Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-172.02
Last-Modified: 2000/09/15

DR. STAHMER, Continued:

How rigidly Hitler followed this principle can be seen from
the fact that, after the address of 23rd May, 1939 - as
Milch stated in his testimony - he forbade expressly all
discussions by those present, even among themselves.

That Hitler was irrevocably resolved to an aggressive war
could not be deduced by the participants from the said
speeches and they did not deduce it. This has been confirmed
unanimously by all witnesses who were present when those
addresses were given.

At that time, Hitler had actually not yet planned a war. On
that point the testimony of General Field-Marshal Milch is
very informative. When the witness, after the speech of 23rd
May, 1939, repeatedly pointed out to Hitler in personal
reports that the air force was not ready for action with
their bombing squadrons and that the air force had hardly
any stocks of bombs, Hitler refused to give an order for the
production of bombs and remarked that their production was
unnecessary and superfluous. Hitler persisted in this
refusal, although Milch pointed out that the production
would take several months. Such an order was given by Hitler
only on 20th October, 1939.

Hitler's explanation to the commanders-in-chief can be
easily explained by the peculiarity of Hitler frequently to
develop political ideas without thinking how they were to be
carried out. In each case, his practical policy resulted
from the requirements of the actual development.

The defendant is accused of having ruthlessly plundered the
territories occupied by Germany and thus to have violated
the Hague Convention concerning land warfare. This
accusation is not justified.

During his examination, the defendant Goering has explained
in detail with convincing reasons that the Hague Conventions
on land warfare of the years 1899 and 1907 respectively
cannot be made to apply to a modern war, since they had
become obsolete and insufficient in some respects at the
beginning of World War II. At the time when they were
drafted, air warfare, economic warfare and psychological
warfare were still unknown. Total war, which put the entire,
people and the entire national economy without exception at
the service of the war, was also not known. Especially,
economic warfare was not considered at all. Because of this
gap, there is no International Law which has been generally
recognized for economic warfare. Therefore, the old
statement of Hugo Grotius applies to economic warfare, that
everything is permitted in war quod ad finem belli
necessarium est.

Naturally, this principle only applies so far as it has not
been affected specifically by qualifications through
treaties.

The following is to be said for the legal situation as it
stands:

Until the beginning of World War I, it was generally
acknowledged in International Law - in any case as far as
land warfare is concerned - that the war does not affect any
private legal relations between the citizens of the
belligerent States, that private property, on principle, was
inviolable, that the war would only be pursued with arms and
that the enemy civilian population would not be affected by
it. This method of warfare suffered a basic change at the
outbreak of World War I, when England, in the field of naval
warfare, applied her interpretation of war of people against
people. At that time, the enemy powers resorted to the

                                                  [Page 121]

policy of paralysing the entire German national strength,
disregarding all established rules of the law of naval
warfare and of neutrality law, by cutting off the supplies
of necessary raw materials and import of food. This new type
of warfare, based on the Anglo-Saxon interpretation that war
is not only fought against the fighting troops, but against
the entire population of the enemy, was also adopted by
France at the beginning of World War I. The citizen of the
enemy State is the enemy of England, his property is enemy
property which is subject to seizure by the British
Government.

With this, naval warfare was not only directed against the
combat forces, but also against the peaceful subjects of the
belligerent enemy.

This goal was achieved by the total blockade carried out by
England. The Hague Convention did not contemplate a total
blockade in the form in which it was carried out by England.
This blockade made any supplying of Germany through neutral
countries impossible.

Under these circumstances, Germany cannot be blamed for
applying to warfare on land the method used by England by
means of her naval power.

This fact leads to the following consideration:

The rules of land warfare apply according to their sense to
land warfare only. There the principle of protection of
private property dominates. In naval warfare, however,
private property is unprotected. Is it, therefore, possible
that the rules of land warfare with their restrictions apply
also to a combined sea and land war? Would it be just that
goods should be taken away from a man at sea, but he would
not be allowed to touch similar goods belonging to the one
on land who took his goods?

According to established International Law, the principle
exists now as before that private property is actually
inviolable during war. This principle only suffers exception
in so far as the Hague Convention of land warfare permits
certain encroachments on private property, and in so far as
encroachments may also have been caused by a state of
emergency in which the State may find itself, which then
would be justified to the extent in which they appear
necessary in the interests of self-preservation of the
State. Within this scope, therefore, actions are also
permitted during war which would otherwise not comply with
the laws of war, and would thus be contrary to International
Law.

By the fact that enemy warfare disregarded the established
rules of naval warfare, Germany was driven into a state of
economic emergency.

If the enemy powers had observed this established law of
naval warfare, then Germany could have supplied herself
through neutral countries, and the state of economic
emergency during the war would not have occurred.

As the enemy powers did not, however, observe the
established blockade regulations, could they expect Germany
to observe the regulations on requisitioning which form part
of the rules of land warfare?

Through the action of the enemy powers, Germany was thrown
into a state of emergency. The prerequisite for the state of
emergency excusing violation of International Law is,
according to the prevailing theory, an existing or imminent
threat of danger to the State which it is impossible to
avert in any other way, and which endangers entirely the
vital interests as well as the independence and existence of
the State.

Thus, wherever the vital interests of a State are threatened
in this manner, there prevails a national state of emergency
which has the legal effect that the State does not act
illegally when committing a violation of International Law
which is necessary for the repelling of imminent danger.

The economic situation of Germany became extremely
threatening during the course of World War II by the action
of the enemy powers. Any connection with neutral countries
was made impossible for Germany by the total blockade, thus
a sufficient supply of raw materials necessary for the
conduct of the war and of food for the feeding of the
civilian population was made impossible.

                                                  [Page 122]

Germany was, therefore, forced for the sake of supporting
her own economy, which would otherwise have collapsed, to
use the stocks of raw materials and food available in the
occupied territories, and all other items necessary for the
continuation of the war, but the interests of the population
in the occupied territories were given due consideration. In
this, the principles established in the preamble to the
convention concerning the rules and customs of land warfare,
dated 18th October, 1907, originating from the customs
existing among civilised nations, from the laws of humanity
and from the demands of public conscience, were strictly
observed. A resignation of the right to use these sources of
assistance in the occupied territories would have meant the
abandonment of the independence and existence of the State,
it would have meant unconditional submission. Emergency
which necessarily leads to submission during war is the
greatest and most genuine emergency in the life of a nation.

By referring to the state of emergency, however, only such
actions are covered which are necessary to remove danger
which could not be averted otherwise. The limitations
naturally fluctuate, and it is not always easy to determine
in individual cases whether a genuine state of emergency
exists. Here the Tribunal will have to consider in favour of
the defendant the special circumstances and the war-time
conditions which it is hard to overlook.

It has not been proved that these limitations were ignored
by the defendant intentionally or carelessly.

It must be left to the judgement of the Tribunal whether the
defendant personally can be responsible for a violation -
even one committed intentionally or carelessly - which has
been committed exclusively by him in his capacity as
plenipotentiary of the Fuehrer, or whether in such a case
there is only a liability of the State. This side is of the
opinion that in such a case there is only a State violation
of International Law, which does not involve personal
liability.

Conditions were peculiar in the Eastern theatre of war,
because there was no private economy in the East, but only a
national economy strictly regulated by a central office. The
juridical situation here was such that property of the enemy
State could generally be claimed as war loot. Extremely
careful regulations were made, which were laid down in the
so-called "Green folder". The regulations contained in this
folder did not suggest any looting or annihilation of the
population, as asserted by the prosecution. Its tenor was
rather the mobilization of economy and the rules for keeping
it going, the seizure and the orderly utilization of stocks
and traffic installations in the zones to be occupied in the
course of fighting, whereby account had to be taken of the
Russian behaviour, and the far-reaching destruction to be
expected in consequence. The folder does not contain any
order or suggestion which might convict certain groups of
the population of activities beyond the needs conditioned by
war. This decree, for which the defendant Goering has taken
full responsibility, does not furnish any reason for an
indictment.

In all of this, one must not disregard one thing:

Of a war of such gravity, such proportions, such duration
and totality, the creators of the Hague Convention certainly
never had or could have had the remotest conception. It was
a war in which nations fought for their existence or
destruction. It was a war in which all values had changed.
Thus the defendant had the right feeling when he declared:

  "After all, there is no legality in the fight for life or
  death."

From the standpoint of necessity, a justification can also
be found for the deportation of workers from occupied
territories to Germany.

In his testimony, the defendant stated in detail all the
reasons which, in his opinion, made this measure necessary.
For the rest, the defence counsel for the defendant Sauckel,
Dr. Servatius, will review these matters in detail.
Therefore, I do not need to concern myself with further
considerations in this respect.

The defendant has made an inclusive statement in regard to
the charge of plundering art treasures - a statement which
will be referred to in order to justify his conduct.

                                                  [Page 123]

In addition it will be observed that Reichsmarschall Goering
was not directly engaged in the safeguarding of art
treasures in Poland.

Not one of these art treasures did he take for his own
collection. In this respect the defendant cannot be
incriminated in any way.

By order of the Fuehrer, works of art in France which were
owned by Jews were temporarily confiscated for the benefit
of the Reich. They were considered as unclaimed property
because their owners had left the country. Of these
confiscated objects, with the express approval of the
Fuehrer, Goering received but a small part, and not for
himself personally, but for the gallery he had planned, and
in which he also intended to incorporate the works of art
already in his possession.

He wished to acquire these objects at a price established by
French art experts, and the proceeds were to be distributed
amongst the dependants of French war victims.

The juridical situation, therefore, was as follows:

The objects were confiscated by decree of the Fuehrer, for
the benefit of the German Reich. By this confiscation, the
former owners lost their right to possession, and it was
transferred to the Reich. The objects which were left him,
Goering acquired from the Reich, which was their present
owner.

The Reich obviously saw in this a step which, though it was
proved premature by the course of events, was to forestall
the peace treaty to be concluded at the end of the
hostilities when the final settlement would be made.

This is similar to the confiscations and seizures of
property carried out at present in Germany in view of the
final peace treaty.

Therefore, the question remains open whether the Reich
Government was juridically entitled to confiscate the goods
and to become their owner.

A solution to the question is no longer necessary as regards
Goering because Goering acted in good faith in the matter of
this acquisition. In his testimony, he emphasized his belief
that he was entitled to acquire these things as they had
been previously confiscated by the Fuehrer.

In consideration of these facts, there cannot be any
question of looting.

Certainly there could be no objection to the purchasing of
articles by a normal business transaction, articles which
the defendant had been offered spontaneously, and which the
sellers were only too eager to dispose of, because of the
good prices they received for them.

It is the same case in respect to the objects which the
defendant had acquired through a voluntary exchange in which
the second party to the contract enjoyed the same rights as
himself.

I will now consider the accusation of the shooting of fifty
officers of the British Air Force after their escape from
the prisoner-of-war camp Sagan.

The act of prosecution reads as follows:

"In March of 1944, fifty officers of the R.A.F., who had
escaped from Stalag-Luft III in Sagan were murdered after
their recapture." According to a later declaration of the
prosecution, the circumstances were as follows:

During the night of the 24th to 25th of March, 1944, seventy-
six officers of the R.A.F. escaped from the prisoner-of-war
camp Stalag-Luft III in Sagan. Fifty of these officers were
shot by the Security Service after they had been recaptured.

An investigation must be made on the following points: Who
gave the order for the shooting? Did Reichsmarschall Goering
play any part in this occurrence? Did he actually take part
in the drafting of the order to shoot these fifty airmen?
Did he agree to the measure, although it was a grave offence
against paragraph fifty of the Geneva Protocol dealing with
the treatment of prisoners of war?

The prosecution states that the defendant Goering
collaborated in the drafting of this order. It refers,
amongst other things, to the statements made by Major-
General Westhoff and Counsellor Wielen while they were in
British custody. But the interrogation of these witnesses in
Court, as well as the bringing forward of further evidence,
which was so carefully carried out before the Tribunal, have
revealed that the previous statements of Westhoff and Wielen
were incorrect,

                                                  [Page 124]

and, in respect to Goering's presence at the camp
conference, and his knowledge of the shooting-order, were
only based on suppositions which had their roots in the fact
that it was a question of a prisoner-of-war camp for airmen.
The result of the evidence was as follows:

At this camp conference of 25th March, 1944, Himmler
reported the escape of the seventy-six officers to the
Fuehrer. For this, Hitler severely reprimanded General Field-
Marshal Keitel. He considered the event to be of great
danger to public security, since the escaped officers might
assist the six million foreigners in Germany in the
organization of an armed revolt. Then Hitler gave the order:
"The prisoners will remain with Himmler."

Keitel definitely refused the re-transfer to Himmler of the
fifteen officers who had already been recaptured by the
armed forces and returned to the camp, and these officers
remained unharmed.

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