The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/10/11

From the point of view of world history, the incorporation
of Austria has none other significance than the triumph of a
mighty and living principle of international order - the
right of "self-determination of nations". This dynamic force
carried away artificial and unnatural treaty stipulations.

Who can speak here of guilt?

I have nothing to say on the question of Czechoslovakia, and
on the question of Poland very little; for during his short
stay he was not in evidence at all to the Poles, but was
mainly concerned with the organization problems connected
with the building up of the German administrative apparatus.
In this matter it is sufficient for me to refer to the
results of the handling of the evidence.

Nor will I say anything more about his honorary rank in the
SS except that an honorary rank was never under Himmler's
command and disciplinary power, nor did such rank carry with
it corresponding power in the SS.

As regards his position as minister without portfolio, the
importance of this function within the scope of the
organizations will be discussed in the chapter "Reich
Cabinet". Therefore, passing now from this interlude, I
hasten on to the second scene of this case - the
Netherlands.

THE NETHERLANDS

Many know her only as the country of windmills, wooden shoes
and wide trousers; the red brick buildings, large herds of
cattle in green meadows and vast

                                                  [Page 170]

multi-coloured tulip fields. I know her as the country that
gave to mankind a Rembrandt and the many masters of the
Dutch School, and de Grotius, the great teacher of
International Law; the country that fought for her liberty
in bloody battles against Philip II of Spain and produced
the great naval hero de Ruyter, who won one of the most
famous naval battles in history on 21st August, 1673. But
during this trial we learned here, that of all the occupied
countries, the Netherlands offered the most united and
stiffest political as well as increasingly effective
physical resistance; we also learned that throughout these
years these people never abandoned the hope that the day of
liberation would surely come.

The motto of the province of Zealand: "Luctor et emergo", "I
struggle and I win through", had become the rallying cry of
the whole country.

Seyss-Inquart came to this country in May, 1940, as Chief of
the Civil Administration. Whatever he may have thought and
planned, it is his tragedy that he came as the
representative of Adolf Hitler and of a system hated the
world over. Hundreds of laws, orders and decrees bore his
signature, and no matter how correct they may have been
legally, in the eyes of the people they still were measures
of the enemy and Seyss-Inquart still their oppressor. My
client did not put himself forward for this office. On the
contrary, he asked permission to go to the front as a
soldier. Adolf Hitler refused this. Seyss-Inquart has also
never contested his responsibility, and gave himself up
voluntarily after the collapse. In case the legal opinion of
the defence concerning the command of a superior is not
shared by the Tribunal, the total organization of the Reich
on the one hand, and the attitude of the Dutch people on the
other, must, if only by virtue of Article 8 of the Charter,
be taken into consideration in passing judgement on his
administrative activity. The way in which Seyss-Inquart
discharged his two conflicting tasks, namely to represent
the interests of the Reich, and at the same time to provide
for the welfare of the population within the meaning of the
Hague Land Warfare Regulations, is revealed by his attitude
which I now describe:

In the administration of Holland my client clearly allowed
himself to be guided by the following legal conceptions:

The development of war technique, particularly in .air
warfare, the enormous extension of economic warfare, the
expansion of the war into "total and indivisible war", the
beginning of the idea of total blockade, have all made
International Law - as it was in force in the years 1899 and
1907 when the Hague Convention was established - meaningless
from the viewpoint of the "clausula rebus sic statibus", and
absolutely incomplete and useless because of new
requirements and prevailing conditions. Only a few vestiges
from the old days were still valid in the Second World War.

How drastic this change is, is most strikingly shown by the
bombing of residential quarters, made possible by the
colossal development of explosives and flying technique, and
which had no justification whatever according to previous
law. If indeed there is any justification at all, then this
can only be found in the concept of total war.

But, above all, this development brought the individual into
war - due not least to the influence of the Anglo-American
concept of war.

Accordingly, in the course of this development the enemy
civilian population, as well as the resources of the
occupied regions, have become a war potential of the
occupying power up to the limits imposed by humanity.

A further limit is imposed by International Law, which
provides that the demands of these forces must be justified
by military necessity, and lastly that these demands must be
reasonable ex aequo et bono.

Moreover, the totalitarian and indivisible nature of modern
warfare precludes the special treatment of specific areas.
It is no longer a question of requisitioning the human and
economic forces of a definite area only for the requirements
of that area, as it is still prescribed by the Hague
Convention for Land Warfare. Hence

                                                  [Page 171]

forth the belligerent in power must have at his disposal the
sum total of these forces, which on the other hand benefit
from belonging to the whole.

Modern technical development, especially in the field of
communications and traffic, also besets the approach to
another problem of warfare, the so-called partisans, with
new and heavy tasks.

In contrast to the First World War, the partisan
organization assumed un-thought-of proportions in the Second
World War, and has developed into an enormous danger for the
fighting troops, which at most can be compared with the
guerrilla war of attrition against Napoleon I in Spain. The
old International Law made no adequate rules to parry this
danger. It is evident that the guiding principle for
fighting the partisans must be the security of the fighting
troops at any price.

This means that the Army as well as the occupation
administration have both the right and the duty to take the
severest repressive and preventive measures without going
beyond the bounds of reason and humanity. My client
performed the functions of his office in accordance with
these guiding principles, always in the firm belief that he
was carrying out his duty according to the directives of the
legal subject of International Law, i.e., of the Supreme
Reich Leadership. Any thought of acting illegally or even of
committing punishable acts never entered his mind. That has
nothing to do with the applicability in this case of the
principle that ignorance of the law excuses no one, for here
not national penal law is concerned, but International Law,
and moreover it is not a question of a legal error, but of a
subjective conception of duty, which may have erred here and
there, but was always sincere.

Having discussed the principles, let us now turn to the
individual administrative acts of the defendant. Here it
must be pointed out that, as everywhere in occupied
territories, but particularly in Germany proper, the
National Socialist administration tended more and more to
become over-organized and responsibilities often overlapped.
At the same time there was an extremely rigid centralisation
in Berlin. Consequently the following authorities were in
control in the Netherlands.

1. The Reich Commissariat (Civil Administration and
Protection of Reich Interests.

2. The Commander-in-Chief of the Wehrmacht and the various
Commanders-in-Chief, with their own Courts.

3. The police, about which I shall speak later.

4. Four-Year Plan - Goering.

5. "Einsatzstab Rosenberg."

6. Department for the Direction of Labour - Sauckel.

7. Armament Ministry - Speer, and

8. Last but not least, the NSDAP with its offices and
organizations.

Pursuant to the Fuehrer order, thus de Jure, the Reich
Commissioner was bound to obey unquestioningly the
instructions of these central agencies, and he was not
allowed to have a say in measures taken by them. The history
still to be written will perhaps reveal with what skill the
defendant prevented some of these measures or at least
succeeded in toning them down. As to the Dutch population,
its attitude, as already mentioned, was completely hostile
and the resistance movement, organized, equipped and
directed through the Dutch Government in London, grew
stronger every year. To reach a fair judgement, the
defendant's actions should be considered against this
background.

I now turn to the Indictment and shall follow in broad
outline the presentation of the French Prosecutor.

The first charge is the alleged violation of the sovereignty
of the country by the introduction of the Reich Commissariat
with its four general commissariats abolition of civic
liberties; introduction of the leadership principle and
dissolution of legislative bodies and political parties.
These measures cannot constitute a breach of International
Law. Inasmuch as Germany, who, just as the Netherlands, was
one of the signatories of the Fourth Hague Convention of
1907, recognized

                                                  [Page 172]

during the war the laws governing land warfare; and
notwithstanding the failure of the joint participation
clause (Allbeteiligungsklausel) after entry into the war of
the Soviet Union, the validity of the laws governing land
warfare, in the sense of the limitations referred to at the
beginning of the above statements, must be accepted for the
Netherlands as well. Its rulings do not appear to have been
violated. As a result of the complete occupation of the
country and the flight of the Queen and of the Ministers,
the highest governing power in civil affairs passed from the
Crown and the Parliament to the Occupying Power, and thus to
the Reich Commissioner. Owing to the unconditional
capitulation of 10th May, 1940, General Winkelmann who had
been left behind in the country and was vested with special
powers renounced his authority in every respect.

Furthermore, it is the recognized right of the Occupying
Power to organize the administration as its requirements
demand. In so doing it must do nothing which anticipates the
final decision as to the fate of the country. This was
definitely recognized also by the Supreme Court of the
Netherlands by the decision of 12th January, 1942, submitted
by me. The division of authority between the Reich
Commissioner and the Commander-in-Chief of the Wehrmacht, as
provided for by the Fuehrer decree, also represents an
internal distribution of jurisdiction by the Occupying
Power. This is definitely established in the British Manual
of Military Law of 1936. The fact that the State Parliament
was suspended, the activity of the State Council restricted
to the preparation of opinions in disputes on administrative
matters and that, finally, the parliamentary parties were
dissolved, is likewise no violation of International Law,
because during the period of occupation it is the Occupant
who decides to what extent there is need for legislative
measures and for amendment of the legislation of the
country. As a rule, at every election about 50 parties
entered the contest for the 150 seats in the Dutch
Parliament. The fact that these parties, formerly at
variance with one another, not only joined forces in their
antagonism to the Occupying Power, but very often were
active in the various resistance movements, gave the
Occupant every justification for suspending and subsequently
dissolving them - their final dissolution was not decreed
until 5th July, 1941 - the more so as the country lay on the
direct path of the coming developments of the war, and an
invasion was to be expected. This made it necessary for the
administrative apparatus to concentrate all its force to do
away with parliamentary obstruction and deprive these
institutions of their latent power to carry on hostile
propaganda.

In answer to the accusation that the NSB was sponsored for
this purpose it must be said that the Reich Commissioner
consistently refused to form a government from these
parties. That parties which were already in existence in the
country or were newly formed, and who identified themselves
ideologically with the Occupying Power, were encouraged by
the latter, is likewise not disallowed by International Law.
As no official administrative powers were vested in the NSB,
and since political organizations had no influence on the
administration, the fact at in 1943 this party declared
itself to be the representative of the political will the
Dutch nation is immaterial. It always has been and continues
even today be the practice of the Occupying Power to
encourage and assist political parties friendly to it.

The charge of Germanisation is also unjustified. By their
origin the Dutch people were always considered to be
Teutonic and it is, therefore, not possible to make Teutons
out of them. When we look into Dutch history we find that
for centuries the Netherlands belonged to the Federation of
the German Reich. If you roam through the country you can
still see in Groningen's coat-of-arms the German Reich
Eagle, in the same way that Amsterdam's coat-of-arms has
borne the emblem of the German imperial crown since 1489.
The first and the last Salic Emperors, Konrad II and
Heinrich V, died in Utrecht. That the Occupying Power should
desire to orientate towards Central Europe a country cut off
from the sea and her colonies by the blockade was
understandable, but it never was intended,

                                                  [Page 173]

certainly not by the Reich Commissioner, to eliminate the
national traits and the independence of the Dutch. The
defendant was perfectly right when in his speech of 9th
November, 1943, in Utrecht (Document Book 102) he declared
among other things:

  "We ourselves would cease to be Europeans should we fail
  in our mission to tend and to promote the growth of these
  flowering cultures of the European peoples, each with its
  own individuality, and bound together with blood ties."

Equally unjustified is the charge of the French prosecution
that pressure was used to bring the Netherlands into the
war. There was nothing against enlisting volunteers of Dutch
nationality in the German Wehrmacht. Article 45 of the law
on land warfare only forbids compulsory recruiting for war
against one's own fatherland. This did not make those who
took up arms voluntarily immune from the regulations of the
Dutch penal code, as mentioned by the prosecution, and which
during the war were made more severe by Royal Edict. The
same holds true of the citizenship regulations for these
volunteers and regulations concerning marriage to German
nationals. Inasmuch as these orders of the Reich
Commissioner had no legal value outside the compass of the
German Reich, the legal deduction that they do not
constitute an abuse of sovereignty in the sense advanced by
the prosecution can be put forward with a clear conscience.
That a Press which notoriously placed itself in the opposite
camp to the Occupying Powers was silenced goes without
saying.

The French prosecution sees a further suppression of
sovereignty in the stifling of intellectual life by the
closing of the universities and the demand for a declaration
of allegiance. Special mention is made of the closing of the
University of Leyden. But the University of Leyden was
closed because of rioting by the students, and being a
security measure of the Occupying Power, it cannot be an
infringement of International Law. In the same way, the
demand for a declaration of allegiance is not at variance
either with the Rules of Land Warfare. According to Article
45, the population of an occupied country may not be forced
to take the oath of allegiance; according to the wording of
the declaration all that was demanded was to abstain from
any action directed against the German Reich or its army.
Inasmuch as the population of an occupied country is bound
to obey the Occupying Power exercising the authority of the
State, this declaration, which does not make any actual
demands, cannot be considered a violation of International
Law.

The organization of the administrative authorities was taken
over almost as a whole, and maintained, in the face of an
entirely uncooperative, even hostile attitude; especially
one refrained from interference in the field of jurisdiction
The only reproach in this direction is the dismissal of the
President of the Court of justice at Leeuwarden. The
defendant has definitely declared he assumes responsibility
for this case, and he has a perfect right to do so. The
Occupying Power may interfere in the field of jurisdiction
only when the purpose of the occupation is in jeopardy. If a
judge refuses to administer justice, even though the cause
for. his complaint was removed by the Reich Commissioner, as
was the case in this instance, then the Occupying Power has
the right to remove from office the judge concerned.

The French prosecution then continues, asserting that the
defendant initiated a series of acts of terror. In the
course of the presentation of evidence on this point, we
have heard what the circumstances of this collective
punishment were. Moreover, Kammergerichtsrat Rudolf Fritsch
and President Joppich showed by their testimony that the
defendant was extremely conscientious in the application of
the right to grant pardon and that he limited capital
punishment as much as possible. And as regards the special
police courts, both the defendant and the witness Wimmer
have proved that this was a procedure applied in exceptional
cases only, headed by an official of the judiciary, and that
the defendant was entitled to the services of a freely
chosen defence counsel who could also be of Dutch
nationality; a procedure which lasted a short time only -
about 14 days.

                                                  [Page 174]


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