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MARSHAL: May it please the Tribunal, the Defendants Hess and Raeder are absent.
THE PRESIDENT: The Tribunal will now hear the applications for witnesses on behalf of the various organizations, taking the SS first.
MAJOR JONES: If Your Lordship pleases, with regard to the SS organization, defending counsel have applied for seven witnesses. Five of these-Von Eberstein, Hinderfeld, Hausser, Riedel, and Reiniche-are among the 29 SS witnesses whose evidence has been heard on commission. The Prosecution have no objection to the calling of these witnesses although, as there is a certain amount of overlapping in the evidence of Eberstein and Hinderfeld, it is suggested with respect that this might be avoided when those two witnesses are examined by Dr. Pelckmann.
As to the other witnesses applied for; with regard to Rode, the Tribunal will see from defending counsel's application that an affidavit from this witness was put in by the Prosecution as Exhibit USA-562. Dr. Pelckmann has informed me that he does not propose or desire to call Rode to testify before the Tribunal itself, but will be quite content to cross-examine Rode on commission. Therefore, if the Tribunal think that the interests of justice demand the resumption in this particular case of the taking of evidence on commission, the Prosecution have no objection to Dr. Pelckmann's suggestion. Perhaps in fairness to Dr. Pelckmann, I ought to add that I understand that Rode only arrived in Nuremberg a few days ago.
The last witness applied for is Hermann Rauschning, the former Senate President of the former Free City of Danzig and the author of the book The Voice of Destruction, extracts from which the Prosecution have submitted in Document USSR-378, as part of the Prosecution case. No affidavit from Rauschning has ever been used by the Prosecution. I understand that Dr. Rauschning himself is now in the United States. With regard to him, the Prosecution object to his being called as a witness upon the following grounds.
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If the Tribunal will look at defending counsel's application, it will be seen that there are three matters which it is desired to have clarified by Rauschning. Insofar as some of these facts may be relevant or have evidential value, I submit that those facts can be extracted from Rauschning's book The Voice of Destruction, and that in those circumstances it is quite unnecessary to have Rauschning here as a witness himself. The Prosecution would, of course, have no objection to further extracts from that book being put in as part of the defense case of the SS organization.
THE PRESIDENT: Would the Prosecution object to interrogatories being put to Rauschning?
MAJOR JONES: No, My Lord, we should have no objection to that.
There are facts set out in the first two paragraphs of defending counsel's application with regard to Rauschning. I submit that with regard to the first, a Cassandra-like statement by Rauschning that up to 1939 his warnings were not heeded, it has, I submit, no evidential value whatsoever. With regard to the second paragraph, in which it is stated that Rauschning has knowledge of the fact that in 1936-37 Hitler did not yet have the intention of exterminating the Jews, it is not in any way clear how Rauschning could, in fact, have had any knowledge of Hitler's intentions at all-even the devil knoweth not the heart of man.
I do not submit that testimony of that kind from Rauschning would be wholly irrelevant. Whatever I have said, the Prosecution would have no objection to further extracts being taken from Rauschning's book, or interrogatories being administered to him.
THE PRESIDENT: Dr. Pelckmann.
HERR PELCKMANN: May it please the High Tribunal, I am in complete agreement with what Mr. Elwyn Jones has said, as far as it applies to the rest of the witnesses.
Regarding his statement about the witness Rauschning, I should like to say the following. The decision of 13 March, Figure 6a, Paragraph 3, specifies that it is relevant to submit evidence on whether the possible criminal aims and activities of the SS were quite obvious, or were known to the bulk of the members. I tried before the Commission to prove that the aims and activities were not criminal, that the crimes committed were only individual acts or acts of certain groups, and that these acts were not known to the majority of the members. I tried to prove this by means of relatively very few witnesses, compared with the number of members as the Prosecutor has stated, by means of 29 witnesses from among thousands of affidavits. All this material will still be submitted to the High Tribunal in due course, but it all concerns the so-called
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legal standing of membership. The Prosecution, on the other hand, submitted their evidence against the SS, as well as against the other organizations, directly to the Tribunal through documents and through the direct testimony of witnesses, a procedure which took many weeks.
With regard to the further assertion that the bulk of the SS knew of such criminal aims of the SS and of the criminal acts of individual members or certain groups, the Prosecution did not present any proof, but merely asserted that this could be seen from the circumstances, and was a matter of course. I consider it only just and proper that in addition to the statements of SS members, which as indirect proof I shall submit in large numbers in the form of affidavits, and the probative value of which could be disputed by the Prosecution because they are statements of the people in question themselves, of the SS members-as I say, I consider it only right and proper that in addition the witness Rauschning, the only one of my witnesses who is not under automatic arrest, should testify before this Tribunal, and should testify in person. The only other witnesses who will appear in person are the five witnesses of the SS who held a relatively high rank in the SS and, therefore, have an over-all knowledge; but it can be held against them that their testimony is not quite credible.
As for the person of Rauschning and the relevance of his testimony I should like briefly to say the following: As has already been stated, he was an SS Standartenfuehrer and President of the Danzig Senate. He had the complete confidence of Hitler until 1936, when the rupture with Hitler occurred. Rauschning emigrated and was very active in publishing material abroad. In his books, which have become well known throughout the world, he constantly warned against Hitler and his plans, and he is still known everywhere as a man who did not defend or protect the Hitler regime and its guilty members.
In his many conversations with Hitler, he learned-and now I come to the main point of my application-first, that, at least in the years 1936 and 1937, Hitler did not intend to exterminate the Jewish population. He has given detailed reasons for this statement, and the objection of the Prosecution that it was impossible to recognize Hitler's intentions is not quite apposite, because this precisely is the task of the Tribunal, to recognize Hitler's intentions with regard to the salient points of the Indictment. If Hitler's intentions are recognized then perhaps one can judge the responsibility of the bulk of the members of the organizations. Of course, we have only circumstantial evidence and must, if possible, obtain and evaluate direct evidence of Hitler's intentions. This direct evidence of Hitler's intentions, the witness Rauschning can give on the basis of
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his conversations with Hitler, and I do not think that one can find a better witness for this subject. Second-continuing with the points of my application-Rauschning learned that Hitler...
THE PRESIDENT: What is it, Dr. Pelckmann, that makes you think that Rauschning would be able to give this evidence?
HERR PELCKMANN: I know his books, My Lord.
THE PRESIDENT: Then if it is in his book, how will it help to have him say what is in his book again?
HERR PELCKMANN: Of course, his books represent only a very small part of his entire knowledge, and he certainly did not write them with this Trial in mind. The chief points brought up by the Prosecution in this Trial can now be answered much more satisfactorily by the witness himself than by quotations from his book torn out of their context.
THE PRESIDENT: I understand you to be saying that the only reason you have got for thinking that he would be able to answer these questions is because of what you see in the book. Then you do not know that he can give any further evidence than is in the book.
HERR PELCKMANN: Of course, I do not know that but it is probable, and my assumption that he can do it is based on experience. I do not think that I am asking for anything out of the ordinary. I expect a man who in the years from 1933 to 1936 concerned himself so intensively with Hitler and Nazism, and then studied this regime in later years and discussed it with foreigners-I expect such a man to know much more than is set down in his books.
And I also have the following reasons for my application. In preferring their charges the Prosecution used quotations from the books of Rauschning, and these quotations are practically identical with affidavits. The Prosecution would equally well have been able to obtain affidavits on the pertinent passages in Rauschning's book which would perhaps have contained his assertions in more detail. According to the rules of procedure established by this Tribunal, I am entitled to ask that witnesses who have deposed affidavits for the Prosecution be cross-examined by the Defense before the Tribunal. I believe that if...
THE PRESIDENT: I am not aware that such a rule applied to witnesses in the United States. The rule, insofar as any rule at all was made, was that people who were in this country, if they had made affidavits, might be brought here for cross-examination. That rule has never been applied to persons who were in the United States or in any other country outside this country. The case of Mr. Messersmith is an instance, and there has never been a case of anybody being brought in, except perhaps the witness Dahlerus.
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HERR PELCKMANN: Since the Indictment and the Tribunal's verdict is of great importance for all members of the SS, and since, unlike the cases of the individual defendants, I can only call members of the organization as witnesses-and this is a considerable restriction-I think I may ask the Tribunal that this witness-the only one who is not implicated and can tell the Tribunal something about conditions at that time and his views on them-that this witness be brought here; for technical difficulties should play no part in this Trial of surely world-wide significance. This is my full conviction.
May I continue, My Lord?
THE PRESIDENT: Certainly.
HERR PELCKMANN: The witness is to testify further that it was Hitler's deliberate policy to deceive the German people, as well as foreign countries, about his plans and intentions-for instance, about his war intentions. In very intimate conversations with Rauschning, Hitler remarked-and almost joked about it-how successful he was in leading by the nose not only foreign countries but- even his own people. These questions are relevant for the decision regarding evidence.
With reference to the Jewish question, I refer to the assertion of the Prosecution that the Party program resulted directly in the extermination camp at Auschwitz. The Party program, as the bulk of the SS members saw it, provided only for a solution of the Jewish question on the basis of the statute of minorities, supplemented by the somewhat more severe Nuremberg Laws of 1935. But, however this may be, it would not yet constitute a crime against humanity. If it could be proved that during this time Hitler actually did not intend to exceed this program, then the assertion of the Prosecution could no longer be upheld. If this attitude of Hitler, at that time, can be proved, then the SS and the simple SS man who followed this program could not have ha* any other attitude either.
Secondly, the deception of the German people. The following is clear. 1) We know today from the various documents just what did take place at that time. We need only read the Reichstag speech about Hitler's will for peace, or the reasons given for the murders on 30 June 1934. But it would be startling if a witness asserted that Hitler had confided to him that it was his principle to deceive the Germans about his true intentions. In answer to this, the Prosecution would have to prove that just the SS was not to be deceived- that the SS, in agreement with Hitler, knew what Hitler actually wanted.
THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to hear a general argument from you upon the whole case. They are
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simply dealing with the question of whether this man Rauschning should be brought from the United States.
HERR PELCKMANN: If the relevance of his testimony is not disputed, then I can very well understand...
THE PRESIDENT: Dr. Pelckmann, we have your written application before us, and you are dealing with a variety of matters which are not mentioned in that written application.
HERR PELCKMANN: I cannot, of course, set down in my application everything that I would want to include. This application, naturally, contains only my main points: (1) The Jewish question, (2) the deception of the German people, and (3) of the SS members.
THE PRESIDENT: We have indicated to you what the view of the Tribunal is-that we think that you have dealt with the application, and we do not desire to hear a general argument.
HERR PELCKMANN: Air. President, I tried only to show the relevance of my three points of evidence. If the Tribunal can assume that these points are relevant, then, I think, I need only add this: A single witness who is outside the SS, who, it is true, at one time. . .
THE PRESIDENT: You have already said that, Dr. Pelckmann, more than once, and the Tribunal are quite aware of what you have said.
HERR PELCKMANN: Mr. President, do you not want an answer to the question why we should deviate from the general rule and bring this witness here from America? Do you not want an answer to that?
THE PRESIDENT: You have already presented argument to that effect.
Now we will deal with the SD.
MR. DODD: Mr. President, counsel for the SD has asked for only two witnesses, and the Prosecution have no objection to, these two witnesses being heard by the Tribunal. It seems like a reasonable number. · ,
While I am before the Tribunal, may I go on with the applications for the Reich Cabinet and High Command as well?
THE PRESIDENT: The Reich Cabinet, we understood' was not going to be dealt with today.
MR.DODD: We received the application for one witness this morning
THE PRESIDENT: Oh, yes. Certainly, go on and deal with these.
MR. DODD: With respect to the High Command, counsel for the defendant organization has asked for six witnesses, and our position
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is that it is at least twice as many as are necessary, and that three- something like three-would be a much more reasonable number to present before the Tribunal. We have no particular preferences or no objections-no particular objections-to any of the three. I understand, however, that counsel prefers Von Rundstedt, Von Brauchitsch, and Von Manstein, and we have no objections if that is his choice of the six, but we do object to six, on the ground that they axe too numerous, and all of them have been heard before the Commission.
With respect to the application of the Gestapo, only two witnesses are asked for-the witness Best and the witness Hoffmann-and we have no objection to the appearances of these two witnesses.
THE PRESIDENT: The two names, Karl Heinz, are Christian names, I suppose?
MR. DODD: Yes, so I have understood, Mr. President.
I am not clear, Mr. President, whether or not you wish to have me deal with the Reich Cabinet. Shall I make known our attitude toward the one witness?
THE PRESIDENT: I think so. Certainly, you may deal with them now if they are ready. Dr. Kubuschok . . .
MR.DODD: In any event, he has only asked for one witness, Mr. President, and we have no objection-the witness Schlegelberger.
THE PRESIDENT: Very well, Mr. Dodd. Unless counsel for the SD, Gestapo, and the Reich Cabinet want to say anything, the Tribunal do not think it is necessary to hear them.
Then, they would hear counsel for the High Command, Dr. Laternser. Yes, Dr. Laternser.
DR. LATERNSER: Mr. President, in view of the importance of the accusations raised against the military leaders, I am convinced that the application for six witnesses is justified. In order to be able to decide the question whether the military leaders were criminal or not, the Tribunal must first obtain a personal picture and a personal impression of some of these military leaders. If only a few of the 129 persons affected by the Indictment against the organization I defend are heard here, can one assume that the High Tribunal will have gained a true picture? My definite answer is "no."
THE PRESIDENT: Can you tell me how many of the 129 we have already heard before the Tribunal?
DR. LATERNSER: Before this Tribunal, Mr. President-before the Commission, seven members of the group were heard, two are still outstanding.
THE PRESIDENT: I did not say before the Commission; I said before the Tribunal. ,
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DR. LATERNSER: I put questions to about five or six persons, I believe, of this group when they appeared here.
THE PRESIDENT: Yes. Go on.
DR. LATERNSER: In estimating the number of witnesses to be heard here, I ask that the following also be taken into consideration. In regard to the calling of witnesses who could refute the statements made by the witnesses of the Prosecution, the defense of the organizations are handicapped greatly by the resolution of the Tribunal which says that witnesses can be heard before the Tribunal only if they have previously been heard before the Commission, even though in any other legal proceedings there would be extensive examinations of witnesses on many points. The circle of witnesses is thus restricted from the beginning and dependent upon the scope of the Commission's activities.
I consider it necessary, Mr. President, to be in a position to convey to the Tribunal a personal picture of the group indicted, and I should, therefore, like to make the following suggestion, which I believe to be practicable. May I suggest that for the group which I represent-only for my group, since I am not entitled to make a similar application on behalf of the other organizations-that for my group the Tribunal fix a certain time within which I may examine my witnesses before the Tribunal, and that the actual distribution of the time allotted be left to the defense. Then I should be able to question the six witnesses for whom I asked. I would even be prepared to use only two-thirds of the time to be allotted by the Tribunal, and to put one-third of it at the disposal of the Prosecution for cross-examination. In this way, Mr. President, I merely want to accomplish one thing-in my opinion the most important point-I want the Tribunal to gain a personal impression of the persons falling under the Indictment. I assume that the Tribunal will not object to this.
I would also like to suggest for the consideration of the Tribunal that the case against the organizations...
THE PRESIDENT: Dr. Laternser, let me make certain that I understand the suggestion. You are suggesting that the Tribunal should allot a certain time for the witnesses for the High Command, and that you, as counsel examining the witnesses, should take up two-thirds of the time. and that the Prosecution, in cross-examination, should take up one-third of the time. Is that correct?
DR. LATERNSER: Yes. I agree that within this time I may examine as many witnesses as I choose.
THE PRESIDENT: How much time are you contemplating?
DR. LATERNSER: That is rather difficult for me to answer.
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THE PRESIDENT: It is your suggestion. The Tribunal would like to know how much time you are suggesting.
DR. LATERNSER: One and a half to two days in all.
I should like to make two more suggestions to the Tribunal which have some significance in this connection. All the witnesses appearing here have already been heard by the Commission, and the transcripts of the interrogations are in the hands of the Tribunal. If the same questions are put again, the evidence would certainly be cumulative. How then is the examination of the witnesses to be carried through without interruptions? Looked at from this angle, the suggestion I have just made becomes even more important, and also seems to remove the difficulties which I have described. If this is taken into consideration I believe the Tribunal would be able to follow my suggestion.
Finally, I should like to suggest the Tribunal also make a decision with regard to the handling of the final words on behalf of the accused organizations.
That is ale
THE PRESIDENT: The Tribunal would like to hear you with reference to Dr. Laternser's suggestions, Mr. Dodd.
MR. DODD: Very well, Mr. President.
We have, insofar as. we recall, made a list of the names of the people who have appeared before the Commission as members of the organization, or of the groups, and those who have appeared before the Tribunal. I stated a few minutes ago that all of those who have not appeared-such as Von Brauchitsch, who was to appear, and who may have appeared yesterday, I am not informed- will appear in a day or so.
With reference to the suggestion of Dr. 1aternser that he be allowed a specific time and may use as many witnesses in that time as he sees fit, we find two difficulties. First of all, we do not feel that he is being generous enough in allotting us one-third of the time. Possibly we may require more time for such a number of witnesses. In any event, we do not want to have a restriction placed on us to the effect that we have only one-third of the time that he has. If we are to examine witnesses on the time standpoint, we feel that much of the time would be taken up before the Tribunal on matters that have already been thoroughly dealt with before the Commission. All the witnesses have been heard before the Commission, and Dr. Laternser has had a full opportunity to examine and cross-examine before the Commission, and it seems unnecessary to burden the Tribunal with a great number of witnesses here.
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THE PRESIDENT: The Tribunal would like to know whether it would make any difference to the arguments just presented to us if the Prosecution were allotted the same amount of time as Dr. Laternser?
MR. DODD: Well, it would make a little difference. Frankly, I did not consider that too important a point.
THE PRESIDENT: Perhaps there is one other thing which bears upon it. The Tribunal would like to know how you think the difficulty is to be met, that it seems unnecessary for the witnesses who are called before us here to give the whole of the evidence given before the Commission, or even to enter upon the subjects which have been entered upon before the Commission; and the Tribunal would like to know how that difficulty is to be met.
MR.DODD: We have been thinking about this very problem, and we had assumed that the witnesses who have appeared before the Commission, and who have been examined there, would not go over the same grounds before the Tribunal, otherwise the proceedings of the Commission would be rather senseless, and we might just as well get up and read the record of what was said before the Commission. We had understood that the witnesses would have something new to add to what they had already said before the Commission. That is our understanding.
THE PRESIDENT: Of course, I think Dr. Laternser has said on various occasions that he attached importance to the actual presence of the witness so that the Tribunal could see him and form their own opinion of the witness' credibility.
MR.DODD: Yes, that is what I understood to be one of the reasons, but three members...
THE PRESIDENT: In addition to our seeing the witnesses and forming an opinion of their credibility, he would be able to summarize the evidence given.
MR. DODD: Yes, I assume that would be so. Of course, four of these members of the groups we are in the dark about-and two of the members of Naval Command, Von Brauchitsch and Milch, and a number of others.
THE PRESIDENT: Thank you.
MR.DODD: With respect to the time suggestion which I made, I repeat I do not think that is too important. I know we can confine ourselves in cross-examination to the important matters, but I think it is the experience of the Tribunal that we seldom stayed within the limits which were established.
THE PRESIDENT: I do not think it is necessary to hear further argument. We will consider your suggestion; and your arguments, Dr. Laternser, are unnecessary unless there is anything particularly
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new that you wish to say. The Tribunal will consider your suggestion.
We will now deal with the political leaders.
LT. COL. GRIFFITH-JONES: The Leadership Group has asked for seven witnesses: Two of them are Gauleiter, and are witnesses Kaufmann and Wahl; one Kreisleiter, Meyer-Wendeborn; one Ortsgruppenleiter, Wegscheider; Blockleiter Hirth and two experts on the staff of the Hoheitstrager-namely, a farming expert who was also a political leader, and Hupfauar who was a political leader in the DAF. The Prosecution have no objection to any of these witnesses, but we feel that the grounds could not be adequately and properly covered. And it may be of help to the Tribunal if I suggested the witnesses most important, and those which might be dispensed with.
THE PRESIDENT: Probably the Defense Counsel would wish to make their own selection.
LT. COL.GRIFFITH-JONES: My Lord, I fully appreciate that. I was only trying to assist the Tribunal if I could.
THE PRESIDENT: Yes, in indicating which appeared to you to be the most important.
LT. COL. GRIFFITH-JONES: Yes.
THE PRESIDENT: Yes, perhaps you could do that.
LT. COL. GRIFFITH-JONES: The Blockleiter Hirth, I respectfully submit, ought to be called, as he is the only Blockleiter represented. The witness Hupfauer ought to be called, because he represents the experts on these staffs. There is a certain amount of dispute about them. And also, he represents a number of political leaders who were in the DAY itself. Of the Gauleiter, Kaufmann and Wahl are experienced. Kaufmann comes from an industrial district and Wahl from an agricultural district, and I understand, if there were to be any preference, that Dr. Servatius prefers Kaufmann. There are also representing the agricultural districts, in addition to the Gauleiter Wahl, the Ortsgruppenleiter Wegscheider and the farmer Mohr. My Lord, I would respectfully suggest that certainly three of those witnesses are unnecessary. They really cover very much the same ground as each other and the Prosecution, quite frankly, would have preferred the witness Wahl. I simply put that forward to explain that they are all from agricultural areas and perhaps one, or certainly two, would be sufficient. Meyer-Wendeborn is an experienced Kreisleiter from an industrial district, and does, to a great extent, cover the same ground as the Gauleiter Kaufmann, so that the Tribunal might consider having one or the other if they felt that the present number was excessive.
Now, I do not think I can assist the Tribunal further than that.
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DR. SERVATIUS: Mr. President, I named two Gauleiter; one from the industrial area-that is, the witness Kaufmann-and the witness Wahl from a rural area in the vicinity of Augsburg. I believe it would be important to get an impression of these two types of Gauleiter; one of these men was active in the Party for 20 years, and the other for 17 years, and both were political leaders. Before being able to judge the activities of the political leaders over such a wide area, and throughout such a long period of time, it is necessary to hear two people from the top level. I should, therefore, like to ask that, if possible, both witnesses be allowed. I should like the witness...
THE PRESIDENT: Dr. Servatius, two things I should like to ask you about these Gauleiter. Did not these two, Kaufmann and Wahl, deal with exactly the same topics before the Commission?
DR. SERVATIUS: Yes, but I want to divide the topics, and ask Kaufmann about relations with the top authorities, with the Reich Government, and Wahl about relations with the 1o\ver echelons, with the Kreis and Ortsgruppen. Of course, I could limit myself to one witness, but then the topics would not lie separated and would be bigger.
THE PRESIDENT: You mean you have not asked them about it before the Commission?
DR. SERVATIUS: Yes, but in the same way, separately.
THE PRESIDENT: There is one other thing. How many Gauleiter have we heard already before the Tribunal?
DR. SERVATIUS: I should think three or four, I do not know the exact figure; but they were not questioned about this topic, because it would have disturbed the taking of evidence at the time if we had gone into such detail.
THE PRESIDENT: Go ahead and deal with the other matters.
DR. SERVATIUS: The next witnesses are for Kreis, Ortsgruppe, and Block, and I think that from each level there should be one witness who can speak of the conditions in his field. Their testimony' will, of course, overlap, but it can be shortened so that the actual examination will perhaps be quite brief and not too far afield; but it is, I think, important to have one witness from each level.
THE PRESIDENT: Could you give the Tribunal any estimate of the time you think it would take to deal with these seven witnesses?
DR. SERVATIUS: I am sure I can do it in one day; it depends
upon how the evidence is to be taken. I assume we shall have a brief summary and clarify only a few questions on principle.
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Then there are two more witnesses, Hupfauer and Mohr. One is from the German Labor Front, from an industrial region, and the other is from the Reich Food Estate and can speak about rural conditions. Both witnesses can speak about the position of the specialist offices which were not political directing offices, and can thus differentiate between the nonpolitical and the political leaders.
That is all I have to say.
THE PRESIDENT: The Tribunal will adjourn.
[a recess was taken.]
THE PRESIDENT: The Tribunal makes the following order:
With reference to the case of the SS, the five witnesses, Brill, Von Eberstein, Hinderfeld, Reinicke, and Hausser are allowed. Rode may be called to be cross-examined before the Commissioners. Interrogatories may be administered to Rauschning, but they must be administered immediately, and they will only be considered if they are received before the case is closed. Further extracts from Rauschning's book, which has been referred to, may be submitted to the Tribunal.
With reference to the case of the SD, the two witnesses applied for, Hoppner and Rossner, are allowed.
The two witnesses applied for by the Gestapo, Best and Hoffmann, are allowed.
With reference to the application on behalf of the Reich Cabinet, the witness named must be called before the Commission.
With reference to the General Staff and High Command, General Von Manstein and two others will be allowed. If it is desired that General Von Brauchitsch should be one of the two, he must be called before the Commission, and it is necessary that these matters should be decided by counsel for the defendant organization at once.
With reference to the political leaders, the defendants counsel must select five out of the witnesses applied for and those five will be allowed.
That is all.
I call on Dr. Von Ludinghausen.
DR. VON LUDINGHAUSEN: May it please the Tribunal: Yesterday I attempted to show the weighty and compelling reasons why the leaders of the German State had to decide to reinstate Germany's armed sovereignty.
But also before making this decision Germany had waited for the outcome of the negotiations for a general agreement on disarmament, which the British Government had opened again with
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the so-called London Communiqué of 3 February 1935, and in which Germany, faithful as always in its foreign policy to the principle of peace, had at once agreed to participate. Germany was prepared to wait even longer, until one could see whether or not these new negotiations would succeed; but before the negotiations had really begun, the French Government, on 1 March 1935, suddenly brought out a new defense bill prolonging military service, and almost simultaneously the British Government published its White Paper, which has already been mentioned. In view of these two measures, the German Government had no alternative: It had to take the steps which I have described, otherwise it would have betrayed its own people.
The effect of these German measures on the Western Powers was a varied one. England and Italy, it is true, at once protested against them as an alleged unilateral cancellation of international treaties; but they did not by any means exclude the possibility of further negotiations, and the British note of protest explicitly inquired whether the German Government was ready to conduct further negotiations of the nature and extent provided in the London communiqué. This inquiry was immediately answered in the affirmative by the Defendant Von Neurath. The reply was contained in the German Communiqué of 18 March 1935, Neurath Document Book 3, Document Number 98, and the then British Foreign Secretary Eden went to Berlin at the end of March 1935 for conversations about the possibilities of an agreement in the naval question.
In this connection, I particularly want to draw attention to the testimony of the witness Ambassador Dr. Dieckhoff, who. was heard here. Only France, in consequence of her attitude that only the League of Nations was entitled to solve collectively the problems of disarmament and, therefore, of peace-only France considered it necessary to submit the measures taken by Germany to the League of Nations, on 20 March 1935, and to induce the League to establish that Germany had committed a violation of a duty incumbent on all nations, the duty of carrying out contracted obligations. It goes without saying that the German Government, in its note of 20 April 1935, refused to accept the renewed discrimination contained in this resolution of the League of Nations.
However, neither this resolution, nor the signing, on 2 May 1935, of the afore-mentioned Franco-Russian Treaty of Mutual Assistance, nor the Russian-Czechoslovak Treaty of Mutual Assistance which supplemented it, prevented Germany from continuing her very active efforts for an agreement with the Western Powers. On 21 May 1935 Hitler, in the German Reichstag, proclaimed a new peace program, in which he again stressed and underlined in the
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most emphatic manner possible his own and the German people's irrevocable will for peace, and his full readiness to participate in any system, or in a collective collaboration, which would guarantee European peace, to re-enter the League of Nations, provided that Germany's equality of rights was acknowledged, and to apply to the rearmament of the German Wehrmacht any restriction which the other powers might also adopt. This speech of Hitler and the diplomatic discussions with other powers, initiated at the same time, had the promising result that the well-known Naval Agreement of 18 June 1935, establishing a fixed ratio of the respective naval forces, was concluded between England and Germany.
This German-English agreement is of the greatest importance in two respects. On the one hand, from a diplomatic point of view, it constitutes no more and no less than the de facto acknowledgment, on the part of England, of German armed sovereignty, the negation of the League of Nations' resolution and, therefore, of the French point of view, and England's acknowledgment and approval of the German act which had been stigmatized by the League of Nations as a treaty violation. For the first time, therefore, Germany's equality of rights was recognized not only de jure but also de facto by one of the Western Powers, and by one of the most important ones.
On the other hand, this agreement proves irrefutably, from the point of view of this Trial, that the Prosecution's contention that Germany's rearmament was an act of preparation for Hitler's future wars of aggression is incorrect. On the contrary, this naval agreement shows quite clearly that German foreign policy, at that time, while it was still conducted by my client, had no warlike intentions of any sort, not to speak of plans, and that the reinstatement of German armed sovereignty was not under any circumstances an indication of warlike intentions, but an obviously defensive measure and nothing else. Would a statesman who harbors warlike intentions or plans, moreover, voluntarily consent to a restriction of his armaments to the extent provided by the naval agreement, and thus endanger the successful execution of his intentions and plans? Even the most malevolent person cannot earnestly maintain that the naval power granted Germany by this agreement was even remotely sufficient for a war of aggression; that has been · clearly established by the evidence in this Trial. Through this agreement Hitler actually deprived himself of the possibility of creating a navy sufficiently powerful to wage a war of aggression. It is clear that any considerable transgression of the agreed ratio of the two navies which, as things were, could under no circumstances and by no means have been kept secret, would beyond doubt have induced England immediately either to increase her
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own navy accordingly or to obstruct this German intention by force, as she had the power to do at any time. From whatever point of view one may look at this naval agreement, nothing can remove the fact that it was, and is, an unshakable proof of the absolute honesty and sincerity of the repeated declarations of Germany's will for peace, an irrefutable proof against the existence of any, even the most secret warlike designs or plans of German foreign policy and, therefore, of its leader, the Defendant Von Neurath.
In France this Anglo-German naval agreement met with general opposition. It was regarded as an arbitrary act on the part of England, a departure from the common line which still found expression in the resolution of the League of Nations, a departure, moreover, which was bound to interfere with French plans. So France was very reluctant and negative in her attitude toward the negotiations which England had begun with the aim of concluding a general air pact, and which ran parallel with the negotiations for the naval agreement. Hitler's speech of 21 May 1935 had also been the cause for these negotiations, because in it, Hitler, referring to the London communiqué, had also offered to take part in an agreement for the limitation of air armament, and the German Government, taking up the English suggestion, actually presented a draft for such an air pact on 29 May 1935. But talks of nearly 3 months' duration between the English and French Governments were necessary before England succeeded in inducing France to consent even to participate in these negotiations. This consent, however, was in reality not a consent at all because, among other things, it was made dependent on the condition that the realization of this air pact must keep pace with the negotiations for the Eastern treaty, and since this treaty had, at that time, to be rejected by Germany for reasons of her own security, as has already been mentioned, it was clear that the French condition would block the way to successful negotiations from the very beginning. When the Soviet sponsored Comintern Congress met in Moscow on 25 July 1935, and it became quite clear that the Comintern's aim was world revolution, Germany's opposition-as will be understood-only stiffened.
It could not be surprising that on 16 September 1935 the Defendant Von Neurath informed the English Ambassador that the German Foreign Office did not consider that an answer to the memorandum of the British Government of 5 August 1935 would be opportune; that was the memorandum which had demanded answers to a number of French questions hardly connected with the air pact. Besides, the conflict between Italy and Abyssinia had already cast its shadows, which alone were sufficient to suspend further negotiations for the air pact. For how could a political agreement between the five powers of the Locarno Treaty be possible-and the
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German Foreign Of lice very rightly pointed this out-if co-operation between these powers was in a state of dissolution, and if some of these powers were even facing each other in armed readiness. On 7 September 1935, as is known, the British Home Fleet set out for the Mediterranean, and negotiations between England and France for the application of sanctions against Italy were in full swing. On 3 October 1935 war broke out between Italy and Abyssinia.
German foreign policy succeeded in keeping out of the events which now followed in Africa and the efforts of the powers to apply sanctions against Italy. But nevertheless these events proved of importance for German foreign policy, too; because they prepared, and especially the question of sanctions, a new constellation of powers, which on one hand led to a closer union between England and France and the adoption by England of France's point of view, and on the other hand brought Germany, again defamed by the resolution of the League of Nations of 17 April 1935, naturally closer together with Italy, who was also defamed by the sanctions applied against her. These sanctions, at the same time, logically enough resulted in the dissolution of the Locarno Treaty, for it was quite impossible to consider a treaty as still justified in its existence if its participants were opposed to one another in such a hostile way that the danger of warlike actions was always present.
The efforts of the French Government, already having begun in its note of 10 September: 1935 to draw England also into the net of its pacts and obligations, clearly showed the tendency of French policy, and were only to confirm the German statesmen's conviction that France was consistently following her policy of encirclement, which was regarded as a menace to Germany. But Germany's leaders and the Defendant Von Neurath were still reluctant to draw the consequences from this state of affairs and take the absolutely essential step for the most primitive needs of Germany's security. German foreign policy, in its unshakable desire for peace and its readiness to negotiate, was still hoping that an agreement could be reached, that France would abandon her course, and that a really honest and sincere understanding with France could be reached. This hope, however, was soon a delusion.
On 16 January 1936 the French Foreign Minister Laval announced that after his return from Geneva at the beginning of February he would ask the French Parliament to ratify the Pact of Mutual Assistance concluded with Russia. And at about the same time the Defendant Von Neurath heard from reliable sources that the French General Staff had worked out military plans for an attack on Germany, providing for the advance of French troops from the Rhineland, along the course of the river Main, for a link with the Russian armies through Czechoslovakia. This proved even to the
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most naive the offensive character of the Franco-Russian pact, and there was even less room for doubt if one took into consideration the negotiations which took place inside and outside the French Chamber before the ratification of the pact. For even in France, opposition to this pact, specifically on account of its offensive character, was not small. The French veterans of the first World War headed the opposition: The Union Nationale des Combattants declared, in a resolution of 8 February 1936, that this pact contained more certainties of war than possibilities of peace. And the speech of Deputy Montigny in the French Chamber on 13 February 1936 was a single flaming protest-this is contained in my Document Book 4, Document Neurath-107. The pact, Montigny said, only widened the breach between France and Germany, and Germany must more than ever gain the impression that she was being encircled if a party dependent on Moscow, like the Communist Party, followed the policy of Delcasse, the policy of revenge and the policy of the former Russo-French pact. The greatest danger of war would arise if France were to convey the impression that she enjoyed the secret protection of Moscow.
Even the German Government made a last attempt to dissuade France from ratifying the pact. In the interview which he gave to Bertrand de Jouvenel, the correspondent of the French newspaper Paris Midi, on 21 February 1936-Document Book 4, Document Neurath-108-Hitler once again held out his hand to the French people for an understanding, for lasting peace and for friendship. "I want to prove to my people," Hitler said, "that the idea of hereditary enmity between France and Germany is an absurdity." And in that interview Hitler once and for all disposed of the continual references to his book Mein Kampf, which were being made at that time just as much as today in this courtroom, when he said:
"When I wrote this book, I was in prison. At that time, French troops occupied the Ruhr-it was at the moment of greatest tension between our two countries. Yes, we were enemies, and I stood by my country as I was bound to do, just as I stood by my country against yours when I spent 4 years and 6 months in the trenches. I should despise myself if, in the event of a conflict, I had not considered myself a German first and foremost. But today there is no longer any reason for a conflict.
"You would like me to correct my book, as a writer would do.... But I am not a writer; I am a politician. I make my corrections in my foreign policy, which is directed toward an understanding with France. If I achieve this German-French understanding, it will be a worthwhile correction."
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In the same interview, however, Hitler drew attention quite clearly to the inevitable consequences of the Franco-Russian pact:
"My personal efforts for such an understanding will never cease. But this more than regrettable pact would, in fact, create a new situation. Are you in France not conscious of what you are doing?
"You are allowing yourself to be drawn into a diplomatic game of a power which is interested only in causing confusion among the great European nations, a state of affairs from which this power alone will derive an advantage. One must not lose sight of the fact that Soviet Russia is a political factor with an explosive revolutionary idea and gigantic armaments."
He concluded the interview by emphasizing again that France could, if she wanted, end this alleged German danger permanently, because the German people had complete confidence in him, their leader, and he desired friendship with France. That Hitler was honest and sincere in these declarations has been proved by the evidence of the Trial.
But it was all in vain. The French Government could no longer be moved to abandon its rigid attitude, and on 27 February 1936, the French Chamber, in spite of all warnings, voted to ratify the pact. The die was cast. On 7 March 1936 German troops again marched into their old garrisons in the Rhineland zone, demilitarized until then. The German Reich had restored its full sovereignty over the entire territory of the Reich. The last of the barriers of the Versailles Treaty, restricting this full sovereignty, had fallen.
This reinstatement of the full sovereignty of the Reich over the Rhineland, however, was of importance for a reason which, from the standpoint of existence of the German State and nation, far surpassed the politics and prestige of this step, and which was also the sole cause for the grave decision of the German Government. This reason was the security of the Reich. As long as the Rhineland was demilitarized, not only was one of the most valuable and most important provinces of the Reich, but the Reich itself, and especially its life source, the Ruhr territory, defenseless against any military attack from the West. The only protection for Germany against this terrible latent danger was the Locarno Treaty of 1925, which was guaranteed by Great Britain and Italy, and in which France and Belgium, on the one hand, and Germany on the other hand, undertook not to wage war against each other. Therefore, for the German Reich, if it was in the future to accept the vulnerability of its western frontier in the form of a demilitarized Rhineland, it was a matter of life and death that the protection which this treaty afforded should not be falsified.
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But the meaning of this treaty and its essence, the protection of Germany, were, in fact, falsified at the moment when the political conditions and constellations which had existed at the time of the conclusion of the treaty changed fundamentally. When the Locarno Treaty was concluded, political conditions in Europe, and also in Germany, were governed and determined solely by the four powers -England, France, Italy, and Germany-acting in unison. And, therefore, the men who made the Locarno Treaty for Germany could legitimately rely on the faithfulness to this treaty of France and Belgium as sufficient protection. These circumstances, however, ceased to exist-and, therefore, the meaning and essence of this treaty, and with it the conditions for the protection for Germany, were bound to change or to be falsified-when France altered this political relationship in Europe fundamentally by concluding her pact of mutual assistance with Russia, and thereby creating a situation which frustrated the aim and purpose of the Locarno Treaty-namely, to give Germany protection against the permanent danger arising from the demilitarization of the Rhineland.
The political constellation of Europe had been completely changed, indeed reversed, by this pact, because the world's greatest military power, which was, moreover, at that time openly revolutionary-minded, had now entered the political arena. In the face of the obscure situation in the East, amply strewn with the seeds of a conflict, the pact could easily result in the possibility of France, in view of her obligations toward Russia, being drawn into a war against Germany, and attacking Germany who might be involved in a conflict in the East. One has to admit that it was in no way certain, or in any case highly problematical, whether the guaranteeing powers, England and Italy, would under those circumstances consider the case in point as one in which the guarantee applied, and would actively assist Germany against a French attack, or whether they would not rather prefer to stay neutral. That this possibility actually existed, also from the legal point of view of the treaty, was already shown in the German note of 25 May 1935 about the French-Russian pact-Document Book 3, Document Neurath-105-and was emphasized again in the German memorandum of 7 March 1936 to the signatory powers of the Locarno Treaty- Document Book 4, Document Neurath-109.
As I have already said, this possibility, this danger, became even greater and more imminent as a result of the events leading up to the ratification of the French-Russian pact by the French Chamber, and as a result of the ratification itself. It was, therefore, an imperative and manifest act of self-defense and self-preservation when the German Government, in realizing this tremendous danger, took the minimum steps necessary to meet this danger-namely,
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when it restored the armed sovereignty of the Reich in 1935, when one year later it reoccupied the demilitarized zone, the ideal base for any French attack, and thus advanced the defense line against any attack from the West forward to the border of the Reich.
With all due respect to the rights and rightful interests of other nations, the very highest, overriding duty of every government- and of all responsible statesmen-was, is now, and always will be, to maintain and safeguard the existence and life of its own state and nation. A statesman who neglects this duty commits a sin against his nation. The re-establishment of armed sovereignty, rearmament, and the reoccupation of the Rhineland were the natural reactions, the dutiful answer, of the German statesmen-and of the Defendant Von Neurath-to the policy of the French Government, in which, after all that had gone before, they saw a threat to Germany.
Far be it from me-and I wish to state this quite emphatically- to reproach by my foregoing statements the French Government here, morally or otherwise, for its policy as I have described it. I am, in fact-together with the Defendant Von Neurath-firmly convinced, and I recognize fully, that the French policy was dictated solely by France's interests, and that the French statesmen surely did only what they believed was right from the French point of view. And if, in doing this, they proceeded on a premise which, according to German conviction, was a false one-namely, the premise that a Germany which had regained her strength constituted a danger and a threat to France, and that the German people had always regarded the French people with blind rage, hatred, and enmity, and were animated only by a passion for aggression and a desire for revenge-then my client and I can only sincerely deplore this, but we cannot condemn it.
But, on the other hand, I, too, must claim for the German statesmen-for the Defendant Von Neurath-the right that their deeds and actions be judged on the basis of their reasons, on the basis of the needs and circumstances of the time, and from the viewpoint of German interests; and that these men not be accused of motives which in themselves are more than improbable and were, in any case, far from their minds.
Politics, diplomacy, is history come to life. Like the entire universe, like everything that lives and moves in it, this living history, too, is subject to an unchangeable fundamental law, the law of causality. And I believe, Gentlemen of the Tribunal, that I have been able to produce clear evidence that the two actions with which the defendant is charged by the Prosecution, and which are said to incriminate him, in particular, because they constituted
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treaty violations in preparation for war-namely, the re-establishment of the armed sovereignty of the Reich and the remilitarization of the Rhineland-were a logical and inevitable sequence of the events and the political development during the years of my client's activity as Foreign Minister, the result of the policies of the Western Powers; and that neither he nor Hitler consciously, intentionally, or according to a preconceived plan, brought them about, but that they were the unavoidable outcome of French policy. They, therefore, not only cannot have an aggressive character or tendency, and cannot indicate preparations for war, as the Prosecution assert in their retrospective consideration of these things but, on the contrary, they served only the defensive purpose of warding off a possible attack, and have a decidedly defensive and, therefore, peaceful character. That they cannot, therefore, be viewed as actions preparatory for a future war of aggression on the part of Germany, I need hardly emphasize.
The assertion of the Prosecution proves only that it is absolutely inappropriate and quite absurd to view retrospectively and draw conclusions from single historical actions and events torn out of their context and roughly and incoherently put together This way of viewing things is absolutely useless for the purpose of investigating and finding historical truth, which is surely the first condition and duty of this High Tribunal not only for the forming of their judgment but also for their task of showing the way for a new conception.
But a critical examination of the two steps charged against the defendant as breaches of international treaties fails, upon closer scrutiny of the circumstances, to prove the charges sound. For the Treaty of Versailles, as well as the Treaty of Locarno, had, in the course of time and events, not only lost their significance and therewith their inherent justification, but both of them had long since been broken by French policy and, therefore, annulled. The Treaty of Versailles had been broken by the obstinate refusal to carry out the disarmament obligations imposed upon France, as well as upon the other contracting nations, in return for Germany's disarmament; and the Treaty of Locarno had been broken by the conclusion of the agreement with Russia, which was incompatible with the Locarno Treaty. History, as often before, had passed over them, and had thus shown the absurdity of applying rigidly the dogma Pacta servanda sent, as France tried to do with regard to Germany. This fact cannot be altered by the League of Nations resolution of 19 March 1936, which had been proposed by France, and which in itself was not astonishing in view of France's dominating position in the League of Nations; in this resolution the League stated that by reoccupying the Rhineland, Germany had
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violated Article 43 of the Treaty of Versailles. But history passed over that, too.
I do not think that further comments are needed upon this resolution and the statements and parleys between the participating nations which preceded and followed it; they came to nothing, in the course of events,' and Europe finally made the best of the accomplished facts.
But even on the supposition that this resolution were correct, a breach of an international treaty is punishable-according to the Charter of the High Tribunal-only if it served in the preparation of a war of aggression. And during this Trial one of the gentlemen of the American Prosecution expressly stated that it was absolutely legal and justifiable to bring about the revision or annulment of treaties by peaceful means; and German foreign policy did nothing else. The whole military action of the reoccupation of the Rhineland was, in view of the small force of troops used-only one division, and the Luftwaffe did not take part in it at all-in reality only a symbolic act for the restoration of the sovereignty of the Reich; that was already evident from the- fact that, as early as 12 March 1936, the German Government, through a statement of its Ambassador in London, contained in my Document Book 4, Document Neurath-113, made the proposal that in the case of reciprocity it would not reinforce its troops and would not order them to advance closer to the borders. The proposal was rejected by France.
German policy has throughout, and in every respect, remained true to its principle of peace for which it had consistently stood for many years; and in reality it only desired to serve and did serve peace and its maintenance in Europe. Both steps, the restoration of armed sovereignty and the reoccupation of the Rhineland, were-and I especially want to emphasize this here-were nothing else but the visible expression of the full and unrestricted sovereignty of the Reich. This sovereignty had already been recognized by the Western Powers in the oft-mentioned Five Power Agreement of 11 December 1932, containing the recognition of Germany's right of equality. More conclusive evidence can hardly be found for the love of peace and the clear policy of peace of the Defendant Von Neurath than the fact that he waited for years for the realization of this recognition in order to avoid complications which, in view of the earlier attitude of the French and their policy, might possibly have arisen. He waited for years-up to the moment when, in consequence of the changed balance of power, this realization became an unquestionable necessity for the security of the Reich, a necessity of self-defense.
And German foreign policy continued unchanged in practice to follow this peaceful tendency even after, and in spite of this resolution. In the German memorandum of 31 March 1936-Document
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Book 4, Document Neurath-116-the German Foreign Office, on behalf of the Reich Government, once more submitted to the powers a new great peace plan for a quarter of a century of peace in Europe, by means of which, as is stated at the end, it wanted to make its contribution to the building of a new Europe on the basis of mutual respect. This again was clear and unmistakable evidence of its unalterable will for peace. It was not Germany's fault that this German peace plan-and its absolute honesty and sincerity has been affirmed here upon oath by the defendant-was not successful and did not lead to the building of a new and peaceful Europe.
The same peaceful tendencies and intentions continued to be uppermost in the defendant's policy during the years 1936-1937, in spite of all disappointments. Evidence of this is, above all, the treaty between the German Reich and Austria, which was concluded on 11 July 1936, as the result of negotiations which had been conducted for some time by the Defendant Von Papen. Not only the defendant's own testimony but also the testimony of the witnesses K8pke and Dieckhoff proves beyond doubt that the view on the Austrian question, which from the very beginning the defendant consistently held and supported, was this: closer cooperation between the two countries-both in the political and particularly in the economic field-must indeed be aimed at, but Austria's independence must, under all circumstances, be respected and remain untouched. For that reason, the defendant was an implacable opponent of any German attempts to interfere in the internal politics of Austria, and of the attempts of the Party to support the Austrian National Socialists in their fight against the Austrian Governments of Dollfuss and Schuschnigg; and he again and again protested to Hitler against them, not without success. mat he, this Christian-minded and honorable man, abhorred and condemned the murder of Dollfuss from the bottom of his heart, I need not emphasize. And exactly from that point of view he welcomed the agreement of It July 1936, since it so fully corresponded to his own opinions. His alone refutes the assertion of the Prosecution that the agreement was concluded with intent to defraud-that is, with the intention to lull the Austrian Government into security and thereby to prepare and facilitate for the future the real intention already existing at that time-namely, to incorporate Austria by force into the German Reich.
The absolute sincerity and honesty of the defendant during the conclusion of the agreement is confirmed by the sworn testimony of the then Austrian Foreign Minister Dr. Guido Schmidt. And that the Defendant Von Neurath had no reason to doubt Hitler's honesty and sincerity with regard to this treaty was shown quite irrefutably by the witness Kopke, who confirmed Hitler's statements to the
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British Foreign Secretary Simon during his visit to Berlin in March 1935; the defendant himself gave evidence that, immediately after the conclusion of the agreement, Hitler told the leaders of the Austrian National Socialists Rainer and Globocznik that it was their duty and the duty of the Austrian Nazis to adhere strictly to this agreement. And so, from his viewpoint, the defendant considered this agreement as another step on the road toward peace in Europe, since the recognition of Austria's independence, which he had pronounced in the agreement, eliminated the European danger point inherent in the Austrian problem.
In the same way, the defendant worked for an improvement of the relations between Germany and the Czechoslovakian Republic. It was only with this aim in mind that he so often pointed out to the Czechoslovak Ambassador Dr. Mastny that the Czechoslovak Government must at last meet the demands of the Sudeten Germans, still very moderate at that time, which were based on a promise once given by the Czechoslovak Government in Versailles, but not kept. Nothing, however, was further from the defendant's mind, in both the Austrian and the Czechoslovak question, than the idea of a solution of these questions by force, a solution which later, after the defendant had left his position as Foreign Minister, Hitler considered right.
And his efforts to improve the relations between the Reich and the southeastern European nations also did not serve any aggressive intentions or even plans to partition Czechoslovakia with the help of these nations. If in Messersmith's affidavit it is alleged that in order to secure this aim Germany had promised to the southeastern states, and also to Poland, parts of Czechoslovakia and even of Austria, then these are entirely absurd ideas which do not contain a word of truth. What the true value of these assertions is becomes clear from the fact that the Prosecution have not been able to submit a single report from one of the diplomats of the Western Powers accredited in the states in question, which could confirm the accuracy of these assertions. Was only Mr Messersmith clever enough to obtain knowledge of such plans? In reality, the defendant's efforts and his trip to Budapest, Belgrade, and Sofia served only peaceful purposes-namely, the exchange and strengthening of economic relations between Germany and these states. As the testimony of the witness Kopke showed, the defendant was particularly interested in these efforts, and they influenced his policies.
How much he opposed any policy which seemed to him even remotely out of line with his own policy of peace and international reconciliation is best proved by the fact that he rejected the negotiations with Japan, which the Defendant Von Ribbentrop had entered into and conducted in London without his assistance and
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completely independent of him on direct instructions from Hitler, and also the Anti-Comintern Pact which was finally concluded with Japan. He expressed his opposition clearly by refusing to sign this pact, and it was, as is well known, signed by Herr Von Ribbentrop as Ambassador, which was a most unusual procedure. The objection of the defendant to this kind of policy could hardly find a stronger 'form of expression.
The Defendant Von Neurath adhered faithfully and unflinchingly to his consistent peace policy up to the last moment, in spite of the influences of other circles-especially Party circles-on Hitler which made themselves felt during the defendant's last years in office. He hoped, until the last moment, that he would be able to check these influences successfully, to eliminate them and to continue directing the policies of Germany along peaceful lines, according to his own convictions and his promise to Hindenburg.
When Hitler's speech on 5 November 1937, and the defendant's subsequent conversation with Hitler about it, forced him in 1938 to the conclusion that he no longer had any influence on Hitler, that Hitler would no longer shrink back from aggressive, warlike measures, he immediately took the consequences and submitted his resignation, which was accepted. His task, entrusted to him by Hindenburg, had become impossible to fulfill. He would not, and could not, have anything to do with a policy which did not shrink from warlike measures. It was completely out of the question for him to endorse such a policy with his name; it would have been the negation of his entire life work; he would have betrayed himself and his people.
But this did not mean that the defendant, who placed the welfare of his people above everything, even above all his personal interests and desires, would not make himself available again if the need arose, or if he believed that he would be able to save Germany from warlike complications, for that was the danger of the policy which Hitler now directed along a line different from that of the defendant. This attitude of the defendant readily explains why, when Hitler summoned him on 11 March 1938 to inform him of the march of German troops into Austria and, because Reich Foreign Minister Von Ribbentrop was away in London, to ask him to advise him and to answer the note of protest from the British Embassy, he declared himself willing to do so.
If the Prosecution now charge that the contents of this answer were factually incorrect, the following must be pointed out in response. In this letter the defendant only stated what Hitler himself had told him about the events. The defendant himself knew just as little about the actual events as the rest of the world, since after his resignation as Foreign Minister he no longer received
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political information of any sort. Hitler's announcement that German troops were marching in surprised him just as much as it Surprised everybody else, and as the order for it had surprised even the highest commander of the German Armed Forces, which Henderson himself admits in his well-known book, wherein he adds that Hitler's decision to march in could have been made only a few days before. There was even less reason for him to doubt the accuracy of the description which Hitler had given him of the preceding events, because he had given it in the presence of Goring who had not contradicted it. It did not even occur to him-because of his own upright and true nature, and because of his entire previous official activity under clean and honest governments-that the head of the State, Hitler, could lie to him and at such an important moment, for the purpose of answering the British note of protest, give him information which was bound within a very short time to be proved manifestly incorrect. And whom could he really have consulted? Only very few men besides Goring had real knowledge; but those he could not approach, because they were not in Berlin. Goring did not contradict Hitler's description.
I particularly want to point out that the reply which the defendant authorized to be drafted on the basis of Hitler's description, and for which he also did not use the letterhead of the Ministry of Foreign Affairs, was not signed by him in his own name nor on behalf of the absent Foreign Minister but, as the wording of the document discloses, the description of the events was forwarded by him on the order of the Reich Government. But the Reich Government was Hitler, or rather on that day Goring. He, therefore, made perfectly plain that he was not writing in his own name, on his own responsibility, but that like an attorney, he was only forwarding information of a third person-namely Hitler. He really cannot be reproached for not having doubted the accuracy of this information and for not having checked the official description of the head of the State-and Hitler was, after all, the head of the State-quite apart from the fact that he would not have been in a position to check it.
He also cannot be reproached for the statement which he made a short time later to the Czechoslovak Ambassador Dr Mastny. In the first place,-according to the sworn statement of the defendant, the discussion in question took place in a way rather different from that described in the report of Ambassador Dr. Mastny, which apparently aimed at greater emphasis and effect. But, in any case, the penultimate paragraph of this report-Document Book 5, Document Neurath-141-shows clearly that even Mastny interpreted and understood the statement of the defendant that Hitler had no intention of attacking Czechoslovakia and, now as before, considered
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himself bound by the provisions of the agreement of arbitration which offered no guarantee for ever after but only for the immediate future; that is, until the action against Austria had been terminated. In view of the insufficient preparations of the Wehrmacht for a war, confirmed here by the Defendant Jodl, there was absolutely no reason to doubt the accuracy of this statement; that is, to doubt that it actually corresponded to Hitler's wish at the time, in spite of the references of the Prosecution to Hitler's statements, in his speech on 5 November 1937, about the conquest of Austria and Czechoslovakia. For these statements referred only to the possibility of war with other states and to a mum later period.
So the accusations raised by the Prosecution against the defendant on this point are also unfounded. That already a few months after his speech on 5 November 1937 Hitler decided to incorporate Austria into Germany came as a surprise to all, even to his closest collaborators. This decision, however, was taken not only on the basis of developments in Austria, but most likely not least on the basis of conferences between Hitler, the defendant, and Lord Halifax, the then Lord President of the Council, in November and December 1937, in which, according to the sworn statement of the defendant, Lord Halifax declared that the British people would not understand why they should enter a war because two German countries had united.
[The Tribunal recessed until 1400 hours.]
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DR. VON LUDINGHAUSEN: Once more, in the autumn of 1938, the Defendant Von Neurath took it upon himself to stem the tide of events in order to spare the German people the immediate danger of war. In view of the corroboratory testimony of Goring and other witnesses, I need not describe in detail how the Munich conference, toward the end of September 1938, had come about. The fact remains that it was held and was successful-I refer to the agreement with Britain and France on the Sudeten question- and this was due in no small measure to the initiative and cooperation of the defendant.
If, however, he was able to accomplish this, it is because of a circumstance which the Prosecution, completely misunderstanding the situation, now include among the accusations-namely, that upon his resignation as Foreign Minister he was appointed President of the Secret Cabinet Council, which had been newly created by Hitler at this time. Had he not been in this position it would not have been at all possible for him to get to see Hitler in September 1938 and persuade him to agree to the Munich conference; for, contrary to the allegation of the Prosecution, even though he kept the title of Reich Minister from the day he resigned as Foreign Minister, he was no longer a member of the Reich Cabinet, which is already shown by the fact that from that day on his salary was decreased by one-third. Any joint responsibility which the defendant might have had for the policy of the Reich ceased as from that day; for, contrary to the assertion of the Prosecution, as President of the Secret Cabinet Council he was not a member of the Reich Cabinet and had no access to it, let alone a seat or a vote in the Cabinet sessions. This is established beyond doubt by the very wording of Hitler's decree whereby this Secret Cabinet Council was created; for there it says expressly that the sole purpose of this Secret Cabinet Council was to advise the Fuhrer personally-that is, Hitler alone-and only on questions concerning foreign policy. Even Huber's book Verfassungsrecht des Grossdeutschen Reiches, quoted by the Prosecution under Document 1744-PS in their attempt to prove the contrary, shows that the Secret Cabinet Council and its President had nothing whatsoever to do with the Reich Cabinet, and was not a branch or an organ of it, but only one of several of the Fuhrer's personal offices.
As had been shown by the testimony of Goring, Lammers, and other witnesses, the Secret Cabinet Council never really functioned, and was never meant to function. In point of fact, all that was intended was to bestow a personal honor on the defendant, and
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thus efface the impression that differences had arisen between him and Hitler. That he himself did not look upon his appointment in any other way is proved by the fact that after 4 February 1938 the defendant lived a life of leisure on his own estate in Wurttemberg as a private citizen, and went only very rarely to Berlin where, however, he was not and could not have been active in any official capacity, since all information as to what was happening in the Foreign Ministry was deliberately kept from him.
If the Prosecution believe that they are able to conclude, from the documents submitted under Number 3945-PS, that the defendant received sums of money from the Reich, or the Reich Chancellery, for obtaining diplomatic information, then-apart from the defendant's own testimony under oath-this is refuted by a letter among these documents, dated 31 May 1939, from Amtsrat Koeppen, the head of the office of the Secret Cabinet Council, which was kept going merely for the sake of appearances-a letter which proves conclusively that these not very large payments at long intervals were for covering the cost of maintaining this office, and were not intended for purposes of secret information.
And if the defendant made no use of his position as President of this Secret Cabinet Council-except for this one occasion in September 1938 he made just as little use of his position as a member of the Reich Defense Council, to which he was appointed by the Reich Defense Laws. Here, too, the Prosecution err when they make use of this membership to accuse the defendant of warlike intentions or of promoting such intentions.
Since this Reich Defense Council has already been discussed so much during the hearing of the evidence, I believe there is no need for me to examine more closely this assertion of the Prosecution, and that I can limit myself to pointing out that no aggressive. tendencies of any kind were embodied in these Reich Defense Laws; but that, on the contrary, as their contents state, they merely contain-as is the custom in any country which has to reckon with the possibility of a war-the necessary provisions in the event of the Reich's being attacked, or being drawn into a war in some other manner. How one can deduce from them that the defendant had warlike intentions, or planned for war, is utterly incomprehensible. Moreover, the defendant did not take part in a single one of the meetings of this Council, and no reports about the decisions of this Council were ever forwarded to him. The Document 2194-PS, submitted by the Prosecution as alleged counterevidence, was not sent to the defendant at all, but to a department of the Reich Ministry of Transportation attached to the Government of the Protectorate-namely, the transport department-and was intended for the latter. Also the sender of the
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document was not the Reich Defense Council, but the Ministry for Economy and Labor of Saxony.
All these and similar efforts will never enable the Prosecution to prove that the defendant, by his policies, was at any time directly or indirectly guilty of a crime of planning or preparing an aggressive war, or even of approving or supporting such a war. Quite the contrary. All his efforts were directed to one end, and one end only: to attain by peaceful means and in a peaceful way only those aims which had been sought by all former democratic Governments after 1919-namely, the removal of the provisions of the Versailles Treaty which discriminated against Germany and stamped the German Reich as a second-rate power, and the bringing about of a general pacification of Europe. Not one of his diplomatic actions served any other purpose, or was performed with any intention which would imply a crime in the sense of the Charter. It is not surprising, therefore, that his resignation as Reich Foreign Minister was received by the whole world with anxiety and dismay, both outside Germany-I refer ,to the statement of the witness Dieckhoff-as well as inside Germany, and especially in conservative circles. This alone serves to prove that the assertion of the Prosecution, that he was active in these circles as a fifth columnist, is untrue.
All the Prosecution's references to Hitler's speech to his generals in November 1939, and still less to the speeches by the defendant himself of 29 August and 31 October 1937, will alter none of those facts. Hitler's speech was made at the time of the first military successes and was calculated to vindicate Hitler's state leadership, and should be taken at its face value. The speeches made by the defendant, however, say just the opposite of what the Prosecution see fit to put into them. For both speeches, Numbers 126 and 128 in my Document Book 4, stress quite clearly the success of the peaceful intentions of the German foreign policy conducted by the defendant, and lay particular emphasis on the fact that the results were obtained entirely by peaceful means, and not by means of force. In particular, the speech of 31 October 1937, the last public speech of the defendant as Foreign Minister, is actually a resume of his peace policy. That this was and still is a correct resume, the Prosecution themselves have had to admit in this Court-that Hitler's speech of 5 November 1937, which was used by my client as an excuse for his resignation, was, as described by a member of the Prosecution, the turning point in German foreign policy. Thus the Prosecution acknowledged unequivocally that up to that day German foreign policy had not been an aggressive policy of force, or pursued any warlike plans or schemes, but had been peaceful throughout.
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Indeed it could not have been otherwise, in view of the defendant's political and humane creed; and this has been unanimously confirmed by all witnesses examined here and in all of the questionnaires and affidavits in my document books. This creed was built on three main pillars: love of men, love of the fatherland, and love of peace-all three springing from and sustained by a deep sense of responsibility toward himself, toward his God, and toward his people.
When, a few days after the occupation of Czechoslovakia, Hitler called the defendant to Vienna from his well-deserved otium cum dignitate on his estate, and told him that he had been selected as Reich Protector for Bohemia and Moravia, it was this same sense of responsibility which made him feel it his duty to accept this post. At first he was opposed to the idea and struggled long with himself, for he had always been an inveterate opponent of any interference in the affairs of other nations, let alone the more or less forcible annexation of a country to the German Reich. It was for this reason that he had also condemned the annexation of Czechoslovakia and the so-called protection pact concluded with President Hacha, although at this time he had not the slightest idea of how this really came about. He got to know the true facts of this incident for the first time here in Nuremberg.
In spite of his reluctance to accept a public office once more, especially at his age, and to serve again under Hitler and his regime of which he heartily disapproved, his sense of responsibility toward his people and his humane principles persuaded him that it would be wrong to refuse this mission. When Hitler explained to him that he had chosen him as being the only man possessing the necessary qualities to reconcile the Czechoslovakian people with the new conditions and with the German people- which Hitler said was his desire-he could not fail to recognize that the task given him was one which, in the interests of the German people, of humanity, and of international understanding, he ought not to refuse. And was it not indeed a task worthy of the utmost effort, to appease by just government and humane treatment a people who would regard every restriction and encroachment on their liberty and independence as the worst injustice that could be done them, and who would be filled with mortal hatred and resentment toward a people they felt to be an intolerable oppressor, and to reconcile them with these very people and the conditions for which they were directly responsible? But was not this aim in line with the endeavor to insure and preserve peace, which clearly and unequivocally pervaded his whole foreign policy? And he had every justification for telling himself that if he refused this task, then another man from Hitler's
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entourage would in all probability be nominated Reich Protector, who would be neither able nor willing to conciliate the Czech people by humane and just treatment, but who, on the contrary, would be more inclined to hold them down by force and terror, as indeed happened 21/2, years later.
Such were the only thoughts and considerations which led him to accept the appointment offered him, setting aside all personal interests and willing to face the risk that this might be interpreted and held against him in some quarters as denoting approval and support of Hitler and his regime-for Hitler had made him the definite and firm promise that he would at all times be willing to support the defendant's intended policy of appeasement and reconciliation for the Czech people through humane and just treatment and through safeguarding the interests of the Czech people to the greatest extent.
He was fully aware that the task which he had accepted was a difficult one. I do not hesitate to admit that it was here a question of a decision, the justification of which could-if one admits the point of view put forward here by the British prosecutor that it was immoral to remain in a government which should be repudiated because of its amorality-cause embarrassment in the judgment of a man whose thoughts arid dealings were different from those of the Defendant Von Neurath. But having in mind the character of Herr Von Neurath, which I hope has been described to you clearly enough, and his deep sense of responsibility, this decision was the only possible and logical one. It is a veritable tragedy, resembling those of the ancient Greeks, that the failure of this mission, which had been undertaken with only the highest ethical motives, should have brought the Defendant Von Neurath into this dock.
But at this point now, I should like to make the following comments on the Prosecution's attempt by means of the photostatic documents which they submitted under Document 3859-PS-consisting of a letter from the defendant to the Chief of the Reich Chancellery Lammers, dated 31 August 1940, and its alleged enclosures-to discredit the defendant's assertion that in assuming his office as Reich Protector his sole aim was to appease and reconcile the Czech people by safeguarding to the utmost their interests and their national traditions, and thus work for the well-being of this people and their prosperity as a nation. I believe that the second examination of the defendant, which the Tribunal, in their readiness to help, granted to me, has proved that those documents, particularly the two reports attached to the letter to Lammers-which indeed, with regard to the question of the Germanization of the
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Czech people, cannot be reconciled with the intentions and tendencies of the defendant as mentioned above-have no evidentiary value. Not only do those photostatic copies in no way tally-and the defendant has made a definite statement to this effect-with the contents and the form-that is, the length of the originals attached to the letter to Lammers, and which had been submitted to the defendant for signature and approved by him-but the photostatic copies also give rise in several places to well-founded doubts as to whether they are really identical with the enclosures to the letter addressed to Lammers, and this owing to the following facts.
Contrary to the practice adopted by all administration offices, neither of the photostatic copies bears the reference number of the letter to Lammers, or even a note that they are enclosures to a third document, let alone to the Lammers letter. Neither does the photostatic copy of the first report bear the defendant's signature which, according to his definite statement, when he signed the letter to Lammers, he added to the report enclosed with it, which report had been drawn up by himself or by his office according to his instructions, and submitted to him in a fair copy. Another thing which strikes one is that it only bears a correction note of the copy which should have been, but actually was not, signed by an SS Obersturmfuehrer working in the office of State Secretary Frank.
These facts support the defendant's assertion that, if the reports from which the photostatic copies have been made were in fact annexed to the Lammers letter, they have been substituted for the original report of the defendant and for Frank's report-the draft of which was approved by the defendant in the office of State Secretary Frank which was entrusted with the dispatch-either by the latter or by his orders. Furthermore, the defendant's statement, made by him in order to explain the purpose of this Lammers letter and its enclosures, is quite worthy of belief: namely, in the same way as was intended by the plan contained in General Friderici's report-dated 15 October 1940, submitted under Exhibit USA-65, Document L-150-to induce Hitler by reporting verbally to him, and on the basis of the two reports sent, to abstain from dividing the Protectorate territory and from germanizing the Czech people in any way whatever, and to prohibit any such plans, a course which the defendant repudiated for many reasons, but chiefly because he had at heart the interests of the Czech nation, which had been entrusted to him, and its national character and unity. These assertions of the defendant are confirmed by the statements of the witness Von Holleben in the questionnaire answered by him,-Document Book 5, Document Neurath-156-of the witness Dr. Von Burgsdorff, as well as by the
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defendant's letter to Baroness Ritter-quoted in her affidavit, Document Book 1, Document Neurath-3.
And the defendant has actually succeeded in carrying his point, as shown by Ziemke's report on his conversation with Hitler, submitted by the Prosecution. As long as he was in Prague, no measures were taken to germanize the Czech people; the defendant even prohibited the discussion of this entire question, as shown by Document 3862-PS submitted by the Prosecution. Especially by preventing any division of the Protectorate territory and any more or less forcible Germanization of the Czech nation according to plan, the defendant has proved, in the most striking manner, the sincerity of his aims and endeavors to protect and preserve the Czech people, their national traits, and their national unity and character, in conformity with his principles and intentions as stated publicly in his article on the New Order in Central Europe, reproduced by the Frankfurter Zeitung of 30 March 1939-Document Book 5, Neurath-143-which set forth his line of conduct for the accomplishment of his task.
In this article he himself describes his task as a fine one, but at the same time a difficult one. How difficult it really was-how nearly impossible-was to become obvious, unfortunately, only too soon.
Chief among the reasons for this was that from the beginning not only were the full powers in the Protectorate not transferred to the Reich Protector, not only was he not given the sole executive and controlling position-quite apart from his subordination to Hitler-but also his competency and powers were not sufficiently clearly defined. It is true that Hitler's decree of 16 March 1939, establishing the Protectorate, and the supplementary decree of 22 March 1939-Document Book 5, Documents Neurath-144 and 145- had specified that the Reich Protector was subordinate to the Fuhrer and Reich Chancellor, that he was to be the sole representative of the Fuhrer and the Reich Government, and was to receive his directives from the Fuhrer and Reich Chancellor.. But, at the same time, not only were certain administrative branches, such as the Armed Forces, communications, the postal, telegraphic and telephone services, removed from his control at the very beginning, but the Reich Government-that is, the Reich-had also been given the right to take under its own so-called "reichseigene" jurisdiction, in the administration of the Reich proper and independent of the Reich Protector, those administrative branches which actually were Reich Protector offices, and to establish, if necessary, Reich offices which did not fall within the Reich Protector's competence. The Reich was also given the right to take measures necessary for security and order in the Protectorate over the head of the Reich
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Protector himself. Furthermore-and this is the most important point of all-every one of the many supreme Reich authorities- that is, not only the Reich Ministries but, for instance, the Reichsbank, the Four Year Plan, the Ministerial Council for Defense of the Reich, and others-was given the right to decree laws and organizational measures on its own authority, quite independently of the Reich Protector and, therefore, could interfere in these administrative branches which actually were to come within the jurisdiction of the Reich Protector without the Reich Protector having either the right or the possibility to protest against or prevent such decrees or measures should they be in opposition to his own decrees, measures, and policy. On the contrary, he was bound not only to publish them in the Protectorate if asked to do so but also to supervise their execution.
Therefore, the position of the Reich Protector was, to use an example by way of explanation, by no means the same as that of the British Viceroy in India; it was more like the position-though to outward appearances on a somewhat higher level-of a Reichsstatthalter or the Oberprasident. Therefore, it was different from what had hitherto been understood constitutionally by a protectorate; nor could it be otherwise, because this so-called Protectorate of Bohemia and Moravia belonged, according to Article 1 of the abovementioned decree of 16 March 1939,-and to this I wish to draw particular attention here-to the territory of the German Reich- that is to say, it was a part of the German Reich. And it only had a certain amount of independent authority, a limited autonomy within the Reich, so that the laws and regulations valid in the rest of the Reich territory were introduced into the Protectorate as a matter of course. It was quite obvious that this vague and loosely defined limitation of the powers and competence of the Reich Protector was bound to lead very soon to the greatest difficulties, difficulties not only in the way of a uniform policy, uniformly conceived and directed, but difficulties which prevented the defendant himself, as Reich Protector, from governing in the way he wished and from keeping to the course already taken, difficulties and reverses which became more and more acute in the course of time.
In view of all this, it follows that the responsibility of the defendant can only be judged against this background-that is, only by taking into account the power exerted by these many other authorities. He can never be held responsible for decrees, measures, and actions which he did not decree or order himself, but which were decreed without his co-operation, without his knowledge, even against his will, by authorities or other offices outside his sphere of power and influence-decrees, measures, and
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actions which he had neither the right nor the power to prevent, and for which he was at most an intermediary, a link in the chain.
This is especially relevant for the accusation of joint responsibility brought against him by the Czech Prosecution-Document USSR-60(a)-for all the actions of Hitler and of the Reich Government before and after the setting up of the Protectorate. The Prosecution take as basis for their assertion the fact that Herr Von Neurath, after having given up his post as Reich Foreign Minister, remained a member of the Reich Cabinet-whereas in fact this is incorrect. I have already proved elsewhere beyond all doubt that he was not a member of the Reich Cabinet, either as a Minister without Portfolio or as President of the Secret Cabinet Council; nor was he a member of the Reich Cabinet as Reich Protector. That, too, is certain, and has never been maintained by the Prosecution before this Court. Therewith, any joint responsibility of the defendant for any actions or measures which preceded or prepared the way for the setting up of the Protectorate is disproved. Also I have already proved elsewhere that his statement to the Czechoslovak Ambassador on 12 March 1938, which has been used by the Prosecution in support of their allegation that this prepared the way, was not false, not deceitful, and therefore was not an action which prepared the way for the invasion of Czechoslovakia.
If the Czech Prosecution further deduce from Article 5 of the above-mentioned decree of 16 March 1939 that, as Reich Protector, he was wholly responsible for everything that occurred in the Protectorate during the time he was in office-that is, from 17 March 1939 to 27 September 1941-then this conclusion also is wrong and factually incorrect, in view of the actual position with regard to the division of powers in the Protectorate, as explained above. There is no system of law in the world according to which one can charge a person with criminal responsibility for occurrences and acts by third persons, acts in which he did not participate or co-operate, or which even occurred against his will.
Thus he cannot be made responsible for the fixing of the rate of exchange between the Reichsmark and the Czech crown, because this rate had already been fixed when he took over office; neither had he any hand in fixing it, nor had he the power or right to change the rate of exchange-quite apart from the question, which we need not discuses here, of whether, as the Prosecution maintain without producing proofs, the rate of exchange really was detrimental to the Czech people or not. Incidentally, I need hardly say that even if this had been the case, it would not be a crime according to the Charter, and only as such would it be punishable.
Nor can he be made responsible for the setting up of the customs union and putting it into practice. This had already been
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laid down in Article 9 of the decree of 16 March 1939, which reads, "The Protectorate belongs to the customs area of the German Reich and is subject to its customs sovereignty." This regulation was a natural consequence of the fact, which I have already stressed, that the Protectorate was a part of the territory of the German Reich. However, I would like to draw special attention here to the fact that the defendant, because he regarded the inclusion of the Protectorate into the customs area-the customs sovereignty of the Reich-as detrimental and harmful to Czech economy, managed to prevent this inclusion for a year and a half, until October 1940, in spite of all the pressure exerted by the Reich Finance Minister, which is clear proof that the defendant put the interests of the Czech people, who had been entrusted to him, above the interests of the German Reich. He had absolutely nothing to do with the economic measures for the alleged transfer of Czech banks and industrial undertakings nor with filling the key positions with Germans. Those measures were taken by other offices-especially by the Reichsbank and the Delegate for the Four Year Plan- behind his back and without his collaboration. These were merely the natural consequences of the fact that already in earlier days a very large amount of German capital had been invested in these banks and undertakings, and this capital increased after the occupation because the credits given by the other countries were withdrawn by them and were now granted by German firms.
Lastly, he had nothing whatever to do with the judiciary. This was exclusively under the control of the Reich Ministry of Justice. This alone set up the German courts, including summary courtsmartial, and the prosecuting authority; it alone appointed judges and prosecutors. Herr Von Neurath himself had nothing to do with these appointments and still less with the jurisdiction of the courts, as is clearly shown by the ordinances and decrees by which they were set up, especially the decree concerning the practice of criminal jurisdiction, of 14 April 1939,-Document Book 5, Document Neurath-147.
Here again I must draw attention to the fact that neither the economic measures nor the setting up of German courts in the Protectorate, which was a part of the German Reich, can even remotely fall under the category of crimes enumerated by this Charter. And this applies equally to the alleged intrusions into the Czech educational system, the appointment of German school inspectors, measures with which the defendant has been charged in the Czech indictment. These measures also were not taken by him, but by the German Reich Ministry for Education. And the closing of a larger number of Czech secondary schools was not ordered by the defendant, nor by order of the German Reich
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Ministry, but by the Czech Government itself even if it did so at the suggestion of the defendant. This measure turned out to be a useful one, and was in the interests of the Czech youth and, therefore, of the Czech intelligentsia and people because it obviated the danger of the formation and growth of a large well-educated proletariat. After the incorporation of the Sudeten German territory into the German Reich in the autumn of 1938 this danger had become acute, for a very large number of Czech officials and members of the free professions had streamed into the territory of the Protectorate, with the result that because of the overcrowding of all professions and the diminution of the Protectorate territory owing to the separation of the Sudeten territory and Slovakia, the chances of finding employment for the pupils leaving the secondary schools were still further diminished.
In addition to this came the closing of universities in the middle of November 1939 upon personal order of Hitler. The Czech Government could not shut its eyes to the truth of these considerations of the defendant, and itself decreed the closing of quite a number of schools. The defendant did not exercise any pressure on the Czech Government. This has been proved by the evidence. The dissolution of Czech gymnastic and sport clubs and similar organizations, however, as well as the confiscation and the use of their assets, was ordered, without knowledge or participation of the defendant, by the Police, which was not under his jurisdiction. It is not even certain, by the way, whether this dissolution took place while the defendant was holding office or only after his departure. The dissolution of the Sokol, it must be said, was a real necessity for the protection of German interests, and moreover it was a measure which was taken to appease and reconcile the Czech nation, too; for the Sokol was, beyond doubt, the focus of all anti-German efforts and of the incitement of the Czech people toward an active resistance against everything which was German.
The preceding arguments show how manifold were the encroachments of other administrations and offices on the administration of the Protectorate,- and, accordingly, the difficulties and resistance which arose against a uniform policy of the defendant. They were, however, by no means removed, but, on the contrary, aggravated by the decree of 1 September 1939 concerning the organization of administration and the German Security Polite-Document Book 5, Document Neurath-149. This decree was issued, without previous consultation with the defendant, by the Ministerial Council for the Reich Defense. Its first part especially is obscure and misleading. True, it placed all German administration offices and their officials in the Protectorate under the control of the Reich Protector, but this subordination was a formal one only, that is, simply on paper and
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not an actual one in view of the administrative duties which were actually performed.
In this respect, things remained unchanged, as had already been indicated from the authority of the supreme Reich offices, according to Article 11 of the decree of 16 March 1939 and of the ordinance of 22 March 1939. The difference was only that from now on all administrations and offices, established or to be established by other offices, were formally attached to the Reich Protector's office and took up their functions under the official designation of "The Reich Protector of Bohemia and Moravia." However, this by no means insured that such attached departments were put, in fact, under control of the Reich Protector himself-that is, the defendant-and that they had to receive from him their factual directives and orders to work according to his views and his directives. On the contrary, they received their instructions, just as before, from their original Reich offices, and had to observe and obey them. For instance, the so-called transportation department under the Reich Protector which had to deal with the transportation system-already taken out of the Reich Protector's jurisdiction by ordinance of 16 March 1939- was controlled just as before by the Reich Ministry of Transportation and not by the Reich Protector, and received instructions not from him but from the Ministry in Berlin. And the same applied to other sectors, also including the purely internal administration.
According to this ordinance of 1 September 1939 of the Ministerial Council for the Reich Defense-and not, as the Czech prosecutor erroneously contends, by a decree of the defendant-a new plan was undertaken for the Protectorate territory with Oberlandratsbezirke and the Oberlandrat at their head, which official is, according to Paragraph 6 of the ordinance, the competent administrator for all administration branches of the internal administration and subordinate to the Reich Protector in an administrative sense. As such, he was invested with far-reaching authority, and also supervised the Czech authorities in the Protectorate, and this, to be sure, not by the order of the Reich Protector, but of the pertinent Reich Ministry in Berlin. This, too, was bound to result in very serious differences between the measures taken by those Oberlandrate on the basis of the directives issued to them by the Reich Ministry of the Interior in Berlin and the policy pursued by the defendant. To what extent the latter affected and influenced the Czech administrative offices does not have to be taken into consideration, since this decree, too, and its result, the control of the activities of the Czech administrative authorities by Reich German officials, is not a crime punishable according to the Charter of this Tribunal. This decree, too, is only a result of the fact that the Protectorate belonged to the German Reich.
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On the other hand, this decree clarified the question of the position of the Police within the Protectorate territory, the political as well as the Security Police. This question was quite unsettled until the decree came into force and from the very first day of his activity had led to differences and difficulties between Herr Von Neurath and his State Secretary Frank.
At the time when Hitler charged the defendant with the office of the Reich Protector he had, according to the defendant's testimony, assured him of far-reaching power, especially for protecting and fully supporting the defendant's intended policy of conciliation and compromise in opposition to radical aims of the Party and other chauvinistic circles. The defendant deduced from this that as the representative of the Fuhrer in the Protectorate he must and would have a decisive influence on the activity of the Police also. According to his own testimony he could not visualize at that time that a large part of the sphere of activity accepted by him became illusory from the start, since the Police had not been from the outset expressly subordinated to him. However, due to the fact that Frank-who had been made Higher SS and Police Fuhrer in the Protectorate-was at the same time appointed to the position of State Secretary, and as such was subordinated to him, the defendant felt entitled to assume that Hitler's intention was to centralize the police authority, if not in his own hands, at least under his jurisdiction-that is, in the hands of his State Secretary. In practice, however, this relation worked out entirely differently, since State Secretary Frank had not the slightest intention of letting his official chief, the defendant, have any authority whatsoever over the Police, and recognized only the jurisdiction and authority of Himmler, his superior, as SS and Police Leader, or of his Reich Main Security Office (Reichssicherheitshauptamt).
This actual state of affairs was established by law in the decree of 1 September 1939. For this decree unequivocally states that the German Security Police, and thereby also the Gestapo, was not subordinated to the Reich Protector. This is already evident, in itself, from the fact that the decree completely separates the two departmental spheres-administration and Police-by dealing in Part 1 with the building up of a German administration in the Protectorate subordinated to the Reich Protector, and then dealing separately in Part II with the German Security Police. This Security Police is not under the jurisdiction of the Reich Protector, but, as was already reserved in Article V, Paragraph 5, of the decree of 16 March 1939, is taken over by the administration of the Reich itself-that is to say, it receives its orders directly from the Chief of Police in Berlin-that is, Himmler-and in part also from the Higher SS and Police Leader in Prague.
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The second sentence of Paragraph 2 describes the relationship of the Police toward the Reich Protector. Its wording is as follows:
'`The organs of the German Security Police are to collect and make use of the results of their investigations, in order to notify the Reich Protector and his subordinated offices about important events, and to keep him informed and offer suggestions."
This signifies that the Reich Protector legally could not actually influence the activities of the Police in any form whatsoever. He could not oppose their orders, emanating from Berlin, prior to their execution; quite apart from the fact that he never got to see them, he had no authority whatsoever to oppose them. He had but one claim and that was to be subsequently informed by the Police about measures already taken by them and even that happened-as was proved by the evidence-only in the rarest cases. He himself did not have any right or any possibility whatsoever of issuing orders to the Police.
In consequence of this separation of powers, and in view of the totally different attitude of Frank toward the Czech people in contrast with Herr Von Neurath, the sharpest differences and contradictions were inevitably bound to crop up from the very beginning. For Frank, as a Sudeten German and one of the leaders of the Sudeten Germans, was filled with hatred and revenge against anything that was Czech. He did not want to hear of a reconciliation or an understanding between the German and the Czech peoples, and gave free rein to this anti-Czech attitude from the first day of his activity.
At first-that is to say, up to the time of the outbreak of the war-the activity of the Police was actually slight, so that these opposing viewpoints did not become so apparent. Herr Von Neurath could consequently assume that this opposition would gradually diminish, and that Frank would conform to his wishes and aims, and would show himself to be accommodating; and he, the defendant, did not yet recognize the necessity of exerting influence upon the Police. When, however, he finally realized-from the gradually increasing activity of the Police and their excesses-that his expectations were not being fulfilled, he protested to Hitler orally and by letter, time And time again-as confirmed by the testimony of the witnesses Dr. Volckers and Von Holleben-and implored him to alter this ominous state of affairs, and to subordinate the Police to him, and to him only. However, all of Hitler's promises and assurances proved to be false, and the subordination of the Police to Herr Von Neurath did not take place.
Yet, he did not want to relinquish the fight so soon, nor despair of the task he had undertaken. Now, more than ever, he wanted
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to try to impose his ideas and policy and, should he not be successful in major as well as in minor issues, at least try to soften the measures taken by the Police. For this purpose he had the most detailed accounts given to him personally in all cases of measures and action taken by the Police, such as arrests and other excesses, insofar as he received information about them mostly from Czech sources. Wherever he could, he exerted his influence for the release of arrested persons. This is evident from the testimony of all witnesses produced by me, above all, from the testimony of Dr. Volckers who, as head of the defendant's office, was continually engaged in receiving such complaints. This is moreover evident from documents submitted by the Prosecution themselves, such as the notes of the defendant about his conference with President Hacha of 26 March 1940-Appendix 5 to Supplement Number 1, USSR-60-and even from the testimony of Bienert-who himself was arrested by the Police but released in a very short time upon the intervention of the defendant.
With the one exception of the testimony of Frank of 7 March 1946, submitted during the hearing of evidence, the testimony of all witnesses corresponds on the question of responsibility of the defendant for the measures taken by the Police. Frank's testimony, however, is in direct contradiction to his own earlier testimony. At his interrogation on 30 May 1945-Document Book 5, Document Neurath-153-Frank said the following, and I quote:
"The Police, however, was not under the control of the offices of the Reich Protector.... Both Gestapo and Security Police received their directions and orders directly from the Reich Main Security Office in Berlin."
Frank's statement of 5 May 1945 concerning the student riots- Document Book 5, Document Neurath-152-is also typical of the manner in which the Police received its instructions directly from Berlin, over the head of the Reich Protector. Frank speaks therein of the report on the first demonstrations, which he had sent to Berlin, and in which he had asked for instructions; he had received them by return mail from the Fuhrer's headquarters through the Security Police in Prague, to which office they had been sent by Berlin directly and he, Frank, received them from there. There is no mention whatever of the person or even of the office of the Reich Protector during the entire proceedings; it is an internal affair of the Police involving the Higher SS and Police Leader Frank.
Because of the importance of this point, I would like to refer explicitly to the statements, made by the witnesses Von Burgsdorff and Volckers, both of whom were, on the basis of their official position, thoroughly conversant with this question during the entire time the defendant was in office. Burgsdorff testified that the Police
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was under Frank, who received his orders directly from Himmler. Volckers said that the defendant had no influence on Frank's activities, and thereby on the Police. In practice, from the very start, the Police and, therefore, also State Secretary Frank took their measures independently of the defendant. This was legally confirmed later through the ordinance of 1 September 1939. All witnesses, also in their written testimonies, testify that the relations between the defendant and Frank had been as bad as can be imagined.
It is entirely impossible in such a state of affairs that the Chief of the SD and the Security Police should have been active as political adviser to the defendant. The defendant cannot at all remember a decree of May 1939 about the appointment of this man, to which reference is made in the document by the Chief of Security Police-Document Number USSR-487. In any case, according to his definite statement, he never performed any duties. The document, USSR-487, therefore, does not appear to be conclusive as evidence. lithe copy handed to me by the Prosecution is dated 21 July 1943. That alone proves that the appointment of the SD leader, if it occurred at all, did not take place during the defendant's entire time in office. Aside from the date, however, the "reference" of the latter shows that this appointment does not at all concern a political adviser to the Reich Protector himself, but to the State Secretary for Security Matters-that is, Frank. The address "Der Herr Reichsprotektor" is not to be understood to mean the person, but rather the office. In German official circles it was customary to speak of the "Herr" Reichsminister, et cetera, even though he was not meant personally, but some department of his office. It is entirely credible and probable that the SD leader was appointed political adviser to the State Secretary, who at the same time was State Secretary to the office of the defendant and independent State Secretary for Security Matters.
Precisely from the so-called "warning," given at the end of August 1939, with which the Prosecution charged my client, it can be seen how he himself felt about the ways and means of easing the minds of the population and of preventing acts of violence and insubordination on their part. According to his sworn testimony, the defendant thereby intended to discourage the population from committing acts of violence and especially to prevent acts of sabotage-which were to be expected in this time of high political tension before the war-thus preventing harsh police or legal measures which would only serve to embitter the population even more. It is doubtless more humane to issue such a warning, and thereby prevent such crimes, rather than allow crimes to be committed without previous warning and afterward mete out severe punishment.
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The fact that acts of sabotage, if it was impossible to prevent them, had to be severely punished in those times would certainly have been acknowledged also in any other country and taken for granted. As the defendant testified, the warning fulfilled its purpose. No special punishments were threatened or fixed; it contained no special threats of punishment whatever, but referred, as the wording proves, to criminal law already in force.
The sentence, that the responsibility for all acts of sabotage affected not only the culprit but the entire Czech population, is, of course, concerned only with the moral responsibility and not the penal one, as was also confirmed by the defendant. It means that in the case of repeated serious acts of sabotage, general measures would be taken in the respective territories, as for example, earlier curfew, ban on going out, or general stoppage of traffic or electric current, under which the entire population would have to suffer. A responsibility in the penal sense would have had to be formulated much more concretely. It was expressly mentioned at the beginning of the proclamation that anyone who committed the cited crimes thereby proved himself to be an enemy of the Reich and had to be punished accordingly. This sentence especially shows that the penal treatment of such sabotage acts was to be applied individually. At that time, nobody in Prague, not even the Chief of Police, would have thought of the idea of decreeing collective punishments or even, as the Prosecution asserted without any evidence whatever, of introducing the hostage system. In this connection, I also wish to refer to the statement made by the witness Von Holleben, Document Book 5, Document Neurath-158, in which he states, "Neurath, therefore, always refused to make a person responsible for acts committed by somebody else."
From all that has been said previously, we see that the Defendant Von Neurath cannot be made responsible for the arrests made at the time of the occupation of the Czech territory, nor for the arrests made at the outbreak of the war of, as the Prosecution assert, 8,000 prominent Czechs sent to concentration camps or executed as hostages. These arrests, according to the defendant's testimony, with which Frank's testimony agrees, were made on direct order from Berlin without knowledge of the defendant nor even of Frank himself. Bienert's contradictory testimony presented by the Prosecution is factually incorrect, and is based on completely illogical and false deductions. His deduction that this entire action was under the defendant's direction because his order for Bienert's release had been issued only 4 hours after his arrest is without any logic and is objectively wrong.
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Finally, on the basis of the evidence, it is irrefutable that the defendant is also not responsible for the order to shoot 9 students and to arrest approximately 1,200 students during the night from 16 to 17 November 1939; that these measures, rightly called terror actions, had been ordered during his absence from Prague, and without his knowledge, by Hitler personally and had been carried out on Hitler's direct order by Frank; and that also the proclamation of 17 November 1939 announcing it was neither issued nor signed by him, that on the contrary his name under it had been misused. It is proved by the testimony of the defendant himself and by that of the witness Dr. Volckers, who accompanied the defendant on his trip to Berlin on 16 November 1939, the day after the student riots, and had returned from Berlin to Prague with him on the very afternoon of 17 November; furthermore by the written testimony of Herr Von Holleben, and finally by the affidavit of the defendant's secretary, Fraulein Friedrich-Document Book 5, Document Neurath-159-and of the Baroness Ritter, that the defendant, during the night of 16 to 17 November, when the shootings and arrests took place, was not in Prague but in Berlin, and the publication of these incidents was already posted on the house walls of Prague when the defendant returned to that city. The defendant is not in the least responsible for these atrocities. The order for them, as well as the simultaneous order for the closing of the universities, had, on the contrary, been given directly to Frank by Hitler in Berlin, and this, as the witness Volckers expressly affirms, in the absence and without the knowledge of the defendant.
The value, in consideration of this, which may be ascribed to Dr. Havelka's testimony, presented by the Prosecution, is selfevident. The credibility of this witness Havelka, as well as of all the other Czech testimony submitted by the Prosecution, must in general be examined with the very greatest caution. It is subject, from the first, to two very serious objections. First, all these witnesses are members of the former autonomous Czech Government-that is, the so-called collaborationists, whole in jail today for this reason and are awaiting their sentence. It is humanly quite understandable if today they see in a different light the conditions then prevailing, judge them differently from what they really were, and involuntarily confuse the terrible things which happened after Herr Von Neurath had left Prague with the events while he was there. This results from a haziness of their memory. We must not overlook the fact that, as is quite natural, they hope by incriminating Herr Von Neurath to clear themselves.
Added to this is the fact, which is more important still, that they had no knowledge whatsoever and could not have had any of the internal, factual, and legal conditions and competences
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within the office of the Reich Protector, and that they therefore are not at all able to judge to what extent the defendant himself was really the man who issued the individual decrees and orders or brought them about. One example shows this very clearly. In the witness Kalfus' testimony, it is alleged that the defendant was responsible for the customs union between the Protectorate and the German Reich. In this respect, I wish to refer only to the fact that already, in Hitler's decree of 16 March 1939, it had been expressly announced that the Protectorate belonged to the customs district of the Reich. The witness Bienert further asserts that it was Herr Von Neurath who subordinated to the Germans the political administration of Bohemia and Moravia, which means state as well as communal administration. This is, however, also objectively wrong. As I have already proved, this subordination was ordered by the decree of 1 September 1939, which was not issued by the defendant but by the Ministerial Council for the Defense of the Reich. These examples should suffice to show how little credibility can be attached to all these testimonies, and hove little the witnesses were informed about the actual conditions of organization and authority within the office of the Reich Protector. The often repeated assertion of the witnesses that the arrests and many other measures of force by the Gestapo against the Czech population were done on the order or instruction of the defendant personally is, for example, either a deliberate falsehood or proof of their ignorance of even the published official decrees announced in the Czech official gazette. For the Gestapo, as I have already proved, was not at all under the jurisdiction of the defendant. The conclusions to be drawn from this, as to the credibility of all the witnesses, are self-evident. It is obvious that in contrast thereto the sworn testimony of the defendant and of the witnesses presented by me, together with the decrees submitted pertaining thereto, deserve far more credibility.
The allegation of the Czech indictment, and of the testimony on which it is based, that Herr Von Neurath, in the middle of November 1939, ordered the closing of the universities has thus been disproved as objectively wrong. In fact, the closing of the universities took place on the express order of Hitler. As the evidence has shown beyond any doubt, the defendant immediately protested to Hitler and succeeded in obtaining his promise to reopen the universities after one year instead of only after three years. The defendant cannot be blamed for the fact that Hitler did not keep his promise. His efforts for the revocation of the closing of the universities prove, however, how much he was interested in maintaining the educational standard and the intellectual classes of the Czech nation.
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The defendant did whatever he could for the Czech nation as a whole and for the individual. This applies especially to the harmful activity of the Police and the Gestapo, as far as he received information about it. According to his own testimony, which is confirmed by that of the witness Dr. Volckers, immediately after the arrest of the students in the middle of November 1939, he used all the influence at his command for their release, and as we have heard here, not only out of his own mouth but also from Dr. Volckers, he succeeded in obtaining the release of almost all the students by the time he left Prague on 27 September 1941. And he worked in the same way continuously for the release of about 8,000 prominent Czechs who had been arrested at the beginning of the war. As proved by his own testimony under oath, these arrests were ordered by Berlin directly and not by the defendant, as the Czech witnesses Bienert, Krejci, and Havelka untruthfully maintain, nor even by Frank or by any other Higher SS or Police Leader in the Protectorate. Moreover, it is also due to the defendant's personal intervention that in 1941 the order Hitler issued at Frank's and Himmler's instigation for the removal and arrest of the then Czech Prime Minister General Elias was rescinded. Only after he had left was Elias arrested by Heydrich and later condemned to death by the People's Court.
Definitely wrong is the allegation of the Czech witness Bienert that the defendant had arranged for the ' transportation of Czech workers into the Reich-that is, that he deported Czech workers by force into Germany It is, on the contrary, true that, during the whole term of office of the defendant, not a single Czech worker was deported by force to Germany. Until 27 September 1941, no compulsory deportation of labor had yet taken place in any territory occupied by Germany. That happened only later. But many Czech workers voluntarily and gladly went to the Reich and accepted jobs there because of the fixed exchange rate of the Reichsmark and the higher wages; they earned much more there than in Prague and could send a great part of their earnings to their relatives in the Protectorate.
If the Czech Prosecution want further to charge the defendant with the sending by the Gestapo of arrested persons to concentration camps, and with the ill-treatment of those individuals there, it must be stated decidedly that until 27 September 1941, the end of the official activity of the defendant in the Protectorate, not a single concentration camp existed in the Protectorate. They were all established only after his departure, under his successor. The decree, too, concerning protective and preventive custody, with which the Czech Prosecution apparently wish to charge him also,
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was issued only after his departure, on 9 March 1942 as shown by the copy annexed to the Czech report, Document USSR-60.
Lastly, with regard to the charges of the Indictment concerning the alleged measures taken by the defendant against the Jews, in this point too the representation of the Indictment does not correspond to the facts, and is shown to be erroneous on closer examination of the documents submitted by the Prosecution themselves.` Of the total of 21 decrees contained in the British Document Book Number 12b,only 4 were signed by the defendant himself; 6 were issued directly by the Reich Ministry, 10 by State Secretary Frank,-or his direct subordinate Dr. Von Burgsdorff- and one by the Czech State President Hacha.
The first decree signed by Herr Von Neurath himself on 21 June 1939, which contained nothing but the introduction of regulations valid for the entire German Reich concerning treatment of Jewish property in the Protectorate-which since 16 March 1939 was also a part of the German Reich-had been laid down for the defendant by Berlin when he assumed office. The fact, however, that it was published on 21 June 1939, 3 months later, proves the correctness of his statement, that he wanted to give the Jews time to prepare themselves for the introduction of the Jewish legislation as in force throughout the Reich. Its postponement to that day was done expressly in the interest of the Jews.
The second decree issued by the defendant himself on 16 September 1940 merely prescribed an obligation to declare securities- that is, mortgages, which were Jewish property-and corresponded to the various decrees of the same or similar kind issued in the German Reich, too, and were applicable to all German nationals.
The third decree, issued and signed by himself, of 5 March 1940, as well as the fourth of 14 September 1940, as quite clearly shown by their contents, aimed at making possible and facilitating Jewish emigration, which the course of events in the Reich had made inevitable. Therefore both decrees had been issued in the very interests of the Jews themselves, and prove that the defendant had no anti-Semitic views.
All the documents submitted by me which refer to this matter, among others the newspaper report concerning the boycott of the Jews in the spring of 1933-Document Book 1, Document Neurath-9-and the submitted depositions of witnesses, show that he did not approve of the measures taken against the Jews, particularly measures of violence, but opposed them. As shown especially by the deposition of the witness Dr. Koepke, such measures would have been in contradiction with his Christian and humane attitude and ideology. It is confirmed that until his departure from Prague not a single synagogue had been closed, and that no
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religious restrictions against the Jews had been decreed. No particular proof is needed to show that the defendant cannot be made responsible for the six ordinances issued by the Reich Ministry of the Interior. But neither does he bear any responsibility for the decrees signed by Frank and Herr Von Burgsdorff, in view of the independent position of State Secretary Frank and the competence of the Police concerning all Jewish matters, which I have described. In opposition to the assertion of the Indictment, it must be particularly emphasized that, according to his own sworn deposition, no persecution of the Jews occurred during his entire tenure of office.
His afore-mentioned humane and Christian attitude and ideology make the assertions in the Czech report of 4 September 1945(Document 998-PS), concerning the alleged hostility of the defendant to the Church, appear just as unlikely. It is true that the Czech indictment of 14 November 1945 (Document USSR-60) does not make this report an object of an accusation; but, nevertheless, I should like to speak about it briefly.
It is proved by evidence that the relations between Herr Von Neurath and the Archbishop of Prague were very good, even friendly, and that the latter explicitly thanked the defendant for his support of the churches. This would certainly not have been the case if he had been opposed to the Church or if he had suppressed the churches, their organizations and clergy, or persecuted them in any other way. It is certainly not an extraordinary occurrence that there may have been differences in official matters, as obviously was the case according to the letter of the Archbishop submitted by the Prosecution; State and Church always have had differences with one another, at all times and in all countries. But this cannot under any circumstances be construed as implying, on the defendant's side, a policy opposing the Church. It may be that members of the clergy were arrested; but, in the first place, such arrests were ordered not by the defendant, but by the Police, which was not under his control, and secondly-if the defendant knew of them at all-not on account of any church activity, but because of political intrigue. Neither is it clear from the mentioned Czech report whether the alleged actions against the Church, its organizations and clergy, actually took place during the defendant's tenure of office. The evidence has shown that he did not decree any anti-ecclesiastical or antireligious measures. Pilgrimages to the Czech religious shrines, for example, were expressly permitted by him.
At this point I would also like to emphasize that the defendant was not guilty of injuring Czech national feeling in any way. Contrary to the assertion of the Prosecution, he did not destroy
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or close any Masaryk houses as the Prosecution would like to charge against him. As far as the closing of any Masaryk houses is concerned, the SS and the Police, which were not under his jurisdiction, are exclusively responsible. His attitude toward the Czech national feeling is best illustrated by the fact that he especially permitted the customary deposition of wreaths at the Masaryk monuments.
Nor did the defendant take measures hostile to culture, in spite of all efforts made in that direction by radical elements. Czech theater life was not touched and remained completely free, as well as Czech literature, which was not suppressed or encroached upon in any way, with the exception, of course, that anything of an anti-German or inciting character was prohibited. Also the press-which, incidentally, was not controlled or censured by him, but by the Reich Ministry for Propaganda-was not submitted to any other limitations than the German press, since the defendant's efforts altogether were directed toward conserving and encouraging Czech cultural life in its characteristic quality and independence.
I believe it is not necessary for me to go still further into details about that subject, and that I can confine myself to referring to the defendant's own statements and the statements of the German witnesses about this. The testimony of these witnesses shows clearly what difficulties and opposition on the part of certain radical circles and authorities, not least on the part of his own State Secretary Frank, he had to contend with in his general policy toward the Czech people.
If one wants to summarize his official activities, one may say that his entire life in Prague was one long struggle: A struggle against the forces inspired and led by Himmler; a struggle which was all the more difficult because he did not actually possess full powers in the Protectorate, and because the offices and authorities. which were the most important and influential in the field of home politics-the entire Police and the Gestapo-were not subordinate to him. Nevertheless, he did not abandon this struggle, and never grew tired of protesting to Hitler again and again and demanding redress-in many cases successfully; in others, not. He fought up to the very end; he did not allow failures to discourage him, and he remained faithful to his policy of reconciliation and compromise, of pacification and conservation of the Czech people and their national characteristics. And when here again he was forced to recognize, in the autumn of 1941, that to continue his fight was hopeless-that Himmler's influence on Hitler was greater than his own, and that Hitler had now decided to change over to a policy of force and terror, and to send Heydrich, who was known as a bloodhound, to Prague for this purpose, he immediately, just as in
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the winter of 1937-38 as Foreign Minister, took the consequences) resigned his post, left Prague, and retired to private life for good.
THE PRESIDENT: Perhaps this would be a convenient time to recess.
[A recess was taken.]
THE PRESIDENT: The Tribunal will sit in open session on Saturday morning until 1 o'clock.
DR.VON LUDINGHAUSEN: What impression this resignation created on the Czech people, even the circles most hostile to Germany, and what interpretation was put on it appears, with a clarity that can hardly be surpassed' from the Czech report-Document USSR-60-which was truly not dictated by pro-German sentiments or love for my client, and which characterized this departure of my client as a "gehoriger Schlag" in the German text-"a heavy blow" in the English text-thereby actually disavowing its own accusations against Herr Von Neurath. And indeed I think I have proved that, while discharging the duties of his office, the defendant did not personally become guilty of a single crime against humanity punishable under the Charter of this Tribunal; and only such crime could, after all, be considered here.
And now the basic question of this Trial arises: Did the defendant become guilty-that is, guilty in a manner punishable under the Charter-of supporting or aiding Hitler and his accomplices in the commission of their crimes by accepting the office of Reich Protector and by keeping it, in spite of the war launched by Hitler a few months after his assumption of this office, and in spite of the events in November 1939, and several other occurrences? The Prosecution answer this question in the affirmative. But can an objective impartial judgment of matters really lead to this affirmative answer?
One thing should be absolutely certain after what we have heard here from the defendant himself, from the witnesses whom I questioned on the subject, and from the affidavits which I presented. Herr Von Neurath was not moved by external or material reasons to enter and remain in Hitler's Government as Foreign Minister. Such reasons were similarly not responsible for his acceptance of the post of Reich Protector. This is already proved by the fact that he declined the donation which Hitler intended to present to him on his seventieth birthday in 1943' but finding this not practicable, he had this donation in his bank, as I have proved on the basis of the letter from his bank-Document Book 5, Documents Neurath-160 and 161-and did not touch one penny of it. And how little the supposedly illustrious position of the Reich Protector attracted or even suited him is clearly evident from his letter of 14 October 1939
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to the witness Dr. Koepke-Document Book 5, Document Neurath-150, in which he compares it to a prison.
In both cases, as has been proved not only by the defendant's own statements but also by the statements of all the witnesses and documents which I have introduced, the motive or the reason for the acceptance of and perseverance in his position was not, by any means, his approval of the ideologies of the Nazi regime with all its methods and his wish to support them, but, on the contrary, his high ethical and moral convictions which sprang from his deep sense of responsibility, as a human being and as a statesman, toward his people. Since he was not in the position and had not the power to remove Hitler and the Nazi regime, he considered it his duty, at least in a limited way within the compass and limits of his power and in the sphere entrusted to his direction, to fight the Nazi tendencies he despised and to prevent their materialization as far as his own strength permitted. Can one, I ask, really reproach Herr Von Neurath for doing this; can one condemn him, because the task he had assumed with a sense of moral duty and a consciousness of responsibility was beyond his strength, and he failed in it?
May I ask you, Your Honors, to free yourselves of all juridical and political prejudices, of the retrospective view of things with its unreliable deductions, and to penetrate into the soul of this man- his world of thoughts and his conception of life.
Brought up in a home inspired by Christian, humane, and respectable ideas, and also by a sense of responsibility toward the German people, he had grown up and reached the age of 60 in a civil service career under the various governments-first under the imperial government, then under the changing governments of the Republic. Without paying attention to their political trends, without asking whether they were conservative, democratic, or social democratic, he had served them, and had carried out the tasks assigned to him in his sphere of work. As a diplomat-as an official of the Reich's Foreign Service-the field of internal politics was completely remote to him. He considered it his sole duty to serve his people as such, regardless of the government in of lice and its inner political attitude.
And thus, much against his personal wishes, upon Hindenburg's call in the hour of distress, he took over the Foreign Ministry and thereby entered the Government of the Reich and remained in it also after Hitler was appointed, not as the representative of any particular political party, but as Hindenburg's special confidant in the field of foreign politics. He was the guarantor of the Reich's peace policy, the rockier de bronze in this field. His entire education, his sense of responsibility toward his people, would not permit him to do anything else than remain at his post after he had been drawn into the whirl and dynamics of the National Socialist movement, and
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then necessarily saw how this Movement was turning in a direction and making use of means which he, too, could only condemn.
But just as their sense of responsibility and duty to their own people had driven other respectable and patriotic Germans to the decision to remove Hitler and the Nazi regime by force, so it was with the defendant, whose sense of responsibility and duty, not only toward himself but also toward his people, forced him to set aside his personal abhorrence of the immorality of this regime and, by remaining in office and continuing to conduct its affairs according to his own principles, to fight actively against this immorality, and thus at least keep it away from the department under his control and protect his German people from this immorality of the Nazi regime and its consequences-namely, war-as long as he was able to do this.
And then, a year and a half after his resignation, when the call came to him again to accept a position-this time as Reich Protector of Bohemia and Moravia-and Hitler declared to him that he had expressly selected him for this position because he considered him the only suitable person to carry out his intended policy of real reconciliation between the Czech people and the new conditions and the German people, the very same sense of duty and responsibility forced him to follow this call. For was it not natural for him to deduce from the fact that Hitler-in spite of knowing his opposition to the National Socialist regime, its policies and methods-desired to entrust him with this task, that Hitler really and honestly meant to effect a reconciliation and appeasement with the Czech people? Here he was confronted with a task, the achievement of which would not only be of the highest benefit to his own but also a foreign people, a task which not only served for the reconciliation of two nations but also for the ideal of humanity and Christian brotherly love, as well as for the protection of the Czech people from the pernicious methods of the Nazi regime.
And now I ask: Is it not at least just as moral and ethical to pledge one's self and one's person for such a goal, to work actively- if only to a limited extent-against this regime which one has recognized and repudiated as immoral and corrupt through an apparent collaboration, if only outwardly appearing as such, to prevent the use of the methods of this system and thereby save innocent people from misery and death, as it is to withdraw grumbling out of personal aversion and look on inactively while this regime rages against humanity without restraint?
Not everyone has an aggressive character, is a revolutionary who can use violence against the hated system and its leaders. And do not forget, Your Honors, that at that time under Hitler's autocratic regime there were only these two possibilities to work really
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actively and positively against the Nazi regime and its terror. Under this regime there were not the thousand and one possibilities of fighting a hated and accursed government, as is the case in free democratic countries with free and independently elected parliaments. In Hitler Germany any form of active or even public opposition only meant a completely useless sacrifice. And therefore I beg you, Your Honors, in judging these matters and in answering my question, to free yourselves from the democratic conditions and circumstances which you take so much for granted, but which are completely incomparable with the conditions in Germany under Hitler at that time-the lack of consideration of which fact has already caused much disaster up to very recent times.
And did not the Defendant Von Neurath save the freedom and lives of thousands of people, whose freedom and lives would have been irretrievably lost without him, by his very acceptance of the office of the Reich Protector, and by remaining in it despite the fact that he had to realize that through no fault of his, he could not fulfill the task connected with this office, that he did not have at his disposal the necessary means for its accomplishment, but yet, in spite of all this, continuing his fight against the terror of the Nazi regime? Is this not worth a thousand times more; is it not much more moral and ethical than if he had retired immediately, full of abhorrence and moral indignation?
I do not hesitate to answer this question, just as my first question, in the affirmative, and to express my conviction that no one can condemn me for this. Or shall a Sophoclean tragedy be unfolded before us here in the fate of the defendant, in which a man becomes guilty, due to no fault of his own, because he obeyed his conscience and his sense of responsibility?
Your Honors, I believe I have shown and proved by my preceding statements that not a single one of the actions with which the Prosecution have accused my client is criminal within the meaning of the Charter, and that not one of these actions by the defendant was aimed intentionally at committing a crime within the meaning of the Charter of this High Tribunal, so that no criminal action exists, either objectively or subjectively. But I believe I have shown also, over and above this, that all my client's actions as a whole had just the opposite purpose of what the Prosecution claim they did-namely, nut the perpetration, but the prevention of just such actions as the Charter defines as punishable crimes, whether crimes of planning, preparation, or the waging of aggressive wars, be they crimes of war or crimes against humanity.
But there still remains one thing for me to do: to draw the conclusion from all that as to how impossible, indeed, how paradoxical
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it would be to apply the principles of the conspiracy with regard to my client-his participation in it from the very outset, which sanctions or will sanction the preparatory or any other actions in this respect by the remaining members for attaining this criminal aim.
But when, as the Prosecution are deliberately doing, one regards approval of the criminal objective, and all preparatory actions for its achievement by each one of the other members in their official capacity, as proved in international law, merely by the fact of the assumption of or remaining in an office in spite of knowing the criminal aims, and from this fact alone deduces a criminal coresponsibility on the part of each individual, the consequence inexorably follows with compelling logic that the application of the principle of coresponsibility due to the assumption of an office or simply remaining in it, without consideration of whatever decent and ethical reasons may have caused one to do so, calls for the punishment of one who not only disapproves of these criminal intentions, plans, and actions of the others but even opposed them actively, and who only accepted his appointment or remained in his position for this reason, as was the case with the Defendant Von Neurath.
In a court which not only represents justice-the legal and ethical conscience of all civilized nations on earth-but is also going to show the way to universal peace to the coming generations, I need not prove to you, Your Honors, that such a result is contrary to not only every natural but also to every legal sense of justice and ideas of justice; that it is contrary to that which this High Tribunal have to strive for and are striving for; that it is contrary to every moral and ethical postulate. This task can only be fulfilled if you show mankind once more that any generalization, and leveling, any treatment, and thus also any judgment and conviction of people and of their activities only on the basis of corporative-I could say, gregarious-concepts, and not on the personality, the will, and the designs of the individual, is evil. Such treatment denies the holiness of the individual and in the long run leads inevitably to the adoration of mere force. But this adoration of force, this belief in force, was precisely the underlying cause of the terrible events which once more have been unfolded before us here.
You can only then do justice to and fulfill your double task-to punish where chastisement should be applied according to divine and human law, and, at the same time, to show mankind the way to international peace-if by your sentence you take away from mankind the belief in force and give back, instead of this belief, to all nations on earth, and not least of all to the German nation, the belief in and the respect for the holiness of the individual, whom the Lord once created in his image.
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Fully convinced of the truth of this conception, I now confidently place the fate of my client, the Defendant Baron van Neurath, in your hands!
THE PRESIDENT: I now call on Dr. Fritz on behalf of the Defendant Fritzsche.
DR. HEINZ FRITZ (Counsel for Defendant Fritzsche): Mr. President, the result of the evidence in the case of Fritzsche is a relatively clear one.
Although I am one of the last to plead, a close examination of legal problems cannot be avoided. Above all, these problems arise from the fact that Fritzsche was characterized by the Prosecution, in a particularly striking manner, as an accomplice. However, at first I must examine what position Fritzsche had in the Propaganda Ministry, and what part he played in the German propaganda in general. It is these facts which ought to be conclusive in deter-mining what part he supposedly played in the alleged conspiracy.
At the beginning of the Trial, Mr. Albrecht submitted as evidence the organizational structure of the Government of the Third Reich, as of March 1945, in the form of a diagram. Mr. Albrecht admitted himself that Fritzsche's name did not appear in it in the position of one of the main leaders of the Propaganda Ministry. It is true, he added, that his importance had been greater than one would be led to think from his position as shown on this diagram. He closed his statement by saying that evidence to this effect would be submitted to the Tribunal (Session of 21 November 1945). Has this been done, and was the hearing of evidence really able to prove that Fritzsche had greater importance?
At the session of 28 February 1946, Sir David Maxwell-Fyfe introduced as evidence a "compilation of the elements of guilt" which, in a particularly impressive manner, demonstrates in how far the individual defendants are connected with the facts of which they are supposed to be guilty in the opinion of the Prosecution. The classification of the individual defendants follows from the table which is attached to this compilation as Appendix A. The Tribunal will have noticed that the Defendant Fritzsche is the only one not to appear on this table at all. This follows from the fact that he does not belong to any of the organizations which are to be declared criminal here.
A look at the organizational plan of the Propaganda Ministry, which was submitted in Brief E by the Prosecution (Session of 23 January 1946), also shows clearly that Fritzsche, even in his last position as Ministerial Director and Chief of the Broadcasting Division, was only one of 12 officials of the same rank. Such a position in itself excludes a priori the assumption that he could have
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determined the principles of policy, the principles of news presentation, and the principles of what may or may not become known to Germany and the world. It is true, Captain Sprecher pointed out- evidently in order to increase Fritzsche's importance-that the Chief of the German Press Division held a unique position, but also did not pass over the fact in silence that he had predecessors and successors in this allegedly unique office.
When, in November 1942, Fritzsche was appointed Chief of the Broadcasting Division by Goebbels, he did not obtain a higher position in the civil service hierarchy as a result. His activity was purely administrative. It concerned technical organizational questions. In his affidavit of 7 January 1946 my client describes the administrative work connected with it. He also lists his numerous predecessors. Did it occur to anybody to indict these other persons also as major war criminals, or to call them supreme commanders of a propaganda instrument? Since this is not the case, the conclusion must probably be drawn that it was not Fritzsche's official position which formed the basis for the Indictment.
Justice Jackson, too, pointed out (Session of 28 February 1946) that within the framework of the organizations under indictment here not all administrative civil service employees and division chiefs or state officials have been included as a whole, only the Reich Cabinet was named. Therefore, it can also not be imputed to Fritzsche-as is allegedly possible in the case of the members of the organizations-that from his position alone, and from the close connection of the individual members of the organizations they must necessarily have known, and fully and clearly understood the plans of the alleged conspiracy by virtue of their membership alone.
During Fritzsche's cross-examination, an attempt was also made
by the Russian Prosecution to magnify Fritzsche's position. They introduced three protocols as evidence-namely, the interrogatories of the witnesses Schorner (Document USSR-472), Voss (USSR-471), and Stahel (USSR-473). But these documents cannot be considered
as evidence. These depositions were used only to confront the defendant with isolated passages from them. Because of this limitation, I was able to dispense with the cross-examination of the three persons who signed these protocols. But Fritzsche did not fail to express his opinion on these passages, which were held up to him while he was being questioned on the witness stand.
In this connection I have to point to only one more thing: Not one of these three persons has even claimed to have had any insight into the internal organization of the Propaganda Ministry. None of the three depositions contains any definite statement of Fritzsche. On the contrary, these depositions contain mere judgments, judgments which we do not want to have from witnesses, especially
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not in a case where they cannot furnish any kind of substantial facts. For this reason alone, any value as evidence must be denied them. But aside from that aspect, they represent completely wrong judgments. They can by no means be derived from Fritzsche's own statements which were submitted in this Trial by the Prosecution- namely from his radio addresses. If evidence against the Defendant Fritzsche bearing out these judgments could have been submitted, then, in view of the fact that the Prosecution could have obtained all of his radio addresses it would have been more to the point to submit here these statements made by him which would have enabled the Tribunal to form their own judgment. The transcripts of the interrogations contain only the summarizing statement that Fritzsche was Goebbels' "deputy." I confronted the witness Von Schirrmeister with this assertion, and he termed it as pure nonsense. Fritzsche had to say the same on the witness stand. There can be no doubt that the concurring testimony of both witnesses is correct. Finally, there are still hundreds of others who formerly worked in this Ministry who could verify the truthfulness of these; statements from their own knowledge. I can state, therefore, that the attempt at magnifying Fritzsche's positions, contrary to the facts given in the organizational chart of the Propaganda Ministry as submitted by Mr. Albrecht, is a complete failure.
Beyond that, the hearing of evidence had shown that Fritzsche was not thy creator of the great control apparatus for the German press, as was furthermore claimed by the Prosecution (Session of 23 January 1946). On the contrary, it was Dr. Goebbels and other associates of his. Fritzsche could not have been the creator because of the time element alone. In the first place, for years he had merely been an employee. Then he became a consultant-Referent-and it was only since the winter of 1938-39 that he was one of the 12 division chiefs of the Ministry. When he became Chief of the German Press Division, the policy of the press was determined by Reich Press Chief Dr. Dietrich. As has been said already, he became Chief of the Broadcasting Division only in November 1942 and did not create anything fundamentally new there. Neither Goebbels nor Dietrich ever allowed the control of the German press and radio to be taken out of his hands. With regard to the details I wish to refer to the testimony of the witness Von Schirrmeister.
The fact that Fritzsche could have been neither the creator of the Press Division nor a leader of the German propaganda, as far as it emanated officially from the Ministry, is also shown by the other numerous statements both by Fritzsche, when questioned about it on the witness stand, and by the witness Von Schirrmeister. During his entire activity, Fritzsche actually never possessed any authority to give orders in these fields and could not have had it, owing to his
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rank in civil service, which would justify his being called the creator or leader of the press and radio in the Third Reich. On the contrary, between Dr. Goebbels, Dr. Dietrich, and himself, there were quite a number of other higher intermediary of fires. In this connection I can also refer to what Lieutenant Meltzer stated in general about the importance of a state secretary in the Reich Propaganda Ministry and that of the Reich Press Chief, when he referred to an affidavit by Amann of 19 December 1945. He pointed out that the holders of these positions exercised complete control over the news service in Germany (Session of 11 January 1946; Document 3501-PS). Fritzsche never held either one of those positions. Incidentally, the Propaganda Ministry did not have only one, but three state secretaries. Besides, Dr. Goebbels had surrounded himself with a ministerial staff (Ministeramt). I believe it is appropriate to point here to this low rank because the Prosecution thought, as they did in other cases-for instance, in the case of the Defendant Goring- that they could conclude a special responsibility from a high rank; that is, from a defendant's outward position alone. Therefore, one can by no means start from the assumption that Fritzsche exerted any decisive influence upon the conduct of propaganda in general and upon the policies which were pursued by the press and radio.
The tasks which Fritzsche accomplished on the technical side of the news system involved him only as a journalist and expert. They had nothing to do with the contents of the propaganda which was pursued by the state leadership. In this respect, too, he was only a person who carried out directives. It is true that he set up the technical organization of the journalist news agencies; he thereby modernized and perfected them. It is also true that this news system played a very important part later in the war. In that respect, Fritzsche's work extended only over the period from 1933 to 1938. But it is a fact that in those years he did not have the least influence upon the contents and political trend of the news, particularly in view of the fact that he was a mere employee at that time.
I make these references to Fritzsche's official position within the Propaganda Ministry also for another reason. In admitting what he did and said, and wanting to assume full responsibility for it- Fritzsche had an opportunity to explain in detail the cause for and contents of all the excerpts from his radio addresses submitted to him-he cannot, on the other hand, answer for theses which were championed by other offices of the state propaganda apparatus and also within his own Ministry. Still less can he answer for the unorganized propaganda of the Party. Fritzsche described the various controlled and uncontrolled kinds of propaganda of the Third Reich and pointed out their effects. . May I remind the High Tribunal that the witness Von Schirrmeister testified to the effect
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that even Goebbels could not do anything with the "Party doctrines" and the "myth" in the field of propaganda. According to the witness, Goebbels did not regard them as things with which to lure the masses. When the Defendant Speer mentioned the secret agitation about the miracle weapons, he was able to point to other sources of unorganized Party propaganda. Fritzsche does not bear any responsibility for all that. His official position was not influential enough to be able to fight effectively against all faulty conditions and abuses. Therefore, his repeated attempts to have Der Sturmer banned-he considered this paper an excellent means of antiGerman propaganda-remained without success. The Party propaganda with all its practical consequences played a much more important part than that which Fritzsche with his comparatively very limited functions could ever have played. I recall the fact that, according to Fritzsche's testimony, even Dr. Goebbels was afraid of Bormann. This was explained by the portentous sentence according to which it was not the State which had to give orders to the Party, but inversely the Party to the State.
The hearing of evidence-especially the examination of the witness Von Schirrmeister-has thus shown, without any doubt, that the decisive directives for the propaganda of the Third Reich came from other agencies. Goebbels, from whom Fritzsche kept his distance personally, did not allow any of the subordinate officials in his Ministry to interfere with his plans. It has become evident that he carried out his plans with the authority of his position, with the adroitness of his arguments-which the world knows-and, if necessary, by means of fraud. The leadership of the German press policy-let us consider only this limited sphere-was and remained in the hands of Dr. Goebbels and Dr. Dietrich. The same thing happened with the radio, as the witness Von Schirrmeister has stated, when Fritzsche took over its direction in November 1942. Dr. Goebbels, one of the oldest and closest of Hitler's collaborators, and Dr. Dietrich, Hitler's permanent escort-during the war he was present almost uninterruptedly in his headquarters-never allowed the leadership of the press and radio to be taken out of their hands, especially by a man who, like Fritzsche had no connections of any kind with Hitler and had not even had a single conference with him. Ultimately, Hitler's will was decisive here, too.
We have furthermore heard the influence-it is of no importance here whether it was due to Hitler, Goebbels, or Dietrich-which other governmental agencies successfully exercised on the press and radio. Here I will mention the Foreign Of lice,' the High Command of the Armed Forces, and other ministries, the heads of which were much more closely connected with the three aforementioned personages than, for instance, Fritzsche.
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In order to avoid a misunderstanding, I would like to point out that the assertion of the Indictment that Fritzsche was in some way closely connected with the Party propaganda apparatus, for instance, with the so-called Reich Press Agency of the NSDAP, or the radio department of the Party, has been positively withdrawn by the Prosecution in the course of the Trial. With this, I think that I have sufficiently established the limits of the defendant's responsibility. This limitation shows the inaccuracy of the widely spread opinion that Fritzsche occupied a very important and influential position in the "gigantic propaganda apparatus" of the Third Reich. This limitation not only takes into account the legal but also the moral facts, which have been clearly indicated by the hearing of evidence.
Thus to a certain extent I have already taken a stand against the charge that Fritzsche was a member of the alleged conspiracy. The Prosecution have repeatedly tried to incorporate Fritzsche's work, at its different stages, in the alleged group of conspirators, and have drawn from it conclusions which go so far as to say that Fritzsche was therefore also responsible for War Crimes, for Crimes against Humanity, and even for Crimes against Peace (Session of 23 January 1946). Even in the arguments of the Indictment, these attempts seemed to have little relevant justification.
It is hardly any improper criticism if I declare here that it caused the Prosecution a certain embarrassment to display Fritzsche's subordinate position as an official as so important and full of meaning. Today, now that the hearing of evidence is complete, it seems to me that the attempts to include Fritzsche in the circle of conspirators have failed. Fritzsche cannot be found litany of the sessions at which Hitler discussed any plans or actions with the closer or wider circle of his collaborators. And apart from this, he never actually took part either in any discussions which might have teen of a nature to plunge the world into the blood bath of wars of aggression. He was neither an "old Party fighter," nor was he decorated later on with the Golden Party Badge. He did not belong, as I had to emphasize especially, to any of the organizations which are here alleged to be criminal. Up to the end he fulfilled the functions of an official in a ministry and received directives like any other official He could never have been a political adviser.
In view of the circumstances, the bridge between himself and the alleged conspiracy could have been spanned only by the person of Dr. Goebbels. The witness Von Schirrmeister has repudiated such an assumption. According to his testimony, Fritzsche did not even belong to the closer circle around Dr. Goebbels. Indeed, Von Schirrmeister could even state that Fritzsche often had to apply to him because he could not get Dr. Goebbels' opinion on some question other than through hi, as he was Dr. Goebbels' personal press
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assistant. Communicating through the state secretaries-for instance, Dr. Dietrich, Dr. Naumann, to mention only a few-also involved certain difficulties. That is not the manner in which conspirators usually communicate. Moreover, the witness Von Schirrmeister has said that it was out of the question that Fritzsche could even have embarked on an exchange of ideas with Dr. Goebbels with a view to forming plans. Now, it would have been the task of the Prosecution to prove to the Defendant Fritzsche where his participation in the conspiracy can be seen. I say that one cannot consider any count of the Indictment as proved.
I think that it was not Fritzsche's official positions at all which led to the bringing of an indictment against him. I rather assume that the latter is solely to be traced back to his broadcast speeches which made him and his name known-but only during the war- both in Germany and perhaps also in a part of the rest of the world. All the serious charges leveled against him can be traced back only to these radio addresses. The other assertions concerning his position within the state or Party apparatus are only based on assumptions or combinations without any factual basis, which is especially evident, for example, from the purely personal and refuted statements of Schorner, Voss, and Stahel. But his name became so wellknown only because of the technical means he utilized. Only the great significance of the radio for the modern transmission of news made him appear in a special light. It cannot be denied that in this way he had a great influence on the German people, but from our own experiences of Nazi-ruled Germany, I can well say that every Gau speaker (Gauredner) and many a district leader (Kreisleiter) used much stronger language. But, as a rule, their speeches were published only by the local press.
The defense was handicapped with respect to these radio addresses insofar as the complete text of all of them could not be made available. Unfortunately, the excerpts quoted during crossexamination by the Russian Prosecution could not be supplemented by the entire text of the respective speech; thus there was no possibility of reproducing the sense which the respective address had at the time of delivery. I shall come back to this and give an example later. To submit only single passages or quotations to the Tribunal is especially inadequate, because such excerpts do not show that in his speeches Fritzsche always put the events of the day in the foreground. It was only rarely and incidentally that he drew any general ideological conclusions. But even what Fritzsche has said here about those of his addresses which the Prosecution were able to produce in their entirety shows a completely different picture of the cause and motives of his broadcast speeches: From 1932-that is, already before the seizure of power by National Socialism-up
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to 1939, these speeches were nothing but a political press review. And that is what they were called. They were therefore a collection of quotations from domestic and foreign newspapers.
Fritzsche does not dispute the fact that these collections were made on the basis of the interests of the National Socialist State. Only during the war-but right up to the end they were still based on quotations also from the foreign press-did these speeches become the platform for the polemical controversy which in time of war is naturally carried on from both sides. Without any doubt, they greatly contributed toward the formation of political opinion in Germany; but there is also no doubt that many people in Germany listened to Fritzsche's speeches not for their polemics but in order to learn from his quotations at least something about the opinions expressed abroad. For years these speeches constituted purely private work carried out alongside his official position. Only during the war did they come to be considered as semiofficial because of their increasing political news value. Thus-to make it clearer- they assumed approximately the character of editorials in a newspaper which, as one says, is closely connected with the government. It would have been easy for the defense to submit to the Tribunal tons of newspapers dating from the same time, the editorials of which showed the same trend, and even-this can be said quite definitely-used considerably stronger language.
Fritzsche has been able to repudiate most decidedly-and in my opinion quite rightfully-that these addresses constituted an incitement to race hatred, to murder or violence, to hatred among nations, or to wars of aggression. If such an effect could really have been produced by these speeches, absolutely the same reproach should fall upon any editor of the Third Reich who received the "daily directives" from the Reich Press Chief. Fritzsche seems to be accused before this Tribunal only because through technical means he could be heard over a wide range. But it is, especially in wartime-and only since 1939 did his speeches have a political news value at all- in the nature of things, that the controversialist becomes himself the subject of controversy, especially the one whose influence, considered from the standpoint of political news value, extended further technically than the influence of an article in a local paper. Only in this manner did his name become better known to outsiders than names of people who were much more powerful than the publicist.
How far the Prosecution went in their accusations against Fritzsche in his capacity of a publicist is shown by the fact that not only is he supposed to have belonged to the plotting group of conspirators, but that he is also accused of Crimes against Peace. If a propagandist is subjected to such an accusation, there immediately arises the question whether public radio speeches would not be the
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least proper means for carrying through criminal aims of a secret conspiracy. Speeches, which can be heard all over the world, could at best be suitable for camouflaging such aims and for misleading the world. But actually, just the opposite reproach is leveled against Fritzsche: he is supposed to have incited other people.
I think I have now dealt at sufficient length with the nature and the character of these speeches. Their importance had to be adjusted to the proper scale in view of the far-reaching conclusions of the Prosecution.
Before going into the details of the charge that by radio speeches, or by other means, Fritzsche contributed toward the various wars of aggression, it is necessary, in a case in which accusations to that effect pertaining to criminal or international law are raised against a publicist, to deal with a legal problem. At no point, as far as I can see, did the Prosecution consider the question of whether and to what extent propaganda-that is, the attempt to influence minds- especially during war, was or still is subject to the rules of international law. Perhaps the problem did not come up only because this question, once it was asked, would have had to be definitely denied. While it is true that the Indictment speaks of the "gigantic propaganda apparatus" during Hitler's dictatorship, which was created as a consequence of the supervision and control of all cultural activity, it does not draw any conclusions for a judgment according to international law. For, as a matter of fact, no generally or specially valid rules concerning this field have ever been established, no sort of prescriptive law developed in this sphere either.
In this connection, it is interesting that in the textbooks of international law no attention at all-as far as I could find out-is paid to this problem. A certain number of textbooks, however, especially those with a tint of natural law, regularly contain in their catalogs of fundamental international law a section on national honor or national dignity. These chapters deduce from the equality of nations, and their living together in a community governed by international law, the demand that the nations treat each other with respect. And they furthermore demand that insults directed against other countries by private persons from their own sphere of influence be prevented, and that if committed, such excesses be punished. But this idea found its positive legal expression only in a number of national criminal codes in which-naturally in peacetime only-the insulting of foreign chiefs of state, for instance,* is made a punishable offense. Another doctrine, which is based less upon natural law, holds that this is not a question of legal obligation but one of international courtesy only. Be that as it may, an international law
* Crimes Against Foreign Countries, Swiss Gazette for Penal Law. (Schweizer Zeitschrift ar das Strafrecht) 1928, Page 317.
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precisely defined in some way does not exist, not even for times of peace, especially not as far as private propaganda through press and writings is concerned. And as to war, any directive in this respect is lacking altogether as I have already pointed out. According to existing rules of international law there are no limits to propaganda against foreign countries in time of war. Consequently, there is only one barrier to this propaganda-namely, the great barrier which governs all the rules of warfare that everything is permitted quod ad finem belli necessarium est.
In view of the tremendous importance of psychological influence upon the will of individuals and nations, it is beyond doubt that propaganda can be an important and, in certain cases, even decisive means of war, no less important than, for instance, economic warfare or even warfare with weapons. Propaganda in this case has a double task: First, to serve as a means for increasing the power of resistance of one's own nation, and second, to undermine the fighting powers of the opponent. This influence-whitewashing on one side, slandering on the other, concealment of facts, et cetera-is essentially nothing else but a stratagem which, within the framework of the rules of land warfare, has been expressly declared as a permissible instrument of warfare, according to Article 24 of the Hague Rules of Land Warfare. In this connection, it may be pointed out that spying-also a form of war stratagem-had likewise been declared as a permissible instrument of warfare by the Hague Rules of Land Warfare.
What has been said here is in complete accord with what is practiced by all countries; defamation of the opponent and his statesmen, making the opponent contemptible, falsifying the motives and intentions of the enemy, slanderous assumptions, assertion of unproved statements-all this belongs unfortunately to those means of propaganda which during a war are used on all sides and at an increasing rate.
Minor attempts, but only for the purpose of preventing war, are known from the time before the first World War. At that time, they had an even farther-reaching aim-namely, to contribute in general to an understanding among nations by means of a general moral and spiritual disarmament (desarmement morale). However, this goal was not reached before the first world conflagration of this century. After 1918 though, as a reaction after the great armed conflicts, this aim received a stronger uplift and became known to the world through the tasks imposed upon the League of Nations in this respect. This was indeed the first real attempt to start an intellectual disarmament. At the fifth session of the League of Nations in 1925 in Paris it was decided to found an institute for intellectual co-operation (cooperation intellectuelle).
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Further investigations, which lasted for years, resulted in numerous proposals, in the establishment of general committees and subcommittees, of sections and committees of experts with an incalculable wealth of documents. But nevertheless none of these great efforts converted the idealistic impulse and the longing of the nations for a "spiritual disarmament" and intellectual co-operation into sober and concrete legislation which would have imposed legal obligations on the individual states as well as on their nations. No results were achieved in pointing a way which in time of war would prevent hatred, incitement, distortion of facts, and provocation of other nations or nationals of other countries in all the possible modern forms of expression.
Even such wel7-defined and comprehensive propositions for a moral-intellectual disarmament as those presented by the Polish Government to the League of Nations in two memoranda of 17 September 1931 * and 13 February 1932 ** had the same fate. These propositions aimed at using national legislation to prohibit any propaganda which might become dangerous for peace, and even any propaganda which aimed at a mere disturbance of the good relations between nations. Influence was to be exerted not only upon the big public news media but also upon the vast ramifications in the administration of every modern state, including even the revision of schoolbooks. These propositions which advised member states not to recoil even from censorship and measures of prohibition finally came to nought because they stood in direct contradiction to the deeply rooted conception that freedom of expression of opinion in intellectual matters could not be undermined by such exceptionally far-reaching police measures; this freedom of expression had to be preserved as an "inalienable right" granted by the Creator. And this opposition on fundamental principles ended matters. We have in the course of the Trial seen ample evidence of the effect which censorship and control of the press, radio, and films may have.
The few bilateral agreements which were concluded after the failure of the Polish propositions of 1931 and 1932 are not worth mentioning here. They are concerned with certain forms of propaganda only, and solely with periods of good international relations. We can only express here the hope, therefore, that on the basis of international solidarity it will in the future be possible also to reconcile these two still opposing theses on a higher level.
* Letter of the Polish Foreign Minister to the General Secretary of the League of Nations. Official Number C. 602. M. 240.1931. D: (Conf. D. 16); also reproduced in Peter Dietz' Geistige Abritstung, Pages 137-143, Erlangen Library under the Number U 36J3564.
** Propositions of the Polish Delegation covering the progressive achievement of moral disarmament. Official Number Conference D. 76; reproduced also in Dietz, Pages 143-145.
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In the course of this Trial a secret order was produced which had been issued by the High Command of the Armed Forces on 1 October 1938 (Document C-2). This document showed that the division for international law in the OKW had drawn up a chart for the event of an armed conflict, and this chart was to show the principles for dealing with any possible violation of the rules of warfare by friend and foe. With the knowledge of the legal vacuum existing in the field of propaganda in its broadest sense, it is stated there that from the point of view of international law it is absolutely permissible to make the opponent contemptible and to try to undermine his strength "regardless of how many lies and falsehoods are used for this purpose," and that from the legal standpoint a rule for the future could even be established to the effect that if the enemy employed such propaganda, defense by means of "counterattacks" would be legally possible, and whereby "naturally the propagation of atrocity lies" must also be fused. This may sound cynical and brutal. But unfortunately it fitted in with the customs of war, or rather, this undisguised statement originated in the legal lacuna which could actually be found in international agreements and in prescriptive law. Dr. Kranzbuhler rightly stated here: In war the duty to tell the truth does not exist.
Owing to the period of time which has elapsed since the first World War and its propaganda methods on both sides, we can today consider the events of those days as belonging to history. At that time, too, all belligerents gave great consideration to their efforts to undermine the enemy by means of propaganda. But the legend of children's hands cut off by German soldiers-a war lie, as Arthur Ponsonby proved in his book Falsehood in Wartime *- was still alive in a French schoolbook even in the midst of peace, nearly 10 years after the first World War.** Publications of all belligerent countries-drawings and cartoons dating from the time of the first World War alone-can be found in masses in all libraries. Many will still remember the film The Four Horsemen of the Apocalypse which showed terrible atrocities, and circulated almost throughout the whole world at the time of the first World War. Legally, this matter had unfortunately to remain unsettled up to this point. In view of the goal striven for by Justice Jackson in this Trial of creating a new international law, can the case of the Defendant Fritzsche as a publicist in the Nazi State be included
* Arthur Ponsonby, M. P., Falsehood in Wartime, containing an assortment of lies circulated throughout the nations during the great war, published in London by George Allen and Unwin Ltd., Museum Street, 1928.
** In a schoolbook for Lorraine: Deuxieme livre du syllabaire Langlois: (Second book of the Langlois Primer); which was still in use in 1927, and which refers to these alleged events on Page 156 under the heading "Remember"; reproduced in the Informations d'Alsace-Lorraine of 20 March 1927.
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retroactively? Can the desire of the Prosecution to see Fritzsche punished as a war criminal be derived from their assertion of a logical development of existing laws (Sir Hartley Shawcross, Session of 4 December 1945, a. m.) when up to now nothing, absolutely nothing, has been legally and properly ruled upon in the field of propaganda, and no promising beginnings of any kind have appeared in this direction? Here it is certainly not a question of only an apparent legal loophole (Session of 4 December 1945).
What has been said, of course, does not include those cases in which individual crimes were actually incited by means of propaganda. Therefore, I shall now go into the individual charges of the Prosecution in order to show that Fritzsche is not guilty of having committed such acts.
As far as the alleged crime against peace is concerned, the Prosecution act on the assumption that any important political and military attack on the part of the German state leadership was preceded by a press campaign. Therefore, the Nazi conspirators must have used the press also as an instrument of foreign policy and as a feint to cover subsequent aggressive action. From that general, perhaps even correct, description of such intentions, the far-reaching conclusion is drawn that Fritzsche may also be partly responsible for them. Such responsibility would be based merely on the chronological circumstance that he was the Chief of the German Press Division within the official Ministry of Propaganda from December 1938 to the spring of 1942. But the premises are lacking for this conclusion. It could only be justified if it had been successfully proved that Fritzsche was the real creator and inspirer of all those press campaigns. But Fritzsche, if only because of his subordinate position-subordinate not only in regard to the departmental organization but also compared with the real leaders of propaganda, Hitler, Goebbels, Dietrich, and others-could know only what his superior passed on to him-as well as to other civil servants-as the historical truth.
May I bring to mind the fact that all witnesses who have testified in any way about the influence of the foreign policy on the press always pointed out that before beginning any political-and especially before beginning any military-operation, the Foreign Office justified the measures taken in the field of high policy before the public in White Books prepared by them. Just as in the case of other intentions or goals of the highest leaders of the Third Reich, the press, too, was informed in these cases only of that which the general public was permitted to learn, while matters not destined for publication were kept secret.
After hearing the evidence, what was the actual relation between the propaganda furnished by Fritzsche and the various military invasions, and what did he know of their background?
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At the time of the occupation of Bohemia and Moravia, instructions were given him by the Reich Press Chief only a short time before the decisive step of 15 March 1939. These consisted, as in an other cases, of so-called "daily directives" (Document Number 3469-PS) which were given out at press conferences. Such daily directives thereby received publication in the headlines of German papers. It may be mentioned here, that the best known organ of the Party-namely, the Volkischer Beobachter, due to its direct connection with the Reich Press Chief and, during the war, with the Fuhrer's headquarters-was more independent of such daily directives, considering that it had a foreign news service of its own. What was printed in the Volkischer Beobachter does not, therefore, represent what had been approved by Fritzsche as leader of the German press. At that time, Fritzsche had already-and this attitude is of greatest importance with regard to all of his activities-established the principle for his press reports that untrue
news should never be given to the press. The apparent reason for that was the fact that his predecessor in the German Press Division, Berndt, had had all kinds of news spread during the Sudeten crisis, by which he lost the confidence of German editors. Fritzsche, as well as the witness Von Schirrmeister, gave details about these matters on the witness stand.
It is not apparent in what respect Fritzsche played a greater part than any other officials or officers when the German troops marched into Czechoslovakia. Fritzsche knew just as little about what has been disclosed in this Trial about Hitler's secret intentions at that time as he could have known about the Case Green plan. As head of the domestic press, he could have exercised no influence whatsoever on the propaganda possibilities which were to be made use of within Czechoslovakia proper (Document Number 998-PS).
The same is true of the Polish campaign. Here too, Fritzsche did not speak a single word in favor of any armed conflict, or deliberately spread any stories which might have supported any bellicose intentions. Even in his radio broadcast of 29 August 1939, which was held against him during his cross-examination (Session of 28 June 1946, Document USSR-493) he points out explicitly that there could not in fact exist any serious doubt about the German desire for peace. These and many other passages are particularly significant in proving Fritzsche's good faith. He has expressed here his and the German nation's disappointment that this desire for peace, which Hitler emphasized repeatedly, proved to be a lie, even a fraud. If one examines the full text of all the other broadcasts by Fritzsche shortly before and during the Polish campaign, none of his statements can be interpreted as favoring that war of aggression. The official reasons given at that time convinced Fritzsche, as well as millions of other Germans, that right was on
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Germany's side. It was because Fritzsche had shared such a conviction, at that time, that he declared here on the witness stand that he, too, felt that he had been deceived by Hitler.
It was no different in the case of Yugoslavia. Here likewise, Fritzsche was able to learn only what facts were given to him and the many editors by the Reich Press Chief, facts which Fritzsche had no opportunity to verify if only because of the speed with which these events were developing, even if the thought could have struck him during the course of events that maybe the press was being made use of to provoke warlike measures.
The role of the press before the surprise attack on the Soviet Union was made particularly clear during this Trial. For reasons of strategy alone the entire propaganda machine-also including Fritzsche, as head of the Home Press Division-was not permitted to know the slightest thing about it in advance. It was especially this same campaign which Goebbels cleverly kept secret by simulating an intended German invasion of England. At that time, Goebbels deliberately led even his closest assistants on that wrong track, as was stated here by the witness Von Schirrmeister.
Fritzsche's statement that he did not know anything about the secret preparations through the formation of a so-called Eastern Ministry was not refuted by the so-called Rosenberg report, which was read to him during cross-examination (Document Number 1039-PS). This is a document which has also played a part in other connections because of the many names it contains. At the same time, it is the only document which includes the name of Fritzsche in connection with any secret plans. From that document, which according to established facts was drafted by Rosenberg and some of his associates sometime around 28 or 29 June 1941-thus, after the start of the campaign-it is impossible to draw the conclusion that Rosenberg spoke with the Defendant Fritzsche before the decisive date. The draft does not bear any date or signature. Besides, Fritzsche is mentioned in it by the title, of Ministerial Director which he was not given until the fall of 1942. This does not in any way appear to disprove Fritzsche's statement on the witness stand that he never had been informed by Rosenberg either about an impending war with the Soviet Union or about the intended formation of an Eastern Ministry. Not until after the beginning of that campaign, and after the official announcement that a new Ministry had been established, were Rosenberg's wishes with regard to the treatment of Eastern problems in the German press forwarded to him by the former's assistants.
Thus Fritzsche's deposition still holds, that in the case of the war against the Soviet Union, just as in the other cases, he did not learn anything until the moment when he was given the pertinent news for publication. You will grant that this does not permit
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the conclusion that he played the role of a conspirator who helped draw up the general plan, or at least knew of it. And it cannot properly be assumed that Fritzsche knew anything about the plans of the High Command of the Armed Forces in June 1941 (Document C-26), or even of the Bormann Protocol of 16 July 1941 (Document L-221)-both of which were submitted to him during his cross-examination. These negotiations show that actually they could have taken place only in the innermost circle. Moreover, the evidence which did not concern Fritzsche directly has shown that even military methods of deception had been used to conceal the plans. This has been stated by the witness Paulus and becomes clear from the report of the German military intelligence service (Document 1229-PS). The nature of all these things was such that they could well be withheld from a newspaper man. Even the witness Gisevius, who after all was always engaged in ferreting out secret ends, had to point out how much effort was required even within the High Command of the Armed Forces to obtain information, at any time, as to whether Hitler was planning a war or not (Session of 25 April 1946).
Accordingly, I can state in conclusion that the emphatic assertion of the Prosecution that Fritzsche as Goebbels' accomplice helped the latter to plunge the world into a blood bath of wars of aggression (Session of 23 January 1946) is not justified. During my examination of Fritzsche he pointed out, in contrast to this, that whatever the facts may have been in individual cases, at every moment, from the advance into Austria to the invasion of Russia, he and the German public were given only such information as seemed to justify the necessity of the German actions.
Now, one could also conceive the charge of a crime against peace to be that Fritzsche constantly called on the German people to hold out during the conduct of a war of aggression. Naturally he did not spread any defeatist propaganda in the course of his radio speeches. I must, therefore, discuss the question whether this, or any sort of participation in a war of aggression, after the latter had broken out, should be considered as participation in the crime against peace and should be punished accordingly.
The French Chief Prosecutor, M. de Menthon, tried to draw the conclusion-proceeding from a literal interpretation of Article 6, Paragraph 2 (a) of the Charter, without regard for the real meaning of this article-that the soldiers and other agents of the aggressor state could not undertake any military operations at all which could be justified by international law. However, he was obviously compelled to recognize that in practice this idea must lead to impossible consequences. Thus, for example, he recognized the Hague Convention for the Rules of Land Warfare as a law which not only obligates aggressor and attacked nations alike, but also gives them
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rights. He thereby let it be clearly recognized by implication that, in his opinion, this stipulation of the Charter is to be interpreted restrictively.
In Article 6, Paragraph 2 (a) of the Charter the following are defined as Crimes against Peace: "The plan, the preparation, the introduction, and"-according to the German translation "Durchfiibrung"-"waging of a war of aggression." "Durchfuhrung" is the translation of the English word "waging." It would probably be more correct to translate it by "unternehmen" (undertaking). But in its natural sense, "unternehmen" means about the same as "beabsichtigen" (intending); whoever undertakes, pursues, intends something, has not executed it yet. The word "durchfuhren" could create the opinion that the crime against peace was not concluded with the outbreak of war, and therefore could extend over its entire duration. The result of this conception would be that all persons who participated in war operations, as, for instance, the Army leaders, all members of the Armed Forces, and, besides that, all persons who supported the war in any way-even by deliveries of war material and through radio broadcasts-would be punishable according to this stipulation. They had thereby at least contributed support to the waging of war. These persons could even be criminals against the peace, if they had in no way participated in the planning or preparation of it before the outbreak of the war, and even if they had no idea that any aggression was involved.
In reply to this, the following must be stated: Only those persons can be considered as waging a war of aggression who planned it themselves. They were just carrying out their common plan by starting the war, with or without a declaration of war. Thus "carrying out" is to be placed on the same level as "beginning." The accusation of a crime against peace can affect only those who also planned it. This is supported by the following reasons. The punishment is intended to protect the peace against wars of aggression-that is, against unlawful wars. At the moment that such unlawful wars start-are "unleashed," as the Indictment puts it- the rightful domain of peace has been violated; the crime against peace is consummated and accomplished. Therefore, no other meaning but "bring about," "proceed to execute the plan," can be attributed to the term `'carry out," or "undertake"-"waging."
This interpretation is also consonant with the historical development of the concept of "crime against the peace" in international law. For years international law has made a distinction between war crime in the narrower sense and war guilt in the broader sense. War crimes are of lenses against the rules of warfare, which have been established by agreement or custom, against the customs of war and, going further, also of senses against humanity. War
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guilt means being guilty of having brought about war, in particular an unjustified war of aggression.
This distinction also made its appearance during the negotiations about the peace treaty after the first World War. This has found expression in Article 227 et sequentes of the Treaty of Versailles. There can be no doubt that the concept of a crime against the peace within the meaning of the Charter is intended to be the same as this war guilt in its previous sense in international law. Article 6, Paragraph 2 (a) is supposed to refer to war criminals- that is to say, those who bring about an unlawful war.
The view that the subsequent support of a criminally instigated war was likewise a crime against peace necessarily led to entirely untenable consequences. In such a case, hardly one citizen of a country which had started a war of aggression would be guiltless. In its present-day form, war is no longer, as in former times, limited to an armed conflict between the armies. Just as both World" Wars have shown, it has been extended to include the belligerent nations in their entirety and all their spheres of life. It has grown into total war-total in the sense that everybody participates in it. Even the woman who is making screws in a factory is a participant in this total war. And, as Professor Exner so vividly explained in his final speech, in a war of aggression every capture of prisoners would mean a deprivation of liberty, every requisition a robbery, and every shot a murder. To want to make all members of a nation responsible as authors of crimes against peace would be absurd. Moreover, a classification as to the kind and degree of a person's contribution toward a war which had broken out would be impossible as a practical matter.
Crimes against Peace, therefore, can only be committed by those who participated in breaking the peace-while the vast majority who did not participate in it could not be counted in this category.
The point of view which has been developed here is, in my opinion, also represented in the Indictment. The latter views the crime of breaking the peace as realized by the act of "unleashing" (Entfesselung). In no place has it even been hinted that the crime itself, or its continuation, is seen to consist in the participation in a war or in supporting it by furnishing services or supplies of any kind. Even according to the phrasing of the Indictment, from the moment of the beginning of war onward, only crimes of the second and third group come into question-that is to say, War Crimes in the narrower sense of international law, and Crimes against Humanity.
In my opinion, Justice Jackson in his opening speech of 21 November 1945 also adopted the point of view which has been advanced here, whereupon Justice Biddle pointed out to him in
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the session of 1 March 1946 that, at that time, he had indicated that beginning the war was the essence of the crime and not actual waging of the war. That means, in other words, that with the beginning of the war of aggression, the Crime against Peace within the meaning of Article 6, Paragraph 2 (a) of the Charter, was consummated (breach of peace).
From these statements it follows that any activity in furtherance of the war during the war cannot represent any criminal act, nor can Fritzsche's radio broadcasts which he made during the war.
THE PRESIDENT: The Tribunal will adjourn now.
[The Tribunal adjourned until 25 July 1946 at 1000 hours.]