The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
12th March to 22nd March, 1946

Eighty-Second Day: Friday, 15th March, 1946
(Part 2 of 7)

[Page 122]

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.


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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