Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-182.12
Last-Modified: 2000/10/11

Even today we find the individual Occupying Powers using
this procedure in a much severer form in exceptional cases.

In July, 1944, as a result of a Fuehrer order, the regular
courts were abolished and saboteurs and members of the
resistance were otherwise dealt with, in spite of the
protests of the defendant.

One of the main points of the prosecution is the question of
hostages, and I must therefore discuss this in detail. Dr.
Nelte has already generally discussed its legal aspect and I
refer to his statements.

In RF 879 the prosecution has singled out two particular
cases. The so-called hostage shootings at Rotterdam and the
shootings after the attempt against the Higher SS and Police
Leader Rauter. Already in the course of his first
interrogation by the Prosecutor, the defendant, in
connection with the first case, spoke of the Wehrmacht's
demand for 25 to 50 hostages. The witness confirmed that
these hostages had been demanded bay the Wehrmacht, that
through the defendant's influence this number was finally
reduced to five, and that the Higher SS and Police Leader
was entrusted with the shootings.

The relations between the Wehrmacht and the Reich
Commissioner, as well as the relations between the Wehrmacht
and the police, were regulated by the decree dated 18th May,
1940 (Reich Law Gazette No. 1, page 778, 1376-PS, paragraphs
2-3)

In order to prove the defendant's guilt the prosecution
submitted the accusation but not the testimony of General
Christiansen. In the course of the interrogation the witness
did not take the oath.

The record proves that:

  (a) The order was issued by the Wehrmacht on account of
  serious cases of sabotage and was analogous with the so-
  called "Law Governing Hostages" promulgated in Belgium
  and France.
  
  (b) The hostages were then arrested by the German Police
  on the order of the Commander-in-Chief of the Wehrmacht
  in Holland. "An order is an order."
  
  (c) The German High Command or Command West insists on
  the execution of the orders in spite of all
  representations.
  
  (d) Execution by the police.
  
  (e) Proclamation I made in the Juridical Department of
  the Headquarters of the Wehrmacht in Holland.
  Proclamation II drafted by the Higher SS and Police
  Leader.

Would the Tribunal consider the argument for the
justification of the defendant to be sound in the event of
his using the arguments of General Christiansen for his
justification?

As to the second so-called hostage case, it concerns the
consequences of an attempt directed in March, 1945, against
the Higher SS and Police Leader, SS Obergruppenfuehrer
Rauter, the highest police officer in the Netherlands, who
was directly subordinated to Himmler. If we recall the
consequences when in 1942 the tyrant Heydrich was murdered
by the Czech Patriots, we can well imagine how Himmler in
1945, at the height of his power, clamoured for the avenging
of the plot against one of his nearest and most important
officials. It is likewise understandable that the defendant
too, as head of the administration, ordered deterrent
measures to be taken, under the heading of "general
prevention" after an attack had been made on one of his
general commissioners: But he did not demand any hostages;
he merely asked for the execution of sentences passed in
legally conducted criminal cases. No. RF 879 proves the
truth of these assertions inasmuch as the witnesses
Schongarth, Lages, Kolitz and Gerbig unanimously confirm
that only men already sentenced to death were shot, and not
200 but 117, some of them possibly before the date
originally fixed for the execution. This also is confirmed
by the Criminal Commissioner Munt in D II of the report of
the Dutch Government, and likewise by Dr. Friedrich Wimmer,
who was heard as a witness before the Court. In this case it
was not at all a question of hostages in the real sense, but

                                                  [Page 175]

the justifiable execution of saboteurs, plunderers, etc.,
from the point of view of the occupation, and which was
called the shooting of hostages in order to intimidate the
population. The fact that the defendant succeeded in getting
the number of 500 real hostages as originally demanded by
Himmler reduced to 117 orders of execution can certainly not
be a reason for making him responsible for Himmler's
cruelties.

The prosecution furthermore asserts that the defendant, in
his capacity of Reich Commissioner, had agreed to, directed
and supported the deportation of an enormous number of
Dutchmen to Germany: The principle which the question of the
use of foreign workers involves has already been thoroughly
discussed by other defence counsel. May I be allowed to add
a few remarks on this point of the Indictment. According to
information which I received from the Office of Statistics,
the pre-war unemployment figure of between 300,000 and
500,000 men out of a population of 9 millions was a chronic
situation in the economic life of the Netherlands, which was
more or less rightly considered to be one of the richest
countries of Europe. When the country was occupied and the
Reich Commissioner took over the governmental power, he
considered it his duty to deal with unemployment in the
interests of order and peace.

It was evident that this could not be achieved according to
liberal principles, because even in countries adhering to
the liberal economic order, the whole economy was directed
to meeting the requirements of war conditions. Until 1943
the employment of labour was based on the voluntary
principle. The defendant himself stated that a certain
amount of economic pressure was used. He had found Minister
Speer in particular very much in favour of his plan to
transfer German undertakings from the Reich to Holland, thus
enabling the workers to be used in their home country.

In 1943, three age groups of young unmarried men were called
up by the Labour Offices, but not by compulsion. When in
1944 the Reich demanded 250,000 workers, the Reich
Commissioner refused, and this has been confirmed by
Lammers. The witnesses Hirschfeld, Schwebel and Wimmer have
confirmed that the "manhunt action" of the autumn of 1944,
in the course of which all men of military age among the
population were rounded up, was a drive by the Wehrmacht,
for which the defendant cannot be made responsible. On the
contrary, and this fact must be recorded here, the Reich
Commissioner lessened the harshness of these measures by the
issue of 1,000,000 certificates of deferment and by pressing
for ordered transport, as well as by mobilising the workers.
And in this connection it should not be forgotten that the
steady growth of the resistance movement rightly caused the
Wehrmacht to fear lest the massing of people in the south-
west provinces might represent a grave danger to the
Occupying Power.

Seen from the legal aspect, it must be pointed out that the
defendant was bound by the orders of the central offices
within the framework of the Four-Year Plan - that but for
these orders and demands he would never have sent workers to
the Reich, also that where the execution of these orders
represented a violation of the laws of humanity, he raised
protest. In his actions the defendant upheld the laws of
humanity.

As to the prosecution's next point, the so-called economic
looting of the country, I likewise refer to the general
principles I gave at the beginning. Raw materials were
requisitioned from the very start of the occupation in
accordance with the Four-Year Plan with the help of the
Dutch authorities, who thus were able to prevent unnecessary
hardship. The defendant would naturally have preferred to
keep the stocks within the territory of his own
administration. When requisitioning had to be carried out,
the defendant insisted on fair compensation being given and
he also prevented the transfer of Dutch concerns, as for
instance the margarine factory in Dortrecht or the Leyden
Cold Storage Works. At the insistence of the Reich
Commissioner, Goering promised that the Dutch people should
not be in a worse position than German citizens, and,
therefore, as far as the defendant is

                                                  [Page 176]

concerned, it would appear that Article 53 of the Hague
Rules of Land Warfare, if not too narrowly interpreted, had
been adhered to.

The report of the Field Economy Officer with the Wehrmacht
Commander in the Netherlands, dated 9th October, 1944 (RF
132), and of Lieutenant Haupt (603-PS, 196 US) prove that
the requisitions were in the first instance carried out by
the Wehrmacht. The latter points out that the whole position
is made more difficult by the fact that Reich Commissioner
Seyss-Inquart was still in the country, although to all
intents and purposes he had resigned. This certainly shows
that as far as it lay within his power, the defendant always
tried to oppose or reduce hardship in this sphere of his
activity. In a total war, the removal by the Wehrmacht of
stocks of war material and rolling stock after the invasion,
and when the enemy was approaching, is likewise in keeping
with International Law.

The state of emergency created by the war called for the
redirection of Dutch economy in Europe. Before the war,
according to official statistics, 39 per cent of the
employed population were engaged in trade and industry, 23
per cent in commerce and transport, and 20 per cent in
agriculture. Cut off from the rest of the world, navigation
was at a complete standstill. To give an example - 60 per
cent of the trade passing through the port of Rotterdam
consisted of German goods. The highly developed agricultural
industry was based on improved and intensive cultivation,
dependent on artificial fertilizers from South America and
concentrated fodder from Canada. We have learnt from the
testimony of Dr. Hirschfeld how relatively well Dutch
agriculture and particularly the world-famed cattle breeding
industry survived the war. This was only made possible by
the understanding and collaboration of the Reich
Commissioner with the Dutch administration offices, and the
support the defendant gave them.

The spreading out of economy over the Continent of Europe,
practically the whole of which during the war was controlled
by Germany and her allies, no doubt offered good markets for
Dutch trade and industry. It was, therefore, natural that
also as regards finance the economy had to be brought in
line with conditions in the German Reich, or rather in the
European economic area. It was necessary to regulate the
financial economy if only for reasons of price policy. It
would exceed the limits of this trial to state more details
here.

May I only point out to the prosecution that the defendant
had no part in fixing the amount of the occupation costs,
and was not even able to examine them. Only the civilian
budget of the Reich Commissariat was settled by the Reich
Commissioner and had to be approved by the Reich and audited
by the Reich Treasury. In agreement with the Dutch agencies,
civilian requirements were set at 3 million guilders per
month, which was not exceeded. On the contrary, at the end
of 1943, a saving of 60 million guilders had been effected,
and this remained in the Netherlands.

The lifting of the customs barriers in inter-State traffic
was justified by the joint price policy and could only
benefit the Netherlands. Likewise the ratio of the mark to
the guilder was also fixed by mutual agreement. A difference
arose for the first time when the blocking of foreign
exchange was lifted. Here the views of the former Dutch
General Secretary Trip and those of General Commandant
Fishbock differed. The defendant, who after all was not a
financial expert, submitted this important question to the
central Reich authorities for their decision, and the
defendant Goering has expressly stated during the hearing of
the evidence that he decided in favour of Dr. Fishbock's
opinion against the opinion of the Reich Minister of
Economics, Funk. The defendant therefore cannot be charged
with criminal responsibility, not even that of a culpa in
eligendo, if in the place of General Secretary Trip, who had
resigned, he now appointed Rost van Tonningen, who was a
former Commissioner of the League of Nations and therefore a
first-class financial expert.

The defendant Funk has also testified here that he always
considered the clearing debts as real debts. In the
Netherlands Government Report it is pointed but that

                                                  [Page 177]

the financial demands of the Reich amounted to approximately
the same in all the occupied Western territories and that
only the methods differed. If Germany had won the war, the
method employed in the Netherlands would have produced the
result that the Netherlands would have had a real claim
amounting to 41 billion guilders against the Reich. The
whole question therefore is not a matter for a criminal
trial, but rather is one that should be dealt with in the
peace negotiations. Furthermore, an exact account was kept
of everything. It even went so far that every time a member
of the Wehrmacht boarded a tram with a pass, the conductor
of the Netherlands Tramway Company always made a careful
note of it.

As far as the alleged looting of museums and libraries is
concerned, as well as the looting of the Royal property, to
save time let us refer to the evidence which proved beyond
doubt that the defendant was particularly mindful of the
need to safeguard the world-famous public art treasures and
that he reduced any arbitrary demands of the Reich Offices,
if there were such, to a minimum.

In so far as any objects not essential for the conduct of
the war, such as, for instance, art treasures, libraries,
etc., were taken away, the defendant had no part in this.
The few pictures which he bought for Vienna he acquired in
the open market. As for the Royal property, the instructions
he issued were such that the confiscation of this property
was no more than a demonstration. That this is true is shown
in the Dutch Government Report. The Rosenthaliana library
which has been mentioned so often did not reach the Reich,
as the defendant had it stopped at Groningen after it had
been removed against his will. The case Arnhem would
likewise appear to have been cleared up by the witnesses Dr.
Hirschfeld and Wimmer, and the report of the Field Economic
Detachment. (Doc. 81.)

The Jewish question has also a certain connection with the
economic problems. Before I deal with this main point I must
make the position of the police in the Netherlands clear.
The Prosecution seeks to establish that the police, and by
that is meant also the German Police, particularly the
Security Police, was under the defendant. This attempt falls
short when it is remembered that all the signatories with
the exception of the Soviets hold that the police is
actually a part of the civilian, particularly the domestic,
administration. The situation in Germany was this: de facto,
and not de jure, Himmler was independent, more powerful even
than any other Minister, although he was nominally State
secretary of the Ministry of the Interior. The strictly
disciplined and centrally directed SS was subordinate to him
in his capacity as Reichsfuehrer. The defendant Keitel
testified on the 5th April, 1946, that from the outbreak of
war the SS became more and more an independent power factor
in the Reich. He and those who worked with him had no full
knowledge of the extent of Himmler's powers, and Himmler and
Heydrich had usurped the jurisdiction over life and death in
the occupied countries by the frequently mentioned Fuehrer
Order.

What was the situation in the Netherlands?

1. The Fuehrer decree of 18th May, 1940, already shows that
the German Police was not part of the Reich Commissioner's
organization, nor was it subordinated to it. For it says in
the decree:

  "The police is at the Reich Commissioner's disposal",
  which would not have been necessary if it had been a part
  of the Reich Commissioner's office.

Thus even though the Reich Commissioner is the supreme
governing power in the civil sphere, the police is not a
part of it.

2. In Decree No. 4 the Reich Commissioner nominated the
administrative agencies, and in such a way that the Dutch
could clearly see how it concerned them, without being
affected by the splitting up of the Reich authorities. As
regards the police, that is, the German and Dutch Police, a
second General Commissioner was appointed for security
affairs (Higher SS and Police Leader). According to Article
5 of this decree the Higher SS and Police Leader has under
his command:

(a) The German Police and Waffen SS (for the Dutch this
order of things was declarative, for the Higher SS and
Police Leader was appointed by the

                                                  [Page 178]
  
  Fuehrer on Himmler's recommendation, without the Reich
  Commissioner being consulted). Rauter presented himself
  to the Reich Commissioner as having been already
  appointed, and the Reich Commissioner would never have
  been able to appoint the Commander of the Waffen SS,
  which opinion is also shared by the prosecution.
  
  (b) The Dutch Police (this order of things was
  constitutive, because the Reich Commissioner was
  responsible for the Dutch Police).

The Dutch witness, Dr. Hirschfeld, who was General Secretary
throughout the occupation, definitely confirmed that Rauter
was directly subordinate to Himmler, and that the apparent
unity of the police and administration, according to the
decree, did not exist in reality.

On Page 21 of his book Axis Rule in Occupied Europe, Raphael
Lemkin defines the task of the police as being the
liquidation of politically undesirable persons and Jews,
just as the main responsibility for the seizure and
deportation of the workers in the occupied countries was
borne by the police.

THE PRESIDENT: Would that be a convenient time to break off?

(The Tribunal adjourned until 22nd July, 1946, 1000 hours.)

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