The Nizkor Project: Remembering the Holocaust (Shoah)

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By DR. DIX, Continued:

Even ideologically the Party in itself was divided into
strongly pronounced opposing groups, which was clearly shown
at the very beginning of the presentation of evidence by
Goering's testimony. These contrasts were fundamental, and
they were not bridged by Hitler but rather deepened. They
were the keyboard of his source of power on which he played.
The Ministers were not responsible, governing persons, as in
any other State where law is its foundation; they were
nothing but employees with specialized training who had to,
obey orders. And if a specialized Minister like Schacht did
not wish to submit to this, it resulted in a conflict and
resignation from his post.

Even for this reason, Ministers could not, in the long run,
take full responsibility for their departments, because they
were not exclusively competent for it. A Minister, in
accordance with Constitutional Law, must, in the first
place, have access to the Chief of State, and he must have
the right to report to him at any time. He must be in a
position to reject interference and influences coming from
irresponsible sources. None of these typical characteristics
of a Constitutional Minister apply to the so-called
Ministers of Adolf Hitler. The Four-Year Plan came as a
surprise to Schacht. Similarly, the Minister of justice was
surprised by such extremely important laws as the Nuremberg
Decrees. Ministers were not in a position to appoint their
staffs independently. The appointment of every

                                                  [Page 388]

civil service employee required the consent of the Party
Chancellery. The intervention and influence of all possible
agencies and persons of the various Chancelleries -
Chancellery of the Fuehrer, Party Chancellery, etc. -
asserted themselves. They were agencies placed above the
Ministries and they could not be controlled. Special
deputies governed over the heads of the departmental chiefs.
Ministers - yes, even the Chief of the Reich Chancellery, as
we have heard from Lammers - might  wait for months for an
audience, while Herr Bormann and Herr Himmler had free
access to Hitler.

The Anticamorra and Camarilla, an indispensable accessory of
all absolutism, have at all times been difficult to
comprehend as regards the personal responsibility of the
individual, as well as the circles of which they are
composed. That is not at all the same as the irresponsible
influences exerted over Hitler and affecting him.

Colonel-General Jodl described to us here how Hitler's
sudden actions, the very ones which had the most serious
consequences, could be traced back to influences of an
entirely obscure and unknown sort, such as pure chance,
conversations at a tea party, and so on. For the objective
facts this bears out what I already mentioned in the
beginning. And so this state of affairs eliminates even the
possibility of the planning of a crime such as a war of
aggression within a clearly, defined circle of persons or,
for that matter, within the so-called Reich Government. But
where no planning is possible, there also no plot, no
conspiracy, is possible, the most striking characteristic of
which is just this common planning, even though the
participants have different and varied roles. Let us assume
the broadest conceivable interpretation of the apparent
exterior characteristics of the conspiracy. I am following
Justice Jackson's line of reasoning. He who takes part in a
counterfeiters' plot is guilty of conspiracy, even though he
may have only written a letter or acted as bearer of the
letter. He who participates in a plot for robbing a bank, is
guilty of murder if, in the course of the robbery, not he
but a third party in the group of planners committed murder.
At all times, however, the prerequisite is a body of persons
capable of evolving a common plan. Such a thing was not
possible for Adolf Hitler's Ministers; it was not possible
at all under Hitler. From this it follows that no
conspirator could participate in Hitler's crime of having
forced upon his own people and the world a war of
aggression, except those who served Hitler as assistants.

The forces at work in the Third Reich as depicted thus
permit in thesis only the assumption that there was a
punishable complicity or punishable assistance, but on the
other hand, no punishable group offence such as a
conspiracy. Whether such complicity or such punishable aid
in the crime of a war of aggression committed by Hitler
exists for the individual defendants personally can only be
investigated and decided in each case individually. It is my
task to investigate this only in the case of Schacht.

A collective crime such as conspiracy on the basis of the
actual conditions; already established is, however, excluded
as inconceivable and impossible. But even if this were not
the case, the subjective aspect of the deed is completely
lacking in the case of Schacht. Even though the objective
facts of a conspiracy; should exist within a circle of the
accused, and even with the most liberal interpretation of
the concept of conspiracy, the conspirator must be willing
to accept a plate of conspiracy and the aims of the
conspiracy, at least in the form of dolus eventualis.

The severe character of the facts constituting a conspiracy
can best be illustrates by comparison with a pirate ship. In
reality every member of the crew of the pirate ship, even a
subordinate, is guilty and an outlaw. But a person who did
not even know that he was on a pirate ship, but believed
himself to be on a peaceful merchant vessel, is not guilty
of piracy. He is also innocent if, after realising the
character of the ship, he has done everything he could to
prevent any piracy as well as to leave the pirate ship.
Schacht did both.

As far as the latter is concerned, scientific theory on
conspiracy also recognises that he is not guilty who has
withdrawn from the conspiracy by a positive act

                                                  [Page 389]

before attainment of the goal of the conspiracy, even if he
co-operated previously in the preparation of the plan for
conspiracy, which was not the case with Schacht.

In this connection, I also consider in my favour Mr. Justice
Jackson's answer, when I put up for discussion, within the
framework of Schacht's interrogation, whether the
persecution of the Jews is also charged to Schacht. Mr.
Justice Jackson said yes, if Schacht, had helped to prepare
the war of aggression before he withdrew from this plan for
aggression and its group of conspirators and went over
unreservedly to the opposition group, that is, to the
conspiracy against Hitler. This desertion would then be the
positive act which I have mentioned whereby a person at
first participating in a conspiracy would separate himself
from it.

This legal problem is not even to be considered as far as
Schacht is concerned because the evidence has shown that he
never desired to participate in the preparation for a war of
aggression.

As already stated, this accusation of the subjective fact of
the conspiracy has been proved neither by direct nor by
indirect evidence. For the events until the year 1938, I can
point to the statements made previously. It has been proved
that from 1938 on at the latest, Schacht waged the most
conceivably severe battle against any possibility of war in
such a form that he attempted to overthrow the person
responsible for this danger of war, the person responsible
for the will for aggression; thus the regime.

Your Lordship, I have now arrived at the end of a section,
if your Lordship would care to announce a recess now.

THE PRESIDENT: We will adjourn.

(A recess was taken.)

DR. DIX: I beg your pardon for being late, but I was
prevented from coming in.

Gentlemen of the Tribunal, I have arrived at the evaluation
of the beginning of the opposition by means of the various
putsch actions, and I should like to continue. It is quite
irrelevant and of incidental importance to investigate
whether the attempts at a putsch which occurred within short
or long intervals, as the case may be, during the war, were
a means to secure better peace terms for Germany. This is
absolutely meaningless for the legal evaluation of the
criminality of Schacht's course of action. Doubtlessly,
according to human reckoning, a successful putsch before the
outbreak of war would have prevented the outbreak of war,
and a successful putsch after the outbreak of war would at
least have shortened the duration of the war. Therefore,
such sceptical considerations about the political value of
these putsch attempts do not disprove the seriousness of the
plans and intentions for a putsch. And that is all that
counts, for it proves first of all that a person who has
been pursuing them since 1938 and even since 1937, if one
includes the attempt with Kluge, could not possibly have had
warlike intentions previously. One does not try to overthrow
a regime because it involves the danger of war, if
previously one has oneself worked toward a war. One does
this only if by all one's actions, even that of financing
armament, one wished to serve peace. For this reason, these
repeated putsch attempts on the part of Schacht do not have
any legal significance of a so-called active repentance for
previous criminal behaviour, but they are, ex post facto, a
proof that he cannot be accused even before 1938 of
consciously working for war, because it would be logically
and psychologically incompatible with Schacht's activity of
conspiracy against Hitler.

These putsches thus prove the credibility of Schacht in
respect to his explanation of the reasons and intentions
which caused him to enter actively into the Hitler
Government and to finance the armament to the extent to
which he did, namely to the amount of twelve billions. They
prove, ex post facto, the purely defensive character of this
financing of armament; they prove the credibility of
Schacht's contention of having tactically achieved in
addition a general limitation of armament. But if one
believes this explanation of Schacht's, and I think one must
believe it, then one cannot speak of Schacht's co-operation
in instigating a war of aggression.

                                                  [Page 390]

This credibility is also proved by another circumstance.
Schacht has contradicted the testimony of Gisevius and my
suggestion along the same line, that he had admired Hitler
at the beginning and had unreservedly considered him an
ingenious statesman. He described this in his interrogation
as an erroneous assumption. He said that he had recognized
from the beginning many of Hitler's weaknesses, especially
his sketchy education, and had only hoped to be in a
position to control the disadvantages and dangers resulting
from them. Through this contradiction, Schacht made his
defence more difficult; but he is wise enough to have
recognized this. Thus what he consciously lost and gave up
from the point of view of evidence, which would strengthen
his defence, he gains with regard to his credibility upon
objective evaluation of evidence based on psychological
experience. For a person who serves the truth by
contradiction deserves increased credibility, even when the
suggested untruth or the half-truth is more advantageous to
him technically and tactically by way of evidence.

There should be no doubt about Schacht's leading role in the
activities of the various conspiracies about which Gisevius
testified, precisely on the basis of this credible
testimony. During the cross-examination, Mr. Justice Jackson
confronted Schacht with photographs and films which
superficially show a close connection with Hitler and his
paladins. This can only have been done in order to throw
doubt on the earnestness of his active opposition to Hitler.
I must, therefore, deal briefly with this question of the
photographs and films. Mr. Justice Jackson has coupled this
accusation with another one in quoting speeches which
seemingly show a great devotion on the part of Schacht
toward Adolf Hitler even during the putsch period. This
accusation is on the same level. I believe that this
argument can stand up neither before the experiences of life
nor what we can observe in history. History teaches us that
conspirators, especially if they belong to the closer circle
of dignitaries of the threatened head of State, show a
special devotion for purposes of camouflage. It has also
never been observed that such people show their intentions
to the threatened victim by a hostile manner. One could cite
many examples of this from history.

There exists an effective German drama by a certain Neumann
which concerns  itself with the murder of Tsar Paul by his
first Minister Count Palen. The Tsar believes to the very
end in the ostentatious devotion of Count Palen even while
the latter is already sharpening his knife. And in the
historical documents left behind,  there is an instruction
by Count Palen to the Russian Ambassador in Berlin, very
shortly before the assassination, in which Count Palen
cannot speak highly enough about "Notre auguste empereur,"
etc. Significantly, this drama bears the title "The
Patriot."

Thus, there is a higher patriotism than the merely formal
loyalty of a servant of the nation. It would be closer to
the psychological truth if this presumptive devotion and
assurances of loyalty during this period, assumed for the
sake of appearances, were judged more in favour of the
objective credibility of Schacht's' explanations than vice
versa. As a conspirator, he had to camouflage himself
especially well. To a certain degree, this had to be done by
practically everyone who lived under this regime in Germany.
Now, as far as these photographs are concerned, it is
probably an inevitable consequence of every social, and
thereby, also of joint representative membership in a body
that one becomes a victim of the camera along with the
members of the body whether one likes it or not. A member of
a government cannot always avoid being photographed with
these people on the occasion of their meetings. As a result,
we have such pictures as show Schacht between Ley and
Streicher, and the scene in the film showing the reception
of Hitler at the railway station. Viewing such pictures ex
post facto, these pictures are not pleasant to the observer;
certainly not to Schacht either. But they do not prove
anything. In a natural evaluation belonging to a normal,
average experience of life, I consider these pictures
without any value as evidence, either pro or contra.

                                                  [Page 391]

Foreign countries, too, through their prominent
representatives, had social intercourse with Adolf Hitler's
Government, and this not only through their diplomatic
corps. I wish to assure you that the defence is in a
position to produce pictures of a much more grotesque sort
which do not seem nearly as natural as Schacht being
photographed together with men who, after all, were his
fellow dignitaries in the Third Reich. To produce such
pictures, however, might not be very tactful on the part of
the defence, but should it be necessary to investigate the
truth in all seriousness, a defence counsel might have taken
upon himself the odium of indiscretion. I do not believe
that I have to do it in this case, because the irrelevance
and insignificance of such a presentation of evidence
through pictures of State occasions of the Third Reich seems
to me to be obvious.

The only incriminating point pressed by the prosecution
which is left for me to argue now appears to be that
Schacht, after his retirement as Minister of Economics, and
even after his retirement as President of the Reichsbank in
January, 1939, remained Minister without portfolio until
1943. Schacht declared that this had been stipulated by
Hitler as a condition for his release from the Ministry of
Economics. Hitler's signature, as that of the head of the
State, was necessary for his dismissal. Had Schacht refused
to remain as Minister without portfolio, he would surely
have been arrested sooner or later as a political suspect,
and thus been deprived of all possibility of action against
Hitler. The witness Gisevius has testified as to the
deliberations at that time between him and Schacht
concerning the continuation of Schacht as Minister without
portfolio. In these deliberations the idea was quite justly
considered important that Schacht could be of more use to
the group of conspirators as a scout or a patrol if he
remained in this position, to outward appearances, at least,
within the Reich Government. Even as Minister without
portfolio, Schacht remained exposed to great danger, as is
shown by his and Gisevius's declarations, and as becomes
obvious from Ohlendorf's statement that Schacht already in
1937 was on the black list of the State Police.

How much Hitler feared Schacht is proved by his later
remarks to Speer which have been discussed here,
particularly his remarks about Schacht after the attempted
assassination on 20th July. I would also remind you once
more of the memorandum of Hitler of 1936, which he gave to
Speer in 1944 and which shows that he saw in Schacht a
saboteur of his rearmament plans. It has been declared and
proved by Lammers that Schacht tried later on to get rid
even of this nominal position. Lammers and Schacht have
proved furthermore that this position of Minister without
portfolio was without any special importance. Hence, my
nicknaming such a Minister "Fancy-Dress Major," that is a
major without a battalion and command authority, a sham
major. Schacht could not give up the position without
scandal, and the same held true of the position of
Reichsbank President. Schacht, therefore, had to manoeuvre
in such a way that he would be thrown out. He succeeded in
this, as I explained, as Reichsbank President, through the
well-known memorandum of the Board of Directors of the
Reichsbank and the refusal of credits by the Reichsbank in
November, 1938, contained therein. As far as his position of
Minister without portfolio was concerned, he succeeded in
obtaining dismissal through his defeatist letter of
November, 1942. In the meantime, he made use of the time for
the attempted coup d'état in autumn, 1938, and for the
various other attempted coups d'etat up to the one of 20th
July, 1944, which finally caused him to be put in a
concentration camp.

A criminal reproach can on no account be made against him in
his position as Minister without portfolio. For his proved
conspiratorial activity against Hitler during all this time
eliminates by force of logic the supposition that he had
furthered Hitler's war plans and war strategy during this
time. In any event, we can only raise - and this also only
in the vacuum of abstraction - a political reproach against
the Schacht of the years 1933-1937. But this, too, is fully
compensated by the extraordinarily courageous attitude of
Schacht after this period. To obtain its just evaluation,
may I remind you of the interesting statement of Gisevius
that he, who had looked with a certain scepticism upon
Schacht's original attitude, not in

                                                  [Page 392]

a criminal but in a political sense, had then been
completely reconciled with Schacht by the extraordinary
courage which Schacht displayed as opponent and conspirator
against Hitler after 1938. I am of the opinion, therefore,
that the fact that Schacht remained as Minister without
portfolio does not incriminate him either directly or
indirectly, neither according to penal law (that is out of
the question) nor morally, if one takes into consideration
his behaviour as a whole, his motives and the accompanying
circumstances and conditions.


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