The Nizkor Project: Remembering the Holocaust (Shoah)

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Without intending to enter into the importance or the value
of this document as evidence, the Fuehrer's speech closed
with the order to set up a small Research Staff in the High
Command of the Wehrmacht; this document shows clearly that
no common plan in the shape asserted by the prosecution can
have existed, especially not between the defendants now
facing their trial. Not a single Minister or official of
civil administration took part in this conference at the
Fuehrer's headquarters - which in reality was not a
conference, but an instruction and issuance of orders.

The next three documents submitted by the prosecution as key
documents refer to one and the same subject, namely to Adolf
Hitler's speech addressed to the Commanders-in-Chief of the
Wehrmacht on 22nd August, 1939. The following are the
documents in question: Exhibit USA 38 (Document L-31),
Exhibit USA 29 (Document PS-798) and Exhibit USA 30
(Document PS-1014). I will not enter any farther into the
value of these documents as evidence, although it is obvious
that these cannot be equivalent documents, and though it is
quite clear that a corresponding reproduction to some extent
of Adolf Hitler's exposition is out of the question. None of
these documents reveal their authorship. Moreover, the
statements differ considerably one from another as far as
volume and contents are concerned.

Exhibit USA 29 seems to contain the most complete
reproduction of Hitler's statements. And here again the
conclusion is most worthy of notice, a conclusion which
throws some light upon the situation at that time and
defines the event which made it possible for Hitler to make
such a speech to the Commanders-in-Chief. I quote:

  "I was convinced that Stalin would never accept the
  English offer. Russia is not interested in the
  maintenance of Poland and then Stalin knows it means the
  end of his regime, it being immaterial whether his
  soldiers come off

                                                  [Page 368]

  victorious or vanquished. Litvinov's solution was
  decisive. I gradually changed Russia's attitude in this
  matter. In connection with the commercial treaty we
  engaged in political talks. Proposal for a non-aggression
  pact. Then came a general proposition from Russia. Four
  days ago I took a special step which caused Russia to
  signify her willingness to conclude it, yesterday. The
  personal contact with Stalin is established. Von
  Ribbentrop will conclude the Treaty the day after
  tomorrow. Poland is now in the position in which I wanted
  her to be ...."

Besides the Commanders-in-Chief, no minister or leader of
the Party, specifically not the defendant Rudolf Hess,
attended this speech of the Fuehrer. The same is true of
Document 789-PS (Exhibit USA 23). The subject of this
document is a discussion with the Fuehrer on 23rd November,
1939. It appears from this document that here again only the
Commanders-in-Chief of the Wehrmacht were assembled to
receive the Fuehrer's directions for the imminent operations
in the West.

The next key document is Exhibit USA 31, namely, Directive
21 for the Barbarossa operation. This was a question of a
directive by the Fuehrer and Supreme Commander of the
Wehrmacht which has an exclusively military character and
was intended only for the sphere of the Wehrmacht. Any
participation by civilian administrative offices or of the
Party, even in the person of the highest political leader,
namely, the defendant Rudolf Hess, is clearly excluded by
the nature of this directive.

It appears also from Exhibit USA 32 (Document 2718-PS), the
subject of which is a file memo on the result of a
conference on 2nd May, 1941, about the case Barbarossa, that
neither the deputy of the Fuehrer nor any other political
leader took part in this conference.

The last so-called key document to discuss is Exhibit USA 33
(Document 1881-PS), an account by Ambassador Schmidt of the
conversation between the Fuehrer and the Japanese Foreign
Minister, Matsuoka, in Berlin on 4th April, 1941. By the
very nature of this conference there could be, as a matter
of course, no question of any participation in it by the
defendant Rudolf Hess or by any other political leader of
the Party. However, something else appears from this
document, namely, the fact that it is not only false to talk
about a common plan within Germany aiming at a war of
aggression, but, even more than this, that no kind of close
political or military co-operation existed between the so-
called Axis Powers, in any case as far as the relations
between Germany and Japan are concerned.

What conclusion can now be drawn from the contents of these
so-called key documents which the prosecution itself has
characterised as particularly relevant as to the existence
of a so-called common plan? Without wanting to express a
view as to the material relevance of these documents, in any
case it is established by these notes that the defendant
Hess was not present at any of these conferences or when
these orders were issued. If, in appraising this
circumstance, one considers the further fact that the
defendant Rudolf Hess was the Fuehrer's deputy and therefore
the highest political leader, and that furthermore, after
1st September, 1939, he was designated as the Fuehrer's
successor after the defendant Hermann Goering, then there
would, in fact, not seem to be any basis for the assumption
of a common plan in the form asserted by the prosecution.

In this connection, may I refer to the report of the Chief
of Staff of the United States Army to the Secretary for War
for the period from July, 1943, to 30th June, 1945. I quote:

  " ... The proofs at hand show that Hitler's original
  intention was to create a Greater German Reich that would
  dominate Europe by absorbing the Germanic peoples in the
  countries bordering on the German Reich and by
  strengthening these new boundaries. For the achievement
  of this aim, Hitler pursued a policy of opportunism by
  which he succeeded in occupying the Rhineland, Austria
  and Czechoslovakia without military resistance.

                                                  [Page 369]

  "No proof has yet been found that the German High Command
  had an overall strategic plan. The High Command did
  fundamentally approve Hitler's policy, but his impetuous
  strategy outran Germany's military capacities and finally
  led to Germany's defeat. The history of the German High
  Command since 1938 is full of constant personal conflicts
  in which Hitler's personal order increasingly prevailed
  against military judgement. The first clash occurred in
  the year 1938, and ended in the dismissal of von
  Blomberg, von Fritsch and Beck, and in the elimination of
  the last important conservative influence on German
  foreign policy.
  
  "The campaigns in Poland, France, Norway and the
  Netherlands resulted in serious dissensions between
  Hitler and the generals. In every case, the General Staff
  favoured an orthodox form for the offensive, whereas
  Hitler was for an unorthodox attack, the objectives of
  which lay deep in enemy territory. In every case,
  Hitler's idea prevailed and the really amazing success of
  each of these successive campaigns raised Hitler's
  prestige to a point where one no longer dared to oppose
  his views. His military self-confidence became boundless
  after the victory in France, and henceforth he began to
  criticise and disparage his generals' way of thinking,
  even in the presence of junior officers. So the result
  was that no opposition was brought forward by the General
  Staff when Hitler made his fateful decision to advance
  against the danger threatening in the East.
  
  "By Italy's entrance into the war, Mussolini intended to
  realize his strategic plans for the expansion of his
  empire under the cover of the German military successes.
  Field-Marshal Keitel states that the Italian declaration
  of war was in contradiction with the declarations made to
  Germany. Both Keitel and Jodl agree that it was not
  desired. From the beginning Italy was nothing but a
  burden for the German war potential. Because of her
  dependence for oil and coal, Italy was a constant source
  of friction in the economic field. Mussolini's one-sided
  campaign against Greece and his attack on Egypt forced
  the Germans into the Balkan campaign, as well as into the
  African campaign, and led to an overstraining of the
  German forces which became one of the chief factors of
  the German defeat.
  
  "Moreover, there is no evidence whatsoever of a strategic
  planning between Germany and Japan. The German General
  Staff recognized the fact that Japan was obligated by her
  neutrality pact with Russia, but hoped that Japan would
  tie up strong British and American land, sea and air
  forces in the Far East ...."

The statements which the defendants Keitel and Jodl have
made on the witness stand are essentially the same as the
statements of the American Chief of Staff, so that further
details on this point are superfluous. It may be considered
as proven that not once did a complete agreement exist among
the most intimate circle of Adolf Hitler's associates on the
measures to be taken in the political and military field,
whereby, first of all, the constitutionally established
relationship of rank between the officers of the armed
forces and the Head of the State and Supreme Commander need
not be considered. One sees that the existence of a common
plan aiming at war cannot be accepted even in the case of
that group of persons with whom it first seemed most likely
to be associated.

The second, common goal of the conspiracy is declared by the
Indictment to be the appropriation of the territories which
Germany had lost as a result of the World War of 1914-1918.
The preamble to the Treaty of Versailles provides for the
possibility of a revision of the Treaty. Going beyond this,
the demand for the reunion of Austria to the German Reich
and the annexation of the Sudeten German regions cannot in
itself be concluded to rest on the existence of a plan which
was to have been realised at the proper moment by the use of
violence or by way of war. As a matter of fact, by a
disregard of the right of self-determination of nations,
these territories had already been prevented in the year
1919 from

                                                  [Page 370]

annexing themselves to the German Reich. On this question I
can refer to the statements I made at the beginning.
Actually, the annexation of Austria took place - this can
perhaps be said as a result of the presentation of evidence
- under circumstances which cannot be described as warlike
and which permit the conclusion that the greater part of the
Austrian population approved the annexation. Concerning the
Sudeten German question, it suffices here to refer to the
Munich agreement between Germany, Great Britain, France and
Italy by which the reunion of the Sudeten Germans with the
Reich was settled.

And finally, the third aim of the common plan was described
as the annexation of additional territories on the European
continent which should serve the conspirators as
"Lebensraum". The Indictment is very unclear on this point.
But in fact the question of the so-called "Lebensraum" is a
problem which is completely independent of the National
Socialist ideology and is determined by the size of the area
and number of inhabitants. Every German government had to,
and still must, deal with this question. If any argument by
Hitler found a lasting response in the German people, it was
the demand made by him for an appropriate share for the
German people in the material wealth of the world. This
demand appears to be all the more justified as the
proportion between the size of the area and the number of
inhabitants was more unfavourable for the German people than
for any other people.

I do not need to give detailed reasons as to in what
insufficient way the, most important sources of raw
materials are distributed and that certain raw materials are
completely monopolised. It is certain that the bitterness
about the unjust distribution of the material wealth of the
world was bound to increase in the German people, as not
only was every reasonable revision rejected, but moreover,
it was said by the opposite side in an unmistakable manner
that the nations were divided into two classes, namely the
"haves" and the "have-nots". In fact, this classification
could be felt as nothing else but scorn.

Moreover, even after 1933 there was no unanimous opinion
about the possible solutions concerning the removal of the
difficulties resulting from the need for space. Thus, for
instance, the defendant Rudolf Hess belonged precisely to
those who wanted to solve the problem of Lebensraum" by the
acquisition of colonies, if possible. For instance, in a big
speech in Stettin, on 21st March, 1936, he said:

  "The most natural way to make more food available for the
  people of Germany is to improve our living standard, that
  is, to supplement it by having colonies. Therefore the
  Fuehrer, by stating his willingness to return to the
  League of Nations, connected with this the expectation
  that the question of colonies would be submitted to
  examination. The Fuehrer knows that a people without
  sufficient area, without a sufficient food basis, a
  hungry people, must in the long run become a centre of
  unrest because of its instinct of self-preservation
  against which the most ingenious statesman is powerless.
  For hunger is a natural instinct which cannot be subdued
  either by warnings or by orders. Our desire for colonies
  is therefore only the desire for a pacification of Europe
  for a long time, and therefore the question of the
  allocation of colonies to Germany is part of the
  Fuehrer's big proposal of pacification .... "

The world knows that the fulfilment of this demand as well
as the fulfilment of all other demands for revision was
refused.

The connection between the unjust distribution of the
material goods of the world, which contradicts all economic
reason, and the political tensions which shake the peace of
the world again and again, cannot simply be overlooked.

Your Honours, I now turn to the legal evaluation of the
state of affairs which may be considered as actually
established: As I have already stated, Article 6, paragraph
3, of the Charter is not the standardisation of someone's
own and independent state of criminality, but the expansion
of the criminal responsibility of the, leaders, instigators
and participants who have taken part in the drafting or

                                                  [Page 371]

in the execution of a common plan for committing one of the
crimes mentioned in paragraph 2. According to the regulation
mentioned, these persons are to be responsible not only for
the acts which they themselves have committed, but they also
are to take upon themselves the penal consequences for all
acts which were committed by any person in the execution of
such a plan.

In Article 6 (a), of the Charter, the fact of a crime
against the peace is defined as follows:

  "The planning, preparation, initiation or waging of a war
  of aggression, or a war in violation of international
  treaties, agreements or assurances, or participation in a
  common plan or conspiracy for the accomplishment of any
  of the foregoing."

While it is expressly defined in Article 6, paragraph 3, of
the Charter that the criminal responsibility of the
participant in the draft of a common plan is limited to acts
which have been "performed by any persons in execution of
such a plan", the crime against the peace is according to
Article 6 (a) of the Charter already completed with the
conclusion of agreements or the giving of assurances or the
participation in a common plan or in a conspiracy for the
execution of a plan which has as its aim the preparation,
the initiation or the execution ,of a war of aggression. In
contrast to paragraph 3 of Article 6, it is there stated
that it is not necessary that an act of execution be
actually committed.

I do not intend now to deal with the question more
specifically whether the war as such, and especially the
start of a war of aggression, was a crime according to
International Law valid at the time of the day of the
outbreak of war, on 1st September, 1939. This question has
already been discussed in the opening speech of the defence.
This examination of the legal side of this question has
shown that neither the League of Nations agreement nor the
Briand-Kellogg Pact contain anything which would allow the
conclusion that the starting of a war was a criminal and
therefore punishable offence. Valid International Law knew
neither a criminal responsibility of the State as a body
corporate and even less a criminal responsibility of the
agencies of the State, such as the head of the State, the
members of the Government, the military commanders, the
economic leaders, etc.

It can also be left undecided as to the cause of this
unsatisfactory condition of International Law. It has
already been correctly pointed out that the idea of
sovereignty was the basis of the refusal of the great Powers
in particular to relinquish some of these rights of
sovereignty in the interest of a better super-national
organization, and consequently a reason for the
unsatisfactory status of International Law, especially in
this question. In connection with it there is another fact
which does not seem to be less important to me, namely, that
it was not possible until now to create an effective
organization and a procedure which would guarantee a real
satisfaction of the justified claims of the peoples for a
proper participation in the material goods of the world, and
which would also in other respects take care of a just
settlement of the conflicting interests.

On the basis of these establishments and examinations alone,
there can hardly be any doubt that a crime against the
peace, as it has found its factual definition in Article 6
(a) of the Charter, does not exist. This section of Article
6 of the Charter does not have a sufficient basis in
existing International Law.

I omit the following statements, as they concern the effect
of the secret German-Russian treaty of 23rd August, 1939,
upon the jurisdiction of the Tribunal. The Tribunal has to
consider officially to what degree the jurisdiction can
still be considered extant in view of this secret treaty. I
continue on Page 63. Mr. President, I am in a difficult
position, as by omitting these statements from Pages 59 to
62, an incorrect picture would be created, as my actual
statements concerning the contents of the German-Soviet
secret treaty could be misunderstood, because of its legal
consequences. I therefore ask the Tribunal to decide.

                                                  [Page 372]

THE PRESIDENT: The Tribunal has fully considered this matter
and does not desire to hear your point.


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