The Nizkor Project: Remembering the Holocaust (Shoah)

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And what of the defendant? He was given the cold shoulder
and pushed aside. The victor of the Saar electoral contest,
Josef Burckel, was appointed Reich Commissioner for the
Reunion of Austria with the Reich, and invested with
dictatorial powers. The powers of the defendant scarcely
exceeded those of an "Oberpraesident" in the Reich, that is,
those of a second level administrative authority. Still
less, because immediately above him was Burckel, who, under
the pretext of the annexation, interfered with everything
and laid claim to everything, particularly in matters
concerning the Churches and the Jews. This is evidenced by
Documents 67, 70 and 91. The defendant opposed Burckel's
methods. He even raised objections to Hitler himself against
Burckel's action in Graz on the 8th April, 1938.

This we know from the testimony of Neubachter, Schirach and
Stricker, and from the documents submitted by the defence.
But Burckel, whom Churchill described as the "Governor of
Vienna" in his book Step by Step, remained the stronger man,
and the importunate admonisher, Seyss-Inquart, was
transferred to Southern Poland as a Provincial Commissioner.
This treatment alone at the hands of his alleged fellow-
conspirators shows only too clearly that Seyss-Inquart was
actuated by his enthusiasm for the Anschluss and cannot have
been a conspirator. He was not a leader, he was led, or,
what in my opinion is more accurate, he was misled, perhaps
also a docile tool in the hands of the big two, Hitler and
Goering. But it was solely for his political ideals, the
Anschluss, without any intention of a war of aggression.

Of course, there was something of an economic boom in
Austria after the Anschluss. It was partly an artificial
boom due to rearmament. But what took place was not the
Anschluss that the Anschluss enthusiasts in Austria had
visualised, especially when the war provided a motive and a
pretext for ruthlessly controlling and repressing every
dissenting or critical opinion.

Austria never ceased hoping for her liberation and fighting
for it. There was much suffering and many died; 6,000 were
executed in Austria. In the "Landesgericht" of Vienna alone
1,200 men died by the guillotine, Boo of them merely because
of their anti-Nazi convictions. In the last days of the war,
Vienna's most beautiful buildings fell in ruins, and St.
Stephen's Cathedral, one of the noblest monuments of German
Gothic architecture, went up in flames. Thus was fulfilled
the promise that Hitler had made on the 15th March, 1938:

"The pearl has the setting which its beauty deserves."

                                                  [Page 166]

The idea of union, that is to say, the wish to bring about
the national unification of a nation, was not a crime;
criminal, however, was the introduction of a system that has
presumably blocked its realization for ever. The defendant
certainly did not will that.

To conclude my statements on the Austrian question I shall
now proceed briefly to examine the legal aspect of the
charge against my client. To elucidate his legal
responsibility I will review his behaviour in the following
short survey

First his political activity:

1. After the agreement of the 11th July, 1936, the Federal
Chancellor, Dr. Schuschnigg, took the defendant Seyss-
Inquart to work with him as a representative of the National
opposition, therefore, not as a political follower of his,
as for instance the witness Guido Schmidt.

2. Seyss-Inquart always declared - for the first time to Dr.
Dollfuss in July, 1934 - that the National opposition
consisted only of National Socialists who obey only Hitler's
will, who, in any case, will never act against Hitler's

3. Seyss-Inquart declared he was a National Socialist; thus
he always stood for the interests of the Austrian National
Socialists. This is not only confirmed by the witness Skubl
but borne out by the authorities previously quoted by me.

4. To avoid any military or international conflict, Seyss-
Inquart pursued the following aim: To allow the Austrian
National Socialists to work independently of the Reich
National Socialist Party, should Austria and Germany form a
close union.

5. Seyss-Inquart declared that this aim could only be
attained if Hitler agreed to it and directed the Austrian
National Socialists expressly towards this policy. This he
wanted to attain.

6. The culminating point of Seyss-Inquart's efforts was his
interview with Hitler on the 7th February, 1938, although he
was, so to speak, Minister by the grace of Hitler, he stood
for his Austrian programme.

Herein lies Seyss-Inquart's mistake. He thought Hitler and
Berlin would pursue a joint policy, that is, as Bismarck
said, exploit the art of possibility. Berlin, however, did
not wish to pursue a joint policy. In the face of this fact
Seyss-Inquart's policy broke down on the 11th March. Is this
mistake punishable, especially as the Austrian State leaders
desired to reach an agreement along the same lines, and Dr.
Schuschnigg, knowing his programme, allowed him to continue
his activity? In view of the defendant's basic attitude
until March, 1938, details of his political tactical
attitude are of secondary importance.

And now the activity of the defendant as Minister of the
Interior and Security.

7. There is no trace of any National Socialist influence on
the Austrian Executive. The witness Skubl has confirmed this
with surpassing clarity. Seyss-Inquart forbade the police to
take up any political attitude (Document 51); he forbade
National Socialist demonstrations (Document 59); he avoided
such occasions (Document 59); he demanded that the Austrian
Nazis stand for legality (Document 52).

8. On the 11th March, 1938, Seyss-Inquart fulfilled his
duties as mediator, in accordance with the Berchtesgaden
Agreement. Together with Glaise-Horstenau he gave Dr.
Schuschnigg, in the forenoon of the 11th March, a perfectly
candid statement of the facts. He particularly pointed out
the threatening National Socialist demonstrations and the
possibility of a German invasion. In the afternoon he
delivered Goering's demands to Schuschnigg and the latter's
answers to Goering.

9. After Dr. Schuschnigg's offer to resign, Seyss-Inquart
retired. He did nothing to comply with Goering's demand to
obtain the transfer of the Federal Chancellorship or to
seize power. The ultimatums, with the threats of invasion by
the Reich, were, as is known, transmitted by Embassy
Counsellor von Stein and General von Muff, to whose pressure
President Miklas finally yielded. This

                                                  [Page 167]

appears from President Miklas's statements (3697-PS) and the
statements of the witnesses Rainer and Schmidt.

10. Only after Dr. Schuschnigg's farewell speech did Seyss-
Inquart publicly demand the maintenance of order. He did not
designate himself as a Provisional Government, but, in good
faith, as Minister of the Interior and of Security, as was
confirmed by the witness Schmidt. He took the order not to
put up any resistance to the German troops from Dr.
Schuschnigg's farewell speech.

11. Seyss-Inquart tried as long as possible to preserve
Austria's independence, as instanced by his telephone
conversations with Goering (Document 58), also by his
request to Guido Schmidt to join his Ministry as Foreign
Minister, as confirmed by the witness Schmidt, and according
to the statements of witness Skubl;

  by refusing the demanded telegram (Document 58);
  by the request to Hitler not to march in, as confirmed by
  by the request to- Hitler also to let Austrian troops
  march into the Reich.

12. On the 13th March, 1938, the Anschluss Law was issued in
conformity with Article III of the Austrian Constitution of
the 1st May, 1934. The psychological situation for Seyss-
Inquart was the same as for all Austrians, who, on the 10th
April, had by secret ballot voted for the Anschluss by
4,381,070 votes against some 15,000.

Some of the accusations made against Seyss-Inquart are:

1. That he used his various positions and his personal
influence to promote the
seizure, incorporation and control of Austria by the Nazi

2. That as an integral part of his evil intentions in the
sense of the Indictment, he participated in the political
planning and preparations of the Nazi conspirators for wars
of aggression and wars in violation of international
treaties, agreements and assurances.

Concerning the first accusation, I refer to the above survey
and limit myself to the following short statements:

As a political aim, the annexation of Austria to the German
Reich is nowhere indicted, and the defendant pursued no
other aim. Here - as also on other points - the prosecution
goes beyond the limits of the Charter.

Concerning the second accusation that co-defendant Seyss-
Inquart participated in a conspiracy against peace, this
must be judged by Article 6 (a) of the Charter. There it is
stated, among other things, that collective planning,
preparation or waging of a war of aggression or a war in
violation of international treaties is punishable as a
breach of the peace.

I leave it to the Tribunal to examine if this ruling can
really be applied to the case of the entry into Austria in
spite of the fact that there was no war. It is a significant
point that according to the meaning of the said ruling, the
outbreak of a war is the condition for rendering an act
punishable for breach of the peace within the meaning of the
said provision.

In any case I cannot reconcile myself to an interpretation
of this ruling which goes so exceedingly far, so far as to
consider even an abandoned plan for war or the possible
planning for a war which turns out to be bloodless as
punishable as the accomplished crime.

It must be pointed out most emphatically that no proof has
been furnished that my client ever imagined that it would
even come to a war between Austria and any other Power
because of the Anschluss or pursuant to it. On the contrary,
his decision to take an active part in politics after the
drama of the 25th July, 1934, was dictated by the resolve
not to let the Anschluss question become the cause of
military or international complications. Furthermore, it
must have been far from him to imagine that Hitler or his
entourage had seriously considered the possibility of such a
consequence. The outcome of the Austrian enterprise proved
him to be right. The German troops were greeted on their
march into Austria with flowers and cheers.
                                                  [Page 168]

As for the Great Powers, France and England protested on the
12th March, 1938, against the Anschluss. But this was only a
very mild and ineffectual protest. Military support for
Schuschnigg was not forthcoming; above all, the League of
Nations, the guarantor of Austria's independence, was not
appealed to.

On the 14th March, 1938, the British Government declared in
the House of Commons that it had discussed the new situation
with its friends of the Geneva Entente and that the
unanimous opinion had been that a debate in Geneva would
lead to no satisfactory result.

When the League of Nations was informed of the Anschluss by
the German Foreign Office it took note of it without
protest, and the Austrian representative at the League of
Nations, Pflugl, was given his papers. The Hague Court of
Arbitration struck its Austrian member, Professor Verdross
of Vienna, from the register of judges. The diplomatic
agencies were withdrawn or transformed into Consulates in
the German Reich.

Only a very short time elapsed, in fact it was only a few
months after the occupation and annexation of this small
country that a State treaty concerning a small State was
concluded in Munich on September 29th, 1938, with the
alleged aggressor.

The French Prosecutor, M. de Menthon, in his opening speech
mentioned that great politician and statesman Politis: I
also would like to call him to mind. Shortly before his
untimely death he wrote in his book La Morale

  "Qui menace les petites nations menace l'humanite toute

The League of Nations Powers did not feel called upon to pay
any heed to this sentence.

But there is another principle of international order which
they did not see fit to apply when confronted with the
Austrian Anschluss. I mean that principle which, under the
name of the Stimson doctrine, has found entry into the
science of International Law and diplomatic language.

I turn over one page and continue at the bottom of Page 44.

And finally I remind the Tribunal of the declarations of the
Council of the League of Nations on the 16th February, 1932,
in which the Stimson doctrine, raised to a principle, was
expressed as follows:

  "No encroachment on the territorial integrity and no
  infringement of the political independence of a member of
  the League of Nations in violation of Article 10 of the
  Covenant of the League of Nations could be recognized as
  legally valid by the member nations."

Nevertheless all the nations of the world recognized the
incorporation of Austria into the German Reich without
feeling compelled to concern themselves with the Stimson

This likewise substantially answers the accusation of the
crime against peace by violation of treaties. Germany is
supposed to have violated three treaties. First the German-
Austrian agreement of 11th July, 1936; secondly Article 88
of the Treaty of Saint-Germain; lastly, Article 8o of the
Treaty of Versailles. Here, also, it must be pointed out
that all the nations concerned have not only tolerated the
violations of the treaties, but, moreover, tacitly
sanctioned them by their attitude. This implies at least a
renunciation of International Law, and the Powers concerned
have thereby forfeited the right to take any ulterior action
because of treaty violations, as this would be contrary to
all sense of fairness.

With particular regard to Article 88 of the Treaty of Saint-
Germain, the German Government, and therefore Seyss-Inquart
as alleged co-conspirator, cannot be charged with violation
of this provision, because Germany was not bound by this
treaty which she had not signed and which for her
represented a "res inter alia acta".

On the other hand, the German-Austrian Treaty of 11th July,
1936, was a "res inter alia acta" for Powers other than
Germany and Austria; here Austria alone could have raised
the objection of a breach of treaty. In this connection
attention is called to the fact that the reconstituted
Austria is not among the signatories of

                                                  [Page 169]

the London Agreement of the 8th August, 1945. Therefore the
four States which have established the International
Military Tribunal are not entitled to vindicate the
interests of Austria at this trial.

With regard to Article 80 of the Treaty of Versailles, I
resist the temptation to discuss the question of the legal
validity of this provision, in particular to dwell on the
legal significance of the contradiction of this Article with
the so-called fourteen points of President Wilson.

But in concluding this, my legal exposition of the Austrian
affair, I cannot altogether refrain from expressing a
general idea:

One of the great principles of international order which, in
the course of the nineteenth and twentieth centuries, has
established itself after much suffering, much confusion and
many makeshifts and become more and more a reality, is the
right of self-determination of nations.

This basic principle of the right of self-determination of
nations has become so firmly rooted in the legal conceptions
of international relations in our century that one is forced
to the idea that it belongs to the general principles of
International Law, an idea that particularly appeals to the
democratic way of thinking. But as a general principle of
International Law, it would, together with the Charter, the
International Law of Custom and, thirdly, the Law of Treaty,
then become the standard criterion of judgement, for the
Nuremberg International Military Tribunal, which at all
events must find a similar basis for other questions. And
further it would acquire, like all other generally accepted
principles of law, a constraining force and above all have
precedence over international treaty law.

A number of States owe their existence to this lofty
expression of the democratic way of thinking. Such a
privilege was denied the Austrians after the First World
War. Despite the fact that the people in Austria as well as
in Germany unanimously strove for union, Austria was forced
to eke out an existence as an artificial, unnatural State
structure, neither able to live nor die. How bitter are the
words of the Encyclical "Ubi areano" of 23rd December, 1932:

  "We hoped for peace, but it did not bring salvation; we
  hoped for healing, but terror came; we hoped for the hour
  of recovery, but only confusion came; we hoped for light,
  but only darkness came."

In the year 1938, too, Austria and Germany strove for union,
according to the wish of the overwhelming majority of their
citizens, and this time their wish was fulfilled.

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