The Nizkor Project: Remembering the Holocaust (Shoah)

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On 20th November, 1945, at the beginning of the trial, the
Presiding Judge stated that these trials are of supreme
importance to millions of people all over the globe. For
this reason, he said, everybody participating in this trial
has the solemn responsibility to discharge his duties
without fear and without favour to anybody, and according to
the principles of law and justice.

This duty was often an almost too heavy burden for the
defence counsel, not because of the extent of the material
for the trials, not because of the abundance of legal
questions which often were of a completely new kind, but
because things were revealed here which are so monstrous and
abysmally degrading that a normal brain will not even
believe the possibility of such happenings. In so saying, I
am not thinking of the prepared human skin, of the pieces of
soap made out of human fat which were shown to us; I am not
thinking of the systematic way in which millions of innocent
people were tormented, tortured, beaten, shot, hanged or
gassed. No, I am thinking of the many touching individual
pictures which have made the deepest impression on me
personally and probably also on everyone else.

Auschwitz alone has swallowed up 3.2 million people, men,
women, and children. That is really the most terrible weapon
of the Indictment, that the spirits of all these innocent
victims stand beside the Prosecutor, accusing, and demanding
revenge. But I do not stand alone, either. The many innocent
war victims on the German side, women and children who have
fallen victim to the terror attacks which violated
International Law, in Freiburg, in Cologne, in Dresden, in
Hamburg, Berlin and Vienna, and in almost all other German
cities, stand beside me. My comrades from the Wehrmacht who,
as honest and decent soldiers, have sacrificed their lives
for the Fatherland by the hundred thousand, young and old,
faithful to their oath of allegiance, also stand by my side.

But even if they did not exist, if the defendant stood quite
alone before his judges, then even more is it my sworn duty
as a lawyer to stand helpfully by his side and be his shield
and defence, and in face of the mass of the most terrible,
incriminating documents to say to you, his judges: "Do not
judge in wrath, but as our Austrian poet Wildgans, who was a
judge himself, wrote in the album of a young judge: 'Search
for the Edelweiss which blooms under the thorn'."

Before I consider the Indictment in its individual points, I
should like to sketch in a few short words the personality
of the defendant. The words in Schiller's tragedy
"Wallenstein" apply to him, too: "Von der Parteien Hass and
Gunst verzerrt, schwankt sein Charakterbild in der
Geschichte" (Distorted by the hatred and favour of the
parties, his character hovers through history between good
and bad).

The prosecution, in the trial brief, calls him a cunning,
coldly calculating, political opportunist who had a mission
before his eyes. It said it is notorious

                                                  [Page 157]

that he misused his position as Minister, in order, by his
double dealing, to deliver Austria to the conspirators; that
he has committed atrocities in Poland and in the Netherlands
in cold blood, and has trampled upon the rights of small
nations to freedom of religious and political thought,
regardless of constitutional obligations.

George S. Messersmith testifies similarly in 1760-PS when he
says that according to reliable information he received, Dr.
Seyss-Inquart, with whom he himself had little personal
contact (the defendant denies ever having met Messersmith),
was completely insincere in his dealings with his friend,
Chancellor Schuschnigg. Incidentally, the statement that
Schuschnigg and Seyss-Inquart were friends is incorrect.
Messersmith had left Vienna in the spring of 1937. As all
witnesses testify, Dr. Schuschnigg had at that time only
just become acquainted with Seyss-Inquart. But Messersmith
added in his own words that there is only one thing which
may be said in favour of Seyss-Inquart at that time: that he
may have believed the German protestations which were made
to him - that Austrian independence would be respected.

I shall turn to Page 7.

His political programme was the Anschluss idea and,
considering his origin, this is also easy to explain. His
real home is the old mining town of Iglau, a German-speaking
island in a Slavonic sea. At an early age he became aware of
the small-scale battle which was being waged by two hostile
nations. Deeply moved, he learned that a year ago the storm
had swept over his home town, and that Iglau, which had been
German for 800 years, would be so no more. Therefore, in
judging the defendant, we should not forget that it is the
Germanic borderlands that have always experienced the
greatest national distress and held more strongly and
fervently to the idea of the great German Fatherland than
the nationals of the rest of the Reich, lulled into self-
complacency born of self-confidence. Thus it is no accident
that leading men in the Anschluss movement, whose names
stand out in my document book, came from the Sudetenland.
Doctor Otto Bauer, the late leader of the Socialists, comes
from Untertannowitz in Moravia, that is, from German
Sudetenland.

The last time I saw the defendant was in the autumn of 1938,
and I did not meet him again until I saw him here in prison.
Therefore, I asked one of his collaborators in Holland, who
also enjoys the respect of the Dutch, and who was no
National Socialist, and who as a senior judge can be relied
on, for an impartial opinion on the personality of Dr. Seyss-
Inquart. He writes:

  "In his work his clear, keen thinking, and the systematic
  manner in which he wholly applied his many-sided talents
  to carrying out his duties struck me at once."

I continue at the bottom of the page:

  "It is the great tragedy of his life and work that in the
  person of Hitler and several persons among those who were
  his closest co-workers, elements crossed his path which
  were stronger than he ...."

As an intellectual and a spiritually cultured person he
became immediately suspect to the chief personalities in the
Party bureaucracy surrounding Hitler, Bormann, and in the SS
administration, Himmler, although he wore the golden Party
badge of honour and occupied a high honorary rank in the SS.
He continued to be the young Party member who came from the
ranks of the intellectuals, who were always regarded with
mistrust. For those elements, however, he was too "soft".

He still hoped that he might succeed in preventing
independent sections in the Reich from working their way
into his sphere of action, as he himself was gradually
winning the Fuehrer's confidence. As I already said, his
relation to the Fuehrer was to be his doom.

  "However, I am firmly convinced that he, like so many of
  our people, was more an unwitting victim than a willing
  tool of the demoniacal power of Hitler ...."

                                                  [Page 158]

This is the opinion of an upright German judge.

The prosecution bases the Indictment on the concept of
conspiracy, in an endeavour thus to forge a chain around the
defendants to link them all together in one common
responsibility. My learned colleagues have already spoken
extensively of the concept of conspiracy and its
consequences in this trial. To repeat these statements would
be to carry coals to Newcastle. But because this is the
leading theme of the trial and because it seeks to shift the
responsibility for the world-shaking events to my client in
particular, I should like to submit to the Court a few
additional ideas on this subject.

When turning over the pages of history, we often come across
stories about men who combined together to overthrow a ruler
who was disliked, or a system that was hated, and to seize
the power for themselves. All these cases are lumped
together under the general, all-embracing term "plots". In
the book he published in Paris, entitled "The Technique of
the State Plot", Malaparte, an Italian, attempted to
describe the technical methods applied in plots and
revolutions, from Catilina up to Hitler and Mussolini. Even
this survey of technique will be sufficient to show how
unjustified it is to dub all these undertakings plots, if it
is intended to encompass within this term a definite concept
such as is known in penal law.

In any case it is not possible to classify all these things
which in popular terminology are called "plots" under the
heading of "conspiracy", as is done by the prosecution. When
Guy Fawkes and his companions at the time of James I tried
to blow up the English Parliament in the so-called
"Gunpowder Plot", perhaps this was a real conspiracy. Up to
the present day the English people, on the 5th of November
of every year, celebrate with fireworks and bonfires and the
burning of a straw dummy the anniversary of the day which
saw the happy prevention of the plot. It would be a mistake,
however, to term any kind of co-operation for political aims
a conspiracy, because, and it is particularly important to
repeat and stress this, the vagueness of colloquial usage
has always made it possible to use the word "conspiracy"
when talking of political struggle, and thereby justify,
because of the lack of adequate legal grounds, the
destruction of political opponents.

I now turn to Page 12.

For the French Prosecutor I should like to cite from the
history of his country, France, an example of an obviously
unjustified accusation of conspiracy. Louis XVI was accused
of conspiring against the nation and was found guilty.
Citizen Deseze, on 26th December, 1792, in the first year of
the Republic, conducted his defence at the bar of the
National Convention. His plea was probably one of the most
moving ever delivered, a discourse in which the defence
counsel had to deal at the same time with another danger of
criminal jurisdiction arising from political causes or
political passions, namely against a violation of the legal
principle "nullum crimen et nulla poena sine lege".
Undaunted and unafraid he declared:

   "Where there is no law which can serve as a precept, and
   where there is no judge to pronounce the sentence, one
   should not have recourse to the general will. The
   general will as such cannot speak either about a man or
   about a fact. But if there is no law according to which
   one can judge, then it is also not possible to give
   judgement, and there can be no sentence."

We still find today this principle of "nullum crimen, nulla
poena sine lege" firmly rooted in almost all law books. We
find it in the German and in the Austrian
penal code; and we also find it in French law, in Article 4
of the "code penal", which states: "Nulle contravention nul
delit, nul crime ne peu-vent etre punis de peines qui
n'etaient pas prononcees par la loi avant qu'ils fussent
commis."

That this principle has not lost any of its significance
even today while this trial is still going on, but on the
contrary has kept its full meaning, is shown by the fact,
and I should like to remind the French Prosecutor again,
that the French Constitution which was submitted to the
National Assembly on 19th April, 1946, establishes
specifically as a statute of the Rights of Man in Article
10:

                                                  [Page 159]

  "The law has no retroactive force. No one can be
  convicted and punished, except according to the law which
  has been promulgated and made public before the deed
  which is to be punished. Every person accused is
  considered under reservation as innocent until he is
  declared guilty. No one can be punished twice for the
  same deed."

What is the Right of Man for the French must necessarily be
the Right of Man for the Germans.

When in the year 1935 the idea of analogy found its way into
German criminal law, this innovation met with severe
criticism in juristic circles also outside Germany. The
second International Congress for Comparative jurisprudence
held in the Hague in the year 1937 formulated a resolution
against analogy in criminal law. In this resolution, the
Congress expressed itself in favour of the principle "nulla
poena sine lege". (See "Voeux et Resolutions du Deuxieme
Congres International de Droit Compare, La Haye, 4-11 Aout,
1937.")

From the above-mentioned statements it follows that it is
legally inadmissible to apply principles in this trial which
lack a legal basis. Continental law does not know the
concept of conspiracy. Austrian law, which could come into
question as the national law for my client, does not know
this concept either. There are at best very small
similarities if we point out that the Explosives Law of 27th
May, 1885, Article 5, already declares the concerting
together for the execution of a crime with explosives as
punishable. Article 174 IC of the Penal Code makes theft a
crime if the thief commits theft as a member of a gang which
has banded together for the common commission of robbery.
German law recognized the responsibility under the penal
code for the act of another only as accomplice, instigator
and helper. Conditions in French law are similar, and to
save time I refer to articles 59, 60, 89 and 265 of the
"Code Penal".

That this question is not clear, and at least dubious, is
also admitted by the reputed Russian teacher of
International Law, Professor A. N. Trainine, in his book "La
responsabilite penale des Hitleriens". He states on Page 13:

  "The problems of international penal law have
  unfortunately been studied very little. There is lacking
  a theoretical, clear definition of the fundamental
  concept of international crime and a well-ordered system
  of this law still remains to be created."

According to the prosecution, the aim or the means of the
conspiracy are crimes against peace, against the rules of
war and against humanity. Professor Jahrreiss has already
spoken extensively about the liability for punishment of
individuals for the violation of international peace, and
has described and given due recognition to the status of non-
German international jurisprudence. But since jurists of
German tongue have also concerned themselves with this
question, I would like to make an additional remark.

The well-known Austrian scholar of International Law, Alfred
von Verdross, has established in his book, "International
Law":

  "According to prevailing opinion, subjects of a crime
  under International Law can only be States as well as
  other legal communities immediately subject to
  International Law, but not individual persons ...."

After these short supplementary statements of the legal
bases of the trial, I turn to the Indictment, which accuses
my client of having participated in the seizure and taking
over of control in Austria as a conspirator, and of having
committed war crimes and crimes against humanity in Poland
and in the Netherlands.

Thus the first act takes place in Austria, and the second in
the Netherlands, after a short interlude in Poland.

East of Berchtesgaden lies Obersalzberg, at an altitude of
1,000 metres. Adolf Hitler stands at the window of his
country house, in deep thought, and gazes on the snow-
covered mountains. The country which is protected by these
mountains is Austria, his homeland. It is a German land,
free and independent and not subject to his will as is the
Reich, whose absolute Fuehrer he has become. When

                                                  [Page 160]

he wrote his book in the fortress of Landsberg, he wrote on
the first page of that book: "German Austria must return to
the great German Fatherland." The shades of night rise
slowly from the deep valleys and his thoughts glide over the
mountains to the old imperial city on the Danube, Vienna,
which he both loves and hates. It is the city of his joyless
youth, a memory filled with want and misery. In his book
Mein Kampf he compares this city with Munich, and says about
the latter:

  "Munich, a German city, how different from Vienna; I feel
  sick when I recall this racial Babylon."

And still, this city is the goal of his longing and he calls
this same city in the March days of 1938 a pearl to which he
will give the setting which its beauty deserves. On his
table lies a book: The History of German Austria. Hitler
read this book again and again; it is the history of his
homeland, and we also will glance through it, as far as time
permits. We read:

  "Austria was throughout many centuries one of the
  strongest pillars of German life. Its evolution, its
  rise, and its decline form a considerable part of German
  history. Austria was and is a piece of the German soul,
  of the German glory, and German suffering. Austria has
  received inestimable strength from the old Reich, but she
  herself has made a great and valuable contribution to the
  whole of German culture."

I shall pass on to Page 19.

  "The old Roman Empire of the German nation was destroyed
  in 1806. The Reich died, but the concept of the Reich
  lived on. At Leipzig, in 1813, Prussians and Austrians
  fought shoulder to shoulder under Schwarzenberg,
  Scharnhorst, Gneisenau and Blucher to free themselves
  from the yoke of the Corsican tyrant. On 11th January,
  1849, the deputies of all German States assembled at
  Frankfurt-on-Main for the constitutional assembly. The
  Austrian delegate Bergassessor Karl Wagner from Styria,
  in Austria, spoke at that time the memorable words:
  'Leave an opening for us so that we can enter; we shall
  come, unfortunately, perhaps not all of us. We, Austria's
  Germans, will come, how and when, who can tell? Who can
  read in the book of the future? But we shall come!'"

The year before, in St. Paul's Church, where the delegates
of all German lands and States had met, the poet Ludwig
Uhland, as a deputy, spoke the memorable words:

  "It may well be that Austria's mission is to be a light
  for the East; but she has a higher, a nearer mission - to
  be the artery in the heart of Germany."


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