THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: I continue.

Number 2. If there had been a conspiracy to commit war crimes, then the war would have been waged from the beginning with utter ruthlessness and disregard of rules of war. Just the contrary happened. In fact, during the first years of the war. . .

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you got a little bit further with your speech.

DR. STAHMER: I had gone somewhat further, that is true; but in order to get this into the context again I have started again with Number 2, but if the Court wishes, I can continue where I stopped.

Especially in the beginning every endeavor was made to wage war with decency and chivalry. If any evidence is needed, a glance at the orders of the High Command of the Army regulating the behavior of the soldiers in Norway, Belgium, Holland, is sufficient proof. Moreover, a leaflet with "10 Commandments for the Conduct of the German Soldier in Wartime" was issued to the soldiers when they went into the field. Field Marshal Milch has read them out from his pay book, during this Trial. They all obliged the soldier to act in a proper manner and according to international law.

A gang of conspirators at the head of the state, which plans to wage a war regardless of right and morals, would certainly not send their soldiers into the field with a detailed written order saying just the opposite.

I believe the assumption of the Prosecution that these 22 men are conspirators against peace and the laws of war and humanity is quite erroneous.

It is up to counsel for the individual defendant to show what connection his client might have had with the alleged conspiracy.

I just mentioned that Reich Marshal Goering was the second man in the State. During the Trial the Prosecution also referred repeatedly to this elevated position of Goering's and tried to make it the basis of a special charge against the defendant, pointing out that

516

5 July 46

Goering, by virtue of this advantageous position, knew about everything, even the most secret matters, and had the possibility of intervening independently in a practical way in the course of government business.

This opinion is wrong and is based on ignorance of the importance of his position. It meant that according to rank Goering was the second man in the State.

This rank was due to the fact that Hitler, in the fall of 1934, had made a will and by a secret Fuehrer order had appointed Goering as his successor in the Government. In 1935 or 1936 this succession was confirmed in an unpublished Reich law which was signed by all the ministers. On 1 September 1939 Hitler announced this law in the Reichstag. In this way the successorship of Goering became known to the German people.

Goering's task of deputizing for the Fuehrer in the Government was to apply only in the event of Hitler's being incapacitated by illness or absence from Germany-this occurred when in March 1938 Hitler spent a few days in Austria. During Hitler's presence, that is, as long as Hitler exercised office himself, Goering derived no special powers from the deputyship. In this instance his authority was limited to the offices directly under him, and he was not entitled to issue any official directives to other offices. From this follows that, although the second man in the State, Goering could neither rescind, nor change, nor supplement Hitler's orders. He could give no orders whatsoever to offices of which he was not directly in charge. He had no possibility of giving any binding orders to any other office, whether it were an office of the Party, the Police, the Army, or Navy, nor could he interfere in the authority of those offices which were not his own.

This position as second man in the State cannot, therefore, be judged as especially incriminating for Goering; nor is it qualified to serve as a basis for the assumption of a conspiracy.

The Defendant Goering never participated in the drafting or execution of a Common Plan or Conspiracy which was concerned with the crimes stated in the Indictment.

As already emphasized, the participation in such a conspiracy presupposes in the first place that such a common plan existed at all and that, therefore, the participants had the intention and were agreed to carry out the crimes of which they are accused. These presuppositions are not in evidence in the case of Goering. In fact, one may assume the contrary. It is true that Goering wanted to do away with the Treaty of Versailles and to secure again a position of power for Germany. But he believed he could obtain this goal, if not with the legal means of the League of Nations, at least with

517

5 July 46

political means alone. The purpose of rearmament was only to give more weight to the voice of Germany. The Weimar Government, which could not even express the self-determination of the Germans after 1918 in the surely very modest form of a German-Austrian customs union, though they advocated this determination themselves, owed the lack of success of their foreign policy, in Goering's opinion just as in Hitler's, mainly to the lack of respect for the German means of imposing power. Goering hoped, strengthened in his belief by Hitler's surprising initial successes, that a strong German army by its mere existence would make it possible to secure German aims peacefully, as long as these aims kept within reasonable limits. In politics a state can only have its say and make its voice heard if it has a strong army to back it up, which demands the respect of other states. Only recently the American Chief of Staff, Marshall, said in his second annual report that the world does not seriously consider the wishes of the weak. Weakness is too big a temptation for the strong.

There was no arming for an aggressive war; not even the Four Year Plan, the purpose and aim of which have been clearly explained by the defendant himself and by the witness Korner, was aimed at the preparation of an aggressive war.

Field Marshals Milch and Kesselring have both testified in perfect agreement that the Air Force created by the armament program was only a defensive air force which was not fit for an aggressive war and which was therefore looked upon by them as a risky proposition. Such a modest rearmament does not allow for any conclusions of aggressive intentions.

After all this it is clear that Goering did not want a war. By nature he was an opponent of war. Outwardly also, in his conferences with foreign diplomats and in his public speeches, he has expressed with all possible frankness his opposition to war at every opportunity.

The testimony of General Bodenschatz explains most clearly the attitude of Goering toward war. He knew him intimately from the first World War, and he has exact knowledge of the attitude of Goering toward war from frequent conversations he has held with him. Bodenschatz states that Goering repeatedly told him that he knew the horrors of war very well from the first World War. His aim was a peaceful solution of all conflicts and to spare the German people, as far as possible, the horrors of a war. A war was always an uncertain and hazardous thing and it would not be possible to burden with a second war a generation which had already experienced the horrors of one great world war and its bitter consequences.

518

5 July 46

Field Marshal Milch also knows from conversations with the Defendant Goering that the latter opposed a war, and that he advised Hitler in vain against a war with Russia.

In public the Defendant Goering, in his many speeches since 1933, frequently emphasized how he had his heart set on maintaining peace and that rearmament had only been undertaken to make Germany strong outwardly, thus to enable her to play a political role again.

His serious and honest will for peace can best be seen from the speech which he made at the beginning of July 1938 in Karinhall before all the Gauleiter of the German Reich. In this speech he emphasized energetically that the foreign policy of Germany had to be directed in such a way that it would under no circumstances lead to war. The present generation had still to get over the last world war; another war would shock the German people. Goering had not the slightest reason to hide his true opinion before this gathering, which consisted exclusively of the highest Party leaders. For that reason, this speech is a valuable and reliable proof for the fact that Goering really and truly wanted peace.

How deeply the Defendant Goering was interested in maintaining good relations with England is shown by his conduct at the conference with Lord Halifax in November 1937 at Karinhall, in which Goering, with full candor, put before Lord Halifax the aims of German foreign policy: (a) Incorporation of Austria and the Sudetenland into Germany; (b) return of Danzig to Germany with a reasonable solution of the Corridor problem. He pointed out at the same time that he did not want to reach these aims by war and that England could contribute to a peaceful solution.

The meeting in Munich in the fall of 1938 was arranged at his suggestion. The conclusion of the Munich Pact is essentially due to his influence.

When, due to the occupation of the remainder of Czechoslovakia in March 1939, the relations with England had deteriorated considerably because England was very angry about this step of Hitler's, which was a violation of the Munich Pact, Goering made serious efforts for the restoration of normal relations. In order to achieve this goal he arranged the meeting, described by the witness Dahlerus, with English industrialists at the beginning of August 1939 in the Sonke-Nissen-Koog. In an address he pointed out that under no circumstances must a war with England come about, and he asked those present to contribute to the best of their ability to the restoration of good relations with England.

When, after the often-quoted speech of Hitler's to the commanders-in-chief of the Armed Forces on the Obersalzberg on

519

5 July 46

22 August 1939, the danger of a war became imminent, Goering immediately-that is, already on the following day-summoned the witness Dahlerus from Sweden and endeavored, passing over the Foreign Office, to reach an agreement with England for the prevention of war on his own responsibility.

The objection was raised here that Goering had left Dahlerus in the dark as to his true intentions. His efforts were not aimed at the maintenance of peace but only at persuading England to deny to the Poles the support guaranteed to them and thus to separate England from Poland, which would enable Germany, after this separation, to exert pressure on Poland to submit to the German demands or to attack Poland and to realize her plans toward Poland without any risk. Any doubt about the honest will for peace is unjustified; the imputed intention was far from Goering's thoughts.

If this objection is substantiated by the fact that Goering did not inform the witness Dahlerus either of the content of the Fuehrer speech of 23 May 1939 or that of 22 August 1939, then it cannot be considered relevant and nothing is gained by it. Under no circumstances could Goering inform a third person-and especially a foreigner-of those strictly confidential speeches without exposing himself to the accusation of high treason or treason against his country. These speeches were all without significance as far as the task given to the witness was concerned, especially since the peculiar situation arose here that Goering-after the efforts of the diplomats had reached a deadlock-as a last resort knew of no other way out than to use his personal relations, his personal influence, and his personal prestige.

The only thing that mattered for the activity of Dahlerus was that the foreign political situation, which had become dangerously critical through the quarrel between Germany and Poland and of which the witness was fully aware, had to be straightened out by an appropriate attitude on the part of England.

That Goering's aim was not to separate England from Poland has been clearly proven by the fact that Goering, to begin with, had transmitted to the British Ambassador in Berlin, Henderson, the text of the note which contained the propositions made by Germany to Poland-propositions which were called moderate by Henderson-and that, hereby, he tried to come to direct negotiations with Poland. Poland, however, obviously did not want an agreement with Germany. Several circumstances point to that.

The conflict with Poland lasted for almost a year. Why did Poland not ask for a decision by a court of arbitration on the basis of the concluded arbitration agreement? Why did Poland not appeal

520

5 July 46

to the League of Nations? Obviously Poland did not want any arbitration regarding Danzig and the Corridor.

The utterance of the Polish Ambassador, Lipski, to the First Secretary of the British Embassy, Mr. Forbes, which was stated by the witness Dahlerus, is even greater proof of the unwillingness of Poland to come to an understanding. Lipski said he was not interested in any note or proposition by Germany; he was convinced that in the event of war there would Soon be a revolt in Germany and the Polish Army would march in triumph to Berlin. This intransigent and incomprehensible attitude of Poland obviously finds its explanation in the fact that she felt too strong and secure as a result of England's assurance. The reference to the imminent revolt makes one believe that Poland was informed of the plans of the Canaris group. There can therefore be no question of an ambiguous attitude or false play on the part of Goering.

The serious will of the Defendant Goering to maintain peace and to restore good relations with England is expressly recognized by Ambassador Henderson, who, due to his thorough knowledge of the German conditions and his connections with the leading men of Germany, summed up Goering correctly. I refer here to his book Failure of a Mission, in which, on Page 83, it says:

"I would like to express here my belief that the Field Marshal, if it had depended on him, would not have gambled on war as Hitler did in 1939. As will be related in due course, he came down decisively on the side of peace in September l938."

Lord Halifax also, according to the information he gave, had no doubts that Goering's efforts for the prevention of war were sincere.

That after the outbreak of the wary which he had wanted to prevent with all the means at his disposal but had been unable to prevent, Goering, as Commander-in-Chief of the Air Force, exerted all his strength to win the victory for Germany is not contrary to the sincerity of his will to avoid the war. From that moment on he knew only his duty as a soldier to his fatherland.

At different times Hitler made addresses to the commanders-in-chief of the Armed Forces, thus for instance in November 1937, on 23 May 1939, and on 22 August 1939. The Defendant Goering at his personal interrogation has already given extensive explanations as to the importance and the purpose of these addresses. For the question of whether the fact that he was present at these addresses might constitute perhaps a complicity in a conspiracy in the sense of the Indictment, it is important that on these occasions Hitler solely and one-sidedly made known his own opinion about

521

5 July 46

military and political questions. The participants were only informed of what possible political developments Hitler expected. The participants were never asked for their opinion nor had they even any possibility to express their criticism of Hitler's opinion. Hitler did not ask his generals to understand his orders; all he asked of them was to carry them out.

His autocratic leadership of the State was exclusively directed by the principle sic volo, sic jubeo, which he carried through to its logical conclusion. How rigidly Hitler followed this principle can be seen from the fact that after the address of 23 May 1939

as Milch stated in his testimony-he expressly forbade all participants to comment on the speech, even among themselves. That Hitler was irrevocably resolved on an aggressive war could not be deduced by the listeners of the said speeches, and they did not do so. This has been confirmed unanimously by all witnesses who were present when those addresses were given.

At that time Hitler had actually not yet planned a war. In that respect the testimony of Field Marshal Milch is very informative. When the witness, in the months following the speech of 23 May 1939, repeatedly pointed out to Hitler in personal reports that the Air Force was not ready for action with its bombing squadrons and had hardly any stocks of bombs, Hitler refused to give an order for the production of bombs and remarked that this manufacturing was unnecessary and superfluous. Hitler persisted in this refusal, although Milch pointed out that the production would take several months. An order to that effect was given by Hitler only on 20 October 1939.

Hitler's discourse before the commanders-in-chief can be easily explained by the odd inclination of Hitler frequently to develop political ideas without ever thinking of their realization. In each case his practical policy resulted from the requirements of the actual development.

The defendant is accused of having plundered the territories occupied by Germany, thereby violating the Hague Convention concerning Land Warfare. This accusation is not justified.

During his examination the Defendant Goering has explained in detail, with absolutely noteworthy reasons, that the Hague Convention on Land Warfare dating from the years 1899 and 1907 cannot be made to apply to a modern war, since they had become obsolete and insufficient in some respects at the beginning of World War II. At the time when they were drafted, air warfare, economic warfare, and psychological warfare were still unknown. Total war, which put the entire people and the entire national economy without exception at the service of the war, was also not known. Especially,

522

5 July 46

economic warfare was not considered at all. Due to this gap, there is no international law which has been generally recognized for economic warfare. Therefore the old statement of Hugo Grotius that everything is permitted in war (God ad Anew belli necessarium est) applies to economic warfare.

Naturally, this principle only applies so far as it has not been affected specifically by a differing settlement through treaties.

The following must be said about the legal situation as it stands:

Until the beginning of World War I it was generally acknowledged in international law-in any case as far as land warfare is concerned-that the war does not affect any private legal relations between the citizens of the belligerent states, that private property on principle was inviolable, that the war would only be pursued with arms, and that the enemy civilian population would not be affected by it. This method of warfare suffered a basic change at the outbreak of World War I, when England, in the field of naval warfare, applied her interpretation of war of people against people. At that time the enemy powers resorted to the policy of paralyzing the entire German national strength, disregarding all established rules of the law of naval warfare and of neutrality law by cutting off the necessary raw materials and import of food. This new type of warfare corresponded to the Anglo-Saxon interpretation, which was joined by France at the beginning of World War I, that is, that war is not only fought against the troops in combat but against the entire population of the enemy. The citizen of the enemy state is the enemy of England; his property is enemy property, which is subject to seizure by the British Government. With this, naval warfare was not only directed against the combat forces, but also against the peaceful subjects of the belligerent enemy. This goal was achieved by the total blockade carried out by England. The Hague Convention did not contemplate a total blockade in the form in which it was carried out by England. This blockade made any supplying of Germany through neutral countries impossible.

Under these circumstances Germany cannot be blamed for applying to warfare on land the method used by England by means of her naval power.

This fact leads to the following consideration:

The rules of land warfare, according to their meaning, used to apply to land warfare. There the principle of protection of private property obtained. In naval warfare, however, private property was unprotected. Now, is it possible for the rules of land warfare with their restrictions to apply to a combined sea and land war? Would it be just that merchandise should be taken away from a party at sea who would not be allowed to touch similar goods belonging to the other party on land?

523

5 July 46

According to established international law, the principle applies now as before that private property is actually inviolable during war. This principle suffers exception only insofar as the Hague Convention on Land Warfare permits certain encroachments on private property caused by an emergency in which the state may find itself, which are deemed justified to the extent in which they appear necessary in the interests of self-preservation of the state. Within this scope, therefore, certain actions are permitted during war which are not normally consistent with the laws of war and actually contrary to international law.

By the fact that enemy warfare disregarded the established rules of naval warfare, Germany was driven into a state of economic emergency. If the enemy powers had observed this established law of naval warfare, then Germany could have supplied herself through neutral countries, and the state of economic emergency during the war would not have arisen. But since the enemy powers failed to observe the established blockade regulations, how could they expect Germany to observe the regulations on requisitioning, which form part of the rules of land warfare?

Through the action of the enemy powers Germany was thrown into a state of emergency. The prerequisite for the state of emergency within international law is, according to the prevailing theory, an existing or imminent threat of danger to the state, which it is impossible to avert in any other way and which endangers to the utmost the vital interests as well as the independence and existence of the state.

Thus, wherever the vital interests of a state are threatened in this manner there prevails a state of national emergency; this has the legal effect that such a state does not act illegally when committing a violation of international law necessary for the repulsion of imminent danger.

The economic situation of Germany became extremely precarious during the course of World War II by the action of the enemy powers. All connections with neutral countries were made impossible for Germany by the total blockade, so that supplies of raw materials necessary for the conduct of the war and of food for the feeding of the civilian population were cut off.

Germany was therefore forced, in order to support her own economy which would otherwise have collapsed, to use the stocks of raw materials and food available in the occupied territories and all other items necessary for the continuation of the war, for herself, the interests of the population in the occupied territories being given due consideration. In this, the principles established in the preamble to the Convention concerning the Rules and Customs of

524

5 July 46

Land Warfare, dated 18 October 1907, as they result from the customs existing among civilized nations, from the laws of humanity, and from the demands of public conscience, were strictly observed. A renunciation of the right to use these resources in the occupied territories would have meant the abandonment of the independence and existence of the state; it would have meant unconditional submission. An emergency involving submission during war is the supreme and most fatal emergency in the life of a nation.

By referring to the state of emergency, however, only such actions are covered which are necessary to remove a danger which could not be averted otherwise. The limitations naturally fluctuate, and it is not always easy to determine in individual cases whether a genuine state of emergency exists. Here the Tribunal will have to consider in favor of the defendant the special circumstances and the wartime conditions, which are difficult to appreciate.

It has not been proved that the defendant intentionally or carelessly infringed these limitations.

It must be left to the examination of the Tribunal whether the defendant personally can be held for a violation, possibly committed intentionally or carelessly-a violation which has been committed exclusively by him in his capacity as plenipotentiary of the Fuehrer-or whether in such a case there is only a liability of the state. The Defense are of the opinion that in this case, too, the problem concerns only a violation of international law which does not constitute personal liability.

Exceptional conditions prevailed in the eastern theater of war because there was no private economy in the East, but only a national economy strictly regulated by a central office. The juridical situation here was such that property of the enemy state could generally be claimed as war loot. For the rest, a particularly careful regulation was made, which was defined in the so-called "Green Folder." The regulations contained in this folder did not suggest any looting or annihilation of the population, as asserted by the Prosecution. Its tenor was rather the mobilization of economy and the rules for keeping it going, the seizure and the orderly utilization of stocks and traffic installations in the zones to be occupied in the course of fighting, taking into account the fact that far-reaching destruction was to be expected owing to the Russian attitude.. The folder does not contain any order or indication which might burden certain groups of the population beyond the needs of war. This decree, for which the Defendant Goering has taken full responsibility, does not furnish any reason for disapproval.

In all this one must not overlook one thing. This war was of such bitterness, such proportions, such duration and totality as the creators

525

5 July 46

of the Hague Convention certainly never had or could have even remotely imagined. It was a war in which nations fought for life or death. It was a war in which all values had changed. Thus the defendant was quite right when he declared, "After all, in a life-and-death struggle there is no legality."

From the standpoint of emergency, a justification can also be found for the deportation of workers from occupied territories to Germany. In his testimony the defendant stated in detail all the reasons which in his opinion made this measure necessary. For the rest, the counsel for the Defendant Sauckel, Dr. Servatius, will review these matters in detail. Therefore, I do not need to concern myself with further considerations in this respect.

The defendant has made a comprehensive statement in regard to the charge of spoliation of art treasures, a statement which will be referred to in order to justify his conduct. In addition it will be observed that Reich Marshal Goering was not directly engaged in the safeguarding of art treasures in Poland. Not one of these art treasures did he take for his own collection. In this respect the defendant cannot be incriminated in any way.

By order of the Fuehrer such works of art in France as were owned by Jews were temporarily confiscated for the benefit of the Reich. They were considered as derelict property, because their owners had left the country. Of these confiscated objects, with the express approval of the Fuehrer, Goering received a small part, though not for himself but for the gallery he had planned, in which he also intended to incorporate the works of art already in his possession. He wished to acquire these objects at a price estimated by French art experts, the proceeds to be distributed among the dependents of French war victims.

The juridical situation, therefore, was as follows:

The objects were confiscated by decree of the Fuehrer for the benefit of the German Reich. By this confiscation the former owners lost their right to possession and it was transferred to the Reich. Such objects as were ceded to him, Goering acquired from the Reich as their present owner. The Reich obviously saw in this a step which, though it was proved premature by the course of events, was intended to anticipate the peace treaty to be concluded at the end of the hostilities, when the final accounts would be made. This is similar to the confiscations and seizures of property carried out at present in Germany in view of the ultimate peace treaty.

Whether the Reich Government was juridically entitled to confiscate the goods and to become their owner is a moot question. A solution of the question is no longer necessary, because Goering acted in good faith in the matter of this acquisition. In his testimony he

526

5 July 46

emphasized his belief that he was entitled to acquire these things as they had been previously confiscated by a Fuehrer decree. In consideration of these facts there cannot be any question of looting.

In any event there can be no objection to the purchasing of articles in the course of normal business transactions, which the defendant was offered spontaneously, the sellers being only tot eager to dispose of them in view of the good price they received The same applies to objects which the defendant acquired through a voluntary exchange, in which the other party to the contract enjoyed the same rights as himself.

I will now deal with the accusation of the shooting of 50 officers of the British Air Force after their escape from the prisoner-of-war camp Sagan.

The Indictment reads as follows: "In March 1944, 50 officers of the R.A.F., who had escaped from Stalag Lust III in Sagan, were murdered after their recapture." According to a later declaration of the Prosecution the circumstances were as follows: During the night of 24 to 25 March 1944, 76 officers of the R.A.F. escaped from the prisoner-of-war camp Stalag Lust III in Sagan. 50 of these officers were shot by the Security Service after they had been recaptured.

Investigation must bear on the following points: Who gave the order for the shooting? Did Reich Marshal Goering play any part in this affair? Did he actually take part in the drafting of the order to shoot these 50 airmen? Did he approve the measure, although ii was a grave offense against Paragraph 50 of the Geneva Protocol dealing with the treatment of prisoners of war?

The Prosecution states that the Defendant Goering collaborated in the drafting of this order. It referred, among other things, that the reports which Generalmajor Westhoff and Criminal Counsellor Wielen drew up while they were in British custody. But the interrogation of these witnesses in Court, as well as the bringing forward of further evidence, which has been so carefully gone into before the Tribunal, has shown in the meantime that the previous statements Of Westhoff and Wielen were inaccurate, and in respect ~ Goering's presence at the conference and his knowledge of the shooting order were only based on suppositions which had their roots in the fact that it was a question of a prisoner-of-war camp for airmen. The result of the evidence was as follows:

At this general conference on 25 March 1944 Himmler reported the escape of the 76 officers to the Fuehrer. For this Hitler severely reprimanded Field Marshal Keitel. He considered the event a great danger to public security, since the escaped officers might assist the 6 million foreigners in Germany in the organization of an armed

527

5 July 46

revolt. Then Hitler gave the order: "The prisoners will remain with Himmler." Keitel definitely refused to hand over to Himmler the 15 officers who had already been recaptured by the Armed Forces and returned to the camp, and these officers remained unharmed.

At this general conference in the presence of Keitel, Hitler did not order the shooting of the prisoners who were to remain in Himmler's hands. Neither Keitel nor Jodl expected such measures. Jodl expected the escaped prisoners to be sent to a concentration camp for some time. Keitel and Jodl agree in their testimonies that Reich Marshal Goering did not attend this meeting. Therefore, it cannot possibly be correct that Field Marshal Keitel declared in a conversation with General Westhoff that he had been reprimanded by Goering at the general conference on account of the prisoners' escape.

General Koller has testified that General Korten assured him over the telephone, about the end of March or beginning of April 1944, that the Luftwaffe, that is, the Reich Marshal and Korten himself, were not involved in the order and had only been informed of it later. Furthermore Koller testifies that the Reich Marshal was extremely angry about the shooting. These statements are completely in accordance with the declarations of Reich Marshal Goering, who was on vacation at the time of the conference with Hitler. The fact of the escape reached him only through a telephone report by his adjutant. It was only after his return from vacation, some time around Easter 1944, that he learned through his Chief of General Staff, Korten, about the fact that shootings of prisoners had taken place. Reich Marshal Goering was much upset about this last report because he condemned the deed in itself and, moreover, feared reprisals for his own airmen. Upon inquiry, Himmler then confirmed the executions to Reich Marshal Goering with the justification that an order to that effect had been issued to him by Hitler.

It is made clear by this conversation how the execution was possible and how its perpetration could remain concealed from the Wehrmacht. In the absence of Keitel and Jodl, Hitler issued the order to Himmler to carry out the execution and Himmler thereupon, unknown to the Wehrmacht, immediately passed on the order to the Reich Security Main Office, that is, after Kaltenbrunner's approval, to Muller or, as the case may be, to Nebe.

Not only did Reich Marshal Goering remonstrate with Himmler because he had executed the order without informing Goering, but also raised the most vigorous protest against this measure in a subsequent interview with Hitler. This resulted in heated controversies between Goering and Hitler.

As Goering strongly condemned such proceedings, he requested shortly afterward that the prisoner-of-war camps be taken in

528

5 July 46

charge by the OKW. On being questioned Field Marshal Keitel confirmed, as a witness, that a few weeks after the occurrence he received a letter from the General Quartermaster of the Luftwaffe, in which the Luftwaffe requested the taking over of its camps by the OKW.

This result of the examination of evidence, correcting the initial statements of the witnesses Westhoff and Wielen, which are contradictory in many respects, as well as Keitel's earlier declaration of 10 November 1945, also justifies the assertion that Reich Marshal Goering was in no way involved in this affair, that he condemned it most severely when he was informed of it, and that he, therefore, cannot be called upon to answer for this extremely regrettable and reprehensible order, which it was not within his power to prevent.

The Prosecution has gone on to the question of "lynch law" as resorted to by the German population in isolated cases in 1944 when enemy airmen had been shot down. For these occurrences, the defendants, especially Reich Marshal Goering, are held responsible. The charge that the Defendant Goering or the Wehrmacht are in any way involved in this action, that they issued orders or instructions to this effect or even merely approved the action, is seen to be entirely unjustifiable. The examination of evidence in this case has thoroughly cleared up the matter in favor of the defendant.

To support their charges against Reich Marshal Goering, the Prosecution invokes first of all a protocol of 19 May 1944 (Document L-166) concerning the so-called "Hunting Conference" which was held on 15 and 16 May 1944 under the direction of the defendant.

Numbered as Item 20 of this memorandum is a statement by the defendant saying he would suggest to the Fuehrer that terrorist enemy airmen be immediately shot at the scene of their offense. The defendant most definitely denies having made any pronouncement to this effect and justly points to the following circumstances which belie any such statement: The session lasted for 2 days, and numerous technical and organizational questions were discussed The question touched upon in Item 20 had nothing whatever to do with the agenda for the rest of the session, least of all with the purpose of the session. The remark is placed in the midst of themes which deal with matters of an entirely different nature and has no point in this connection. Besides, Goering, had he approved and wished it, could himself have immediately issued such an order without further ado, as he knew the Fuehrer's attitude on this point

The decisive fact is that the statement is in the sharpest contradiction with the fundamental attitude of the defendant. He always stood for the view that the enemy airman who was shot down was a comrade and must be treated as a comrade, a fact which I have already remarked upon in another connection. Moreover, in the

529

5 July 46

question as to how terrorist airmen were to be treated, he defended his position with all frankness against the conception held by Hitler and made no secret to Hitler of his entirely different opinion.

In view of this unwavering attitude and its resulting policy, it is utterly out of the question that he should suddenly have urged Hitler to issue the above-mentioned order against the terrorist airmen-an order which he opposed with all his might and the execution of which he sought to prevent by every means as soon as it came to his knowledge. And he did succeed in fact in preventing the execution of this order. If the terrorist airmen were actually discussed at the conference, this discussion could only have occurred with the implication that the Fuehrer suggested such a measure.

With reference to the minutes, the following general remarks must be added: They consist of summary notes by a young officer, stretching over a two-day session during which there had been a great deal of talking and discussion. Experience acquired in many other cases has shown that such recordings are often very unreliable and have even at times reproduced the subject of the discussion in an utterly distorted form, precisely because the person taking notes- especially when several participants were present and talking at random-could not follow the course of the discussion and consequently did not reproduce the substance of it accurately, especially when, in addition to this, he was mixing up the people; this explains many factual errors as well as the inadequacy and unreliability of such records. The minutes were never submitted to the defendant. He has not therefore been able to verify their contents nor to correct their errors.

Records of this sort, which were taken down in the way described above and which are not submitted for perusal and approval by the parties concerned, are worthless in the production of evidence. They cannot in themselves alone serve as an adequate means of proof either to charge or convict the defendant. They can, therefore, only be made use of to the detriment of the parties implicated when the content matter is confirmed by other material brought for evidence from sources other than these minutes. In the present case there is no confirmation from other evidence that Goering actually made the statement contained in Item 20 or made a request to Hitler to that effect.

The note dated 21 May (Document 731-PS) fails to provide support for the claim. The note, "General Korten, according to a speech by the Reich Marshal, reports . . ." cannot, in view of the defendant's uncontested statement, possibly mean that the Reich Marshal delivered an address on this matter in Hitler's quarters but solely that Korten reported on this subject to the Reich Marshal and that Korten informed the Reich Marshal of Hitler's order.

530

5 July 46

The rest of the examination of evidence has made it clear beyond doubt that Goering was against a special treatment of enemy terrorist airmen who had been shot down and that he opposed Hitler's order.

The witness Colonel Bernd von Brauchitsch pointed out during his interrogation on 12 March 1946 that in the spring of 1944 there was a sudden increase in losses among the civilian population through machine gun attacks by enemy airmen. These attacks by enemy airmen were directed, within Germany, against civilians working in the fields, secondary railway lines without any military importance, and against pedestrians and cyclists. This constituted a gross violation of the Hague Rules of Land Warfare, according to which any combat act against the noncombatant population of the country is prohibited; and any attack or shelling of open cities, villages, residences, or buildings is forbidden.

According to the opinion of the witness Von Brauchitsch, this behavior, which quite evidently violated international law, caused Hitler to order specific measures against these aviators, besides general defensive measures. In this regard Hitler advocated, as far as it is known to the witness, the most severe measures; lynch action was to have a free run.

This attitude of Hitler toward the violations of international law by enemy aviators, however, did not meet with the approval of the Armed Forces, especially not with that of Reich Marshal Goering and his Chief of Staff, General Korten. Both of them did condemn to the utmost the attacks of enemy aviators, which were exclusively directed against the defenseless civilian population. However, they nevertheless opposed the handing over of defenseless, shot-down aviators to the aroused mob for lynch action; and they did not consider such measures to be an appropriate means of combating this conduct, however much in violation of international law.

The witness General Koller expressed himself to the same effect. Early in June 1944 General Korten informed this witness of the fact that the Fuehrer intended to decree an order to the effect that terrorist aviators were to be surrendered to public fury.

In the course of repeated conversations the witness Holler and General Korten arrived at the opinion that the conception of the Fuehrer must be rejected. They certainly considered the direct attacks of low-flying enemy planes on individual civilians, women and children, concentrations of civilians, school classes and kindergartens out on walks, farmers at work in the fields, as well as attacks on public passenger trains and hospitals, to be ruthless. However, the two did not see a way out or a solution of the difficult problem in the Fuehrer's order. They were of the opinion that such an order was contrary to basic military conceptions, the Articles of War, and international law, and that it would give rise to numerous evils through which both enemy and German crews would come to harm. And finally such an order might exercise, by its effects, a harmful influence on the morale of German crews.

All these reasons caused the Armed Forces to reject Hitler demand, and their attempts were now directed toward preventing the conception of Hitler from being put into practice. The witness Von Brauchitsch credibly states that the

531

5 July 46

Armed Forces now looked for a way out finally found in the fact that the higher command levels were deceived by measures which were not actually carried out.

The witness Von Brauchitsch was ordered by Reich Marshal Goering to define in discussions with the OKW the concept of terrorist aviators. In the subsequent discussions and exchanges of correspondence those cases were mentioned which represented violations of international law and which were to be considered criminal acts. By this definition of the concept, lynch law was to be prevented. The exchange of correspondence, which lasted for quite a long period of time, showed the tendency of the office to protract the matter as much as possible.

The witness Koller is justified in emphasizing that this exchange of correspondence shows every sign of a "delaying action to gain time," that is, those concerned either did not want any decision or at least wished to postpone it as long as possible.

In particular the marginal note on Document D-785, Exhibit GB-318, "No answer to be obtained from Commander-in-Chief of the Air Force," admits of the conclusion that the Reich Marshal purposely wanted to prolong the matter. Furthermore Reich Marshal Goering, as can be clearly seen from the letter of 19 June 1944, maintained the opinion that in every instance he considered legal procedure against terrorist aviators as definitely necessary. Where it is stated in a subsequent document of 26 June 1944, "The Reich Marshal agrees with the formulation as communicated defining the concept of terrorist aviators and with the suggested procedure," such agreement with the procedure refers exclusively to the procedure of publication suggested in the final paragraph of the letter of 15 June 1944, for which Reich Marshal Goering's approval had been requested. That Reich Marshal Goering until the end of the war maintained the old aviator standpoint, according to which enemy aviators, once they have been shot down, are to be considered and treated as comrades, was not only expressly deposed by the witness Field Marshal Milch, but is also emphasized by General Koller in the following words:

"Notwithstanding occasional expressions of displeasure, the attitude of the Reich Marshal always remained correct and chivalrous in accordance with the flying tradition which he had retained from the first World War and frequently emphasized. In understandable anger about great difficulties in air defense, and pressed by the Fuehrer, he perhaps once in a while used harsher words which were quickly forgotten."-And the witness does not know of any case-"in which such a fit of ill-humor caused the Reich Marshal to take incorrect or harsh measures against members of the enemy air forces."

The behavior of the Air Force as a whole was also correct and humane at all times. To fight chivalrously was a matter of honor with the German aviators. The Air Force as well as the Defendant Goering retained this point of view, although as Koller expressly mentioned, the flying personnel felt extremely bitter over the strafing attacks on German crews suspended on parachutes and individual hotheads spoke of equal measures as reprisals.

The best testimonial for the exemplary comradely behavior of the Air Force even toward an enemy who did not observe the rules of warfare can be seen clearly from the description of the witness Koller about the establishment of a maritime life-saving service of the Air Force, which brought aid to Germans and enemies in equal measure and which carried on despite enemy attacks in violation of international law.

It can thus be said that the Armed Forces and the Defendant Goering rejected lynch law, as well as all procedure against the

532

5 July 46

terrorist aviators not in accordance with legal regulations, and did not issue any orders to troops under their command; in no case have enemy aviators been shot by the Air Force or by the Army, or handed over to the Security Service (SD).

The Prosecution accuses the Defendant Goering of having established a reign of terror in Prussia immediately after 30 January 1933 in his capacity as Prussian Minister of the Interior and soon afterward as Prussian Prime Minister, in order to suppress all opposition against the Nazi program. In order to carry out his plans he had used the Prussian police, which he had ordered as early as February 1933 to protect the new government by proceeding ruthlessly against all political opponents without consideration of the consequences. In order to safeguard and consolidate power, he had created the dreaded Secret State Police and established concentration camps as early as the spring of 1933.

To these accusations the following is to be said:

All this was only natural and cannot serve as an accusation against the defendant; rather would it have been a severe violation of the duties entrusted to him, if he had not devoted himself with all his strength to the safeguarding of the new government and taken every imaginable precaution in order to make any attack on this new government impossible from the very beginning. In order to achieve this goal, the first step concerned the police institutions.

It only remains to be examined whether the means which the defendant considered it necessary to apply were objectionable. The question must be answered in the negative because of the following considerations:

In every state the police is the inner-political instrument of power; in every state its task is to support the government, to protect it in every direction and to render the disturber of the peace and the violator of the law harmless, if necessary, by force of arms. The defendant assigned these tasks to the police under his direction, whom he ordered, in the speech mentioned by the Prosecution, to act energetically and to fulfill their duties conscientiously. Why such an appeal for the performance of duty should not be permissible is incomprehensible.

In his interrogation the Defendant Goering described expressly for what reasons and along which lines he considered a reorganization of the police necessary, and these directives cannot be objected to.

I should like to point out in this connection that according to the prevailing rules of international law a sovereign state has a right to regulate its internal affairs as it deems fit. The reform of the police is an exclusively internal affair. The violation of

533

5 July 46

generally recognized rules of international law is, therefore, out of question in this respect.

A political police was also in existence in Prussia before the assumption of power. Before 30 January 1933 it was called Police Department Ia, which among other things had to watch and to combat political adversaries, at that time the National Socialists and Communists in particular. Such a police, dealing with the same tasks, was also needed after the assumption of power in order to protect the new state against attacks which threatened it, in particular from the very strong Communist Party.

In order to make clear that this department of the police was charged exclusively with safeguarding the state against enemies of the state it was named "Secret State Police."

As long as the Defendant Goering was head of the Police-this was, in fact, the case only until 1934, when Himmler was put in charge-he strictly confined himself to the tasks prescribed to him and did not transgress his authority, and no misuse of power worth mentioning occurred. Nor has the evidence produced shown anything against the Defendant Goering for this period of time. Should, at a later date, the Secret State Police have transgressed their authority and committed illegal acts, the defendant had no knowledge of it and did not approve of it. For mistakes and crimes committed by his successors, which remained unknown to him, he cannot be held responsible.

Now there appeared before the Court a witness whose testimony was very incriminating for the defendant. This was the witness Dr. Gisevius. The defendant refuses to deal with this witness and his statement. He merely wishes to point out that this statement is untrue in all points which incriminate him. The conclusiveness of the witness's statement depends on whether he is considered to be credible or not. Dr. Nelte has agreed to deal with this question extensively, so that, in order to avoid reiterated statements, I shall refrain from further declarations.

Naturally, the assumption of power by the National Socialist Party met with some resistance, and in particular the leftist parties were anything but satisfied with the situation thus created. The opponents were by no means weak either numerically or in the means at their disposal. The new rulers were, therefore, apprehensive of serious danger to their power if they allowed the opposition parties to continue their activity without hindrance; accordingly they had to take preventive measures against such dangers in good time. In order to stabilize their own power and to nip in the bud any possible source of unrest, the Defendant Goering considered it necessary for reasons of state to arrest at one blow

534

5 July 46

both leaders and officials of the Communist Party and its organizations. The defendant himself has spoken at length explaining his reasons for such acts. For the removal of danger and to insure the safety of the state, the measures taken by the defendant were, for the Government, a necessity caused by the unrest of the time. Since it was a preventive measure, it was not requisite before a provisional arrest that a criminal act against the Government had already been committed or was obviously on the verge of being committed. The fact of membership in itself and previous activity in that party was sufficient to warrant arrest as a political act of self-protection on the part of the Government.

Such considerations very soon after the assumption of power led to the establishment of concentration camps, of which there were two at the time when the Defendant Goering was at the head of the Police. The purpose of such camps was to hold temporarily politically unreliable persons, who might be of danger to the new state, until they had either adapted themselves to the new political conditions or until the power of the state had become so great that such persons could no longer endanger it.

The legal basis of this institution was the Reich Presidents decree of 28 February 1933 for the protection of people and state. Reich President Von Hindenburg issued this decree on the basis of Article 48, Paragraph 2, of the Reich Constitution, in order to prevent Communist armed risings dangerous to the state; accordingly, the decree was perfectly constitutional. The decree temporarily suspended certain constitutional rights and declared legal, among other things, the restriction of personal liberty.

The establishment and use of concentration camps was founded, according to the defendant's ideas at the time, on the revolutionary conviction inherent in the victorious Movement that it was the sole expression of historical truth, that it alone represented the right path, and that therefore everything was wrong that stood in its way.

There was no political discussion of the right political concept based on logical arguments, as in ideologically neutral liberalism; there was only the totalitarian establishment of' a popular regime based on Creed as the historically necessary truth.

Any person not caught up by this Movement but, on the contrary, opposing it, was therefore to be removed as an enemy of the true order. Under such conditions, the person concerned could not simply be punished for an infringement of' special rules in the traditional course of Justice; but, according to the opinion of' the National Socialist Government, he deliberately segregated himself from the newly found community of the people and from every foundation for any legal institution. He had therefore to be removed. There was, accordingly, no question of punishment but of a political purge based on ideological intolerance. Therefore no tribunal or administrative procedure was allowed on behalf of the persons concerned for the examination of the police proceedings. The individual who excluded himself from the community was not entitled to legal guarantees which the Constitution provided for his fellow countrymen. And a fellow countryman was ho only who recognized such a community. In handling enemies of the people not only legal principles were applied, but also the viewpoint of the necessities of state.

Since it was an act of political expediency, the Defendant Goering could decide in some eases on his own responsibility that there was no necessity for further confinement and could use all his influence to procure the liberation of individuals who did not endanger the security of the state. In that ease it was not a question of an act of grace breaking through any legal principle, neither was it

535

5 July 46

tantamount to an acknowledgement of an injustice done to the other persons concerned; it simply was an act undertaken from the point of view of expediency, each ease being decided on its own merits.

Such principles in handling elements which fail to fit into a totalitarian political rule are by no means specifically National Socialist; they also dominate the policy of the victor countries toward the conquered German population. Anyone who does not obey the newly arising democratic order in Germany, even anyone of whom an essential opposition to democracy can be expected because he was grounded in National Socialism before, is now interned. Whereas-according to Document R-129 of the Prosecution-21,000 people were in concentration camps at the beginning of the war in Nazi Germany, more than 300,000 National Socialists and militarists are held in internment camps in the U.S. Zone alone, according to figures published by the occupation powers.

A recently published decree of the Landerrat in the American occupation zone confirms the fact that such acts of political purging are not legal but political acts. This decree removes from the authority of the administration of justice and transfers to the authority of the general administration of the State all workers' camps in which are interned Nazis who have been sentenced to forced labor on account of their Party membership; and this decree is issued because these camps are foreign to the administration of justice.

Those were the only considerations which influenced the Defendant Goering when he created concentration camps in 1933 and issued laws concerning the Secret State Police. These were intended to be, as he conceived them, a means of cleansing and strengthening the young community of the people. He did not aim at a definite annihilation of political enemies but, after a certain period of education, interceded generously for their release and discharged, at Christmas 1933, about 5,000 and in September 1934 about 2,000 prisoners.

He vigorously counteracted inevitable abuses and errors which he openly admitted in the book he published in 1934, intended for the British public, The Building of a Nation. For example, he permitted the Communist leader Thalmann personally to report to him about his complaints in the concentration camp and took care to have them remedied. He dissolved the so-called "wild" camps of Stettin and Breslau, punished the Gauleiter of Pomerania who had organized this camp without his knowledge and against his will, and had those responsible for these "wild" concentration camps brought to trial for their infringements of the regulations.

This attitude of the Defendant Goering denotes that he never intended the actual physical annihilation of the prisoners. If the Prosecution establishes that this was all in execution of a conspiracy which aimed at committing Crimes against Humanity, such an interpretation has no bearing on the actual political life during the years in question. Such a conspiracy did not exist, nor was it the intention of the defendant to commit crimes against the principles of humanity, nor did he commit any such crimes. As one of the political trustees of the German Government, he felt himself bound to safeguard it against dangerous disturbers of the peace and thereby to guarantee the future of the National Socialist way of life. Far from looking upon such measures as criminal, he considered

536

5 July 46

them, on the contrary, to be the inevitable means of consolidating the political order as a basis of all law.

In 1936 the leadership of the Police, and therefore the management of the concentration camps, passed from the defendant to the Reichsfuehrer SS, Heinrich Himmler. The defendant cannot be held responsible for the subsequent development of the concentration camps nor for the fact that they became, especially after the outbreak of the war, more and more gruesome places of torture and death and led-partly intentionally, partly on account of the chaotic war conditions-to the death of countless people and finally, in the last days before the breakdown of Germany, turned into one vast graveyard.

Certainly he knew that there still were concentration camps, also that the number of inmates had risen because of war tension and that they contained foreigners because of the expansion of the war machine over all of Europe; but the terrible happenings which have been disclosed in this Trial were unknown to him. He knew nothing of the inhuman experiments which were being carried out on inmates in misinterpretation of true scientific methods. The testimony of the witness Field Marshal Milch has shown that the Luftwaffe was not interested in these experiments and that the defendant personally did not learn anything specific at all about this matter.

By no means did the establishment of concentration camps as such have anything to do with the later extermination of Jews, which apparently originated in Heydrich's and Himmler's brains and was kept secret in a masterly manner until it was disclosed after the collapse as the horror of Auschwitz and Maidanek.

This brings me to the Jewish question. The Defendant Goering has explained in detail his views on the Jewish question during his interrogation as witness; furthermore, he has shown in all detail the reasons which influenced the National Socialist Party and, after the seizure of power, the State, to take a hostile attitude toward the Jews.

The defendant is reproached for having promulgated the Nuremberg Laws in 1935, which were intended to keep the race pure, and for having, in his capacity as Delegate for the Four Year Plan, issued decrees during the years 1938 and 1939 which had as their aim the exclusion of Jews from economic life. Furthermore he is blamed for a number of other laws which meant a one-sided and serious intervention into the legal sphere of Jews.

The legal reason for this reproach is obscure. For this deals with a purely domestic problem, namely, the regulation of the legal status of German subjects; according to internationally recognized legal opinion at that time, the German Reich as a sovereign state

537

5 July 46

was free to settle such a matter. Even if these encroachments were harsh and the limitations of citizenship rights extremely severe, they nevertheless in no way represent an offense against humanity.

Legal provisions which limit a certain race or a certain circle of citizens in their legal position have been made by other states without offense being taken at such measures and without other states considering themselves bound to intervene. Reich Marshal Goering always rejected any illegal or violent action against Jews. This is clearly shown by his attitude toward the action against Jews during the night of 9 to 10 November 1938, instigated by Goebbels, of which he was informed only after the deed had been done and which he condemned most severely. In this respect he raised serious objections with Goebbels and Hitler. On this matter, the precise statements of the witnesses Bodenschatz and Korner are available. The testimony of Dr. Uiberreither shows how greatly Goering disapproved of this action. According to the former, the defendant summoned all Gauleiter to Berlin several weeks after this incident and in an address sharply censured this violent action, which was not in keeping with the dignity of the nation and which caused serious damage to German prestige abroad. That the defendant was no race fanatic became generally known by his expression, "I decide who is a Jew." It has been established sufficiently that he aided many Jews.

About a biological extermination of the Jews he learned only at the end of the war. He never would have approved such a measure and would have opposed it with all his might. For he had too much political insight not to recognize the tremendous and at the same time senseless dangers which would perforce result for the German people from such a brutal and horrible act of extermination. Goering had already made it clear in the above-mentioned speech to the Gauleiter that he did not wish to fall foul of the world public and world opinion because of the treatment of the Jews. It is therefore out of the question that Goering should have approved of such an undertaking or participated therein in any manner, although it is natural that it should be put to the defendant that he must have been informed about such horrible measures as the second man in the State.

Furthermore it is no wonder that the statements of the defendant that he knew nothing of these atrocities should meet with a certain amount of distrust. Despite such doubts, however, the defendant insists that no information about such acts ever reached him.

This ignorance of the defendant, which can be completely understood only by one familiar with German conditions, may be explained from the fact-and this is the sole solution of the riddle- that Himmler, as was also emphasized by General Jodl during his

538

5 July 46

interrogation, knew truly masterfully how to keep his actions secret, to obliterate all traces of his atrocities, and to deceive the surrounding world and even his and Hitler's closer entourage. In this connection I also refer to the testimony of the witness Hoess, who confirms Himmler's instruction concerning absolute secrecy toward everyone.

The question may come up here: Did not a legal obligation exist for the defendant to make investigations about this matter and to get reliable information as to the true whereabouts of supposedly evacuated Jews and as to their fate? And what legal consequence results if he negligently refrained from investigating and by such negligence violated his legal obligation to act, incumbent on him by virtue of his position? The decision of this extremely complicated question of law and fact may be considered a moot question, because Goering, even as the second man in the State, did not have the power to prevent such measures if they were carried out by Himmler and were ordered, or at any rate approved, by Hitler.

Mr. President, yesterday I already stated that I still wished to deal with the Katyn case; and I intend to do so now, before I go on with my conclusion. I am sorry I was not able to get any translations because the testimony was only given a few days ago. However, this matter is not very long. The interpreters have a copy. I shall begin with this report now.

A detailed opinion has still to be given on the Katyn case, in which the taking of evidence was concluded only a few days back. The Russian Prosecution based their indictment on the findings of an investigation which is set down in Document USSR-54. The following conclusion is drawn from the entire evidential material as presented: ,

(1) Polish prisoners of war, who were in three camps west of Smolensk, were still there in these three camps when the Germans came into Smolensk, up to and including September 1941.

(2) In the Katyn forest German occupation troops undertook the mass shootings of the prisoners of war from the aforesaid camps in the autumn of 1941.

(3) The mass shooting of the Polish prisoners of war in the Katyn woods was carried out by the German military authorities who had camouflaged themselves under the code name "Staff of Construction Battalion 537" at whose head was Lieutenant Colonel Ahrens, together with his collaborators First Lieutenant Rex and Lieutenant Hodt.

The question is, did the Prosecution prove this accusation? This question must be answered in the negative. No confirmation of guilt can be found from the contents of this document. The accusation is

539

5 July 46

made against a definite military unit and names specific officers. The time mentioned for the perpetration of this deed is September of 1941. The Katyn forest is given as the scene of the crime. In view of the scanty facts, which considerably restricted the accusation, it was merely the task of the Defense to prove that this assertion would not bear examination.

First of all, let us consider the persons involved. Colonel Ahrens, who is obviously the Lieutenant Colonel Ahrens mentioned, is eliminated as the perpetrator because this deed is said to have been committed in September 1941, while Ahrens did not take command of Regiment 537 until the end of November 1941. He arrived only at that time at Katyn and had never before been in the eastern theater of war. Before Ahrens, Colonel Bedenck was in command of the regiment and he joined the regimental staff in August 1941. Before Bedenck, First Lieutenant Hodt took lodgings in the little Dnieper castle in July 1941, immediately after the capture of Smolensk. He came with an advance unit of the 537th Regiment and remained there until the arrival of the regimental staff, to which he was not yet attached at that time. He was transferred to the regimental staff only in September 1941, and from that time on he lived permanently in the little castle.

Special facts which would incriminate Hodt or Bedenck cannot be derived from the document which has been submitted, and such facts have not been presented here. Therefore, it is not proved that Bedenck and Hodt could be considered as perpetrators.

The following circumstances contradict the theory that Unit 537 or any other military unit had participated in this act. The Polish prisoners allegedly fell into the hands of the Germans in the three camps west of Smolensk. Thereby they would have become German prisoners of war. The fact that they had been captured would have had to have been reported to Army Group Center. Such a report was not made, as testified by the witness Eichborn. Considering the tremendous number of prisoners, it is quite out of the question that anyone could inadvertently have failed to make a report of that nature. Apart from that, the capture of 11,000 Polish officers could under no circumstances have been concealed from the Army Group. As results from the testimony of General Oberhauser, the Army Group never had any knowledge of this.

From the statements of the two witnesses, Eichborn and Oberhauser, it can be concluded that at the time of the capture of Smolensk by the Germans there could not have been any Polish officers present in these camps. Moreover, no eye witnesses who saw the officers after that date were interrogated by the Russian commission. The railroad employee who was interrogated on this subject knows nothing from his own observation.

540

5 July 46

Now, allegedly these 11,000 prisoners were taken from the camps to Katyn. The transport of so many Polish prisoners could not have been concealed from the Russian population even if the transport had been carried out most unobtrusively and secretly, nor could shootings on such a large scale have taken place without the Russian population taking notice of them.

Even though this little wood was blocked off, at a distance of about 200 meters there was a public highway open to traffic, and this highway was used daily and to a great extent by the Russian civilian population. Anything that took place in the little wood of Katyn could be seen from this highway.

In the direct vicinity of the Dnieper castle there were isolated homesteads which remained occupied by the owners during the whole time of the German occupation, and there was constant contact with the regimental staff. There are no reliable statements and testimony dealing with either transport or the observation of shootings. The Germans would hardly have chosen the site on which the graves were found for such a mass execution. Owing to its situation between the main road and the regimental quarters, this site was quite unsuitable for such a misdeed. As I have already stated, there was lively traffic not only on the near-by road, but also in the direct vicinity of the graves which were near a small road connecting the regimental headquarters with the main road. The executions could also have been observed by soldiers who had nothing to do with it. Even the unit selected to carry out the deed would have been very unsuitable. A technical unit, such as a signal corps unit, is the least suitable for such a task.

The witnesses Eichborn and Oberhauser did not move into these quarters near the site of the deed until 20 September 1941, and they can only testify as to what they themselves observed from that date on. But from the end of July there was an advance unit near the castle and from August, a regimental staff. It is, however, quite out of the question that in this span of time or perhaps 6 weeks this act could have been perpetrated. The few people who were available were so overburdened with military tasks that in this short time it would have been quite impossible for them not only to kill 11,000 prisoners, but also to remove the bodies.

According to the statement of the Prosecution, Russian prisoners of war allegedly helped to remove the bodies. That has not been proved. None of the Russian population had ever seen such prisoners. In no case could all traces of the deed be effaced so quickly and the scene so speedily cleared that the witnesses Oberhauser and Eichborn on their frequent trips to the Dnieper castle would not have noticed some suspicious signs.

541

5 July 46

The testimony of the witness who was heard here is not sufficient. He merely heard a story of such shootings from a certain Menchagin who cannot be found now. This witness did not make any personal observations. He himself did not see any Poles. He was told by students that they had seen Poles but they did not know the number of Poles or where they were being kept. Testimony which is so scanty in every respect is worthless, and the testimony given by the two doctors heard as witnesses is not adequate for use in the sense of the Indictment.

Within the scope of the evidence admitted by the Tribunal, it would not have been possible to clarify completely all the medical questions which were decisive for the experts in the facts you have established. Therefore, the Defense has also refrained from calling a medical expert to exonerate the defendant.

There is one thing, however, which must not be overlooked in this connection. The expert opinion obtained by the German Government was given by 12 members of a commission of leading representatives of legal medicine from European universities, while the expert opinion referred to by the Prosecution was deposed by a group of Russian experts only. The first expert opinion should be given preference since it was compiled by experts who were completely nonpolitical.

Now, the witness Professor Markov in his examination went back on the opinion contained in the report of 30 April 1943. He claims that already at that time, due to his findings upon making an autopsy on the bodies, he failed to agree with the report that the shooting took place in the months of March and April 1940. However, this testimony must be met with considerable misgivings. The witness could give no plausible explanation why, in view of his opinion, he did not lodge an immediate protest against the version of the report of 30 April 1943 or refuse his signature, nor why, at least, he later...

THE PRESIDENT: [Interposing] Dr. Stahmer, you realize, of course, that you have not offered in evidence the report of this German commission. You expressly refrained, as I understand it, from offering the report of the German commission. And you...

DR. STAHMER: Mr. President, that is a mistake. I did not refrain from doing so. I was not permitted to submit the White Book, but I was permitted to submit the report of 30 April 1943. However, I could not submit it immediately, for it was contained in the White Book and I was to have copies made. These copies were made and submitted. I used some of the passages from the protocol, with the express approval of the High Tribunal.

542

5 July 46

THE PRESIDENT: I know you did, and of course if you want to offer it there will be no objection to your offering it; but certainly I understood that you were only offering in evidence the parts which you read to the witness. That, I think, was put to you at the time you were cross-examining the witnesses on behalf of the Prosecution.

That is what I understood, but if you say that your interpretation was different and that you want to offer the whole of the report, then the matter will be considered by the Tribunal, if the Tribunal has not already considered it. ~

Are you saying that the Tribunal has already allowed the whole of that report to be offered in evidence?

DR. STAHMER: Mr. President, unfortunately the book . . .

THE PRESIDENT: Dr. Stahmer, what you are desiring to offer in evidence is the conclusion of the report or the protocol or whatever it is called, is that right? That, I take it, is not a very long document, is it?

DR. STAHMER: No, MR. President. May I explain again. I am sorry but I have not received the transcript of the session. Therefore, I do not know just what is contained in this protocol; but I do recall-and one of my colleagues confirmed this to me just now- that at the time I was permitted to submit the entire so-called report of the commission, and I quoted certain passages not only from the conclusion but from the whole report, and with the permission of the High Tribunal I proposed to submit the entire report later.

THE PRESIDENT: Well, I do not know what you mean by the whole report or what you mean by the protocol.

DR. STAHMER: Mr. President, may I describe it once more.

This was a rather comprehensive protocol which described the findings of the investigations. It contained the entire facts of the case and it concluded with a joint expert opinion. It is composed, as I have stated, of facts and reasons. It contains, first of all, a very comprehensive statement in which the facts as they appeared to the experts are described individually. For instance, that they interrogated the Russian population on the spot, checked over the site of the graves, held a post mortem-all of these things were presented by me from the record with the permission of the High Tribunal.

Mr. President, may I be permitted to make another remark to clarify these matters? I remember this incident quite particularly because you, Mr. President, first mentioned it and asked whether I had another copy of this protocol. I answered, "No, I have only the White Book." Then that was submitted to the witness, whereupon I suggested that the other witness be called so that in the

543

5 July 46

meantime I could have a copy made of this protocol. Then you, Mr. President, thought it had better not be so but that I should take the book and then submit a copy afterward.

THE PRESIDENT: Well, the Tribunal will look at the record to see exactly what happened.

DR. STAHMER: As I said, I did not see the transcript myself. If it was not taken down like that, then the record is not complete. However, I do remember quite clearly that that is what took place.

Tide; PRESIDENT: We will continue then.

DR. STAHMER: The statement of the witness is subject to considerable doubt. The witness could give no plausible explanation as to why, in view of his attitude concerning the form of the protocol of 30 April 1943, he did not lodge an immediate protest and refuse to sign it or why he did not at a later date at least acquaint the other experts who participated with his true scientific conviction.

Through this testimony the German experts' opinion cannot lose its weight and become weakened, especially since the other 11 experts obviously endorsed the statements set forth in this report.

Considering this state of affairs it will not be necessary to set forth the individual reasons which speak for the correctness of the statements contained in the German White Book of 30 April 1943.

The time given by the Russian experts for the shooting, that is, the autumn of 1941, is determined arbitrarily; and it cannot be true in any case for the corpses wore winter clothing, as the witness Markov noticed on the corpse upon which he performed an autopsy. The fact that ammunition for pistols of German make was found in the graves does not permit the conclusion that this shooting was necessarily carried out by Germans. In the German White Book it has already been pointed out that the German factory which produced this ammunition delivered a great deal to other countries, especially to the East.

In conclusion, it can be said that the task of this proceeding is solely to determine whether the 11,000 Polish officers were shot after the capture of Smolensk by the Germans, in other words, that this deed could have been committed by Germans. The Prosecution have not succeeded in proving this fact and therefore this accusation will have to be struck from the Indictment.

Mr. President, I come now to my closing sentences, my conclusion. I imagine it will take me roughly a little more than 10 minutes and think it would be best to give this conclusion in unbroken continuity. Either I will have to speak until after one o'clock; or, if I may be permitted to make a suggestion, the Tribunal might recess now.

Shall I continue now?

544

5 July 46

THE PRESIDENT: If you can finish in 10 minutes we will go on until you finish, Dr. Stahmer.

DR. STAHMER: I will not quite have finished in 10 minutes, and I should like to point out particularly that I would not like to have to interrupt my concluding remarks.

THE PRESIDENT: Perhaps if it would be more convenient to you-we will do whichever you like; we will recess now, if you like. It is a very hot day and we will recess now if you prefer.

DR. STAHMER: I would prefer to have the recess now. I do feel the heat a little today, Mr. President.

THE PRESIDENT: Very well.

[The Tribunal recessed until 1400 hours.]

545

5 July 46

Afternoon Session

DR. STAHMER: I come now to the summary.

In reviewing the personality and life of the Defendant Goering, the following points must be considered for the appreciation of his actions:

Provided at home with a good educational background and training in character, he was moulded decisively as a young officer and combat airman during the first World War, in which he proved his outstanding worth, receiving the highest award for bravery, the decoration Pour le Merite. He experienced the collapse of the German war effort as a consequence of, as he saw it, German treachery from within.

After the rule of the Kaiser had been overthrown, the German people wanted to give themselves a New-constitution on a democratic basis and then hoped to be able to work their way up again by industry and perseverance. In this, the confidence in the farsightedness of the victor powers of that time, and especially in the 14 points of Wilson, played a great part. But when the Treaty of Versailles utterly frustrated these hopes, the Weimar democracy fell into a serious crisis from which it was not to recover. This, together with the subsequent world economic crisis, formed the undeniable prerequisite for the fact that Hitler was able to seize power.

First, the "fight against Versailles" made his rise as a Party leader possible. Goering, as a witness, described how he agreed with Hitler at their first meeting that nothing could be achieved by written protests.

The powerlessness of the German democracy had by then become apparent to the entire world. Goering like Hitler was convinced that Germany inevitably must become a victim of Bolshevism unless it was possible to muster against it sufficient defensive strength by the re-establishment of German self-confidence at home. That Germany was also forced to take a firm stand against the Versailles powers was a matter of course. In this Hitler unquestioningly seized upon the fact that Germany belonged to the West- culturally, economically, and also politically. He believed that the Bolshevist danger, which in the first place was directed against Germany, would ultimately also threaten the Western countries. Therefore he was of the opinion that he would be able gradually to gain their recognition and support if he took up the ideological struggle against the East.

From this basic attitude alone is it possible to explain his entire policy until the actual collapse. One may rightly condemn it today as having been a failure from the outset, but one cannot ignore the

546

5 July 46

fact that initially certain things in the development clearly seemed to justify it. And this explains how Hitler succeeded in making an ever-increasing part of the Germans his followers.

Goering firmly believed that salvation could come only through Hitler. He recognized in him the born national leader who knew how to influence and to guide the masses and whose hypnotic will power shrank before no obstacle. He realized that under a democratic constitution only sum a man of demoniacal demagogic talent was able to prevail. And therefore he joined him.

Because Goering was a true and honest German, inspired only by love for the fatherland, he did not even think of using Hitler only as a tool for his own advancement. On the contrary, he took it upon himself from the beginning to recognize in him the man who alone decides, in other words, the Fuehrer, and to be satisfied with a subordinate role. Therefore the famous Air Force captain and holder of the order Pour le Merite did not hesitate to swear the oath of allegiance to the then still unknown Hitler, an oath which was to hold good for the rest of his life and actually did so. It is tragic that a struggle such as that led by Goering and Hitler could be so completely misunderstood as to be considered from the very outset as a conspiracy for the purpose of committing crimes.

His aim was at first directed towards freeing Germany from the shackles of the Treaty of Versailles. It is true that the Weimar Government had made repeated attempts to be released from the most onerous obligations of this treaty. However, Germany was not successful in her endeavors for a revision. No progress was made by negotiating. Did not international law appear to be only an instrument in the hands of the victors of Versailles to keep Germany down permanently? Was it not still true in the world that might came before right and that the Germans would achieve something only if they had the courage to shake their fists?

Such considerations appear absolutely understandable from the situation of that time. To construe from them a proof for the conspiracy alleged by the Prosecution would mean a complete misunderstanding of the facts. Actually, the development after 1933 seemed at first to prove Hitler completely right. He easily achieved with his methods much more than-if given voluntarily-would have kept the Weimar Government in power.

From the willingness of the foreign countries not only to conclude treaties with Hitler-such as the. Naval Agreement of 1935 and the Munich Pact of September 1938-but also to participate to the end in the Party rallies, the German people could only conclude that Hitler had chosen the correct road for reaching international understanding. This impression and this judgment were absolutely correct until the fall of 1938. Had Hitler afterwards observed loyally

547

5 July 46

the Munich Agreement, then he would probably have stayed the arguments for the "stop" policy which was initiated against him. Not only would peace have been maintained, but Hitler could also have harvested the fruits of his domestic and foreign policy pursued until then and recognized by all powers.

Basically, the argument today centers only on the question of whether the developments since then and their catastrophic consequences should be charged solely to him or to others. All Germans who followed Hitler at any time and in any way are accused. For the prosecutors maintain-above all those who put no trust in him from the outset and who denied the legitimacy of his government from the beginning-"It was to be foreseen that he would end as he did!" Therefore, everyone who supported him at any time and in any way also shares in the guilt.

To this accusation it must be objected that retrospectively it invests the sad results with an inevitability which would destroy all belief not only in freedom, but also in the wisdom of man. Of course Hitler himself did not desire the end as it came. He often enough announced at the beginning that he was not out for the laurels of war but that he would like to devote the rest of his life to peaceful constructive work. From a truly objective point of view, one can reproach him only for not having limited his aims when he could no longer believe in their achievement by peaceful and humane means.

If by such means only those are to be understood which renounce force of any kind, then there would have been no need for him to go his own way and seeker new solution. A certain play with force, as long as it did not get out of hand, will, therefore, have to be conceded to him. Where it got out of hand can only be determined, for lack of other proof, by the results which he actually caused with his policy. He certainly did not foresee and intend the bad results. However, it must be considered his fault that he did not accept the lesson of his failures but allowed himself to be goaded to still greater extremes. But how much of this guilt can and may be charged also to his followers?

Whoever did not reject Hitler's methods, and thereby him personally, from the very beginning as illegitimate, found it difficult to recognize where the political aims set by Hitler ceased to provide justified reasons for his measures, and where beyond that the policy became a crime. The dividing line in this respect was from the standpoint of the purely German legal conception probably considerably different from that of other nations or even the world. For the latter, for example, were hardly interested in the maintenance of the Weimar constitution and the basic rights granted by it to the individual German. Its violation, therefore, up to the second World

548

5 July 46

War has never caused other states to intervene with the German Government. On the other hand, once the war had broken out, the Germans were forced to put German interests above their sympathy for members of other, especially enemy, states. Each believed himself to be doing enough if he took care in his sphere to see that unnecessary harshness was avoided. To revolt against orders from the highest German authority would not only have been completely senseless and hopeless, but, until shortly before the bitter end, it would also have been a violation of German legality and thereby a punishable offense. Reproaches for failure to revolt can, therefore, be made only if the breach of formal legality, without consideration of the immediate practical effect and only for the sake of the principle-which is the attitude of a revolutionary-could be defined as a legal obligation.

The consequences of such a conception are so far from the point that they cannot be considered seriously at all, because hitherto existing international law was primarily based on the principle of unlimited sovereignty of the states. No country has been willing to submit vital and decisive questions to the judgment of others, no matter to how great a majority or to however independent a tribunal. And now every individual citizen of such a sovereign state was to have had not only the right but even the duty toward the other nations or humanity to rebel against the legal system of his own country because it violated the rights of man and humanity? Such an imposition, made retroactively, pronounces its own sentence. It would place the autonomy of the individual above state sovereignty. Thereby the power of the individual person would not only be immeasurably overestimated, but this would also necessarily lead to the breaking of the last ties of traditional order, to anarchy.

To this way of thinking Goering virtually represents the exact opposite pole. Just as others went to war in order to fight against war as such, he became a revolutionary in order to restore honor to the concept of loyalty. Thus, having once cast his lot with the Fuehrer, he stood by him when he had already lost the latter's confidence, in fact, even after he had been sentenced to death by Hitler. He remained loyal until today, in spite of everything, by excusing Hitler again and again. To many this may appear incomprehensible, and many may see in it a sign more of weakness than of strength. But this loyalty reveals his whole personality. Goering has occasionally been described as a late Renaissance type; and there is something in that. Although of high intelligence, he allowed himself to be guided in his actions less by reason than by the dictates of his warm heart.

Such a man expresses himself of necessity in a way that is primarily subjective. He does not look upon the people surrounding

549

S July 46

him and upon others impassionately as factors to be reckoned with; but he feels, above all, what effect they have on him and how they challenge his approval or disapproval so that he finally makes his personal reaction to them the basis for his over-all judgment.

But still, as can be seen from the statements of Generaloberstabsrichter Dr. Lehmann, he always endeavored to be just and to lend an ear to sensible arguments. He always kept himself free from doctrinal prejudices. As a soldier, he always endeavored to do the right thing in each case. His decisions on points of law as well as his social interest, which General Bodenschatz testified to among other things, show his earnest moral sense of responsibility. His attitude toward all criminal acts directed against the honor of women are proof of his chivalry. But in all this he is not guided by a dogma but by his spontaneous common sense, ergo not by intellect, but by life. From actual life he derives his ideas and the values which determine his actions.

Therefore the Fuehrer and the oath of loyalty he had taken to him meant everything to him and were the substance of his life. Ambassador Henderson had judged Goering correctly, when he wrote about him:

"He was the perfect servant of his master, and I have never seen greater loyalty and devotion than he maintains toward Hitler. He was recognized as the second power in the country, and always gave me to understand that he was Hitler's natural successor as leader. Men in secondary places often tend to emphasize their own importance. In all the open discussions in which I engaged with Goering, he never spoke of himself or the great part which he had played in the Nazi revolution; Hitler had done everything, all confidence was confidence in Hitler, every decision was Hitler's and he himself was nothing."

This judgment still applies today. But his loyalty became his disaster. For him a world had gone to rack and ruin. He certainly recognized many a mistake of the past, but he did not show the repentance which many would have liked to see in him. He thereby remains loyal to himself as well. And this completes the picture of his character.

In a period still threatened by chaos, in which men are again searching for a firm foundation for life, the positive value of such loyalty should not be ignored.

THE PRESIDENT: Dr. Seidl, I understand that you have not had your speech translated into any of the languages. Is that so?

DR. SEIDL: Mr. President, I told the General Secretary yesterday the reasons which made it impossible to have the speech translated. However, I have given the Language Division the text in

550

5 July 46

German; and I was told that the German text would be a big help in carrying out the translation as quickly and as accurately as possible.

THE PRESIDENT: Well, the Tribunal has already pointed out to you, many days ago, that it is very inconvenient to them not to have a copy of the speech before them. If you propose to make a speech, they will do the best they can to appreciate it. It makes it very much more difficult and very much more inconvenient not to have the speech translated.

DR. SEIDL: I shall see to it that the translation is made as quickly as possible for the case of the Defendant Frank.

THE PRESIDENT: Very well; go on.

DR. SEIDL: Mr. President, Gentlemen of the Tribunal, when in 1918 the German Army, after more than 4 years of heroic struggle, laid down arms, this was done in confidence of the assurances repeatedly given by President Wilson in 1918. In his speech before Congress on 8 January 1918, the President of the United States of America, in 14 points, had demanded among other things...

THE PRESIDENT: [Interposing.] Dr. Seidl, the Tribunal has already intimated, as you must know, that the question of the 14 points and the question of the justice of the Treaty of Versailles is irrelevant. They do not propose to listen to it. You have been told that before, and many documents have been rejected which dealt with this subject.

DR. SEIDL: Mr. President, I do not intend to comment on the question of whether the Versailles Treaty is just or not. The point is this: The Prosecution have submitted the Versailles Treaty in evidence. They made the Versailles Treaty the main point of the Indictment especially as concerns Count One of the Indictment.

My investigation aims at the following: First, was the Versailles Treaty formed legally? Second...

THE PRESIDENT: I spoke only of the injustice of the Versailles Treaty. But it is even more irrelevant to question whether the Versailles Treaty is a legal document or not. We do not propose to listen to your contending that the Versailles Treaty is not a legal document. There are plenty of matters which are of material moment for your client which you have to discuss before us, but that is not one of them.

DR. SEIDL: Mr. President, I cannot leave the Tribunal ignorant of the fact that the Versailles Treaty and its consequences, especially the causal relationship with the seizure of power by National Socialism, form a considerable part of my speech and it will be...

551

5 July 46

THE PRESIDENT: Dr. Seidl, I have told you that the Tribunal will not listen to your contending either that the Versailles Treaty was not a legal document or that it was in any way unjust. On those topics we do not propose to hear you.

DR. SEIDL: Then I must construe the attitude of the Tribunal to mean that I will not be permitted to speak of the consequences of the Versailles Treaty, and particularly about the connection which these consequences had with the rise of the National Socialist Party and with the seizure of power by Adolf Hitler and the codefendants.

THE PRESIDENT: Look. The Versailles Treaty is, of course, a historical fact; and the Tribunal cannot prevent you from referring to it as a historical fact. But as to its justice or as to its being a legal treaty, the treaty which Germany signed, you will not be heard.

As you have not laid your speech before us, we do not know what you are going to say. But we will not listen to that sort of argument.

DR. SEIDL: Then I shall begin on Page 6 of the German manuscript, with the second paragraph.

Thus the struggle for the revision of the peace "Dictate" of Versailles began at the moment when it was signed. In the program of the National Socialist Labor Party of Adolf Hitler, this struggle against the Versailles peace "Dictate" and for its revision assumed a place far surpassing all other demands and considerations. It was the leading thought by which the whole inner political activity of the Party was guided and which, after the seizure of power, was to form the basis for all foreign political considerations and decisions.

One of the first fellow-fighters of Adolf Hitler was the Defendant Rudolf Hess. Like Hitler, he was also a front-line soldier in the first World War. As a volunteer he joined at the outbreak of the war, and he had risen to the rank of infantry lieutenant when he was wounded in Romania. Incapacitated for the infantry through this wound, he enlisted in the Air Corps.

After the armistice, he fought with various volunteer corps. But in 1919, after the conclusion of the Versailles Peace Treaty, he had to recognize that the victors did not really desire a peace based on justice and a corresponding adjustment of interests. As could be expected, the terms of the Peace Treaty of Versailles, and especially the burden of the reparations on the already seriously affected German economy, had to have. . .

THE PRESIDENT: Dr. Seidl, it may be difficult for you to cut out of your speech the various references to the topics which I have

552

5 July 46

referred to; but you must kindly try to do it. For if you continue to refer to the topics to which I have referred, namely the justice or the legality of the Treaty of Versailles, the Tribunal Will have to stop your speech and go on with some of the other defendants.

DR. SEIDL: Mr. President, the subject I was just dealing with was not a question of justice or legality but a question of the consequences and referred to the investigation of the causal connection. If the Prosecution, in weeks of presenting evidence, showed how the rise of the National Socialist Party came about and how the numbers of its mandates increased...

THE PRESIDENT: Dr. Seidl, those are all facts which the Prosecution is perfectly entitled to prove. What you are now referring to is an argument that certain clauses of the Versailles Treaty were unjust. And that is an argument which the Tribunal is not prepared to listen to. It is not a statement of fact; it is an argument.

DR. SEIDL: Of course, it is an argument . . .

THE PRESIDENT: I have said that it is an argument we are not going to listen to. If you do not understand what I mean, you will have to stop continuing your speech. Do you understand that?

DR. SEIDL: Page 8, then, if you please.

When in 1925 the Party was founded anew, Rudolf Hess was once more one of the first...

It is impossible, Mr. President, to continue my speech, because all the following statements are concerned with the question: What did the Defendant Hess do up to the seizure of power? And I must say and have said that the mainspring of his activity within the Party and the German people consisted in achieving a revision of the Versailles Treaty and its most unbearable terms. This is the very question of the whole National Socialist movement up to 1933.

THE PRESIDENT: If you confine yourself to statements of fact as to what the Defendant Hess did, there will be no objection to it at all. But as I said, if you make arguments that the Treaty of Versailles is illegal or unjust, the Tribunal will not hear you.

DR. SEIDL: I shall continue, and I ask you, Mr. President, since I do not know the exact limits which I may not transgress, to interrupt me if I should again touch upon a subject which in the opinion of the Tribunal refers to the justice of the Versailles Treaty and. . .

THE PRESIDENT: Dr. Seidl, you know perfectly well the limits which have been laid down by the Tribunal many weeks ago as to the question of the justice or the injustice of the Treaty of Versailles. There has been a great number of documents rejected on the ground that they dealt with the justice or the injustice of the Treaty of Versailles, and you must have known that perfectly well.

553

s July 46

DR. SEIDL: Then I ask the Tribunal to tell me whether I am permitted to make statements to the effect that the economic deterioration, especially the great unemployment, resulted from the reparations clauses of the Versailles Treaty and the refusal of the victorious powers of 1919 to change this reparations policy.

THE PRESIDENT: You may certainly state what the condition of Germany was. That is a matter of fact.

DR. SEIDL: Then I shall again begin on Page 8.

When in 1925 the Party was founded anew. . .

THE PRESIDENT: Dr. Seidl, the Tribunal is perfectly familiar with this type of argument; I mean, we are not going to lose sight of. the argument. We know all about the argument; we do not want to hear it. We think it is entirely irrelevant.

Can't you go on to other passages of your speech which are important for the Defendant Hess? As I have said, there are a great many matters of which evidence has been given by the Prosecution and which have been answered by the Defense; and upon those matters we desire to hear you.

DR. SEIDL: I shall then begin on Page 10, with the second paragraph.

If, therefore, the National Socialist Party achieved a great victory in the Reichstag elections of 14 September 1930, and entered the new Reichstag with no less than 107 delegates, then that is at least due to the economic crisis of the time, to the great unemployment and so directly to the reparations stipulations, contrary to all economic reason, of the Versailles Treaty and the refusal of the victorious powers, in spite of urgent warnings, to agree to a revision. It is true...

THE PRESIDENT: [Interposing.] Dr. Seidl, you know that is again an argumentative statement, that the Treaty of Versailles was unfair and that the victorious powers had failed to recognize the essential justice of Germany's case or something of that sort. If you can't adjust your speech to what I have laid down, we shall have to ask you to recast the whole speech.

DR. SEIDL: Then I shall turn to Page 11, second paragraph. No, I shall turn to Page 12.

When the German people, in compliance with the Peace Treaty of Versailles, had disarmed, it had a right to expect that the victorious powers would also...

THE PRESIDENT: [Interposing.] One moment, Dr. Seidl, as you don't appear to be capable of recasting your speech as you go along to accord to the Tribunal's ruling, the Tribunal will not hear you further at this stage. It will go on with the next defendant's case.

554

5 July 46

You will then have the opportunity of recasting your speech, and you will submit your speech for translation before it is presented, and I would explain that this is the reason why the Tribunal does not propose to hear you upon these matters. They are irrelevant to the issues that the Tribunal has to try. If they were in any way relevant to the charges which are made against the defendants in the Indictment, the Tribunal would of course hear them; but they are, in the considered opinion of the Tribunal, in no way relevant to the charges upon which the defendants are being tried and therefore the Tribunal do not propose to hear them. The justice of the Treaty of Versailles has nothing to do with whether or not the war which was made by Germany was aggressive. It has nothing to do with the war crimes with which the defendants are charged, and therefore, it is irrelevant and for that reason we don't propose to hear it. Now, as I say, as you are unable apparently to recast your speech, you will be given an opportunity of recasting it in private; and you will then submit it for translation and you can then deliver it. And now we will go on with the case against the Defendant Ribbentrop. Dr. Horn, you are ready to go on, are you?

DR. HORN: Mr. President, I have just heard that the translations are being brought up. Perhaps I may wait until the translation gets here?

THE PRESIDENT: I think you might go on. We can hear what you say and take it down.

DR. HORN: Mr. President, Gentlemen of the Tribunal: "All great upheavals in the history of the world, and especially of modern Europe, have at the same time been wars and revolutions."*

We are in the midst of such an upheaval. It is by no means concluded as yet. To select isolated events in order to submit them to a judicial appraisal is not only almost impossible but entails the danger of a premature judgment. Let us make no mistake about it; we are not judging here a local crisis the causes of which are limited to a certain part of Europe. We have to form a judgment about a catastrophe which touches upon the deepest roots of our civilization.

The Prosecution has laid down strict measures in judging certain national and international events. Germany is greatly interested in the development of law and justice if its general application leads to an improvement of international morals. This Tribunal has the high task not only of passing judgment on certain defendants, disclosing the causes of the present catastrophe, but at the same time of creating norms which are expected to be adopted universally.

* Halevy

555

5 July 46

No law should be created that is only applied to the weak. Otherwise we would foster the danger that again all national efforts would be directed to develop more fully the power of resistance and thereby make war still more merciless than the one on which judgment is to be rendered here.

In taking these thoughts as a basis I beg to present to the Tribunal the case which I represent.

Herr Von Ribbentrop is being considered among the conspirators as the man mainly responsible for the foreign political and diplomatic side of an alleged conspiracy, which is supposed to have had as its goal the preparation and execution of aggressive wars. It is my primary task to determine, on the basis of the results of the evidence, when a case constitutes an attack in the meaning of international law and in which cases aggressive wars were waged.

The concept "aggressive war" is not exhausted in the proposed formal judicial definition by the American and British prosecutors but has, above all, a material basis.

Only the knowledge of these premises permits the adoption of an attitude which can serve as a basis for the decision of the Tribunal. I am, therefore, deferring the discussion of the problematic aspects of aggression and aggressive wars until, after having described the German foreign policy and Herr Von Ribbentrop's role therein, I shall have submitted to the Tribunal the evidence for consideration.

As the Tribunal intends to consider the matter in the light of criminal law, I shall especially examine to what extent Herr Von Ribbentrop hindered or furthered the foreign political decisions during the time of his official activity.

Herr Von Ribbentrop's first step into international politics and his first move in the international game of power was successfully accomplished when he concluded the Naval Agreement between Germany and England in 1935. The circumstances under which this treaty came into existence are as significant for the political problems of those years as they are characteristic for judging the personality of Von Ribbentrop and his further political development. This treaty-as is known in informed quarters-came about under exclusion of the official German diplomacy. The then German Ambassador in London, Von Hoesch, and the Wilhelmstrasse were very skeptical toward- this project. Neither Hoesch nor the Wilhelmstrasse believed that England was inclined toward concluding such a treaty, which contradicted the terms of Part V of the Versailles Treaty as well as her previous attitude as displayed at the different disarmament conferences. Furthermore they did not believe that such an agreement could materialize a few weeks after the Council of the League of Nations had declared the restoration of German

556

5 July 46

military sovereignty to be a breach of German obligations; and England, France, and Italy had met at Stresa in order to counteract this German step. And much less did they believe that a successful conclusion of such a far-reaching treaty, with its fundamental significance, could be achieved by an outsider like Herr Von Ribbentrop.

The consequences resulting from the conclusion of this treaty were as significant as they were far-reaching. Herr Von Ribbentrop, who came from the Party, rose greatly in Hitler's esteem. In turn, however, the relationship between Herr Von Ribbentrop and the conservative diplomatic corps became more and more difficult. This nominal ambassador who had managed to acquire Hitler's confidence was distrusted because his activity could not be controlled by the Foreign Office.

From the conclusion of the Naval Agreement onwards, Hitler began to see in Herr Von Ribbentrop the man who could help him in the fulfillment of his pet wish-and also, we may say, of that of

the German people-to achieve a general political alliance with England. The inclination to realize these intentions had practical as well as ideal motives.

The practical motives can be condensed into the short statement that it is the misfortune of our nation and of all Europe that Germany and England were never able to understand each other, in spite of earnest attempts on the part of both countries during the last 50 years. The ideal motives were grounded in Hitler's indisputable preference for many approved internal institutions of the British Empire.

Politically the Naval Agreement represented the first important break with the Versailles policy as sanctioned by England with the final approval by France. And thus the first actual and practical armament limitations were put in effect after many years of fruitless negotiations.

Simultaneously with all these factors a generally favorable political atmosphere was created. The Naval Agreement and its effects may also have been the reason for Hitler to appoint Herr Von Ribbentrop Ambassador to the Court of St. James the following year, after the death of Hoesch.

However surprisingly fast Herr Von Ribbentrop succeeded in concluding the Naval Agreement, in offering a general alliance to England he had not the slightest success. Was it the fault of Herr Von Ribbentrop's diplomacy or the basic difference of interests?

Whoever is familiar with Anglo-Saxon psychology knows that it is not advisable to pester these people at once with proposals and requests. Germans, at first sight, may recognize many common

557

5 July 46

traits in the British, but upon closer observation profound differences will be noted. Both nations have their roots in a different soil. Their spiritual heritages have different sources. The deeper the Germans and the British penetrate, the greater will appear the difference in their faith and their mentality. The deeper the British and the French penetrate into one another's nature, the more they will find in common with each other. These harmonies between the British and the French were still further enhanced in the past 50 years through the affiliation of their political interests.

In the course of modern history England has always had the desire to ally herself with a continental military power and has sought and found the fulfillment of this interest, depending on the direction of British aims, sometimes in Vienna, sometimes in Berlin, and from the beginning of the 20th century in Paris. England's interests, at the time of Herr Von Ribbentrop's activity as Ambassador, did not demand a departure from this line. This was supported by the basic British attitude that Great Britain did not wish to commit herself on the continent. From the Thames the complications which lay dormant beneath the surface on the continent were clearly seen. Added to this was the fact that authoritative men in the Foreign Office were still thinking too much in terms of a policy conducted at the turn of the 19th and the beginning of the 20th century. This thinking was still, now as then, directed towards an alignment with France.

The voices of those who advocated closer contact with Germany were negligible, their political weight succumbed to that of the opposition. To this were added the difficulties which resulted for Herr Von Ribbentrop from Germany's participation in the Non-Intervention Committee, which at that time met in London in order to keep the powers out of the Spanish civil war.

The Prosecution raised the question of how Herr Von Ribbentrop regarded German-British relations on his departure from London as Ambassador. The answer to this will best be furnished by Document TC-75, which contains the views of Herr Von Ribbentrop on the then prevailing foreign political situation of Germany and on the future possibilities of German-British relations.

In this, Herr Von Ribbentrop presupposes that Germany does not want to bind herself to the status quo in Central Europe. It is his conviction that the implementation of such foreign political aims will necessarily force Germany and England "into different camps." For this reason he advises the formation of alliances, loose at first, with powers having similar interests (Italy and Japan). Through this policy he hopes to engage England at the danger points of her Empire and still to keep the door open for an understanding with Germany.

558

5 July 46

Herr Von Ribbentrop then deals with the question of Austria and the Sudetenland. According to his conviction at that time, England will not in either of these questions give her consent to a modification of the status quo, although she might be forced through the power of circumstances to tolerate a solution of these questions.

A change through collision with vital French interests of the status quo in the East will, however, always cause England to become an opponent of Germany in a conflict of such nature. Herr Von Ribbentrop held this conviction not only in 1938 when this document was penned; but, contrary to the assertions of the Prosecution, warned Hitler of this danger even before and at the outbreak of the second World War.

From this document it follows also that Herr Von Ribbentrop did not, as was asserted here, depict the British to Hitler as a degenerate nation, for he says in this document quite clearly that England would become a hard and keen opponent to the pursuance of German interests in the Mediterranean.

This conception of Germany's foreign political situation at that time, as expressed in Document TC-75, evidently agreed with Hitler's ideas inasmuch as in the course of the Fritsch crisis Herr Von Ribbentrop took over the Foreign Ministry in place of the resigning Herr Von Neurath.

According to Herr Von Ribbentrop's testimony, Hitler asked him upon entering his office to assist him in solving four problems. These were the Austrian, the Sudeten German, the Memel, and the Danzig and Corridor questions. As shown by the evidence this was not a secret understanding which was arrived at by the two statesmen.

The Party program contains, in Point 3, the demand for revision of the peace treaties of 1919. In a number of speeches Hitler repeatedly pointed out the necessity of fulfilling these German demands. Reich Marshal Goering testified here that in November 1937 he explained to Lord Halifax the necessity of solving these questions and said that they were an integral part of German foreign politics. He also clearly expounded these goals to the French Minister Bonnet. Herr Von Ribbentrop therefore put his energy into the attainment of goals which were known and which beyond that resulted, of necessity, from the dynamic situation at that time prevailing in Central Europe due to the strengthening of the Reich.

How much or how little freedom of action Herr Von Ribbentrop had as a minister in the solution of these questions, I shall explain in connection with my statement on the participation in the conspiracy of which the defendant is accused. Only this much may be said here: That, as was proven by evidence, with the dismissal of Herr Von Neurath, the decisive authority in the field of foreign

559

5 July 46

politics was also concentrated in Hitler's hands. Herr van Neurath was the last Foreign Minister who under the regime of National Socialism at first retained a decisive influence on foreign politics as a Foreign Minister, which influence, however, due to the increasing power of the regime, he had to surrender snore and more to Hitler's aspirations towards totality.

In the selection of Herr Von Ribbentrop, a man of Hitler's own liking became Foreign Minister. Outside of all formalities of-state law and jurisdiction, every government without a doubt has a strong component in the purely personal relations among the rulers themselves. Seen from this point of view, it is necessary for the understanding of certain actions and of recent history to look into the relations between Hitler and Herr Von Ribbentrop.

Herr Von Ribbentrop, a well-to-do man of nationalist leanings, saw that Hitler and his Party strove for goals which corresponded with his own ideas and feelings. Herr Von Ribbentrop's ideas about the foreign countries visited by him aroused Hitler's interest. Hitler's personality and political convictions developed in Herr Von Ribbentrop a form of loyalty, the final explanation of which one can perhaps find in the effects of the power of suggestion and hypnosis.

Let us not be oblivious to the fact that not only Herr Von Ribbentrop but also countless people within and beyond Germany's borders fell victims to this power. What in this courtroom is to be considered by the standards of law, after all finds its final explanation only from the point of view of mass suggestion and psychology, to say nothing of the pathological forms of these phenomena. This task may be left to the sciences concerned.

As an attorney-and only as such do I have to evaluate the results of the evidence-I shall, with the permission of the Tribunal, after clarifying this aspect, present the role of Herr Von Ribbentrop within the alleged conspiracy for the plotting of wars and acts of aggression in violation of treaties.

Herr Von Ribbentrop had not been Foreign Minister for 10 days when he was called upon by Hitler to participate in the conference with the Austrian Chancellor and his Foreign Minister on 12 and 13 February, 1938 in Berchtesgaden. Evidence presented in court has confirmed, the fact that questions involving Austria especially were exclusively Hitler's own concern. The then Ambassador Von Papen reported directly to the head of the State. Herr Von Ribbentrop had no influence whatever upon the activities of the Party in Austria nor in the Southeastern territory. My client alleges to have been informed only very rarely and not officially about its activities there.

The former Austrian Foreign Minister, Dr. Guido Schmidt, testified here that Herr Von Ribbentrop did not participate in the

560

5 July 46

decisive conference between Hitler and Schuschnigg. During the other conferences he did not conduct himself in the Hitlerian "style" and created the impression on the witness of not being informed, which in a certain measure was due to his late activity in London and his only recent appointment . as Foreign Minister. From this inoffensive conduct of Herr Von Ribbentrop the Prosecution have drawn the conclusion that it was a maneuver agreed upon between Hitler and himself. They insist upon seeing in Herr Von Ribbentrop's conduct a typical sign of what they characterize as "double talk." Must not the indisputable dates and facts with regard to Herr Von Ribbentrop, the impression of the witness Schmidt resulting therefrom, my portrayal of Ribbentrop's position as Minister, his lack of information on the long-planned preparations with respect to Norway and Denmark, and other undeniably proven facts give cause to raise the question whether Herr Von Ribbentrop did not participate in decisions of foreign policy to a far lesser degree than is contended by the Prosecution?

In the question of the Anschluss, at any rate, he did not, as the evidence proves conclusively, play a decisive part. To him Austria was a country, mutilated by the Treaty of St. Germain, which on sound principles could hardly subsist and which once shared a common destiny in history with a greater Germany. The National Socialists were not the first to awaken Austria to the thought of a union with Germany. This thought had ripened in the German element of the Hapsburg monarchy since the revolution of 1848, which aimed at a democratic Greater Germany. After the downfall of the monarchy the Social Democrats continued to fight for it for ideological and material reasons. In fact, they saw in the Weimar state their spiritual offspring. The economic distress resulting from the destruction of the Danube area as an economic entity nurtured the thought of a union with the Reich, which was in a better economic position.

In this fertile soil the National Socialists were able to cultivate the Anschluss idea. In any event the prerequisites for an Anschluss with Germany were created when support for Austria by Italy ceased, due to the rapprochement of the latter toward Germany on account of the Abyssinian conflict. The further reasons that contributed to the Anschluss and its justification will be fully presented by my colleague Dr. Steinbauer.

Reich Marshal Goering testified here that the Anschluss in its close form, as laid down in the Law of 13 March 1938, Wiedervereinigungsgesetz, which was signed also by Herr Von Ribbentrop, did not originally even correspond with Hitler's intentions, but was put through by him.

561

5 July 46

As a further violation of treaties with regard to the Austrian question the Prosecution quote the violation of Article 80 of the Treaty of Versailles and the corresponding article of the Treaty of St. Germain, as well as the violation of the treaty between Austria and Germany of 11 July 1936.

THE PRESIDENT: The translation came through to me, I think, as though you had said, ". . . the union did not even correspond with the intentions of Hitler, but was put through"-it should have been "by Goering himself."

DR. HORN: Yes, I forgot that.

THE PRESIDENT: Go on.

DR. HORN: In justification of these violations one could point out that the articles concerned constituted a violation of the right of self-determination, on which the peace treaties were based. The outcome of the vote after the annexation at any rate clearly confirms the Austrian attitude of that time.

The clausula rebus sic stantibus could be considered as a further justification for the violation. One could refer to the statement of Under Secretary of State Butler in the House of Commons who, in reply to a question after the Anschluss, stated that England had given no special guarantee for the independence of Austria as laid down in the Treaty of St. Germain.

These legal evaluations would hardly do justice to the facts. Statute law always lags behind the ideal of justice. That does not only apply to domestic law but also to international law. Events show that if treaties fail to make provision for changes, time and events pass them by in order to rebuild them upon a new base. The question of whether the participation in such events can be legally evaluated must definitely be disputed. I shall refer later on to the general aspects of the adaption of the law to the strength of bare facts.

An Englishman once asserted the following: "We have to face the stubborn fact that Central Europe is populated by an almost solid block of 80 million people who are highly gifted, highly organized, and who are conscious of these achievements in the highest degree. The majority of these people have the strong and evidently incredible desire to be united in one state."

The Anschluss of Austria and the nationalist theories of National Socialism had set in motion this artificially split-up block created by the peace treaties of 1919. No attentive observer could fail to notice the effect of the Anschluss upon the neighboring states.

It is not my intention to take up the time of the Tribunal with the particulars of the subsequent efforts by the various groups of Germans in the neighboring states for incorporation into the Reich.

562

5 July 46

The facts which have now become history are only too well known.' My task here is to examine whether these events are the results of a premeditated plan of one person or a group of persons, or whether not rather a long and artificially suppressed force was instrumental in accomplishing the objectives which were assigned to Herr Von Ribbentrop by Hitler at the time of his appointment.

The Anschluss of Austria was the signal for the Sudeten German Party to force the issue of an Anschluss now on their part too.

Herr Von Ribbentrop has been accused by the Prosecution of having, in his capacity as Foreign Minister, engaged in creating difficulties in collaboration with the Sudeten German Henlein. They further accuse him of having induced the Sudeten German Party to increase their demands step by step rather than enter the Czechoslovak Government and of thus having prevented a solution of the whole problem without making it appear that the German Government was setting the pace.

Document 3060-PS submitted by the Prosecution shows just the contrary. It is true that Herr Von Ribbentrop knew that the Anschluss efforts of the Sudeten Germans were encouraged by the Party. But he had no influence on this Party policy nor any thorough knowledge of it. Due to the difficulties which had arisen with the Czech Government on account of the separation efforts of the Sudeten Germans and their partly uncontrollable policy, Herr Von Ribbentrop considered it necessary to see to it that the realization of the Sudeten German aims was carried out within the limits of a responsible policy.

THE PRESIDENT: Dr. Horn, wouldn't that be a convenient time to break off?

[A recess was taken.]

DR. HORN: The Munich Agreement brought a temporary calm in the situation with reference to foreign policy. The situation was again complicated only by Hitler's invitation to Hacha to come to Berlin and by the events resulting from this visit. This step with its far-reaching importance came as a complete surprise to Herr Von Ribbentrop. Reich Marshal Goering has testified that after the Slovakian question had been settled Hitler had, in spite of all warnings, decided upon setting up the Protectorate of Bohemia and Moravia. On the basis of the available material it will be difficult to ascertain the final reasons for Hitler's step. According to the testimony of the Defendant Goering they sprang from Hitler's constant fear that through connections of the Czech officer corps with Russia another complication of the situation in the southeastern area might develop. This assumption and the resulting strategical

563

5 July 46

and historical reasons may have induced Hitler to take this step of 13 March 1939, which came as a surprise to Herr Von Ribbentrop, too.

This Step, which is only understandable by Hitler's tendency towards surprise decisions, completely changed the German situation as to foreign policy. Herr Von Ribbentrop had warned Hitler at that time of the reaction by the Western Powers, and especially by England, which had to be expected as a result of this step.

And the consequences became immediately apparent in the Danzig and Corridor question which had been under discussion since October, 1938. Whereas up to that time the Poles, by reason of the German policy since 1934 and due to the return of the Olsa territory to Poland, had not refused discussions about this problem, a reaction to the setting up of the Protectorate became apparent immediately at the end of March. England regarded the establishing of the Protectorate as a violation of the Munich Agreement and began consultations with a number of countries. At the same time Minister Beck, instead of coming to Berlin again, went to London and returned from there with the assurance that England would resist any change of the status quo in the East. This declaration was also made in the House-of Commons after previous consultation with the French Government.

On 26 March 1939 the Polish Ambassador Lipski called at the Wilhelmstrasse and stated to Herr Von Ribbentrop that any continuation of the revision policy toward Poland, especially as far as a return of Danzig to the Reich was concerned, would mean war.

Thereby the Polish question had become a European question. Herr Von Ribbentrop told the Polish Ambassador at that time that Germany could not acquiesce to this decision. Only the reincorporation of Danzig and an extraterritorial corridor to East Prussia could bring a final solution.

I have submitted to the Tribunal, in the form of documentary evidence, a review of the Polish crisis which then developed. I can therefore assume that the actual course of events is known, including the incorporation of the Memelland which returned to the Reich through an agreement with Lithuania.

In order not to take up the time of the Tribunal unnecessarily, I shall confine myself to stating those facts which are apt to clarify the role of Herr Von Ribbentrop.

The Prosecution accuses Herr Von Ribbentrop of mollifying Poland by pretending friendly feelings toward her during the Sudeten crisis and the setting up of the Protectorate of Bohemia and Moravia. May I, in refutation of this assertion, point out that the relations between Germany and Poland since the agreement of 1934 were good and even friendly and that this attitude became,

564

5 July 46

of course, even more favorable through the fact that Poland was indebted to German foreign policy for the acquisition of the Olsa territory.

She had, therefore, every reason to entertain friendly feelings toward Germany without it being necessary to be deceived by Herr Von Ribbentrop's behavior. As the evidence has shown, Herr Von Ribbentrop continued this friendly policy towards Poland even after the dissolution of Czechoslovakia, since there was no reason to deviate from this attitude.

The Prosecution further accuses Herr Von Ribbentrop of having known that Hitler as early as the spring of 1939 was determined' to wage war against Poland and that Danzig served only as pretext for this conflict. They deduce this from Documents USA-27 and USA-30. These are Hitler's well-known speeches of 23 May and 22 August 1939. First of all I wish to point out that Herr Von Ribbentrop was not present at these conferences intended only for the military leaders.

A number of key documents have been discussed in detail here. I only wish to name the best known, such as the Hossbach Document, the two Schmundt Files, and the afore-mentioned speeches. Quite a number of statements about these documents have been submitted in evidence. People who knew Hitler well stated that they had become accustomed to his extravagant ideas expounded in sudden speeches, in which he often repeated himself, and that they did not take them seriously in view of his singularity.

It is possible to counter these documents with quite a number of speeches in which Hitler has asserted the contrary. Here, conversely, it might be pointed out that Hitler pursued some definite purpose with his utterances. That may be quite true. But it is just as true that even the few key documents which were submitted as proof of aggressive war contain so many contradictions, width regard to the aggressive intentions deduced from them, that at best a critic judging retrospectively could recognize such intentions. Besides, the contents of these documents, in accordance with the strict regulations for secrecy, became known only to those who took part in the conferences. This might explain why Herr Von Ribbentrop learned about them only here in the courtroom.

The guiding principles as to foreign policy which Hitler laid down for him at that time covered merely the reincorporation of Danzig and the establishment of an extraterritorial road through the Corridor, in order to open a direct land route to East Prussia.

As the Tribunal will remember, Hitler had told Herr Von Ribbentrop already at the time of his appointment as Foreign Minister that it was desirable to achieve these aims. This demand was just as much historically justified as some solution in the case

565

5 July 46

of earlier incorporations of areas inhabited by Germans, which had become inevitable.

The statute of the purely German city of Danzig, which was created' by the Treaty of Versailles in the course of the establishment of a Polish state, had always been the cause of friction between Germany and Poland. Poland had achieved this solution at Versailles through the argument that it needed an outlet to the sea. For the same reason the Corridor was established against all ethnological needs. Clemenceau in his memorandum already referred to this artificial creation as a source of danger, especially due to the fact that the peoples living in this area had been separated through long years of bitter enmity. It was not difficult to foresee that as a result of this fact the League of Nations and the International Court at The Hague were constantly going to be occupied with complaints about Polish violations of the agreement on minorities. The same cause gave rise to the large-scale confiscation of up to a million hectares of German estates and the expulsion of far more than a million Germans in the course of 20 years. Not without reason did Lord d'Abernon speak of the Danzig-Corridor problem as the "powder magazine of Europe." When finally a solution of this question was sought under recognition of the Polish claim to the preservation of an outlet to the sea, such an endeavor appeared both sensible and historically justified:

The evidence has produced nothing to support the claim that this question served merely as a pretext, which Herr Von Ribbentrop could not but have known. It has produced no proof that Herr Von Ribbentrop was acquainted with those of Hitler's aims which went far beyond these demands. Nor has it been proved that Herr Von Ribbentrop, as has been asserted by the Prosecution, before 1 September 1939, did all he possibly could to prevent peace with Poland, although he knew that a war with Poland would draw Great Britain and France into the conflict. The Prosecution base this statement on Document TC-73. This is a report by the Polish Ambassador to Berlin, Lipski, to his Foreign Minister. The document contains nothing whatsoever to substantiate this assertion.

Moreover, I do not believe that, according to the result of the evidence, Lipski can be valued as a particularly reliable witness. May I recall that it was Lipski who, during the decisive stage of the negotiations before the outbreak of the war, remarked that he had not the least cause to be interested in notes or propositions from the German side and that he knew the situation in Germany quite well after a period of 51/2 years as Ambassador. He was convinced that in case of war riots would break out in Germany and that the Polish Army would march victoriously into Berlin.

566

5 July 46

According to the testimony of the witness Dahlerus it was none other than Lipski who, during the decisive discussion at the Polish Embassy, created the impression among the Swedes that Poland was sabotaging every possibility for negotiations.

Further results of the evidence also speak against the above allegations presented by the Prosecution; as for instance the fact that Herr Von Ribbentrop, after he had learned that the Polish-English guarantee pact had been signed, intervened with Hitler to cancel the order for the Armed Forces to march because a conflict with Poland would also, in his opinion, have drawn in the Western Powers. This opinion coincides with the conclusions to which Herr Von Ribbentrop had come in his review of the European situation and laid down in Document TC-75, which has already been mentioned.

Minister Schmidt has testified here that it was Herr Von Ribbentrop who, on 25 August 1939, after the Hitler-Henderson meeting, sent him to Sir Nevile Henderson with the verbal communiqué, presented as TC-72/69, in which the contents of Hitler's proposals were summarized. At the same time Herr Von Ribbentrop adjured Henderson to submit Hitler's proposals personally to the British Government for favorable consideration. According to the British Blue Book, Sir Nevile Henderson could not refrain from calling these and subsequent proposals exceptionally reasonable and sincere. They were not the customary Hitler proposals, but pure "League of Nations" proposals.

No one studying the negotiations of the subsequent fateful days can deny that everything was done on the German side at least to get negotiations under way on a workable basis. The opposite side did not let it come to that, because they were determined to take action this time. The good services of England ended with the breaking-off of all mediation without having been able to bring Poland to the conference table.

Herr Von Ribbentrop has been blamed for having practically defeated the purpose of the last decisive discussion with the British Ambassador, Henderson, by having read the German proposals to Poland so fast, contrary to all diplomatic custom and international courtesy, that Sir Nevile Henderson could not understand them and, hence, could not pass them on. The interpreter, Minister Schmidt, was present at this decisive discussion. He has testified here under oath that this statement is not true. One may consider Hitler's order to acquaint Sir Nevile Henderson only with the sum stance of the memorandum as unwise. The fact is that not only did Herr Von Ribbentrop read the entire contents at a normal speed to the British Ambassador; but he also, by having the interpreter present, . made it possible for Sir Nevile Henderson to become

567

5 July 46

familiar with the entire contents and, moreover, to have explanations given on it. Besides, upon the initiative of Reich Marshal Goering, it was transmitted to the British Embassy during the same night by telephone to the Counsellor of the Embassy, Mr. Forbes. Thus the British Government should have been able to render the good services offered for opening negotiations based on positive proposals.

By reason of these facts here deposed, one must rightly doubt the truth of the allegation that the defendant had done everything to prevent peace with Poland.

At the beginning of my defense speech I stressed that legal considerations concerning aggressive war are not possible without knowledge of the circumstances leading to an armed conflict. Before I proceed to the legal aspects of the conflict with Poland, may I make some additional statements concerning the causes that led to the war.

The period between two World Wars is characterized by the conflicting reactions of those powers which were satisfied and those which were dissatisfied. It seems to be an inevitable law that after great war repercussions, the victorious states tend as far as possible toward the re-establishment of the prewar status and prewar mentality, whereas the vanquished are forced to find a way out of the consequences of their defeat by new means and methods. Thus after the Napoleonic wars there came about the Holy Alliance which under Metternich's leadership, using legitimacy as an authorization, tried to ignore the effects of the French Revolution.

What the Holy Alliance did not achieve, the League of Nations equally failed to achieve. t

Created in an atmosphere of fervent belief in human progress, it was quickly transformed into a tool of the satisfied states. Every effort to strengthen the League of Nations meant a new bulwark for the maintenance of the status quo. Under cover of the elegant diction of juridical formalities power politics continued. Besides, the obsession by the idea of securite soon deprived the newly-created body of any breath of freshness and life.

In this fashion, naturally, a solution of the problems created by the end of the first World War could never be found. In international relations a coalition of interests of the conservative powers content with the status quo and of the revolutionary powers trying to do away with it, became increasingly apparent. It could only be a question of time until under those circumstances the political initiative would pass to the dissatisfied powers. The formation of this front depended exclusively on the force of the revolutionary spirit

568

5 July 46

which was crystallizing in opposition to the political self-complacency and hankering after the past. In this fertile soil grew the doctrines of National Socialism, Fascism, and Bolshevism, obscure in many parts of their programs, elastic and incoherent in others. Their power of attraction was based not so much on their programs but on the fact that they admittedly offered something new and that they did not exhort their followers to worship a political ideal that had failed in the past.

The economic crisis of the postwar period, the controversies about reparations and the occupation of the Ruhr, the inability of democratic governments to obtain anything for their distressed peoples from the other democracies, unavoidably led to a test of the doctrines which had not yet been tried out. The practical results of this revolution, as we experienced them in Germany after 1933, could, aside from the social program, consist only in abolishing the peace settlement of 1919, which constitutes a classical example of failure to understand the revolutionary character of a world crisis. For this revolution these tasks were not legal questions but doctrines, exactly as it had long become a doctrine of the satisfied states to maintain the status quo at all costs, even at the price of a new world war.

Only he who does not shut his eyes before these facts can judge the political crisis of the past decade.

Every revolution has but two possibilities; either it meets so little resistance that eventually conservative tendencies develop and an amalgamation with the old order is formed, or the antagonistic forces are so strong that finally the revolution breaks up through overstraining its own means and methods.

National Socialism went the second way, which began without bloodshed and partly with a remarkable leaning upon tradition. But this method, too, could not escape the inherent laws of history. The

aims were too high for one generation, the revolutionary essence too strong. The initial successes were startling, but they also resulted in lack of criticism as to the methods and aims. The process of uniting all larger German groups in the Central European space would most probably have succeeded, if at the end-I am referring to the setting up of the Protectorate of Bohemia and Moravia and the pursuit of the Danzig-Corridor question-the revolutionary tempo and methods had not been overstrained by reason of previous successes. No person capable of sober judgment will dispute the need for a solution of the Danzig-Corridor question, delicate as it was.

The Prosecution may assert that in reality Danzig was but a pretext, but seen from the state of affairs in 1939 this can hardly be

569

5 July 46

proved. But it is certain that the opposite side was concerned about other things than the maintenance of the status quo in the East. National Socialism, and with it, in its newly gained strength, the German Reich, had become such a danger in the eyes of the others that after Prague it was determined to make any further German advance a "test case," wherever it should happen.

I have already said that the revolutionary protest in Central Europe was chiefly due to economic causes brought about by Versailles where a peace treaty was imposed on Germany of which it was well-known that its economic provisions could not be carried out by the vanquished.

THE PRESIDENT: Dr. Horn, the Tribunal thinks that sentence, at any rate, is objectionable on the ground that I have already stated.

DR. HORN: Mr. President, I did not mean to emphasize how the Versailles Treaty came about; I only wanted to stress certain necessary consequences which are generally known facts, But I have completed this part and have nothing further to say with reference to it.

THE PRESIDENT: Go on, Dr. Horn.

DR. HORN: Much has been said here about the slogan Lebensraum. I am convinced that this word would never have become a political program, if after the first World War Germany had been given the possibility of linking up with the world markets, instead of being strangled economically. By systematically cutting her off from all raw material bases of the world-all this for reasons of secrete-the tendency towards autarchy, the inevitable way out from the barring from the world markets was fostered; and, at the same time, with the progressively deteriorating economic situation, the cry for Lebensraum could find receptive ears.

Thus, Stalin is right when he says:

"It would be erroneous to believe that the second World War came about accidentally or as a result from mistakes of one or the other of the statesmen, even though such mistakes were made without doubt. Actually the war came about as an inevitable result of the development of international economic and political forces based on modern monopolistic capitalism."*

Professor Jahrreiss has already fully explained, in his basic arguments concerning the legal and the actual significance of the Kellogg Pact, that the meaning given to this project for the

* Speech by Stalin on the eve of the Soviet elections in February 1946.

570

5 July 46

prevention of war by the Prosecution cannot be recognized by the Defense.*

Even though war has been previously declared an international crime, especially at the 8th League of Nations Assembly of 1927, it became quite clear in preliminary conversations, as has been proved by documents already submitted to the Tribunal, that this declaration was not meant to make war a crime in the legal sense but that it was an expression of the wish to prevent future international catastrophes of the scale of the first World War. Moreover, neither the United States nor Russia participated in the League of Nations resolution of 1927.

All further plans for outlawing war during the period between the first and second World Wars remained mere drafts, as the British Prosecutor had to acknowledge in his significant argumentation, because practical politics could not follow these moral postulates.

All these experiments-and they are by no means few-clearly show that the problem of finding a definition lies in the difficulty of condensing a political process, dependent upon a host of components, into a legal concept which will cover all the varying cases occurring in practice. The failure to formulate a definition which could be used in international law has led to the fact that, instead of working out general standards and measures applicable in each case, the designation of the aggressor was left to the decision of an organ dominating all the contending parties. In such a way, the question of defining the aggressor became the question: "Quis judicavit?" that is, "Who shall designate the aggressor?" From this decision follows a new difficulty, namely, what is to be done against the aggressor?

Previous to the attempt of settling in a general way the concept of aggression and the sanctions against the aggressor, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory and anarchic situation, the United States, under Secretary of State Bryan.

THE PRESIDENT: [Interposing.] Isn't this really arguing the same questions that Dr. Jahrreiss has already argued?

* Mr. Justice Jackson is trying in this connection to invoke Article 4 of the Weimar Constitution of 1919. According to this, the universally recognized rules of international law are regarded as binding components of German Reich law. Owing to the differing legal appreciation of the Kellogg Pact on the part of the Great Powers the interpretation advanced by the Prosecution cannot be looked upon as German Reich law.

C£. Reich Supreme Court Decisions in Litigation Procedures, Vol. 103, Page 216.

Anschiltz: The Constitution of the German Reich (Die Verfassung des Deutschen Retches); 10th ea., Page 58 et sequentes.

571

5 July 46

DR. HORN: Mr. President, I have tried to omit the matters set forth by Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly to the Kellogg Pact. I am only dealing with the questions pertaining to the legal aspect of wars of aggression.

THE PRESIDENT: Yes, but the Tribunal only granted the right to have an additional counsel deal with the general questions of law on the understanding that the other counsel were not going to deal with the same questions of law. Of course, you are not using the words of Dr. Jahrreiss-I should not expect you to do that-but you are arguing the very same topics.

DR. HORN: Mr. President, it had been agreed originally, as the professor as an expert had stated, that every counsel is entitled to take a different attitude toward the problem argued by him. Professor Jahrreiss concentrated chiefly on the Kellogg Pact and its consequences. I personally am turning my attention to aggressive war, and, as you, Mr. President, emphasized...

THE PRESIDENT: Just a moment. What is involved, then, is that the Tribunal is going to hear 20 arguments upon the general questions of law; and surely it can scarcely have been thought by defendants' counsel that the Tribunal proposed to hear 20 arguments on the general questions of law and also hear Dr. Jahrreiss on it. The only purpose of hearing one counsel was to have the general questions of law dealt with by one counsel alone, and that the others should not speak upon it.

DR. HORN: Mr. President, may I emphasize once more. ..

THE PRESIDENT: Just a moment. The Tribunal will adjourn.

[A recess was taken.]

DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the Tribunal to accept a short explanation to the matter which has just taken up the attention of the Tribunal and which for most counsel is of general and fundamental importance. I should like to remind you of the fact that the suggestion and initiative to take up certain legal topics and have them dealt with by Professor Jahrreiss came from the Defense and that this suggestion was made for the sole reason of complying with the Tribunal's wish to expedite the proceedings. I must earnestly request the Tribunal to protect us from letting this suggestion, made to and granted by the Tribunal at the time, become our own pitfall in that a resolution which has been made is interpreted too strictly. I do not have the resolution before me and I do not intend to deal with it and discuss it, but I should like to say this: Professor Jahrreiss did speak and was to

572

5 July 46

speak on but two topics which, it is true, were of a general nature; that is, (a) the punishment of individuals for a war of aggression, in other words, nulla poena sine loge, and (b) the legal nature of the Fuehrer decrees. Only these two problems were to be dealt with by Dr. Jahrreiss and these were the two topics that he actually did deal with. But besides that, these proceedings entail a series of legal problems which are of a general nature and more or less affect each of the defendants. I only recall to you the interpretation of the conspiracy charges, the various questions dealing with international law, the questions of hostages and forced labor, and the legal question concerning distress at sea through naval warfare, and other general questions. There are a host of general questions, and above all the matter on which my colleague, Dr. Horn, was stopped, concerning the question: "What is an aggressive war?" There exist fundamental differences between a military war of aggression, a political war of aggression, and a juridical war of aggression, et cetera, about which Dr. Jahrreiss did not say a single word, nor was he supposed to do so. And please-I trust you do not mind my saying so, but that is the way I understood Dr. Horn-that is really the basis of his argument.

I do not propose to argue and to refer to a resolution; but I ask the Tribunal not to put us in a most delicate situation, namely, that we, in order to expedite the proceedings by having Professor Jahrreiss deal with a number of legal questions, be put in a position for which we cannot take responsibility, in that we are prevented from dealing with certain questions which in our opinion are of decisive legal importance to the defendants and about which Jahrreiss himself did not speak at all.

Only a word or two more. I believe the Tribunal will agree with me that one can have an entirely different opinion on the subject with which Professor Jahrreiss has dealt. I do not have it; nor shall I contradict Dr. Jahrreiss. But from a purely theoretical point of view that might be possible. Should it happen, just because in such an important matter a speaker has dealt with this question, although in a sense which possibly one of the counsel considers entirely improper and harmful to his case, that that counsel is forced to keep silent on such a matter? That cannot have been the intention of the Tribunal. Well, all I wanted to say was this: This speech by Jahrreiss served the purpose of expediting the Trial. Well and good. But we ask-I think I may say "we"; I believe that none of my colleagues is of a different opinion-we ask that it should not be interpreted too formally, and if one of us for some good reason says, "I have to discuss this, it is important for this or that reason," to give us that possibility wherever Jahrreiss has dealt with the subject in a sense which we do not approve, and not to prevent the

573

5 July 46

discussion of some general legal question if it should be raised by any of the counsel.

THE PRESIDENT: The Tribunal has been considering this matter and they are fully aware, of course, of the difficulties which may possibly arise if there were differences of opinion among the defendants' counsel upon questions which had been dealt with by Dr. Jahrreiss. They did anticipate when they made the Order which specifies that Dr. Jahrreiss should speak on legal issues arising out of the Indictment and Charter which are common to all the defendants-those are the words of the order-that he would deal with all the issues which were common to all the defendants, and in the absence of some difference of opinion, that the other defendants would be prepared to adopt his argument; but the Tribunal think that the questions of law may be to some extent quite various and difficult and that the only rule which is possible for them to lay down at this stage is that there must be no real repetition by defendants' counsel. The Tribunal apprehends that defendants' counsel will see the necessity for such a rule as that. It cannot be m the interests of an expeditious trial that argument should be repeated over and over again, and this Tribunal desires to point out to the defendants' counsel that such repetition upon general matters only tends to distract the attention of the Tribunal from the real defenses of the clients whom they represent, and therefore the Tribunal hopes that the defendants' counsel will try to co-operate in this matter and confine such legal arguments as they think it right to present to the Tribunal to arguments which had not been addressed to the Tribunal by counsel who preceded them-either Dr. Jahrreiss or any other counsel. That is all that I need to say, I think, at this stage; and as it is now 5 o'clock the Tribunal will adjourn.

[The Tribunal adjourned until 8 July 1946 at 1000 hours.]

574