The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/12/7

MR. JUSTICE JACKSON: The difficulty with that, I should
think, would be this that a defendant may very well be found
guilty on some counts but not on others. That would require
evidence at this time on the question of sentence, two-
thirds of which might be irrelevant because he might not be
found guilty on more than one count.

I may be biased in favour of the practice that I know, or at
least may be presumed to have some knowledge of. In our
procedure the question of guilt is tried first. The question
of sentence is a separate subject, to be determined after
the verdict. I should think that would be the logical way to
proceed here. And I understand that this - and I think Dr.
Stahmer confirms my view - that this is not offered on the
question of sentence. I do not think he concedes he has
reached that point yet.

DR. STAHMER: May I briefly comment on the legal question? It
is maintained, or at least this side asserts, that
violations of International Law were committed in France to
a large extent by organising Partisan groups. The struggle
against these actions which do not conform to International
Law could only be carried out by reprisals, as have just
been expounded by Mr. Justice Jackson. It is correct that
there were certain reasons for the application of reprisals,
but in my opinion it is questionable if such . . .

THE PRESIDENT: May I ask whether you agree that the
conditions which Mr. Justice Jackson stated are accurately
stated?

DR. STAHMER: Yes, but we have to deal here, in my opinion,
with the fact of an emergency, caused by conduct violating
International Law, that is, the carrying out of Partisan
warfare. This fact justified the Army Commanders in taking
general measures in order to remove these conditions brought
about illegally. Therefore, at any rate, these facts are of
importance for determining the verdict.

                                                  [Page 123]

THE PRESIDENT: The Tribunal does not propose to hear an
unlimited number of the defendants' counsel, but I observe
that Dr. Exner is there, and they are prepared to hear one
other counsel, if counsel wish, Dr. Exner, upon the subject.

DR. EXNER (counsel for defendant Jodl): May it please the
Tribunal, indeed, we are all interested in the question of
reprisals, and I would like to say a few words.

For ten years I have lectured on International Law at the
University and I believe I understand a little about it.
Reprisals are among the most disputed terms of International
Law. One can say that only on one point is there absolute
certainty, namely, that point which Mr. Justice Jackson has
mentioned as the first one: "Measures of reprisals against
prisoners of war are prohibited." Everything else is matter
for dispute and not at all valid as International Law. It is
not correct that it is the general practice in all States,
and therefore valid International Law, that a protest is a
prerequisite for taking reprisals. Neither is it correct
that there has to be a so-called reasonable connection. It
was asserted that there must be a relation in time and, most
of all, a proportionality between the threatened and the
actually committed violation of International Law. There are
International Law scholars who assert, and it is indeed so,
that it would be desirable that there be proportionality in
every case. But in existing International Law, in the sense
that some agreement has been made to that effect or that it
has become international legal usage, this is not the case.
It will have to be said, therefore, on the basis of
violations of International Law by the other side, we can
under no circumstances make a war of reprisals against
prisoners of war, however every other form of reprisals is
admissible.

I just wanted to state that in general terms, and perhaps I
still could say that it has been asserted that at this time
we should not speak about the reasons for mitigation. I
would like to remind the Tribunal that we are only permitted
to make one address, and if in this speech, which takes
place before the decision has been reached on the question
of guilt, we are not permitted to speak about mitigation,
then we would not have any opportunity to speak about it at
all.

THE PRESIDENT: The Tribunal will now adjourn.

(A recess was taken.)

THE PRESIDENT: The Tribunal rules that the evidence is
admissible on the question of reprisals, and the weight that
should be given this or similar evidence will be reserved
for future consideration.

DR. STAHMER:

Q. Will you please continue?

A. I believe that the statement which I am about to make
will fulfil those conditions which Mr. Justice Jackson has
requested; namely, I do not in any way deny that things
happened which may be hotly debatable as far as
International Law is concerned. Also, other things occurred
which under any circumstances must be considered as
excesses. I only wanted to set forth how it happened, not
from the point of view of International Law toward
reprisals, but only considering it from the feeling of the
threatened soldier, who was constantly hindered in the
execution of his task, not by regular troops in open combat,
but by Partisans at his back.

Out of all those things, with which I do not have to deal
any further, this animosity arose which led spontaneously -
or in certain cases as State necessity and emergency
required - to these partial excesses committed here and
there by the troops.

One must place oneself back into that period of stormy
battles. To-day, after the lapse of years, in a quiet
discussion of the legal basis, these things sound very
difficult and even incomprehensible. Expressions made at the

                                                  [Page 124]

moment of embitterment, to-day, without an understanding of
that situation, sound quite different. It was solely my
intention to picture for just one moment to the Tribunal
that atmosphere in which and out of which such actions, even
if they could not always be excused, would appear
understandable, and in a like situation might be carried out
by others. That was and is my answer to the question why the
conditions in France necessitated two entirely different
phases of the war. The first: that of the regular fight,
with which I have finished. The second: that of that fight
which was not led by regular troops but by those coming out
of hiding, from the underground, which always will and at
all times has entailed different cruelties and excesses,
different from those of a regular military fight. It often
happens here that single actions occur, be it by individuals
or by troop segments, which the highest leadership cannot
always control or possibly keep in hand.

Q. What measures were taken by the German occupational
authorities in France in order to help French agriculture
during the occupation?

A. I can reply very briefly, and I can refer to the
testimony of the witness Koerner, whose testimony I can only
confirm. By that I mean that in France, agriculture was
tremendously promoted and increased during the period of
occupation. A large number of non-arable tracts or those
which had not been put to good agricultural use were put to
use; other tracts, through intensified use of fertiliser or
other means of cultivation, were made more productive.

Specific reports as to just what was done and figures
showing an increase in agricultural production in the course
of the occupation years are not familiar to me and could
only be given by the experts responsible for this.

Q. What were the reasons leading to the introduction of
occupation marks in the occupied countries?

A. A measure which would probably be introduced by every
occupying Power to regulate the money circulation, to keep
it in its proper limits and to keep the country's currency
on a certain level, similar to the procedure which to-day
takes place in all occupied zones of Germany.

Q. Document 141-PS is a decree of yours issued 15th
November, 1940, in which you effected a regulation regarding
works of art brought to the Louvre. Are you familiar with
this decree or shall I hand it to you?

A. I remember this document very distinctly as it has played
an important part here. These works, which at first were
taken to the Louvre and later into the exhibition hall
called, I believe, "Salle du Jeu de Paume." This concerned
those works which were confiscated, being Jewish property,
i.e., ownerless property, as their owners had left the
country. This order was not issued by me, I was not familiar
with it, it was a Fuehrer decree. Then, when I was in Paris
I heard of this and heard also that it was the intention
that these works of art would mainly - as far as they had
museum value - be put into the museum at Linz which the
Fuehrer contemplated building. Personally, I admit this
openly, I was interested that not everything go to Southern
Germany. I decided some considerable time before, and
informed the Finance Minister of it, that after the war, or
at some other time seeming opportune to me, I would found an
art gallery containing the works of art which I already had
in my possession before the war, either through purchase,
through gifts, or through inheritance, and give it to the
German people. Indeed, it was my plan that this gallery
should be arranged according to plans quite different from
those usually followed in museums. The plans for the
construction of this gallery, which was to be erected as an
annex to Karinhall in the big forest of the Schorfheide, and
in which the art objects should be exhibited according to
their historical background and age in order to reproduce
the proper atmosphere, were ready and could not be executed
only because of the outbreak of war. It concerned paintings,
sculptures, tapestries, handicraft, which were to be
exhibited according to period. Then, when I saw the things
in the Salle du Jeu de Paume and heard

                                                  [Page 125]

that the largest part was to go to Linz, that these objects
which were considered to be of museum value should serve a
subordinate purpose, then, I do admit, my collector's
passion got the better of me, and I said that if these
things are confiscated and are to remain so, I would at
least like to acquire a small part of them, so that I may
include them into this North German gallery to be erected by
me.

The Fuehrer agreed to this with one reservation, that he
himself would at least see the photographs of those objects
which I intended to acquire. In many cases, of course, it so
happened that he wished to earmark these art treasures for
himself - that is, not for himself but for his museum in
Linz, and then I had to give them back. From the beginning,
however, I wanted to have a clear distinction made inasmuch
as I meant to pay for these objects which I wanted to have
for the gallery I was going to build. Therefore, I ordered
that an art expert, and indeed, not a German but a Frenchman
- it was some professor, whose name I do not recall and to
whom I never have talked - who would appraise those things.
I would then determine whether the price was too high for
me, whether I was no longer interested or whether I was
willing to pay the price. One part, the first part, was
settled that way, but then the whole thing stopped because
some of these objects were sent back and forth - that is,
they went back to the Fuehrer and they did not remain with
me, and not until the matter clarified should the payment be
made. In this decree, which I called a "preliminary decree"
and which the Fuehrer would have had to approve, I
emphasised that part of the things were to be paid for by
me, and those things which were not of museum value were to
be sold at auction to French or German businesses or to
whoever would participate in the sale; that the revenue of
this, as far as it was not confiscated but paid out, was to
go to the families of French war victims. I repeatedly
inquired where I was to send this money and said that in
collaboration with the French authorities some bank account
would have to be established. We always referred again to
opening such an account. The amount of money was always
available in my bank until the end. One day when I inquired
again, I received a surprising answer. The answer was that
the Reich Treasurer of the Party did not want to have this
money paid. I at once answered, and my secretary can verify
this by oath, that I could not at all understand what the
Reich Treasurer of the Party had to do with this matter, and
that I wanted to know the French account to which I could
have this amount transferred. In this case the Party, that
is, the Reich Treasurer, could have no authority to exempt
me from paying or not, because I myself had wished to make
the payment. Even after France had been occupied again, I
once again requested to know the account to which I could
remit the amount reserved for it.

In summarising and concluding, I wish to state: According to
a decree I considered these things as confiscated for the
Reich. Therefore, I believed myself to be justified to
acquire some of these objects, especially since I never made
a secret of the fact - neither to the Reich Minister for
Finance nor to anybody else - that these works of art of
museum value, as well as the ones I previously mentioned as
already in my possession, were being collected for the
gallery, which I described before.

As far as exchange was concerned, I would like to put this
matter straight also. Among the confiscated paintings there
were some of the most modern sort, paintings which I
personally do not accept and never did, which, however, as I
was told, were sought for in the French art trade. Whereupon
I said that as far as I was concerned these pictures could
also be appraised and acquired, in order that they might be
exchanged against old masters, in which I am interested. I
never exerted any pressure in this direction. I was only
concerned as to whether the price asked of me was too high,
then I would not enter into negotiations, but, as in every
art deal, if the offer was suitable I would inquire

                                                  [Page 126]

into the authenticity of what was offered. This much about
the exchange: under no circumstances did I exert any
pressure.

Later, after I had acquired these objects, I naturally used
some of them as well as some of my own, for general trading
with museums. In other words, if one museum was interested
in one of those pictures and I was interested, for my
gallery, in a picture which was in the possession of this
museum, we would make an exchange. This exchange also took
place with art dealers from abroad. This did not exclusively
concern pictures and works of art of present acquisitions,
but generally also those which I had acquired in the open
market, be it in Germany, Italy or in other countries, or
which were earlier in my possession.

At this point, I would like to add that independently of the
acquisition, and I am referring to the "Jeu de Paume," where
these confiscated objects were located, I, of course, had
acquired works of art in the open market in France as in
other countries before and after the war, and I might rather
say during the war. I might add that it usually happened
this way, that if I came to Rome or Florence, Paris or
Holland, as if the people had known in advance that I was
coming, in the shortest time I would always have a pile of
written offers, from almost every quarter, art dealers and
private people. And even though most of it was not genuine,
some of the things offered were interesting and good, and I
have acquired a number of works in the open market. Private
persons especially made me very frequent offers in the
beginning. I should like to emphasise that especially in
Paris I was rather deceived. As soon as it was known that it
was for me, the price was raised 50 to 100 per cent. That is
all I have to say briefly and in conclusion in regard to
this matter.

Q. Did you make provisions for the protection of French art
galleries and monuments?

A. I would like to refer at first not to the State art
treasures of France, that is, those in the possession of the
State museums. I did not confiscate a single object, or in
any way remove anything from the State museums. With the
exception of two contracts for an exchange with the Louvre
on an entirely voluntary basis, I traded a statue which is
known in the history of art as "La Belle Allemande," a wood
carved statue which originally came from Germany, against
another German wood statue, which I had in my possession for
many years before the war, and two pictures - an exchange
such as I used to make before the war with other museums
here and as is customary among museums. Besides, I have
always instructed all authorities to do their utmost to
protect works of art against destruction by bombs or other
battle damage. I remember that when the directors of the
Louvre told me that most of the things had just been put
into the rooms of the Loire Castle, I said that I would be
willing at their request and if it should seem necessary
with the increased bombing attacks, to help them put these
objects into safe keeping at places determined by them, as
they complained of transportation difficulties.

Now I wish to refer to the art monuments, which I would call
the buildings, churches and other monuments, anything of a
stationary character. Here I would like to say that perhaps
sometimes I issued an order which stood in contradiction to
my purely military duties, because I strongly emphasised to
my airmen that the magnificent Gothic cathedrals of the
French cities were, under all circumstances, to be protected
and not to be attacked. Even in such cases when troop
concentrations were involved in those places and attacks had
to be made, precision bombing Stukas were to be used
primarily. Every Frenchman who was present at the time will
confirm this: that the peculiar situation arose, be it in
Amiens, Rouen, Chartres or in other cities, that the
cathedrals - these art monuments of greatest importance and
beauty - were saved, and purposely so, in contrast to what
later happened in Germany. There was some broken glass in
the cathedrals, caused by bomb detonations; the most
precious windows,

                                                  [Page 127]

however, had been previously removed, thank God for that. As
far as I remember, the small cathedral in Bouvais had fallen
victim to bombing attacks on the neighbouring houses, the
large cathedral is still standing. The French Government
repeatedly acknowledged recognition of this fact to me. I
have no other comment on that point.


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