punishable act by the Charter. Here, too, Schacht can justify his good faith by referring to the same or similar views on the part of leading foreign statesmen, in whom it is therefore logically impossible to assume the existence of a suspicion as to a desire for aggression on the part of Germany. Here again I must limit myself to a few instances, since a complete enumeration would exceed the time limit of this plea.
The first of the violations of the Versailles Treaty is supposedly the reintroduction of general conscription. With regard to this measure, the British Foreign Secretary, Sir John Simon, with a statesman's far-sighted objectivity, gave the following reply, which was universally made known in reports by the press and radio and which therefore is valid as legal evidence:
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"There is no doubt that an agreed reduction of the armaments of other big nations was to follow upon the forced disarmament of Germany."
This remark contains a confirmation of the juridical point of view I developed a while ago, in spite of the criticism of Hitler's action that follows. The same applies to the fact that the visit of Sir John Simon and Mr. Anthony Eden to Berlin took place 8 days after this so-called treaty violation, namely, on 24 March 1935. It would not have taken place if this measure of Hitler's had been considered abroad as militarily aggressive. I will just mention in passing the history of the treatment of this question by the Council of the League of Nations, which is well known. Should Schacht, as a German and a German Minister, judge it in a manner different from that of the foreign Governments?
A second treaty violation by Hitler was the occupation of the Rhineland, also in March 1935. This action did not only violate the Versailles Treaty...
THE PRESIDENT: [Interposing.] The date of the occupation of the Rhineland was not March 1935, but March 1936.
DR.DIX: I cannot ascertain that at the moment.
The point in question is that this action took place, namely, the occupation of the Rhineland. This action was not only a breach of the Treaty of Versailles but also of the Locarno Pact, that is, of an undoubtedly voluntarily contracted treaty. Two days later Mr. Baldwin stated in the House of Commons, in a speech made public and therefore valid as legal evidence, that, while Germany's conduct could-not be excused, there was no reason to assume that this action contained a threat of hostilities. Was Schacht, a German and a German Minister, to take a different and more skeptical attitude in regard to the aggressive significance of the act than foreign statesmen? And particularly when he was forced to note the fact, which is now history and is universally known, that 10 days after this breach of treaty the Locarno Powers, except Germany, submitted to the Council of the League of Nations a memorandum which proposed the reduction of the number of German troops in the Rhineland to 36,500 men and only endeavored to avoid the strengthening of the SA and SS in the Rhineland and the erection of fortifications and airfields. Should not this memorandum be interpreted as a ratification of an alleged breach of the treaty?
A third breach of the treaty was the fortification of Helgoland, which was hardly observed by the contracting parties, and merely called forth from Mr. Eden, in the now famous public speech before the House of Commons on 29 July 1936, the remark that
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it was not considered favorable to increase the difficulties of the proceedings by individual questions like the one under discussion. Was the German Minister Schacht to take another and more rigorous attitude?
And what about the terroristic annexation of Austria in March 1938 when, moreover, Schacht was no longer Reich Minister for Economics? If foreign countries had gathered from this action the conviction that Hitler was preparing a war of aggression, they would not have abstained from threatening to use force. Was the German Minister Schacht to hold a different and stricter opinion? He did, in fact, have a different opinion at the time and was already eagerly at work with Witzleben and others to eliminate Adolf Hitler and his regime by means of a Putsch; an effort on the part of these patriotic conspirators which was frustrated, as the unequivocal testimony of the witness Gisevius has shown, because Hitler was able to record one success after another in foreign politics.
I merely remind you of the unequivocal evidence of Gisevius regarding the effects of the Munich Agreement on the influence of the opposition group of which Schacht was a leader; I remind you of the evidence of Gisevius regarding the warnings and hints in this connection sent across the German frontiers to responsible personalities of foreign countries. Is it fair to require from the German Minister Schacht a more critical attitude to those political developments than that adopted by foreign countries whose interests had been injured? As we know from Gisevius, from Vocke, and from all the affidavits submitted, he did have this critical attitude from 1937 on, in which year he took to the dark ways of a conspirator. I remind you of his first contact with the then General Von Kluge. I could give many examples such as those just mentioned. I do not criticize this attitude of foreign countries; that is not for me to do, quite apart from the fact that I have complete understanding for the pacifist attitude it reveals, which is fully aware of its responsibilities. It is, however, my duty to point out that no warlike intention can be imputed to Schacht on account of his opinions and attitude, when the same opinions and the same attitude can be identified as belonging to the foreign countries whose interests had been injured. If foreign countries could entertain the hope of maintaining further friendly relations with Hitler, the same right must be conceded to Schacht as far as he claims it. He does not, however, claim it for himself, at least not after the Fritsch crisis of 1938.
After that time he, in contrast to the foreign countries, had a very clear idea of the danger, which fact, according to the evidence of Gisevius, is undeniable, and he personally risked his
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life and liberty to maintain peace by attempting to overthrow Hitler. The fact that all these Putsch actions before the war and after the outbreak of war were unsuccessful cannot, according to the evidence submitted, be considered his fault. The responsibility for the failure of this German resistance movement does not lie with the latter but elsewhere, within and without the German frontiers. I shall return to this later.
There remains, therefore, the fact of rearmament as such. Here, too, I can refer essentially to the statements Schacht made in justifying himself during his cross-examination. This was exhaustive, and a repetition would be superfluous. It is therefore also completely superfluous to enter into an academic discussion as to whether Schacht's views were right; that is to say, whether it is correct that a certain amount of military force sufficient for defensive purposes is necessary for any country and was particularly necessary for Germany, and whether he was correct in his opinion that the nonfulfillment by the parties to the Versailles Treaty of the obligation to disarm justified the rearmament of Germany. The sole point in question is whether these opinions and motives of Schacht's were honest, or whether he pursued secret aggressive intentions under cover of this defensive armament. But these proceedings have established absolutely nothing to disprove the honesty of these opinions and motives. Of course, one can question the fact whether the quotation "si vis pacem, para bellum" has absolute validity; or whether objectively any pronounced rearmament does not carry an inherent danger of war, since good armies with competent officers naturally strive for a chance for real action. Of course, one can defend the thesis that moral strength is stronger than any armed strength. The cohesion of the British Empire and the world-wide influence of the Vatican's foreign policy could perhaps be cited as proof of this. All these questions carry a certain relativity in themselves; at any rate, one thing is certain: Even today in all large countries of the world the warning is constantly repeated that one must be militarily strong in order to preserve peace. Nations whose individualism and love of liberty rejected general conscription and a strong standing army now act to the contrary and honestly believe that they thereby serve peace. Let us take as an example a nation whose love of peace absolutely no one in the world, even the most mistrustful, can question, namely, Switzerland. Yet this peace-loving nation has always taken pride in maintaining the defense capacity of its people with the very intention of protecting its freedom and independence in a peaceful manner. One may academically call this idea of discouraging foreign aggression by the maintenance of a sufficiently strong defensive army imperialistic. It is, at any rate,
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honestly entertained by peaceful and liberty-loving nations and perhaps serves the cause of peace more effectively than many socalled antimilitaristic and pacifist doctrines. This sound point of view has really nothing to do with militarism. Whoever today recognizes this viewpoint as justified for great and small nations cannot contest the honesty of this view on the part of Schacht in the years 1935 to 1938. I have no more to say about this.
I also need not give a wearisome enumeration of figures and make specialized technical statements to the effect that this part of rearmament which Schacht first financed with 9,000 million, and then reluctantly with a further 3,000 million Reichsmark, was by no means sufficient for a war of aggression, in fact, not even for an effective defense of the German frontiers. The answers that the witnesses Keitel, Bodenschatz, Milch, General Thomas, Kesselring, et cetera, have given to this in their depositions and affidavits are available and have been submitted to, or officially brought to the attention of, the Tribunal. In this respect they are unanimously agreed that even at the outbreak of war-that is, 18 months later-Germany was not sufficiently armed for an aggressive war; that therefore, when Hitler led this nation into a war of aggression in August 1939, it was not only a crime against humanity but also against his own people, the people with whose leadership he was entrusted.
Therefore I also consider it superfluous to go into long discussions as to whether Blomberg's statement that Schacht was aware of the progress of rearmament is correct, or the statement of Schacht and Vocke that this was not so. I accept without further discussion the sincerity of Blomberg's statement. But since he had more to do with the technical side of rearmament than the Reichsbank had, general experience would seem to indicate that the memory of Schacht and Vocke is more reliable on this point than Blomberg's, to whom this report to the Reichsbank was a matter of secondary importance for his department. For the Reichsbank the desire to be informed about the technical progress of the armament as well as about the financial expenditure was a very important matter. One remembers such facts better than unimportant secondary matters. In any case it is established that until the budget year 1937-38 only 21,000 millions were spent on armament, of which 12,000 millions were financed by credits of the Reichsbank, and that, according to Generaloberst Jodl's statement of 5 June, on 1 April 1938 only 27 or 28 divisions were ready, whereas in 1939 there were already 73 or 75 divisions.
It needs no expert to show that this volume of expenditure and armament on 1 April 1938 was entirely insufficient for a war of aggression. Indeed Hitler was of the same opinion when in
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his memorandum of August 1936, which has been submitted to the Court, and which was handed to Speer in 1944, he pointed out, along with many derogatory remarks about Schacht's conduct of economic affairs, that 4 precious years had gone by, that we had had time enough in these 4 years to determine what we could not do, and that he hereby gave orders that the German Army must be ready for action in 4 years, that is, in the course of the year 1940.
I should like to remind the Court that after Schacht's withdrawal as President of the Reichsbank, 31,500 millions were spent on armament during the two budget years 1938-39 and 1939-40. The issuing and expenditure of money on armament therefore continued without Schacht, and indeed to a considerably greater extent. Schacht had once written to Blomberg that he was not a money-making machine.
He exercised constant pressure on Blomberg along this line. I refer only to his letter to Blomberg on 21 December 1935, which has been submitted to the Tribunal. He exercised a restraining influence by means of explanatory lectures to officers of the War Ministry and of the Armed Forces Academy. He refused the railway loan of 1936 requested by the Minister of Communications, which was indirectly in the interest of armament; and he stopped the credits of the Reichsbank as early as the beginning of 1937, concluding them by compromising on a final grant of 3,000 millions. He refused the credit which the Reich Minister of Finance requested from him in December 1938.
He created an automatic brake for armament expenditure through the mefo bills, which from the technical and financial point of view was a somewhat bold measure, although legally tenable. These served at first too finance the armament expenditure but restricted further armament expenditure after their expiration on 1 April 1939 because the Reich was obligated to redeem them. Schacht's foresight proved true. The increase in employment brought such a rise in the state revenues that it would not have been difficult to liquidate the mefo bills at their expiration 5 years later. Keitel's statement has proved that during the budget year beginning 1 April 1938, 5,000 million marks more were spent for armament than during the preceding year, although as from 1 April 1938 the Reichsbank credits had completely ceased. Half of the 5,000 millions would have sufficed to redeem the mefo bills which matured during the budget year beginning 1 April 1939. The use of this money for further rearmament would have been avoided; but this was exactly what Schacht intended. From the beginning he had limited the validity of the mefo bills to 5 years; he stopped the credit assistance of the Reichsbank on 1 April 1939
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in order to limit armament. It was impossible for Schacht to foresee that Hitler would simply break a strict credit obligation and not redeem the bills. These facts in themselves show that his attempts to resign could have had no other reason than opposition to any further armament, and the refusal to accept responsibility for it. In this sense the assertion of the Prosecution that he wanted to evade responsibility is completely correct.
Nothing indicates that any other motives than those which are obvious from the facts just mentioned caused him to make this attempt to relinquish his duties. If the Prosecution maintains that the reason was his antagonism to Goering, this is also correct insofar as Schacht was an opponent of the Four Year Plan, of which Goering was the chief. That the reason was rivalry of power is a pure supposition, an interpretation of actual events which justifies the quotation: "Interpret to your heart's content; should you fail to explain, you will at least insinuate."
The Reichsbank memorandum of November 1938, which led to the dismissal of Schacht and most of his collaborators including Vocke, is also unequivocally and forcibly opposed to armament. It naturally had to contain reasons for this which were derived from the departmental jurisdiction of the Reichsbank. Its aim was obvious. Hence Hitler's remark, "This is mutiny." The memorandum ends with the demand for control of the capital and loan market as well as the management of taxation by the Reichsbank. Compliance with this demand would have deprived Hitler of every possibility of raising money for further armament, and therefore this demand was unacceptable to him. Schacht and his colleagues knew this. Accordingly, they deliberately sought a break by this step. Schacht now bore no further responsibility. From now on he could devote himself exclusively to the plans for a coup d'etat by the conspiracy group to which he belonged. He became a traitor to Hitler. By remaining Minister without Portfolio, he hoped to learn more about what went on than if he resigned altogether;. this was vital for the aims of his conspiracy group. I shall return to this point later.
The fact of armament, as such, therefore, proves absolutely nothing for the assertion of the Prosecution that Schacht deliberately contributed to the preparation of a war of aggression. Simultaneous economic armament, however, belongs of necessity to armament in the modern sense. On the German side this was already recognized for the first time at the beginning of the first World War by two very important German Jews, the founder of the Hamburg-America Line, Albert Ballin, and the great German industrialist, Rathenau. This is the same Rathenau who made the wonderful speech on peace during the Genoa Conference, which
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was received with wild applause by the delegates of those very powers which had opposed his country but 4 years previously as enemies, and who, as German Foreign Minister, was the victim of an anti-Semitic outrage in the early twenties. I probably can assume that the personality of Albert Ballin is known to the Court. Both men recognized, at the very outbreak of the first World War, the error of omitting economic mobilization. Rathenau then organized the so-called War Raw Materials Department of the War Ministry. The first Plenipotentiary General for War Economy, for this is what he really was, was thus ideologically a pacifist; and certainly since that time there is probably no mobilization plan by any nation which does not provide for the purely military armament to be accompanied by a corresponding economic preparation for war. Therefore, the designation of a Plenipotentiary General for War Economy, even if he had taken up his duties, which as the evidence demonstrates most convincingly he never did but remained a dummy, does not show anything in the way of proof that the intention to wage a war of aggression existed. This post is equally necessary when arming for defense. The same applies to the institution of the Reich Defense Council, the Reich Defense Committee, et cetera. As such they are the same harmless, matter-of-course factors. They have no incriminating value. Only their misuse for the purpose of a war of aggression would be incriminating. However, Schacht's criminal intention in this respect has not been established, nor has anything else been found. I therefore refrain from going into details on this subject.
In conclusion, the Prosecution sees something incriminating in the so-called maintenance of secrecy regarding certain mobilization measures and mobilization arrangements, as for example the second Reich Defense Law. Here, too, a natural and worldly-wise way of thinking deprives these findings of any incriminating character. All nations are accustomed to treat mobilization and armament measures as secret. Upon further consideration and after closer observation this practice can, of course, be recognized as a very superfluous routine matter. Only plans and technical details can be really kept secret. The fact of rearmament as such can never be kept secret. The same applies to the existence of a large body which is to serve the purpose of this rearmament. Either it becomes known because it starts to function, or, like the ominous Defense Council, it remains hidden and secret only because it does not function.
In the memoirs of a Czarist officer regarding his experiences in the Russo-Japanese war I found the following humorous observation:
"If I, as a member of the General Staff, wished an incident to become known, I had it classified as 'secret' and my wish
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was fulfilled. If I wished to keep something secret, which was almost an impossibility, I unobtrusively gave it free circulation and occasionally my wish was fulfilled."
One should not quibble in a vacuum; but if one wishes to find the truth, one must take into account the teachings of experience based on hard facts.
Thus, the fact of the military activation of Germany. after the seizure of power by Hitler and the subsequent rearmament was never a secret to the world. The main proceedings have produced a great deal of evidence to this effect. We know the report of Consul General Messersmith; we know his sworn testimony of 30 August 1945, submitted by the Prosecution under Number 2385-PS, according to which the armament program-he speaks of a giant armament program immediately following the seizure of power-and the rapid development of the air program had been apparent to everybody; it had been impossible to move in the streets of Berlin or in any other city of importance in Germany without seeing pilots or aviators in training. He expressly states, on Page 8 of his testimony, that this giant German rearmament program was never a secret and was quite publicly announced in the spring of 1935.
I would like to remind you, amongst a great deal of other evidence, of the remark of Ambassador Dodd, who contends that he pointed out to Schacht that the German Government had bought high-grade airplanes from American airplane manufacturers for 1 million dollars and had paid for them in gold. Even if Ambassador Dodd perhaps made a mistake in this detail, yet all this still proves that German rearmament-the extent of which was surely even overestimated abroad at that time-must have been, at the very best, an open secret.
Therefore it is not even necessary to refer to the mutual visits of the Chiefs of General Staffs, to which Milch and Bodenschatz testified, the visits of the Chief of the British Intelligence Service, Courtney, the permanent presence in Berlin of military attaches of nearly all countries, in order to recognize that the so-called secret rearmament was quite public and only safeguarded a few technical secrets, as did rearmament in every state. The outside world knew of the existence of this rearmament and, in any case, considered it to be compatible with world peace longer than Schacht himself did.
It is not for me to criticize the attitude of the outside world, nor is it my intention to do so. Each part on the stage of life has its Odin rules of tact, including the part played by the defendant and his defense counsel. Their task is to establish a defense, and not to bring charges and make an attack. In connection therewith I expressly wish to guard against a possible misunderstanding to the effect that I want to appear as an accuser, a critic, or a know-it-all
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in any way. I present all this only from the aspect of my submission that the indirect circumstantial evidence submitted by the Prosecution is not conclusive.
Furthermore, the Prosecution argues that Schacht was a member of the Reich Cabinet, at least as Minister without Portfolio from the time of his dismissal in January 1938, as Minister of Economics, until January 1943. The Prosecution makes the Reich Cabinet responsible-criminally responsible-for the belligerent invasions of Hitler. This argumentation has an attractively convincing power for somebody who starts with the normal concept of a Reich Cabinet. The effect disappears once it has been ascertained that the so-called Reich Cabinet was not a cabinet in the usual sense applying to a constitutional state.
Judgments should not, however, be based on outward appearances and form-not on fiction, but only on actually established conditions. This makes it necessary to penetrate sociologically the nature of the Hitler regime and to examine whether a member of the Reich Cabinet, hence of the Reich Government as such, must in this capacity bear the same criminal responsibility as if he were in any other normal state set-up, be it a democratic republic or a democratic monarchy or a constitutional monarchy or a monarchy which, although absolute, was nevertheless founded on law, or some other constitutionally based set-up which bears the character of a somehow lawful state based on a constitution. We are thus obliged to investigate the actual sociological structure of the Hitler regime. We have heard an account on the Fuehrer Order (Fuehrerbefehl) in this connection by Professor Jahrreiss. Here, too, I want to avoid repetition and would only state the following in abbreviated form:
I want to say first of all, in order to avoid once more the danger of a misunderstanding, that when I speak of the Hitler regime here I do so without referring in any way to the persons sitting in the dock; naturally with the exception of Schacht. For the latter, I do so in the negative sense, for he did not belong to the regime as such, in spite of the fact that he was a member of the Reich Government and President of the Reichsbank. I leave the question completely open as to whether any of the other defendants should be considered a member or supporter of the regime. That question is subject only to the judgment of the Tribunal and the evaluation of the defense counsel for each case.
At the very beginning of my argument I indicated that, even for a person who lived in Germany during the Hitler regime, it is difficult to differentiate between the ostensible distribution of power and the actual underlying influence, since this requires a great deal of political intuition; it is bound to be impossible to judge for people who lived outside Germany and can only be arrived at through the
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findings resulting from the presentation of evidence before this Tribunal. We have established here that the Reich Cabinet, whom Hitler termed a club of defeatists, was convened for the last time in 1938 and that it met then only to receive a communication from Hitler. For actual deliberation and the passing of a resolution it had last been convened in 1937. We have also established that Hitler deliberately kept all news of political importance from the Reich Cabinet, as is proved quite unequivocally by the so-called Hossbach minutes of 10 November. During this meeting the Fuehrer called the attention of the chiefs of the branches of the Wehrmacht and the Reich Foreign Minister, who were present-Schacht, of course, was not present and did not learn about the Hossbach minutes until he came here-to the fact that the subject for deliberation was of such great importance that it would result in full Cabinet meetings in other countries but that, just because of its great significance, he had decided not to discuss the matter with the Reich Cabinet.
Thus, at least after 1937, the members of the Reich Cabinet can no longer be considered the architects and supporters of the political aspirations of the Reich. The same holds true for the members of the Reich Defense Council, which as such was nothing but a bureaucratic and routine affair. Accordingly Hitler, in the spring of 1939, explicitly excluded the Reich Defense Council also from further war preparations, saying: "Preparations will be made on the basis of peace-time legislation."
Despotism and tyranny showed themselves in unadulterated form as from 1938. It is a characteristic quality of the Fascist as well as the National Socialist regime, to have the political will concentrated in the head of the Party, who with the help of this Party subjugates and becomes master of the State and the nation. Justice Jackson also recognized this when he stated, on 28 February 1946, that the apex of power rested with a power group outside the State and the Constitution.
To speak, in the case of such a regime, of a responsible Reich Government and of free citizens who, through some organizations or others, could exert influence on the formation of the political will, would be to proceed from entirely wrong hypotheses. Intangible elements devoid of all sense of responsibility usually gain influence on the head of the State and Party in such regimes. The formation of the political will can be recognized in its crystallized form only in the head of the State himself; all around him is shrouded in a haze. It is another characteristic of such a regime -and this again belongs to its inner untruthfulness-that beneath the surface of seemingly absolute harmony and union several power groups fight against each other. Hitler not only tolerated such
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opposing groups, he even encouraged them and made use of them as a basis for his power.
One of the defendants spoke here of the unity of the German people during this war in contrast with the first World War, but I must stress in reply that hardly at any time during its history was the German nation so torn internally as it was during the Third Reich. The apparent unity was merely the quiet of a churchyard, enforced through terror. The conflicts between the individual high functionaries of the German people, which we have ascertained here, reflect the inner strife-torn condition of the German nation, carefully concealed through the terror wielded by the' Gestapo.
To give only a few examples: We were confronted here with the conflicts between Himmler and Frank, between Himmler and Keitel, between Sauckel and Seldte, between Schellenberg and Canaris, between Bormann and Lammers, between SA and SS, between Wehrmacht and SS, between SD and Justice, between Ribbentrop and Neurath, and so on and so forth. The list could be continued ad libitum.
Even ideologically the Party in itself was divided into pronounced oppositional groups, which was shown already at the very beginning of the presentation of evidence by Goering's testimony. These oppositions were fundamental, and they were not bridged by Hitler but rather deepened. They were the instrument from which he elicited his power. The ministers were not responsible governing persons, as in any other state where law is the foundation; they were nothing but employees with specialized training who had to obey orders. And if a departmental minister, as in the case of Schacht, did not wish to submit to this, it resulted in conflict and resignation from his post.
For this very reason no minister could in the long run take full responsibility for his department, because he was not exclusively competent for it. A minister, in accordance with constitutional law, must first of all have access to the head of State; and he must have the right to report to him in person. He must be in a position to reject interference and influences coming from irresponsible sources. None of the characteristics applicable to a minister apply to the so-called ministers of Adolf Hitler. The Four Year Plan came as a surprise to Schacht. Similarly, the Minister of Justice was surprised by so extremely important a law as the Nuremberg Decrees. Ministers were not in a position to appoint their staffs independently. The appointment of every civil service employee required the consent of the Party Chancellery. The intetvention and influence of all possible agencies and persons of the various Chancelleries- Chancellery of the Fuehrer, Party Chancellery, et cetera-asserted
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themselves. They, however, were agencies placed above the ministries and they could not be controlled. Special delegates governed over the heads of the departmental chiefs. Ministers, even the Chief of the Reich Chancellery, as we have heard from Lammers, might wait for months for an audience, while Herr Bormann and Herr Himmler had free access to Hitler.
The anticamera and camarilla, indispensable accessories of all absolutism, have at all times been difficult to fathom as to the personal responsibility of the individual circles of which they are composed. The irresponsible influences exerted over and affecting Hitler were absolutely intangible.
Generaloberst Jodl described to us here how Hitler's sudden actions, caused by some urge and attended by the most serious consequences, could be traced back to influences of an entirely obscure and unknown sort, such as pure chance, conversations at a tea party, or the like. For the objective facts this bears out what I already mentioned in the beginning. And so this state of affairs precludes even the possibility of the planning of a crime such as a war of aggression within a clearly defined circle of persons, much less within the so-called Reich Government. But where no planning is possible, there can be no plot, no conspiracy either, the most striking characteristic of which is this very common planning, even though the participants have different and varied roles. Let us assume the broadest conceivable interpretation of the ostensible exterior characteristics of the conspiracy. I am following Justice Jackson's line of reasoning. He who takes part in a counterfeiters' plot is guilty of conspiracy, even through he may have written only a letter or acted as bearer of the letter. He who participates in a plot for robbing a bank is guilty of murder if, in the course of the execution, not he but a third party in the group of planners commits murder. At all times, however, the prerequisite is a body of persons capable of evolving a common plan. Such a thing was not possible for Adolf Hitler's ministers; it was not possible at all under Hitler. From this it follows that no conspirator could participate in Hitler's crime of having forced upon his own people and the world a war of aggression, except those who served Hitler as assistants.
The forces at work in the Third Reich as depicted thus permit in thesis only the assumption that there existed a punishable complicity or punishable assistance, not, however, a punishable group offense such as a conspiracy. Whether such complicity or such punishable aid in the crime of a war of aggression committed by Hitler exists for individual defendants personally can only be investigated and decided in each individual case. It is my task to investigate this only in the case of Schacht.
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A collective crime such as conspiracy is, however, excluded as inconceivable and impossible in the light of the actual conditions as already established. But even if this were not the case, the subjective aspect of the deed is completely lacking in the case of Schacht. Even if the objective facts of a conspiracy were to exist for a certain circle of the accused and even with the most liberal interpretation of the concept of conspiracy, it is still essential that the conspirator should include the plan of conspiracy and the aims of the conspiracy within his will, at least in the form of dolts eventualis.
The strict facts constituting a conspiracy can best be illustrated by comparison with a pirate ship. In reality every crew member of the pirate ship, even a subordinate, is guilty and an outlaw. But a person who did not even know that he was on a pirate ship but believed himself to be on a peaceful merchant vessel, is not guilty of piracy. He is equally innocent if, after realizing the pirate character of the ship, he has done everything he could to prevent any piracy, as well as to leave the pirate ship. Schacht did both.
As far as that is concerned, research on conspiracy also recognizes that a person is not guilty who has withdrawn from the conspiracy by a positive act before attainment of the goal of the conspiracy, even if he did co-operate previously in the preparation of the plan for conspiracy, which was not the case with Schacht. In this connection, I also consider as being in my favor Mr. Justice Jackson's answer when I put up for discussion, during Schacht's interrogation, the question whether the persecution of the Jews is also charged to Schacht. Mr. Justice Jackson said, yes, if Schacht had helped prepare the war of aggression before he withdrew from this plan for aggression and its group of conspirators and went over unreservedly to the opposition group, that is, to the conspiracy against Hitler. This desertion would then be the positive act which I have mentioned whereby a person at first participating in a conspiracy would separate himself from it.
This legal problem does not even enter into consideration as far as Schacht is concerned, because the evidence has shown that he never desired to participate in the preparation for a war of aggression.
As already stated, this accusation of the subjective fact of the conspiracy has not been proved either by direct or by indirect evidence. For the events up to the year 1938 I can point to the statements made previously. It has been proved that from 1938 on, at the latest, Schacht fought the bitterest struggle imaginable against any possibility of war in such a form that he attempted to overthrow the person responsible for this risk of war and this will for aggression and, thereby, the regime.
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Your Lordship, I have now arrived at the end of a section, if Your Lordship would care to announce a recess now.
THE PRESIDENT: We will adjourn.
A recess was taken.7
DR. DIX: I beg your pardon for being late, but I was detained at the entrance.
Gentlemen of the Tribunal, I have arrived at the discussion of the beginning of the opposition by means of the various Putsch actions.
It is quite irrelevant and of incidental importance to investigate whether the attempts at a Putsch, which occurred at shorter or longer intervals during the war, would have been instrumental in securing better peace terms for Germany. This is absolutely meaningless for the criminal evaluation of Schacht's course of action. Doubtlessly, according to human reckoning, a successful prewar Putsch would have prevented the outbreak of war; and a successful Putsch after the outbreak of war would at least have shortened the duration of the war. Therefore such skeptical considerations about the political value of these Putsch attempts do not disprove the seriousness of the plans and intentions for a Putsch, and that is all that counts in a criminal legal evaluation. For it proves first of all that a person who has been pursuing them since 1938, and even since 1937, if one includes the attempt with Kluge, could not possibly previously have had warlike intentions. One does not try to overthrow a regime because it involves the danger of war, if previously one has oneself worked toward a war. One does so only if by all one's actions, even that of financing armament, one wished to serve peace. For this reason these repeated Putsch attempts on the part of Schacht do not have any legal significance of a so-called active repentance for previous criminal behavior but constitute em post proof that he cannot be accused even before 1938 of deliberately working for war, because it would be logically and psychologically incompatible with Schacht's activity of conspiracy against Hitler.
These Putsche thus prove the credibility of Schacht in respect to his explanation of the reasons and intentions which caused him actively to enter the Hitler Government and to finance armament to the extent to which he did, namely, to the amount of 12,000 millions. They prove em post the purely defensive character of this financing of armament; they prove the credibility of Schacht's contention of having tactically achieved, in addition, a general limitation of armament. If one does believe this explanation of Schacht's,
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and I think one must believe it, then one cannot speak of Schacht's co-operation in instigating a war of aggression.
This credibility is also proved by another circumstance. Schacht originally contradicted the testimony of Gisevius and my questions following the same line, that he had admired Hitler at the beginning and had unreservedly considered him a brilliant statesman. He described this in his interrogation as an erroneous assumption. He said that he had recognized from the beginning many of Hitler's weaknesses, especially the fact of his poor education, and had only hoped to be in a position to control the disadvantages and dangers resulting from them. By this contradiction Schacht made his defense more difficult; but he is wise enough to have recognized this. Thus what he deliberately forfeited from the point of view of evidence which would serve his defense, he gains with regard to his credibility upon objective evaluation of evidence based on psychological experience. For a person who serves the truth by contradiction deserves increased credibility, when the suggested untruth or the half-truth is more advantageous to him technically and tactically by way of evidence.
There should be no doubt about Schacht's leading role in the activities of the various conspiracies about which Gisevius testified on the very basis of this credible testimony. During the crossexamination Mr. Justice Jackson confronted Schacht with photographs and films which superficially show a close connection with Hitler and his paladins. This can only have been done in order to throw doubt on the earnestness of his active opposition to Hitler. I must, therefore, deal briefly with this point of the photographs and films. Mr. Justice Jackson has coupled this accusation with another one by quoting speeches ostensibly expressing great devotion on the part of Schacht toward Adolf Hitler even during the Putsch period. This accusation is on the same level. I believe that this argument cannot stand up either before the experiences of life nor before what we can observe of history. History teaches us that conspirators, especially if they belong to the closer circle of dignitaries of the threatened head of state, show special devotion for purposes of camouflage. Nor has it ever been observed that such people impart their intentions to the prospective victim in a spirit of contradictory loyalty. One could cite many examples of this from history.
There exists an effective German drama by a certain Neumann which concerns itself with the murder of Czar Paul by his first Minister, Count Pahlen. The Czar believes to the very end in the ostentatious devotion of Count Pahlen, even while the latter is already sharpening his knife. And the historical documents in existence include a note by Count Pahlen to the Russian Ambassador in Berlin, immediately before the assassination, in which Count
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Pahlen persists in speaking about "Notre auguste Empereur," and so forth. Significantly, this drama bears the title The Patriot.
Thus, there is a higher patriotism than the merely formal loyalty of a servant of the nation. It would be closer to the psychological truth if this presumptive devotion, assumed for the sake of appearances, and the assurances of loyalty during this period were judged more in favor of the objective credibility of Schacht's explanations than vice versa. As a conspirator, he had to camouflage himself especially well. To a certain degree this had to be done by practically everyone who lived under this regime in Germany. As far as the photographs are concerned, it is probably an inevitable consequence of every social and representative participation in a body that one becomes a victim of the cinema along with the members of the body whether one likes it or not. A member of a Government cannot always avoid being photographed with these people on the occasion of their meetings. As a result we have pictures that show Schacht between Ley and Streicher and the scene in the film showing the reception of Hitler at the railroad station. Viewed en post, these pictures give no pleasure to the observer, and certainly not to Schacht either. But they do not prove anything. In a natural evaluation belonging to a normal average experience of life, I consider these pictures without any value as evidence, either pro or contra.
Foreign countries, too, through their prominent representatives, had social intercourse with Adolf Hitler's Government, and this not only through their diplomatic corps. I wish to assure you that the Defense is in a position to produce pictures of a much more grotesque sort which do not seem nearly as natural as Schacht being photographed together with men who, after all, were his fellow dignitaries in the Third Reich. To produce such pictures, however, might not be very tactful on the part of the Defense; yet should it be necessary to investigate the truth in all seriousness, a defense counsel might have to take upon himself the odium of indiscretion. I do not believe that there is any need for me to do so in this case, because the irrelevance and insignificance of such a presentation of evidence through pictures taken on state occasions of the Third Reich seems to me to be obvious.
The only incriminating point pressed by the Prosecution which
· is left for me to argue now appears to be that Schacht, after his retirement as Minister of Economics and even after his retirement as President of the Reichsbank in January 1939, remained Minister without Portfolio until 1943. Schacht declared that this had been stipulated by Hitler as a condition for his release from the Ministry of Economics. Hitler's signature, as that of the head of the State, was necessary for his dismissal. Had Schacht refused to
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remain as Minister without Portfolio, he would surely have been arrested sooner or later as a political suspect and thus been deprived of all possibility of action against Hitler. The witness Gisevius has testified as to the discussions at that time between him and Schacht concerning the continuation of Schacht's function as Minister without Portfolio. In these deliberations the idea was quite justly considered important that Schacht could be of more use to the group of conspirators as a scout or an outpost if he remained in this position, to outward appearances at least, within the Reich Government. Even as Minister without Portfolio, Schacht remained exposed to great danger, as is shown by his and Gisevius' declarations and as becomes obvious from Ohlendorf's statement that Schacht already in 1937 was on the black list of the State Police.
How much Hitler feared Schacht is proved by his subsequent remarks to Speer, which have been discussed here, particularly his remarks about Schacht after the attempted assassination on 20 July. I would also remind you once more of Hitler's memorandum of 1936, which he gave to Speer in 1944 and which shows that he saw in Schacht a saboteur of his rearmament plans. It has been declared and proved by Lammers that Schacht tried later on to get rid even of this nominal position. Lammers and Schacht have proved furthermore that this position of Minister without Portfolio was without any special importance. Hence my reference to him as an officer with assimilated rank, that is, an officer without command authority, a sham officer. Schacht could not give up the position unless there was a row, and the same held true of his position as Reichsbank President. Schacht, therefore, had to maneuver in such a way that he would be thrown out. He succeeded in this, as I explained, as Reichsbank President through the well-known memorandum of the Directorate of the Reichsbank and the refusal of credits by the Reichsbank in November 1938 contained therein. As far as his position of Minister without Portfolio was concerned, he succeeded through his defeatist letter of November 1942. In the meantime he made use of the time for the attempted coup d'etat in autumn 1938 and for the various other attempted coups d'etat leading up to that of 20 July 1944, which finally caused him to be put in a concentration camp.
A criminal reproach can on no account be made against him in his position as Minister without Portfolio. For his proved conspiratorial activity against Hitler during all this time eliminates by force of logic the supposition that he had furthered Hitler's war plans and war strategy during this time. In any event, we can only raise-and even that only in the vacuum of abstraction- a political reproach against the Schacht of the years 1933-37. But this, too, is fully compensated by the extraordinarily courageous
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attitude of Schacht after this period. To obtain its just evaluation, may I remind you of the interesting statement of Gisevius to the effect that he, who had at first looked with a certain skepticism upon Schacht's original attitude, not fin a criminal but in a political sense, had later become completely reconciled with Schacht by the extraordinary courage which Schacht displayed as opponent and conspirator against Hitler since 1938. I am of the opinion, therefore, that the fact that Schacht remained as Minister without Portfolio does not incriminate him either directly or indirectly, neither according to penal law, which is out of the question, nor morally, if one takes into consideration his behavior as a whole, his motives, and the accompanying circumstances and conditions.
If the Prosecution now finally argues, on the basis of the text of the afore-mentioned memorandum by the Directorate of the Reichsbank, that an opposition' to war is not evident from the memorandum, but only technical reflections on finance and currency, then I have only to refer in this respect to my earlier statements and the testimony of Vocke. The presentation of facts by Schacht himself would not even be necessary to refute this argumentation. Vocke in his capacity as closest collaborator declared quite unequivocally that Schacht wished to limit and sabotage rearmament from the moment when he recognized that it was becoming a potential war danger. The sworn affidavit of Hulse and the sworn affidavits of all-the collaborators of Schacht in the Reich Ministry of Economics tally with the testimony of Vocke in this respect. I need not quote them individually. They are known to the Tribunal. The Tribunal does not need the commentary of a defense counsel on them; they speak for themselves. If the Prosecution now finally bases its argument on the text of the memorandum which, it is true, actually only deals with financial problems, then again I cannot suppress the remark that such an argumentation moves in a vacuum insofar as one does not take the experiences of history and the general experiences of life into consideration. Naturally, as I have already said, the Directorate of the Reichsbank could only bring up arguments from their department, particularly so in dealing with a Hitler. One says one thing while meaning another.
If the Directorate of the Reichsbank, along with their President, Schacht, had revealed their true purpose in this memorandum, namely, to avert the danger of war and to combat Hitler's will of aggression, then they would have deprived themselves of the effect of technical departmental influence. Hitler very well understood the purpose of this memorandum when he shouted, after reading it: "That is mutiny!" With this, Hitler recognized the only thing that can be said of Schacht as conspirator: He was never
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a mutineer and conspirator against world peace; but, insofar as he was a conspirator and mutineer, he was so only against Adolf Hitler and his regime.
Again in this case I must ask the High Tribunal to turn their attention to Appendix Number II, which I must insert at this moment, because the matter that is dealt with here did not reach me for translation until after I had submitted my final speech.
I said that Schacht, insofar as he was a conspirator, was so only against Hitler. As such, he was the subject of ironical belittling by Generaloberst Jodl and my colleague Nelte through the epithet, "frock-coat and drawing-room revolutionary." Now history teaches that the quality of the tailor does not play any role in the case of the revolutionary. And as far as the drawing room is concerned, shacks have no revolutionary precedence over palaces. I would just recall the political drawing rooms of the great French Revolution or, for example, the elegant officers' club of the select Preobrashensk regiment under many a Czar. Should the Gentlemen of the Tribunal be of the opinion that Schacht and his accomplices themselves should have done the shooting, then all I can say is that things were not as easy as all that. Schacht would have loved to do the shooting himself; he proclaimed that here emphatically. But it was not possible for him to do so without possessing the power to master the attendant confusion, thereby making the attempt a revolutionary success. Thus generals with troops were necessary. I do not wish to repay Generaloberst Jodl with the same coin and shall therefore refrain from saying "a necessary evil."
The further reproach of the basic lack of working-class elements to strengthen the Putsche is contradicted by the social composition of the revolutionaries of 20 July. As I stated before, all this is irrelevant for the decision of the Tribunal. But my client is morally entitled to expect his defense counsel not to let this ironical thrust pass, especially since it was delivered in the limelight of public opinion.
In summing up I may say: After the elections in July 1932 it was certain that Hitler was able and bound to seize power. Previous to this Schacht had particularly warned the foreign countries of this development, and thus he had not contributed to it. After the seizure of power only two roads were open to him, as to every German: He either had to estrange himself or to enter the Movement actively. The decision at these crossroads was a purely political one without any criminal aspect. Just as we respect the reasons which caused the foreign countries to collaborate with Hitler much more intensively and in a more pro-German way than
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with the previous democratic Governments of Germany, we must recognize the good faith of all those Germans who believed themselves able to serve the country and humanity better by remaining in the Movement, that is, within the Party or the apparatus
· of officialdom, because of the greater possibilities of exerting their influence, than by grumbling and keeping aloof. To serve Hitler as minister and President of the Reichsbank was a political decision, about the political correctness of which one can argue em facto but one which certainly lacked any criminal character. Schacht has always remained loyal to the motivating reason for his decision, namely, to combat any radicalism from an influential position. Nowhere in the world, which knew his oppositional attitude, could he see any signs of warning or support. He saw only that the world trusted Hitler much longer than he himself did and permitted Adolf Hitler to gain honors and foreign political successes, which hampered Schacht's work which had already for a long time been directed toward removing Adolf Hitler and his Government. He led this struggle against Adolf Hitler and his Government with a courage and determination which must make it appear a pure miracle that not until after 20 July 1944 did fate overtake him, when he was sent to a concentration camp and was in danger of losing his life either through the Peoples' Court or through a spectacular act of the SS. He is sufficiently wise and self-critical to realize that from a purely political angle the picture of his character will be adjudged diversely in history, or at least in the immediate future, according to favor or hatred of the parties. He humbly resigns himself to the judgment of history, even if one historian or another will label his political line as incorrect. But with the pride of a good conscience he faces the judgment of this High Tribunal. He stands before his judges with clean hands. He also stands before this Tribunal with confidence, as he has already manifested in a letter which he addressed to this Tribunal before the beginning of the proceedings, in which he states that he is grateful to be able to expose before this Tribunal and before the whole world his actions and doings and their underlying reasons. He stands before this Tribunal with confidence because he knows that favor or hatred of the parties will have no effect on this Tribunal. While recognizing the relativity of all political actions in such difficult times, he remains sure of himself and full of confidence with regard to the criminal charges which have been raised against him. Whoever would be found guilty of being criminally responsible for this war and the atrocities and inhuman acts committed in it, Schacht, according to the evidence which has been given here with minute exactness, can confront that culprit with the words which Wilhelm Tell flings in the face
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of the emperor's assassin, Parricida: "I raise my clean hands to Heaven, and curse you and your deed!"
I therefore request the findings to be established to the effect that Schacht is not guilty of the accusation which has been raised against him and that he be acquitted.
THE PRESIDENT: I call on Dr. Kranzbuhler for the Defendant Doenitz.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): Mr. President, Gentlemen of the Tribunal: "War is a cruel thing, and it brings in its train a multitude of injustices and misdeeds." * With these words of Plutarch's, Hugo Grotius begins his examination of responsibility for war crimes; and they are as true today as they were 2,000 years ago. Acts constituting war crimes, or considered as such by the opponent, have at all times been committed by belligerents. But this fact was always held against the vanquished parties and never against the victors. The law which was applied here was necessarily always the law of the stronger.
While more or less stable rules have been governing land warfare for centuries, in naval warfare the conceptions of the belligerents with regard to international law have always clashed. No one knows better than the British statesmen to what extent these conceptions are dictated by national or economic interests. I refer in this respect to noted witnesses such as Lord Fisher and Lord Edward Grey.** Therefore, if ever in history a naval power would have had the idea of prosecuting a defeated enemy admiral, based on its own conception of the rules of naval warfare, the sentence would have been a foregone conclusion from the very indictment.
At this trial two admirals are under indictment for a naval war which has been termed criminal. Thus the Tribunal is confronted with a decision regarding conceptions of law which are necessarily as divergent as the interests of a naval power and a land power. It is not only the fate of the two admirals which depends upon this decision. It is also a question of personal honor
· De jure pacis ac belli, Book II, Chapter XXIV, Paragraph 10.
.* Lord Edward Grey: "Twenty-five Years of Politics 1892-1916." (Retranslated into English from the German edition published by Bruckmann, Munich 1926). ``International Law has always been very flexible .... A belligerent possessing an over-powefful navy has at all times been in search of an interpretation of International Law which would justify a maximum of intervention in respect of merchandise liable to reach the enemy. This attitude was naturally adopted by Great Britain and the Allies owing to their supremacy at sea. The British position on this subject had not always been the same. When we figured among the neutrals, we naturally contested the right to maximum intervention claimed by the belligerents."
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to hundreds of thousands of German seamen who believed they were serving a good cause, and who do not deserve to be branded by history as pirates and murderers. It is for these men, the living as well as the dead, that I feel bound by a moral obligation to reject the accusations raised against German naval warfare.
What are these accusations? They are divided into two main groups: Unlawful sinking of ships and deliberate killing of shipwrecked personnel. I shall deal first with the accusation of the illegal sinking of ships.
Two reports by Mr. Roger Allen, of the British Foreign Office, made in the autumn of 1940 and spring of 1941, form the nucleus of that accusation. I do not know to whom and for what purpose these reports were made. According to their form and content they appear to serve propaganda purposes, and for that reason alone I consider them to have little value as evidence. Even the Prosecution submitted only part of the accusations made therein. The reports trace only one-fifth of the total number of supposedly unlawful attacks back to submarines, whereas four-fifths are ascribed to mines, airplanes, or surface craft. The Prosecution omits these four-fifths, and this reticence may be explained by the fact that the use of these combat means on the British side differed in no way from that on the German side.
With regard to the use of submarines, however, there does seem to exist a difference between the principles followed in Germany's conduct of the naval war and that of our enemies. At any rate, the public in enemy countries and in many neutral countries believed so during the war, and partly still believes it today. Propaganda dominated the field. At the same time the vast majority of all critics neither knew exactly what principles applied to German U-boat warfare, nor on what factual and legal foundations they were based. It shall be my task to attempt to clarify this.
The reports by Mr. Roger Allen culminate in the assertion that the German U-boats, beginning with the summer of 1940, torpedoed everything within range. Undoubtedly, the methods of submarine warfare gradually intensified under the pressure of the measures directed against Germany. This war, however, never degenerated into an orgy of shooting governed only by the law of expediency. Most of what might have been expedient for a U-boat was left undone to the last day of the war because it could only be regarded as legally inadmissible, and all measures of which Germany in her conduct of naval warfare is being accused today by the Prosecution were the result of a development in which both sides took part through measures and countermeasures, as occurs in the course of every war.
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The London Protocol of 1936 formed the legal basis for German submarine warfare at the beginning of this war. These regulations were incorporated verbatim into Article 74 of the German Prize Ordinance, which even Mr. Roger Allen calls a reasonable and not inhuman instrument. This Prize Ordinance was sent in 1938 in draft form to the two U-boat flotillas and to the U-boat training school and served as a basis for the training of commanders. Stopping and examining merchant vessels was performed as a tactical task. In order to facilitate for the commander in economic warfare the quick and correct evaluation of his legal position towards ships and cargoes of the enemy and of neutral countries, the prize disc was constructed, which through simple manipulations indicated the articles of the Prize Ordinance to be applied. Thus, insofar as preparations had been made at all for economic warfare by submarines they were based exclusively on the German Prize Ordinance, and thus on the London Protocol.
The German High Command actually did adhere to this legal foundation in the initial stages of the war. The combat instructions for U-boats of 3 September 1939 contained clear orders to the effect that submarine warfare was to be carried on in accordance with the Prize Ordinance. Accordingly, sinkings were permissible only after stopping and examining the ship, unless it attempted to escape or offered resistance. Some examples were submitted to the Tribunal, from the abundance of available instances, showing the chivalrous spirit in which the German submarine commanders complied with instructions given. In particular, assistance afforded
· to the crews of ships lawfully sunk, after having been stopped and examined, occasionally reached a point where it could scarcely be justified on military grounds. Lifeboats were towed over long distances, whereby the few available U-boats were diverted from their combat mission. Enemy ships which might have been sunk lawfully were permitted to go free in order to send the crews of ships previously sunk to port aboard them. It is therefore only correct that Mr. Roger Allen stated that the German U-boats, during the first weeks of the war, adhered strictly to the London regulations.
Why was this practice not kept up? Because the conduct of the enemy made such a procedure militarily impossible, and at the same time created the legal prerequisites for its modification.
I shall consider the military side first. From the very first day of the war, U-boat reports reached the Flag Officer of U-boats and the Naval Operations Staff stating that hardly an enemy ship submitted voluntarily to being stopped and examined. The merchant vessels were not content with attempting to escape through flight or by changing their course and bearing directly down upon the
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U-boat in order to force it to dive. Every U-boat sighted was at once reported by radio; and subsequently, in the shortest space of time, attacked by enemy airplanes or naval forces. However, it was the arming of all enemy merchant vessels that settled the matter. As early as 6 September 1939 a German U-boat was shelled by the British steamship Manaar, and that was the starting signal for the great struggle which took place between the U-boats, on the one hand, and the armed merchant vessels equipped with guns and depth charges, on the other hand, as equal military opponents.
In order to show the effect of all the measures taken by the adversary, I have presented to the Tribunal some examples which I do not wish to repeat. They show unequivocally that further action against enemy merchant ships in accordance with the Prize Ordinance was no longer feasible from the military standpoint and meant suicide for the submarine. Nevertheless, the German command for weeks on end continued to act according to the regulations governing the Prize Ordinance. Only after it was established that action on the part of enemy merchant ships- especially armed action-no longer took the form of individual measures but of general instructions, was the order given on 4 October 1939 to attack all armed enemy merchant ships without warning.
The Prosecution will perhaps take the standpoint that, in lieu of this, submarine warfare against armed merchant vessels should have been discontinued. In the last war the most terrible weapons of warfare were ruthlessly employed by both sides on land and in the air. In view of this experience the thesis can hardly be upheld today that in naval warfare one of the parties waging war should be expected to give up using an effective weapon after the adversary has taken measures making the use of it impossible in its previous form. In any case such a renunciation could only be considered if the novel utilization of the weapon were undeniably illegal. But this is not the case for the utilization of German submarines against enemy merchant shipping, because the measures taken by the enemy changed not only the military but also the legal situation.
According to German legal opinion a ship which is equipped and utilized for battle does not come under the provisions granting protection against sinking without warning as laid down by the London Protocol for merchant ships. I wish to stress the fact that the right of the merchant ship to carry weapons and to fight is not thereby contested. The conclusion drawn from this fact is reflected in the well-known formula: "He who resorts to weapons must expect to be answered by weapons."
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During cross-examination the Prosecution referred to this interpretation of the London Protocol as fraudulent. It admits only the closest literal interpretation and considers the sinking of a merchant ship as admissible only if the latter has offered active resistance. It is not the first time that fundamental differences of
opinion exist between contracting parties with respect to the interpretation of a treaty, and the extremely divergent interpretations of the meaning of the Potsdam Agreement of 2 August 1945 provide a recent example. Diversity of conception, therefore, does not permit the conclusion that the one or the other party acted fraudulently during the signing or the subsequent interpretation of a treaty. I will endeavor to show how unjustified this charge is particularly in regard to the German interpretation of the London Submarine Protocol.
There are two terms on which the German interpretation hinges, namely, that of "merchant vessel" and "active resistance." If I now consider some legal questions, this will in no way represent a comprehensive exposition. I can only touch on the problems and due to lack of time must limit myself also when dealing with research on the subject. I shall primarily refer to American sources, because the interests of naval strategy of that nation were not as firmly established as those of the European nations and its research literature can thus claim greater objectivity.
The text of the London Protocol of 1936 is based, of course, on a declaration which was signed at the London Naval Conference of 1930. The committee of jurists appointed at that time expressed its opinion concerning the greatly disputed definition of a merchant vessel in the report of 3 April 1930:
"The committee wishes to place on record that the expression 'merchant vessel' where it is employed in the declaration is not to be understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to cause her to lose her right to the immunities of a merchant vessel."
This definition clarifies at least one thing, namely, that by no means every vessel flying a merchant flag may lay claim to being treated as a merchant vessel in the sense of the London Agreement. Beyond this, the explanation has few positive aspects because the question through what kind of participation in hostilities a vessel loses her right to the immunity of a merchant vessel is again subject to the interpretation of the contracting parties. The London Conference, as far as I can see, did not consider this ticklish question any further, and one is probably entitled to assume that this remarkable reserve is based on experiences which the same powers had accumulated in Washington 8 years before.
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The Washington Conference of 1922 was held under the impression of the first World War; and therefore it is no wonder that Great Britain, the naval power which during the World War had suffered most from German submarine warfare, now tried to outlaw and abolish altogether by international law submarine warfare against merchant shipping. The resolution, named after the American chief delegate, Root, which in its first part substantially corresponded to the London text of 1930, served that aim. But in the second part the Root Resolution goes further and stipulates that any commander who, no matter whether he acted with or without higher orders, violated the rules established for the sinking of merchant vessels should be punished as a war criminal like a pirate. Finally it was recognized that under the conditions stipulated in the resolution submarine warfare against merchant shipping was impossible, and such warfare was therefore renounced altogether by the contracting powers. The Root Resolution designates these principles as an established part of international law. While it was accepted as such by the delegates, none of the five participating naval powers, U. S. A., Britain, France, Japan, and Italy ratified it.
In connection with the Root Resolution, however, another question was discussed which is of the greatest importance for the interpretation of the London Protocol, namely, the definition of the term "merchantman." Here the two conflicting views in the entire U-boat question became clearly evident. On the one side there stood Britain, on the other France*, Italy, and Japan, while the United States took the position of a mediator. According to the minutes of the Washington Conference, the Italian delegate, Senator Schanzer, opened the offensive of the weaker naval powers by expressly emphasizing that a merchantman, when regularly armed, might be attacked by a submarine without preliminaries. In a later session Schanzer repeated his statement that the Italian delegation applied the term of "merchantman" in the resolution only to unarmed merchant vessels. He declared this to be in explicit accordance with the existing rules of international law.**
The French delegate, M. Sarraut, at that time received instructions from his Foreign Minister, M. Briand, to second the reservations of the Italian delegate.*** He thereupon moved to have the Italian reservations included in the minutes of the session.
*Yamato Ichihalie, The Washington Conference and After, Stanford University Press, Cal., 1928, Page 80, "The chief reason for the British plea was the apprehension of the craft in the hands of the French navy."
**Conference on the Limitation of Armaments, Washington. November 12, 1921-February 6, 1922, Washington, Government Printing Office, 1922, Pages 606, 688, 692.
***French Yellow Book, La Conference de Washington, Page 93.
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The Japanese delegate, Hanihara, supported this trend with the statement that he thought it was clear that merchant vessels engaged in giving military assistance to the enemy ceased in fact to be merchant vessels.* It can therefore be seen that in 1922, three of the five powers represented expressed the opinion that armed merchant vessels were not to be regarded as merchant vessels in the sense of the Agreement.
Since the whole resolution threatened to collapse because of this difference of opinion, a way out was found which is typical of conferences of this kind. Root closed the debate with the statement that in his opinion the resolution held good for all merchant ships as long as the ship remained a merchant vessel.** With this compromise a formula was created which, while representing a momentary political success, would not however carry any weight in the case of war, for it was left to every participating power to decide whether or not it would grant the armed merchant vessels the protection of the resolution in case of war.
I have described these events of the year 1922 a little more in detail because the powers which took part in them were the same as those which participated in the London Naval Conference of 1930. The London Conference was the continuation of the Washington Conference, and the subjects that had been discussed and included in the minutes of the first conference were of great importance for the second conference. Experts too-and by no means only German but above all American and French experts-based their examinations on the close connection of both conferences, and it was precisely for that reason that they declared the result achieved in the question of submarines to be ambiguous and unsatisfactory. Here I merely wish to point to Wilson's summarizing report on the London Naval Treaty.***
This report, besides the ambiguity of the concept "merchant vessel," also stresses the uncertainty connected with the words "active resistance"; and it is with these very words that an exception from the protection of the merchantman is connected, an exception which likewise is not contained in the actual text of the London Agreement but which nevertheless is generally recognized. I am referring to merchantmen in an enemy convoy. If the London Agreement were interpreted literally, it would be understood that even merchantmen in an enemy convoy must not be attacked without warning but that an attacking warship would have to put the escort vessels out of action first and then stop and search the
· Protocol Pages 693, 702. * Protocol Page 704.
I'* American Journal of International Law, 1931, Page 307.
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merchantmen. However, this suggestion, which is impossible from a military point of view, evidently is not made even by the Prosecution. In the report of the British Foreign Office, which has been mentioned several times, it says:
"Ships sailing in enemy convoys are usually deemed to be guilty of forcible resistance and therefore liable to be sunk forthwith."
Here even the Prosecution accepts an interpretation of the words "active resistance," an interpretation which results in no way from the treaty itself but is simply a consequence of military necessity and thus dictated by common sense.
And this very same common sense demands also that the armed merchantman be held just as guilty of forcible resistance as the convoyed ship. Let us take an extreme instance in order to make the matter quite clear. An unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots, may be sunk without warning, because it has placed itself under the protection of the trawler and thereby made itself guilty of active resistance. If, however, this same merchant ship does not have the protection of the trawler and instead the 2 guns, or even 4 or 6 of them, are placed on its decks, thus enabling it to use its full speed, should it in this case not be deemed just as guilty of offering active resistance as before? Such a deduction really seems to me against all common sense. In the opinion of the Prosecution the submarine would first have to give the merchant ship, which is far superior to it in fighting power, the order to stop and then wait until the merchant ship fires its first broadside at the submarine. Only then would it have the right to use its own weapons. Since, however, a single artillery hit is nearly always fatal to a submarine but as a rule does very little harm to a merchant ship, the result would be the almost certain destruction of the submarine.
"When you see a rattlesnake rearing its head, you do not wait until it jumps at you but you destroy it before it gets the chance."
These are Roosevelt's words, in which he justified his order to the United States naval forces to attack German submarines. This reason seemed sufficient to him to order the immediate use of arms even without the existence of a state of war. It is a unique instance in the history of warfare, however, to grant one of two armed opponents the right to fire the first shot and to make the other wait to be hit first. Such an interpretation is contradictory to all military reason. It is no wonder, therefore, if in view of such divergent opinions, the experts on international law, even after
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the London Treaty and the signing of the London Protocol of 1936, consider the treatment of armed merchant vessels in naval warfare to be an unsolved question. Here too I should like to refer to only one source of research, which enjoys especially high authority. It is the draft of an agreement on the rights and duties of neutrals in naval warfare, an agreement which leading American professors of international law, such as Jessup, Borchard, and Charles Warren, published in the American Journal of International Law of July 1939 and which includes arguments which furnish an excellent idea of the latest trend of opinion. Article 54 of this draft corresponds word for word to the text of the London Agreement of 1936, with one notable exception: The term "merchant vessel" is replaced by "unarmed vessel." The next article then continues:
"In their action with regard to enemy armed merchant vessels, belligerent warships, whether surface or submarine, and belligerent military aircraft are governed by the rules applicable to their action with regard to enemy warships." This opinion is first of all explained by historical development. During the time when it was customary to arm merchant vessels, that is, until the end of the last century, there was no question of any protection for the merchant vessel against immediate attack by an enemy warship. With the introduction of armor plating the warship became so superior to the armed merchant vessel that any resistance on the part of the latter was rendered futile, and the arming of merchant ships therefore gradually ceased. Only this defenselessness against warships, and this alone, granted merchant vessels the privilege of not being attacked without warning by the enemy: "As merchantmen lost effective fighting power they acquired a legal immunity from attack without warning."
This immunity was never conceded to the merchant vessel as such but only to the defenseless and harmless merchant vessel. In regard to this the American expert on international law, Hyde,* stated in 1922, that is, after the Washington Conference and the afore-mentioned Root Resolution on U-boat warfare:
"Maritime states have never acquiesced in a principle that a merchant vessel so armed as to be capable of destroying a vessel of war of any kind should enjoy immunity from attack at sight, at least when encountering an enemy cruiser of inferior defensive strength."
Legal as well as practical considerations, therefore, led the above-mentioned American authorities, after the signing of the London Agreement and shortly before the outbreak of this war,
* Hyde, International Law, 1922, Vol. II, Page . 469.
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to form the opinion that armed merchant ships do not enjoy protection from attacks without warning.
Here the old discrimination between defensive and offensive armaments is also rejected as inapplicable. It is a well-known fact that the American Secretary of State, Lansing, in his note to the Allies on 18 January 1916, took the point of view that any kind of armament aboard a merchant vessel will make its fighting power superior to that of a submarine and that such armament is therefore of an offensive nature.*
In the later course of the first World War, the United States changed its opinion and declared that mounting guns on the stern could be taken as proof of the defensive character of the armaments. This standpoint was adopted in some international agreements and drafts, as well as by British jurists in particular. It does not do justice to the practice of naval warfare.
First of all, in this war the guns on many vessels were mounted from the very start in the bows, for instance, regularly on fishing trawlers. Furthermore, the antiaircraft weapons of the merchant vessel, which were especially dangerous for the submarine, were frequently placed on the bridge, and could therefore be used in all directions. Besides, there can be no differentiation between defensive and offensive armaments as to the way the weapons are placed.
In this respect orders alone and the way in which these weapons are meant to be employed are the decisive factors. Soon after the war had started the orders of the British Admiralty had already fallen into German hands. A decision of the Tribunal has made it possible for me to submit them. They are contained partly in the Confidential Fleet Orders, chiefly, however, in the Defense of Merchant Shipping Handbook. They were issued in 1938. They do not therefore deal with countermeasures against illicit German actions but, on the contrary, were already issued at a time when warfare in accordance with the London Agreement was the only form of submarine warfare taken into consideration in Germany.
The instructions further show that all British merchant vessels acted, from the first day of the war, according to orders received from the British Admiralty. These involved the following points with respect to submarine warfare:
(1) Reporting of submarines by radio telegraphy.
(2) The use of naval artillery.
(3) The use of depth charges.
* U. S. Foreign Relations, 1916, Supplement Page 147.
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These instructions were supplemented on 1 October 1939, when a call was transmitted over the radio to ram all German submarines.
It might seem unnecessary after this survey to make any mention at all of the defensive and offensive character of such orders. The orders on the use of artillery by merchant vessels, however, do make such differentiation; that is, guns are to be used for defense only, as long as the enemy on his part adheres to the regulations of international law, and for the offensive only when he no longer does. The orders covering the practical execution of these directives reveal, however, that there is no difference at all between defensive and offensive use. Admiral Doenitz explained this in detail when he was heard in Court, and I do not want to repeat it. Actually, from the very beginning of the war merchant vessels were under orders to fire on every occasion on every submarine which came within range of their guns. And that is what the captains of British merchant vessels did. The reason for this offensive action can certainly not be found in the conduct of German submarines during the first weeks of the war, for even the Foreign Office report admits that this conduct was correct. On the other hand, British propaganda may have had great influence, since in connection with the unintentional sinking of the Athenia on 3 September 1939, it disseminated through Reuters on 9 September the assertion that unrestricted submarine warfare was in progress and upheld this assertion notwithstanding the fact that the conduct of German submarines during the first weeks of the war refuted this accusation. Together with the announcement of the British Admiralty's ramming orders of 1 October 1939, the merchant navy was again officially informed that the German U-boats had ceased to respect the rules of naval warfare and that merchant vessels were to adjust their conduct accordingly. It seems to me of no importance that a corresponding written supplement to Admiralty orders was not issued until the spring of 1940, because nowadays a naval war is not directed by letters but by wireless. But according to the latter, the British captains, as from 9 September or 1 October 1939 at the latest, were directed to use their guns offensively against the German U-boats in accordance with the Admiralty's instructions as contained in its handbook. The German order to attack armed enemy merchant vessels without warning was issued only on 4 October. Thus it was justified in any case, even if one did acknowledge a difference in treatment for vessels with defensive and offensive armament.
The guns on the merchant vessels and the orders concerning their use were, however, only a part of a comprehensive system
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of the use of merchant vessels for military purposes. Since the end of September 1939 the fastest vessels, that is, those ships that were the least endangered by submarines but, on the other hand, were especially suited for chasing U-boats, received depth charge chutes, that is, armaments which call for location of a submerged submarine and thus may be judged as typical weapons for the offensive.
However, another factor of greater general importance, and also of greater danger to the submarines, was the order to report every enemy ship on sight, giving its type and location. This report was destined, so said the order, to facilitate taking advantage of an opportunity, which might never recur, to destroy the enemy by naval or air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service with intent directly to injure the enemy. If one considers the fact that according to the hospital ship agreement even the immunity of hospital ships ceases, if they relay military information of this type, then one need have no doubts about the consequences of such behavior on the part of a commercial vessel. Any craft putting out to sea with the order and intention of using every opportunity that occurs to send military reports about the enemy to its own naval and air forces is taking part in hostilities during the entire course of its voyage and, according to the aforementioned report of 1930 of the committee of jurists, has no right to be considered a merchant vessel. Any different conception would not do justice to the immediate danger which a wireless report involves for the vessel reported and which subjects it, often within a few minutes, to attack by enemy aircraft.
All of the Admiralty's directives, taken together, show that British merchant vessels, from the very first day of the war, closely co-operated with the British Navy in combating the enemy's naval forces. They were part of the military communications network of the British naval and air forces and their armament of guns and depth charges, the practical training in manipulation of the weapons, and the orders relative to their use, were actions taken by the British Navy.
We consider it out of the question that a merchant fleet in this manner destined and utilized for combat should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the basis of this conception and in connection with the arming of all enemy merchant vessels, which was rapidly being completed, an order was issued on 17 October 1939 to attack all enemy merchant ships without warning.
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THE PRESIDENT: Dr. Kranzbuhler, we may as well break off now.
SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but I promised to tell the Tribunal about the two affidavits put forward for the Defendant Seyss-Inquart. We have no objection to them. I promised to tell Your Lordship today. I am sorry to have to detain you.
[The Tribunal adjourned until 16 July 1946 at 1000 hours.7]