The Nizkor Project: Remembering the Holocaust (Shoah)

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By DR. DIX, Continued:

This should not even be a point of consideration, for in the
Jewish question, Schacht, in his public speeches and his
reports to Hitler, showed such a favourable attitude towards
the Jews that it would be unjust to disqualify him
politically and morally for this reason, not to mention to
do so from the standpoint of criminal law. As examples I
would remind you of the Reichsbank speech after the anti-
Jewish pogroms in November, 1938, the speech at Konigsberg,
the statements of the year 1935, and so forth. In the Third
Reich, Schacht was considered the most courageous and most
active protector of the Jews. I only remind you of the
letter of the Frankfurt business man, Merton, which was
submitted to the Tribunal, and to the illuminating statement
of the witness Hayler. According to the latter, when Hayler
reproached Himmler for the events of November, 1938, he
replied that ultimately it had been the fault of the
economic administration that matters had reached such a
point. From a man like Herr Schacht, one could not expect
anything else than that he would exercise a constant
restraining influence in the Jewish question and be opposed
to the will of the Party.

In response to my further inquiry, Justice Jackson defined
this specific charge, of the prosecution as follows: Schacht
is not being charged with anti-Semitism, but for activities
which have a causal connection with the atrocities committed
against the Jews within the framework of the planning of
aggressive war. Thus it follows that a denial of guilt in a
war of aggression leads with compelling logic to the denial
of any guilt for the atrocities which were committed against
the Jews during the war. Justice Jackson has made some
phases of the legislation in respect to the Jews during
Schacht's term as minister the subject of his cross-
examination. I shall refrain from evaluating this part of
the cross-examination; the questions put to him and answered
by him are irrelevant according to the Charter and the
previously mentioned authentic interpretation of this part
of the; Indictment by Justice Jackson. The anti-Semitic
legislation of the Third Reich and the personal attitude of
an individual defendant toward it are, according td the
Charter, relevant in these proceedings only in so far as
they are connected with other crimes which are subject to
punishment according to the Charter, as, for example, the
conspiracy to wage war, mass extermination, and so forth.
According to the Charter they cannot be an offence in
themselves, nor even one against humanity. Only those
defendants are punishable for their deeds who can be proved
to have participated in the planning of a war of aggression
with its resulting inhuman consequences for the Jews. A
prerequisite for their conviction on account, however, is
that they recognized and desired this goal and its result.
There is no purely objective responsibility for the final
result of an action (Erfolgshaftung) in criminal law.
According to the Charter, he who desired the war and thus
also the inhuman actions connected with it is punishable;
but the incriminating activity must always have occurred
within the scope of the execution of such a plan. This
purely legal consideration in itself excludes the conviction
of Schacht on account of atrocities against the Jews.

                                                  [Page 379]

A discrepancy between the prosecution, especially between
the statements of Justice Jackson, and myself must likewise
be clarified at this point, otherwise we will be talking at
cross-purposes. During the cross-examination Justice Jackson
has repeatedly pointed out that the defendant is not being
charged with anti-Semitism as such that he is not being
charged with his ideas and statements on the so-called
Lebensraum problem, and thus, the food problem of the
Central European nations, that he is not being charged with
his colonial aspirations, but that he is being charged with
all this only to the extent that it has served, with his
knowledge and desire, for the preparation of a war of
aggression. By this objection Justice Jackson meant to
preclude certain questions and discussion.

This would have been justified, and I also could now omit
such arguments, if the prosecution had not taken with one
hand what it gave with the other, because, in the course of
argumentation, all this, namely his alleged anti-Semitism,
etc., is used as indirect proof, that is, as circumstantial
evidence, that Schacht had prepared and desired this war of
aggression. The prosecution of course does not count all
that as a criminal fact in itself, but as indirect proof, as
circumstantial evidence. Therefore, in evaluating the
evidence, I must also deal with these problems. I think I
have finished dealing with the Jewish question. With regard
to the problem of living space (Lebensraum), in order to
save time, I can probably refer to what Schacht has stated
here during his interrogation in justification of his
statements and activities in this respect. The colonial
problem was the subject of cross-examination by Justice
Jackson in so far as he tried to prove that colonial
activity by Germany was impossible without world domination
or at least the domination of the seas previously acquired
through war. The further development of this train of
thought would result in the defendant Schacht being charged
with the fact that his struggle for colonies logically
depended on the planning of a war of aggression. This is a
false conclusion. I think that Justice Jackson's conception
of colonial policy is too imperialistic. Anyone desiring
colonies for his country, without dominating the world or
even the sea, bases his colonial activity on a lasting state
of peace with the stronger sea Powers. He must believe in
peace with these Powers. Germany also possessed colonies
from 1884 until the First World War; her merchant marine
carried on the necessary traffic with these colonies. Her
merchant marine before this war would also have been
sufficient. The use of aeroplanes, in reply to Justice
Jackson's question, would not have been essential. Nothing
supports the presumption that in his desire for colonies
Schacht would have striven to eliminate foreign naval
supremacy by means of war. In view of his general conduct,
one can hardly consider him as foolish as all that.

France and Holland likewise possess colonies, the sea routes
of which they certainly do not control. This charge of the
prosecution is therefore inconclusive. Moreover, the
Tribunal know that during the years before the war nearly
all the statesmen of the victorious Powers were sympathetic
to these colonial aspirations of Germany, as is shown in
many of their public speeches.

I come now to the subject of rearmament, i.e., to the
activity of Schacht in his capacity as President of the
Reichsbank and Reich Minister of Economics until 1937, i.e.,
up to the time when he changed from a loyal servant of Adolf
Hitler to a traitor against him, and took to the dark ways
of artifice and dissimulation while making preparations for
an attempt on his life.

The prosecution considers the violation of the Versailles
Treaty, the Locarno Pact and of other treaties as indirect
proof, that is, as circumstantial evidence, of his criminal
intention to wage a war of aggression. This involves first
the question of whether any treaty violations took place
and, if so, whether these treaty violations must be judged
as indications of an intent to wage a war of aggression on
the part of members of the Reich Government, Schacht
included. It is impossible and also unnecessary to discuss
exhaustively in this plea the problem of whether actual
treaty violations were committed and to what extent. My
colleague Horn has already touched upon this question. A
short remark can serve to show

                                                  [Page 380]

at least the problematical nature of this question. This
again is important for proper evaluation. There are no
lasting treaties at all, not in the domain of civil
jurisdiction and still less in the domain of International
Law. The clausula rebus sic stantibus often plays a much
more important role in the domain of International Law,
i.e., the political intercourse between nations, than in
private dealings between individuals. One must be very
careful not to apply offhand the relatively narrow
principles of civil law to the breadth and width of
International Law. International Law has its own dynamics.
The highly political intercourse between nations is subject
to other juridical aspects than the commercial and personal
relation between individuals. The most striking proof of the
correctness of this thesis is the juridical basis of the
Indictment particularly in so far as it deals with the
sentence "nulla poena sine lege poenale" and demands instead
of sanctions the individual punishment of the leading
statesmen of an aggressor nation. He who affirms the
conception of the prosecution in this respect acknowledges
the dynamics of International Law and the fact that
International Law develops according to a process of its

History has taught that treaties, based on International
Law, mostly do not come to an end by a formal repeal, but
die due to the new course of events. They inevitably fall
into oblivion. In certain instances, one might be of a
different opinion as to whether this is the case or not.
This does not alter the basic truth of this fact. The
militarisation of the Rhineland and the introduction of
universal conscription, the extent of rearmament which
Schacht approved of and strived for, the voluntary
"Anschluss" of Austria to Germany, which was also basically
desired by Schacht, certainly are offences against the
meaning and text of the above-mentioned pacts, particularly
the Versailles Treaty. If, however, such violations are only
answered by formal protestations, and otherwise very
friendly relations  continue to exist and the offending
nation is even accorded marks of honour; if agreements are
concluded which alter the basic stipulations of such a
treaty, as,  for instance, the Naval Agreement with Great
Britain, one can very well take the view that because of all
this such a treaty is slowly reaching a state of
obsoleteness and extinction, or that such a point of view is
at least justified.

I beg you to consider that the prerequisite for the
conclusion of an armament pact, as for instance the Naval
Agreement with Great Britain, is military sovereignty of
both nations. The denial of this sovereignty in the case of
Germany was, however, one of the main aspects of the
Versailles Treaty. I do not wish to speak here about the
justice or injustice of this Treaty. I know the Tribunal's
wish or rather prohibition in regard to this matter, and of
course I shall observe it. But I must and I may speak about
the legal possibility and therefore the innocence,
criminally speaking, of Schacht's personal opinions on the
question of treaty violation. Even if, therefore, one still
wished to defend the point of view that the said treaties
have not become obsolete, one cannot, at least as far as its
honesty is concerned, doubt the justification of a contrary
opinion. But if this is answered in the affirmative, these
treaty violations are no longer any proof of the criminal
intention of a war of aggression. But that is the only point
in question. For the violation of treaties, as such, is not
yet considered a punishable act by the Charter.

Here, too, Schacht can justify his good faith by referring
to the same or similar views on the part of leading foreign
statesmen, who by force of logic considered it to be out of
the question from the very beginning to suspect a German
will for aggression. Here again I must limit myself to a few
instances, as a complete enumeration would exceed the time
limit of this plea.

The first of the violations of the Versailles Treaty is
supposedly the reintroduction of national conscription. With
regard to this measure, the British Foreign Minister, Sir
John Simon, with a statesman's far-sighted objectivity, gave
the following reply which was universally made known in
reports by the Press and radio, and which therefore is valid
as legal evidence:

  "There is no doubt that an agreed reduction of the
  armaments of other big nations was to follow upon the
  forced disarmament of Germany."

                                                  [Page 381]

This remark contains a confirmation of the judicial point of
view I developed a while ago, in spite of the criticism of
Hitler s action that follows. The same applies to the fact
that the visit of Sir John Simon and Anthony Eden to Berlin
took place eight days after this so-called treaty violation,
namely on 24th March, 1935. It would not have taken place if
this measure of Hitler had been considered abroad as
militarily aggressive. I shall make only a short reference
to the history of the treatment of this question at the
Council of the League of Nations, since it is well known.
Should Schacht, as a German and a German Minister, judge it
in a different manner from that of the foreign governments?

A second treaty violation by Hitler was the occupation of
the Rhineland, also in March, 1935. This action did not only
violate the Versailles Treaty -

THE PRESIDENT: The date of the occupation of the Rhineland
was not March 1935 but March, 1936.

DR. DIX: I cannot ascertain that at the moment.

The point in question is the occurrence of this action,
namely, the occupation of the Rhineland. This action was not
only a breach of the Treaty of Versailles, but also of the
Locarno Pact; that is, of an undoubtedly voluntarily
concluded treaty. Two days later, Mr. Baldwin stated in the
House of Commons, in a speech made public and therefore
valid as legal evidence, that, while Germany's conduct could
not be excused, there was no reason to assume that this
action contained a threat of hostilities. Was Schacht, a
German and a German Minister, to take a different and more
sceptical attitude in regard to the aggressive significance
of the act than foreign statesmen? And particularly when he
was forced to observe a fact which is now history and is
universally known, that ten days after this breach of treaty
the Locarno Powers, apart from Germany, submitted to the
Council of the League of Nations a memorandum which proposed
the reduction of the number of German troops in the
Rhineland to 36,500 men, and was also intended as an attempt
to avoid the strengthening of the SA and SS in the Rhineland
and the erection of fortifications and aerodromes. Should
this memorandum not be interpreted as a ratification of an
alleged breach of the treaty?

A third breach of the treaty was the fortification of
Heligoland, which was hardly observed by the contracting
parties, and called forth from Eden, in a public speech to
the House of Commons on 29th July, 1936, which has now
become history, merely the remark that it was not considered
favourable to increase the difficulties of the proceedings
by individual questions like the one under discussion. Was
the German Minister Schacht to take another and more
rigorous attitude?

And what about the terroristic annexation of Austria in
March, 1938, when, moreover, Schacht was no longer Reich
Minister of Economics? If foreign countries had gathered
from this action the conviction that Hitler was preparing a
war of aggression, they would not have abstained from
threatening to use force. Was the German Minister Schacht to
have a different opinion and endorse it? He did, in fact,
have a different opinion at the time and was already eagerly
at work with Witzleben and others to eliminate Adolf Hitler
and his regime by means of a putsch; an effort on the part
of these patriotic conspirators which was frustrated, as the
unequivocal testimony of witness Gisevius has shown, because
Hitler was able to record one success after another in
foreign politics.

I merely remind you of the unequivocal evidence of Gisevius
regarding the effects of the Munich Agreement on the
strength of the opposition group of which Schacht was a
leader; I remind you of the evidence of Gisevius regarding
the warnings and hints in this connection which were sent
beyond the German frontiers to responsible personalities of
foreign countries. Is it fair to require of the German
Minister Schacht a more critical attitude in respect to
those political developments than that of foreign countries
whose interests had been injured? As we know from Gisevius,
from Vocke and from all the affidavits submitted, he did
have this critical attitude from 1937, in which year he took
to the dark ways of a conspirator. I remind you of his first
contact with the then General von Kluge. I could give

                                                  [Page 382]

many examples such as those just mentioned. I do not
criticise this attitude foreign countries; that is not for
me to do, quite apart from the fact that I have a complete
understanding for this pacifist attitude shown by countries
fully aware of their responsibilities. It is, however, my
duty to point out that no warlike intention can be imputed
to Schacht on account of his opinions and attitude, when the
same opinions and the same attitude can be identified as
belonging to the foreign countries whose interests were
threatened. If foreign countries could entertain the hope of
maintaining further friendly relations with Hitler, the same
right must be conceded to Schacht, as long as he claims the
same right. He does not claim it for himself, not after the
Fritsch crisis of 1938 at the latest.

After that time he had, unlike foreign countries, clearly
perceived the danger, which fact according to the evidence
of Gisevius is undeniable, and he personally did all he
could at the greatest risk of liberty and life to maintain
peace by attempting to overthrow Hitler. The fact that all
these putsch-actions before the war and after the outbreak
of war were unsuccessful cannot, according to the evidence
submitted, be considered as his fault. The responsibility
for the failure of this German resistance movement does not
lie with the latter, but elsewhere, within and without the
German frontiers. I shall return to this later.

There remains, therefore, the fact of rearmament as such.
Here, too, I can refer essentially to the statements Schacht
made in justifying himself during his cross-examination.
This was exhaustive and a repetition would be superfluous.
It is, therefore, also completely superfluous to enter into
an academic discussion as to whether Schacht's views were
right; that is to say, whether it is right that a certain
amount of military strength sufficient for defensive
purposes is necessary for any country, and was particularly
necessary for Germany, and whether he was correct in his
opinion that the non-fulfilment of the obligation to disarm
by the parties to the Versailles Treaty justified the
rearmament of Germany. The sole point in question is whether
these opinions and motives of Schacht were honest or whether
he pursued secret aggressive intentions under cover of this
defensive armament. But these proceedings have established
absolutely nothing to disprove the honesty of his opinions
and motives. Of course, one can question whether  the
quotation "si vis pacem para bellum" has an absolute
validity or whether, objectively, any heavy rearmament does
not carry an inherent danger of war, since good armies with
competent officers naturally strive for possibilities of
real action. Of course, one can defend the thesis that moral
strength is stronger than any armed strength. The cohesion
of the British Empire and the world-wide influence of the
Vatican's foreign policy could perhaps be cited as proof of
this. All these questions carry a certain relativity in
themselves; at any rate, one thing is certain, even today:
in all large countries of the world, the warning is
constantly repeated that one must be militarily strong to
preserve peace. Nations whose individualism and love of
liberty rejected universal conscription and a strong
standing army now do the contrary and honestly believe that
they serve peace thereby. Let us take as an example a nation
whose love of liberty absolutely no one in the world, even
the most mistrustful, can question, namely Switzerland. Even
this peace-loving nation has always taken pride in
maintaining the militarily defensive capacity of its people,
just to protect its freedom and independence in a peaceful
manner. One may academically call imperialistic this idea of
discouraging foreign aggression by the maintenance of a
strong defensive army. It is, at any rate, honestly
entertained by peaceful and liberty-loving nations, and
perhaps serves the cause of peace more effectively than many
so-called anti-militaristic and pacifist doctrines. This
reasonable point of view has really nothing to do with
militarism. He who still today recognises this viewpoint as
justified for great and small nations cannot contest the
honesty of this representation on the point of Schacht in
the years 1935 to 1938. I have no more to say about this.

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