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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Second Day: Friday, 19th July, 1946
(Part 11 of 12)

[DR. STEINBAUER continues.]

[Page 169]

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.


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

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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.

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