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-Sixth Day: Thursday, 25th July, 1946
(Part 7 of 9)

[DR. SEIDL continues.]

[Page 367]

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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