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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Eighth Day: Monday, 15th July, 1946
(Part 6 of 10)

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By DR. DIX, Continued:

This should not even be a point of consideration, for in the Jewish question, Schacht, in his public speeches and his reports to Hitler, showed such a favourable attitude towards the Jews that it would be unjust to disqualify him politically and morally for this reason, not to mention to do so from the standpoint of criminal law. As examples I would remind you of the Reichsbank speech after the anti- Jewish pogroms in November, 1938, the speech at Konigsberg, the statements of the year 1935, and so forth. In the Third Reich, Schacht was considered the most courageous and most active protector of the Jews. I only remind you of the letter of the Frankfurt business man, Merton, which was submitted to the Tribunal, and to the illuminating statement of the witness Hayler. According to the latter, when Hayler reproached Himmler for the events of November, 1938, he replied that ultimately it had been the fault of the economic administration that matters had reached such a point. From a man like Herr Schacht, one could not expect anything else than that he would exercise a constant restraining influence in the Jewish question and be opposed to the will of the Party.

In response to my further inquiry, Justice Jackson defined this specific charge, of the prosecution as follows: Schacht is not being charged with anti-Semitism, but for activities which have a causal connection with the atrocities committed against the Jews within the framework of the planning of aggressive war. Thus it follows that a denial of guilt in a war of aggression leads with compelling logic to the denial of any guilt for the atrocities which were committed against the Jews during the war. Justice Jackson has made some phases of the legislation in respect to the Jews during Schacht's term as minister the subject of his cross- examination. I shall refrain from evaluating this part of the cross-examination; the questions put to him and answered by him are irrelevant according to the Charter and the previously mentioned authentic interpretation of this part of the; Indictment by Justice Jackson. The anti-Semitic legislation of the Third Reich and the personal attitude of an individual defendant toward it are, according td the Charter, relevant in these proceedings only in so far as they are connected with other crimes which are subject to punishment according to the Charter, as, for example, the conspiracy to wage war, mass extermination, and so forth. According to the Charter they cannot be an offence in themselves, nor even one against humanity. Only those defendants are punishable for their deeds who can be proved to have participated in the planning of a war of aggression with its resulting inhuman consequences for the Jews. A prerequisite for their conviction on account, however, is that they recognized and desired this goal and its result. There is no purely objective responsibility for the final result of an action (Erfolgshaftung) in criminal law. According to the Charter, he who desired the war and thus also the inhuman actions connected with it is punishable; but the incriminating activity must always have occurred within the scope of the execution of such a plan. This purely legal consideration in itself excludes the conviction of Schacht on account of atrocities against the Jews.

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A discrepancy between the prosecution, especially between the statements of Justice Jackson, and myself must likewise be clarified at this point, otherwise we will be talking at cross-purposes. During the cross-examination Justice Jackson has repeatedly pointed out that the defendant is not being charged with anti-Semitism as such that he is not being charged with his ideas and statements on the so-called Lebensraum problem, and thus, the food problem of the Central European nations, that he is not being charged with his colonial aspirations, but that he is being charged with all this only to the extent that it has served, with his knowledge and desire, for the preparation of a war of aggression. By this objection Justice Jackson meant to preclude certain questions and discussion.

This would have been justified, and I also could now omit such arguments, if the prosecution had not taken with one hand what it gave with the other, because, in the course of argumentation, all this, namely his alleged anti-Semitism, etc., is used as indirect proof, that is, as circumstantial evidence, that Schacht had prepared and desired this war of aggression. The prosecution of course does not count all that as a criminal fact in itself, but as indirect proof, as circumstantial evidence. Therefore, in evaluating the evidence, I must also deal with these problems. I think I have finished dealing with the Jewish question. With regard to the problem of living space (Lebensraum), in order to save time, I can probably refer to what Schacht has stated here during his interrogation in justification of his statements and activities in this respect. The colonial problem was the subject of cross-examination by Justice Jackson in so far as he tried to prove that colonial activity by Germany was impossible without world domination or at least the domination of the seas previously acquired through war. The further development of this train of thought would result in the defendant Schacht being charged with the fact that his struggle for colonies logically depended on the planning of a war of aggression. This is a false conclusion. I think that Justice Jackson's conception of colonial policy is too imperialistic. Anyone desiring colonies for his country, without dominating the world or even the sea, bases his colonial activity on a lasting state of peace with the stronger sea Powers. He must believe in peace with these Powers. Germany also possessed colonies from 1884 until the First World War; her merchant marine carried on the necessary traffic with these colonies. Her merchant marine before this war would also have been sufficient. The use of aeroplanes, in reply to Justice Jackson's question, would not have been essential. Nothing supports the presumption that in his desire for colonies Schacht would have striven to eliminate foreign naval supremacy by means of war. In view of his general conduct, one can hardly consider him as foolish as all that.

France and Holland likewise possess colonies, the sea routes of which they certainly do not control. This charge of the prosecution is therefore inconclusive. Moreover, the Tribunal know that during the years before the war nearly all the statesmen of the victorious Powers were sympathetic to these colonial aspirations of Germany, as is shown in many of their public speeches.

I come now to the subject of rearmament, i.e., to the activity of Schacht in his capacity as President of the Reichsbank and Reich Minister of Economics until 1937, i.e., up to the time when he changed from a loyal servant of Adolf Hitler to a traitor against him, and took to the dark ways of artifice and dissimulation while making preparations for an attempt on his life.

The prosecution considers the violation of the Versailles Treaty, the Locarno Pact and of other treaties as indirect proof, that is, as circumstantial evidence, of his criminal intention to wage a war of aggression. This involves first the question of whether any treaty violations took place and, if so, whether these treaty violations must be judged as indications of an intent to wage a war of aggression on the part of members of the Reich Government, Schacht included. It is impossible and also unnecessary to discuss exhaustively in this plea the problem of whether actual treaty violations were committed and to what extent. My colleague Horn has already touched upon this question. A short remark can serve to show

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at least the problematical nature of this question. This again is important for proper evaluation. There are no lasting treaties at all, not in the domain of civil jurisdiction and still less in the domain of International Law. The clausula rebus sic stantibus often plays a much more important role in the domain of International Law, i.e., the political intercourse between nations, than in private dealings between individuals. One must be very careful not to apply offhand the relatively narrow principles of civil law to the breadth and width of International Law. International Law has its own dynamics. The highly political intercourse between nations is subject to other juridical aspects than the commercial and personal relation between individuals. The most striking proof of the correctness of this thesis is the juridical basis of the Indictment particularly in so far as it deals with the sentence "nulla poena sine lege poenale" and demands instead of sanctions the individual punishment of the leading statesmen of an aggressor nation. He who affirms the conception of the prosecution in this respect acknowledges the dynamics of International Law and the fact that International Law develops according to a process of its own.

History has taught that treaties, based on International Law, mostly do not come to an end by a formal repeal, but die due to the new course of events. They inevitably fall into oblivion. In certain instances, one might be of a different opinion as to whether this is the case or not. This does not alter the basic truth of this fact. The militarisation of the Rhineland and the introduction of universal conscription, the extent of rearmament which Schacht approved of and strived for, the voluntary "Anschluss" of Austria to Germany, which was also basically desired by Schacht, certainly are offences against the meaning and text of the above-mentioned pacts, particularly the Versailles Treaty. If, however, such violations are only answered by formal protestations, and otherwise very friendly relations continue to exist and the offending nation is even accorded marks of honour; if agreements are concluded which alter the basic stipulations of such a treaty, as, for instance, the Naval Agreement with Great Britain, one can very well take the view that because of all this such a treaty is slowly reaching a state of obsoleteness and extinction, or that such a point of view is at least justified.

I beg you to consider that the prerequisite for the conclusion of an armament pact, as for instance the Naval Agreement with Great Britain, is military sovereignty of both nations. The denial of this sovereignty in the case of Germany was, however, one of the main aspects of the Versailles Treaty. I do not wish to speak here about the justice or injustice of this Treaty. I know the Tribunal's wish or rather prohibition in regard to this matter, and of course I shall observe it. But I must and I may speak about the legal possibility and therefore the innocence, criminally speaking, of Schacht's personal opinions on the question of treaty violation. Even if, therefore, one still wished to defend the point of view that the said treaties have not become obsolete, one cannot, at least as far as its honesty is concerned, doubt the justification of a contrary opinion. But if this is answered in the affirmative, these treaty violations are no longer any proof of the criminal intention of a war of aggression. But that is the only point in question. For the violation of treaties, as such, is not yet considered a punishable act by the Charter.

Here, too, Schacht can justify his good faith by referring to the same or similar views on the part of leading foreign statesmen, who by force of logic considered it to be out of the question from the very beginning to suspect a German will for aggression. Here again I must limit myself to a few instances, as a complete enumeration would exceed the time limit of this plea.

The first of the violations of the Versailles Treaty is supposedly the reintroduction of national conscription. With regard to this measure, the British Foreign Minister, Sir John Simon, with a statesman's far-sighted objectivity, gave the following reply which was universally made known in reports by the Press and radio, and which therefore is valid as legal evidence:

"There is no doubt that an agreed reduction of the armaments of other big nations was to follow upon the forced disarmament of Germany."

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This remark contains a confirmation of the judicial point of view I developed a while ago, in spite of the criticism of Hitler s action that follows. The same applies to the fact that the visit of Sir John Simon and Anthony Eden to Berlin took place eight days after this so-called treaty violation, namely on 24th March, 1935. It would not have taken place if this measure of Hitler had been considered abroad as militarily aggressive. I shall make only a short reference to the history of the treatment of this question at the Council of the League of Nations, since it is well known. Should Schacht, as a German and a German Minister, judge it in a different manner from that of the foreign governments?

A second treaty violation by Hitler was the occupation of the Rhineland, also in March, 1935. This action did not only violate the Versailles Treaty -

THE PRESIDENT: The date of the occupation of the Rhineland was not March 1935 but March, 1936.

DR. DIX: I cannot ascertain that at the moment.

The point in question is the occurrence of this action, namely, the occupation of the Rhineland. This action was not only a breach of the Treaty of Versailles, but also of the Locarno Pact; that is, of an undoubtedly voluntarily concluded treaty. Two days later, Mr. Baldwin stated in the House of Commons, in a speech made public and therefore valid as legal evidence, that, while Germany's conduct could not be excused, there was no reason to assume that this action contained a threat of hostilities. Was Schacht, a German and a German Minister, to take a different and more sceptical attitude in regard to the aggressive significance of the act than foreign statesmen? And particularly when he was forced to observe a fact which is now history and is universally known, that ten days after this breach of treaty the Locarno Powers, apart from Germany, submitted to the Council of the League of Nations a memorandum which proposed the reduction of the number of German troops in the Rhineland to 36,500 men, and was also intended as an attempt to avoid the strengthening of the SA and SS in the Rhineland and the erection of fortifications and aerodromes. Should this memorandum not be interpreted as a ratification of an alleged breach of the treaty?

A third breach of the treaty was the fortification of Heligoland, which was hardly observed by the contracting parties, and called forth from Eden, in a public speech to the House of Commons on 29th July, 1936, which has now become history, merely the remark that it was not considered favourable to increase the difficulties of the proceedings by individual questions like the one under discussion. Was the German Minister Schacht to take another and more rigorous attitude?

And what about the terroristic annexation of Austria in March, 1938, when, moreover, Schacht was no longer Reich Minister of Economics? If foreign countries had gathered from this action the conviction that Hitler was preparing a war of aggression, they would not have abstained from threatening to use force. Was the German Minister Schacht to have a different opinion and endorse it? He did, in fact, have a different opinion at the time and was already eagerly at work with Witzleben and others to eliminate Adolf Hitler and his regime by means of a putsch; an effort on the part of these patriotic conspirators which was frustrated, as the unequivocal testimony of witness Gisevius has shown, because Hitler was able to record one success after another in foreign politics.

I merely remind you of the unequivocal evidence of Gisevius regarding the effects of the Munich Agreement on the strength of the opposition group of which Schacht was a leader; I remind you of the evidence of Gisevius regarding the warnings and hints in this connection which were sent beyond the German frontiers to responsible personalities of foreign countries. Is it fair to require of the German Minister Schacht a more critical attitude in respect to those political developments than that of foreign countries whose interests had been injured? As we know from Gisevius, from Vocke and from all the affidavits submitted, he did have this critical attitude from 1937, in which year he took to the dark ways of a conspirator. I remind you of his first contact with the then General von Kluge. I could give

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many examples such as those just mentioned. I do not criticise this attitude foreign countries; that is not for me to do, quite apart from the fact that I have a complete understanding for this pacifist attitude shown by countries fully aware of their responsibilities. It is, however, my duty to point out that no warlike intention can be imputed to Schacht on account of his opinions and attitude, when the same opinions and the same attitude can be identified as belonging to the foreign countries whose interests were threatened. If foreign countries could entertain the hope of maintaining further friendly relations with Hitler, the same right must be conceded to Schacht, as long as he claims the same right. He does not claim it for himself, not after the Fritsch crisis of 1938 at the latest.

After that time he had, unlike foreign countries, clearly perceived the danger, which fact according to the evidence of Gisevius is undeniable, and he personally did all he could at the greatest risk of liberty and life to maintain peace by attempting to overthrow Hitler. The fact that all these putsch-actions before the war and after the outbreak of war were unsuccessful cannot, according to the evidence submitted, be considered as his fault. The responsibility for the failure of this German resistance movement does not lie with the latter, but elsewhere, within and without the German frontiers. I shall return to this later.

There remains, therefore, the fact of rearmament as such. Here, too, I can refer essentially to the statements Schacht made in justifying himself during his cross-examination. This was exhaustive and a repetition would be superfluous. It is, therefore, also completely superfluous to enter into an academic discussion as to whether Schacht's views were right; that is to say, whether it is right that a certain amount of military strength sufficient for defensive purposes is necessary for any country, and was particularly necessary for Germany, and whether he was correct in his opinion that the non-fulfilment of the obligation to disarm by the parties to the Versailles Treaty justified the rearmament of Germany. The sole point in question is whether these opinions and motives of Schacht were honest or whether he pursued secret aggressive intentions under cover of this defensive armament. But these proceedings have established absolutely nothing to disprove the honesty of his opinions and motives. Of course, one can question whether the quotation "si vis pacem para bellum" has an absolute validity or whether, objectively, any heavy rearmament does not carry an inherent danger of war, since good armies with competent officers naturally strive for possibilities of real action. Of course, one can defend the thesis that moral strength is stronger than any armed strength. The cohesion of the British Empire and the world-wide influence of the Vatican's foreign policy could perhaps be cited as proof of this. All these questions carry a certain relativity in themselves; at any rate, one thing is certain, even today: in all large countries of the world, the warning is constantly repeated that one must be militarily strong to preserve peace. Nations whose individualism and love of liberty rejected universal conscription and a strong standing army now do the contrary and honestly believe that they serve peace thereby. Let us take as an example a nation whose love of liberty absolutely no one in the world, even the most mistrustful, can question, namely Switzerland. Even this peace-loving nation has always taken pride in maintaining the militarily defensive capacity of its people, just to protect its freedom and independence in a peaceful manner. One may academically call imperialistic this idea of discouraging foreign aggression by the maintenance of a strong defensive army. It is, at any rate, honestly entertained by peaceful and liberty-loving nations, and perhaps serves the cause of peace more effectively than many so-called anti-militaristic and pacifist doctrines. This reasonable point of view has really nothing to do with militarism. He who still today recognises this viewpoint as justified for great and small nations cannot contest the honesty of this representation on the point of Schacht in the years 1935 to 1938. I have no more to say about this.

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