The Nizkor Project: Remembering the Holocaust (Shoah)

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The efforts to come nevertheless to an understanding with
Poland with regard to the question of Danzig and the
Corridor, made after the conclusion of the German-Soviet Non-
Aggression Agreement and of the Secret Supplementing
Protocol belonging to it, failed. The Pact of Assistance
which was made on 25th August, 1939, between Great Britain
and Poland did not prevent the outbreak of the war, but
simply delayed it for a few days. I have no intention of
going into particulars of the diplomatic negotiations which
were conducted after the conclusion of the German-Soviet
Agreement of 23rd August, 1939, in an effort to obtain an
agreement. One thing, however, can be said with certainty:

                                                  [Page 363]

Should the one-sided guarantee declaration of England of
31st March, 1939. show that it increased the already
existing stubbornness of the Polish Government against the
German offers, then an assistance pact with Great Britain
would operate quite certainly against a readiness to
negotiate on the part of the Polish Government. The failure
of the negotiations which were carried on between Germany
and Poland are all the less surprising when one bears in
mind the testimony of the witness Dahlerus before this
Tribunal. Had not this witness confirmed that the Polish
Ambassador in Berlin, Lipski, declared on 31st August, 1939
that he was not interested in discussing the proposals of
the German Government? He based this negative attitude on
the statement that in case of war a revolution would break
out in Germany and the Polish Army would march towards
Berlin.

Whatever the news might have been which induced the English
Government to conclude the treaty with Poland, and which
possibly intimated a rift in the German-Italian alliance and
symptoms of deterioration in the German State structure -
and here I refer to the testimonies of the witnesses
Dahlerus and Gisevius - the future will prove that such
ideas were not based on any facts.

When, on 1st September, 1939, war broke out between Germany
and Poland, it was at first a matter of a localised conflict
between two European States. But when Great Britain and
France declared war on Germany on 3rd September, 1939 this
conflict expanded into a European war, into a war which, as
all modern wars between great Powers have indicated, from
its very beginning tended to develop into a world war
because of the presently insufficient preventive
international organization and the complete collapse of the
system of collective security. This war was to bring
immeasurable suffering for all humanity, and when on 8th
May, 1945, the European war found its end with Germany's
unconditional surrender, it left behind a Europe in ruins.

Adolf Hitler did not live to see Germany's collapse and
unconditional surrender. Twenty-two former leaders of
National Socialist Germany stand before the bar of the
Tribunal in order to answer charges of having committed
crimes against the peace, against the rules of warfare, and
against humanity in the execution of a common plan.

The so-called London Agreement of 8th August, 1945,
concluded between the Government of Great Britain and
Northern Ireland, the Government of the United States of
America, the provisional Government of France, and the
Government of the Union of Soviet Socialist Republics, is
the basis of this trial. The present Tribunal was created
pursuant to this agreement, the composition, competency, and
tasks of which were established by the Charter of the
International Military Tribunal, which is a considerable
part of this agreement concluded by the four Governments on
8th August, 1945.

The Charter of the International Military Tribunal, however,
does not only contain the regulations dealing with its
composition, competence, and tasks; besides those, it
includes - and these are the most important parts of the
Charter - the regulations for its material-juridical
contents. This applies above all to Article 6, which
contains the definitions of crimes against the peace, war
crimes, and crimes against humanity, with all the
characteristics of such cases. Paragraph 3 of Article 6 of
the Charter, which enumerates the characteristics of the so-
called conspiracy in detail, has to be considered above all
as the penal basis of the case. Furthermore, Articles 7, 8
and 9 of the Charter are to be considered as material-
juridical regulations.

The subsequent part of my brief was not allowed by the
Tribunal. It deals principally with the contents of the
statement made by the defence at the beginning of this trial
on the 21st of November; and therefore I need not read them.

I continue on Page 40, with the last paragraph.

In the Indictment the defendant Hess is charged with having
supported the seizure of power of the so-called Nazi
conspirators, the strengthening of their

                                                  [Page 364]

control over Germany, and furthermore the furthering of the
military, economic and psychological preparations for war.
He is furthermore charged with having participated in the
political planning and preparation of wars of aggression and
of wars in violation of international treaties, agreements
and assurances, and in the preparation and planning of the
foreign political schemes of the so-called Nazi
conspirators.

THE PRESIDENT: This ought to be a convenient time to break
off.

(A recess was taken.)

DR. SEIDL: Your Honours:

Count 1 of the Indictment refers to the so-called common
plan of conspiracy. According to it, all the defendants and
various other persons are alleged to have participated for a
number of years prior to 8th May, 1945, in the planning and
execution of a common plan as leaders, organisers,
instigators and collaborators. This plan aimed at and
brought about the commitment of crimes against the peace, of
crimes against the laws of warfare and against humanity. It
is asserted that the defendants planned, prepared, unleashed
and directed wars of aggression, and committed war crimes
against humanity in the execution of this common plan.

While the Charter only knows three specifications of crimes
- crimes against the peace, against the rules of warfare,
and against humanity - the Indictment contains four of them.
In the Indictment, the common plan or conspiracy is made an
individual and independent count of the charge, without the
Charter bringing forth sufficient reasons for this. It may
be left undecided whether conspiracy is considered a
particular type of crime according to Anglo-American law. In
view of the fact that the Charter rejects the use of both
Anglo-American and Continental law, but has established its
own standards of law, and these sui generis, only the text
and spirit of the Charter itself is decisive.

According, however, to what is expressly stated in Article
6, paragraph 3, of the Charter, regarding the outlining or
execution of a plan for the perpetration of a crime against
peace, against the customs of war, or against humanity, it
cannot be subject to any doubt that there cannot be an
independent state of criminality as stated in Count 1 of the
Indictment under the heading of Concerted Plan or
Conspiracy. At all events, not according to the principle of
the provisions of the Charter.

Since the defendant Hess has been charged with all four
counts of the Indictment, it is necessary first to answer
Count 1 of the Indictment:

The Indictment places at the centre of the incriminated
concerted plan or conspiracy the National Socialist German
Workers' Party (NSDAP) of which Adolf Hitler had become the
leader in 1921, and which the defendant Rudolf Hess also
joined as early as 1921. Even the Indictment does not,
apparently, claim that the party programme of the NSDAP was
actually criminal in itself. It appears all the less
necessary to probe farther into this question, as in the
subsequent routine of political life the party programme has
not by any means played the part which could probably be
supposed. Moreover, the appraisal of evidence has definitely
revealed, as far as the position and rise of the NSDAP is
concerned, that up to 20th January, 1933, the National
Socialist Party was a party alongside other parties; that it
fought with the same legitimate means as other parties for
the attainment of its objectives; and that not least among
the factors of its rise is that Germany experienced, in 1932-
1933, as a consequence of the reparations policy of the
victor Powers in 1919, an economic and social decline of
uncommon magnitude; and that, finally, on 30th January,
1933, the Party, as the strongest, was entrusted with the
formation of the Government in application of the provisions
of the Reich Constitution, and its leader, Adolf Hitler, was
nominated Reich Chancellor.

                                                  [Page 365]

During the so-called period of struggle, the Party, like all
other parties, openly fought for the principles it
represented, and the prosecution could not submit in
evidence a single argument which allowed the conclusion to
be drawn that by using illegal means the Party and its
leaders had been participants in a common plan aiming at
launching a war of aggression. In fact, one need only keep
in mind the political, economic, and military condition of
Germany in the first years after the end of World War I in
order to recognize how mistaken the acceptance of such a
plan, aiming at starting a war, is for that time. The
conception put forward by the Indictment reveals not only an
entirely false idea of the economic, political, and military
conditions which Germany faced as a consequence of the peace
settlement of Versailles, but this conception also discloses
complete failure to appreciate the intrinsic virtue of any
policy.

When Adolf Hitler as the leader of the strongest party had
been appointed Reich Chancellor by Reich President von
Hindenburg on 30th January, 1933, it was necessarily out of
the question for him and his Government, in which other
parties participated, to start drafting a common plan aiming
at a war of aggression, not being abreast with political,
and above all, economic conditions. The problems which the
German Reich Cabinet faced at that time resulted directly
from the fact that up to 7,000,000 unemployed people in
Germany had to be put to work. As the witness Dr. Lammers
stated, the elimination of economic and social distress
actually was the most important question at the first
Cabinet session. There was no question at all of a common
plan aiming at launching a war of aggression, and in fact,
it is inconceivable that in the circumstances at that time
even one member of the Government could consider such an
idea in some concrete shape. Furthermore, it has been
established through the testimony of Dr. Lammers and other
witnesses that the subject matter of the first Cabinet
meeting and the resolutions there passed are contained in
the governmental declaration of 1st February, 1933, made
known to the German people in the form of a manifesto of the
German Government.

According to the Indictment, abrogation of the armaments
restrictions imposed on Germany through the Versailles
Treaty was the first aim of the conspiracy charged by the
prosecution. I have already expressed my opinion on that
question. The final refusal of the victor Powers to disarm
in their turn, according to their pledge, at least accorded
the German Reich the right to obtain an equalisation of
armament through its own rearmament. This was not done in
secrecy by any means, but in public, through the
announcement of the reintroduction of the Draft Law on 16th
March, 1935. The prosecution has not been able to show
evidence for its assertion that this law was connected with,
and was part of, a common plan aimed at bringing about a war
of aggression. The exclusive purpose of the law was rather
to re-establish Germany's right to equality at least for
that question, sixteen years after the end of the First
World War. Here, too, with regard to the details I also
refer to the statements of counsel for the defendant von
Neurath.

In this connection brief reference is appropriate to a
document which the prosecution produced, together with nine
other documents, so-called key documents, and which first of
all serve the purpose of establishing the proof of existence
of the common plan claimed in the Indictment. This is the
written record of a discussion at the Reich Chancellery of
5th November, 1937, Exhibit USA 25, Document 386-PS. As is
known to the Tribunal, this is not a literal reproduction of
Adolf Hitler's statements, but a report by Colonel Hoszbach
which was drafted by the latter five days later, viz., on
10th November, 1937. I have no intention of entering any
farther into the contents of this document. I refer here to
the statements which other defence counsel have made on this
question. I only mention that when addressing this speech to
the Commanders-in-Chief and the Minister for Foreign Affairs
at that time, Hitler had a chronological plan in view which
reveals no conformity whatever with the subsequent events.
In these circumstances, the existence of a determined and
well-outlined plan by Hitler

                                                  [Page 366]

himself seems very unlikely. Only one conclusion can, with
certainty, be drawn from the contents of this document:
namely, that until 5th November, 1937, Hitler himself only
thought of an amicable settlement of the territorial
problems raised by the Versailles Treaty. For this reason,
therefore, there can have been no question of a common plan
aiming at the launching of a war of aggression - at least,
up to this time.

This document, however, is still worthy of notice for
another reason: The report begins with the Fuehrer's
assertion:

  "that the subject of today's conference is of such
  importance that its discussion in other States would
  belong to the Forum of the Government Cabinet. He (the
  Fuehrer) however, considering the importance of the
  matter, refrained from making it the subject of
  discussion in a full session of the Reich Cabinet."

First of all, it can be left undecided in how far other
questions from 1937 on were still dealt with by the Reich
Cabinet in Cabinet sessions, or in the so-called circulation
procedure; in the administrative procedure or in the
legislative way. The conclusion can, however, be drawn with
certainty, by reason of the total outcome of the
presentation of evidence, and in particular by reason of the
witness Dr. Lammers's statements and those of other
witnesses, also from a great number of documents submitted
by the prosecution itself, that, at the latest, from 5th
November, 1937, all problems concerning the question of war
and peace were no longer dealt with by the Government as
State authority, nor by the larger circle of collaborators
remaining almost the same, but exclusively by Adolf Hitler
himself. In all probability this situation already existed
in the year 1933.

In this connection, I should like to draw attention to the
statements of several defendants in the witness box who, for
example, were informed of the reoccupation of the
demilitarised zone of the Rhineland in the same way as any
other citizen, i.e., by means of the Press and radio.

It is certain, however, that all important political and
military decisions were taken by Adolf Hitler alone after
5th November, 1937, and particularly after the so-called
Fritzsch crisis and the transformation of the Reich War
Ministry into the High Command of the Wehrmacht which it
involved. According to the witness Dr. Lammers's statements,
general conferences between the Reich Government, the
Supreme Party Directorate and the generals never took place.
According to the statement of this witness and others, it
appears that a close connection never existed between these
three bodies. Indeed, not a single one of the documents
submitted by the prosecution reveals anything which might
justify us admitting the existence of an independent
collaboration between the Reich Government, the Supreme
Party Directorate and the Reich War Ministry or afterwards
the High Command of the Wehrmacht and the Commanders-in-
Chief of the Wehrmacht branches and their Chiefs of Staff.
On the contrary, if a positive conclusion can really be
drawn from the presentation of evidence, it is that the
power was concentrated exclusively in the hands of Adolf
Hitler, that the Reich Government, the Supreme Party
Directorate and the Wehrmacht received their orders and
directives only from him; that it was Hitler's own policy to
prevent a working and independent combination of these
institutions.

It can thus also be explained that in all questions of a
political or military nature, only those offices were
included which had directly to do with the task to be
carried out. It is clear from all the documents submitted by
the prosecution that, as a rule, at the conferences presided
over by Hitler, there was no question of conferences as, is
customary in parliamentary democracies, but they were
essentially only concerned with the issuing of orders.

It is not necessary to examine in detail the statements on
their relation to Adolf Hitler made by nearly all the
defendants, nor is it necessary to define an attitude
towards the statements on the attitude assumed by a whole
series of other witnesses regarding Adolf Hitler's position
in the German governmental system. One

                                                  [Page 367]

thing can be said with certainty: At the latest, from 5th
November, 1937, on, Hitler's position was so commanding and
his treatment of all decisive political and military
questions so free of doubt, that for this reason alone there
could be no grounds left for the acceptance of a common
plan.

The defendant Rudolf Hess, though the Fuehrer's Deputy and
the highest political leader for Party matters, did not
contribute to nor take part in any of the conferences, or
any important political or military decisions characterised
by the prosecution as being essential to prove the existence
of a common plan, just as little as he contributed to or
took part in the conference of the Fuehrer in the Reich
Chancellery on 5th November, 1937 (Exhibit USA 25).

The same holds good, for example, for the next exhibit, USA
26 (Document 388-PS), submitted by the prosecution. This is
the most important case "Grun", Czechoslovakia. Without
having to enter any farther into the details of this
document, it can be said without more ado that it deals only
with what is entirely the work of the General Staff, which
was originally intended as a problem, and afterwards
elaborated into a real operational plan. This operational
plan was not put into action; the documents referring to
case "Grun", on the contrary, conclude with Directive 1 of
the Fuehrer and Supreme Commander of the Wehrmacht, which
refers to the occupation of the Sudeten German areas
separated from Czechoslovakia by virtue of the Munich
Agreement of 29th September, 1938. In these circumstances,
it is superfluous to deal further with the letter of the
Chief of the High Command of the Wehrmacht to the Fuehrer's
Deputy of 27th September, 1938, which is also contained in
the documents for the "Grun" case, and refers to the
carrying out of mobilization measures which were to be
effected without the issuing of a mobilization order or a
corresponding code word.

What I have already said concerning Exhibit USA 25 applies
in the same way to Exhibit USA 27 (Document L-79). This is
another so-called key document having as subject the
instruction of the Commanders-in-Chief of the Wehrmacht
branches and the Chiefs of the General Staff by the Fuehrer
in the new Reich Chancellery on 23rd May, 1939.


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