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THE PRESIDENT: The Tribunal will sit on now until 1 o'clock without any interruption.
I have an announcement to make.
When counsel for the Defendant Hess first made his argument, the Tribunal directed that he should rewrite it and submit it for the Tribunal's consideration, as he had continually disregarded the Tribunal's directives that the alleged unfairness of the Versailles Treaty should not be argued.
The argument as now rewritten by Dr. Seidl has been carefully considered by the Tribunal. It still contains many allusions to the unfairness of the Versailles Treaty, irrelevant material, quotations not authorized by the Tribunal, and other matters which have nothing to do with the issues before the Tribunal. The Tribunal have, therefore, deleted the objectionable passages and have directed the General Secretary to hand a marked copy containing the deletions to Dr. Seidl.
That is all.
The Tribunal direct Dr. Seidl to get in touch with the General Secretary's representative. He will then see the passages which the Tribunal consider objectionable.
Now, Dr. Fritz.
DR. FRITZ: Mr. President, Gentlemen of the Tribunal: Yesterday afternoon I concluded my statement in response to the charge that the Defendant Fritzsche was guilty of a crime against peace.
The next group of accusations leveled against the defendant is, for instance, characterized by such terms as incitement against Jews, incitement against foreign nations, instigating the exploitation of occupied territories, propaganda for the master race.
On the witness stand, Fritzsche made a declaration which represents a summary of the knowledge he gained after the collapse and, above all, here in Court. It ran as follows: An ideology in whose name 5 million people were murdered must not be permitted to survive such a record. Now, to what extent did Fritzsche make
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propaganda for this anti-Semitism? Could he, by doing so, foresee the murder? Did he approve of it or at least accept it as inevitable? The Prosecution went very far in their assertions. They imputed that Streicher, as "the chief Jew baiter of all times," could hardly have surpassed Fritzsche in his defamation of Jews. Fritzsche defended himself against this accusation, and rightfully in my opinion. A mere comparison of the slogans from the "arsenal of anti-Semitism," which Sir Griffith-Jones read for hours from excerpts from Der Sturmer at the session of 10 January 1946, with Fritzsche's statements submitted here by the Prosecution, shows this very clearly. Fritzsche, supported by the affidavit of Scharping, dated 17 May 1946 (Document Number Fritzsche-2), was able to point out what actions he undertook against this paper. It must also be noted here that the language and arguments of Der Sturmer found no echo in any German newspaper or at a single broadcasting station even of the National Socialist regime.
Before the war Fritzsche carried on no anti-Semitic propaganda of any kind. All utterances and statements of his submitted by the Prosecution originated during the war. They are, however, not directed against the Jews as a people or as a race, but are related only to the question of the origin of the war. They were merely casual, polemical remarks on the Jewish question in the propaganda battle which was fought in this war alongside the battle of arms. This explains the fact that the radio addresses submitted by the Prosecution never contain more than casual remarks, and never speak of the Jews alone. Every one of his radio speeches may be examined in this respect. Nor does there exist a speech by him which dealt exclusively with the so-called Jewish problem. He never undertook to talk on such a subject. Fritzsche always spoke, at the same time, of "plutocrats," "bolshevists," "democrats," and used other such phrases by means of which the propaganda of the Third Reich felt obliged to conduct its fight. During his interrogation he dealt in detail with each of the radio addresses submitted in the Trial and discussed the reason he had each time for making his merely incidental remarks on this subject. An examination of all of his statements over the radio would show that of all the fundamental propaganda subjects of Nazi ideology, Fritzsche mentioned and advocated anti-Semitism least of all. This takes all foundation from the conclusion of the Prosecution. For there cannot be any connection between such occasional remarks on the part of Fritzsche and the murder order given by Hitler. I therefore expressly protest against the accusation that Fritzsche be considered more guilty than those men who carried out the shootings (Session of 23 January 1946).
In the course of this Trial we have heard much testimony as to what secret and ultrasecret means and methods were used by the
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really guilty ones to carry out this horrible murder. So many statements cannot be put aside as irrelevant and unreliable. In contrast with former assumptions, this Trial should have made it clear that there existed only a small group of instigators and abettors. It has not been proved, in the least, that a man like Fritzsche belonged to this closest circle of Hitler's despotism. The Trial has even shown that he made the acquaintance of the majority of his codefendants only here in the dock. To draw such far-reaching conclusions against Fritzsche would necessarily lead to the assumption that everybody who took a public stand for anti-Semitism as such-if only with reservations-bears the same criminal guilt. The extent of the moral guilt is much greater. But we are concerned with it only insofar as the moral guilt is identical with the criminal guilt. And, therefore, there is no need to discuss here how far a mere error- even a political one-may at the same time become immoral. The accusation, however, of being coresponsible for these murders, was an especially deep blow to Fritzsche.
With regard to this it might be objected that, although Fritzsche did not maintain very close relations with his chief Goebbels and the other heads of the news service, he was yet one of those persons who had access to the foreign press and radio news. This is perhaps the reason why Fritzsche is accused of having had knowledge of almost everything that happened during Hitler's rule. Fritzsche was able to state in the witness stand, while giving many details, that even with this opportunity his good faith was not shaken in the decisive-perhaps also moral-questions. Just as little as his profession as journalist gave him the opportunity to follow rumors up on his own, just so little in this way would he realize what was actually happening. The barriers which had been erected around the misdeeds, however, could not be broken down by him through these means.
With regard to foreign reports on atrocities and other misdeeds, Fritzsche, as well as Von Schirrmeister and, especially, Dr. Scharping, have stated that the examination by the office "Schnelldienst"- express news service-which was carried out in all cases, resulted time and again in official replies which eliminated doubts as to the inaccuracy of such statements from abroad. This office, the "Deutscher Schnelldienst"-German news speed service-which had an entirely different significance from that claimed by the Prosecution, was a control agency created especially by Fritzsche in order to have foreign news tested as to the truth of its contents through inquiry at the competent German official agencies. If the Defense had succeeded in submitting the records of this "Schnelldienst" to the Tribunal documentary evidence could have been offered in every detail for the way in which German authorities answered inquiries of this kind. For instance, the Reich
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Security Main Office knew in a masterly and deceptive way how to make its replies sound credible. The foreign propaganda which was to serve a definite purpose could in comparison lay no claim to a greater power of persuasion-this all the more since the enemy propaganda in wartime also brought, of course, really incorrect reports, of which fact Fritzsche often felt quite convinced.
Furthermore, Fritzsche has been accused of advocating the doctrine of the master race. The only statement by Fritzsche himself which the Prosecution submitted in regard to this point shows clearly that Fritzsche neither championed nor promoted such an idea; that, on the contrary, he expressly rejected it. An examination of the quotation presented by the Prosecution does not leave any doubt about it. Beyond what the hearing of evidence-the witness Von Schirrmeister and the affidavit of Dr. Scharping-has shown as to how Fritzsche prohibited the use of the words master race for press and radio altogether, Fritzsche himself under oath termed this accusation nonsensical. Therefore, after thorough examination of all obtainable speeches by Fritzsche, I can only state that this charge is untrue. Nothing is changed in regard to this statement by the fact that Voss and Stahel (Documents USSR-471 and 473) judged differently without giving any concrete facts. I have already dealt with the value of those documents as evidence.
Fritzsche allegedly stirred up hatred against foreign peoples. To prove this serious charge the Prosecution emphasized several excerpts from two of Fritzsche's radio addresses, which were held on 5 and 10 July 1941. In order to be able to understand correctly the circumstances underlying the speeches, one must take into consideration the dates on which they were held. They were made shortly after the attack on the Soviet Union. He is not charged with any further statements-made, for instance, at a later time-or similar ones which might lead one to suppose some systematic line of thought. When the passages cited by the Prosecution were supplemented by the full text of the speeches, and by the examination of Fritzsche on the witness stand, it was shown that Fritzsche did not slander the peoples of the Soviet Union. Neither could what had led up to these speeches have given him any reason to stir up hatred against that country. They were held shortly after German sources, and in particular war correspondents, had reported atrocities in towns in Galicia which had been conquered by German troops. These were things which were reported everywhere in Germany-and also by foreign correspondents-in print, pictures, and motion pictures. In this respect, there was an especially great volume of material, and in his speeches Fritzsche expressly referred to it. Fritzsche's statements reflect the agitation of the German public over these reports, and he pointed to those presumed to be guilty of the atrocities. The facts, as such, were also confirmed by
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the Russians. The latter added, however, that not the Russians but the Germans were guilty of these actions. What happened was only that, on the basis of undeniable facts, a controversy had flared up as to the responsibility-just as happened later in the famous case of Katyn-in which both sides morally condemned the instigators.
In neither of those speeches, as an examination of their entire contents would reveal, did Fritzsche designate entire nations as inferior or subhuman. His phrases about subhumanity referred only to those culprits whom in real indignation he pilloried as morally contemptible. He found it reasonable to believe the proofs presented by the Germans, and, therefore, there is no reason to assume that, at the time he held the speeches, he could have predicted what actually was to happen in the East much later. Therefore, there could not have existed any intention on his part to stir up his audience to engage in similar actions. It is impossible to establish any causative connection on the basis of two such words he had once spoken.
The same is true of the excerpts from a speech of 29 August 1939, which General Rudenko read to him during his cross-examination (Document USSR-493). That broadcast also refers to atrocities committed shortly before the outbreak of the war in Bromberg, and concerning which, on the day of the speech-that being the reason for it-an official White Book had been published. It contained a short account of the results of an investigation of those atrocities. Only the guilty ones were designated by Fritzsche as inferior human beings. But it is not justifiable today to generalize this opinion to such an extent, as if he had designated the entire Polish nation as inferior. Fritzsche considered the representation in the official White Book as correct. He could not have doubted the fact that Poles had killed Germans. However, no word in that speech allows for the conclusion to be drawn that he envisaged the possibility or even suggested that the Slavic nations be exterminated. Fritzsche no more than the German people could imagine anything like it at that time.
General Rudenko attempted in his cross-examination to prove that my client had made false statements. For that purpose an excerpt from his broadcast of 2 May 1940 was presented to him (Document USSR-496, Session of 28 June 1946). This is the example I mentioned before as proof of the insufficiency of such evidence in general. In it Fritzsche gives a description of the towns, villages, and hamlets in Norway which he had visited shortly before, and which had been spared by the war. The Russian prosecutor pointed to the official report of the Norwegian Government (Document 1800-PS) enumerating the damages caused by the war. Thus the impression was created that Fritzsche had lied to his audience.
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The full contents of that speech show, however, that the quoted sentences regarding undamaged houses in Norway stand directly next to other sentences in which Fritzsche himself depicts the destruction caused by the fighting in Norway. The speech does not contain a lie if Fritzsche reported in it that in other parts of the country he visited not the slightest trace of fighting was found. His description, therefore, is not in the slightest contradiction to the Norwegian Government report.
At this point, I should like to insert a few remarks about the case of the Athenia, and the part that Fritzsche played in this connection. This case shows to what extent Fritzsche was at pains not to retransmit reports until they were proved to be true and reliable. But it shows; also, how dependent Fritzsche was on the version of the official German offices. This is evidence of his good faith; for it seemed natural to him, and he took it for granted, that official announcements were to be accepted without questioning, and this conviction could not, at that time, be shaken.
That particular article in the Volkischer Beobachter, dated 23 October 1939, has been rightly described in this Trial by all parties as contemptible. Now, Fritzsche also engaged in polemics on this point in sharp although not similar terms. I take the liberty of pointing out that such remarks could be morally condemned only if Fritzsche had known beforehand that it was actually a German submarine which sank the Athenia, but, as he has testified under oath, this fact first became known to Fritzsche here in Nuremberg, in December 1945. Up until then, he was the very person from whom this decisive circumstance was withheld although he had, through the naval liaison officer, undertaken investigations at the High Command of the Navy, and other official offices within the Ministry of Propaganda, concerning the assertions made in foreign reports.
To support the charge that Fritzsche instigated the ruthless pillage of the occupied territories (Session of 23 January 1946), the only evidence submitted is a statement made on 9 October 1941. In this, a passage from a public speech made by Hitler a few days before is reproduced. I have taken the greatest pains to find any instigation for the ruthless pillage of occupied territories in this quotation, or in the remarks made by Fritzsche about it in his radio address. It is impossible for me to see how any one sentence can possibly convey anything to this effect. I can only assume that it is a case of a misunderstanding and leave it for the Tribunal to judge. In no other connection has Fritzsche spoken a word or given a hint to this effect and, least of all, openly called for such a thing. Moreover, it is to be gathered from Dr. Scharping's affidavit, dated 17 May 1946 (Document Fritzsche-2), that the use of any kind of coercive means against other nations would have run counter to
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the purpose of his whole work, including that within the Ministry of Propaganda-namely, to gain the voluntary co-operation of the European peoples.
It has also not been proved that Fritzsche really knew about the manner in which foreign 'workers were actually recruited. I would point out that the Defendant Sauckel stated that he had only one brief and unofficial talk with Fritzsche, and that in the beginning of 1945. In his affidavit Fritzsche further gave exhaustive details on the fact that he obtained extensive material from competent authorities to be brought to the attention of the German public, and in which the voluntary character of the recruitment of workers for employment in Germany was continually pointed out. It is not to be assumed that any information concerning this was given to the Ministry of Propaganda other than that provided by Sauckel in his report to Hitler (Document 407-PS).
Moreover nothing has proved that Fritzsche approved, or even used for propaganda purposes, the violations of international law already committed or intended, such as the so-called Commissar Order, or the lynching of enemy aviators who had been brought down. With regard to the Commissar Order, the Russian Prosecution charged that the defendant, as a soldier, a member of the 6th Army, received knowledge of this decree. This has been confirmed by Fritzsche. He could, however, point out that his attitude had not only been passive; he even, and this must be said, took a successful stand against this by way of proposals to his commanderin-chief, the witness Paulus (Session of 12 February 1946). General Rudenko's charge that in spite of this he remained in Hitler's service-although he should at least have assumed that Hitler was the author of such an order contrary to international law-is not a reason for accusing Fritzsche as a propagandist, or even as far as his ethics are concerned. Gentlemen, if such an accusation with a criminal legal foundation could be made, it would affect every German soldier who fought on for his fatherland in the East after the autumn of 1942.
Fritzsche also protested against the fact that Allied fliers were to be treated contrary to international law. When he learned this, he spontaneously refused any propagandistic activity for Goebbels in this respect. These facts have been definitely ascertained through thorough examination of him on this subject and through Dr. Scharping's affidavit (Document Number Fritzsche-3).
Furthermore, no charges can be made from what he said in his radio speeches, about the use of new weapons and the Werewolf movement' with which he has been charged by the Russian Prosecution on cross-examination (Document USSR-496). I can be spared mentioning particulars in this connection because Fritzsche testified in detail. The speech of 7 April 1945 (Document USSR-496), with
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which he is reproached, does not in the least glorify forms of warfare contrary to international law. It rather attempted to find a psychological reason or excuse for the active participation of civilians in the fighting toward the end of the war by referring to the suffering of the German people through the effective air warfare of the Allies.
I still have one point of the evidence to refer to. General Rudenko submitted to Fritzsche a short document at the end of his cross-examination (Document USSR-484). It is a copy of a short message, signed by Fritzsche, dated 19 October 1944, addressed to Major Von Passavant, a wireless expert of the Propaganda Branch of the OKW. The Russian Prosecution wish to conclude from the contents of this communication that Fritzsche had committed himself in the preparation and execution of some kind of "biological war." Such a conclusion cannot possibly be drawn from the contents. It is merely a covering message of five lines referring to the transmission of a letter of a radio listener to another department. Fritzsche's department received daily whole stacks of letters from unknown radio listeners. A subordinate official looked through such letters, of which hundreds arrived daily, and directed them wherever they would perhaps receive special consideration. The letter of the radio listener Gustav Otto, from Reichenberg, which apparently contained a suggestion to carry out biological warfare, followed exactly the same route. Although Fritzsche, in his capacity of department chief, signed the transmitting letter composed by the subordinate official, he naturally did not know anything about the contents of the listener's letter. In view of the large number of daily communications from listeners, it-was completely impossible for him to read them. This listener's letter, in any case, did not receive any special attention in the broadcasting department. The copy of the transmitting letter, as can be seen from pencil notes made thereon, was also immediately filed. How can anything unfavorable be deduced against the Defendant Fritzsche from this sort of evidence? Especially as it is completely unknown what the unknown listener meant by a "biological war."
Finally, I have yet to point out the following. General Rudenko read the document on the occasion of the cross-examination (Volume XVII, Session of 28 June 1946), and from a Russian text; the German text, which appears in this form in the German transcript, and the English text, which appears in this manner in the English record, differ considerably in content from the original German text. If notwithstanding the insufficiency of this document-the meaning of which could in any case be clarified only by the appendices which are lacking-the Tribunal believe it deserves consideration, the first requirement would be to have exact translations made from the original German text.
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In concluding my evaluation of evidence, I wish to say that none of the documents brought up during the cross-examination of the Defendant Fritzsche could modify the impression which he gave us during direct examination-that is, his having spoken sincerely and truthfully before this Tribunal, and that because of his own desire also to make every possible contribution on his part so that an actual foundation for a proper judgment may be found. And going even further, all the statements made by Fritzsche were supported in all decisive points by the documents which I submitted, and particularly through the testimony of the witness Von Schirrmeister. The latter, who during the most important period between 1938 and 1943 was the daily companion of Goebbels, was able to report directly, and, I dare say, with great clarity, on the true conditions in the Ministry of Propaganda. The result of the evidence-I may repeat here what I expressed in my introduction- was unequivocal for my client.
Contrary to the announcement made by Mr. Albrecht, which I mentioned at the beginning of my final pleading, nothing during the proceedings could corroborate the contention that Fritzsche's importance in reality was greater than that shown in the diagram of the Ministry of Propaganda. The discussion of the bare facts alone ought to have made clear that Fritzsche can bear no responsibility for what is the actual part that may have been played by the extensive propaganda machinery of the Third Reich in the plans which were in the hands of a small initiated circle. If the restricted department in which Fritzsche worked was misused, then Fritzsche himself was misused. The assumption that Fritzsche was Goebbels' closest collaborator, his right-hand man, so to speak, and even his acting deputy-an assumption from which the bulk of the accusations leveled at him are probably derived-is refuted by facts which have come up for discussion. The odium against Fritzsche, on the alleged ground that he bears a responsibility equal or similar to that of Goebbels, has already been definitely shown by the evidence to be unfounded. Even from the dealings and actions themselves of my client it ought to have become clear that the assertions of the Prosecution have gone much too far.
In the legal consideration of those acts and dealings of Fritzsche by Captain Sprecher, it was quite striking that-as far as I can see, at only one point and here, too-as distinct from the other defendants was the quite general conclusion drawn that Fritzsche was, during a definite period, a principal conspirator because he was directly entrusted with the manipulation of the press (Session of 23 January 1946). I need not mention again at this point that the factual prerequisites for such an opinion did not exist. Now I am only concerned with establishing, with regard to the legal qualification
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by the Prosecution themselves, that in discussing his case his activity will be judged only in the sense of forms of participation.
The Indictment points out in several places (23 January 1946 a. m.) that Fritzsche had been called to account by this Court because of 'adding and abetting. He is characterized as an accomplice of Goebbels; he is said to have assisted in producing propaganda material, helped create an atmosphere of hatred, lent support, et cetera; whereby it becomes obvious that he could not have been one of those who did the planning. On the other hand, it is also said of this defendant that he was an active instigator and inciter and that, therefore, he stirred up and aroused people's passions. The first question now is: Does the accessory also belong to the participators within the meaning of Article 6 of the Charter? This question, it seems to me, has not yet been discussed by Dr. Stahmer; but the case of Defendant Fritzsche offers an opportunity for this because by the Prosecution themselves he has been characterized only as an accomplice. I am, therefore, compelled to give the question closer scrutiny.
The four concepts, leader, organizer, instigator, and participator, are presented as being equally important. Perpetrators coming within these four possibilities are also to be dealt with equally. These four concepts, insofar as they differ textually, can consequently only explain in what different forms a plot can be fashioned. One person instigates, the other organizes, another leads the gang, still another takes part in the plot in some other way. Therefore, all four concepts are closely connected with the common plan. They are united only because of the common plan. Only that makes them true accomplices. To make plans jointly, to want jointly to carry something out, that is the primary concept ruling these four secondary concepts. Only the functions in themselves may, of course, be different. They can also be divided by the conspirators themselves. If the conspirators have jointly invented the plan, have formulated it or, by agreement, have merely furthered it, then it should be of no consequence which part each one of them plays in its execution. It should, therefore, also be basically unimportant whether within this plot someone is the leader, the inspirer, or merely another participant in the plan. But, everyone presumably must be a party to the plan. At least, he must have recognized its purpose, for according to the words of the Charter, he must have participated in it, and that either (a) in the formulation, or (b) in the execution-but only of a common plan-or (c) in some other conspiracy for the commitment of an individual crime. Only then is he responsible for others when in the execution of such a common plan someone commits a crime. The word "accomplice" refers therefore to the plan. He is an accomplice in the plan, and is in no respect different from the leader or instigator. A wider
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meaning in an accessory sense must therefore be not far removed from this concept.
In common law, the concept of accomplice as a guiding principle has also an altogether different meaning than accessory. By accessory, according to the prescriptive legal conception, only one of the forms of complicity is understood, and that is the form by which a deed by another person is only supported or furthered, a deed which the accessory does not exactly want to be his own; it means the mere support of the main deed. Article 6, last paragraph of the Charter, cannot have such a meaning. There the participant is to be put on an equal basis with the accomplice, whereas in common law the accessory, as subordinate participant, can never be accomplice in a punishable deed. In common law the assistants are merely accessories. It cannot have been the intention of the creators of the Charter to regard the mere accessory as participant in the plan; for whoever participates in a plan is to answer fully for the deeds of others, even if he has only subordinately participated in the formation of the plan. But if the opposite is true, then it must follow that whoever does not participate at all in the formation or discussion of a common plan can therefore not be charged with full responsibility for what others have done. It is thereby immaterial whether the others committed a crime in the execution of a plan or only incidentally upon the occasion of its execution. The responsibility of the one for the deeds of the other can only exist when the plan binds them together. It is for this reason that the concept of conspiracy presupposes of necessity the idea that what is being done takes place under the impulse of a common will and a common knowledge in relation to the plan.
This description of participation as restricted to the plan is, in my opinion, expressed also in other parts of the Charter. In Paragraph 1-and not only in Paragraph 6, Section 1-it is stated that in execution of the Four Power Agreement of 8 August 1945, at first the "principal war criminals," the "principal culprits," the "principal conspirators," should be called to account here before this Court. Assistants, accomplices, simple agents of execution, and all other merely dependent, accessory perpetrators who do not belong to the central body-that is to say, who are not connected with the conspiracy plan or in closer agreement for the carrying out of a single crime-cannot be considered as belonging to such a group. Within the meaning of conspiracy and the responsibility of the one for the other connected with it, there can be no simple "helpers" at all.
As concerns the Defendant Fritzsche, I have demonstrated that- if only due to his position in the State and the Party structure- he can neither belong to the restricted group of conspirators nor to the wider group of the organizations. Moreover, Captain Sprecher
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has himself pointed out (Session of 23 January 1946) that Fritzsche is not represented by the Prosecution as the type of conspirator who would have thought out the all-comprehensive strategy, that his particular field lay even outside the framing of the plan; but that it was not necessary for him to have correctly understood the basic strategy-to have perceived the aim when he was the spokesman of the conspirators. I believe that this conclusion, if the concept of "participator" within the meaning of the conspiracy is rightly estimated, contains an error of thought. He of whom it is said that he even stood outside those who made the plan definitely does not belong to the group of conspirators.
After these legal arguments, which are even supported by the opinion of the Prosecution, I come now to this conclusion: The Defendant Fritzsche, against whom it has not been proved here that he took part in any common planning, can on this account not have been a participator in the alleged conspiracy. At any rate, he cannot be punished according to Article 6, last paragraph of the Charter. According to the underlying conceptions of the Charter there should be somewhere a limit fixed concerning the indictment of an individual person in these trials. When is someone still an accomplice, and when is he no longer that but only a tool or accessory? Where is this boundary through which the responsibility for one's own deeds can be separated from the responsibility for what others have done? Because there must be a dividing line for this collective responsibility also. I think the common plan constitutes this dividing line. He who does not belong to those who do the planning must also be left out of the group of conspirators.
On the other hand, the framers of the Charter provided for the possibility (a) of pronouncing an individual culprit a criminal even though he does not belong to the group of conspirators, and (b) of declaring an organization as such a criminal organization.
If the Defendant Fritzsche does not belong to the group of conspirators and, as is definitely established, was never a member of even one of the organizations being prosecuted here, he could be convicted only if he as an individual had committed crimes as covered by Article 6, Paragraph 2(a) to (c) of the Charter. In that case, however, Justas in any ordinary criminal procedure. the Prosecution must furnish proof of a criminal offense. If he does not belong to the conspiracy, if he does not belong to an organization' the Prosecution cannot rely on a so-called legal assumption, an assumption which is supposed to result from the mere membership in an organization. It is not possible to reverse the evidential proof. The second question then is: Did Fritzsche, as an accomplice or abettor, belong to the class of those criminals of whom it has been proven that they as individuals committed crimes against peace, violations of law governing warfare, or crimes against humanity?
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He as an individual is not charged with committing any one of these crimes with his own hands. The charge is directed against him only by reason of his activity as an accessory.
As far as I can see, the concept of the accessorial accomplice is not foreign to English and American criminal law.* However, common law is governed by the principle that the accessory falls into the same class as the accomplice, in other words, that, irrespective of the measure of his personal culpability, he should be punished, in principle, just like the perpetrator. It seems that at all times English law was inclined to apply the principle of equal punishment for perpetrator and accessorial accomplice.**
The reason for referring here to English common law is merely in order to establish a link with the German concept of law. It is, therefore, sufficient to establish at present that English and American law also differentiate between the concept of a perpetrator and that of a mere accessorial accomplice. On that point, therefore, a decisive difficulty arises, resulting from the fact that there is a difference in the concept of right and wrong between the Prosecution and the defendants. The concepts are bound to be different because their statute law is not the same. That is the reason why I cannot as yet conclude my legal argumentation. Differences in conceptions, although familiar to both legal spheres, result in entirely different legal inferences as far as statute law is concerned.
The British chief prosecutor (Session of 4 December 1945 a.m.) referred to the individual responsibility of each single defendant according to the meaning of Article 6, Section 2(a) to (c) of the Charter. In that connection he remarked that it is a commonplace in common law that persons who help a criminal and shield him, who give advice and help to a criminal, are criminals themselves. By stating this he possibly represented the view that, according to the spirit of the development of English law, such persons, by reason of their complicity in someone else's deed, must be punished in the same manner as the main perpetrator-that is, the accessorial quality of the accomplice, if I understood Sir Hartley Shawcross correctly, is in principle of no importance even with respect to
* Chronological differentiation: Accessories before the fact, principals, accessories after the fact. A differentiation of principals is also made according to the degree
** of the matter, dividing them into matter of first degree and of second degree the latter are also segregated into those who assisted in execution itself through advice (abetting) or those who lent aid during commission of the deed (aiding).
*** Mention should be made that an English law (act of 1861), for example, makes a differentiation between accessories and abettors, abandoning-even though merely as a matter of choice-infliction of equal punishment in the case of different types of crimes, so that in the case of felonies equal punishment may be inflicted: "may be punished" . . . In case .of misdemeanors, it is true, equal punishment must be imposed: "shall be liable to be punished."
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common law. In practice this might mean that a legal distinction between accomplices and accessories plays no part here, or at best might determine the degree of the respective responsibility for the measure of the individual guilt. Is the one who merely supports the deed of someone else to be judged, in principle, in exactly the same way as the one who wants the deed to be carried out as his own? I may refer to the effects which such an interpretation could have on the measure of punishment for example.
At this point it might be in order to say this: the legal maxim propounded by Sir Hartley Shawcross may indeed be commonplace for every adherent to the English and American law, but this does not hold true for a German defendant. As I also infer from the argument of the French prosecutor, Dubost, this does not seem to hold true for French common law, either, because he pointed out that, according to the principle of penal law, strictly speaking, none of The defendants could in that case be considered as main perpetrators but merely as accomplices. And because the confines of common law concepts are too narrow, it is the opinion of the French Prosecution that The deeds which are to be adjudicated here are not equal to common law with its rationalistic statics, that it would be necessary to apply a law which goes beyond this (Session of I February 1946 a.m.). The concept of conspiracy, therefore-the science of the plot (KomplotMehre)-and the possibility to declare an organization criminal, are to be the vehicle by means of which it will be possible to go beyond common law.
However, how about the case of a defendant who does not belong to the conspiracy nor to an organization? After all, law is to be applied! This then leaves nothing but common law for judging the individual deed. Which law is otherwise to be applied for such general concepts as for instance, guilt, intent, negligence, but also for the accessorial quality of the accomplice? It is possible that through the establishment of new facts, the Charter created new substantive law. But what is the juridical concept with which to approach these new facts? The classification of the actual circumstances of a case will probably have to be made only by means of the analogy of penal law concepts. With regard to the facts of the case listed in Articles 6(b) and (c) of the Charter, these correspond essentially with the facts of a case in common law. A defendant as an individual who did not take part in drawing up the plan, and who did not belong to an organization, can then be judged only according to principles which also must apply for every other delict of common law. If concepts such as, for instance, an accomplice who acted as an accessory are involved, argumentation against a defendant can take place according to common law only.
German legal ethics have had to face the most complicated legal problems, particularly in connection with the doctrine of the forms
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of participation; in other words, with the question as to how an accessory should be classified according to the various possibilities of participation. From this in particular results the decisive question: Is it possible that the Charter went so far-I repeat, what is involved are common law concepts-as to prohibit taking into account the deep-rooted legal concept of those accused here in judging an accomplice who acted as an accessory? Is it possible that it entirely ignored even the completely different structure of statute law?
In view of the utterly different nature of statute law, especially with reference to the question of accessorial assistance, I ask permission to make a few remarks on the legal dogmatic conception of German law. In all fairness, and at least as far as the concept of an accessorial accomplice is concerned, a German defendant can be charged only with what is known to the concept of law adopted by his people and which, at the same time, is in keeping, morally, with his sphere of knowledge. That is the decisive point!
By reason of the provisions of statute law in Paragraph 49 of the Reich Penal Code, there is not only a strict separation between the accomplice and the perpetrator, as far as the concept is concerned, but necessarily, and as a matter of principle, he is also to be punished less severely than the perpetrator himself. Jurisprudence and the administration of justice, therefore, have made a sharp distinction between the perpetration of an act itself and the mere abetting or support of somebody else's act by the accomplice. This distinction is made not only in accordance with external characteristics> objective factors, but also with regard to what occurs in the mind, and thus with subjective factors. During decades of German administration of justice, particularly that of the Reich Supreme Court, this is expressed in such a way that, in the case of assistance in somebody else's action, the accessory is said to have the animus socii, but the perpetrator himself the animus auctoris. According to German law the assistance seen from the exterior-that is, according to objective factors-is only a furtherance and support of the action of the principal perpetrator; the accessory must have helped to bring about success by his support.* If he has not helped to bring about this success, then he is not an accessory-then his action is not punishable.
Concerning the mental side of the deed, the intent, the will of the accessory animus socii must be directed to the end that somebody else's action is supported with his knowledge. And so when judging what is going on within the mind of a perpetrator, German
* Reich Court 56, 168: "A condition for the action of another person must be established objectively."
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law also makes a sharp distinction between will and knowledge. * And this discrimination is furthermore decisive as to whether somebody has given assistance at all.
I have stated before what Fritzsche could have known about plans or their execution from his duties. Only if it has been proved that he had a definite knowledge and will as an accessory to the plans, could he be convicted. It would also have to be investigated in the case of the Defendant Fritzsche whether what he knew and wanted in connection with an alleged furtherance is identical with what someone, as a principal perpetrator of a crime, then actually did. Only when the knowledge and intent of both agree, can there be question of an accessory at all. In this connection, it is to be emphasized that a vague knowledge, a very general intent, is not sufficient to establish the state of being an accessory. The accomplice must be concretely aware of the elements of a plan which another is to carry out in accordance with his intention.**
The Prosecution, however, also charge Fritzsche in various points with instigating specific crimes as an accessory. And so the third question is: Has Fritzsche been the instigator of any single crime?
At the beginning of these legal statements, I already referred to the details of Captain Sprecher's prosecution speech (Session of 23 January 1946). To me it is doubtful if here the concept of instigation is meant in the legal-dogmatic sense of common law. The concept of incitement is used essentially to the extent that it corresponds to the German legal concept of mere invitation (Aufforderung). This charge of instigation can only be raised insofar as it can be said to concern the individual responsibility of Fritzsche for a specific crime mentioned in Article 6, Paragraph 2(a) to (c). The assumption that Fritzsche was a possible instigator to a common
* If I am not mistaken, this corresponds roughly to the distinction between the act of intent (vicious will) and the ability to distinguish between good and evil (some blameworthy condition of mind) of English legal theory.
" These legal principles have been developed on the basis of Paragraph 49 of the Reich Penal Code in many decisions of the High Court of Justice of the Reich; the reproduction of at least one of these decisions seems appropriate to explain the German legal theory. As early as in its decision of 7-10-1690 (RG. 21, 95) the High Court of Justice of the Reich formulated the question as follows: "Because the substance of being punishable as an accessory lies in knowingly furnishing help in the commission of the perpetrator's offense, it does not only presuppose that the accomplice must have had knowledge of all the essential characteristics of the deed to be committed, but also that his will, his intent, was directed toward supporting and furthering the execution of this specific, concrete deed of the perpetrator by his assistance. The deed that was actually committed or intended must coincide to this extent with that which was knowingly supported by the accomplice in all essential characteristics. If this agreement is lacking, especially should the perpetrator use the assistance given him for the execution Of another deed or for a more serious deed which for special reasons remained unknown to the accomplice, this cannot be ascribed to the accomplice. His criminal responsibility extends only as far as his intention to furnish assistance goes and finds fulfillment." Compare to this also the decisions in RG. 15, 316; RG. 37, 323; RG. 56, 350.
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plan within the group of conspirators cannot be substantiated, in any case, in accordance with what I have already explained earlier. Instigation as an accessory form of participation in the general legal sense presupposes, however, contrary to the case of an accomplice in which a criminal will is only to be supported or maintained, that such a will must first of all be produced in the perpetrator. The psychological influence does not consist in affirming or strengthening the intention of the individual who has already decided to carry out the deed, as in the case of the accomplice, but in first producing or creating the will for the deed.*
The means for this can be of the utmost variety, but the perpetrator must be brought to change his ideas in that direction.**
Assistance and instigation as accessorial forms of participation correspond to one another, in that also in the case of instigation a conscious and causative connection, also willed by the instigator, trust exist between his instigation and the decision of the perpetrator. The principle of equivalence is valid just as in the case of assistance. The perpetration of a deed must correspond with the conception and the will of the instigator. The instigator is therefore only responsible to the extent of his intention. A possible excesses mandati cannot be attributed to him. From this stems the accessoriness not only of assistance but also of instigation.
The evidence has not furnished the slightest proof in the Fritzsche case that he has committed an individual crime as instigator through his transmission of news; there is not the slightest evidence to show that he has instigated a single person to murder, cruelties, deportations, killing of hostages, massacre of Jews, or other crimes mentioned in the Charter, or had, as instigator, caused a single crime by his speeches to the public. Not a single passage from his nearly 1,000 wireless speeches could be produced from which such individual responsibility could be deduced. That was not possible with public speeches, anyway. The crimes which were committed were carried out by people completely indifferent to Fritzsche's propaganda. They received their impulses or instructions from altogether different sources. Were not these deeds to be kept secret? The official news service was to avoid handling this as much as possible. As this Trial has shown in a particularly impressive manner, the perpetrators took the greatest pains to limit the knowledge of, for example, the annihilation of the Jews to a very
* Compare "accessory before the fact" with the two possibilities, that of the "instigator" who first produces the decision, or that of the "abettor" who gives intellectual assistance before the execution.
** From a decision of the Supreme Court (Reichsgericht) in RG. 36, 401: "An attempt at instigation presupposes that the person to be incited is not already determined to commit a criminal act of his own accord or under the influence of others." Compare with this also RG. 26, 362.
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small circle. What was self-evident with every other state constitution-namely, that occurrences throughout the country should be handled through the press-was not permissible in our dictatorship. The people were not to be asked whether they approved such occurrences. The crimes, established by this Trial, were not to be given any publicity. Can one assume that under such circumstances the press and the radio were suitable means to instigate the perpetration of crimes? Is it not more probable that such occurrences were specially kept secret from the press and the radio? For not a single case-even though the speeches of Fritzsche may have had a marked tendency-can it be said that he, through public speeches of all things, could have instigated a single individual to commit punishable deeds.
Possibly the juridical indications of the Prosecution do not go so far. The Prosecution will then reproach Fritzsche for his contributing to an "atmosphere of hate" (Session of 23 January 1946). Only through such propaganda was it at all possible for gruesome crimes as these to be committed in Germany. This reproach, however, is legally irrelevant. This charge would have legal importance only if the Defendant Fritzsche had been among the group of so-called conspirators, if he had been the instigator of a common plan. I believe I have proved that this absolutely does not hold true. If he had actually created an "atmosphere of hate," this would not, outside of the group of conspirators, have enabled him from a legal point of view to instigate anyone to commit certain crimes. Furthermore, according to the provisions of the German penal law, exhortations disseminated by radio would even exclude the fact of an instigation in a criminal sense. According to German jurisdiction, as practiced for decades, an instigation would legally be impossible because the influence exerted could not have been centered on a certain individual. Furthermore, German law concerns itself merely with instigation to commit a concrete deed and not with an instigation to commit punishable actions in general.* In principle, therefore, any sort of exhortation directed toward a group of persons individually undefined, does not constitute an accessory instigation; it is rather outside the framework of legal relevancy altogether.
It is quite self-evident, however, that Fritzsche's radio addresses were perforce directed to an entirely unlimited number of persons.
* Compare "Decision of Reichsgericht (German Supreme Court) in RG. (Reichsgesetzblatt, Reich Law Gazette)34,328: "It is not sufficient to influence someone along the line of criminal thinking, or of direction of will per se, to justify the assumption of punishable instigation. It is adopted practice, therefore, that the concept of instigation does not exist as long as it involves persuasion of another person to commit criminal deeds in general-even though of a defined category-unless evidence is established that commission of the recent punishable action, which actually occurred was in that person's intent who originated the general summons. Also compare RG. 26, 362.
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Inasmuch as he was seriously striving to find for the German press and radio propaganda a "foundation based on truth," could he have had the intention at all to instigate to criminal actions? My client admitted in an impressive and unequivocal manner that he followed the tendency of the official German policy in his news reports and comments. In other words, he did not take advantage of the fact that international law did not place him under any restraint, and nothing in the evidence submitted has refuted his good faith. However, in the light of the law, when it is concerned with incitement to complicity, or with assistance given as an accomplice, good faith is equivalent to lack of will and lack of purposefulness.
This establishes: 1) That the Defendant Fritzsche did not belong to the scheming group of conspirators; 2) that he was never, at any time, a member of a group or an organization which is to be declared criminal here; 3) that for factual and for legal reasons, he is not personally guilty of a war crime or a crime against humanity, neither as an accomplice nor-according to the law-as an instigator, and not even-also according to the law-as an assistant.
And so, I believe I have sufficiently discussed the question of evidence and the legal conclusions to be drawn therefrom.
It is necessary, though, to mention one other thing. The Fritzsche case also has its human aspect. Apart from the pros and cons of the legal potentialities, another obvious question must not be left unanswered: Can it be directly attributed to Fritzsche, as a human being, that he had knowledge of or was co-originator of all the horrors which came to light in this Court?
In the sense of the Indictment, he is an instrumentals dolosum in the hands of the conspirators-of whom Goebbels was perhaps one-who had knowledge of their aims and purposes. Fritzsche's measures and utterances, however, were not dictated by criminal will. During his examination before this High Tribunal, Fritzsche never put forward the argument of superior orders. But he added that as far as his own person is concerned he was never expected to do anything criminal. And he furthermore declared: No one was obliged to feel compelled to carry out a criminal order. Undoubtedly, Fritzsche sacrificed his own convictions and made many a compromise. This, however, he did not do where he thought he discovered injustice, violence, and inhumanity. As is fitting to a journalist, he examined with care whatever reports reached him from abroad. Despite personal danger such as beset those who would penetrate the veil of secrecy, he followed the news which came from within Germany itself. He did not permit himself to be put off with paltry, vague explanations. He reported many details. I merely refer to his visits to Glucks, Heydrich, and his investigations in the Ukraine.
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Wherever he learned about criminal plans, such as the Commissar Order and the inhuman plan to revenge the air bombardments on Dresden, he opposed them with determination, in the latter case even with the help of a foreign ambassador. And he was successful, too, as these two conspicuous examples show. He did this because he followed the voice of his conscience. He did not first engage in lengthy deliberations as to the pros and cons. With regard to the Commissar Order he merely had heard of it as a soldier-he had never read it, nor did he know whether it actually was carried into practice at any time-and he at once raised a protest. When Goebbels ordered him to announce a mass murder of Allied fliers, he did not mind incurring the anger and the fury of his Minister. Dr. Scharping described this in detail (Document Number Fritzsche-3). When he learned of cruelties in the concentration camp at Oranienburg, he protested. The culprits were punished at that time. Dr. Scharping's affidavits (Document Number Fritzsche-2) which I submitted, and others, prove his implicit willingness to assist those who were persecuted, for political or racial reasons, when they appealed to him. Significant of his tolerance is the fact that he made possible the continued publication of the Frankfurter Zeitung (Document Number Fritzsche-5). Other proofs along that line, which are also submitted with my Document Book 2, are not negligible, and in the very case of Fritzsche certainly cannot simply be passed over with the comment that he cold-bloodedly handed men over to their death (Prosecution Address of 23 January 1946). He was not willing to sacrifice his dignity as a human being to false idealism, nor for the sake of an oath he had taken.
While the Prosecution have tried to darken the picture, I can point to brighter spots-namely, those which picture him as the representative of propaganda.
Was he a liar-perhaps a notorious liar? That Goebbels was one became clear by the revelations of this Trial. And as it was wrongly assumed that Fritzsche was his right-hand man, the implication was, of course, that Fritzsche had the same attributes. This assumption should now clearly be refuted. It is my conviction that, had not Goebbels evaded his responsibility by seeking a way out through death, we should not see Fritzsche in the dock here as representative of the Propaganda Ministry. The further assumption that all collaborators of Goebbels must wittingly have made use of lies, too, is unjustified. It would only be justified if it had been established here that Fritzsche was in a position to grasp all the real and deep-lying connection and causalities. But only this Trial made that possible. Fritzsche remained entangled in error like millions of other Germans. Glaring abuses were to be seen everywhere. Fritzsche was not unaware of them. Indeed, he has declined
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to be characterized before this Tribunal as an opponent of Nazism. He does, however, claim for himself to have opposed abuses insofar as he could recognize them. This entitles him to be put on a higher moral plane.
Neither was he a zealot or a fanatic, obsessed by one idea or by the adoration of power and success, and inaccessible to criticism. Of course, it was a sin, indeed the grievous sin against the spirit, to have continued to serve the system. The decisive point is, however, whether he was in a position to detect more than mere abuses. Falsehood was already built into the foundation, and anything built upon that was bound to be deceitful. It was not only the "thousand-door ministry," as it was once called, that was poisoned. The real reason why everything in Germany was poisoned by falsehood could best be detected by those who lived in a purer atmosphere.
Fritzsche did not keep immune from the phraseology; but he used it perhaps with better taste than many others. He was in a position to state here-and this is no mere empty phrase-that he has always acted fairly and honorably in every respect in his professional work. Dr. Scharping, too, has emphasized this in his affidavit. Is this not an indication that he really did not detect that the whole foundation upon which his work was built up was hollow and deceitful? Mad he been a professional liar, he would not have been interested in doing clean, honest work, in checking foreign reports, and in all that which induced him to find a truthful basis for the press and radio.
The Prosecution have laid stress upon his rise in the Propaganda Ministry. Did they mean to imply thereby that he was particularly qualified as a liar? Actually, his career-however modest it was, compared to that of Hitler's other vassals-has quite a different foundation as has also been clearly determined here. He got ahead only because he was qualified as a journalist, as an expert, not because he was particularly good at lying, but because he had a better command of speech than many others.
As proved by the affidavits of Dr. Scharping and Frau Kruger (Document Number Fritzsche-8) Fritzsche lived on a modest scale. During his activity in the Propaganda Ministry he gathered no riches, possessed no luxurious dwelling; nor would he have accepted any presents. The Prosecution, moreover, made no claims to the contrary. It therefore does not appear astonishing that those who had not only heard his voice on the radio but also knew him personally should have emphasized his humane qualities. Dr. Scharping declares in his affidavit, "it was considered a distinction to be allowed to work with him." Is it in keeping with human experience that a man who lies could have won such respect? I believe human esteem can only be won by an honest character. Those who are
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in daily intercourse with a person can find out whether he is a liar or not. And if his speech does not betray him, then his eyes will.
There may be many possibilities to clarify the contradiction that somebody who has co-operated in the propaganda of the Third Reich is nevertheless honest and a lover of truth. The most immediate explanation is probably that which can well be taken from Fritzsche's own remark, which I repeat here: He said he felt-and this may well be significant for the verdict if not for history-that he, too, was deceived by Hitler. Before this Tribunal Fritzsche has not only defended himself but the German people as well. To what extent he himself is responsible to the German people for the fact that he, again and again' and till the end, urged them to see the war through, is not a matter to be decided here. Even though Fritzsche may not, like others, have realized at an earlier date that he was serving . an evil cause, or although he may not have divorced himself from the state leadership because he wanted to shore the cup of bitterness with the German nation to the last dregs, he is not guilty in the sense of the Indictment brought against him before this Tribunal. I ask for his acquittal.
THE PRESIDENT: The Tribunal will adjourn until 2 o'clock.
[The Tribunal recessed until 1400 hours.]
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MARSHAL: May it please the Tribunal, the Defendants Streicher and Raeder are absent.
THE PRESIDENT: The following is the order of the procedure to be followed in the cases against the organizations:
Paragraph 1: The Tribunal draws the attention of counsel for the organizations to the order of July 1st, which directed that any of the evidence taken on commission which counsel for the Defense or the Prosecution wish to use should be offered in evidence and thus become part of the record, subject to any objections. It will be convenient to the Tribunal, if it is desired, to offer the whole of the evidence at the outset of the proceedings.
Paragraph 2: The counsel for the Defense will then put in their document books, subject to any objections.
Paragraph 3: The witnesses for the Defense will then be called and examined by defense counsel who will bring out the matters they regard as important, given in evidence before the Commission, and any new relevant matters. Each organization will be dealt with in turn, and the whole of the evidence for that organization, both examination and cross-examination, heard before dealing with the next organization.
Paragraph 4: Counsel for each organization will then make his closing speech, dealing with the evidence given before the Tribunal, and making the necessary references to the documents introduced in evidence. He will also draw the attention of the Tribunal to the matters contained in the evidence given before the Commissioners and in the summaries of the affidavits which he deems important and which he wishes the Tribunal specially to consider.
Paragraph 5: The Counsel for the Prosecution will reply when all the speeches of the defense counsels have been made.
Paragraph6: The Tribunal is of the opinion that the closing speeches of counsel for the Prosecution and Defense ought to be short, not exceeding one-half day in each case. If this time is thought likely to be exceeded, a special application must be made to the Tribunal, stating the grounds for such extension of time, not later than Monday next, July 29th. That is all.
I call on Doctor Seidl for the Defendant Hess.
DR.ALFRED SEIDL (Counsel for Defendant Hess): Mr. President, Honorable Judges. Before beginning with the final plea for the Defendant Hess, I beg permission of the Tribunal to represent the defense counsel for Defendant Goring and submit on his behalf two exhibits. Both have been allowed by the Tribunal, and they refer to the Katyn case, that is to say, the question of
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the murder of 11,000 Polish officers in the neighborhood of Smolensk. me first is Exhibit Number Goring-60, an extract from the German White Book, referring to the report on the post-mortem examination conducted by the Bulgarian Professor Borotin. The second is Exhibit Number Goring-61, which is also an extract from the German White Book, and refers to the Katyn case. It is the report of the International Medical Commission of 30 April 1943.
Mr. President, Honorable Judges: When the German people, having lost the first World War, set out in 1919 to rebuild their public life on democratic principles, they found themselves facing difficulties which were caused not merely by the war itself and the material loss resulting therefrom. The Defendant Rudolf Hess was among the first comrades-in-arms of Adolf Hitler and belonged to those who time and again reminded the German people of the great dangers which would of necessity arise for Germany's domestic economy and for world economy as the result of the reparations policy of the victor states of 1919. The consequences of that policy were bound to be all the more devastating for Germany when in 1923 France proceeded to effect the military occupation of the Ruhr territory, the center of Germany's economic power. At that time of economic collapse and complete disarmament of Germany, Adolf Hitler made the first attempt on 9 November 1923 to seize the power of the state by revolution. The Defendant Rudolf Hess also took part in the march to the Feldherenhalle in Munich. Together with Adolf Hitler, after having been convicted by the People's Court, he underwent imprisonment at Landsberg Fortress, where Hitler wrote his book Mein Kampf.
When in 1925 the Party was established again, Rudolf Hess was one of the first to resume with Adolf Hitler the struggle for a national rebirth of the German people. During the first years after its rebirth the Party began its slow ascent. Germany's domestic economy had recovered from the worst effects of the Ruhr invasion. The currency had been stabilized and owing to very extensive foreign credits it had even been possible to bring about an economic boom.
Very soon, however, it was revealed that the economic progress of the years 1927-29 in reality was but an illusory prosperity for which in Germany, at any rate, there was no foundation in a sound and well-balanced national economy. It is true that the economic crisis which began in 1930 was a general crisis in world economy and that the decline which Germany experienced at that time was but a part of the general disintegration in world economy. It is just as certain, however, that it was not a question here simply of a seasonal decline within the capitalist economy-such as had been experienced repeatedly by individual commercial economies of states and by world economy-but a case, in this instance, of structural
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changes owing to different causes, one of the most important of which, however, undoubtedly was the disruption in the exchange of products and legal tender caused by the unreasonable reparations policy.
It is just as certain that the consequences of the crisis in world economy were devastating in Germany, 7 million having been thrown out of work, because the changes brought about in the national economy as a result of reparations payments were farreaching. If, however, the National Socialist German Workers' Party won a major electoral victory in the Reichstag elections of 14 September 1930 and entered the new Reichstag with no less than 107 delegates, it is to be attributed to the economic crisis then prevailing, to the great unemployment, and indirectly to the economic absurdity of the reparation payments and the refusal of the victorious states to consent to a new arrangement despite the most urgent warnings. True, the reparation payments stipulated in the Treaty of Versailles and the mode of settlement were amended by the Dawes and Young Plans. It is, however, just as true that these amendments came too late and demands were continued for payments from Germany to an extent and under conditions which were bound to, and did in fact, lead to an economic catastrophe. In this connection I must point to the following fact: the Prosecution have produced an extensive amount of documentary evidence in reference to the rise of the NSDAP until its seizure of power. A comparison of the Reichstag representatives in the years from 1930 to 1932 with the unemployment figures for the same period would disclose that these figures ran parallel. The more hopeless the social consequences of unemployment became-and in 1932 no less than 25 million people including family members may be estimated to have been affected by the consequences of unemployment-the more impressive became the electoral successes of the National Socialists. I hardly think there could be a more convincing proof of the existence of a causal relation between the consequences of the reparation policy of the victorious powers of 1919 and the rise of National Socialism. The causal relation may be summed up in a short formula: No Versailles Treaty, no reparations-no reparations, no economic collapse with its particularly catastrophic effects upon Germany, which found expression in an unemployment figure of nearly 7 millions-and without this collapse, no seizure of power by the National Socialists. The political and historical responsibility of the authoritative foreign statesmen resulting from this causal connection is so crystal-clear that further demonstrations of it are superfluous in the framework of this Trial.
This formula may appear too pointed and it may furthermore be true that it was not the economic emergency and the high unemployment figure alone which induced millions of Germans to vote
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National Socialist on 14 September 1930 for the first time and which led to the subsequent progress of the Party's rise to power. Nevertheless, these causes were assuredly among the foremost, and even the other causes which played a part in the decision of many voters can finally be traced back to the fatal effects of the Treaty of Versailles and refusal of the victorious powers, especially France, to consent to a revision of the treaty. This applies in the first place to the claim for equality of rights raised by all subsequent democratic governments.
When the German nation had disarmed in fulfillment of the Versailles Treaty, it was entitled to expect the victorious powers to disarm also, in accordance with the obligation assumed by them in the treaty. This was not carried out and there can be no doubt that their denial of the equality of rights as evidenced by their refusal to disarm themselves figures among the most decisive causes of the rise of National Socialism in the years 1931 and 1932. And if any of Hitler's arguments ever found a response in the German nation, it was that equality of rights could not be denied in the course of time, even after a lost war, to a nation like the German nation, with a population of over 75 millions, situated in the heart of Europe and with a cultural past of which few other nations can boast. It has already been remarked in this courtroom that a nation which has produced a Luther, a Goethe, and a Beethoven cannot be indefinitely treated as a minor nation.
Again and again Hitler had occasion to remark upon the fact that the statesmen of the Weimar Republic left no method untried to arrive at a peaceful revision of the more unbearable clauses of the Treaty of Versailles. For 8 years the statesmen of democratic Germany, Stresemann and Bruning, went to Geneva to obtain at last the repeatedly promised equality of rights for Germany and they were repeatedly sent home with empty hands. The dangers produced by this situation could not remain concealed from anyone. In fact, the world was warned by German statesmen, as well as by shrewd politicians of Germany's former enemies. All these warnings were scattered to the winds.
, When finally in 1932 the National Socialist Party with 230 seats in the Reichstag had become by far the strongest party in Germany, it could only be a question of time until Hitler and his Party would be entrusted with the taking over of government leadership. In the long run this could be avoided all the less since the previous Governments of Herr Von Papen and General Schleicher had no appreciable following in the Reichstag at their disposal and exercised their governmental authority exclusively by the means of emergency decrees in accordance with Article 48 of the Weimar Reich Constitution. When, on 30 January 1933, Adolf Hitler was actually appointed Reich Chancellor by Reich President Von Hindenburg
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and was entrusted with the formation of a new cabinet, this was done altogether according to the clauses of the Reich Constitution.
At the Reichstag election in 1932 the National Socialist Party received more votes than had been received by any party since the beginning of the German Reich. If the leader of this strongest party was entrusted with the formation of the cabinet, this was by no means extraordinary, particularly in view of the parliamentary conditions prevailing in Germany at that time, and there cannot be the slightest doubt that Hitler and his Party came to power legally, that is, according to the Constitution. However, it is correct that in the course of the following years the constitutional structure of the German Reich and particularly Hitler's position underwent a change. There is, however, no evidence on hand that this development as well was not legal. In this respect, in order to avoid repetition I am referring to the statements of the witness Dr. Lammers.
In this case it may be left completely undecided whether one wants to attribute this development to Hitler's absolutely autocratic rule by the creation of a so-called prescriptive state law or whether one avails oneself of another theory. For the scope of this Trial it seems to me much more decisive that not a single nation with which Germany maintained diplomatic relations raised any objections whatsoever or even drew diplomatic or international legal conclusions either at the seizure of power or on the occasion of the transformation of the constitutional structure carried on openly before the entire world. Neither at the seizure of power nor at any later period was the question of diplomatic and international legal recognition of the National Socialist State in doubt.
In addition, may it merely be pointed out that the law, which in the following period was to become of the greatest importance for the relationship between citizen and state, was still issued by Reich President Von Hindenburg pursuant to Article 48 of the Reich Constitution. I have in mind the decrees of the Reich President for the Protection of the People and the State, dated 28 February 1933 (Reichsgesetzblatt, Part 1, Page 83). In Paragraph 1 of this decree, the most important basic laws pf the Weimar Constitution were voided, and curtailments of personal liberty-the rights of free speech, including freedom of the press; the right to organize and assemble; interference in the privacy of the letters and mails, telegraph and telephone; orders for searching of homes; and confiscations, as well as property restrictions-were declared valid, even beyond the legal limitations otherwise imposed.
From a formal viewpoint there can be just as lithe doubt about the legal validity of this decree as there can be about any other so-called constitutional or basic state law issued by the Reichstag,
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the Reich Cabinet, the Ministerial Council for Reich Defense, or by Hitler himself.
Gentlemen of the Tribunal, on behalf of the Defendant Rudolf Hess I haves already stated that he assumes the full responsibility for all laws and decrees which he has signed in his capacity as the Deputy of the Fuehrer, as Reich Minister and member of the Ministerial Council for Reich Defense. Therefore I have refrained from presenting documentary evidence in reference to accusations which, as a sovereign state, merely concern the domestic affairs of the German Reich and have no bearing on the crimes against peace and crimes against the laws of war mentioned by the Prosecution. I shall, therefore, now only touch on such laws and constitutional and political measures which have some recognizable connection with the actual Counts of the Indictment and the Common Plan or Conspiracy asserted by the Prosecution.
The Indictment accuses the Defendant Rudolf Hess of having sponsored the military, economic, and psychological preparations for war and of having participated in the political planning and preparation of wars of aggression. As evidence for this assertion, the Prosecution pointed to the fact that the Defendant Rudolf Hess, in his capacity as Reich Minister without Portfolio, cosigned the law of 16 March 1935 for the reconstruction of the Armed Forces. This law reintroduced general conscription in Germany and stipulated that the German peacetime army was to be divided into 12 corps commands and 36 divisions. For this Trial the proclamation which the Reich Cabinet directed to the German people in connection with the publication of this law and which was placed above the law in the Reichsgesetzblatt, appears to me no less important than the contents of this law. I refer to the contents of this proclamation which has been presented as an exhibit. This proclamation of 16 March 1935 contains no essential arguments on this question which had not already previously been brought out by the democratic German governments at the time of the Weimar Republic.
Your Honors, the Tribunal have permitted me to read at least part of my brief in connection with this question. However, in view of the fact that counsel for the Defendant Von Neurath has already referred to this question in detail, I shall merely refer to his argument in this connection and I shall therefore, on my part, forego detailed comment.
The reintroduction of general military service by the law of 16 March 1935 is apparently not considered in the Indictment as a punishable offense in itself, but only as part of the general plan as asserted by the Prosecution, designed to commit crimes against peace, against the laws of war, and against humanity. Whether
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such a plan ever existed at all, whether and to what extent the Defendant Rudolf Hess was involved in it and what part the reintroduction of general military service may have played in both an objective and a subjective way in this plan, I shall take up in detail later.
Within the scope of the common plot, of having planned and prepared a war of aggression, the Defendant Rudolf Hess is also accused of having, in his capacity as Deputy of the Fuehrer, set up the Auslands-Organisation of the NSDAP, the League for Germans Abroad, the German Eastern League, the German-American Bund and the German Foreign Institute. The documents submitted by the Prosecution in this connection do not furnish proof to the effect that the Defendant Hess himself issued directives or orders to these organizations, which could have caused them to pursue activities similar to those of a fifth column. The testimony of the witnesses Bohle, Strohlin, and Alfred Hess has, on the contrary, proved that the Defendant Hess, in particular, clearly forbade these organizalions and leaders to interfere with the internal affairs of other countries. The Prosecution have not been able to prove in any way that the afore-named organizations had actually developed activities which were aimed at undermining the structure of foreign states from within.
Under these circumstances it is superfluous to go into the activity of the afore-named organizations in more detail, all the more so since there is nothing at all tending to prove that there was any causal connection between the tasks and functions of these organizations and the events which later led to the outbreak of war in the year 1939.
The Prosecution furthermore tried to prove that Defendant Rudolf Hess also took a decisive part in the occupation of Austria on 12 March 1938. I do not intend to enter into details of the history of the annexation and to consider from the legal point of view the facts which actually led to the annexation of Austria to the German Reich in the year 1938.
There is one point, though, that must be established here: The right of selfdetermination of nations was a salient factor among the Fourteen Points of President Wilson. It is a fact, however, that of the postulates of the American President none was realized by the Treaties of Versailles and St. Germain to so small an extent as just this right of self-determination. The Tribunal has already been offered in evidence the resolution of the Provisional Austrian National Assembly of 12 November 1918. In this new basic law the following is ordained, inter alia: "German Austria is a democratic republic. All legislative and executive powers are instituted by the people. German Austria is part of the German Republic." The declarations made by the then Social-Democrat Federal Chancellor, Dr. Karl Penner, in justification of this constitutional law are no less definite when he says, among other things:
"Our great nation is beset by misery and distress, the nation which was always proud to be called the nation of poets and thinkers, our German nation of humanism, of mutual love among the nations; it is bowed down with sorrow! Yet in this very hour when it might be easy and convenient,
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and perhaps even tempting, to prepare a separate account, and maybe gain advantage from the enemy's trickery-in this very hour let our people everywhere know: We are of one rice and share a common fate!"
Contrary to the expressed will of an overwhelming majority of the Austrian population a union of the No German nations. was vetoed by the Entente. The victorious powers, by threat of a hunger blockade, prevented a plebiscite on the question of the Anschluss voted for by the Austrian National Assembly on 1 October 1920. Nevertheless some of the provinces carried out such a plebiscite independently, with the result that an overwhelming majority voted for the Anschluss. Indeed nothing could describe the situation better than the following passage in State Secretary Lansing's book, The Peace Negotiations, published in the year 1921: "A more patent denial of the ostensible right of selfdetermination than this veto against the Anschluss with Germany, willed almost unanimously by the German-Austrian people, can hardly be imagined." This wish of the Austrian people to be united with the German Reich did not only show immediately after the first World War, but remained alive in the times afterward. It is a moot question as to the specific reasons for this trend and what reasons prevailed at one time or another. Certainly there can be no doubt that such a wish did exist, and that the Anschluss would have been realized but for the opposition either of the Entente or of other powers which believed they had thus to defend so-called interests. In this connection reference may be made to the declaration of Federal Chancellor Dr. Renner of 12 November 1928, which has likewise already been submitted by the Defense, which reads inter alia:
Today, 10 years after the 10th of November 1918, and forever, we shall faithfully abide by this resolution and confirm it by our signature.... The Peace of St. Germain has destroyed the right of self-determination of the Germans in Austria.... Let the people of Austria vote freely and 99 percent win vote for the reunion with Germany..." And this is what really happened:
When the German troops marched into Austria on 12 March 1938 they did not come as conquerors but were received by a jubilant population in one triumphal procession.
In order to save time I shall refer to the extensive statement made by counsel for the Codefendant Dr. Seyss-Inquart.
Whatever now concerns the participation of the Defendant Rudolf Hess and the Party in bringing about the annexation, the evidence has only shown that the annexation of Austria was an incident which did not really have anything to do with the National Socialist Party in the Reich as such. It is sufficient to refer in this connection to the testimony of the Defendant Goring and to that of Dr. Seyss-Inquart on the witness stand, which shows that the question of the annexation was solved exclusively by the Reich, that is, by state authority and not by the Party.
If any doubts should still have existed on this point, they were removed by Document Number 812-PS, Exhibit Number USA-61, presented by the Prosecution. It deals in this case with the letter of the Gauleiter of Salzburg, Dr. Friedrich Rainer, to Reich Commissioner Gauleiter Josef Burckel, in which he states, among other things:
". . . Soon after the seizure of power in the Ostmark, Klausner, Globocznik, and I flew to Berlin in order to give a report to the Deputy of the Fuehrer, Party member Rudolf Hess, about the incidents which led to the seizure of power."
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A report naturally would not have been required if the Deputy of the Fuehrer and the Party itself had been directly and decisively participating in the solution of the annexation question. I do not mention this in order to give reasons of justification or excuses on behalf of the Defendant Rudolf Hess. The findings are rather made exclusively in the interests of historical truth.
I now come to the question of the Anschluss of the Sudetenland. 3.5 million Sudeten Germans were incorporated into a state with 8.5 million Czechs and Slovaks, without being granted a decisive influence on the state. All attempts of this national group to receive autonomy within the Czechoslovakian state structure remained futile. When the question of annexation with regard to Austria was solved, it was inevitable that the future position of the Sudeten Germans, which after all consisted of 3.5 million persons who undoubtedly belonged to the German nation, would be subjected to a test.
Now, I do not intend to take a detailed legal stand on all questions of the annexation of the Sudetenland to the Reich. In view of the fact, however, that the Prosecution in the trial brief which they presented before the Tribunal against the Defendant Hess treated the Sudeten German question and have also presented several documents as evidence, it appears necessary to take a brief stand concerning them.
Document Number 3258-PS, Exhibit Number GB-262, deals with a speech of the Deputy of the Fuehrer at the meeting of the Auslands-Organisation of the NSDAP on 28 August 1938. The latter in general phrases takes a stand on the Sudeten German question by emphasizing the principle of nationalities and the right of self-determination of the nations. Also the remaining documents presented by the Prosecution, Document Number 3061-PS, Exhibit USA-126, Document Number 388-PS, Exhibit USA-26, do not show on what a decisive participation of the Defendant Rudolf Hess in the solution of the Sudeten German question could be based.
However, the extent of this participation can be completely ignored, as the annexation of the Sudetenland to the Reich cannot in itself constitute facts for a criminal charge according to international law. After all, the annexation of the Sudetengau was not carried out on the basis of a one-sided act of Germany or on the basis of a perhaps disputable agreement between the German Reich and the Czechoslovak Republic. The annexation, rather, took place on the basis of an agreement which had been concluded in Munich on 29 September 1938 between Germany, the United Kingdom of Great Britain, France, and Italy. In this agreement exact and very detailed stipulations were made about the evacuation of the territory to be ceded and the step-by-step occupation
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by German troops. The final determination of the frontier was carried out by an international committee.
Without wishing to go into further details, it can still be said with certainty that this is a treaty which had been concluded on the basis of a free agreement and that all those participating expected that it might provide the basis, or at least a considerable prerequisite, for an improvement of international relations in Europe.
I now come to another point of the Indictment. Within the limits of the Indictment as a whole, as well as in the personal accusation raised by the Prosecution against the Defendant Rudolf Hess, the latter is accused of having participated in the outbreak of war and of being responsible for it. The Defendant Rudolf Hess actually did take a stand in several speeches on the question of the Polish Corridor and the problem of the Free State of Danzig. In this case, however, the following must be stated:
By the establishment of the Polish Corridor not only the right of self-determination of the nations was violated-after all, more than one million Germans came under Polish domination in this manner-but in addition to this, through the partition of the state territory of the German Reich into two areas completely separated from each other, a situation arose which was not only contrary to all economic common sense but which, moreover, was bound to become the cause of constant discord from the very outset. Indeed, from the day of the signing of the Versailles Peace Treaty, the demand for a revision of the treaty, especially in the question of the Polish Corridor, has never been silenced at any hour. There was no party and no government in Germany which did not acknowledge the necessity of a revision of the treaty, primarily in this point. There can be no doubt that if Poland ought to have an independent access to the Baltic Sea under all circumstances, this problem could have been solved much more sensibly than by the establishment of the so-called Corridor and the thereby stipulated partition of the German Reich into two areas which were completely separated from each other.
Something similar applies with regard to the status of the Free State of Danzig on the basis of international law and state sovereignty. It is not necessary to look at the facts more closely in this case, which in the course of time have led to constantly increasing difficulties and which in the end necessitated a change with regard to international law and the state sovereignty of this purely German city.
It is just as unnecessary to go into greater detail with regard to the minority problem which was raised by the Polish Corridor and the establishment of a Free State of Danzig. The fact is that
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in the course of two decades, no less than approximately one million Germans were forced to leave their settlement area, and especially under circumstances which could not remain without effect on the general political relations between the German Reich and the Polish Republic. The problems raised here have been publicly discussed even before Adolf Hitler came to power.
Under these circumstances, it could not surprise anyone if after the seizure of power by Adolf Hitler and his Party, the questions raised by the Polish Corridor and the separation of Danzig from the Reich were subject to re-examination. This was all the more unavoidable since after the conclusion of the German-Polish Treaty in the year 1934, Poland's increasing attempts to exclude the German element did not cease.
I do not intend to discuss in further detail the negotiations which were conducted by the German Reich with the Polish Republic, the aim of which was to find a modus vivendi, taking into consideration Poland's justified interests. Nevertheless, it appears important to me to keep the following facts in mind, and this seems to be essential for the reason that the Prosecution stated again and again that the defendants, the German Government, should have done everything to clarify those questions and that especially the German Government should have conducted negotiations, and that the one thing that they should not have done was to start a war. The following statements are to show that attempts were made to solve pressing problems by negotiations.
For the first time the Reich Minister for Foreign Affairs, in the course of a conversation with the Polish Ambassador on 24 October 1938, discussed the question raised by the Corridor and the separation of the city of Danzig and suggested a solution which was to be based on the following foundation:
"1. The Free State of Danzig returns to the German Reich.
"2. An extraterritorial Reichsautobahn belonging to Germany and likewise an extraterritorial railroad with several tracks would be constructed across the Corridor.
"3. Poland likewise obtains an extraterritorial road or Autobahn, a railroad, and a free port in the Danzig area.
"4. Poland is guaranteed a market for her goods in the Danzig area.
"5. The two nations recognize their common frontiers or the territories of both sides.
"6. The German-Polish Treaty is to be extended by 10 to 25 years.
"7. Both countries include in their treaty a consultation clause."
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The Prosecution themselves submitted to the Tribunal the reply of the Polish Government to this proposal. The document is Document Number TC-73, Number 45, which describes the attitude of the Polish Foreign Minister Beck of 31 October 1938 and his instructions to the Polish Ambassador Lipski in Berlin. In this document the German proposal is flatly turned down on the grounds that ". . . any attempt to incorporate the Free City of Danzig into the Reich would invariably lead to a conflict, and the resulting difficulties would not merely be of a local nature, but would prevent any possibility of Polish-German understanding in all its aspects."
In fact, such also was the stand taken by the Polish Ambassador during another conversation which he had with the Reich Foreign Minister on 19 November 1938. When asked about the Polish Government's attitude regarding the German proposition of an extraterritorial Reichsautobahn and an extraterritorial railway through the Corridor, the Polish Ambassador declared that he was not able to make an official statement on these questions.
It is impossible to deny that the proposal made by Germany was very restrained and contained nothing incompatible with Polish honor or the vital interests of that state. One should be all the more willing to admit this, as the creation of the Corridor and the separation of East Prussia from the Reich was really felt by the German people to be the heaviest burden of the Versailles Treaty. If, nevertheless, the Polish Government turned this proposal down, for reasons which excluded any prospect of finding a solution in subsequent negotiations, the conclusion could be drawn that already at that time Poland had no sincere wish to enter into an agreement, which would take into consideration Germany's legitimate interests. This impression was confirmed by the negotiations during the visit of the Polish Foreign Minister Beck to Berlin on 5 January 1939, and the return visit by the Reich Foreign Minister to Warsaw on 21 January 1939. When, in spite of this attitude of Poland, the Reich Foreign Minister repeated the proposition made on 24 October 1938 in another meeting with the Polish Ambassador on 21 March 1939, we must conclude that the German Government was sincerely desirous of solving, by means of negotiation, the questions relative to the Corridor and the separation of the city of Danzig. Thus it cannot be seriously denied that the German Government tried to solve the Danzig question and that of the Polish Corridor by negotiation and that it made very moderate proposals in that respect.
The reply to the German proposals of 21 March 1939 was a partial mobilization of the Polish armed forces. The connection between the partial mobilization ordered by the Polish Government and the British proposal for consultation, dated 21 March 1939, need not be discussed, nor whether, incidental to the transmission of this consultation proposal in Warsaw, the declaration of guarantee of
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31 March had already been promised or contemplated by the British Government. There can be no doubt, however, that the partial mobilization of the Polish armed forces, as also admitted by the British Prime Minister Chamberlain in a declaration before the House of Commons on 10 July 1939, was not calculated to create favorable prerequisites for further negotiations. As a matter of fact, the subject of the memorandum of the Polish Government given by the Polish Ambassador Lipski on 26 March 1939 was a complete rejection of the German proposal. It was declared that extraterritoriality for the highways was out of the question, and that a reunion of Danzig with the Reich could not be considered. In the conversation between the Reich Foreign Minister and the Polish Ambassador, which followed the transmission of the memorandum, the latter declared quite openly that it was his unpleasant duty to point out that to pursue the German plans further, particularly insofar as they had a bearing on the return of Danzig to the German Reich, would be tantamount to a war with Poland.
The connection between the Polish mobilization of 23 March 1939 and the Polish memorandum of 26 March 1939 containing a complete rejection of the German proposal on the one hand, and the proposed British guarantee-pledge of 31 March 1939 on the other hand, which I said may be left open, appears justified with regard to the proposed "formal declaration" made by the British Government as early as 21 March in Warsaw, as well as in Paris and in Moscow. This "formal declaration" was to announce the opening of immediate discussions on measures of mutual resistance against any attack on the independence of any European state. Furthermore, the speech by Prime Minister Chamberlain on 17 March in Birmingham, and the speech of the British Foreign Minister, Lord Halifax, of 20 March in the House of Lords, reflected a point of view bound to encourage the Polish Government all the more toward stubbornness. As a matter of fact, the proposed step of "a mutual formal declaration" already proposed on 21 March 1939 by the British Government to the Governments in Warsaw, Paris, and Moscow proved to be the opening of lengthy discussions whose purpose it was to place an iron ring around Germany.
It was thus clear from the very outset that, under such conditions, bilateral negotiations between the German and the Polish Governments promised but little success, in any case as long as those discussions lasted. In another memorandum handed to the Polish Foreign Minister on 28 April 1939, already submitted by the Prosecution, the German Government nevertheless once more explained its attitude completely and established once more its readiness for further negotiations. Contents of this memorandum, including proposals made in March 1939, were announced publicly by Adolf Hitler in his speech delivered in the Reichstag on 28 April 1939.
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In reply to the memorandum of the German Government of 28 April 1939, the Polish Government transmitted on 5 May 1939 a memorandum which has also been submitted by the Prosecution. That memorandum contained even more emphatically a complete rejection of Germany's proposal for solving the problem of the Corridor and the Danzig question.
Negotiations which began on 21 March 1939 between London, Paris, Warsaw, and Moscow for the purpose of establishing an alliance exclusively directed against Germany, did not proceed as desired. Nor was it possible for the French and British military missions, sent to Moscow on 11 August 1939, to eliminate completely the difficulties arising from evidently far-reaching political differences of opinion. It need not be established how important was the fact that Poland, which was to obtain a guarantee by England, France, and the Soviet Union, obviously refused to accept military assistance from the Soviet Union. It also remains uncertain whether it is correct that the Soviet Foreign Commissar Molotov asserted during the special meeting of the Supreme Soviet on 31 August 1939 that England had not dissipated Poland's apprehensions but, on the contrary, had increased them. It seems more important to examine the fundamental differences of opinion.
I was about to refer here to an extract from the well-known book written by the former British Ambassador in Berlin, Sir Revile Henderson. In consideration of the fact that the Tribunal do not desire to have this quotation read, I shall merely refer to it.
Meanwhile, the following had actually occurred: At the Eighteenth Congress of the Communist Party on 10 March 1939, the President of the Council of People's Commissars of the USSR, Stalin, made a speech in which he intimated that the Soviet Government considered it possible or desirable to reach a better understanding even with Germany. Hitler understood this hint perfectly well.
Foreign Commissar Molotov expressed himself similarly in his speech before the Supreme Soviet on 31 May 1939. Thereupon, the discussions between the German and the Soviet Governments were followed by the conclusion of a German-Soviet Trade and Credit Agreement. This agreement was signed in Berlin on 19 August 1939. But already during these economic negotiations, questions of general political nature were discussed which, according to the Soviet Russian News Agency Tass on 21 August 1939, made known the desire of both Governments to bring about a change of their policy and to ban war by concluding a nonaggression pact. This nonaggression pact was signed in Moscow on the night of 23 to 24 August 1939-therefore, as shown by the presentation of evidence in this Trial, 2 days before the attack of the German Army against Poland was ordered for the morning of 26 August 1939.
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Besides this nonaggression agreement, a "Secret Supplementary Protocol" was signed as an important part of the agreement. On the basis of the presentation of evidence, especially on the basis of the affidavit of Ambassador and Chief of the Legal Department of the Foreign Office, Dr. Friedrich Gaus, on the basis of the testimony of Baron van Weizsacker, State Secretary in the Foreign Office, and on the basis of the statements of the Defendants Von Ribbentrop and Jodl, the following contents of the Secret Supplementary Protocol can be considered as established: In the case of territorial-political reorganization in the territories belonging to the Baltic States, Finland, Estonia, and Latvia should fall into the sphere of interest of the Soviet Union, whereas the territory of Lithuania should belong to the sphere of interest of Germany. For the territory of Poland, the division of spheres of interest was made so that the territories lying to the east of the rivers Narew, Vistula, and San should fall to the sphere of interest of the Soviet Union, whereas the territories lying to the west of the demarcation line determined by these rivers should belong to the German sphere of interest. In other respects an agreement was reached concerning Poland, that both powers would act on mutual agreement on the final settlement of questions concerning this country. With regard to southeastern Europe, the limits of spheres of interest of both sides were made so that the Soviet side stressed its interest in Bessarabia, whereas the German side disclaimed any interest whatsoever in this territory. According to the testimony of all witnesses, but especially on the basis of the statements by Ambassador Dr. Gaus and State Secretary Von Weizsacker, it is established that this secret agreement included in it a complete new settlement concerning Poland and the future fate of the Polish State.
The efforts nevertheless to come to an understanding with Poland with regard to the question of Danzig and the Corridor, made after the conclusion of the German-Soviet Non-Aggression Agreement and of the Secret Supplementary Protocol, failed. The Pact of Assistance which was made on 25 August 1939 between Great Britain and Poland did not prevent the outbreak of the war, but simply delayed it for a few days. I have no intention of going into particulars of the diplomatic negotiations which were conducted after the conclusion of the German-Soviet Agreement of 23 August 1939 to reach an agreement. One thing, however, can be said with certainty: If the unilateral guarantee declaration of England of 31 March 1939 meant to influence the already stubborn Polish Government not to accept the German offers, then an assistance pact with Great Britain would tend to dampen Poland's desire to negotiate. The failure of the negotiations which were carried on between Germany and Poland are all the less surprising when one bears in mind the testimony of the witness Dahlerus
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before the Tribunal. Has not this witness confirmed that the Polish Ambassador in Berlin, Lipski, declared on 31 August 1939 that he was not interested in discussing the proposals of the German Government? He based this negative attitude on the statement that in case of war a revolution would break out in Germany and the Polish Army would march toward Berlin. ,
Whatever the news might have been which induced the English Government to conclude the treaty with Poland and which possibly intimated a rift in the German-Italian alliance and symptoms of deterioration in the German State structure-and here I refer to the testimonies of the witnesses Dahlerus and Gisevius-the future was to prove that such ideas were not based on any facts.
When on 1 September 1939 war broke out between Germany and Poland, it was at first a question of a localized conflict between two European states. But when Great Britain and France declared war on Germany on 3 September 1939, this conflict expanded into a European war, into a war which as all modern wars between great powers tended from its very beginning to develop into a world war because of inadequate international organization and the complete collapse of the system of collective security. This war was to bring immeasurable suffering to all humanity, and when on 8 May 1945 the European war ended with Germany's unconditional surrender, it left behind a Europe in ruins. Adolf Hitler did not live to see Germany's collapse and its unconditional surrender. Twenty-two former leaders of the National Socialist Germany stand before the bar of the Tribunal in order to answer charges of having committed crimes against peace, against the rules of warfare, and against humanity in the execution of a common plan.
The so-called London Agreement of 8 August 1945, concluded between the Government of Great Britain and Northern Ireland, the Government of the United States of America, the provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics, is the basis of this Trial. The present Tribunal was created pursuant to this agreement, the composition, competence, and tasks of which were established by the Charter of the International Military Tribunal, which is a considerable part of the agreement concluded by the four Governments on 8 August 1945.
The Charter of the International Military Tribunal, however, does not only contain the regulations dealing with composition, competence, and tasks; besides those, it includes-and these are the most important parts of the Charter-the regulations of material-juridical contents. This applies above all to Article 6 which contains the definitions of Crimes against Peace, War Crimes, and Crimes against Humanity, with their characteristic facts.
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Paragraph 3 of Article 6 of the Charter, which enumerates the characteristics of the so-called conspiracy in detail, has to be considered above all as the penal facts of the case. Furthermore, Articles 7, 8, and 9 of the Charter are to be considered as material-juridical regulations.
The explanations following were not approved by the Court. They are substantially identical with the declaration made by the Defense at the beginning of the Trial on 21 November, and I beg to refer thereto.
I continue on Page 40 with the last paragraph.
In the Indictment the Defendant Hess is charged with having supported the seizure of power of the so-called Nazi conspirators, the strengthening of their control over Germany, and furthermore the furthering of the military, economic, and psychological preparations for war. He is furthermore charged with having participated in the political planning and preparation of wars of aggression and of wars in violation of international treaties, agreements and assurances, and in the preparation and planning of the foreign political schemes of the so-called Nazi conspirators.
The Prosecution finally asserts that he approved of, directed, and participated in War Crimes and Crimes against }humanity as enumerated in Counts Three and Four of the Indictment respectively.
THE PRESIDENT: This ought to be a convenient time to break off.
[A recess was taken.]
DR. SEIDL: Your Honors: Count One of the Indictment refers; to the so-called Common Plan or Conspiracy according to which all the defendants and various other persons are alleged to have participated for a number of years prior to 8 May 1945 in the planning or execution of a common plan as leaders, organizers, instigators, and collaborators. This plan aimed at and brought about the commitment of crimes against peace, of crimes against the laws of warfare and against humanity. It is asserted that the defendants planned, prepared, unleashed and directed wars of aggression, and committed war crimes and crimes against humanity in the execution of this common plan.
While the Charter only knows three specifications of crimes- crimes against peace, against the rules of warfare, and against humanity-the Indictment contains four of them. In the Indictment, the Common Plan or Conspiracy is made an individual and independent count of the charge, without the Charter's establishing sufficient reasons for this. It may be left undecided whether conspiracy is considered a particular type of crime according to Anglo-American law. In view of the fact that the Charter rejects the use of both Anglo-American and continental law, but has established
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its own standards of law, and these sui generis only the text and spirit of the Charter itself is decisive.
According, however, to what is expressly stated in Article 6, Paragraph 3 of the Charter, regarding the drafting or the execution of a plan for the perpetration of a crime against peace, against the customs of war, or against humanity, there surely cannot be an independent state of criminality as stated in Count One of the Indictment under the heading of Common Plan or Conspiracy, in all events, not on the basis of the provisions of the Charter.
Since the Defendant Hess has been charged with all four Counts of the Indictment it is necessary first to answer Count One of the Indictment: The Indictment places at the center of the Common Plan or Conspiracy the National Socialist German Workers' Party of which Adolf Hitler had become the leader in 1921, and which the Defendant Rudolf Hess also joined as early as 1921. Even the Indictment does not, apparently, claim that the Party program of the NSDAP was actually criminal in itself. It appears all the less necessary to probe further into this question, as in the subsequent routine of political life the Party program by no means played the part which could probably be supposed. Moreover, the appraisal of evidence has definitely revealed, as far as the position and rise of the NSDAP is concerned, that up to 30 January 1933 the National Socialist Party had the same status as other parties; that it fought with the same legitimate means as other parties for the attainment of its objectives; and that not least among the factors of its rise is that Germany experienced in 1931-32, as a consequence of the reparations policy of the victor powers in 1919, an economic and social decline of uncommon magnitude; and that finally on 30 January 1933 the Party, being the strongest, was entrusted by the provisions of the Reich Constitution with the formation of the Government and its leader, Adolf Hitler, was nominated Reich Chancellor.
During the so-called period of struggle the Party, like all other parties, openly fought for the principles it represented, and the Prosecution could not submit in evidence a single argument from which the conclusion could be drawn that by using illegal means the Party and its leaders had been participants in a common plan aiming at launching a war of aggression. In fact, one need only keep in mind the political, economic, and military condition of Germany in the first years after the end of the first World War to recognize how improbable such a plan, aiming at starting a war, is for that time. The conception put forward by the Indictment reveals not only an entirely false idea of the economic, political, and military conditions which Germany faced as a consequence of the peace settlement by Versailles, but this conception also discloses complete failure to appreciate the intrinsic virtue of any policy
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When Adolf Hitler as the leader of the strongest party had been appointed Reich Chancellor by Reich President Von Hindenburg on 30 January 1933, it was necessarily out of the question for him and his Government, in which also other parties participated, to start drafting a common plan aiming at a war of aggression, in complete misjudgment of the political and, above all, economic conditions. The problems which the German Reich Cabinet faced at that time resulted directly from the fact that 7 million unemployed people in Germany had to be put to work. As the witness Dr. Lammers stated, the elimination of economic and social distress actually was the most important question at the first cabinet session. There was no question at all of a common plan aiming at launching a war of aggression and, in fact, it is inconceivable that in the circumstances at that time even one member of the Government could consider such an idea in any concrete shape. Furthermore, it has been established through the testimony of Dr. Lammers and other witnesses that the subject matter of the first cabinet meeting and the resolution there passed are contained in the governmental declaration of 1 February 1933, made known to the German people in the form of a manifesto of the German Government.
According to the Indictment, abrogation of the armaments restrictions imposed on Germany through the Versailles Treaty was the first aim of the conspiracy charged by the Prosecution. The final refusal of the victor powers to disarm in their turn, according to their pledge, contained in the treaty, at least accorded the German Reich the right to obtain an equalization of armament through its own rearmament. This was not done in secrecy by any means but in public, through the announcement of the law on the reintroduction of general conscription on 16 March 1935. The Prosecution have not been able to show evidence for their assertion that this law was connected with, and was part of, the common plan aimed at bringing about a war of aggression. The exclusive purpose of this law was rather to re-establish Germany's right to equality at least for that question, 16 years after the end of the first World War. Here too, with regard to the details I also refer to the statements of counsel for the Defendant Von Neurath.
In this connection brief reference is appropriate to a document which the Prosecution produced, together with nine other documents, so-called key documents, which first of all are intended to serve the purpose of establishing the proof for existence of the common plan claimed in the Indictment. This is the written record of a discussion at the Reich Chancellery of 5 November 1937, Document Number 386-PS, Exhibit Number USA-25. As is known to the Court, this is not a literal reproduction of Adolf Hitler's statements, but a report of Colonel Hossbach which was drafted by the
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latter 5 days later, namely, on 10 November 1937. I have no intention of entering any further into the contents of this document. I refer here to the testimony given by the Defendants Goring and Raeder and to the statements which other defendants' counsels have made on this question. I only mention the fact that when addressing the Commanders-in-Chief and the Minister for Foreign Affairs at that time, Hitler had a chronological plan in view which reveals no conformity whatever with the subsequent events. In these circumstances, the existence of a determined and well-outlined plan by Hitler himself even seems very unlikely. Only one conclusion can with certainty be drawn from the contents of this document: Namely, that until 5 November 1937 Hitler himself only thought of an amicable settlement of the territorial problems raised by the Versailles Treaty. For this very reason, therefore, there can have been no question of a common plan aiming at the launching of a war of aggression-at least, up to this time.
This document, however, is worthy of notice for still another reason: The report begins with the Fuehrer's assertion:
". . What the subject of today's conference is of such importance that its discussion in other states should belong to the forum of the government cabinet. He-the Fuehrer-however, considering the importance of the matter, refrained from making it the subject of discussion in a full session of the Reich Cabinet."
First of all, it can be left undecided in how far other questions from 1937 on were still dealt with by the Reich Cabinet in cabinet sessions, or in the so-called circulation procedure, in the administrative procedure or in the legislative way. The conclusion can, however, be drawn with certainty from the presentation of evidence and in particular from the witness Dr. Lammers' statements and those of other witnesses, and from a great number of documents submitted by the Prosecution themselves, that, at the latest, from 5 November 1937 on, all problems concerning the question of war and peace were no longer dealt with by the Government as state authority, nor by another larger constant circle of collaborators, but exclusively by Adolf Hitler himself. In all probability this situation already existed in the year 1933. In this connection I should like to draw attention to the statements of several defendants in the witness box who, for example, were informed of the reoccupation of the demilitarized zone of the Rhineland in the same way as any other citizen, that is by means of the press and radio.
It is certain, however, that all important political and military decisions were taken by Adolf Hitler alone after 5 November 1937, and particularly after the so-called Fritsch crisis and the transformation of the Reich War Ministry into the High Command of
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the Armed Forces which it involved. According to the witness Dr. Lammers' statements, general conferences between the Reich Government, the Reich Party Directorate and the generals never took place. According to the statement of this witness and others, a closer connection never existed between these three institutions. Indeed, not a single one of the documents submitted by the Prosecution reveals anything which might tempt us to admit the existence of an independent collaboration between the Reich Government, the Reich Party Directorate and the Reich War Ministry or afterward the High Command of the Armed Forces and the Commanders-in-Chief of the branches of the Armed Forces and their chiefs of staff. On the contrary, if a positive conclusion can really be drawn from the presentation of evidence, it is that the power was concentrated exclusively in the hands of Adolf Hitler, that the Reich Government, the Reich Party Directorate and the Armed Forces received their orders and directives only from him) that it was Hitler's own policy to prevent a working and independent combination of these institutions.
It can thus also be explained that in all questions of a political or military nature, only those offices were included which had directly to do with the task to be carried out. It is clear from all the documents submitted by the Prosecution that, as a rule, at the conferences presided over by Hitler, there was no question of conferences as are perhaps customary in parliamentary democracies, but they were essentially only concerned with the issuing of orders.
It is not necessary to examine in detail the statements in their relation to Adolf Hitler made by nearly all the defendants, nor is it necessary to assume an attitude toward the statements on the stand taken by a whole series of other witnesses regarding Adolf Hitler's position in the German governmental system. One thing can be said with certainty: at the latest, from 5 November 1937 on, Hitler's position was so commanding and his exclusive dealing with all decisive political and military questions so firmly established that for this reason alone there could be no grounds left for the supposition of a common plan.
The Defendant Rudolf Hess, though the Fuehrer's Deputy and the highest political leader for Party matters, did not contribute to nor take part in any of the conferences or any other important political or military decisions characterized by the Prosecution as being essential to prove the existence of a common plan, just as lithe as he contributed to or took part in the conference of the Fuehrer in the Reich Chancellery on 5 November 1937 (USA-25).
The same holds good, for example, for the next exhibit, USA-26, Document Number 388-PS, submitted by the Prosecution. This is the top-secret Case Green, Czechoslovakia. Without having to enter
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any further into the details of this document, it can be said without more ado that it deals with what is entirely the work of the General Staff, which was originally intended only as a problem, and afterward elaborated into a real operational plan. This operational plan was not put into action, the documents referring to Case Green, on the contrary, conclude with Directive Number 1 of the Fuehrer and Supreme Commander of the Armed Forces, which refers to the occupation of the Sudeten German areas separated from Czechoslovakia by virtue of the Munich Agreement of 29 September 1938. Under these circumstances, it is superfluous to deal further with the letter of 27 September 1938, of the Chief of the High Command of the Armed Forces to the Fuehrer's Deputy which is also contained in the documents for the Case Green and refers to the mobilization measures which were to be taken without the issuing of a mobilization order or a corresponding code word.
What I have already said concerning Exhibit Number USA-25 applies similarly to Document Number L-79, Exhibit Number USA-27. This is another so-called key document having as subject the instruction by the Fuehrer of the Commanders-in-Chief of the branches of the Armed Forces and the chiefs of the general staffs in the new Reich Chancellery on 23 May 1939. Without intending to enter into the importance or the value of this document as evidence-the Fuehrer's speech closed with the order to set up a small research staff in the High Command of the Armed Forces-this document shows clearly that no common plan in the shape asserted by the Prosecution can have existed, especially not among the defendants now facing their trial. Not a single minister or official of civil administration took part in this conference at the Fuehrer's headquarters-which in reality was not a conference but again an instruction and issuance of orders.
The next three documents submitted by the Prosecution as key documents refer to one and the same subject, namely, to Adolf Hitler's speech addressed to the Commanders-in-Chief of the Wehrmacht on 22 August 1939. The following are the documents in question: Exhibit Number USA-28, Document Number L-3; Exhibit Number USA-29, Document Number 798-PS; and Exhibit Number USA-30, Document Number 1014-PS. I will not enter any further into the value of these documents as evidence, although it is obvious that these documents cannot be of equal value, and though it is quite clear that even an approximate reproduction of Adolf Hitler's exposition is out of the question. None of these documents reveal their authorship. Moreover, the statements differ considerably as far as volume and contents are concerned.
Document Exhibit Number USA-29 seems to contain the most complete reproduction of Hitler's statements. And here again the
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conclusion is most worthy of notice, a conclusion which throws some light upon the situation at that time and the events which made it possible for Hitler to make such a speech to the Commanders-in-Chief.
"I was convinced that Stalin would never accept the English offer. Russia is not interested in the existence of Poland and then Stalin knows it means the end of his regime, it being immaterial whether his soldiers are victorious or vanquished. Litvinov's removal was decisive. I gradually changed our attitude toward Russia. In connection with the commercial treaty we engaged in political talks. Proposal for a nonaggression pact. Then came a general proposition from Russia. Four days ago I took a special step which caused Russia to signify her willingness to conclude it, yesterday. Personal contact with Stalin is established. Von Ribbentrop will conclude the treaty the day after tomorrow. Poland is now in the position in which I wanted her to be."
Besides the Commanders-in-Chief, no minister or leader of the Party, specifically not the Defendant Rudolf Hess, attended this speech of the Fuehrer. The same is true of Document Number 789-PS, Exhibit Number USA-23. The subject of this document is a conference with the Fuehrer on 23 November 1939. It appears from this document that here again only the Commanders-in-Chief of the Armed Forces were assembled to receive the Fuehrer's directions for the imminent operations in the West.
The next key document is Exhibit USA-31, Document Number 446-PS, Directive Number 21 for "Case Barbarossa." This was a question of a directive by the Fuehrer and Supreme Commander of the Armed Forces which has an exclusively military character and was intended only for the sphere of the Armed Forces. Any participation by civilian administrative offices or of the Party, even in the person of the highest political leader, namely, the Defendant Rudolf Hess, is excluded by the nature of this directive.
It appears also from Document Number 2718-PS, Exhibit Number USA-32, the subject of which is a file memo on the result of a conference on 2 May 1941 about Case Barbarossa, that neither the Deputy of the Fuehrer nor any other political leader took part in this conference.
The last so-called key document to be discussed is Exhibit Number USA-33, Document Number 1881-PS, an account by Minister Schmidt of the conversation between the Fuehrer and the Japanese Foreign Minister Matsuoka in Berlin on 4 April 1941. By the very nature of this conference there could be as a matter of course no question of any participation in it by the Defendant Rudolf Hess or by any other political leader of the Party. However, something
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else appears from this document, namely, the fact that it is not only false to talk about a common plan within Germany aiming at a war of aggression but, even more than this, that no kind of close political or military co-operation existed between the so-called Axis Powers, in any case as far as the relations between Germany and Japan are concerned.
What conclusion can now be drawn from the contents of these so-called key documents which the Prosecution themselves have characterized as particularly relevant to show the existence of a so-called common plan? Whether these documents are relevant or not, it is established by these notes that the Defendant Hess was not present at any of these conferences or when these orders were issued. If, in appraising this circumstance, one considers the further fact that the Defendant Rudolf Hess was the Fuehrer's Deputy and therefore the highest political leader, and that furthermore, after 1 September 1939, he was designated as the Fuehrer's successor after Defendant Hermann Goring, then there would in fact seem to be no basis for the assumption of a common plan in the form asserted by the Prosecution.
In this connection, may I refer to the report of the Chief of Staff of the United States Army to the Secretary of War for the period from 1 July 1943 to 30 June 1945. I quote:
". . . The available evidence shows that Hitler's original intent was to create by absorption of Germanic peoples in the areas contiguous to Germany and by strengthening of her new frontiers, a greater Reich which would dominate Europe. To this end, Hitler pursued a policy of opportunism by which he succeeded in occupying the Rhineland, Austria, and Czechoslovakia without military opposition.
"No evidence has yet been found that the German High Command had any over-all strategic plan. Although the High Command approved Hitler's policies in principle his impetuous strategy outran German military capabilities and ultimately led to Germany's defeat. The history of the German High Command from 1938 on is one of constant conflict of personalities in which military judgment was increasingly subordinated to Hitler's personal dictates. The first clash occurred in 1938 and resulted in the removal of Von Blomberg, Von Fritsch, and Beck, and of the last effective conservative influence on German foreign policy.
"The campaigns in Poland, Norway, France, and the Low Countries developed into serious dissensions between Hitler and the General Staff as to details of execution of strategic plans. In each case the General Staff favored the orthodox offensive, Hitler an unorthodox attack, with objectives deep
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in enemy territory. In each case Hitler's views prevailed and
the astounding success of each succeeding campaign raised Hitler's military prestige to the point where his opinions were no longer challenged. His military self-confidence became unassailable after the victory in France, and he began to disparage the ideas of his generals even in the presence of junior officers. Thus no General Staff objection was expressed when Hitler made the fatal decision to invade Soviet Russia.
"When Italy entered the war, Mussolini's strategic aims contemplated the expansion of his empire under the cloak of German military success. Field Marshal Keitel reveals that Italy's declaration of war was contrary to her agreement with Germany. Both Keitel and Jodl agree that it was undesired. From the very beginning Italy was a burden on the German war potential. Dependent upon Germany and German-occupied territories for oil and coal, Italy was a constant source of economic attrition. Mussolini's unilateral action in attacking Greece and Egypt forced the Germans into the Balkan and African campaigns, resulting in overextension of the German armies which subsequently became one of the principal factors in Germany's defeat.
"Nor is there evidence of close strategic co-ordination between Germany and Japan. The German General Staff recognized that Japan was bound by the neutrality pact with Russia, but hoped that the Japanese would tie up strong British and American land, sea, and air forces in the Far East."
The statements which the Defendants Keitel and Jodl have made on the witness stand are essentially the same as the statements of the American Chief of Staff, so that further details on this point are superfluous. It may be considered as proven that not even among the most intimate circle of Adolf Hitler's associates did a complete agreement exist on the measures to be taken in the political and military field, whereby the constitutionally established relationship of rank between the officers of the Armed Forces and the head of the State and Supreme Commander need not be considered. It is plain that the existence of a common plan aiming at war cannot be accepted even in the case of that group of persons for whom it first seemed most likely.
The second common goal of the conspiracy is declared by the Indictment to be the appropriation of the territories which Germany had lost as a result of the World War of 1914-18. The preamble to the Treaty of Versailles provides for the possibility of a revision of the treaty. Going beyond this, the demand for the reunion of Austria to the German Reich and the annexation of the Sudeten
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German regions cannot in itself be concluded to rest on the existence of a plan which was to have been realized at the proper moment by the use of violence or by way of war. As a matter of fact, by a disregard of the right of self-determination of nations, these territories had already been prevented in the year 1919 from annexing themselves to the German Reich. On this question I can refer to the statements I made at the beginning. Actually, the annexation of Austria took place-this may be said as a result of the presentation of evidence-under circumstances which cannot be described as warlike and which permit us to conclude that the greater part of the Austrian population approved the annexation. Concerning the Sudeten German question, it suffices here to refer to the Munich Agreement between Germany, Great Britain, France, and Italy by which the reunion of the Sudeten Germans with the Reich was settled.
And finally, the third aim of the common plan was described as the annexation of additional territories on the European continent which should serve the conspirators as "Lebensraum." The Indictment is not clear in this point and lacks substance. But in fact the question of the so-called "Lebensraum" is a problem which is completely independent of the National Socialist ideology and is determined by the size of the area and number of inhabitants. Every German Government had to and still must deal with this question. If any argument by Hitler found a lasting response in the German people, it was the demand made by him for an appropriate share for the German people in the material wealth of the world. This demand appeared to be all the more justified for the German people as the relation between the area and the number of inhabitants is very unfavorable compared to other countries.
For instance, in the European part of Russia alone there are - .1 inhabitants per square kilometer; in the United States of America the density of population is only 17 people; and France with a population of 74.6 per square kilometer owns a territory of no less than 11.5 million square kilometers. England has 47 million inhabitants and disposes of no less than 35 million square kilometers of ground. Compared with these figures Germany had, on 1 September 1939, over 80 million subjects, a density. of population of 140 and not even 600,000 square kilometers of territory. These figures speak for themselves. The question of territory is closely related to the problem of a fair distribution of the most important raw materials.
I need not give detailed reasons on the inadequate distribution of the most important sources of raw materials nor mention that certain raw materials are completely monopolized. It is certain that the bitterness about the unjust distribution of the material wealth of the world was bound to increase in the German people, as not only was every reasonable revision rejected, but moreover it was said by the opposite side in an unmistakable manner that the nations were divided into two classes, namely the "haves" and the "have-nots". In fact, this classification could be felt as nothing but scorn.
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Moreover, even after 1933 there was no unanimous opinion about the possible solutions concerning the removal of the difficulties resulting from the need for space. Thus, for instance, the Defendant Rudolf Hess belonged precisely to those who wanted to solve the problem of "Lebensraum" by the acquisition of colonies, if possible. For instance, in a big speech in Stettin, on 21 March 1936, he said: ,
"The most natural way to make more food available for the people of Germany is to improve our living standard, that is, to supplement it by having colonies. Therefore, the Fuehrer by stating his willingness to return to the League of Nations, hoped that the question of colonies would be submitted to examination. The Fuehrer knows that a people without sufficient area, without a sufficient food basis, a hungry people, must in the long run become a center of unrest because of its instinct of self-preservation against which even the most ingenious statesman is powerless. For hunger is a natural instinct which cannot be subdued either by warnings or by orders. Our desire for colonies is therefore only the desire for a pacification of Europe for a long time, and therefore the question of the allocation of colonies to Germany is part of the Fuehrer's big proposal of pacification. . ."
The world knows that the fulfillment of this demand as well as the fulfillment of all other demands for revision was refused.
The connection between the unjust distribution of the material goods of the world which contradicts all economic reason and the political tensions which shake the peace of the world again and again, simply cannot be overlooked.
Generalissimo Stalin, Chairman of the Council of the People's Commissars of the USSR, stressed these facts clearly enough in his long speech of 11 February 1946 on the occasion of the elections for the Supreme Soviet, stating inter alia as follows:
"It would be wrong to think that the second World War was caused by chance or was the result of mistakes made by various statesmen, although such mistakes had undoubtedly been committed. In reality the war was an inevitable result of the international economic and political forces founded on modern monopolistic capitalism . . . Perhaps we might escape the catastrophes of war if there were a chance of redistributing the raw materials among the countries according to their economic weight by virtue of agreed and peaceful decisions..." Somewhere else in his speech Stalin says:
"This is the position regarding the question of the origin and the character of the second World War. Now everyone presumably recognizes that this war never was and never could be a matter of chance in the life of the nations, that it indeed changed into a war involving the nations and their existence, and that for this reason it could not be a blitzkrieg quickly running its course..."
There is no need to add anything to these statements; they speak for themselves.
Your Honors, I now turn to the legal evaluation of the state of affairs which may be considered as actually established: As I have
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already stated, Article 6, Paragraph 3 of the Charter is not the formulation of an independent state of criminality, but the expansion of the criminal responsibility of the leaders, instigators, and participants who have taken part in the drafting or in the execution of a common plan for committing one of the crimes mentioned in Paragraph 2. According to the regulation mentioned, these persons are to be responsible not only for the acts which they themselves have committed, but they also are to take upon themselves the penal consequences for all acts which were committed by any person in the execution of such a plan.
In Article 6, Paragraph 2a, of the Charter the fact of a crime against the peace is defined as follows:
"The planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing."
While it is expressly defined in Article 6, Paragraph 3 of the Charter that the criminal responsibility of the participant in the drafting of a common plan is limited to acts which "have been committed by any person in execution of such a plan," the crime against the peace is according to Article 6, Paragraph 2a, of the Charter already completed with the "agreements or assurances or participation in a Common Plan or Conspiracy for the accomplishment of a plan which has as its aim the preparation, initiation, or waging of a war of aggression." In contrast to Article 6, Paragraph 3, it is here not necessary that an act of execution tee ' actually committed.
I do not intend now to deal with the question more specifically whether the war as such and especially the starting of a war of aggression was a crime according to international law valid at the time of the outbreak of war, on 1 September 1939. This question has already been discussed in the opening speech of the Defense. This examination of the legal side of this question has shown that neither the League of Nations agreement nor the Briand-Kellogg Pact contains anything which would permit the conclusion that the starting of a war was a criminal and therefore punishable offense. International law knew neither a criminal responsibility of the state as a corporate body and even less a criminal responsibility of the agencies of the state, such as the head of the state, the members of the government, the military commanders, the economic leaders, et cetera.
The causes for this unsatisfactory state of international law need not be discussed. It has already been correctly pointed out that the idea of sovereignty and the refusal of the great powers in particular to relinquish some of these rights of sovereignty in the interest of a
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better supernational organization, was also a reason for the unsatisfactory status of international law especially on this question. In connection with this there is another fact which does not seem to be less important to me, namely, that it was not possible until now to create an effective organization and a procedure which would satisfy the justified claims of the peoples for a proper participation in the material goods of the world, and which would also in other respects take care of a just settlement of the conflicting interests.
On the basis of this examination alone there can hardly be any doubt that a crime against the peace, as it has found its factual definition in Article 6, Paragraph 2a, of the Charter, does not exist. This section of Article 6 of the Charter does not have a sufficient basis in existing international law.
I omit the following decisive statements as they concern the effect of the secret German-Russian treaty of 23 August 1939 on the jurisdiction of the Tribunal. The Tribunal will have to consider officially to what degree the jurisdiction can still be considered valid in view of this secret treaty. I continue on Page 63. Mr. President, I am in a difficult position, as by omitting these statements from Pages 59 to 62, an incorrect picture would be created, as my actual statements concerning the contents of the German-Soviet secret treaty of 1939 could be misunderstood because of its legal consequences. I therefore ask the Tribunal to decide.
THE PRESIDENT: The Tribunal has fully considered this matter and does not desire to hear your point.
DR. SEIDL: Moreover, the following is to be said about Article 6, Paragraph 3 of the Charter: The concept of a conspiracy, as it has been expressed in Article 6, Paragraph 3, is a typical institution of Anglo-American law. The continental European law does not know any such criminal concept. But there cannot be any doubt that international penal law, insofar as there is any such law, and if one does not understand by it the sum total of the rules which are to be observed in the application of national or foreign law, likewise does not know the concept of conspiracy as constituting a crime in criminal law.
But it is not only the question of prevailing international law and the agreement of the Charter with the same which is to be examined. The issue in connection with this requires an answer to the following question also:
In the opening speeches of the four chief prosecutors and also in the discussions prior to the Trial concerning its legal basis, two entirely contradictory arguments were advanced. While some argued that the Charter was a complete expression of the prevailing international law and was in agreement with the common legal
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beliefs of all members of the international legal community, the others asserted that one of the main tasks of the International Military Tribunal which was then to be set up would be to develop international law further. This latter opinion, for example, stands out clearly in the report of the American chief prosecutor to the President of the United States of 7 June 1945. Here, word for word, it states among other things:
"In initiating this Trial, we must also remain aware of the aims with which our people assumed the burdens of war. After we entered the war, and our men and our wealth were mobilized to eradicate this evil, there was the general feeling among our people that out of the war there should arise unmistakable rules and a practical machine from which anyone who entertains the thought of a further predatory war should realize that he will be held personally responsible and that he will be personally punished . . ."
Or in another part of this report, the following is stated literally:
". . . According to the international law of the nineteenth and early twentieth century, the waging of war was not generally considered as unlawful or as a crime in the legal sense. Summed up, the prevailing doctrine held that both parties in any war were to be considered as being in the same legal situation and therefore had the same rights."
The legal considerations in the report then actually conclude with the following challenge:
"...An attack against the fundamental principles of international relations must be considered as nothing less than a crime against the community, which rightly must protect the integrity of its fundamental agreements by punishing the aggressor. We therefore propose to raise the challenge that a war of aggression is a crime, and that modern international law has abandoned the justification according to which he who instigates or wages a war acts in accordance with the law."
And as a matter of fact, it would not be necessary to raise the demand for a new penal law if the action under consideration was already threatened with punishment by existing law.
It is obvious that the fulfillment of such a demand by a court of law-whatever the legal basis for its proceedings-would be contradictory to a principle derived from the penal legislation of nearly all civilized nations and which finds its expression in the rule nulla poena sine loge, that an act can only be the object of punishment if the act was declared punishable by law before the act was committed. This state of affairs seems all the more remarkable, since the rule nulla poena sine lege is a principle
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firmly rooted in the constitution of practically all civilized nations. Thus, for example, it is contained in Article 39 of the English Magna Charta of King John of 1215, in the American Constitution of 1776 and in the declarations of the French Revolution in 1789 and 1791. This principle of nulla poena sine lege is not only contradictory to the assumption of a crime against peace as the Prosecution expects the Tribunal in the further development of prevailing international law to define as a punishable act, but rather it is also contradictory to the creation-of another independent concept of conspiracy in criminal law by judicial dictum, in the further development of hitherto existing international law. In this it cannot make any distinction as to whether this conspiracy was directed toward committing a crime against the peace or committing a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent crime in criminal law is not compatible with the principle of nulla poena sine lege. What are applicable here are rather-as already correctly expounded by the French chief prosecutor-are only the rules defining participation according to the law of the perpetrator's own country or according to the law in the place of perpetration. Under given circumstances, these rules defining participation are limited to the extension of the threat of punishment to cases of complicity, instigation, and assistance.
Apart from his participation in the Common Plan or Conspiracy, as defined in Count One of the Indictment, the Defendant Rudolf Hess, in connection with his personal responsibility for War Crimes and Crimes against Humanity, is essentially accused by the Prosecution on the basis of the contents of only one document, and that is Document Number R-96, Exhibit Number GB-268.
This concerns a letter from the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery on 17 April 1941, which deals with the introduction of penal laws against Poles and Jews in the incorporated Eastern territories. The Defendant Rudolf Hess plays a part in this only insofar as the letter mentions, among other things, that the Deputy of the Fuehrer had proposed the discussion of the introduction of corporal punishment. If one considers that the staff of the Deputy of the Fuehrer alone comprised 500 officials and employees, and that for questions of legislation, there was a special department which dealt directly with the separate ministries, it seems very doubtful whether the Defendant Rudolf Hess was personally concerned in this matter at all. In this connection I refer to the affidavit of the witness Hildegard Path, Exhibit Number Hess-16. Considering, however, that the measure proposed for discussion by the Deputy of the Fuehrer was not introduced, the knowledge of the defendant should not matter very much. Without it being necessary to probe any deeper into the subjective elements
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of the case, it can be said that, in application of principles such as can be derived from the penal law of all civilized countries there is here not even question of an attempt. The attitude of the Fuehrer, or, more correctly, the Deputy of the Fuehrer, as expressed in the letter of the Reich Minister of Justice is irrelevant from the point of view of criminal law. We need not consider in this connection whether a penal law would have been violated if the measure proposed for discussion had actually found legislative expression in a Reich law.
Another document submitted by the Prosecution is Exhibit USA-696, Document Number 062-PS. This refers to the order of the Deputy of the Fuehrer of 13 March 1940, which deals with the instructing of the civilian population as to the proper attitude to be adopted in case of landings by enemy aircraft or parachutists on German national territory. This is the same document concerning which I have already applied for a correction of the translation because the translation from German into English was at any rate in my opinion not correct. This document, however, is neither contained in the trial brief submitted by the British Prosecution nor was it mentioned by Colonel Griffith-Jones on 7 February 1946 when he discussed the personal responsibility of the Defendant Rudolf Hess. In consideration, however, of the fact that this order was officially submitted as documentary evidence, it is necessary to go into it at least briefly.
The reason for this order of 13 March 1940 was the fact that the French Government had given instructions to the French civilian population officially and by radio as to how they were to conduct themselves in case of landings by German aircraft. On the basis of these instructions of the French Government, the Commander-in-Chief of the German Air Force considered himself also called upon on his part to inform the German population via the official Party channels. He therefore issued a directive about the attitude to be adopted in the case of landings by enemy aircraft or parachutists, which was used as an appendix to the afore-mentioned order of the Deputy of the Fuehrer of 13 March 1940.
This directive, however, does not contain anything which is contrary to the laws and customs of warfare, as they have been expressed, for example, in the Hague Rules on Land Warfare. This applies particularly to Figure 4, which contains the order that enemy parachutists are either to be arrested or rendered harmless. According to the text as well as the sense of this Figure 4, there cannot be the slightest doubt that this was only meant to say that enemy parachutists were to be fought and subdued if they did not surrender voluntarily and tried to avoid their arrest by using force, particularly by the use of firearms. This becomes evident from the word "or" alone. First of all, the attempt was to be made to take
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them prisoner. This alone in the interest of the intelligence service. Only if this proved impossible because of resistance were they to be rendered harmless, that means subdued.
Any other interpretation of this order would not only be contrary to the text and the sense, but moreover would also be contrary to the fact that up to the French campaign the war had been waged according to rules such as had been established, among others, in the Hague Rules on Land Warfare and that, at any rate at that time, March 1940, the war had not yet developed into the mutual struggle for annihilation that it was to become after the outbreak of the German-Russian war. The fact that a different interpretation is absolutely impossible is also evident from the so-called "Commando Order" of the Fuehrer of 18 October 1942, which was presented by the Prosecution under Exhibit Number USA-501, Document Number 498-PS. The deliberations preceding this order-which, by the way, was issued under completely different conditions-and the fact that this Commando Order was decreed by Hitler himself, in spite of the opposition of the High Command of the Armed Forces and the Chief of the Armed Forces Operations Staff, would have been entirely superfluous, if the Commander-in-Chief of the Air Force had already issued instructions which served the same purpose in March 1940. It is furthermore expressly specified in Figure 4 of the Fuehrer Order of 18 October 1942, that captured members of Commando groups were to be handed over to the SD.
As the German text of this directive about the order of 13 March 1940 is completely unequivocal and does not leave any room for doubt, I refrained from procuring additional evidence about this question. In the event, however, that the Tribunal should not share this assumption, it would be unavoidable for the complete clarification of the facts that the Tribunal should, on their own initiative, procure the instructions which the French Government issued at the beginning of the year 1940 to the French civilian population in case of landings by German aircraft or German parachutists.
It is not necessary to go into any more detail into Exhibit Number GB-267, Document Number 3245-PS, which is also brought forward against the Defendant Hess, as the contents of this document can under no circumstances be considered a crime against the rules of warfare or against humanity, if the afore-mentioned principles are applied.
Besides being indicted as an individual, Rudolf Hess is also indicted as a member of the SA, the SS, the Corps of Political Leaders and the Reich Cabinet. As far as his membership in the SA and the SS is concerned, more detailed explanations are superfluous. From the documents presented by the Prosecution, it becomes evident that the Defendant Rudolf Hess held only the
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honorary rank of an Obergruppenfuehrer in both of these organizations. No command or disciplinary powers were connected with it.
As Deputy of the Fuehrer, however, the Defendant Rudolf Hess held the highest office which existed in the Corps of Political Leaders. I cannot assume the task of commenting in detail on the charge which is brought against the Corps of Political Leaders under, and in application of, Article 9 of the Charter, and which is characterized by its motion to declare the Corps of Political Leaders a criminal organization. Considering the fact, however, that the Defendant Rudolf Hess, although not the only political leader here on the defendants' bench, was nevertheless the highest political leader, there arises the occasion for making a few fundamental remarks.
According to Article 9 of the Charter, the Tribunal can declare to a member of an organization that the organization to which the defendant belongs or belonged was a criminal one. According to the Charter, a necessary condition for this is that the declaration of the Tribunal be connected with an act for which the defendant is convicted. By an "act" within the meaning of Article 9 of the Charter one can only understand a deed of commission or omission for which the defendant is personally accountable and to blame, but not the extended liability for the act of another resulting in a given case from Article 6, Paragraph 3. Since, however, neither in the Indictment nor in the trial brief dealing with the personal responsibility of the Defendant Rudolf Hess, is an act of any kind charged against him which satisfies the conditions constituting a war crime or a crime against humanity, a conviction of the Defendant Hess, in this case also-namely as a member of the Corps of Political Leaders-would be synonymous with the establishment of a criminal responsibility for the acts or omissions of another. Although the Defendant Rudolf Hess was the highest political leader and although no action is charged against him personally which constitutes a crime according to any penal law, he is to be convicted as a member of the allegedly criminal organization of which he was the leader; it cannot be denied that this is a legal situation which does not happen every day.
But something else appears more important. The Defense were compelled to attack the very heart of the Charter, namely Article 6, as not being consistent with generally valid principles of international law. Article 9 of the Charter is no less in contradiction with the common legal beliefs of all members of the international legal community. There is neither a legal statute in international law nor a legal statute in any national law which declares the membership in an organization as criminal without examining in each individual case whether the person concerned has made himself personally guilty by his own actions or omissions. Contrary to
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the general principles of criminal law, as they are derived from the penal laws of all civilized countries, the Charter provides in Article 9 for a criminal responsibility and collective liability of all members of certain organizations and institutions, and this without any consideration as to whether the individual member has incurred any guilt.
The Charter thus abandons a principle which is an integral part of any modern system of criminal law. The rule of "no punishment without guilt"-and the declaration that a certain organization is criminal is a punishment for the members affected by it-is an essential part of the idea of the criminal law of our time, insofar as one understands by guilt the sum total of those necessary conditions for punishment of the culprit. If the fact of membership in a certain organization alone becomes the object of a penal sentence, then the act which constitutes the charge no longer appears as a legally objectionable expression of the culprit's personality. This must particularly apply to organizations which had hundreds of thousands, and even millions of members. For that reason punishment without guilt has hitherto existed only in primitive law. Therefore, Von Liszt, the great German teacher of criminal law, who was at the same time a constructive thinker in the field of international law, says appropriately:
"Just as religious teaching does not oppose the visiting of the sins of the fathers on 'the children and on the children's children, just as in the dramas of the ancients the place of guilt is taken by blind, inexorable fate and in the literature of today by the law of heredity, so even the oldest law of all nations knows of no penalty without guilt."
Only in primitive law did there exist a criminal responsibility without guilt. As a matter of -fact, in the legal history of all countries, the so-called criminal 'responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility attaching to the guilty only and thereby that state was reached which is alone compatible with the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a regrettable contribution to the hastening of the apparently inevitable reduction of men to mere members of a mass, but it is, moreover, a relapse to the first beginnings of concepts of criminal law. Considering these facts, it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal beliefs of all the members of the community of international law and from the general principle of criminal law in all civilized nations.
Rudolf Hess is finally accused as a member of the Reich Cabinet. Insofar as his membership in the Secret Cabinet Council is concerned, the following may be said: The presentation of evidence
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has shown that this Secret Cabinet Council was only created so that the resignation of the former Reich Foreign Minister Von Neurath would not appear to the public as signifying a breach between him and Adolf Hitler. Actually, no session of this Secret Cabinet Council ever took place. The council did not even meet to outline its sphere of activity.
With reference to the Reich Cabinet, it is established on the basis of the results of the presentation of evidence that no cabinet meetings took place after 1937 at the latest. The tasks to be performed by the Reich Cabinet, especially its legislative functions, were taken care of by the so-called circulating procedure. The presentation of evidence has shown further that from 1937 on at the latest, the major political and military decisions were made exclusively by Adolf Hitler alone without the members of the Reich Cabinet having been informed of them in advance. After Hitler's appointment as Reich Chancellor, and surely much earlier than 1937, the Reich Cabinet as an institution probably made no ultimate decision on politically or militarily important questions. It would be completely misleading to assume that the members of the Reich Cabinet in the National Socialist State had a position even approximately like the position which is a matter of course in a state governed by parliamentarian principles. Just as little as there was a common plan or conspiracy among the men sitting on the defendants' bench, was there anything of the kind within the Reich Cabinet.
It was even partly true that forces with divergent aims became apparent within the Reich Cabinet, which in itself would have made it impossible to agree on a common plan, such as was expressed in the Indictment. It is sufficient here to point to the testimony of the witness Lammers and to the fact that Adolf Hitler, from whom such facts could not remain hidden, finally issued a prohibition to the effect that the individual Reich ministers no longer had the right to assemble for conferences on their own motion.
In this connection, something else cannot be left unmentioned. If the presentation of evidence in this Trial has revealed anything with certainty, then it is the proof of the position of enormous political power and unimaginable authority which Adolf Hitler held within the German governmental system. When Generaloberst Jodl testified on the witness stand that there was no one who could successfully contradict Hitler in the long run and that such a person could not exist, then one might say that he expressed the true state of affairs in a few words. That may perhaps be regrettable, but cannot in any way alter the facts as such. Now, if one also bears in mind that this dominant position of Hitler became constantly greater during the course of the years, then this alone should be
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sufficient to exclude the assumption of a common plan, such as is alleged in the Indictment.
In any case, the following must be said: The former Party leaders, generals and cabinet members indicted before this Tribunal receive an importance in this Trial because of Hitler's death which it is apparent they actually did not have in public life in the past. While the entire political life of Germany was overshadowed during the past 12 years by the overwhelming influence of Hitler's personality, the absence of this man from the defendants' bench affects this Trial in such a manner that it undoubtedly must result in an entirely distorted picture of the political reality of the past 12 years.
Your Honors, I come now to the event which was to conclude the political career of the Defendant Rudolf Hess-his flight to England on 10 May 1941. For several reasons this undertaking is of importance in this Trial as evidence. As is shown by the presentation of evidence, the Defendant Rudolf Hess had made the decision for this flight as early as June 1940-that is, immediately after the surrender of France.
The execution of the plan was delayed for a number of reasons: In particular, certain technical conditions had to be fulfilled in advance. Moreover, considerations of a political nature played a part, namely, that such an enterprise could be attended by success, if at all, only when political conditions and especially the military situation appeared favorable for the opening of peace negotiations; for re-establishment of peace was undoubtedly the aim which Hess pursued in his flight to England.
When the Defendant Hess was led before the Duke of Hamilton on the day after his landing, he declared to the latter, "I come on a mission of humanity." During the conversations which the defendant had with Mr. Kirkpatrick of the Foreign Office on 13, 14, and 15 May, he explained to him in detail the motives which had induced him to take this extraordinary step. At the same time, he informed him of the conditions under which Hitler would be prepared to make peace.
On 9 June 1941, a conversation took place between Rudolf Hess and Lord Simon, who appeared on the order of the British Government. I submitted the transcript of this conversation to the Tribunal as evidence and am referring to it.
It is shown by this document that the motive for this extraordinary flight was the intention to avoid further bloodshed and to create favorable conditions for the opening of peace negotiations. During the course of this conversation, the Defendant Hess handed a document to Lord Simon which stated the four conditions under
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which Hitler would have been prepared at that time to conclude peace with England. The conditions were:
"1. In order to prevent future wars between the Axis and England, a delimitation of spheres of interests is to take place. The sphere of interests of the Axis Powers is to be Europe, and that of England her Colonial Empire.
"2. Return of the German colonies.
"3. Indemnification of German nationals who were domiciled prior to or during the war in the British Empire and who suffered damage to life or property because of measures taken by the Government in the Empire, or through incidents such as pillage, riots, et cetera. Indemnification to British nationals on the same basis by Germany.
"4. Conclusion of an armistice and peace treaty with Italy at the same time."
Rudolf Hess explained to Mr. Kirkpatrick, as well as to Lord Simon, that such were the terms on which Hitler was prepared to make peace with Great Britain immediately after the conclusion of the French campaign and that this position of Hitler had undergone no further change since completion of the campaign against France. There are no indications of any kind why this account of the defendant should not appear plausible. On the contrary, it is fully in harmony with many statements which Hitler himself had made concerning relations between Germany and England. In addition to that, the Defendants Goring and Von Ribbentrop likewise confirmed while in the witness box that the terms which Hess disclosed to Lord Simon corresponded completely with Hitler's views.
If the terms announced by Hess provided that Europe was to be the sphere of interests of the Axis Powers, the conclusion can in no way be drawn from this that this was synonymous with a 'domination of Europe by the Axis Powers. The declarations made by Hess-they are included in written notes on the conversation between him and Lord Simon-rather demonstrate with all clarity that this was merely to eliminate any interference by England in continental Europe.
What legal consequences result from these facts? In the Indictment, the Defendant Hess is charged-together with the other defendants-with having co-operated in the psychological preparations of the German people for war. To the extent that the psychological preparation for war alleged by the Prosecution is part of the common plan, it is sufficient to refer to the remarks I have made in that connection. However, if the Prosecution also want to allege that the Defendant Hess went further and personally engaged in this psychological preparation for war, then the contrary
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is proved at the very least-apart from his numerous speeches in favor of peace-by his flight to England and the intentions behind it.
Without going into detail as regards general circumstances and the personal relations between Hitler and the Defendant Hess, one thing can still be said with certainty: By his flight to England the Defendant Hess accomplished a deed which in view of his position in the Party and in the State, and especially in view of the fact that after Goring he was marked as Hitler's successor, can only be characterized as a sacrifice, a sacrifice which Hess made not only in the interest of the restoration of peace, and in the interest of the German people, but also in that of Europe and the whole world. This sacrifice was all the greater as Hess was one of the very few whose relation to Hitler was based on intimate personal confidence. If, nevertheless, the Defendant Hess decided to stake his position in the Party and in the State and his personal bond with Hitler for the re-establishment of peace, this must lead to the conclusion that the Defendant Hess likewise saw in war the ghastly scourge of mankind and that it must appear quite improbable for this reason alone that it was his intention to prepare the German people for war.
Your Honors, the following statements deal with the question of what legal conclusions are to be drawn from the flight of the Defendant Hess to England with respect to his participation in the Common Plan or Conspiracy alleged by the Prosecution, particularly, in view of the attitude of the defendant, to what extent any criminal responsibility can still be assumed, even after the flight to England. The Defendant Hess himself does not wish to have any favorable conclusions drawn for him in the course of this Trial from this flight and from the intentions connected with it. He has, therefore, also asked me to omit a part of the following statement. Nevertheless, I consider it my duty as the defense counsel to draw all the legal conclusions resulting from the flight of the Defendant Hess and his intentions in connection with it and to point out the facts and points of view which in any way speak in the defendant's favor.
As I have explained, it must be assumed on the basis of the evidence presented, that the plan alleged by the Prosecution did not exist. In the event, however, that the Tribunal should judge the results of the testimony differently and in application of Article 6, Paragraph 3 of the Charter, should accept the existence of such a plan, directed toward the beginning of a war of aggression, it becomes necessary to examine the question of what legal consequences the flight of the Defendant Rudolf Hess to England and his intentions in connection with it had on his participation in the common plan as asserted by the Prosecution.
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To this the following can be said: Article 6, Paragraph 3 of the Charter extends the criminal responsibility of the defendant to include all acts committed by any person while carrying out the common plan alleged by the Prosecution. The Charter itself contains no provisions as to whether and under what conditions a separation or withdrawal from a common plan is possible. This does not justify the conclusion, however, that such a withdrawal should be excluded as a matter of principle. That assumption is precluded by the very reason that the Charter quite clearly does not purport to give an exhaustive ruling on all questions of substantive and procedural law. If a withdrawal is permitted in Anglo-American law as a matter of fundamental principle, this should be possible with more reason under the Charter. For the Charter represents a compendium of principles in which institutions of continental European law are also given consideration. Continental European law proceeds quite unequivocally from the idea that the responsibility of the perpetrator under criminal law extends only so far as his actions or omissions are controlled by his will. The withdrawal from the attempt, as a reason for acquittal, has therefore become an institution which can be found in almost all European codes of law. If, according to Anglo-American law, withdrawal from the conspiracy is possible, there can be no doubt as to that possibility's existing, in principle, according to the Charter. There is all the more reason for that assumption, in that it has been a practice on principle to apply German law in cases where the Charter fails to establish a binding rule. With regard to the Defendant Rudolf Hess, there should be even less reason for doubt, because the acts charged against the Defendant Rudolf Hess were committed within the territory of the German Reich. According to generally accepted principles of law, as they find expression in particular in the so-called international penal code of all nations, the so-called let loci, that is, the law of the place where the act was committed, is binding in this case.
Applying these principles to the behavior of the Defendant Rudolf Hess and to his flight to England of 10 May 1941, it follows in the first place-and-the evidence likewise did not produce anything to the contrary-that all the subsequent developments could not have been controlled by his will. His influence on the course of events within the development of the war as a whole ceased, at the latest, with his flight to England. It contradicts all principles of penal law, as they are derived from the codes of law of all civilized nations, to hold someone criminally responsible for acts and results upon which he had no influence, and was no longer able to exert any influence, and which he did not adopt by his own volition.
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In this connection reference should also be made to the Prosecution's contention that the Defendant Hess did not undertake his flight to England in order to create favorable conditions for peace negotiations. That, on the contrary, it was his intention-this is the argument of the Prosecution-thus to protect Germany's rear in her planned campaign against the Soviet Union. The documents submitted by the Prosecution do not provide any basis for this assumption. To begin with, this is contradicted by the fact that the Defendant Hess had already decided on the flight as early as June 1940, in other words, at a time when no one in Germany thought of a campaign against the Soviet Union. On the contrary, from the letter which the Defendant Hess left behind and which was handed to Adolf Hitler at a time when Hess had already landed in England, it becomes perfectly clear that Hess had no knowledge of the impending campaign against the Soviet Union. In this letter the Defendant Hess did not state by a single word- and this is established by the testimony of the witness Fath, who read the letter herself-that the purpose of his flight was to cover Germany's rear for the impending campaign against the Soviets. In that letter Hess did not mention the Soviet Union by a single word. It must rather be assumed, with a probability which almost amounts to certainty, that if Hess had had knowledge of the proposed attack, and if he had intended to combine the intention with his flight, which the Prosecution now claims, Hess would have dealt with that question. In this connection I should like to refer the Tribunal to Exhibit Number USA-875, Document Number 3952-PS which also clearly shows that Hess can have had no knowledge of the impending campaign against the Soviet Union.
But even if Hess had had definite knowledge of the planned campaign against the Soviet Union, this would not oppose the reason for his acquittal under criminal law in regard to the subsequent period of time. Evidence has shown that in ordering the attack against the Soviet Union, the idea of anticipating a forthcoming attack on the part of the Soviets was by no means last in Hitler's mind. I refer to the report of the American Chief of Staff Marshall, which I have already read.
It is immaterial in connection with the question to be examined here, whether such an attack was actually planned by Soviet Russia and was imminent. Statements made by the Defendant Jodl while in the witness box must make this appear at least very likely, if not absolutely certain. The decisive point here is merely that on the basis of the reports he had before him Hitler personally was of that opinion. Had the Defendant Rudolf Hess been successful in establishing the necessary conditions for armistice and peace negotiations in England, the political and military situation in Europe would have been so fundamentally changed that under these
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modified conditions an attack by the Soviet Union on Germany would have appeared most unlikely, and the apprehensions entertained by Hitler would have become untenable. The attempt made by the Defendant Hess in his flight to England would also maintain its character as a reason for acquittal under criminal law for all that happened after 10 May 1941, and in carrying out the common plan alleged by the Prosecution, even if it were argued that it was not the fear of an imminent Soviet attack which prompted Hitler in his decision, but the embarrassing economic situation in which Germany found herself as a result of the failure of the invasion of England. For with the ending of war with England, this embarrassing economic situation of Germany would also have came to an end; at least it would not have been so stringent.
In conclusion, it may be said that in undertaking his flight to England, which was linked with his plans for the restoration of peace, the Defendant Hess committed his entire person in an attempt which obviously sprang from the desire to avoid further bloodshed at all costs. In application of principles of law such as are derived from the penal codes of all civilized nations, and especially in application of German penal law-which if doubt arises is to be taken as a basis for this question-the conclusion must be drawn that the criminal responsibility of the Defendant Hess will in any case be confined to acts which were committed prior to the flight to England.
Your Honors, the past war has brought misery upon the whole of mankind to an almost unimaginable extent; it has turned Europe into a continent bleeding from a thousand wounds and left Germany a field of ruins. It appears certain that at the present stage of modern technical developments, humanity would not survive another world war. As far as it is humanly possible to foresee, this would completely annihilate civilization, which has already suffered unspeakably in this war. It appears therefore only too understandable if, under these circumstances, an endeavor should be made in the name of humanity, which is struggling for its existence, to leave nothing untried, even from the legal standpoint, to prevent the repetition of such a catastrophe.
There can, however, be no doubt that the law, whatever its strength may be in social life, can only play a subordinate part in the prevention of war. This applies without any limitation as long as the community of nations is composed of sovereign states which acknowledge no legal code derived from a superior authority, and as long as no procedure and no organization exists which by virtue of its own authoritative power could establish laws legally limiting the legitimate claims of the nations and bringing them into harmony with one another. As long as these conditions are not fulfilled,
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justice cannot be in the domain of international relations the regulating force it is in national life where it rests directly upon the power of the state which is behind it. Tempting as it may be to try to establish at least an improved and more powerful body of international law on the ruins left us by the past world war, such an attempt must be doomed to failure from the outset if it does not coincide with a comprehensive new order of all international relations and if international law is not simultaneously an essential part of an order which guarantees the indispensable rights of all nations and which assures in particular the satisfaction of the legitimate claims of every nation to a proportionate share of the material wealth of the world. The Charter of the International Military Tribunal is undoubtedly not part of such a general new order. It was enacted by the victorious powers for a limited duration, namely, as a foundation for a criminal trial against the statesmen, military commanders, and economic leaders of the Axis Powers which had been defeated in war. The contents of the London Agreement made the Charter of the International Military Tribunal, which constituted an essential part of this agreement, appear as a legislative measure ad hoc by reason of the very time limit of one year stipulated by Article 7. As a matter of fact, it can scarcely remain doubtful that essential parts of the Charter are not in accordance with the general convictions of all members of the international legal community and that they do not, therefore, constitute really valid international law. Under these circumstances, a conviction for a crime against the peace and for participation in a common plan to initiate a war of aggression could only take place at variance with prevailing international law if the Tribunal decided, in violation of the principle nulla poena sine lege, upon a juridical extension of international law. Great as this temptation may be, its consequences would be incalculable. Not only would a principle be violated which is derived from the principles of the criminal law of all civilized nations and constituted in particular an integral component of international law, namely that an act can be penalized only when its penal character has been juridically specified prior to the commission of the act; but above all, in view of the fact that in the present Trial facts were revealed which excluded jurisdiction on Counts One and Two of the Indictment and the jurisdiction of the Tribunal so far, the violation of the principle nulla poena sine lege, combined with these special circumstances, must put the concept of law in doubt altogether.
A violation of so fundamental a legal principle inherent in all judicial systems-and that applies to international law as well-as expressed in the maxim nulla poena sine lege, and even more so in the postulate that nobody must be a judge in re sua would not only obstruct any further development of international law but would, furthermore, indubitably lead to an increased legal insecurity.
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If the way for genuine progress in international legislation is not to be obstructed, then only the actual international code which was valid at the time the acts were committed can be considered as the legal basis for the judgment of this Tribunal.
THE PRESIDENT: The Tribunal will now adjourn.
[The Tribunal adjourned until 26 July 1946 at 1000 hours.]