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PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Mr. President, may it please the Tribunal, I shall proceed with the reading of my final argument.
I should like to recall the fact that yesterday I tried to show that Jodl, in any event until the year 1939, could not have been party to a conspiracy. But perhaps it is maintained that Jodl did not join the conspiracy until after 1939. As a previous speaker has already explained, an officer who works with others in the place assigned to him in carrying out a war plan can never be considered a conspirator. He does, in fact, have a plan in common with his superior, but he has not adopted it of his own accord, nor has he concluded an agreement to that effect, but within the normal scope of service he simply does what the post he occupies demands.
Jodl in particular can be considered a typical example of this. He did not go to Berlin of his own free will. It had already been decided long before that he would enter the Fuehrer's staff in case of war. Orders for the current mobilization year specified this. This mobilization year ended on 30 September 1939; for the following year General Von Sodenstern was already designated as Chief of the Armed Forces Operations Staff. Therefore, if the war had broken out 6 weeks later, Jodl would have entered the war as commander of his mountain division. He would then, in all probability, not be in this dock today. Thus it becomes clear that his whole activity in the war was fixed by a ruling which was independent of his will and had been laid down in advance long before. This fact is, in my opinion, in itself already striking proof that he did not participate in a conspiracy to wage wars of aggression.
When Jodl reached Berlin on 23 August 1939, the beginning of the war had been fixed for 25 August. For reasons unknown to him it was then postponed another 6 days. The plan for the campaign was ready. He did not need to conspire to produce it. If any conspiracy against Poland did exist at that time, the conspirators were to be found elsewhere, as we now know from the German-Russian Secret Treaty.
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Jodl was not introduced to the Fuehrer until 3 September 1939, that is after the war had begun, at a time when the final decision had already been taken. From then on his official position brought him close to Adolf Hitler; but, of course, one must add, close to him in locality only. He was never really on intimate terms with him. Even then, he did not learn of Hitler's plans and intentions and was only told of them as the occasion arose to the extent that his work absolutely demanded. Jodl never became Hitler's confidant and never had cordial relations with him. It remained a purely official relationship-often enough one of conflict.
In other ways, too, Jodl had remained a stranger to the Party. There is no suggestion of his having sought contact in Vienna, for instance, with the local Party leaders, although this would have been natural enough. Most of the Party leaders and most of the defendants he came to know only when they visited the Fuehrer's headquarters from time to time. With the exception of the officers, he had no relations with them. He abominated the Party clique in the headquarters and considered it an unpleasant foreign body in the military framework. He never ceased to fight against Party influences in the Armed Forces.
He did not attend Party functions. He did not take part in any Reich Party rally, apart from the fact that he once watched the Armed Forces display there on official orders. He never participated in the Munich memorial days on 9 November. The prosecutor has repeatedly referred to his Gauleiter speech to prove that, in spite of all this, Jodl identified himself with the Party and its efforts, and that he was after all not a soldier but a politician, and an enthusiastic supporter of Hitler.
Here one must first note that Document L-172, which is presented to us as this Gauleiter speech, is not the manuscript of this speech but a collection of material compiled by his staff, on the basis of which Jodl then drafted his manuscript. In addition, the speech was made extemporaneously. Not a single word of this document proves that Jodl really spoke it. Also the occasion of the speech must be taken into account. After 4 hard years of war, after the defection of Italy which had just taken place, before the fresh terrific burden which Hitler planned to impose on the population as the extreme effort, at this critical moment everything depended on upholding the people's will to carry on. For that reason the Party tried to get expert information upon the war situation so as to be able to buoy up sinking courage again. For this task the Fuehrer chose General Jodl, no doubt the only competent person. Many a person would have welcomed this opportunity to make himself popular with the Party leaders, but Jodl accepted the task contre coeur and against his will. The title of
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the address was: "The Military Situation at the Beginning of the Fifth Year of War." Its contents are a purely military description of the war situation on the various fronts, and how this situation was created. The beginning and the end, at least according to the document before us, constitute a hymn of praise to the Fuehrer, from which the Prosecution draws unwarranted conclusions. When a lecturer has first and foremost to win the confidence of his listeners-consisting of Party leaders-and when his task is to spread confidence in the supreme military leadership, then such rhetorical flowery speech is quite understandable.
Incidentally, Jodl does not deny that he sincerely admired some of the Fuehrer's qualities and talents. But he was never his confidant or his fellow conspirator, and even in the OKW he remained the nonpolitician he always was. Jodl was, therefore, not a member of a conspiracy. No concept of a conspiracy can help to make him responsible for criminal actions which he did not himself commit. And now I will deal with these individual Actions of which Jodl is accused.
According to Article 6 of the Charter, the Tribunal is competent to deal with certain crimes against the peace, against the laws of war and against humanity, as specified in the Charter and involving personal criminal responsibility of the guilty individual. If we disregard for the time being the crimes against humanity, which come under a special heading, there are two preliminary conditions to any individual punishment of the defendants:
(1) There must be a violation of international law in which they were guilty of complicity in some respect. The point of this whole Trial and that of the Charter after all lies in the fact that the force of the rules of international law is to be strengthened by penal sanctions. If, therefore, some specific violation of international law is committed, not only the responsibility of the particular country which violated the law will be established as heretofore, but in addition guilty individuals shall also be punished for it in the future. Thus there can be no punishment without a previous breach of international law.
(2) Provision for such a responsibility of individuals is however not made in all cases of a breach of international law, but only for those explicitly named in the Charter. Article 6(a) specifies the crimes against peace, Article 6(b), crimes against the laws and usages of war. Other actions, even if contrary to international law, are not mentioned.
Quite a few court sessions might have been dispensed with if the Prosecution had taken these two points into account right from the beginning, because, as I shall show, there is a tendency to accuse the defendants, beyond these limits, of acts contrary to
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international law which are not specified in the Charter. Nor is this all: they are to be called to account also for deeds which are in no way contrary to law, but can, at most, be considered as unethical. In the following points I shall adhere to the clear arrangement of the Anglo-American trial brief and add to it what was brought up against Jodl by the two other prosecutors.
Point (1) Collaboration in the seizure and consolidation of power by the National Socialists has, as I already pointed out, been dropped.
Points (2) and (3) concern rearmament and the reoccupation of the Rhineland.
Jodl had nothing to do with the introduction of compulsory military service or with rearmament. Jodl's diary contains not a single word about rearmament. He was a member of the Reich Defense Committee, which was not, however, concerned with the rearmament questions. He was here concerned with the measures which were to be taken by the civilian authorities in case of mobilization. There was nothing illegal in that. We were not forbidden to mobilize, for instance, in case of an enemy attack. The preparations in the demilitarized zone, which were proposed to the committee by Jodl, were also limited to the civilian authorities and consisted only of preparations for the evacuation of the territory west of the Rhine in order to defend the line of the river Rhine in case of a French occupation. The preparations were purely of a defensive nature.
If, in spite of that, Jodl recommended that these defensive measures be kept strictly secret, this is not evidence of any criminal plans, but was only the natural thing to do. As a matter of fact, particular caution was imperative, for the French occupation of the Ruhr was still fresh in people's memories. Neither did Jodl have anything to do with the occupation of the Rhineland; he learned about this decision of the Fuehrer only 5 days before its execution. Further comment on my part should be superfluous, for according to the Charter neither rearmament nor the occupation of the Rhineland-whether contrary to international law or not-belongs to the criminal actions envisaged by Article 6. These cases would come within the Charter only if a preparation for aggressive war were seen in them. But who would have thought of an aggressive war at that period? In 1938, owing to lack of trained troops, we could not have put into the field one-sixth of the number of divisions our probable enemies, France, Czechoslovakia, and Poland, could have produced. The first stage of rearmament was supposed to be reached in 1942. The West Wall was to have been completed by 1952. Heavy artillery was entirely lacking; tanks were at the test stage; the ammunition situation
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was catastrophic. In 1937 we did not possess a single battleship. As late as 1939 we did not have more than 26 seagoing U-boats, which was less than one-tenth of the British and French total. As far as war plans were concerned there existed only a plan for the protection of the Eastern frontier. The description of our situation in the Reich Defense Committee is very typical. It was said that as a matter of course a future war would be fought on our own territory; hence that it could only be a defensive war. This-please note-was a statement made during a secret session of this committee. The possibility of offensive action was not mentioned at all. But we were then not capable of serious defensive action either. For this very reason the generals considered themselves gamblers already at the time of the occupation of the Rhineland. But that any one of them could have been sufficiently optimistic to contemplate an offensive, of that there is not even the vestige of any evidence.
Points (4) to (6) of the trial brief refer to participation in the planning and execution of the attack on Austria and Czechoslovakia.
A deployment plan against Austria never existed. The prosecutors have submitted Document C-175 as such. But this is a misunderstanding; it is merely a program for the elaboration of diverse war plans, such as for a war against Britain, against Lithuania, against Spain, et cetera. Among those theoretical possibilities of war, "Case Otto" is also mentioned; this refers to an intervention in Austria in case of an attempt to restore the Hapsburgs. It says in the document that this plan was not to be worked out, but merely to be "contemplated." But since there was no indication whatsoever of such an attempt by the Hapsburgs, nothing at all was prepared for this eventuality.
Jodl did not attend the meeting on 12 February 1938 at Obersalzberg. Two days later came the order to submit plans for certain deceptive maneuvers, obviously in order to put pressure on Schuschnigg so that he should abide by the Obersalzberg agreements. There is nothing illegal in this, although the prosecutor speaks of "criminal methods." Jodl was completely surprised by the Fuehrer's decision to march in, made 2 days before it was carried out, and transmitted by telephone. Jodl's written order served only for the files. If this had been the original order, it would after all have come much too late. It was issued at 2100 hours on 11 March and the troops marched in on the following morning. Developments were described to us here. The troops had purely peacetime equipment; the Austrians crossed the border to meet and welcome them; Austrian troops joined the columns and marched with the German troops to Vienna. It was a triumphal procession with cheers and flowers.
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Then followed the case of Czechoslovakia. As late as the spring of 1938 Hitler stated that he did not intend "to attack Czechoslovakia in the near future." After the unprovoked Czech mobilization he changed his view and decided to solve the Czech problem after 1 October 1938-not on 1 October 1938-as long as no interference was to be expected from the Western Powers. Jodl therefore had to make the necessary preparations in the General Staff. He did this in the conviction that his work would remain theoretical because-since the Fuehrer desired under all circumstances to avoid a conflict with the Western Powers-a peaceful settlement was to be expected. Jodl tried to make certain that his plan should not be interfered with by Czech provocation. And things really did turn out as he expected they would. After the examination by Lord Runciman had revealed that minority conditions in Czechoslovakia could not continue as they were and showed the correctness of the German point of view, the Munich Agreement with the Western Powers took place.
Jodl is charged with having suggested in a memorandum that an incident might be created as a motive for marching in. He has given us the reasons for it. But no incident took place. This memorandum is not a breach of international law, if only because it is a question of internal considerations which never achieved importance outside. And even if this idea had been put into execution, such ruses have been used ever since the Greeks built their Trojan Horse. Ulysses, the initiator of this idea, is praised for this by the ancient poets as "a man of great cunning," and not branded as a criminal. I do not see anything unethical in Jodl's behavior either, for after all in the relations between states somewhat different ethical principles obtain than are taught in Sunday schools.
The occupation of the Sudetenland itself was effected just as peacefully as that of Austria. Greeted enthusiastically by the liberated population, the troops entered the German areas which had been evacuated to the agreed line by the Czech troops. Both these "invasions" are not crimes according to the Charter. They were not attacks, which would presuppose the use of force; still less are they wars, which would presuppose armed fighting; least of all are they aggressive wars. To consider such peaceful invasions as "aggressive wars" would be to exceed even the notorious analogies evolved by National Socialist criminal legislation. The four signatory powers could have included these invasions, which were still a recent memory, in Article 6, but this was not done because it was obviously intended to limit to acts of war the completely novel punishment of individual persons, but not to penalize such unwarlike actions. Generally speaking, any interpretation of the
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penal rules of the Charter tending toward an extension is inadmissible. The old saying applies: "Privilegia stricte interpretenda sent." Here we have an example of privilegium odiosum. Indeed there has probably never been a more striking example of a privileging odiosum than the unilateral prosecution of members of the Axis Powers only. Now it might also be attempted to make Jodl responsible for having drafted an invasion plan against Czechoslovakia at a time when a peaceful settlement was not yet insured. Jodl, however, counted on a peaceful settlement and had good reason to expect it. He therefore lacked the intention of preparing an aggressive war.
To this statement of facts, which excludes the question of guilt, must be added a legal consideration: We have established beyond any doubt that there is no punishment for crimes against the peace without previous violation of international law. Now if the Charter makes preparations for aggressive war subject to punishment, it clearly means that a person who prepared an aggressive war which actually took place should be punished. War plans, however, which remained nothing but plans, are not affected. They are not contrary to international law. International law is not concerned with what goes on in people's heads and in offices. Things which are immaterial from an international angle are not contrary to international law. Aggressive plans which are not executed-including aggressive intentions-may be unethical, but they are not contrary to law and do not come under the Charter.
Here we are concerned with plans which were not carried out because the peaceful occupation of the Sudetenland based on international agreement was not an aggressive war, and the occupation of the rest of the country, which incidentally was also accomplished without resistance and without war, no longer had any connection with Jodl's plans.
This occupation of the rest of Czechoslovak territory in March 1939 need not be discussed in greater detail here, for Jodl was in Vienna at the time and did not take part in this action. Neither did he have anything to do with its planning, for that has no connection whatsoever with Jodl's earlier work in the General Staff. In the meantime the military situation had changed completely; the Sudetenland with its frontier fortifications was now in German hands. The unopposed entry which then took place therefore followed totally different plans, if such plans existed at all. Jodl did not take part in the actual invasion.
Point (7) of the trial brief deals with war plans against Poland. The essential things have already been said on this subject: At the moment when Jodl left Berlin, no deployment plan against Poland existed. When he returned on 23 August 1939 the intention was
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to enter Poland on the 25th. The plan for this was naturally ready; Jodl had no share in it.
The Prosecution stresses further that Jodl was present in Poland in the Fuehrer's train on 3 September and that this was proof that he took part in the war. Is this, too, a reproach against a soldier?
Point (8) of the trial brief concerns attacks on the seven countries from Norway to Greece. The trial brief gathers these seven wars together into one point, and quite rightly too. They form one unit, because all of them resulted from military necessity and with logical consequence from the Polish war and from Britain's intervention. It is for this very reason that the fact that Jodl had nothing to do with the unleashing of the war against Poland is so important when judging him.
The historians will have to do a lot more research work before it is known how everything really came about. The only criterion for the judgment of Jodl's behavior is how he saw the situation at its various stages; whether, according to what he saw and knew, he considered Hitler's various decisions to wage war justified; and to what extent he influenced developments. That is all that we are concerned with here.
In connection with Norway and Denmark, may it please the Tribunal, I should like to refer to the statements made by Dr. Siemers the day before yesterday, and therefore I shall omit what comes next, but I should like to insert a statement at this point, namely, a statement regarding international law which is not contained in my manuscript. With reference to the statements made by Dr. Siemers in this regard the day before yesterday, in order to avoid any misunderstanding, I should like to add the following:
(1) There is not the slightest doubt that merchant ships of a state at war may pass through the neutral coastal waters. If its enemy, in order to prevent any traffic of that sort, mines the coastal waters, such action is a clear breach of neutrality. Even warships have the right to pass through, insofar as they adhere to the rules which have been stipulated and do not participate in any combat action in the coastal waters. And if this applies even to warships, it applies all the more to ships which are transporting prisoners of war.
(2) The fact that a war is a war of aggression does not in any way influence the validity and application of the normal war and neutrality rights. A contrasting opinion would lead to absurd results and would serve only to deal a deathblow to all the laws of war. There would be no neutral states, and the relations between the belligerents would be dominated by the principle of brute force. Each shot would be murder, each instance of capture would be punishable deprivation of liberty, each bombardment would be criminal material damage.
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This war, in any event, was not conducted along such principles by either side, and even the Prosecution does not uphold this point of view . . .
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): [Interposing.] One moment, Dr. Exner.
[There was a pause in the proceedings while the judges conferred.]
THE PRESIDENT: Go on.
DR. EXNER: Nor does the Prosecution maintain this point of view, otherwise they would not have charged the defendant with certain deeds as being crimes against the laws of war and the rights of neutrals. The entire charge under Count Three would not be understandable. And apart from that, Professor Jahrreiss has dealt with this question on Pages 32 to 35 of his final argument.
Jodl heard for the first time in November 1939-and this from Hitler himself-about the fears of the Navy that Britain was intending to land in Norway. He then received information which left no doubt that these fears were basically right. Furthermore, he had regular reports according to which the Norwegian coastal waters were coming more and more into the English sphere of domination, so that Norway was no longer actually neutral.
Jodl was firmly convinced-and still is today-that the German troops prevented the British landing at the last minute. No matter how Hitler's decision may be judged legally, Jodl did not influence it; he considered the decision justified and was bound to consider it as such. So, even if Hitler's decision were to be regarded as a breach of neutrality, Jodl did not give criminal help by his work on the General Staff.
Like every military expert, Jodl knew that if Germany had to fight out the war in the West, there was no other course but a military offensive. In view of the inadequacy of German equipment at the time and the strength of the Maginot Line, there was, however, from a military point of view, no other possibility for an offensive than through Belgium. Thus Hitler was, for purely military reasons, faced by the necessity of operating through Belgium. But Jodl also fully knew, as did every German who had lived through August 1914, how difficult such a political decision was as long as Belgium was neutral, that is, willing and able to keep out of the war.
The reports which Jodl received, and of the accuracy of which no justified doubts could be entertained, showed that the Belgian Government was already co-operating, in violation of her neutrality, with the general staffs of Germany's enemies. This, however, can be waived here in the defense of Jodl. It suffices to know-and
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this is indisputable-that part of Belgium's territory, that is, the air over it, was being continually used by Germany's Western enemies for their military purposes.
And this applies perhaps even more strongly to the Netherlands. Since the very first days of the war, British planes flew over Dutch and Belgian territory as and when they pleased. Only in some of the numerous cases did the Reich Government protest, and these were 127 cases.
THE PRESIDENT: Dr. Exner, will you refer the Tribunal to the evidence which you have for that statement?
DR. EXNER: I beg your pardon?
THE PRESIDENT: Will you refer me to the evidence that you have for that statement?
DR. EXNER: What statement, Mr. President?
THE PRESIDENT: That protests were made in 127 cases.
DR. EXNER: I am referring to the statements made by the witness Von Ribbentrop. He said that 127 protests were made.
THE PRESIDENT: Go on.
DR. EXNER: The Prosecution does not put the legal question correctly. Before air warfare gained its present importance, conditions were such that a state wishing to remain neutral could prevent its territory from being continually used at will by one of the belligerents, or else its neutrality was clearly terminated. After air warfare became possible, a state might relinquish or be forced to relinquish to one of the belligerents the air over its territory, and yet remain outwardly and diplomatically neutral. But by the very nature of the idea, the defense of its neutrality can be claimed only by a state whose whole territory lies de facto outside the theater of war.
The Netherlands and Belgium, long before 10 May 1940, were no longer de facto neutral, for the air over them was in practice, with or against their will, freely at the disposal of Germany's enemies. What contribution they thus made toward Britain's military potential, that is, toward the strength of one of the belligerents, is known to everybody. One need only think of Germany's most vulnerable point, the Ruhr.
Our adversaries obviously maintained the point of view that insofar as the barrier constituted by Holland and Belgium protected Germany's industrial areas against air attacks, their neutrality was immaterial; but with regard to the protection afforded to France and England, any violation was a crime.
Jodl naturally realized the situation. His opinion on the legal aspect, was, of course, a matter of complete indifference to Hitler.
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Here, too, his activity remained the normal activity of a General Staff officer.
THE PRESIDENT: One moment, please. Dr. Exner, is it your contention that it is in accordance with international law that if the air over a particular neutral state is made use of by one of the warring nations, the other warring nation can invade that neutral state without giving any warning to the neutral state?
DR. EXNER: In this respect I should like to maintain that this continual use of the air space over a neutral state-that is, for purposes of attack, for these planes flew over such territory in order to attack Germany-was a breach of neutrality. This breach of neutrality justified Germany's no longer regarding Belgium as a neutral country. Therefore, from the standpoint of the Kellogg Pact, or any previous assurance given with respect to neutrality, no charge can be made against Germany in this regard. Whether one can reproach Germany for the fact that she did not declare war in advance is something I leave open to discussion.
Incidentally, it may be presumed that the flights made by the British planes were not announced in advance either.
THE PRESIDENT: Well then, you are not prepared to answer the question I put to you?
DR. EXNER: Yes. The question was to the effect, Mr. President, whether a prior declaration was necessary; that was the question, Mr. President, was it not?
THE PRESIDENT: Whether you can attack a neutral state without giving any prior warning, that is, whether, in accordance with international law, you can attack a neutral state in such circumstances without giving any prior warning. That is the question.
DR. EXNER: My contention is that it was no longer a neutral state when it was attacked.
THE PRESIDENT: Then your answer is in the affirmative; you say that you can attack without giving any warnings, is that right?
DR. EXNER: There is an agreement in international law that war must always be declared in advance. In that sense Germany would have been bound to declare war beforehand. However, above and beyond that, because of the fact that this was not a neutral state, I do not believe that any other obligation still existed. I cannot see just why there should have been any obligation toward this state because it had been neutral at one time.
THE PRESIDENT: Well then, you say that there is a general obligation to declare war before you actually invade. You don't say, do you, that the fact that Holland was a neutral state prevented that obligation attaching?
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DR. EXNER: That I am not prepared to assume. A general obligation I admit, but I do not believe there was a special obligation because of the former neutrality of Holland and Belgium. I fail to see what justification could be given for that.
THE PRESIDENT: Go on.
DR. EXNER: Now I shall turn to Greece. Hitler wanted to keep the Balkans out of the war, but Italy had attacked Greece against his will at the beginning of October 1940. When the Italians got into trouble, a request was made for German help. Jodl advised against it, since British intervention in the Balkans would then have to be reckoned with and every hope of localizing the Italo-Greek conflict would thus be lost. Hitler then ordered everything to be prepared in case of need for German aid to Italy against Greece. These are the orders of 12 November and 13 December 1940.
If the attempt to localize the Italo-Greek conflict did not succeed, it was clear that Greece would be involved in the great Anglo-German struggle. The question was now whether Greece would come within the war zone controlled by the British or the Germans. In the case of Norway, Belgium, and Holland, part of the territory of these countries was already at Britain's disposal before the beginning of open hostilities, and they were, therefore, objectively at least, not neutral, which possibly they could no longer be. It was the same with Greece now. The Indictment referring to Greece established that British troops were landed on the Greek mainland on 3 March 1941, after Crete had for some time before that come within the area controlled by the British. Hitler did not give permission for aerial warfare on Crete until 24 March 1941, and began the mainland attack only on 6 April.
Here, too, Jodl had no influence on Hitler's decisions. He could have no doubt that Hitler's decision was inevitable in view of the way in which the war between the world powers was now developing. There was no choice; ever-increasing parts of Greek territory would have been drawn into the sphere of British power and would have become the jumping-off points for bombing squadrons against the Romanian oil fields unless Germany stopped this process. Moreover, the experiences of the first World War were disquieting; the coup de grâce had at that time been made from Salonika.
Hitler wanted to keep Yugoslavia out of the war, too. The German troops in the Balkans had the strictest orders to respect her neutrality rigorously. Hitler even rejected the proposal by the Chief of the Army General Staff to ask the Yugoslav Government for permission to allow sealed trains with German supplies to pass through its territory.
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The Simovic Putsch in Belgrade on the night after Yugoslavia joined the Tripartite Pact was considered by Hitler to be a malicious betrayal. He was of the opinion that the change of government at Belgrade, which reversed the course of its foreign policy, was only possible if Britain or the Soviet Union or both had provided cover from the rear. He was now certain that the Balkans would be fully drawn into the war tangle. He was certain that the German troops in Bulgaria were severely threatened, and also the German supply line which ran close to the Yugoslav frontier.
Under these conditions Hitler on the morning following the Belgrade Putsch took the decision for war, any preparation for which was absolutely lacking. Jodl's suggestions, and later Ribbentrop's too, to make things unambiguous by means of an ultimatum, were never considered. He wanted to make sure that Yugoslavia and Greece should not come into the sphere of influence of Britain but into that of Germany. The next day's news concerning Moscow's telegram of friendship to the Belgrade Putsch government and about the Yugoslav deployment then already in progress, as confirmed by the statement of the witness Greiffenberg (Document Book 3, Document Number Jodl-65, Exhibit AJ-12), and lastly the Russo-Yugoslav Friendship Pact, were for Jodl irrefutable signs that Hitler had correctly foreseen the connection of events. The decision to fight was taken by Hitler, and by Hitler alone.
Point (9) concerns the war against the Soviet Union. What each of the two Governments in Berlin and Moscow actually wished to achieve by the agreement of 23 August 1939 is not certain. One thing, however, is certain, and that is that these partners who were until then enemies had not arranged a love marriage. The Soviet Union was for the German partner a completely mysterious quantity, and remained so. Anyone who fails to consider this fact can in no way judge Hitler's decision to make a military attack on the Soviet Union, least of all the question of guilt.
If anywhere, it was in the Russian question that Hitler came to a decision without even listening to the slightest advice from anyone, to say nothing of taking it: He wavered for many months in his opinion about the intentions of the Soviet Union. The relations of the armies on both sides of the demarcation line from the very beginning were full of incidents. The Soviets at once occupied the territories of the Baltic States and of Poland with disproportionately strong forces.
In May and June 1940, when there were only 5 or 6 German covering divisions in the East, the Russian deployment against Bessarabia with at least 30 divisions, reported by Canaris, and the deployment into the Baltic territory caused great anxiety. On 30 June 1940 apprehensions were again allayed, so that Jodl-as
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Document 1776-PS has shown-even thought that Russia could be counted on as an aid in the fight against the British Empire. But in July there were renewed worries. Russian influence was progressing energetically in the Balkans and the Baltic territories. Hitler began to fear Russian aggressive intentions, as he told Jodl on 29 July.
The transfer of several divisions from the West, where they were no longer required, actually had nothing to do with this. This occurred at the request of the commander in the East who could not fulfill his security task with his weak forces.
Hitler's worry above all concerned the Romanian oil fields. He would have preferred to eliminate this threat back in 1940 by a surprise action. Jodl replied that owing to the bad deployment possibilities in the German Eastern Territories this could not be considered before winter. Hitler demanded verification of this opinion and Jodl arranged for the necessary investigations in a conference with his staff at Reichenhall, which was obviously misunderstood by the Russian Prosecution. On 2 August Hitler ordered improvements to be made in the deployment possibilities in the East-a measure which was no less indispensable for defense than for an offensive.
Toward the end of August-this is the order of 27 August- 10 infantry divisions and 2 Panzer divisions were brought into the Government General in case a lightning action should become necessary for the defense of the Romanian oil fields. The German troops, now totaling 25 divisions, were indeed intended to appear stronger than they really were, so that an action should become unnecessary. This is the meaning of Jodl's order for counterespionage (Document Number 1229-PS). Had there been offensive intentions at that time, there would presumably have been an attempt to make Germany's forces appear smaller than they were.
At the same time Hitler appears to have given the Army General Staff orders-without Jodl knowing anything about it-to prepare an operational plan against Russia for any eventuality. In any case, the Army General Staff, General Paulus, worked on operational plans of this kind as from the autumn of 1940.
Unfavorable information then accumulated after the Vienna arbitration on 30 August 1940. If Jodl was to believe his utterances, Hitler was becoming convinced that the Soviet Union had firmly resolved to annihilate Germany in a surprise attack while she was engaged against Britain. The leaders of the Red Army had, according to a report of 18 September, declared a German-Russian war to be inevitable (Document Number C-170). In addition, reports came in of feverish Russian preparations along the demarcation line. Hitler counted on a Russian attack in the summer of 1941 or winter
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of 1941-42. He thus decided, should the discussions with Molotov fail to clear up the situation favorably, to take preventive steps. For in that case the only chance for Germany lay in offensive defense. For this eventuality, preparatory measures were ordered by Hitler on 12 November 1940 (Document Number 444-PS).
The failure of the discussions with Molotov decided the question. On 18 December 1940 Hitler gave orders for the military preparations. Should the coming months clear up the situation, all the better. But it was necessary to be prepared in order to deliver the blow in the spring of 1941 at the latest. This was presumably the latest possible moment, but also the earliest, since more than 4 months were required for the deployment.
Jodl, as an expert, emphatically pointed out to Hitler the enormous military risk which could be run only if all political possibilities of averting the Russian attack were really exhausted. Jodl became convinced at that time that Hitler actually had exploited every possibility.
The situation grew worse. According to reports which were received by the Army General Staff at the beginning of February 1941, 150 Russian divisions, that is, two-thirds of the total Russian strength known, had deployed opposite Germany. Yet only the first stage of the German deployment had begun.
The Soviet Government's telegram of friendship to the participants in the Belgrade Putsch on 27 March 1941 destroyed Hitler's last hope. He decided upon an attack, which however had to be postponed for more than a month owing to the Balkan war.
The deployment was undertaken in such a manner that the mechanized German units, without which the attack could not be conducted at all, were brought to the front only during the last 2 weeks, that is, after 10 June.
Genuine preventive war is one of the indispensable means of self-preservation, and was indisputably permitted according to the Kellogg-Briand Pact. The "Right of Self-Defense" was understood by all the signatory states.
If the situation was wrongly construed, the German military leaders cannot be blamed for their error. They had reliable reports on Russian preparations which could only make sense if they were preparations for war. The reports were later confirmed. For when the German attack met the Russian forces, the German command received the impression of running into a gigantic deployment against Germany. General Winter developed this here in detail in addition to Jodl's statements, particularly with regard to the enormous number of new airports near the line of demarcation, and he drew particular attention to the fact that the Russian staff units
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were provided with maps of German territories. Field Marshal Von Rundstedt also confirmed this as a witness before the Commission. This will come before the Tribunal during the further course of the Trial.
Jodl firmly believed that Hitler would never have waged war against Russia unless he had been absolutely convinced that no other path was open to him at all. Jodl was aware that Hitler fully appreciated the danger of a two-front war and would jeopardize victory over England-which he thought was assured-only in the utmost emergency. Jodl simply did his job as an officer of the General Staff. He was convinced, and still is today, that we were waging a genuine preventive war.
I come now to Point (10) of the trial brief, concerning war against the United States. That Jodl had no desire to supplement the number of our enemies with a world power is obvious, and is also shown by documents.
Now what is the position with regard to the responsibility for these campaigns? A declaration of war is a decision in the field of foreign politics, the most important one in the whole of this field. It depends on the constitutional structure of the concrete state as to who is responsible for this decision-politically, criminally, and morally-and on the way the formation of a decision in the field of foreign politics takes place in the state according to its constitution. Professor Jahrreiss has said of this that in the Fuehrer State it is exclusively the Fuehrer who has to make this decision. Anyone who advises him about this cannot be responsible, for, if what the Fuehrer orders is legally right, he who influences this order cannot be acting illegally.
The Charter obviously represents the opinion that those who in any way participate in the Fuehrer's decision or influence it are coresponsible. If we take this legal conception as authoritative the question of responsibility crystallizes into a problem of competence.
In every community the tasks of its organs must be limited; there must be rulings on competence laying down what each official is called upon to do and not to do. Thus in all states the relations between the military and the civil administration are naturally regulated, just as within the military and within the administration the tasks and the relations between their thousands of offices are regulated. If things were otherwise, chaos would reign.
Particularly in wartime the problem of competence in the relations between the political and military leadership is important. The military being the most important instrument of policy, the assistant may easily try to become master, in other words, the military may try to interfere in politics. It was German tradition to avoid this. The Bismarck Reich took great pains to keep the officers
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far removed from politics; they had no right to vote, were not allowed to go to political meetings, and in fact any statements on politics made by an officer were looked upon askance. For this might in some way be looked upon as taking sides, which was severely prohibited. The military were to be politically blind, completely neutral, and were to adhere to a sole point of view, which was that of legitimacy, that is, subordination to the legitimate ruler.
Thus in the years 1866 and 1870 when there was danger of war, it was not Moltke but Bismarck who advised the king as to the political decision. This changed during the last years of the first World War. General Ludendorff became the strongest man in the Reich, owing to the force of his personality and the weakness of his political opponents. People often talk of Prussian militarism, and for the time when the military had seized political power this was justified. The Weimar State completely abolished this. The nonpolitical character of the Reichswehr was stressed very emphatically and the military were again limited to their particular field. This went so far that a civilian was made minister for war, who had to represent the Reichswehr politically in the Reichstag. The longest period of office was held by a Liberal Democrat minister, who was meticulously careful to avoid all political influence by the generals.
When founding the Wehrmacht Adolf Hitler maintained this sharp distinction between politics and military, indeed he even stressed it in a certain sense. He, who wished to make the whole people political-minded, wanted a nonpolitical Wehrmacht. The soldier was deprived of political rights: He was not allowed to vote or to belong to any party, not even the NSDAP, as long as the old law on military service was in force. In keeping with that, he also kept his generals and highest military advisers away from any part in political affairs. He also remained consistent toward his own party. When, after Fritsch had gone, a new Commander-in-Chief of the Army was to be appointed, it would have been easy enough to have chosen Von Reichenau, who had National Socialist leanings, but he appointed Von Brauchitsch. He did not want any political generals, not even National Socialist ones. His point of view was that he was the Fuehrer, he was the politician; the generals had to see to their own affairs; they knew nothing about politics. He did not even tolerate advice when it concerned politics. The generals did, in fact, repeatedly venture to express doubts as to his political plans, but were obliged to limit themselves strictly to purely military points of view. This sharp division into political and military spheres of competence is, for that matter, not characteristically German. It applies also, if I am correctly informed, to the Anglo-Saxon democracies, and indeed to a particularly pronounced degree.
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At any rate it was thus under Hitler: He made political decisions, and it was only on their military execution that the generals had any influence. It was their task to make the military preparations corresponding to any political eventualities. But it was Hitler who pressed the button which would set the machine in motion. The "whether" and "when" were decided by the Fuehrer. It was not for them to weigh the advantageousness, the political feasibility, or the legal permissibility.
Psychologically this attitude of the Fuehrer became still more pronounced owing to the almost inconceivable mistrust he felt toward his generals. An extraordinary phenomenon; yet, anyone who disregards it can never come to understand the atmosphere which reigned in the Fuehrer's headquarters. It referred-he thought-to the reactionary attitude of the officers' corps. He never forgot that the Reichswehr had fired at National Socialists in 1923. It was, moreover, the natural mistrust of the military dilettante toward the military expert, for he wanted to be a strategist; and also probably the mistrust of the political expert toward political dilettantes in officers' uniform. This mistrust of the political insight of his military entourage was moreover by no means entirely unfounded. For the generals had wanted to put a brake on his rearmament plans, to hold him back from the occupation of the Rhineland, and had expressed objections to his march into Austria and to his occupation of the Sudetenland. And yet all these actions had succeeded smoothly and without bloodshed. The generals felt like gamblers when carrying out the plans, but Hitler was sure of his game. Is it to be wondered at that their political judgment did not carry too much weight with him, and is it to be wondered at that from the other side the apparent infallibility of his political judgment met with more and more recognition?
Thus Hitler tolerated no interference in his political plans, and the result of it, as has been drastically represented to us here, was that, had a general raised objections to Hitler's political decisions, he might not actually have been shot, but his sanity would have been questioned.
Altogether this man of power detested being given advice. Thus at the beginning of military undertakings the chances of the plan were hardly ever considered in general discussions. None of the important decisions since 1938 came about as the result of advice. On the contrary, the decision often came as a total surprise to the military command. This applies, for instance, to the march into Austria, of which Jodl learned 2 days before it happened, or in the case of the attack on Yugoslavia, which was suddenly decided upon by Hitler and carried out without any
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preparations within a few days. The alleged "discussions" at the Fuehrer's headquarters, the course of which the witness Field Marshal Milch described so clearly, were nothing but briefings.
Within the Wehrmacht the spheres of competence of the individual departments were also, of course, sharply divided, and the method which Hitler used to make these divisions as insurmountable as possible is of interest. This was achieved by the method of secrecy. Enough has been said about this, particularly about the so-called "Blinkers' Order," which forbade anybody to obtain insight into anybody else's work. Thus each department was isolated and strictly limited to its own tasks. Obviously what Hitler desired to achieve by this system was that he should retain the reins in his hands as the only fully informed person.
Indeed he strengthened this system still more by only too often playing off individuals, groups, and departments one against the other to prevent any conspiracy among them.
Mr. President, I have concluded my paragraph.
THE PRESIDENT: We will adjourn now.
[A recess was taken.]
DR. EXNER: These methods of isolationism which I mentioned before are interesting, because they often inevitably came into conflict with one of the basic ideas of National Socialism, the Fuehrer Principle; but they were carried through in spite of this, for instance when the competence of two departments covered the same territory, such as the competence of a military commander and of Himmler in the same occupied territory. What was ordered by one did not concern the other, even though the execution of the order might encroach upon the arrangement for which the other was responsible. Thus the military commander was in no way master in his territory. Things were the same in the civil administration too: There was the double role of the Landrat as a State functionary and the Kreisleiter as a Party functionary, of the Reichsstatthalter and the Gauleiter.
Everywhere there was a dualism of powers and therefore a dissipation of power. There was method in this; it prevented lower organs becoming too strong and safeguarded the power of the supreme leadership. It may be said epigrammatically that the Fuehrer Principle was realized only in the Fuehrer.
What was the position of Jodl's sphere of competence within all this machinery? He was the Chief of the Armed Forces Operations Staff, which divas a department of the OKW coming under Keitel. Jodl's main task was, as the name of the department
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implies, to assist the Supreme Commander in the operational leadership of the Armed Forces. He was the Fuehrer's adviser on all operational questions-in a certain sense the Chief of the General Staff of the Armed Forces. The task of this Chief of the General Staff, in all countries in which this arrangement is known, is not that of giving orders but of advising, assisting, and carrying out. This goes to show that Jodl's position has frequently been misunderstood during the course of this Trial.
(1) He was not Keitel's Chief of Staff, but the chief of the most important department of the OKW, though he had nothing to do with the other departments and sections of the OKW.
Here I have to make an interpolation in deviation from my manuscript. He was also not Keitel's deputy. In Berlin Keitel was represented by the senior departmental chief, and that was Admiral Canaris. At the Fuehrer's headquarters there was only the Armed Forces Operations Staff, for whom Jodl reported directly to the Fuehrer. He had nothing to do with the other sections of the OKW.
(2) It is also a mistake that Jodl is designated by the Prosecution as the commander of one campaign or another. He had no power of command, let alone command of an army.
(3) It was equally wrong when it was repeatedly said that Warlimont was present at the meeting of 23 May 1939 as Jodl's deputy or assistant. Warlimont was in the OKW at the time; Jodl had left the OKW in October 1938 and had nothing more to do with Warlimont in May 1939.
What is indicated by all this with reference to Jodl's responsibility for the real or alleged wars of aggression? In general, one can only be made responsible for what one does criminally when one should not do it, and for what one has criminally neglected to do when one ought to have done it. What an officer or an official has or has not got to do is a question of competence. So this is where the problem of competence assumes its importance for us. Let us look at it more closely:
Jodl is accused of having planned and prepared certain wars which were breaches of international law. This reproach would be justified only if it was within his competence to examine, before he carried out his task, the legality of the war which might be waged, and to make his co-operation dependent on this decision. This must be very definitely contested. Whether or not to wage a war is a political question and is the politician's concern. The question of how to wage war is the only question concerning the Armed Forces. The Armed Forces can suggest that the war is, in view of the opponent's strength, too risky, or that the war
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cannot be waged at a particular season, but the final decision rests with the politicians.
I could, to be sure, imagine that the Chief of the Armed Forces Operations Staff might become at least morally guilty of complicity in a war of aggression if he had incited the decisive quarters to bring about a war, or if, drawing attention to military superiority, he had advised the political leadership to exploit the propitious moment in order to carry out extensive plans of conquest. In such a case one could call him an accomplice, because he, over and above his military task, intervened in politics and provoked the decision for war. But if he plans and carries out the plan of a possible war, that is, in case the political leadership decides on war, he does nothing but his evident duty.
One should consider the extraordinary consequences which would arise from a different conception: The competent authority would declare war, and the Chief of the General Staff, who regards this war as contrary to international law, would fail to co-operate. Or the Chief of General Staff happens to be of the same opinion as the head of the State, but one of the army commanders has objections and refuses to march, while another one has doubts and has to think it over first. Can war be waged at all in this case, be it a war of defense or a war of aggression?
Such a conception of law would, in the future, lead to highly problematical results. The Security Council of the Allied Nations has decided to set up a World Police with the task of protecting world peace against aggression. At the same time the creation of a World General Staff has been considered which would have to plan and carry out this punitive war. Now let us imagine that the Security Council decides on a punitive war and the Chief of the General Staff replies that in his opinion there is no aggression. Would not the whole security apparatus in this case depend on the subjective opinion of a single nonpolitical person, that is, would it not in fact become illusory?
I need only add one more thing in passing: If this opinion should prevail, what efficient man would still decide to become a regular officer, if, on reaching a high position, he would risk being put on trial for crimes against the peace in case of defeat?
Moreover, for that matter, it is wrong, even if only for practical reasons, to impose on a general the duty of examining the legality of a war. The general will only seldom be in a position to judge whether the state to be attacked by him has broken its neutrality or whether it threatens to attack or not. And, furthermore, the conception of a war of aggression and of a war contrary to law is, as Professor Jahrreiss has explained, still completely unclarified and contested among scholars of international law. Yet a
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general, who lives far apart from all these considerations, is expected to recognize that it is his duty to carry out a legal investigation?
But even if he had recognized the war as illegal, just let us imagine the really tragic position in which this general would find himself. On one hand there is his obvious duty toward his own country, which he has taken an oath as a soldier to fulfill, on the other side this obligation not to support any war of aggression, a duty which forces him to commit high treason and desertion, and to break his oath. One way or the other he will become a martyr.
The truth is this: As long as there is no superstate authority which impartially establishes whether, in a concrete case, such a duty does exist for the individual, and as long as there is no superstate authority which will protect against punishment for high treason and desertion people who fulfill this duty, an officer cannot be held criminally responsible for a breach of the peace. Whatever the circumstances, one thing must be pointed out: On the one hand the Prosecution reproaches the generals for not having been simply soldiers, but also politicians; on the other hand, it demands of them that they should remonstrate against the political leadership and sabotage its resolutions-in short, that they should not simply be soldiers, but politicians.
The Prosecution do actually acknowledge this up to a certain point. They say that it is not intended to punish the generals for having waged war-for this is their task-but they are reproached for having caused the war.
And the second argument, which often recurs, is that without the generals' help, Hitler could not have waged these wars, and that makes them coresponsible.
This argument contradicts itself. For the help which the generals gave Hitler consisted in planning and carrying out military operations, that is, in waging the war, for which, in the opinion also of the Prosecution, they cannot be criminally charged. Let us examine this more closely: Jodl is said to have caused wars. It has been sufficiently proved that he played absolutely no part in the launching of the Polish campaign. And it was this very campaign which, with strategic necessity, brought about all the further happenings.
Actually one need not examine the origins of the individual wars at all to be able to say, in view of all that we know now, that in this assertion there lies an enormous overestimation of Jodl's power in the Hitler State. The decision to start the war was far removed from his influence. On this very point advice from the generals was not heard. At most, purely military considerations could be submitted. And the Norwegian campaign was the only one of all these
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campaigns which a military man advised Hitler to carry out for reasons of strategic necessity. But that was not Jodl. As regards the latter, the assertion that he caused wars would be founded on nothing. Let the transcript, the memorandum for his speech, or any other document be shown according to which Jodl at any time incited people to war, or even only recommended the decision to start a war. His Gauleiter speech is submitted against him. In it Jodl shows-looking back-how the events developed one out of the other. For instance, how the Austrian Anschluss facilitated action against Czechoslovakia, and how the occupation of Czechoslovakia facilitated the action against Poland. But it is bad psychology to deduce from this that a general plan for all this existed from the first. If I buy a book which draws my attention to another one, and I then buy the latter as well, does it follow that at the time of the first purchase I already had the intention of getting the second one as well? If Hitler had extensive plans right from the start, Jodl did not know of them, let alone consent to them. His purely defensive deployment plan of 1933 already proves that by itself alone. Every time a campaign had been resolved upon, he did indeed do his bit to carry it out successfully. It is this supporting activity which is the object of the second of the arguments mentioned earlier.
It is true that without his generals Hitler could not have waged the wars. But only a layman can construct a responsibility on that basis. If the generals do not do their job, there is no war. But one must add: If the infantryman does not march, if his rifle does not fire, if he has nothing to clothe himself with and nothing to eat, there is no war. Is therefore the soldier, the gunsmith, the shoemaker, the farmer guilty of complicity in the war? The argument is based on a confusion between guilt and causation. All these persons, and many others too, effectively co-operated in the waging of the war. But can one therefore attribute any guilt to them? Does Henry Ford share in the responsibility for the thousands of accidents which his cars cause every year? If an affirmative answer is given to the question of causation, the question of guilt is still not answered. The Prosecution even refrains from putting this question.
The question of guilt will be discussed later. Here only the following is anticipated: Criminal participation in the planning and carrying out of a war of aggression presupposes two things:
(1) That the person involved knew that this war was an illegal war of aggression;
(2) that, by reason of this knowledge, it was his duty to refrain from co-operating in it.
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The latter links up with what has already been mentioned: By virtue of his position it was Jodl's duty to make plans. Whether they were used or remained unused did not depend on him; it is characteristic that Jodl made a whole series of deployment plans which were never carried out. All general staff plans are only drawn up for an eventuality in case the political leadership should "press the button." Often they did it; often they did not. That was no longer a matter for the general staff officer.
The other presupposition for an accusation of guilt is that the person involved recognizes the war as a war of aggression. The question is, therefore, how these things appeared to him. How they were in reality interests the historian. The decisive question for the criminal lawyer is What reports were submitted to Jodl about the conduct of the enemy? Could it be taken from these reports that the enemy was acting contrary to his neutrality; that he was preparing an attack on Germany, et cetera?
The decisive point is not whether these reports were true, but whether Jodl believed them to be true. I must stress this, because it has been said here at times: "The Tribunal will decide whether this was a war of aggression." That, of course, is true, because if the Court decides that it was not a war of aggression, no sentence for waging a war of aggression will be pronounced. But if the Court agrees that the war was, in fact, launched illegally, this does not in itself affirm the guilt of any person.
Someone who takes someone else's watch in the belief that it is his own is no thief. The guilt is lacking, for had it really been his own watch, he would not have been liable to punishment. So if Jodl believed that facts existed which, had they been true, would have made the war a legally admissible one, no sentence for breach of the peace can be pronounced.
Now, the Prosecution have repeatedly asked the generals the ironical question how it conformed with the code of honor of an officer to assist in a war which they had recognized to be illegal.
Let us assume that Jodl was sure that the war was illegal and that he had, for reasons of conscience, refused to collaborate. What difference would there then have been between him and a soldier who throws away his rifle in battle and retreats? Both of them would be liable to the death penalty for disobeying orders in war.
I know that the United States is generous enough to respect a soldier who, for religious reasons, refuses to take up arms, and not treat them as we do. But that applies only to religious scruples, and doubtless does not apply to a man who, owing to objections based on international law, does not co-operate in the war decided on by the political leadership. One would object that it is not his affair, not an affair of his conscience to examine the admissibility of the
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war, but that this is the duty of the responsible state authorities. According to continental law, one would not even stop to consider such an excuse for refusing obedience.
Furthermore, I regard that ironical question to the generals merely as an attempt to humiliate them morally, but not as an accusation touching the subject of this Trial. The International Military Tribunal is not a court of honor which decides about dishonorable actions of the accused, but a criminal tribunal which has to judge certain actions which have been declared criminal by the Charter. It appears to me that the Prosecution forgot this fact on several occasions.
Before I pass on to the last point, the 11th of the Anglo-American trial brief, regarding crimes against the laws of war and humanity, I must make a few preliminary remarks.
First, a misunderstanding has to be cleared up. The Prosecution says that we wanted to wage a total war thereby meaning a war which is waged by all methods, regardless of whether legal or illegal in short, a war where the laws of war are ruthlessly violated. I was not a little surprised when I read this. We have indeed spoken enough about total war during the past 7 years, but we understood something quite different by it. We describe as total war a war waged with all the means of the spirit, of manpower, and of material, and mobilizing all the nation's forces; that is, a change-over of the entire economy to war needs, conscription at every single man capable of bearing arms, and of every single able-bodied woman, and if possible also of the young people. German soldiers from the East, who were familiar with Russia's example, jeered when we spoke of "total war"; had we not still three greengrocers on every street and tobacconists at every corner? That was no total war, they said, when so many workers were enrolled for nonmilitary purposes, when whole factories were still producing articles which had no connection with the war, and so forth. The war really had to be a total war, they said, if it was to be won, but that has nothing at all to do with contempt for the laws of war. I have never heard the word interpreted in this sense.
In the Anglo-American trial brief, Jodl is charged altogether with three documents (They concern the Commando Order and the capitulation of Leningrad. A fourth, 886-PS, was subsequently withdrawn by the Prosecution). The French and Russian prosecutors have, however, made further additions.
Again we must turn first to the question: Wherein lay Jodl's responsibility as Chief of the Armed Forces Operations Staff?
As we know, Jodl was primarily the adviser of the Fuehrer with regard to the operational direction of the Armed Forces. This staff, however, had still other departments in addition to the operations departments of the three branches of the Armed Forces. When the operational tasks increased tremendously during the winter of 1941-42, a division of work was arranged between the Chief of the OKW and Jodl, according to which Jodl was only responsible for the military operations and the drawing up of the Armed Forces report, while the Chief of the OKW worked on all other matters in connection with the Quartermaster Department and the Organizational Department of the Armed Forces Operations Staff. It follows from all this that Jodl had nothing to do with prisoners of war, for which a special department in the OKW was responsible,
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nor with the administration of the occupied territories, and therefore had nothing to do with the seizure of hostages and with deportations. I shall discuss UK-56 later. Jodl did not have anything to do with police tasks in the zone of operations or in the rear military zone. The Armed Forces Operations Staff had no authority to issue orders; nevertheless, there are many orders which Jodl signed either "by order" or with his own "J." We must now discuss these orders and the responsibility for them:
(1) There are orders which commence with the words "The Fuehrer has ordered" and are signed by Jodl, or signed by Keitel and initialed by Jodl. These are orders which were given by the Fuehrer orally, with the order to Jodl to draft them or put them into writing. With regard to responsibility, the same applies here fundamentally as applies to the orders signed by Hitler. For, in order to determine the responsibility, one must ask the question: What was the task of the person to whom the order was communicated? To what was he entitled and what was he obliged to do?
When the contents of the order were fixed in all their essential points, Jodl's task was only a formal one: he had to formulate what was already established, to give it the usual form of a military order, without being allowed to alter anything in its contents. It must not be overlooked that the criminality of an order can only lie in its contents and that it was precisely the contents which a subordinate had no influence on here. In this case the reason for immunity from punishment for the subordinate does not lie in the fact that he was ordered by his superior officer to act thus or thus, but in his lack of competence to alter anything in the given facts. The Prosecution sees in the formulating of the order criminal assistance, but I find it impossible to agree with this: In the first place because it is an order of the Fuehrer's which creates law, so that criminal assistance is impossible; but even if this is not accepted, and a Fuehrer's order is, on the contrary, considered as illegal and as punishable, one can still not close one's eyes to the fact that it was not Jodl's business to examine the legality, but only to draw up the order in a technically correct manner, that is, in accordance with the will of the author of this order. If he did this and only this, he has no responsibility. Here the superior essentially gave the order himself, and the subordinate just put it into words.
Naturally one will wish to make a difference between a clerk being given the job of writing down the order, and a senior general. Although the latter may not have the legal, he will however have the moral duty of expressing his scruples to his superior. Jodl actually always did this; this was the least of his various methods of preventing an illegal move, to which I shall refer later.
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(2) Another very frequent case is where Jodl signed his order "IA," that is, "Im Auftrag" (by order), or initialed with his "J" orders signed by Keitel. Where does the responsibility lie here? We shall have to differentiate here between military and legal responsibility. From the military point of view, the superior, by whose order the order is signed, is responsible for it. Criminal law, however, lays the emphasis on the guilt, that is, it desires to establish the real culprit, not the person responsible from the military point of view. Since, however, the owner of the initial or the person signing "by order" is mostly the author of the document, it may happen that the latter is responsible from the point of view of criminal law, although he is not responsible in the military sense. For this reason it is necessary here to ascertain the actual share of both signatories in each case, and to determine culpability accordingly.
(3) Where Jodl did not sign his initial on the right below the last word of the document, but in the top right-hand corner of the first page, this means merely that the document was submitted to him for his information. It does not say whether he actually read it or approved it. Initials affixed in this manner do not, therefore, in themselves connect the person initialing the order with the contents from the point of view of criminal law.
(4) Jodl is also being charged with certain notes, partly so-called "memoranda," partly handwritten remarks which he wrote on drafts or other documents. What is the position with regard to the legal significance of such notes?
The following statement has already been made in "Case Green" in connection with the tentative proposal to manufacture an incident. A memorandum contains the deliberations, statements of fact, and opinions of the author or of other authorities, et cetera. It is not an order, but the data on the basis of which the superior can decide whether he will issue an order and what order. As long as such a memorandum remains a memorandum, it is a purely internal affair without any significance in international law, and can never be a violation of the laws and customs of war. This was explicitly laid down as the prerequisite for punishment in Article 6(b) of the Charter.
The same applies to marginal comments which so often occur in the files of the OKW: "Yes," "No," or "That is impossible," et cetera.
Admittedly, such memoranda or marginal comment may obtain legal significance. If a memorandum contains a proposal which is contrary to international law, and if it influences the superior in such a way that he issues an order with the same contents, this might possibly be regarded as participation in a violation of international law. If, however, no order is issued, or if an order is issued which is contrary to the proposal, then this proposal has remained
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without effect, a purely internal matter, and unpunishable under all circumstances.
Furthermore, a memorandum or marginal comment may be a guide to the writer's sentiments. It may be gathered from it that he is inclined favorably toward international law or that he pays no heed whatsoever to considerations of international law. That may often be an important help in judging his character.
But we do not punish sentiments. Murderous intentions throw a bad light on the subject, but are not punishable. Caution must, of course, be exercised in the evaluation of such remarks. They are often thrown in thoughtlessly, without much aforethought, intended only for the reader in question.
If we take all this into account, several of the accusations which the prosecutors have raised against Jodl are eliminated in advance:
(1) His behavior on the matter of the low-flying airmen (Documents 731-PS, 735-PS). It was proposed to leave low-flying airmen who attacked the civilian population in a truly criminal manner, as happened again and again, to the lynch law of the people. Jodl was opposed to this idea, since it was bound to lead to the mass murder of all airmen who parachuted. Jodl raised objections in the form of marginal comments. He succeeded in sabotaging the order and the Armed Forces never issued it. This should be counted to Jodl's credit, but it is apparently held against him that he did not use words of moral indignation in declining the proposal. Under the conditions existing at the time, that might even have had the opposite effect. In any case there is no crime here.
(2) The Commissar Order-Document 884-PS. On this horrifying draft order-it is only a draft-which had been drawn up already prior to the outbreak of the Russian war, Jodl made the comment that it would provoke reprisals against our soldiers and that the order should preferably be drawn up in the form of a retaliatory measure; that is, one should wait and see what action the commissary really took, and then perhaps take countermeasures. Again he is not given credit for the fact that he opposed it, but he is accused of the manner in which he opposed it. From a legal point of view that is meaningless. Later Jodl had nothing more to do with this matter. He did not even receive any communication regarding the success of his protests.
(3) The Geneva Convention-Document D-606. In this case Jodl did not only submit a memorandum, but also a statement in great detail, to Hitler, as he wished under all circumstances to thwart the latter's plan of renouncing the Convention. There he mentions all the reasons against the renunciation, and reassures Hitler afterward by saying that it is possible to circumvent certain clauses even
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without a renunciation of the Convention. This again is not an action contrary to international law, but shows at the most sentiments opposed to international law. More correctly, it appears to do so. In truth this was nothing but accepted tactics for dissuading Hitler from his infamous plan: The renunciation did not take place. By taking offense at the unethical argumentation, one is overlooking the fact that Jodl, after 5 years' experience, knew better than we do with what arguments it was possible to persuade his chief.
(4) The order regarding Leningrad-Document C-123. By letter of 7 October 1941 Jodl notified the Commander-in-Chief of the Army-and it is nothing but a notification-that Hitler had repeated an already previously issued order to the effect that an offer of capitulation was not to be accepted from either Leningrad or Moscow. Such an offer was, however, never made, and the order could not therefore have been carried out at all. The whole matter remained on paper, and, if only for that reason, does not constitute a violation of international law. This also can at the most be regarded as a guide to the author's sentiments, but has no place in an indictment as a punishable action. The following should, however, be added in explanation of the matter. In this letter Jodl explained the indisputable dilemma which had caused Hitler to issue this order:
(a) An offer of capitulation was expected to be simulated. Leningrad, in fact, was mined and would be defended to the last man, as the Russian radio had already announced. The bad experiences as a result of delayed-action mines, prepared according to plan, in Kiev, Odessa, and Kharkov, had taught the German Operations Staff what things they must beware of.
(b) In addition there was the great risk of an epidemic, which would also arise in case of a genuine capitulation. Even if for that reason alone, German troops must not be allowed to enter the town. Acceptance of a capitulation was thus entirely impracticable.
(c) Added to that was the utter impossibility that the German troops should feed a half-starved city population of millions. The railway tracks had not as yet been adapted to the width of the German gauge, and even supplies for the troops caused much worry. And finally there was the military danger to the German operations, of which Field Marshal Von Leeb had complained to the Defendant Keitel.
All this required steps to be taken to prevent the population of the towns from fleeing westward and southward through the German lines, and rather to make escape to the East possible for them, indeed, even to encourage it. Hence the directive to leave gaps in the front lines in the East.
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The fact that Hitler let it be seen how he intended to utilize the military situation of constraint for the benefit of his Eastern plans lies outside the military considerations. That has nothing to do with the order itself. The only question is whether the order was inevitable from a military point of view, and this in fact it was for the aforementioned reasons. Whether or not the order was given anew by Jodl could not alter the situation in any way.
I shall now discuss individual war crimes of which Jodl has been accused:
(a) The Commando Order.
Two orders of 18 October 1942, which were drawn up word for word by Hitler and signed by him, have played a special part in this Trial: the so-called Commando Order to the troops, Document 498-PS, and the explanatory order pertaining thereto given to the commanders, Document 503-PS.
According to their substance these orders lie outside Jodl's sphere. That Jodl had anything to do with the matter at all was due to a special reason: The orders are directives for the execution of an order which had been issued by Hitler 11 days previously, which had also been drawn up by him personally and attached to the Wehrmacht communiqué of 7 October 1942. Jodl composed this communiqué as usual, including the supplement regarding the previous history of the order which Hitler afterward ordered to be added at the end of the communiqué. Hitler therefore requested him to work out drafts for the executive order. Jodl did not do so, nor did he submit to Hitler a report which his staff had drawn up on their own initiative. On the contrary, he had Hitler, with whom his relations were very strained at that time, informed that he was not in a position to comply with the request. Hitler then drew up the two orders himself.
Jodl is now accused of two things: He distributed the orders drawn up by Hitler through official channels, and he furnished the second, the explanatory order, to the commanders with a special directive for secrecy.
The order arose from Hitler's excitement about two kinds of intensified warfare which made their appearance about the same time, in the autumn of 1942. One was the fatal efficiency of excellently equipped sabotage detachments which landed by sea or were dropped from the air. The other one was exceptional savagery in the fighting methods of enemies who acted singly or in small groups.
Jodl has described here how this savagery appeared from the messages and photographs of the troops. Experience showed that these methods, which violated all military ethics, were encountered especially among sabotage detachments. Hitler wished to counteract these unsoldierly methods and to stop the sabotage activity which
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was so dangerous to the German war effort, but he knew that sabotage could not be objected to on grounds of international law if carried out by regular soldiers. Hitler's first order, the one contained in the Wehrmacht communiqué of 7 October 1942, is therefore quite simply explained: No mercy will be shown to enemy soldiers who appear in sabotage detachments and behave "like bandits," that is, who place themselves outside the military code by their method of fighting.
The implementing directives should have defined the standard of unsoldierly conduct; Hitler's implementing directive did not contain this definition; in the decisive points it was not definite at all, and this made it possible to apply the order in the sense of its undoubtedly justified fundamental idea, or not to apply it where there was the slightest doubt as to whether it was a case of "bandits."
After all the reports which had been received about the enemy's behavior, Jodl considered the basic principles of Hitler's directive in the Wehrmacht communiqué of 7 October 1942 understandable, and thought that the directives given by Hitler in the Commando Order of 18 October 1942, which were in some points not clear, were in part admissible from the point of view of international law, and in part perhaps questionable from the same point of view. He says that he knows no more exactly now than he did then whether and to what extent these directives were contrary to international law. He says that one thing only was certain, namely, that the indefinite wording of the order made it possible for the commanders to apply the order only against people who had clearly placed themselves outside the bounds of soldierly behavior.
Jodl hoped that this would be the method applied and, as far as he could, he promoted it, as is proved by the evidence. He used all his power to help ensure that the practical application of the Commando Order was restricted to what was undoubtedly admissible. He took steps to insure, further, that the order would not be applied in large areas, that is, in the greater part of Italy, as soon as it was at all possible to wrest a local limitation from Hitler (Document 551-PS).
The directive for secrecy is interpreted as a sign of Jodl's consciousness of guilt. But this secrecy had cogent reasons of a different nature. The enemy had to be prevented, as far as possible, from learning what serious damage was caused by the sabotage detachments which were operating in a bandit-like manner. Hence the special directive for secrecy only in the order (Document 503-PS) which gives information about the damage, while the main order was known to the whole world through the Wehrmacht communiqué. There was actually also a second reason for Jodl's imposition of
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special secrecy on the explanatory order. He did not wish to see circulated the final decree, according to which captured Commando personnel were to be shot after interrogation. It revolted him as a human being to exclude unsoldierly fighters from the protection of the Geneva Convention, whether such a course was admissible or not according to international law. He hoped that the commanders would find ways of preventing inhuman acts in individual cases by means of a sound interpretation, and unauthorized persons were not to have knowledge of the decree.
The fundamental idea, which it was not necessary to exceed in practice, conformed to international law, which is only intended to protect men who are fighting as soldiers. This is, after all, the tendency of all the rules of war, which presuppose chivalrous combat. Something had indeed to be done to turn the use of such wild methods into a hazardous operation for the enemy. Nothing could be said against sabotage detachments which fought in a soldierly way. The enemy had only to desist from those methods which were in radical contradiction to international law.
The following must also be stressed: The transmission of this order does not prove responsibility for its contents. This is not like other cases where Jodl advised or drew up the order. On the contrary, he refused to draw it up. He merely distributed it, as instructed, through ordinary official channels. However, he is guiltless, not because-or rather, not only because-he was ordered to pass it on, but because he had no right to interfere with the order which was to be passed on. It was outside his jurisdiction, outside his rights, to examine it. His activity was purely technical, independent of the contents of the document. In theory he was not even obliged to read it. Let us assume that, after drawing up the order, Hitler told some lieutenant to telephone it to the commander-in-chief. Would it then have been the lieutenant's right and duty also to examine the contents of the document with regard to its legal admissibility and to announce afterward: "I will not do this," or "I shall have to consult the Hague Convention on Land Warfare first to see if I am allowed to do it"? The most grotesque consequences would ensue. And in this case the general is nothing more than a messenger who passes on what has been handed to him. Jodl's answer to my question as to what would have happened if he had refused to pass it on, is characteristic of the military interpretation of the situation: "In that case I would have been arrested immediately-and quite rightly so."
(b) Antipartisan combat. With regard to the war against partisan bands one might place charges against Jodl in only two cases . . .
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GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. President, the defense counsel names "bands" a patriotic movement comprising millions of patriots fighting against the German Fascist invaders. I consider that such an expression used by the lawyer should be considered as an insult to the partisans, who took a large part in defeating the Hitlerite invaders, and I protest against it.
THE PRESIDENT: The objection seems to be based upon some question of a Russian word which, of course, I don't understand. I understand that there is no objection to the English word "partisan." I don't know what the German word is. But there doesn't seem to be anything for the Tribunal to do about it.
DR. EXNER: Mr. President, no one on our side doubts that hundreds of thousands or millions of true patriots were among the so-called "bands." I am using the word because it was the expression used officially in German orders. They mention "rules regarding bands" (Bandenvorschriften). We do not use the word "bands" in any derogatory sense. It is no discrimination when we speak of a "band," or there need be no discrimination in doing so.
THE PRESIDENT: Is there a different German word for the English "bandit" and the English word "partisan"?
DR. EXNER: Yes. We, too, use the word "partisan." For us that is a foreign word, but we also use it. And then we speak of "bands," but not necessarily in a bad sense; and also of bandits, and these, of course, are criminals.
THE PRESIDENT: Why don't you confine yourself to the use of the word "partisan"? ,
DR. EXNER: I can certainly just as well use the word "partisan," Mr. President. I have merely used "band" because we have the "rules regarding bands." That is the official expression which had been used, but I have no objection to using the word "partisan."
THE PRESIDENT: If you are quoting an order, you must quote the order in the words of the order, no doubt.
DR. EXNER: Very well; then partisan warfare.
As far as partisan warfare is concerned, charges could be made against Jodl only in two cases:
(1) If he had permitted this warfare to take place in a disorderly and "chaotic" manner, as one witness has asserted, or (2) if he had issued combat directions, and if these had been contrary to international law.
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But neither of the two is the case; Jodl was not personally responsible for this matter, but he was obliged to take an interest in the partisans when their number reached proportions which were beginning to interfere with the military operations. In 1942 he issued a directive regarding bands which was replaced by a second one in 1944. Therefore it cannot be said that no rules existed for this form of combat.
Nor can Jodl be reproached on the grounds of the second point. Although Hitler wished to have a type of warfare waged against these dangerous opponents which hardly took ethics and international law into account, Jodl-without his knowledge-issued a pamphlet about the combating of partisans which cannot be attacked legally. He went so far as to have partisans in civilian clothing treated as prisoners of war and to permit the burning down of villages to be carried out only on the orders of a divisional commander; this was intended to, and successfully did, prevent violations of Article 50 of the Hague Convention on Land Warfare (I refer to Document RF-665, Document Book 2, Jodl - 4).
Jodl cannot be reproached, however, if the combating of partisans nevertheless degenerated badly. It is not a matter for the Chief of the Armed Forces Operations Staff to supervise the observance of his directions in four theaters of war.
(c) Burning down of houses in Norway (Document 754-PS). The Prosecution have accused Jodl during cross-examination of having ordered the destruction of Norwegian villages. This accusation refers to the teletype of 28 October 1944 to the command of the 20th Mountain Army. The Prosecution have a false idea of the role which Jodl had to play.
The military position then was as follows: The Germans were retreating to the not yet completed Lyngen line, and there was danger that the Red Army would continue to follow up during the winter and would destroy the much weaker German units if, while advancing along Reich Road 50, the only one that could be used at that time of the year, they found the homes and the population with their local knowledge available. Without these billets and the support from the population the Russian advance was impossible. The evacuation of the population and the destruction of the houses would eliminate the danger and, over and above this, it would make partisan warfare against the German troops impossible. The evacuation of the population was also necessary in the interests of the population itself.
In this situation Hitler issued, not on the advice of the soldiers but on that of the Reich commissioner for the occupied Norwegian territories, the decree which Jodl reported, "by order," to the command of the 20th Mountain Army through the proper channels
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with all Hitler's military and ethical considerations. One can really hear Hitler's radical way of speaking.
Jodl who, as a result of a telephone conversation with the staff of General Rendulic, knew that the mountain troops did not need such a far-reaching military order and therefore did not want it, was against this order and-when he could not prevent it-sought for a solution which in practice led to the desired result. He wanted the order to be carried out by the troops only insofar as was absolutely militarily essential and in accordance with what was permissible under the Hague Convention on Land Warfare (Article 23g). He knew that his brother, who was in command in the North, thought exactly as he did; he knew the soldierly spirit of the mountain troops as a whole, and he knew in advance in this particular case that this order went too far for the troops. So that it should be understood correctly by everyone right from the start, he not only explained clearly that it was a "Fuehrer order" in the introduction to the teletype message-the second paragraph expressly uses these words-but he let the soldiers know that the Fuehrer had issued this order on the suggestion of the Reich commissioner and not on the suggestion of the military. Thus they were fully informed and they acted accordingly. No militarily unjustified demolitions occurred. Thus, among others, the three towns of Kirkenes, Hammerfest, and Alla were not destroyed. According to the literal application of the order they would have had to be destroyed.
(d) Deportation of the Jews from Denmark (Document UK-56): The Prosecution wants to make Jodl responsible for the deportation of the Jews from Denmark. It bases this accusation on a teletype Message which Jodl sent "by order" to the commander of the German troops in Denmark. It is particularly difficult to understand this accusation by the Prosecution; for the different documents submitted by the Prosecution absolutely prove that the deportation of the Jews from Denmark was decided upon by Hitler on a suggestion from Dr. Best, therefore on a suggestion from the civil authorities and over the objections of the commander of the German troops, and that this task was assigned to the ReichsFuehrer SS. The OKW was concerned with the whole affair only because at that time a military state of emergency existed in Denmark, so that the commander of the German troops, as the highest executive authority in the country, had to be informed by his superior authority of the action ordered by Hitler and assigned to Himmler, in order to prevent friction between the German authorities in Denmark.
On 20 September 1943 Keitel and Jodl had received the first intimation of the discussions between Hitler, the Foreign Office, and Himmler, in a teletype message from the German commander.
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Jodl had only one wish-to keep the Armed Forces out of this affair. His temperamental note on General Von Hanneken's teletype of 3 October 1943 (Document D-647) also shows this. There he wrote: "...is a matter of complete indifference to us," namely, whether the ReichsFuehrer SS published the figure of the Jews arrested or not. It shows only too well that this has nothing at all to do with moral considerations, either in a positive or a negative sense.
The whole thing had nothing to do with the Armed Forces. But difficulties could arise as a result of Himmler's action, as the Armed Forces were after all responsible for peace and order in Denmark. Such difficulties had to be headed off. The Wehrmacht could not alter the decision taken by Hitler in this police matter, and could not have altered it even if it had been competent to deal with this question.
Jodl simply informed the commander by the teletype message (Document UK-56) of the decision Hitler had taken in this police matter. And the ReichsFuehrer SS, the Foreign Office, and the Commander-in-Chief of the Reserve Army were simultaneously informed by Jodl that he had let the commander in Denmark know. Now it was a clear case and all friction between German offices was excluded. That was all the OKW had to see to.
One cannot say that the information which Jodl gave made the execution of the order, which Hitler had decided upon apart from the Wehrmacht, any easier. It is clear to anyone who knows but a little of Hitler's position of power that friction between German offices would in no way have prevented the thing being carried out, but would at most only have delayed it, and would certainly not have made it pleasanter for the persons affected.
May it please the Tribunal, there is an old saying in criminal law, a saying which I always find cited in foreign decisions too, that actus non facit ream nisi mens sit rea. Two things go to make a crime; the actus, the objective side of the crime, the deed, and the mens rea, the subjective side or guilt. The Prosecution is involved in an odd contradiction there; in some cases they stress the mens rea and fail to see that the criminal actus is lacking: I have shown this in the case of the above-mentioned marginal comments, which do not represent any illegal actions, but at most could allow one to infer an illegal frame of mind. In other cases the Prosecution look only at the actus, but does not ask whether a mens rea is also present. This second mistake is more dangerous, as here the outside of the crime is visible to everyone and it is often only a delicate psychological examination that can lead to the conclusion that there is no mens rea which corresponds to the actus. We will come to speak of this further on.
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With regard to the action, what is meant is behavior declared criminal by the Charter. This behavior can consist of positive action or of omission. If a father sees his child drowning while bathing and does nothing to save him although he could have done so, we declare him guilty either of murder or of killing by negligence, according to the degree of his guilt. This commission of a crime by omission is important in this Trial too, for the Prosecution repeatedly stress that Jodl was present at this or that meeting, at this or that speech. On one single page of the Anglo-American trial brief the phrase "Jodl was present at..." occurs six times. What does this mean legally? Being present at and listening to things can be of great importance with regard to the evaluation of a later deed, for the doer cannot excuse himself by saying "I didn't know" if he participated in the discussion of a plan. But mere presence does not in itself make one an accomplice. According to British law, even actual presence when a crime is committed makes one an accomplice only if encouragement is added. The same applies in German law. But where this is not involved, to lay stress on a person's presence when a criminal intention was discussed can only amount to a reproach that "he knew about and tolerated it."
Today we often hear this reproach of having tolerated crimes. Not only in this court. The whole German people are reproached for having tolerated a criminal regime and the annihilation of millions of Jews. Undoubtedly a crime can also be committed by tolerating things. But to make it a serious criminal charge, that is, one of intentional killing, two prerequisites must be fulfilled: 1) The subjective side: The perpetrator must have known that the victim would meet his death if he did not intervene; 2) he must have been in duty bound and able to prevent this death.
Mr. President, would this not be a convenient time to adjourn?
THE PRESIDENT: Yes.
[The Tribunal recessed until 1400 hours.]
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MARSHAL (Lieutenant Colonel James R. Clifford): May it please the Tribunal, the Defendant Hess is absent.
DR. FRANZ EXNER: We are dealing with crimes which were through toleration committed. As far as Jodl is concerned, the following applies: What an officer or official is legally bound to do or to prevent depends on the regulations governing his jurisdiction, and we know how strictly Hitler insisted on their being adhered to, how sharply he managed to demarcate the spheres of action of the political and military leadership, the military and the SS. This indeed was the reason why Jodl took every opportunity to oppose the plans for extending the SS. For one thing was clear: Once something fell into the sphere of the SS, the armed Forces lost their right to have any say in it. It does not therefore mean much, for instance, that Jodl was present at a discussion between Hitler and Dr. Best, at which one of the things discussed was terrorism in Denmark and the way to fight it (RF-90). The so-called "countermurders," if such were really discussed, were not heard by Jodl- he was not present throughout the session. His presence at this session does not mean much, for the whole matter concerned occupied territory and did not concern the Chief of the Armed Forces Operations Staff, who was brought into this meeting because of other matters discussed there. Thus, even if Jodl had heard more drastic things at that time than he actually did, any interference would have been out of the question and would have been rejected at once.
The reproach of having tolerated things also assumes that the possibility existed of preventing the crime. In the case of Jodl we are mostly concerned with Fuehrer orders which it is said he should have prevented. But enough has already been said here about how matters stood with regard to influencing Hitler's decisions. As long as his decision had not yet been made, good arguments could, under favorable circumstances, still impress him; but once his decision was made, it was irrevocable. Any opinion to the contrary is simply based on ignorance of the facts.
In the course of time Jodl did actually develop other methods for influencing decisions of the Fuehrer, or at least for influencing their practical effects. He used dilatory tactics; either he waited until the matter would perhaps be forgotten, or else he created difficulties and raised objections, using a type of counterargument adapted to Hitler's way of thinking-the order regarding commissars is a case in point-or he sent for opinions from various departments in order to gain time-as in the case of low-flying airmen. If the order had to be published, he often inserted in it on
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whose application the order had been issued, in order to show the commanders-in-chief that he did not identify himself with this matter-as in the case of the Norwegian villages. Or he tried to influence the practical application by overlooking failure to carry out the order-as in the case of the Commando Order, et cetera. But if one thinks that he could simply have refused to draft an order which was contrary to ethics, one has only to look at the Commando Order, where this method had exactly the opposite effect to what was intended.
I now come to the second part of the Latin saying I quoted: The deed in itself is no crime-nisi sit mens rea.
This is the last point in my statement and is at the same time the most difficult and the most important in a modern criminal trial.
"No guilt, no punishment"; this principle has been accepted in all civilized states since the Renaissance, even though different views as to the nature of guilt may exist in some places.
May I first make a short comparison between the Anglo-American legal view and that held on the Continent, for example in Germany. It is important when judging some cases.
I have already had to touch on an important point of the question of guilt when discussing aggressive wars. If one really seeks to make Jodl, the General Staff officer, responsible for waging these wars, it is at any rate of decisive importance to know how he viewed the whole state of affairs. If he believed, on the basis of the reports he received, that facts existed which-if they were true-justified the waging of war, then Jodl cannot be reproached with having knowingly savaged an unlawful war. This applies even if his assumption was based on mistakes. Such mistakes exclude design. In a decision, Green v. Tolson, it is stated:
"In common law a reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has always been held to be a good defense."
In another decision Regina v. Prince it is stated:
"It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present in the prisoner's mind and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his act no criminal offense at all."
In a third case, Commonwealth v. Pressby (an American decision) a good example is given:
A sentry shoots at his commanding officer who is approaching him, in the belief that he is an enemy. This last example is closely related to the wars of aggression which are to be judged here.
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As a rule, ignorance of criminal law is no excuse under British law. However, the following principle is worthy of note:
"If, however, there is a doubt as to a question of law, a person cannot be convicted and subjected to imprisonment if he has merely acted on a mistaken view as to the law."
Naturally a mistake about preliminary questions in civil law can also exclude criminal intention:
"If a person takes what he believes to be his own, it is impossible to say that he is guilty of felony."
This rule could also be significant in our field, too, for mistakes regarding the regulations of international law.
Yet in this doctrine of mistakes I see a certain difference between it and German law, for in German law any mistake, even if resulting from negligence, excludes intention. In British law this seems to apply only to "reasonable" mistakes "unaccompanied by negligence." If that sentry had shot too soon, without sufficient investigation, he would indisputably under German law only have to be sentenced for killing by negligence. In England and America, if I understand it correctly, this mistake by negligence would not be taken into consideration at all, and this soldier would have to expect a sentence for intention to kill. But this difference in the conceptions of law should not play any part in our case, for one can hardly reproach Jodl with having come to his interpretation of the situation on the basis of a hurried and careless examination of his reports.
There is one more point of divergence in the law.
I read in an English decision that intention and deed must coincide in order to constitute a crime, but we take a more precise view of this coincidence. According to German law, a person can be punished for intentional killing, only if he foresaw the fatal results and wished them. On the other hand in the decision already quoted in Regina v. Prince it is stated: "if a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk."
According to German law this man could be punished only for aggravated bodily injury, never for intentional killing (Paragraph 226 of the German Penal Code). That the "result," which may rest on chance, should turn the act into murder-is rejected by us as unjust.
I will not read what follows, in order to save time, and I wish to omit Paragraph 1, on Page 110.
Lastly, in a third point, which is of importance here, the views again agree. Every serious crime must be intentional, although the intent need not be linked with the consciousness of doing something criminal, but with the consciousness that it is not right to act in such a manner.
"To constitute a criminal act there must, as a general rule, be a criminal intent. The general doctrine is stated in Hale's Pleas of the Crown that 'where there is no will to commit an offense, there can be no transgression.'"
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In German law it has been argued for a long time whether the perpetrator must know that he is acting in direct contravention of the law, or whether it is sufficient for him to know that he is doing something contrary to his duty. The prevailing opinion, which has also been taken over in the drafting of our German Penal Code, states: "The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense." I was greatly interested to find the same idea, expressed in almost the same words, in a British decision Green v. Tolson:
"It must at least be the intention to do something wrong. That intention may belong to one or another of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed."
Thus, according to English law, knowledge that it is not allowed to act thus is one of the elements of intent:
"There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offense."
This decision quotes some exceptions to this principle, which do not interest us here. They concern bigamy and seduction, where positive provisions of statute law are involved, as well as certain offenses against public order, et cetera.
Our question now is: Was Jodl aware of wrongdoing when he prepared and passed on the various plans and orders of which he is accused today? According to my innermost conviction: No.
The only evidence which the Prosecution have produced is the reproach: Why, if he had a clear conscience, was he in so many cases so intent on observing strict secrecy? There is an answer to this: In military questions there are manifold reasons for not allowing certain things to become known. This was so before the war and all the more so during the war, and even now after the war deep secrecy shrouds the atom bomb, to cite an example. Such observance of secrecy need not be connected with a guilty conscience. And if Jodl says he had arranged that one of the two Commando Orders should-apart from other reasons-be kept secret because of its obnoxious final regulation, he did so, presumably, for the sake of the honor of the German Armed Forces, and certainly not because he thought that he himself was doing something wrong by passing on the order, an order which he had after all not drafted himself, and for which he was convinced he was not responsible.
This last fact must be stressed. It is of general importance. In all Jodl's military preparatory work, whether he was making plans
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for wars, or drafts of orders, or memoranda, the point is not merely whether he knew that this war or that decree was contrary to law, but decisive is whether he knew that by his co-operation, by his actions, he was doing something wrong. That Jodl did not have a bad conscience seems to me to be clearly shown by the fact that before his capture he had 3 weeks in which to burn most of these documents but did not do so, because he was convinced that he had nothing to conceal.
When drawing up these orders, he was not conscious of wrongdoing. He could not be, if only for two reasons: On the one hand, because he felt himself bound by the Fuehrer's orders, on the other hand, because-apart from a concrete order-he was convinced that in his position as Chief of the Armed Forces Operations Staff he was in duty bound to act in this way. Let us look into this more closely:
I will not speak any further about the order and its legal meaning. One point, however, appears to me to be in need of elucidation: Mr. Justice Jackson quoted Paragraph 47 of the German Military Penal Code to prove that according to German law an order by a superior officer does not excuse the subordinate.
Incidentally, it is striking that in the case of the conspiracy British-American law is brought in, whereas in the case of this order, German law is drawn on-in each case according to whichever is the less favorable to the defendant. I do not know, however, whether Mr. Jackson would have referred to Paragraph 47 of the Military Penal Code, if he had known how it was interpreted by the highest courts, and what the real legal situation in Germany was.
It is first of all necessary to note that at the beginning of Paragraph 47 there stands the principle: "Should, by the execution of an order in the course of duty, a criminal law be infringed, the superior officer issuing the order is alone responsible." And now comes the exception which practice has cut down to the absolute minimum for the sake of maintaining military discipline. It is based on the point of view that a subordinate is subject to punishment as a participant only if the order was not binding on him-for instance, because of its nature it did not come within the framework of Armed Forces' tasks-and if the subordinate was aware that the action ordered had a crime or an offense as its aim. The offense must thus be directly intended by the person issuing the order, and the subordinate must be certain of this. That he could and should have realized this is not sufficient. And, even if the subordinate is responsible, in a case of slight guilt punishment may be waived.
The whole ruling is very much contested, but one can see how the courts have limited its application in order to shield the obedient
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soldier as much as possible. Actually, cases of this kind were very rarely punished. Jodl does not remember a single case in his 30 years of service.
I must insert something here, because a few days ago Mr. Jackson made a late presentation of a document which concerns this problem (3881-PS). These are statements made by Dr. Freisler, as President of the People's Court, during the trial of those who took part in the attempt on Hitler's life on the 20th of July 1944. Freisler was always considered in Germany as a caricature of a judge. His undignified shouting in that murder trial was reproduced here before us by the Prosecution a few months ago in a sound film. What this legal expert meant to say-as far as the meaning of his remarks, torn from the general context, can be understood-was: When an officer ordered a subordinate to give assistance in murdering Hitler, this order did not justify the one who obeyed.
Certainly, Freisler's authority is not required to establish this. If ever a military order was issued which was outside the competence of the Armed Forces and was, therefore, not binding and did not exculpate, it was the order to murder the head of these very Armed Forces. But how an order by some officer to murder the head of the state can be compared with the order of the head of the state to commit an act contrary to international law is incomprehensible to me. However, I will not dwell any longer on this.
It will not be possible to understand Jodl's position or form a correct judgment of his actions if we do not visualize clearly the two men who here confronted each other. It is very easy for the Prosecution. Were Hitler still alive, he, as the head of the major war criminals, would sit in the first place on the defendants' bench and would be considered as the prime agent and source of all the terrible things that have happened. Now that he is dead, his person is belittled when judging the other defendants, and their conduct is treated almost as if he had never existed at all. This despot, this infernal power, as Jodl called him, cannot be passed over as a negligible quantity when the question is to judge justly the commissions and omissions of his immediate entourage. During these months I have again and again been reminded of the combination of genius, madness, and crime which was once depicted by the discerning Cesaro Lombroso. In history it is success that has the last word on the worth and worthlessness of man. Therefore, history's verdict on Hitler will perhaps be a crushing one. But one must not forget his beginnings; when one compares Germany's position toward the end of 1932 with that at the end of 1938, one is not surprised at the incomparable prestige which he had at the very time when Jodl came into close contact with him.
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Jodl now stood before this man. Jodl, an honest soldier, extraordinarily gifted, but never striving to be anything but a conscientious soldier; a sober realistic mind, ill-disposed toward all diplomacy, all political machinations, brought up in the ideals of the German officer corps-bravery, faithfulness, obedience-trained according to the 100-year-old tradition of the German General Staff, who knew only fulfillment of duty, selfless work, and ever more and more work.
That this man, working at Adolf Hitler's side, was bound to come under his influence is self-evident. One must consider the time at which this took place. There could of course be no relationship of mutual confidence, but Jodl was also not the man to submit without opposition. There were clashes and explosions enough. Jodl was regarded as the man who dared to oppose the Fuehrer more than anybody else. He could, as Kesselring reported, stand up against him with a curtness which at times reached the limits of what is militarily permissible. For this very reason I do not believe that it is merely the receiving and obeying of commands which can make us appreciate fully Jodl's behavior during these years. It was much more the wider conception of the fulfillment of duty: Complete devotion to that which had been assigned to him as his task at a critical time. One should realize and appreciate the situation in which Jodl found himself.-His country's struggle for existence, the demands of a war which was becoming increasingly horrible, and at the same time the views of his Supreme Commander which disregarded all traditions about what was permissible and not permissible in a war. It was quite clear that Jodl was bound to come into conflict-into conflict with Hitler and into conflict with himself.
Permit me to make a comparison: You, Your Honors, as you have already informed us, feel yourselves bound by the Charter of this Tribunal. Perhaps some of you have been assailed by doubts as to whether all the conditions of this Charter conform to international law as at present understood and to the generally recognized principles of law. But you have rejected such doubts, since you, as judges, consider yourselves bound by the rules which your four governments have agreed upon.
Jodl, as a General Staff officer, may have felt himself bound in a similar way to support the orders of his Supreme Commander, even if doubts regarding their admissibility in international law may have assailed him here and there. But he considered himself bound by his office to draw up plans for war without examining whether and under what conditions they were carried out; he had to formulate and issue thousands of orders, even if he disagreed with some of them. Where neither remonstrances nor delaying
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tactics had any effect, he had to submit. As a General Staff officer he had a purely auxiliary function. That he might be doing wrong while fulfilling this function according to the best of his knowledge and conscience never even occurred to him.
It is said now: Jodl should under no circumstances have taken any part in this or that affair. What should he have done? If one reproaches somebody with having acted in a certain way, then one must be in a position to state what action would have been right in that situation. It is now said that he should have resigned. This, of course, would have been an easy way out. That course could be taken in peacetime, but in wartime it was quite different.
Jodl tried repeatedly to get out of the OKW and to be ordered to the front, but in vain. Requests to be relieved of his post were altogether futile unless the Fuehrer desired it, as in the case of Von Brauchitsch and Von Leeb. In wartime he strictly forbade his generals to apply for release. That was desertion he said. The private in the front line could not resign when he found things uncomfortable. The general, too, had to remain at his post. In 1944 this order was repeated in writing; it was still more peremptory and the reasons more potent. If a general wanted to quit for reasons of conscience, he was told that the Fuehrer himself bore full and sole responsibility for his orders; all that the generals had to do was to be responsible for their strict execution. Resignations on such grounds were not soldier-like and would be criminal.
Therefore, Jodl could not resign. Should he perhaps have simulated illness? This also is desertion and in wartime a crime punishable by death. Is it possible seriously to expect an officer, brought up in the good old traditions, to betray his country in time of need like a coward-his country, to which he had devoted his whole life-which would mean that he would not be able to look any new recruit in the face? I do not believe so.
Thus, there was only a third way out: Murder and revolution. In peacetime this would have meant civil war-in wartime, the immediate collapse of the front and the end of the Reich. Should he then have cried: Fiat justitia, pereat patria?
It really appears that the Prosecution holds the view that such conduct could be demanded of the defendants. An astonishing idea! Whether murder and treason can ever be justified ethically had better be left to moralists and theologians. At all events, jurists cannot even discuss such an idea.
To be obliged on pain of punishment to murder the head of the state? A soldier should do that? And in wartime? Those who have committed such crimes have always been punished, but to punish them for not doing so would indeed be something new.
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Naturally there are limits to legal obligations for jurists too; but in a state of conflict which offers only this kind of solution, the old saying applies: Ultra posse nemo obligatur.
Jodl was no rebel. His conscience told him: The fatherland is in need. Every man to his post! Jodl's place was at the head of the Armed Forces Operations Staff. He did not enter this post of his own free will; he did not keep it of his own free will. It was a hard duty. He fulfilled the task which this post imposed on him according to the best of his ability and conscience-up to the bitter end.
Your Honors. Allow me in conclusion to recall a personal reminiscence, which throws more light on Jodl's personality. I made his acquaintance about 20 years ago in the house of his uncle, the philosopher Friedrich Jodl, in Vienna. There I had a conversation with him on training for the career of an officer. The young captain spoke with such moral earnestness, and what he said was so far from anything that could be called militarism, that I have always retained it in my memory. I then lost all contact with him until last autumn, when I received the surprising summons to defend him here. My first thought was: "This gallant soldier must be helped." But I doubted whether I should undertake this, as I am not a professional attorney. But when I met him in the courthouse for the first time, he said something to me which swept away all my doubts: "Rest assured, Professor," he said, "if I felt a spark of guilt in me, I would not choose you as my defense counsel."
Your Honors, I believe that these are the words of a gentleman, not of a criminal I ask that Generaloberst Alfred Jodl be acquitted.
THE PRESIDENT: I call on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): Mr. President, members of the Tribunal:
Nuremberg, the old, venerable, imperial city, which has given not only to the German nation but also to the world one of its most significant painters, Albrecht Duerer, an unsurpassed sculptor, Veit Stoss, and the Meistersinger Hans Sachs, has, in its ruined state become the stage for the greatest criminal trial which legal history knows. Not only has Nuremberg seen within its walls the pomp of the old emperors, but the rallies of the NSDAP also took place there, year after year, as a part of that propaganda machine which knew how to put into motion millions of people by a gigantic, but also diabolical stage management, with flags and standards, drums and fanfares under the slogan of equality of rights for Germany in order finally in its extravagant aims, to lead a nation which has given humanity so much that is good and beautiful to the verge of ruin.
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We have heard the Indictment here which tries to prove in a comprehensive way that these men had conspired to conquer the peaceful world by waging wars of aggression. It was said that the waging of these wars not only violated the treaties which were supposed to prevent war and, furthermore, the rules for a humane conduct of the war but had also trodden under foot the basic rights of humanity in the most contemptible way. We saw for months how mountains of documents and along chain of witnesses were supposed to confirm the Indictment and, on the other hand) how the Defense as keeper and servant of the law was striving to help the Tribunal discover the truth. But in the gallery the representatives from all parts of the world were seated, and only too often the whole world held its breath, when there was a break in the dark fog banks which again and again gave us a glimpse into the depths of unsuspected crimes. But outside, before the gates of the courthouse, stands a deeply moved German people, whose former leaders the defendants were. But regardless of how the trials will end, the Defense must be given credit for one thing-namely, that with regard to the question of the guilt of the German people, one will never again be able to talk about complicity or collective guilt- perhaps rather about collective disgrace, because they were German men under whose leadership crimes of the most horrible kind were committed. The curtain now rises on the final act of this world tragedy, to give a hearing once more to the Defense and then to pronounce a sentence which must not only conform to fundamental legal principles but also insure that crimes such as the Prosecution describe will forever be prevented.
On 20 November 1945, at the beginning of the Trial, the presiding judge stated that this Trial is of great importance for millions of people in the whole world. For this reason, he said, everybody participating in them has the solemn responsibility of fulfilling his duty without fear and without favor to anybody, and according to the principles of law and justice.
This duty was often an almost too heavy burden for the Defense Counsel, not because of the extent of the material for the Trial, not because of the abundance of new legal questions, but because things were revealed here which are so monstrous and abysmally degrading that a normal brain would reject even the possibility of their existence. In so saying I am not thinking of the prepared human skin, of the pieces of soap made out of human fat which were shown to us; I am not thinking of the systematic way in which millions of innocent people were tormented, tortured, beaten, shot, hanged, or gassed. No, I am thinking of the many touching individual pictures which have made the deepest impression on me personally and probably also on everyone else.
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Once more, I hear the report of the village priest Mogon regarding the shooting of the hostages from Choisel Camp in Chateaubriant:
"My father, we have not your religious conviction, but we are united in the love for our native country. We wish to die so that the French people will be happier."
I visualize the march of the Jews from Dubno which slowly approaches the place of execution, how the individual victims help each other to undress, how the little boy persuades his parents to die bravely, and how they carry an old woman whose lameness prevents her from taking the few steps to the pit where the deadly bullet from the submachine gun awaits her. I once more hear the testimony of the French journalist, Marie Claude Vaillant-Couturier, who describes in deeply touching words how the sacred experiences of maternity and female honor were shamelessly trampled under foot in the extermination camp.
Auschwitz alone has swallowed up 31/2 million people-men, women, and children. That is really the most terrible weapon of the Indictment, that the spirits of all these innocent victims stand beside the prosecutor, admonishing and demanding revenge. But I do not stand alone, either. The many innocent war victims on the German side, women and children who have fallen victim to the terror attacks which violated international law, in Freiburg, in Cologne, in Dresden, in Hamburg, Berlin, and Vienna, and in almost all other German cities, stand beside me. My comrades from the Armed Forces, who, as honest and decent soldiers, have sacrificed their lives for the fatherland by the hundred thousand, young and old, faithful to their Oath of allegiance, also stand by my side.
But even if they did not exist, if the defendant stood quite alone before his judges, then even more is it my sworn duty as a lawyer to stand helpfully by his side and be his shield and defense, and, faced with the mass of the most terrible, incriminating documents, to call to you, Honorable Judges:
Do not judge in wrath, but as our Austrian poet Wildgans, who was a judge himself, wrote in the album of a young judge: "Suche das Edelreis, das unter Dornen blueht..." (Seek the precious shoot which grows among the thorns).
Before I consider the Indictment in its individual points, I should like to sketch in a few short words the personality of the defendant. The words in Schiller's tragedy "Wallenstein" apply to him, too: "don der Parteien Hass und Gunst verzerrt, schwankt sein Charakterbild in der Geschichte" (Torn by the hatred and favoritism of parties, his character wavers irresolutely in history).
The Prosecution in the trial brief call him a cunning, coldly calculating, political opportunist who had a mission before his eyes. It said it is notoriously known that he misused his position as minister in order by his double-dealing to deliver Austria to the conspirators; he has committed atrocities in Poland and in the Netherlands in cold blood, and has trampled upon the rights of small nations to freedom of religious and political thought, regardless of constitutional obligations.
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George S. Messersmith judges similarly in 1760-PS, when he says that according to reliable information he received, Dr. Seyss-Inquart, with whom he himself had little personal contact (the defendant denies ever having met Messersmith), was completely insincere in his dealings with his friend Chancellor Schuschnigg. Incidentally, the statement that Schuschnigg and Seyss-Inquart were friends is incorrect. Messersmith had left Vienna in the spring of 1937. As all witnesses testify, Dr. Schuschnigg had at that time just become acquainted with Seyss-Inquart. But Messersmith added in his own words that there is only one thing which may be said in favor of Seyss-Inquart at that time: That he may have believed the German protestations which were made to him that Austrian independence would be respected.
Mr. Gedye who was the Vienna correspondent of English and American newspapers for many years has also mentioned Seyss-Inquart in his book, Austria's Suicide, and has said about him: "He is a well brought up National Socialist, which is twice as disturbing, a young, intelligent lawyer of nice appearance and good manners, who clearly emphasized that he is opposed to the throwing of bombs and to noisy demonstrations, and who preaches in drawing rooms regarding the superiority of intellectual weapons over rough, material methods." Martin Fuchs, the author of the book quoted by me, A Pact with Hitler, says concerning the defendant, "Seyss-Inquart was known to the public as a National Socialist but also as a practicing Catholic and representative of an Austrian Nazi movement which was to keep Austria on the side of the Reich." In Austria they now condemn the defendant because he brought about the German entry by his telegram. Many a friend of mine who has returned from Dachau and Mauthausen has, therefore, reproached me for defending before the Tribunal the man who betrayed our country. Dutchmen whom I questioned concerning the personality of the defendant told me that the Dutch people hated him as Hitler's supreme representative in the country, especially since he had stated at the beginning of the occupation that he came as friend of the Dutch, and that he had deceived them in this respect.
I myself knew the defendant in Vienna only as a professional colleague. He was generally considered as an able and decent lawyer, and politically he was in close touch with Nationalist circles, without being outstanding in any particular manner. But in the many discussions which I have had with the defendant in the course of the trials, I have tried to form an exact picture of his personality. We often talked together about our families, our common experience at the front, especially in the Tyrolese mountains, where he was a brave and cautious company leader, and where he was wounded. He also liked to talk about daring excursions into the mountains, but he liked best to talk about music, and I have often thought that a man who could speak so sensitively about Bach, Mozart, Beethoven, and Bruckner cannot be a monster and above all not a cruel cold-blooded criminal, because love of nature and music can find an abode only in the heart of a good person.
His political program was the Anschluss idea, and, considering his origin, this is also easy to explain. His real home is the old mining town of Iglau, a German-speaking island in a Slavic sea. At an early age he became aware of the small-scale battle which was being waged by two hostile nations. Deeply moved, he has heard that last year the storm of the times swept over his home town too and that Iglau, which had been German for 800 years, has ceased to be German. Therefore, in judging the defendant, we should not forget that it is the Germanic borderlands that have always experienced the greatest national distress and held more
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strongly and fervently to the idea of the great German fatherland than the nationals of the rest of the Reich, lulled into self-complacency born of self-confidence. Thus, it is no accident that leading men in the Anschluss movement, whose names stand out in my document book, came from the Sudetenland. Doctor Otto Bauer, the late leader of the Socialists, comes from Untertannowitz in Moravia-that is, from German Sudetenland.
The last time I saw the Defendant was in the autumn of 1938, and I did not meet him again until I saw him here in prison. Therefore, I also asked one of his collaborators in Holland, who enjoys the respect of the Dutch, and who was no National Socialist, and who as a senior judge can be relied on, for an impartial opinion on the personality of Dr. Seyss-Inquart. He writes:
"In his work, his clear, keen thinking and the systematic manner in which he applied his many-sided talents in carrying out his duties struck me at once as his outstanding qualities.
"Unlike many of his equals he never dulled his sense of reality by fanatically preconceived notions but, as is fitting for a conscientious politician, always strove to approach things soberly and without prejudice and to see them as they really were. That also is why he developed the ability and inner composure to listen calmly to other people, including his subordinates, to deliberate with them and to yield to their opinion. . . Social life in his house was on a dignified and unusually high level. The atmosphere of the house revealed at once that the host was a man of culture. He knew no hate, and whenever he thought he saw hate approaching, he never answered with hate or revenge, but only with measures deemed appropriate for the prevailing situation.
"It is the great tragedy of his life and work that in the person of Hitler and several persons among those who were his closest co-workers, elements crossed his path which were stronger than he. . .
"As an intellectual, spiritually cultivated person he became immediately suspect to the main forces in the Party bureaucracy surrounding Hitler-Bormann and, in the SS administration, Himmler-although he wore the Golden Party Badge of Honor and occupied a high honorary rank in the SS. He continued to be the young Party member who came from the ranks of the intellectuals, who were always regarded with mistrust. For those elements he was too 'soft.' He nevertheless hoped that he might succeed in preventing independent sections in the Reich from working their way into his sphere of action, as he himself was gradually winning the Fuehrer's confidence. As I have already said, his relation to the Fuehrer was to be his fate.
"The Fuehrer's amazing knowledge, his never-yielding, all-conquering energy and his outstanding successes in the field of domestic as well as foreign policy during the first years after the so called seizure of power, drew Seyss-Inquart-as also happened to outstanding men in foreign
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countries-under Hitler's influence. He became a loyal follower of Hitler and sincerely believed that in the latter love for the German people was the prime motive of his actions. He also believed-in any case for some time and during the extreme distress of the German people-that he must continue to cling to Hitler even though the recognition of his weaknesses and faults dawned upon him...
"However, I am firmly convinced that he, like so many of our people, was more an unwitting victim than a willing tool of the demoniacal power of Hitler..."
This is the opinion of an upright German judge.
The Prosecution base the Trial on the concept of conspiracy, in an endeavor thus to forge a chain around the defendants to link them all together in one common responsibility. My learned colleagues have already spoken extensively of the concept of conspiracy and its consequences in this Trial. To repeat these statements would be to carry coals to Newcastle. But because this is the leading theme of the Trial, and because it seeks to shift the responsibility for the world-shaking events to my client in particular, I should like to submit to the Court a few additional ideas on this subject.
When turning over the pages of history we often come across stories about men who combined to overthrow a ruler who was disliked, or a system that was hated, and to seize power for themselves. All these cases are lumped together under the general, all-embracing term "plots." In the book published in Paris, entitled The Technique of the State Plot, Malaparte, an Italian, attempted to describe the technical methods applied in plots and revolutions, from Catiline to Hitler and Mussolini. Even this survey of technique will be sufficient to show how unjustified it is to dub all these undertakings "plots," if it is intended to encompass within this term a definite concept such as is known in penal law. In any case it is not possible to classify all these things which in popular terminology are called "plots" under the heading of "conspiracy," as is done by the Prosecution. When Guy Fawkes and his companions at the time of James I tried to blow up the English Parliament in the socalled "Gunpowder Plot," perhaps this was a real conspiracy. To the present day the English people on the 5th of November of every year celebrate with fireworks and bonfires and the burning of a straw dummy the anniversary of the day which saw the fortunate prevention of the plot. It would be a mistake, however, to term any kind of co-operation for political aims a conspiracy, because-and it is particularly important to repeat and stress this- the vagueness of colloquial usage has always made it possible to use the word "conspiracy" when talking of political struggle, and thereby justify, because of the lack of adequate legal grounds, the destruction of political opponents.
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Because in this Trial Holland is of particular interest to me, I wish to cite two illustrations from her history. The one is to recall Holland's fight for liberty against Philipp II, which two of our greatest poets-Goethe in Egmont and Schiller in his Geschichte des Abfalls der Vereinigten Niederlande -- chose as subjects for their dramatic representations. Schiller writes about the heroic death of the two brave Dutchmen, Egmont and Horn. The insulted ruler had pronounced both counts guilty, because they had encouraged and assisted in the outrageous conspiracy of the Prince of Orange and because they had protected the confederate noblemen and had badly served the king and the Church in their governorships and other offices. Both were to be beheaded in public, their heads were to be mounted on spears and were not to be removed until so ordered by the Duke. All their possessions, feudal tenures and rights were confiscated by the Royal Treasury. The verdict was signed by the Duke alone and his secretary Franz, and nobody took the trouble to obtain the consent of the rest of the criminal counsellors...
Two decades later during the well-known period of 1588 to 1598, the young Dutch State had been given its final safeguard, thanks to the joint leadership of the Republic by the Raadspensionaris Johann van Oldenbarnevelt as statesman and through Maurits van Oranje Nassau as Field Marshal. But the opposition between these two men was to lead to a tragic result. Both, the highly respected, aged Raadspensionaris Oldenbarnevelt, as well as his friend Hugo Grotius-the father of international law-were imprisoned because of conspiracy. While Grotius saved his life by escaping from his prison cell in a bookcase, Oldenbarnevelt's head fell because-so the verdict said-he had deeply afflicted the Church of God. The trinity of the State, however, hand been saved. Spain's dominion over the seas passed to the small Republic of Holland.
For the French prosecutor I should like to cite from the history of his country, France, an example of an obviously unjustified accusation of conspiracy. Louis XVI was accused of conspiring against the nation and was found guilty. Citizen De Sèze, on 26 December 1792, in the first year of the Republic, conducted his defense at the bar of the National Convention. His plea was probably one of the most moving ever delivered, a discourse in which the defense counsel had to deal at the same time with another danger of criminal jurisdiction arising from political causes or political passions- namely, against a violation of the legal principle nullum crimen et nulla poena sine lege. Undaunted and unafraid, he declared: "Where there is no law which can serve as a precept, and where there is no judge to pronounce the sentence, one should not have recourse to the general will. The general will as such cannot speak either about a man or about a fact. But if there is no law according to which one can judge, then it is also not possible to give judgment, and there can be no sentence."
We still find today this principle nullum crimen nulla poena sine lege firmly rooted in almost all law books. We find it in the German and in the Austrian Penal Code; and we also find it in French law, in Article 4 of the code penal, which states: "Nulle contravention, nul délit, nul crime, ne peuvent être punis de peines qui n'etaient pas prononcées par la loi avant qu'ils fussent commis."
The American weekly Time wrote with justice in its 22d Number, 26 November 1945, in an article: "Whatever laws the Allies attempt to establish for the purpose of the Nuremberg Trial mostly did not yet exist at the time when these acts were committed. Since
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the days of Cicero, a punishment ex post facto has been damned by the jurists."
That this principle has not lost any of its significance even today while this Trial is still going on, but on the contrary has kept its full meaning, is shown by the fact, and I should like to remind the French prosecutor again, that the French Constitution which was submitted to the National Assembly on 19 April 1946, establishes specifically as a statute of the Rights of Man in Article 10:
"The law has no retroactive force. No one can be convicted and punished, except according to the law which has been promulgated and made public before the deed which is to be punished. Every person accused is considered under reservation as innocent until he is declared guilty. No one can be punished twice for the same deed."
What is the Right of Man for the French, must necessarily be the Right of Man for the German.
This principle is not only rooted firmly in national law, but also in international law. When after the first World War the Allies demanded from the Netherlands the extradition of Emperor Wilhelm II who had found sanctuary there, the Dutch Government refused the surrender of the emperor with the following words:
"Article 227 of the Treaty of Versailles has come into force on 10 January 1920, and it does not appear on the list of punishable acts which are considered in Holland's laws or in the treaties which Holland concluded. This new crime was also not contemplated by the penal legislation of the countries which demand the extradition of the emperor."
A. Morignhac and E. Lemonon, Droit des gens et la guerre de 1914 - 18, Volume II, Page 572 express themselves similarly:
"Nul ne peut être puni autrement qu'en vertu d'une loi auparavant adoptée et publiée, pour cette raison, ce qu'on exige de la Hollande c'est de collaborer à un procès contraire à l'idée même de la justice."
When in the year 1935, the idea of analogy found its way, into German criminal law, this innovation met with severe criticism in juristic circles also outside Germany. The second International Congress for Comparative Jurisprudence held in The Hague in the year 1937 formulated a resolution against analogy in criminal law. In this resolution, the congress expressed itself in favor of the principle nulla poena sine lege. (See: Voeux et Résolutions du Deuxième Congrès International de Droit Comparé, La Haye, 4-11 Août 1937.)
From the afore-mentioned statements it follows that it is legally inadmissible to apply principles in this Trial which lack a legal basis. Continental law does not know the concept of conspiracy. Austrian law, which could come into question as the national law for my client, does not know this concept either. There are at best very small similarities if we point out that the Explosives Law of 27 May 1885, Article 5, already declares the concerting together for the execution of a crime with explosives as punishable. Article 174, IC of the Penal Code makes theft a major crime if the thief commits
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theft as a member of a gang which has banded together for the common commission of robbery. German law recognized the responsibility under the Penal Code for the act of another only as accomplice, instigator, and helper. Conditions in French law are similar, and to save time I refer to Articles 59, 60, 89, and Article 265 of the Code Pénal.
That this fact is not clear and at least dubious is also admitted by the reputed Russian teacher of international law, Professor A. N. Trainin in his book, La responsibilité pénale des Hitlériens. He states on Page 13:
"The problems of international penal law have unfortunately been studied very little. There is lacking a theoretical, clear definition of the fundamental concept of 'international crime,' and a well-ordered system of this law still remains to be created."
According to the Prosecution, the aim or the means of the conspiracy are crimes against peace, against the rules of war, and against humanity. Professor Jahrreiss has already spoken extensively about the liability for punishment of individuals for the violation of international peace, and has described and given due recognition to the status of non-German international jurisprudence. But since jurists of German tongue have also concerned themselves with this question, I would like to make an additional remark.
The well-known Austrian scholar of international law, Alfred von Verdross, has established in his book International Law:
"According to prevailing opinion, subjects of a crime under international law can only be states as well as other legal communities immediately subject to international law, but not individual persons..."
There would be only an international obligation of an individual person when international law itself would connect and order a state of facts with a consequence of injustice that these standards are applied immediately to the state of facts established by a person. Only by that will persons, who according to valid law are only subject to national civil and penal law, be bound as an exception by international law itself.
After these short supplementary statements of the legal bases of the Trial I turn to the Indictment, which accuses my client of having participated in the seizure and control in Austria as a conspirator, and of having committed war crimes and crimes against humanity in Poland and in the Netherlands.
Thus the first act takes place in Austria and the second in the Netherlands, after a short interlude in Poland.
East of Berchtesgaden lies Obersalzberg, at an altitude of 1,000 meters, a mountain at the northern base of the Hohen Goell, covered with meadows and forests, with scattered farm houses and with a wonderful view. Above the old road is the impressive Berghof which resulted from the reconstruction of the Wachenfeld House in 1936. It is here, not on the Rhine, not in the Teutoburg
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Forest or on the shores of the North Sea, that Adolf Hitler established his residence when he desired relaxation far away from the Reich Chancellery.
Hidden by a small hill, the house of General Field Marshal Goering lies behind the corner of the house.
Adolf Hitler stands at the window of his country house, in deep thought, and gazes on the snow-covered mountains. The country which is protected by these mountains is Austria, his homeland. It is a German land, free and independent, and not subject to his will as is the Reich, whose absolute Fuehrer he has become. When he wrote his lifework in the fortress of Landsberg, he wrote on the first page of his book: "German Austria must return to the great German fatherland." The shades of night rise slowly from the deep valleys and his thoughts glide over the mountains to the old imperial city on the Danube, Vienna, which he both loves and hates. It is the city of his joyless youth, a memory filled with want and misery. In his book Mein Kampf, he compares this city with Munich, and says about the latter: "Munich, a German city, how different from Vienna, I feel sick when I think of this racial Babylon."
And still, this city is the goal of his longing and he calls this same city in the March days of 1938 a pearl to which he will give the setting which its beauty deserves. On his table lies a book: The History of the Germans in Austria. Hitler read this book again and again; it is the history of his homeland, and we also will glance through it, as far as time permits. We read:
Austria was throughout many centuries one of the strongest pillars of German life. Its evolution, its rise, and its decline form a considerable part of German history. Austria was and is a piece of the German soul, of the German glory, and German suffering. Austria has received inestimable strength from the old Reich, but she herself has made a great and valuable contribution to the whole of German culture.
Her historical beginnings go back to the Frank, Charlemagne, who created the first "Ostmark," for the protection of the Reich against the East; she became a victim of the advance of the Magyars. The victory of the German King Otto I at Lechfeld in 955 is the hour of the rebirth of an Austria which now remains, under the rule of the Frankish house of the Babenbergs, the rampart against the East for almost three centuries. When the last of the Babenbergs fell in the fight, Austria came to the Alemanian house of the Hapsburgs which was to bear throughout centuries the imperial crown of the Holy Roman Empire of the German Nation and was to be by its, predominant position the strongest shield of the Reich. The mystic strength of the Reich idea gives to Emperor Frederick III the unshakable belief in the universal future of the House of Austria: Austria erit in orbe ultima. Under Maximilian Vienna becomes the main seat of humanism. Charles V goes on beyond the nation and is filled with the worldpower idea of the medieval empire. The defense and liberation of Vienna in the year 1683 is a deed of the greatest significance. Under the ruling colors of the German king, Catholics and Protestants, sons of an German peoples, fight for the fate of the capital of Christianity. In the eighteenth century, in the clash of the territorial states against the Reich, princely dominions against the Reich concept, German dualism arises, which from now on was to be the tragic fate of the Reich and Austria-Austria and Prussia, Maria Theresa and Frederick the Great, the great empress and the great king. Through the conflict between the two powers the old Roman Empire of the German nation was destroyed in 1806.
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The Reich died, but the concept of the Reich lived on. At Leipzig, in 1813, Prussians and Austrians fought shoulder to shoulder under Schwarzenberg, Scharnhorst, Gneisenau, and Bluecher to free themselves from the yoke of the Corsican tyrant. On 11 January 1849 the deputies of all German states assembled at Frankfurt-am-Main for the constitutional assembly. The Austrian delegate, Bergassessor Karl Wagner from Styria in Austria, spoke at that time the memorable words:
"Leave an opening for us so that we can enter; we shall come, unfortunately, perhaps not all of us. We, Austria's Germans, will come-how and when, who can tell? Who can read in the book of the future? But we shall come!"
The year before, in St. Paul's Church, where the delegates of all German lands and states had met, the poet Ludwig Uhland, as a deputy, spoke the memorable words:
"It may well be that Austria's mission is to be a light for the East; but she has a higher, a nearer mission-to be the artery in the heart of Germany."
But on the battlefields of Koeniggraetz in 1866, the thousand years' mutual bond between Austria and Germany was broken and Austria was forced to leave the German federation.
How unsatisfactory the solution of the German question by Bismarck's forced exclusion of Austria from the union of German states was, was also recognized in the Reich, where Paul de Lagarde wrote in 1875:
"But despite this, 1866 and the German Reich is an episode. Nikolsburg cannot separate what has been decided by geography and history to be together, if this being together will not be a union for a long time to come."
But before the double eagle of the Hapsburgs went down forever, Germans and Austrians once again fought shoulder to shoulder in 1914-18, with true Nibelung loyalty, for the freedom of the fatherland.
The common history of almost a thousand years, but above all the common language and origins, the same customs and mode of life-all combine to form the bond of unity between the two countries in the whole field of culture, of creative poetry and scientific research.
If here, the Austrian shows a special structure, then this is above all the fact that especially in the field of the art of poetry and music he has achieved performances which surpassed the creation of other German peoples by far, or at least were equal to them. As it can also be emphasized, that the living together for centuries with other nations makes the Austrian stand out, to equalize contradictions and to bridge inequalities. His joy in the sensuous, in the colorful, and his sense for the superficialities of life may have made him especially suitable for this. The narrow frame of the Trial imposes justified limitations here on an extensive description of the mutual cultural life. I limit myself to the quotation of names: The singers of the Nibelungenlied; the Minnesaenger, Walther von der Vogelweide, Ulrich von Lichtenstein, and Oswald von Wolkenstein; the humanists Aeneas Sylvius and Konrad Celtis; the orientalist Hammer-Purgstall; the poet of the "Wehrmannslieder" Von Collin, the classical dramatic Franz Grillparzer; the homeland poets Stelzhammer and
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Rosegger; and finally Rainer Maria Rilke, Franz Werfel, Anton Wildgans, and Hermann Bahr. When I turn to the magic world of music, then there is an abundance of the most illustrious names: Mozart, Haydn, Schubert, the waltz kings Lanner and Strauss, the symphonic composer Anton Bruckner, an were Austrians.
But is it not a symbol of spiritual unity that not only the North German poet Hubbell, but also Beethoven and Brahms made art-loving Vienna the permanent city of their work? There is no German music without Austria. But Austria not only made her contribution to the cultural life of the German people in the field of art, but also in the fields of science and technology.
But let us return to the Obersalzberg. If Hitler, the demonic psychopath, loved his homeland with the love of a rejected suitor then the love of Hermann Goering was of an entirely different kind. He also liked to look over into nearby Austria. He spent his youth there; it was not joyless and empty.
In the land of Salzburg with its old bishop city, its lakes and mountains, Hermann Goering learned to know Austrian characteristics, learned to love the people and country. What a joy it was for the courageous huntsman and later aviator when he got the first chamois on the crags in the cross-hairs of his telescopic sight. When he was severely injured by a burst of machine-gun fire on 9 November 1923 in the Odeonsplatz in Munich, faithful friends accompanied by his wife Karin, herself mortally ill, then took him from the pursuing bailiffs over lonely wood trails into the free Tyrol mountains of Austria. A large relief, on which already long before the Anschluss Austria was marked on the map of Germany without borderlines, shone in the large hall of Karinhall. But Hermann Goering was also Delegate of the Four Year Plan and knew that Austria was not only beautiful and rich with honors, but that she also owned the Erzberg where there was iron ore for the forging of guns; he knew the rich forests of Austria where there was wood for cellulose, for the construction of ships, and for rearmament; it was not unknown to him that there was in Austria the largest bauxite and magnesium sources of the world, and that Austria had the rich petroleum weds at Zisterndorf. Only power makes right! If Germany wants to have her say again in the world, then she must have a strong army and a strong navy. And for this reason he loved Austria!
Hermann Goering also never denied this, his conviction, and he expressed this repeatedly to the diplomats of the great powers. For instance, he stated openly to Lord Halifax, that it was an integrated part of German policy, regardless what government was in power, that the moment had to be created so that the unification of the two brother nations of purely German origin and blood could take place. He has also testified with human candor as witness before the Tribunal that when the question of the Anschluss came into its acute stage, he had grasped this ardently longed-for possibility for the total solution and that he takes upon himself the responsibility for everything which happened then, one hundred percent. He is therefore also to be believed when he stated further that he would do everything therewith so that the Anschluss would not lead to an endangering of the peace.
THE PRESIDENT: I think it is possible for the Tribunal to become acquainted with the history of Austria without having it read to them as a part of your argument. Up to now there has been nothing in your 20 pages but history of Austria.
DR. STEINBAUER: Mr. President, I beg your pardon; I consider it essential to portray the background in Austria which motivated my client. I have now finished, and I shall pass on to the facts.
The massed common will of the big two of the Third Reich to take over Austria at the opportune moment is the key to the solution of the Anschluss question. For that, there is no need for a
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conspiracy; those who participated were pawns on the chessboard of the two men, supers on the great stage of the world.
But let us return to Austria.
Only if we know the history of this country in the time from 1918 to 1938, are we in a position to judge the role of the defendant in this question justly.
I have already pointed out in the presentation of evidence that in my opinion there were three reasons for the Anschluss, and I have also attempted to reinforce these by the documents submitted, to which I now refer: 1. The economic distress; 2. The disunity resulting from this; 3. The conduct of the great powers toward Austria, especially during the critical days of March 1938.
Dr. Karl Renner, the Federal President of the Austrian Republic, who enjoys the confidence of the four occupying powers, and on whom the entire Austrian people look with respect because he took the helm of the ship of state for the second time in a period of dire distress, described the history of the Anschluss very aptly in his memorandum in 1945:
"The political reason why the Anschluss idea took hold of almost all of Austria at the conclusion of the first World War lay in the repeated proclamations of the victorious powers that the war was waged for the right of self-determination of nations-
"That every nation had a claim to her own complete national state, and that the peace would fulfill this requirement.
"But it was not this political reason that was decisive for the masses. Austria is a mountainous country with much too little arable land, a country with an entirely one-sided economic structure. Its capital alone sheltered a third of the population; its industry was able to feed a large part of the people only by working for Austria's neighbors, receiving from them raw materials and bread. The sudden separation of the highly agrarian parts of the previously uniform tariff territory of the Danube monarchy and the measures of the succession states in 1918 introducing high protective tariffs deprived the country simultaneously of its food sources and its export markets. The fear of not being able to feed themselves and of not being able to find work at home, the sudden construction of the labor market, were the factors which in 1918 made the Anschluss appear to almost everybody as the only possible solution. One cannot talk about the national chauvinism of the Austrian working class, because a large percentage of this class derived from parents of non-German blood who had hardly lost their ties with the homeland. The overwhelming competition of the Reich German and Czechoslovakian industry loomed menacingly before the workers of all professions
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in this small country, cut off from the sea, and poor in raw materials, and afraid that it would not be able to stand up against this competition. Not until we understand the economic situation can we understand the Anschluss movement, and why it was that Hitler's boastful announcement that he had done away with unemployment made such a deep impression on the Austrian working class, and why the will to resist the Anschluss was so weak within this working class at the beginning."
I have in front of me an economic statistical comparison from the year 1938. There are a few figures only, which speak volumes:
Population 68,150,000 6,710,000
Area (in square km.) 470,714 83,868
Change in population (1936) per 1,000
inhabitants plus 7.2 minus 0.1
Unemployed 1934 2,353,000 363,000
Unemployed 1937 573,000 319,000
Austria's Foreign Trade 1937; Export: To Germany, 179.8 millions to Italy 172.6 millions; to Hungary 111.2 millions; to Czechoslovakia 87.5 millions.
By the decision of 5 September 1931 the Permanent International Court at The Hague declared the contemplated customs union between Germany and Austria incompatible with the Geneva Protocol of 4 October 1922 by 8 votes to 7. This was the last attempt of the governments to achieve a closer mutual constitutional relationship with the express agreement of the victorious powers. It failed. Was not the conviction bound to arise in the minds of fanatical Anschluss partisans that this supreme national aim could only be achieved through their own initiative?
A year later Austrian foreign brace showed a deficit of 613 million schillings. On 15 July 1932 Dr. Dollfuss concluded a loan agreement in Lausanne on the condition that the Anschluss question would be put off for another 10 years. The ratification took place during the session of the National Council on 30 August 1932 by 82 votes to 80. In the federal council, the Social Democrat Koerner, at present mayor of Vienna, had protested against this law, in view of a rapprochement with Germany.
Hitler came to power the year after. The Social Democrats saw their party dissolved in the Reich and the trade unions smashed; they saw the Reichstag fire and the beginning of the persecution of the Jews, and their leaders turned away from the Anschluss idea. The Catholic circles who wanted to fortify the Catholic element in the Reich by means of the Anschluss also turned away because the persecution of the Church in the Reich had begun; and only the National Socialists, whose membership had increased tenfold within a short time, were in favor of the Anschluss. As Dr. Dollfuss had eliminated Parliament and thereby the way to power by means of
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the ballot, the National Socialists under the leadership of Landesinspekteur Theo Habicht strove with all means to gain power in the state. We come to the bloody events of the year 1934. Dr. Dollfuss is killed by the hands of assassins and his successor Dr. Schuschnigg attempts to restore order in the seriously shaken state system. The Socialists, however, remain sulkily aloof because of the events in February 1934. There are changes in the political situation abroad too. Whereas Italy in 1934 still stood at Austria's side, and Mussolini had deployed his divisions on the Brenner menacingly against the North, the Ethiopian adventure had forced Italy to Hitler's side. Austria is forced to follow the changed course and in order to improve the economic situation concluded the Agreement of 11 July 1936. In this agreement Germany recognizes the independence of Austria and ceases the economic war. The price for that, however, is a series of measures which give the National Socialists in Austria a new boost. In order to extend the small platform of his Government and bring about a real appeasement, Chancellor Dr. Schuschnigg declares himself willing to invite also the so-called Nationals to co-operate. Among these men is also the defendant, who then became Austrian State Councillor in May 1937. As already mentioned, the Anschluss idea constituted his political program. He never tried to hide this fact. He also comes from the ranks of the National Opposition, a factor which must not be overlooked. The Anschluss also brought him nearer to National Socialism, and it seems idle to engage in long investigations to find out at what time he officially became a member of the Party. Among the documents confiscated at his arrest was his membership card with the number above 7,000,000. The witnesses Gauleiter Rainer and Uiberreither confirm the statements concerning his Party membership. When, after taking office, the new State Councillor paid his first visit to the Fuehrer's deputy, Hess, the latter was very polite but cool and expressed his regret that Seyss-Inquart was not an old fighter. The task of Dr. Seyss-Inquart was to supervise the execution of the July Agreement and to act as a mediator between the Austrian Government, the National circles, and the Reich. It was a thorny and thankless task. The Austrian patriotic circles (Vaterlandische Kreise) could not forget the terror methods of the National Socialists during the Dollfuss period. The National Socialists, headed by Captain Leopold, were not satisfied with the methods of the national representative Seyss-Inquart in his dealings with the Government. Between these two men there were constant differences of opinion, which went so far that Seyss-Inquart wanted to give up the task entrusted to him-namely, bring about an agreement. To save time I refer in this connection to Documents Seyss-Inquart-44 (letter from State Secretary Keppler to General Bodenschatz), Seyss-Inquart-45 (Goering's telegram to Keppler) and Seyss-Inquart-46
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(USA-704) of my document book. There were continuous violations of the July Agreement, and the Austrian Police found the plan for a revolution known as Tavs Plan, which was an attempt to overthrow the Government by violence. Minister Guido Zernatto has declared that the defendant kept himself aloof from all these endeavors.
Then came the conference of 12 February 1938 at Obersalzberg. What happened at this conference is well known. That the defendant discussed things on the evening before this conference not only with Zernatto, the representative and confidant of the Chancellor in the Government, but also with the National leaders is understandable, for one must never lose sight of the fact that the defendant had always openly declared his role as mediator. He also had to know the claims of the opposition, so that when the two statesmen met at Berchtesgaden the differences could be cleared up. The defendant cannot be charged with playing a double game within the framework of a conspiracy, because the National Socialist Party tried to exploit the knowledge of the situation to their profit, and by dispatching Muehlmann were quicker than the unsuspecting Chancellor Schuschnigg. Here, too, we must have recourse to Zernatto, who died in exile, and who declared that he was under the definite impression that Seyss-Inquart did not know at the time about the agreements concluded at the Obersalzberg. On the basis of this agreement Seyss-Inquart was appointed Minister of the Interior and Security. He went in that capacity to Berlin to pay an official visit to the Chief of State of the German Reich and to present to him his political program for the relations between the two states, as set down in the memoranda for file (Exhibit Number 61) submitted to the Tribunal The account of this conference as given by the defendant in his testimony appears to be quite authentic. For various reasons Hitler had at that time obviously not yet decided to carry out the Anschluss. Let us here refer to what the Defendant Goering says, when he testified as a witness on 14 March:
"I was not present at Berchtesgaden; moreover I was not in favor of this agreement, because I was always against any half measures which would prolong this state of suspension."
In a sense the Berchtesgaden agreement gave the Nazis in Austria a free hand to carry on their activities and propaganda. The 2,000 Party members released from prison on the basis of the amnesty and at least some of the members who had returned from the Reich became increasingly active in the federal states and sought to bring about a rapid growth of the Party. Hitler's Reichstag speech of 20 February was used by them as a signal for hostile demonstrations against the Government and thus to bring them quickly to power. Not only Schuschnigg but also the great mass of the working class realized how dangerous the situation had now become. The
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threatening danger caused them to forget their differences, and the negotiations between Schuschnigg and the Socialist labor leaders and the Christian trade unions seemed to provide a guarantee for the defeat of the imminent attack of Nazism by uniting all democratic forces in a common defensive front. Prompt action was necessary, and Schuschnigg proclaimed his plebiscite. The whole country awoke from its lethargy. Workers and peasants were called upon to defend their country, and under the leadership of Zernatto swift electoral preparations were made in the factories and in the remote mountain valleys. It was clear that this attempt of Chancellor Schuschnigg to veer round and alter his course at the last moment could not fail to call forth the resistance of the National Socialists in Austria as well as in Germany. Hitler raved, and Mussolini's words before the election warning Schuschnigg that the bomb would explode in his own hand, unfortunately proved only too true.
And now let us come back to the defendant. He was not only a Government member, he was the confidant of the National Opposition and guarantor answerable to the Reich for Berchtesgaden. When the Prosecution charge him with having given Schuschnigg his word of honor about the election and having failed to keep it, that is not correct. Let us refer to the speech made by Gauleiter Rainer on 11 March 1942 to the Berlin Party members. On Page 12 of this Document, 4005-PS, it is disclosed that Zernatto's secretary was a secret member of the NSDAP and betrayed the plebiscite plans to her combers as soon as she came to know of them. Rainer says he already knew the whole plan at 11:30 p.m. that same evening.
THE PRESIDENT: The Tribunal will recess now.
[A recess was taken.]
DR. STEINBAUER: The protest against the plebiscite made to the Chancellor by Seyss-Inquart in the name of the Nationals was entirely justified legally. Apart from the fact that there could be no guarantee for a proper vote at such short notice, the vote itself was not constitutionally legitimate. Article 65 of the Austrian Constitution of 1 May 1934 specifies exactly under what circumstances the nation can be called upon to vote. Dr. Schuschnigg, therefore, bases his proclamation of the election on Article 93 of the Constitution which article merely says generally: "The Federal Chancellor determines policy."
The Austrian Patriotic Front (Vaterlandische Front), that is, the political organization, had the task of carrying out the election. The subsequent developments are well known, particularly the events
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of 11 March 1938. The main charge in respect to the conspiracy is, I take it, that Seyss-Inquart caused the entry of the German troops by his telegram about alleged unrest. We find this historical lie, which has given the defendant the name of "Judas of Austria" in the story of the Anschluss. We find this historical lie for instance, in Raphael Lemkin's Axis Rule in Occupied Europe (Page 109). We find it again in the opening speech of the American Chief Prosecutor, Mr. Justice Jackson, although it is incontestably proved by the submission of Goering's telephone conversations (Document Number 2449-PS) in connection with Goering's testimony, that this telegram was never sent and, what is more, was dictated and addressed to a third party at a time when the German troops had already received the order to cross the frontier. Consequently, these telephone conversations of Goering represent a historical document of the greatest importance.
Rainer's speech in Carinthia and his testimony as a witness before the Tribunal also give the lie to the charge that Seyss-Inquart participated in the seizure of power. According to this document (Document Number 4005-PS) it was Globocznik who wrongfully used the telephone in the Federal Chancellery to give the alarm to the federal states. Appointed Federal Chancellor by virtue of Schuschnigg's withdrawal under duress, the defendant discusses the constitution of the Cabinet, invites the ministers to enter it, and takes the retiring head of the Government home in his own car.
When it is further learned from the testimony of the witness Stuckart and from Glaise-Horstenau under what circumstances the law of annexation came into being, then it can indeed be said that Zernatto was right when he wrote that Austria was conquered, in his opinion, even against the wishes of Seyss-Inquart and his Government. I refer to Exhibit Number 63. Whoever, therefore, dispassionately surveys the whole set of events of March 1938 relative to the Anschluss, and examines particularly the part played by the defendant, can only come to the conclusion that. one cannot really speak of a carefully thought out "conspiracy," of the perpetration of a crime by co-ordinated stages. Where Austria is concerned, however, the Englishman Geyde is right when he says the curtain fell on the "Tragedy of Austria" when the troops marched in. It was to rise again soon on a new play: "The Martyrdom of Austria."
On 15 March 1938 Adolf Hitler came to Vienna. We have seen in this courtroom the film record of his reception. Deeply moved, the defendant addressed him as follows:
"What centuries of German history have striven for, what untold millions of the best Germans have bled and died for,
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the final goal in fierce combat, the only solace in hours of bitterness has today been achieved. The Ostmark has come back to the homeland. The Reich is restored, the empire of racial Germans is established."
With these words Seyss-Inquart defined his political aim, which was and remained the guiding star of his actions.
With the Fuehrer came Josef Goebbels, who turned on his gigantic propaganda machine at high pressure. There was rally after rally. Festivals were held. There was not a house in the land which was not beflagged. The leader of the Socialist workers said: "I vote yes" and the bishops exhorted the people to fulfill a national duty: "Render unto God the things that are God's and unto Caesar the things that are Caesar's." Both were to be disappointed. For with Goebbels came Himmler and his Gestapo and SS. Already during the night of 13 March there was a wholesale arrest operation in Vienna. It included the members of the former military associations, as well as prominent leaders of the Socialist paramilitary organizations, Jews who were active in political and public life, Communists and Monarchists, priests and Freemasons, and even the leaders of the Boy Scouts and of the Austrian youth organizations. In Vienna alone 76,000 arrests were made. Already on the 2d of April 1938 the first Dachau convoy left the West Station with 165 leading officials, including the present Federal Chancellor Figl, Education Minister Hurdes, and Minister of Justice Dr. Gero. The second convoy followed on 21 May, the third at the end of May, and so it went on. Punctually, every 8 days, convoys left for Dachau, Buchenwald, and Sachsenhausen. On 10 May 1946, the People's Court in Vienna sentenced to death Anton Brunner, who had had 49,000 people, mostly Jews, sent to the extermination camps in Theresienstadt, Auschwitz, Minsk, and Riga.
And what of the defendant? He was given the cold shoulder and pushed to the wall. The victor of the Saar electoral contest, Josef Burckel, was set up as Reich Commissioner for the reunion of Austria with the Reich and armed with dictatorial powers. The powers of the defendant scarcely exceeded those of an Oberprasident in the Reich, that is, those of a second level administrative authority. Still less, because immediately above him was Burckel who under the pretext of the annexation interfered with everything and laid claim to everything, particularly in matters concerning the churches and the Jews. This is evidenced by Documents 67, 70, and 91. The defendant opposed Burckel's methods. He even raised objections to Hitler himself against Burckel's action in Graz on 8 April 1938.
This we know from the testimony of Neubacher, Schirach, and Stricker, and from the documents submitted by the Defense. But
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Burckel, whom Churchill described as the Governor of Vienna in his book Step by Step, remained the stronger man and the importunate admonisher, Seyss-Inquart, was transferred to southern Poland as a provincial commissioner. This treatment alone at the hand of his alleged fellow conspirators shows only too clearly that Seyss-Inquart was actuated by his enthusiasm for the Anschluss and cannot have been a conspirator. He was not a leader, he was led or, what in my opinion is more accurate, he was misled, perhaps also a docile tool in the hands of the big two, Hitler and Goering. But it was solely for his political ideals, the Anschluss, without any intention of a war of aggression.
Of course, there was something of an economic boom in Austria after the Anschluss. It was partly a fictitious boom due to rearmament. But what took place was not the Anschluss that the Anschluss enthusiasts in Austria had visualized, especially when the war provided a motive and a pretext for ruthlessly controlling and repressing every dissenting or critical opinion.
Austria never ceased hoping for her liberation and fighting for it. There was much suffering and many died; 6,000 were executed in Austria. In the Landesgericht of Vienna alone 1,200 men died by the guillotine, 800 of them merely because of their anti-Nazi conviction. In the last days of the war Vienna's most beautiful buildings came down in ruins, and St. Stephan's Cathedral, one of the noblest monuments of German Gothic, went up in flames. Thus was fulfilled the promise that Hitler had made on 15 March 1938: "The pearl has the setting which its beauty deserves."
Not the idea of the Anschluss, that is to say, the wish to bring about the national unification of a people, was a crime; it was the introduction of a system that has probably prevented it from ever coming true; that was criminal. The defendant certainly did not wish that.
To conclude my statements on the Austrian question I shall now proceed briefly to examine the legal aspect of the charge against my client. To elucidate his legal responsibility, I will review his behavior in the following short survey:
First his political activity:
1) After the Agreement of 11 July 1936, the Federal Chancellor, Dr. Schuschnigg, took the Defendant Seyss-Inquart to work with him as a representative of the National Opposition, therefore, not as a political follower of his, as for instance the witness Guido Schmidt.
2) Seyss-Inquart always declared-for the first time to Dr. Dollfuss in July 1934-that the National Opposition consisted only of National Socialists who obey only Hitler's will, who, in any case, would never act against Hitler's will.
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3) Seyss-Inquart declared he was a National Socialist; thus he always stood for the interests of the Austrian National Socialists. This is not only confirmed by the witness Skubl but borne out by the authorities previously quoted by me.
4) To avoid any military or international conflict, Seyss-Inquart pursued the following aim: To allow the Austrian National Socialists to participate independently of the Reich National Socialist Party, should Austria and Germany form a close union.
5) Seyss-Inquart declared that this aim could only be attained if Hitler agreed to it and directed the Austrian National Socialists expressly toward this policy. This he wanted to attain.
6) The culminating point of Seyss-Inquart's efforts was his interview with Hitler on 7 February 1938; although he was so to speak, minister by the grace of Hitler, he stood for his Austrian program.
Herein lies Seyss-Inquart's mistake. He thought Hitler and Berlin would pursue a joint policy, that is, as Bismarck said, use the "art of the possible." Berlin, however, did not wish to pursue a joint policy. In the face of this fact Seyss-Inquart's policy broke down on 11 March. Is this mistake punishable, especially as the Austrian State leaders desired to reach an agreement along the same lines, and Dr. Schuschnigg, knowing his program, allowed him to continue his activity? In view of the defendant's basic attitude until March 1938, details of his political tactical attitude are of secondary importance.
And now the activity of the defendant as Minister of the Interior and Security.
7) There is no trace of any National Socialist influence on the Austrian executive. The witness Skubl has confirmed this with exceptional clarity. Seyss-Inquart forbade the Police to take up any political attitude (Document 51); he forbade National Socialist demonstrations (Document 59); he avoided such occasions (Document 59); he demanded that the Austrian Nazis stand for legality (Document 52).
8) On 11 March 1938 Seyss-Inquart fulfilled his duties as mediator, in accordance with the Berchtesgaden agreement. Together with Glaise-Horstenau he gave Dr. Schuschnigg, in the forenoon of 11 March, a perfectly candid statement of the facts. He particularly pointed out the threatening National Socialist demonstrations and the possibility of a German invasion. In the afternoon he delivered Goering's demands to Schuschnigg and the latter's answers to Goering.
9) After Dr. Schuschnigg's offer to resign, Seyss-Inquart retired. He did nothing to comply with Goering's demand to obtain the
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transfer of the Federal Chancellorship or to seize power. The ultimatums, with the threats of invasion by the Reich, were, as is known, transmitted by Embassy Counsellor Von Stein and General Von Muff, to whose pressure President Miklas finally yielded. This appears from President Miklas' statements (Document Number 3697-PS) and the statements of the witnesses Rainer and Schmidt.
10) Only after Dr. Schuschnigg's farewell speech did Seyss-Inquart publicly demand the maintenance of order. He did not designate himself as a provisional government but, in good faith, as Minister of the Interior and of Security, as was confirmed by the witness Schmidt. He took the order not to put up any resistance to the German troops from Dr. Schuschnigg's farewell speech.
11) Seyss-Inquart tried as long as possible to preserve Austria's independence, as instanced by his telephone conversations with Goering (Document 58), also by his request to Guido Schmidt to join his Ministry as Foreign Minister, as confirmed by the witness Schmidt, and according to the statements of witness Skubl; by refusing the demanded telegram (Document 58); by the request to Hitler not to march in, as confirmed by Goering; by the request to Hitler also to let Austrian troops march into the Reich.
12) On 13 March 1938 the Anschluss Law was issued in conformity with Article III of the Austrian Constitution of 1 May 1931. The psychological situation for Seyss-Inquart was the same as for all Austrians, who on 10 April had by secret ballot voted for the Anschluss by 4,381,070 votes to some 15,000.
Some of the accusations made against Seyss-Inquart are:
1) That he used his various positions and his personal influence to promote the seizure, incorporation, and control of Austria by the Nazi conspirators.
2) That, as an integral part of his evil intentions in the sense of the Indictment, he participated in the political planning and preparations of the Nazi conspirators for wars of aggression and wars in violation of international treaties, agreements, and assurances.
Concerning the first accusation, I refer to the above survey and limit myself to the following short statements: As a political aim, the annexation of Austria to the German Reich is nowhere indicted, and the defendant pursued no other aim. Here-as also on other points-the Prosecution go beyond the limits of the Charter.
Concerning the second accusation-that Codefendant Seyss-Inquart had participated in a conspiracy against peace must be judged by Article 6 (a), Part II (a) of the Charter. There it is stated, among other things, that collective planning, preparation, or execution of a war of aggression or a war in violation of international treaties, is punishable as a breach of the peace. .
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I leave it to the Tribunal to examine if this ruling can really be applied to the case of the entry into Austria in spite of the fact that there was no war. It is a significant point that, according to the meaning of the said ruling, the outbreak of a war is the condition for rendering an act punishable for breach of the peace within the meaning of the said provision.
In any case I cannot reconcile myself to an interpretation of this ruling which goes so far as to consider even an abandoned plan for war, or the possible planning for a war which turns out to be bloodless as punishable as the accomplished crime.
It must be pointed out most emphatically that no proof has been furnished that my client ever imagined that events would even lead to a war between Austria and any other power because of the Anschluss or pursuant to it. On the contrary, his decision to take an active part in politics after the drama of 25 July 1934 was dictated by the resolve not to let the Anschluss question become the cause of military or international complications. Furthermore, it must have been far from his mind to imagine that Hitler or his entourage had seriously considered the possibility of such a consequence. The outcome of the Austrian enterprise proved him to be right. The German troops were greeted on their march into Austria with flowers and cheers.
As for the great powers, France and England protested on 12 March 1938 against the Anschluss. But this was only a very mild and ineffectual protest. Military support for Schuschnigg was not forthcoming; above all, the League of Nations, the guarantor of Austria's independence, was not appealed to.
On 14 March 1938 the British Government declared in the House of Commons that they had discussed the new situation with their friends of the Geneva Entente and that the unanimous opinion had been that a debate in Geneva would lead to no satisfactory result.
When the League of Nations was informed of the Anschluss by the German Foreign Office it took note of it without protest, and the Austrian representative at the League of Nations, Pflugl, was given his papers. The Hague Court of Arbitration struck its Austrian member, Professor Verdross of Vienna, from the register of judges. The diplomatic agencies were withdrawn or transformed into consulates in the German Reich.
Only a very short time elapsed, in fact it was only a few months after the occupation and annexation of this small country that a treaty concerning another small state was concluded in Munich on 29 September 1938 with the alleged aggressor.
The French Prosecutor, M. de Menthon, in his opening speech mentioned that great politican and statesman Politis. I also would like to call him to mind. Shortly before his untimely death he
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wrote in his book, La Morale Internationale: "Qui menace les petites nations menace l'humanite toute entiere." The League of Nations powers did not feel called upon to pay any heed to this sentence.
But there is another principle of international order which they did not see fit to apply when confronted with the Austrian Anschluss. I mean that principle which, under the name of the Stimson Doctrine, has found entry into the science of international law and diplomatic language.
It is the principle according to which the nations of the world refuse to recognize territorial acquisitions obtained by force. This principle has at least penetrated into the legal consciousness of present times as deeply as the prohibition of wars of aggression, which is one of the main pillars upon which the Nuremberg Trial rests.
As evidence of this fact I will recall here the proposition of the Brazilian Delegate Braga to the second session of the League of Nations, in which he proposed a blocus juridique universal (universal juridic blockade) against aggressor states and at the same time submitted as one of the measures to be adopted, the denial of the right of annexation by aggressor nations. You will find this explanation printed in the document book submitted by Professor Jahrreiss to the Court as complement to his legal arguments, and which is reproduced there as Document Number 10 on Page 35.
I will further recall the so-called Saavedra-Lamas Pact signed by several South American states on 10 October 1933 in Rio de Janeiro and which the Little Entente and Italy also joined. Here the signatory states bound themselves not to recognize the validity of a forcible occupation or annexation of national territories. The Seventh Pan-American Conference accepted this principle on 26 December 1933 with the participation of the United States of America. It agrees as to contents with a proposition already submitted previously by the Peruvian Delegate Cornejo on 14 January 1930 to the Council of the League of Nations.
It is above all contained in the famous notes of the American Secretary of State Stimson to China and Japan of 27 January 1932, which contains the following sentence: "The American Government does not intend to recognize any situation, treaty or agreement brought about by means that are contrary to the statutes and obligations of August 27, 1928 in Paris."
And finally I remind the Tribunal of the declarations of the Council of the League of Nations on 16 February 1932, in which the Stimson Doctrine, raised to a principle, was expressed as follows:
"No encroachment on the territorial integrity and no infringement of the political independence of a member of the League of Nations in violation of Article 10 of the Covenant of the League of Nations could be recognized as legally valid by the member nations."
Nevertheless all the nations of the world recognized the incorporation of Austria into the German Reich without feeling compelled to concern themselves with the Stimson Doctrine.
This likewise substantially answers the accusation of the crime against peace by violation of treaties. Germany is supposed to have violated three treaties. First the German-Austrian Agreement of 11 July 1936; second, Article 88 of the Treaty of St. Germain; lastly, Article 80 of the Treaty of Versailles. Here also, it must be pointed out that all the nations concerned have not only tolerated the violations of the treaties but, moreover, tacitly sanctioned them
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by their attitude. This implies at least a renunciation of international law, and the powers concerned have thereby forfeited the right to take any action because of treaty violations, as this would be contrary to all sense of fairness.
With particular regard to Article 88 of the Treaty of St. Germain, the German Government, and therefore Seyss-Inquart as alleged coconspirator, cannot be charged with violation of this provision because Germany was not bound by this treaty, which she had not signed, and which for her represented a res inter alia acta.
On the other hand, the German-Austrian Treaty of 11 July 1936 was a res inter alia acta for powers other than Germany and Austria; here Austria alone could have raised the objection of a breach of treaty. In this connection attention is called to the fact that the reconstituted Austria is not among the signatories of the London Agreement of 8 August 1945. Therefore the four states of the International Military Tribunal are not entitled to vindicate the interests of Austria at this Trial.
With regard to Article 80 of the Treaty of Versailles, I resist the temptations to discuss the question of the legal validity of this provision; I will dwell on the legal significance of the contradiction of this article with the so-called Fourteen Points of President Wilson.
But in concluding my legal exposition of the Austrian affair, I cannot altogether refrain from expressing a general idea: One of the great principles of international order which in the course of the nineteenth and twentieth centuries has established itself after much suffering, much confusion, and many makeshifts and become more and more a reality is the right of self-determination of nations.
This basic principle of the right of self-determination of the nations has become so firmly rooted in the legal conceptions of international relations in our century that one is forced to the idea that it belongs to the general principles of international law, an idea that particularly appeals to the democratic way of thinking. But as a general principle of international law it would, together with the Charter, the prescriptive international law and, thirdly, the law of treaty, then become the standard criterion of judgment for the Nuremberg International Military Tribunal, which at all events must find a similar basis for other questions. And further it would acquire, like all other generally accepted principles of law, a constraining force and above all have precedence over international treaty law.
A number of states owe their existence to this lofty expression of the democratic way of thinking. Such a privilege was denied the Austrians after the first World War. Despite the fact that the people in Austria as well as in Germany unanimously strove for union, Austria was forced to eke out an existence as an artificial, unnatural
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state structure, neither able to live nor die. How bitter are the words of the Encyclical Ubi areano of 23 December 1932:
"We hoped for peace, but it did not bring salvation; we hoped for healing, but terror came; we hoped for the hour of recovery, but only confusion came; we hoped for light, but only darkness came."
In the year 1938, too, Austria and Germany strove for union, according to the wish of the overwhelming majority of their citizens, and this time their wish was fulfilled.
From the point of view of world history, the incorporation of Austria has no other significance than the triumph of a mighty and living principle of international order-the right of self-determination of nations. This dynamic force carried away artificial and unnatural treaty stipulations. Who can speak here of guilt?
I have nothing to say on the question of Czechoslovakia, and on the question of Poland very little, for during his short stay he was not in evidence at all of the Poles but was mainly concerned with the organization problems connected with the building up of the German administrative apparatus. In this matter it is sufficient for me to refer to the outcome of the evidence.
Nor will I say anything more about his honorary rank in the SS except that an honorary rank was never under Himmler's command and disciplinary power, nor did such rank carry with it this power in the SS.
As regards his position as a minister without portfolio, the importance of this function within the scope of the organizations will be discussed in the chapter "Reich Cabinet." Therefore, passing now from this interlude, I hasten on to the second scene of this case: the Netherlands.
Many know her only as the country of windmills, wooden shoes, and wide breeches; the red brick buildings, large herds of cattle in green meadows, and vast multicolored tulip fields. I know her as the country that gave to mankind a Rembrandt, and the many masters of the Dutch school, and Grotius, the great teacher of international law; the country that fought for her liberty in bloody battles against Philip II of Spain and produced the great naval hero De Ruyter, who won one of the most famous naval battles in history on 21 August 1673. But during this Trial we learned here that of all the occupied countries, the Netherlands offered the most united and stiffest political as well as increasingly effective physical resistance; we also learned that throughout these years these people never abandoned the hope that the day of liberation would surely come. The motto of the province of Zeeland: 'Luctor et emergo-I struggle but emerge'-had become the rallying cry of the whole country.
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Seyss-Inquart came to this country in May 1940 as chief of the civil administration. Whatever he may have thought and planned, it is his tragedy that he came as the representative of Adolf Hitler and of a system hated the world over. Hundreds of laws, orders, and decrees bore his signature, and no matter how correct they may have been legally, in the eyes of the people they still were measures of the enemy, and Seyss-Inquart still their oppressor. My client did not put himself forward for this office. On the contrary, he asked permission to go to the front as a soldier. Adolf Hitler refused this. Seyss-Inquart has also never contested his responsibility, and gave himself up voluntarily after the collapse. In case the legal opinion of the defense concerning the command of a superior is not shared by the Tribunal, the total organization of the Reich on the one hand, and the attitude of the Dutch people on the other, must, if only virtue of Article 8 of the Charter, be taken into consideration in passing judgment on his administrative activity. The way in which Seyss-Inquart discharged his two conflicting tasks-namely to represent the interests of the Reich and at the same time to provide for the welfare of the population within the meaning of the Hague Land Warfare Regulations-is revealed by his attitude which I now describe: In the administration of Holland my client clearly allowed himself to be guided by the following legal conceptions:
The development of war technique, particularly in air warfare, the enormous extension of economic warfare, the expansion of the war into "total and indivisible war," the beginning of the idea of total blockade, have all made international law-as it was in force in the years 1899 and 1907 when the Hague Convention was established-meaningless from the viewpoint of the clausula rebus sic statibus, and absolutely incomplete and useless because of new requirements and prevailing conditions. Only a few vestiges from the old days were still valid in the second World War.
How drastic this change is, is most strikingly shown by the bombing of residential quarters, made possible by the colossal development of explosives and flying technique, and which had no justification whatever according to previous law. If indeed there is any justification at all, then this can only be found in the concept of total war. But, above all, this development brought the individual into war-due not least to the influence of the Anglo-American concept of war.
Accordingly, in the course of this development the enemy civilian population, as well as the resources of the occupied regions, have become a war potential of the occupying power up to the limits imposed by humanity.
A further limit is imposed by international law, which provides that the demands of these forces must be justified by military
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necessity, and lastly that these demands must be reasonable en aequo et bono.
Moreover, the totalitarian and indivisible nature of modern warfare precludes the special treatment of specific areas. It is no longer a question of requisitioning the human and economic forces of a definite area only for the requirements of that area, as it is still prescribed by the Hague Convention for Land Warfare. Henceforth the belligerent in power must have at his disposal the sum total of these forces, which on the other hand benefit from belonging to the whole.
Modern technical development, especially in the field of communications and traffic, also raise another problem of warfare, the so-called partisans, involving new and heavy tasks. In contrast to the period of the first World War, the partisan organization assumed enormous proportions in the second World War, and endangered the fighting troops, which at most can be compared with the guerrilla war of attrition against Napoleon I in Spain. The old international law made no adequate rules to offset this danger. It is evident that the grading principle for fighting the partisans must be the security of the fighting troops at any price.
This means that the army as well as the occupation administration have both the right and the duty to take the severest repressive and preventive measures without going beyond the bounds of reason and humanity. My client performed the functions of his office in accordance with these guiding principles, always in the firm belief that he was carrying out his duty according to the directives of international law-that is, of the supreme Reich leadership. Any thought of acting illegally or even of committing punishable acts never entered his mind. That has nothing to do with the applicability in this case of the principle that ignorance of the law is no excuse, for here not national penal law is concerned, but international law and moreover it is not a question of a legal error, but of a subjective conception of duty, which may have erred here and there but was always sincere.
Having discussed the principles, let us now turn to the individual administrative acts of the defendant. Here it must be pointed out that, as everywhere in occupied territories but particularly in Germany proper, the National Socialist administration tended more and more to become overorganized, and responsibilities often overlapped. At the same time there was an extremely rigid centralization in Berlin. Consequently the following authorities were in control in the Netherlands: 1) The Reich Commissariat (civil administration and protection of Reich interests); 2) The Commander-in-Chief of the Armed Forces and the various commanders-in-chief, with their own courts; 3) The Police, about which
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I shall speak later; 4) Four Year Plan-Goering; 5) Einsatzstab Rosenberg; 6) Department for the Allocation of Labor-Sauckel; 7) Armament Ministry-Speer; and 8) last but not least, the NSDAP with its offices and organizations.
Pursuant to the Fuehrer order, thus de jure, the Reich Commissioner was bound to obey unquestioningly the instructions of these central agencies, and he was not allowed to have a say in measures taken by them. The record of history still to be written will perhaps reveal with what skill the defendant prevented some of these measures or at least succeeded in toning them down. As to the Dutch population, its attitude, as already mentioned, was completely hostile, and the resistance movement, organized, equipped, and directed through the Dutch Government in London, grew stronger every year. To reach a fair judgment, the defendant's actions should be considered against this background.
I now turn to the Indictment and shall follow in broad outline the presentation of the French prosecutor.
The first charge is the alleged violation of the sovereignty of the country by the introduction of the Reich Commissariat with its four general commissariats: Abolition of civic liberties; introduction of the Leadership Principle and dissolution of legislative bodies and political parties. These measures cannot constitute a breach of international law. Inasmuch as Germany, like the Netherlands, one of the signatories of the Fourth Hague Convention of 1907, recognized during the war the laws governing land warfare, and notwithstanding the failure of the joint participation clause (Allbeteiligungsklausel) after entry into the war of the Soviet Union, the validity of the laws governing land warfare, in the sense of the limitations referred to at the beginning of the above statements, must be accepted for the Netherlands as well. Its rulings do not appear to have been violated. As a result of the complete occupation of the country and the flight of the Queen and of the ministers, the highest governing power in civil affairs passed from the Crown and the Parliament to the occupying power, and thus to the Reich Commissioner. Owing to the unconditional capitulation of 10 May 1940, General Winkelmann; who had been left behind in the country and was vested with special powers, renounced his authority in every respect.
Furthermore, it is the recognized right of the occupying power to organize the administration as its requirements demand. In so doing it must do nothing which anticipates the final decision as to the fate of the country. This was definitely recognized also by the Supreme Court of the Netherlands by the decision of 12 January 1942, submitted by me. The division of authority between the Reich Commissioner and the Commander-in-Chief of the Armed
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Forces, as provided for by the Fuehrer decree, also represents an internal distribution of jurisdiction by the occupying power. This is definitely established in the British Manual of Military Law of 1936. The fact that the State Parliament was suspended, the activity of the State Council restricted to the preparation of opinions in disputes on administrative matters and that, finally, the parliamentary parties were dissolved, is likewise no violation of international law, because during the period of occupation it is the occupant who decides to what extent there is need for legislative measures and for amendment of the legislation of the country. As a rule, at every election about 50 parties entered the contest for the 150 seats in the Dutch Parliament. The fact that these parties, formerly at variance with one another, not only joined forces in their antagonism to the occupying power, but very often were active in the various resistance movements, gave the occupant every justification for suspending and subsequently dissolving them-their final dissolution was not decreed until 5 July 1941-the more so as the country lay on the direct path of the coming developments of the war, and an invasion was to be expected. This made it necessary for the administrative apparatus to concentrate all its force to do away with parliamentary obstruction and deprive these institutions of their latent power to carry on hostile propaganda.
In answer to the accusation that the NSB was sponsored for this purpose it must be said that the Reich Commissioner consistently refused to form a government from these parties. That parties which were already in existence in the country, or were newly formed, and who identified themselves ideologically with the occupying power were encouraged by the latter is likewise not disallowed by international law. As no official administrative powers were vested in the NSB, and since political organizations had no influence on the administration, the fact that in 1943 this party declared itself to be the representative of the political will of the Dutch nation is immaterial. It always has been and continues even today to be the practice of the occupying power to encourage and assist political parties friendly to them.
The charge of Germanization is also unjustified. By their origin the Dutch people were always considered to be Teutonic and it is, therefore, not possible to make Teutons out of them. When we look into Dutch history we find that for centuries the Netherlands belonged to the Federation of the German Reich. If you roam through the country you can still see in Groningen's coat of arms the German Reich eagle, in the same way that Amsterdam's coat of arms has borne the emblem of the German imperial crown since 1489. The first and the last Salic Emperors, Konrad II and Heinrich V, died in Utrecht. That the occupying power should desire
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to orientate toward central Europe a country cut off from the sea and her colonies by the blockade was understandable, but it never was intended, certainly not by the Reich Commissioner, to eliminate the national traits and the independence of the Dutch. The defendant was perfectly right when in his speech of 9 November 1943, in Utrecht (Document Book 102), he declared among other things:
"We ourselves would cease to be Europeans should we fail in our mission to tend and to promote the growth of these flowering cultures of the European peoples, each with its own individuality, and bound together with blood ties."
Equally unjustified is the charge of the French Prosecution that pressure was used to bring the Netherlands into the war. There was nothing against enlisting volunteers of Dutch nationality in the German Armed Forces; Article 45 of the Law of Land Warfare only forbids compulsory recruiting for war against one's own fatherland. This did not make those who took up arms voluntarily immune from the regulations of the Dutch penal code, as mentioned by the Prosecution, which during the war were made more severe by royal edict. The same holds true of the citizenship regulations for these volunteers and regulations concerning marriage to German nationals. Inasmuch as these orders of the Reich Commissioner had no legal value outside the compass of the German Reich, the legal deduction that they do not constitute an abuse of sovereignty in the sense advanced by the Prosecution can be put forward with a clear conscience. That a press which notoriously placed itself in the opposite camp of the occupying powers was silenced goes without saying.
The French Prosecution see a further suppression of sovereignty in the stifling of intellectual life by the closing of the universities and the demand for a declaration of allegiance. Special mention is made of the closing of the University of Leyden. But the University of Leyden was closed because of rioting by the students, and being a security measure of the occupying power, it cannot be an infringement of international law. In the same way, the demand for a declaration of allegiance is not at variance either with the Rules of Land Warfare. According to Article 45 the population of an occupied country may not be forced to take the oath of allegiance; according to the wording of the declaration all that was demanded was to abstain from any action directed against the German Reich or its army. Inasmuch as the population of an occupied country is bound to obey the occupying power exercising the authority of the state, this declaration, which does not make any actual demands, cannot be considered a violation of international law.
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The organization of the administrative authorities was taken over almost as a whole, and maintained in the face of an entirely un-co-operative, even hostile attitude; especially did one refrain from interference in the courts. The only reproach in this direction is the dismissal of the President of the Court of Justice at Leeuwarden. The defendant has definitely declared that he assumes responsibility for this case, and he has a perfect right to do so. The occupying power may interfere in the field of the judiciary only when the purpose of the occupation is in jeopardy. If a judge refuses to administer justice, even though the cause for his complaint was removed by the Reich Commissioner, as was the case in this instance, then the occupying power has the right to remove from office the judge concerned.
The French Prosecution then continue, asserting that the defendant initiated a series of acts of terror. In the course of the presentation of evidence on this point we have heard what the circumstances of this collective punishment were. Moreover, Kammergerichtsrat Rudolf Fritsch and President Joppich showed by their testimony that the defendant was extremely conscientious in the application of the right to grant pardon, and that he limited capital punishment as much as possible. And as regards the special police courts, both the defendant and the witness Wimmer have proved that this was a procedure applied in exceptional cases only, headed by an official of the judiciary, and that the defendant had the right to the services of a freely chosen defense counsel who could also be of Dutch nationality; a procedure which lasted a short time only-about 14 days. Even today we find the individual occupying powers using this procedure in a much severer form in exceptional cases. In July 1944, as a result of a Fuehrer order, the regular courts were abolished and saboteurs and members of the resistance handed over for sentencing, in spite of the protests of the defendant.
One of the main points of the Prosecution is the question of hostages, and I must therefore discuss this in detail. Dr. Nelte has already generally discussed its legal aspect and I refer to his statements.
In RF-879 the Prosecution have picked out two particular cases: The so-called hostage shootings at Rotterdam and the shootings after the attempt against the Higher SS and Police Leader Rauter. Already in the course of his first interrogation by the Prosecutor, the defendant, in connection with the first case, spoke of the Armed Forces' demand for 25 to 50 hostages. The witness Wimmer confirmed that these hostages had been demanded by the Armed Forces, that through the defendant's influence this number was
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finally reduced to 5, and that the Higher SS and Police Leader was entrusted with the shootings.
The relations between the Armed Forces and the Reich Commissioner, as well as the relations between the Armed Forces and the Police, were regulated by the decree dated 18 May 1940 (Reich Law Gazette, Part 1, Page 778, Document Number 1376-PS, Paragraphs 2~3).
In order to convict the defendant, the Prosecution submitted the accusation but not the testimony of General Christiansen. In the course of the interrogation the witness did not take the oath.
The record proves that: a) The order was issued by the Armed Forces because of serious cases of sabotage and was analogous with the so-called Law Governing Hostages promulgated in Belgium and France; b) the hostages were then arrested by the German Police on the order of the commander of the Armed Forces in Holland- "An order is an order"; c) the High Command of the Armed Forces or Command, West insists on the execution of the orders in spite of all representations; d) execution by the Police; e) Proclamation I made in the judicial department of the headquarters of the Armed Forces in Holland. Proclamation II drafted by the Higher SS and Police Leader.
Would the Tribunal consider the argument for the justification of the defendant to be sound if he used the arguments of General Christiansen for his justification?
As to the second so-called hostage case, it concerns the consequences of an attempt directed in March 1945 against the Higher SS and Police Leader, SS ObergruppenFuehrer Rauter, the highest police officer in the Netherlands, who was directly subordinated to Himmler. If we recall the consequences when in 1942 the tyrant Heydrich was murdered by the Czech patriots, we can well imagine how Himmler in 1945, at the height of his power, clamored for vengeance for the plot against one of his nearest and most important officials. It is likewise understandable that the defendant too, as head of the administration, ordered deterrent measures to be taken, under the heading of "general prevention," after an attack had been made on one of his commissioners general. But he did not demand any hostages; he merely asked for the execution of sentences passed at legally conducted criminal cases. Exhibit Number RF-879 proves the truth of these assertions since the witnesses Schongarth, Lages, Kolitz, and Gerbig unanimously confirm that only men already sentenced to death were shot, and not 200 but 117, some of them possibly before the date originally fixed for the execution. This also is confirmed by the Criminal Commissioner Munt in D II of the report of the Dutch Government, and likewise by Dr. Friedrich Wimmer, who was heard as a witness before the Court. In this case
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it was not at all a question of hostages in the real sense, but the justifiable execution of saboteurs, plunderers, et cetera, from the point of view of the occupation, and which was called the shooting of hostages in order to frighten the population. The fact that the defendant succeeded in getting the number of 500 real hostages as originally demanded by Himmler reduced to 117 orders of execution can certainly not be a reason for making him responsible for Himmler's cruelties.
The Prosecution furthermore asserts that the defendant in his capacity of Reich Commissioner had agreed to, directed, and supported the deportation of an enormous number of Dutchmen to Germany. The principle which the question of the use of foreign workers involved has already been thoroughly discussed by other defense counsel. May I be allowed to add a few remarks on this point of the Indictment. According to information which I received from the Office of Statistics, the prewar unemployment figures of 300,000 to 500,000 men out of a population of 9 million was a chronic situation in the economic life of the Netherlands, which was more or less rightly considered to be one of the richest countries of Europe. When the country was occupied and the Reich Commissioner took over the governmental power, he considered it his duty to deal with unemployment in the interests of order and peace.
It was evident that this could not be achieved according to liberal principles, because even in countries adhering to the liberal economic order, the whole economy was directed to meeting the requirements of war conditions. Until 1943 the employment of labor was based on the voluntary principle. The defendant himself stated that a certain amount of economic pressure was used. He had found Minister Speer in particular very much in favor of his plan to transfer German undertakings from the Reich to Holland, thus enabling the workers to be used in their home country.
In 1943, three age groups of young unmarried men were called up by the labor offices, but not by compulsion. When in 1944 the Reich demanded 250,000 workers, the Reich Commissioner refused, and this has been confirmed by Lammers. The witnesses Hirschfeld, Schwebel, and Wimmer have confirmed that the "man-hunting action" of the autumn of 1944, which rounded up all men of military age among the population, was a drive by the Armed Forces, for which the defendant cannot be made responsible. On the contrary, and this fact must be recorded here, the Reich Commissioner softened these measures by issuing 1,000,000 certificates of deferment
and by urging proper transport, as well as by mobilizing the workers. And in this connection it should not be forgotten that the steady growth of the resistance movement rightly caused the Armed
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Forces to fear lest the massing of people in the southwest provinces might represent a grave danger to the occupying power.
Seen from the legal aspect, it must be pointed out that the defendant was bound by the orders of the central offices within the framework of the Four Year Plan-that but for these orders and demands he would never have sent workers to the Reich, also that where even the execution of these orders represented a violation of the laws of humanity, he raised protest. In his actions the defendant upheld the laws of humanity.
As to the Prosecution's next point, the so-called economic looting of the country, I likewise refer to the general principles I gave at the beginning. Raw materials were requisitioned from the very start of the occupation in accordance with the Four Year Plan with the help of the Dutch authorities, who thus were able to prevent unnecessary hardship. The defendant would naturally have preferred to keep the stocks within the territory of his own administration. When requisitioning had to be carried out, the defendant insisted on fair compensation being given and he also prevented the transfer of Dutch concerns, as for instance the margarine factory in Dortrecht or the Leyden Cold Storage Works. On the insistence of the Reich Commissioner, Goering promised that the Dutch people should not be in a worse position than German citizens and, therefore, as far as the defendant is concerned, it would appear that Article 53 of the Hague Rules of Land Warfare, if not too narrowly interpreted, had been adhered to.
The report of the field economy officer under the Armed Forces commander in the Netherlands, dated 9 October 1944 (Exhibit RF-132), and of Lieutenant Haupt (Document Number 3003-PS, Exhibit USA-196) prove that the requisitions were in the first instance carried out by the Armed Forces. The latter points out that the whole position is made more difficult by the fact that Reich Commissioner Seyss-Inquart is still in the country, although to all intents and purposes he had resigned. This certainly shows that as far as it lay within his power, the defendant always tried to oppose or reduce hardship in this sphere of his activity. In a total war the removal by the Armed Forces of stocks of war material and rolling stock after the invasion, and when the enemy was approaching, is likewise in keeping with international law.
The state of emergency created by the war called for the redirection of Dutch economy in Europe. Before the war, according to official statistics, 39 percent of the employed population were engaged in trade and industry, 23 percent in commerce and transport, and 20 percent in agriculture. Cut off from the rest of the world, navigation was at a complete standstill. To give an example-60 percent of the trade passing through the port of Rotterdam consisted
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of German goods. The highly developed agricultural industry was based on improved and intensive cultivation, dependent on artificial fertilizers from South America and concentrated fodder from Canada. We have learned from the testimony of Dr. Hirschfeld how relatively well Dutch agriculture and particularly the world famed cattle-breeding industry survived the war. This was only made possible by the understanding and collaboration of the Reich Commissioner with the Dutch administration offices and the support the defendant gave them.
The extension of trade over the continent of Europe, practically the whole of which during the war was controlled by Germany and her allies, no doubt offered good markets for Dutch trade and industry. It was, therefore, natural that also as regards finance, the economy had to be brought in line with conditions in the German Reich, or rather in the European economic area. It was necessary to regulate the financial economy if only for reasons of price policy. It would exceed the limits of this Trial to state more details here.
May I only point out to the Prosecution that the defendant had no part in fixing the amount of the occupation costs and was not even able to examine them. Only the civilian budget of the Reich Commissariat was settled by the Reich Commissioner and had to be approved by the Reich and audited by the Reich Treasury. In agreement with the Dutch agencies, civilian requirements were set at 3 million guilders per month, which was not exceeded. On the contrary, at the end of 1943, a saving of 60 million guilders had been affected, and this remained in the Netherlands.
The lifting of the customs barriers in interstate traffic was justified by the joint price policy and could only benefit the Netherlands. Likewise the ratio of the mark to the guilder was also fixed by mutual agreement. A difference arose for the first time when the blocking of foreign exchange was lifted. Here the views of the former Dutch Secretary General, Trip, and those of Commissioner General Fischbock differed. The defendant, who after all was not a financial expert, submitted this important question to the central Reich authorities for their decision, and the Defendant Goering has expressly stated during the hearing of the evidence that he decided in favor of Dr. Fischbock. The defendant therefore cannot be charged with criminal responsibility, not even that of a culpa in eligendo, if in the place of Secretary General Trip, who had resigned, he now appointed Rost van Tonningen, who was a former commissioner of the League of Nations and therefore a first-class financial expert.
The Defendant Funk has also testified here that he always considered the clearing debts as real debts. In the Netherlands Government report it is pointed out that the financial demands of the Reich
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amounted to approximately the same in all the occupied western territories and that only the methods differed. If Germany had won the war, the method employed in the Netherlands would have produced the result that the Netherlands would have had a real claim amounting to 4,500,000,000 guilders against the Reich. The whole question therefore is not a matter for a criminal trial, but rather is one that should be dealt with in the peace negotiations. Furthermore, an exact account was kept of everything. It even went so far that every time a member of the Armed Forces boarded a train with a free ticket, the conductor of the Netherlands Railroad Company always made a careful note of it.
As far as the alleged looting of museums and libraries is concerned, as well as the looting of the royal property, to save time let us refer to the evidence which proved beyond doubt that the defendant was particularly mindful of the need to safeguard the world famous public art treasures and that he reduced any arbitrary demands of the Reich offices, if there were such, to a minimum.
Insofar as any objects not essential for the conduct of the war, such as, for instance, art treasures, libraries, et cetera, were taken away, the defendant had no part in this. The few pictures which he bought for Vienna he acquired in the open market. As for the royal property, the instructions he issued were such that the confiscation of this property was no more than a demonstration. That this is true is shown in the Dutch Government report. The Rosenthaliana library which has been mentioned so often, did not reach the Reich, as the defendant had it stopped at Groningen after it had been removed against his will. The Arnhem case would likewise appear to have been cleared up by the witnesses Dr. Hirschield and Wimmer, and the report of the field economic detachment (Document 81).
The Jewish question has also a certain connection with the economic problems. Before I deal with this main point I must make the position of the Police in the Netherlands clear. The Prosecution seeks to establish that the Police, and by that is meant also the German Police, particularly the Security Police, was under the defendant. This attempt falls short when it is remembered that all the signatories with the exception of the Soviets hold that the Police is actually a part of the civilian, particularly the domestic, administration. The situation in Germany was this: De facto, and not de jure, Himmler was independent, more powerful even than any other minister, although he was nominally State Secretary of the Ministry of the Interior. The strictly disciplined and centrally directed SS was subordinate to him in his capacity as ReichsFuehrer. The Defendant Keitel testified on 5 April 1946 that from the outbreak of war the SS became more and more an independent power factor in the
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Reich. He and those who worked with him had no full knowledge of the extent of Himmler's powers, and Himmler and Heydrich had usurped the jurisdiction over life and death in the occupied countries by the frequently mentioned Fuehrer order.
What was the situation in the Netherlands?
l) The Fuehrer decree of 18 May 1940 already that the German Police was not part of the Reich Commissioner's organization, nor was it subordinated to him. For it says in the decree: "The Police is at the Reich Commissioner's disposal,"-which would not have been necessary if it had been a part of the Reich Commissioner's office.
Thus even though the Reich Commissioner is the supreme governing power in the civil sphere, the Police is not a part of it.
2) In Decree Number 4 the Reich Commissioner named the administrative agencies so that the Dutch could clearly see how it concerned them, without being affected by the splitting up of the Reich authorities. With regard to the Police, that is, the German and Dutch Police, a second Commissioner General was appointed for security affairs (Higher SS and Police Leader). According to Article 5 of this decree the Higher SS and Police Leader has under his command:
a) The German Police and Waffen-SS (For the Dutch this order of things was declarative, for the Higher SS and Police Leader was appointed by the Fuehrer on Himmler's recommendation, without the Reich Commissioner being consulted. Rauter presented himself to the Reich Commissioner as having been already appointed, and the Reich Commissioner would never have been able to appoint the commander of the Waffen-SS, which opinion is also shared by the Prosecution).
b) The Dutch Police (This order of things was constitutive, because the Reich Commissioner was responsible for the Dutch Police).
The Dutch witness, Dr. Hirschield, who was Secretary General throughout the occupation, definitely confirmed that Rauter was directly subordinate to Himmler, and that the apparent unity of the Police and administration, according to the decree, did not exist in reality.
On Page 21 of his book Axis Rule in Occupied Europe Raphael Lemkin defines the task of the Police as being the liquidation of politically undesirable persons and Jews, just as the main responsibility for the seizure and deportation of the workers in the occupied countries was borne by the Police.
THE PRESIDENT: Would that be a convenient time to break off?
[The Tribunal adjourned until 22 July 1946 at 1000 hours.]