Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-213.05
Last-Modified: 2001/02/21

[DR. KUBUSCHOK, Continued]

The law of 3rd July, 1934, by which the measures of
30th June were justified, is considered by the
prosecution as the first law of flagrant injustice, by
which crimes were subsequently sanctioned. Here also
one must take the view that the measures of 30th June,
1934, had no relation to the planning of a war of
aggression. What Roehm himself planned and to what
extent he worked with any of the Reichswehr agencies
cannot be determined. In any case, the elimination of a
man like Roehm and his followers cannot be considered
as the elimination of an obstacle in the way of a war
of aggression. If other Hitler opponents were killed,
who certainly had nothing to do with Roehm, then that
is plainly a case of murder, but here too, especially
in view of the personalities concerned, this cannot be
brought into relation with a war of aggression.

The law itself, in substance, exempts from punishment
only those who assisted "in defeating the aims of high
treason and treason." Thus, the law does not cover
those cases which concern persons outside the "Roehm
circle." Some of them were sentenced, and some Hitler
saved from punishment by virtue of his right of
quashing proceedings against accused persons
(Abolitionsrecht).

In this connection I refer to the affidavits of
Meissner and Schwerin-Krosigk, as well as to the
statements of the witness Schlegelberger. Most of the
ministers knew that tension existed between Hitler and
Roehm. The events themselves surprised them. The
statements concerning the events which Hitler made at
the Cabinet meeting of the 3rd July, 1934, were
essentially the same as his declarations made to the
Reichstag meeting of 13th July, 1934. On the basis of
this description

                                             [Page 206]

the ministers could not help being of the overwhelming
opinion that it was really a case of high treason, and
that the immediate defensive measures taken by Hitler
were necessary in order to prevent the revolt from
spreading. Hitler admitted himself that some excesses
had occurred and that persons were seized who had
nothing to do with the revolt. For these cases he
promised a legal inquiry.

If the law, in its wording, actually limited itself to
the persons who participated in the revolt, then the
ministers thought that they could answer for this law.
One may have misgivings about this law, but one must
not disregard the fact that by the crushing of this
revolt it could be thought that a state of constant
disorder and acts of violence by the Roehm followers
were done away with once and for all. Therefore, one
cannot conclude from this law that it would be an
accepted rule in the future that measures which were
not justified by formal law would be sanctioned
afterwards and placed outside the regular channels of
law. It may be advanced that one wanted to do away
legally and once and for all with this question of
unrest, particularly as the guilt, in the cases dealt
with by the law, appeared to be evident. In any case,
many at that time interpreted this legal treatment of
the case to mean that the principle of the obligation
to prosecute political crimes also was maintained.

Those laws have been specially singled out by the
prosecution which are connected with rearmament, and
for this reason alone are alleged to point to the plan
for an aggressive war. In this connection the
prosecution mentions the formation of a Reich Defence
Council in April, 1933, and the two secret Reich
defence laws of 1935 and 1938.

In his testimony the defendant Keitel stated that as
early as 1929 an interministerial working committee had
been formed to deal with questions of Reich defence.
This committee was not in the least concerned with
operative or strategic questions or with questions of
armament or procurement of war material. On the
contrary, it dealt exclusively with measures which had
to be taken in the civil sector in the event of the
Reich being drawn into a war. Chief among the measures
of this category were the preparations for evacuation
in case of war - undeniably a defensive measure.

There was no change in the technical work of the
Committee when in April, 1933, instead of the voluntary
collaboration of individual departmental chiefs of the
ministries, every minister was obliged to send an
expert to the Commission. It was only for this purpose
that the ministers grouped together to form the Reich
Defence Council. This Council never worked as a group
or held consultations; the work was done in the same
manner as hitherto on the Reich Defence Committee. A
survey of the work it did can be found in the
Mobilization Book for Civilian Authorities, published
in 1939, which contained a list of the administrative
measures to be taken by the civil authorities in case
of a mobilization. The contents of the book in no way
show an aggressive intent. The preparations that were
made were obvious State security measures for the event
of war. One cannot conclude either that a war of
aggression was being planned because the work of the
Committee was kept secret. It is only natural and a
generally accepted fact that all measures, even those
for the defence of a country, are not revealed to the
public.

The work of the Reich Defence Committee went on
continuously until the outbreak of the war. It did not
change even when the unpublished Reich Defence Law of
21st May, 1935, finally gave a legal basis to the Reich
Defence Council, which had been founded in April, 1933,
through an internal Cabinet decision.

As the interrogations of Goering, Lammers, Schacht,
Keitel and Neurath have shown, this Reich Defence
Council did not hold a single meeting. There was not a
single conference, and the procedure of circulating
questionnaires to consult members was also not used. It
merely carried on the work of the Reich Defence
Committee, which has already been discussed here. The
Reich Defence Council was merely the covering
organization for the Committee.

                                             [Page 207]

By the Reich Defence Law of the 21st of May, 1935, the
position of the Plenipotentiary for War Economy was
also created. He was given the right to organize the
economic forces for the event of a war, and to give
directions for this end. Actually, Schacht, as
Plenipotentiary for War Economy, did not take any
measures towards this end in his official capacity. In
practice, already in 1936, the tasks relative to this
objective were given to the Trustee of the Four-Year
Plan. Here again it must be pointed out that
organizational and precautionary measures for the event
of a war are an ordinary procedure. By themselves they
cannot in any way be considered proof of aggressive
intentions. To take economic measures for the event of
a war was an absolute necessity for Germany, owing to
her dangerously exposed economic and geographical
position. One could not afford to wait until the
outbreak of a war to make the organizational
preparations. From the start, an uncontrolled German
industry would not have been able to survive in case of
war.

In condemning this purely defensive preparation the
prosecution stated that defensive measures were
uncalled for because no country had the intention of
attacking Germany. In answer to this, it must be
pointed out that it is the responsibility of the
leaders of a country, with regard to vital questions,
to take precautions for even the remotest
eventualities. There is never a time when a country can
completely exclude the possibility of sooner or later
being drawn into a war from the outside.

As changes came about in the leadership of the armed
forces through Hitler's decree of 4th of February,
1938, at first it was not noticeable, for the Reich
Defence Council never met, that its personnel
composition, according to the Reich Defence Law of
1935, was no longer in line with this decree. It was
only when Keitel, as Head of the Council, pointed them
out that these discrepancies were removed by the new
Reich Defence Law of the 4th September, 1938, and at
the same time - in the Nazi regime people were generous
as regards organizational matters and they loved
exaggeration and artificial distension - a huge
apparatus was set up. The Reich Defence Council was
reconstituted; the Committee suffered some change in
its personnel. In addition to the "Plenipotentiary for
War Economy," a "Plenipotentiary for Administration"
was created. Both of these together with the Chief of
the OKW formed a "Three-man-Council"; and most of the
other ministers were subordinated to them in separate
groups. The whole apparatus, with the exception of the
Committee, was to start to function only after the
outbreak of a war, when the extensive legislative
powers of the "Three-man-Council" were also to become
effective. However, when the war did break out, Hitler
did not concern himself with these preparations on
paper, but set up the Council of Ministers for the
Defence of the Reich, which virtually replaced the
organizations existing hitherto. Only later, when the
legislative machine of the Council of Ministers was
found to be too slow, did the authority of the "Three-
man-Council" appear again, and decrees were based on
its decisions. Even if it was the duty of the "Three-
man-Council," just as generally it is the duty of every
department, to have ready in its own particular field
those measures which are necessary in a purely
defensive sense, one cannot infer from this any
aggressive intentions, or even the consciousness of an
approaching war. Such general war preparations are of
necessity based on the supposition of the possibility
of war. There is no indication in them of aggressive
intentions. If there were, then one would be forced to
the conclusion that every country was latently planning
aggression, since no State can afford not to make such
preparations.

The "Three-man-Council" did not hold any conferences
until the outbreak of the war; and therefore could
neither have worked towards a war nor made any plans
for a war of aggression. The same is true of the Reich
Defence Council. It did meet twice, but how very
unimportant these meetings were, and what is more, how
little suited they were, for the drawing up of secret
plans, is shown by the fact that of the 12 members of
the Council only a few were present, whereas there

                                             [Page 208]

was a very large number of experts from the individual
departments. The large number of persons who attended -
at one meeting about 40 and at the other as many as 70
- would have made it impossible to discuss a subject
which required to be handled so discreetly.

As a matter of fact, the business of these two meetings
was limited to the defendant Goering announcing part of
the contents of the unpublished Reich Defence Law.
Apart from that there were no meetings or written
discussions with the members of the council.

Therefore, in summing up it can only be said that an
organization had been created for the event of a war,
but that in practice it never functioned. If the
purpose of this organization really had been the
preparation of a war of aggression, then, in view of
the great number of tasks which it would have been
necessary to undertake because of the time factor, the
organization would have had to start work in peace
time.

The "Law concerning the Rebuilding of the Wehrmacht" of
16th March, 1935, and the "Military Service Law" of
21st May, 1935, have also been made the subject of
argument by the prosecution. I do not wish to discuss
at this point whether these laws constitute a violation
of the Versailles Treaty or not, since the only thing
that is relevant for the judgment is whether the fact
of the issue of the laws can be considered as a proof
of plans for aggression. The necessary publication of
the entire contents of these laws alone shows that they
were not the basis for such a plan. The limitation to a
comparatively small number of divisions in the law of
16th March, 1935, excludes any idea of a war of
aggression.

Neither is the introduction of compulsory military
service an indication of a plan for aggression.
Compulsory military service was introduced as in most
countries, and apart from it resulting in an increase
of fighting reserves, it undoubtedly had an ideological
basis.

In order to judge these laws which concerned the
military organization, it must be borne in mind that
the introduction of compulsory military service in
March, 1935, called for a new set-up of the military
organization. In previous years practically nothing had
been planned in this field. It was not surprising,
therefore, that a decree was now issued containing the
principles required. This complete and necessary
reshaping of an organization demanded the passing of
the laws in question, but it provides no grounds for
concluding that a war was being planned.

As regards the question of whether all the Cabinet
members were informed of the situation, there need be
no discussion as to whether at the outbreak of war
German armament was really ready for an attack or not.
The legal basis - it was only from this aspect that the
majority of Cabinet members had to deal within their
departments with questions of rearmament - could give
no comprehensive insight into the actual extent of
rearmament. They were dependent upon whatever
information was furnished them. Judging by the extent
of the rearmament, the generals themselves were of the
opinion that it could only have a defensive nature.
Hitler himself told them nothing about any aim at an
aggressive war.

Finally, mention must be made of the law of 13th March,
1938, which announced Austria's Anschluss to Germany.
This law had not been agreed upon by the whole of the
Cabinet members. The ministers had not previously been
informed in any way of the march of events. They merely
received word in the usual way about the entry of the
troops. As regards the other laws brought up by the
prosecution, the idea that they have any connection
with the planning of a war of aggression is, in my
opinion, so far-fetched that I need not go into them in
detail. There are factual reasons for the creation of
these laws which cannot be denied. These are contained
in the official preamble of the Bills, as shown in my
document book. These preambles were added to the Bills
in the course of circulation, and informed the
ministers of the meaning and purpose of the laws.
Moreover, these laws were issued at a time when, as I
have explained above, there was no longer any cohesion
among the Cabinet members. This is especially

                                             [Page 209]

true of those laws which were issued during the war and
which have not been mentioned in detail by the
prosecution. At this period the Cabinet can no longer
be considered as functioning collectively in any way.
At that time, the complete organizational reshaping of
the legislative procedure was already visible to those
outside by the fact that the essential laws were issued
by the newly created offices which were endowed with
full legislative powers and set up for the different
spheres of activity. Stress was laid on the Fuehrer
decrees and the Fuehrer orders, especially as regards
all fundamental and general political questions. From
the very start, this excluded the ministers from any
other functions save the purely departmental,
subordinate work. The idea of a Cabinet working in
unison, with the members making free decisions, had for
a long time been nothing but a myth. Consequently, the
responsibility for each individual law can be held to
the charge of the individual only or of those ministers
who participated in making it, but not to the charge of
the Cabinet.

The prosecution sees in the activity of the Reich
Cabinet the aim to commit the crimes mentioned in the
Charter, more especially in the fact that a close
connection existed between the highest Reich offices
and the Party. Individual ministers are alleged to have
held the highest Party offices. The "Law to Ensure
Unity of Party and State" was said to bring about co-
operation between the Party and the State offices. By
this infiltration of the Party into government
leadership, Party ideas had actually become part and
parcel of government leadership.

In reality, neither the "Law to Ensure Unity between
Party and State" nor later decrees could secure full co-
operation of the Government with the Party. It was here
that the differences of opinion between the ministers
and the leading party offices were most marked. The
ministers looked on their tasks in the administration
as purely matters of State. The Party had to struggle
constantly, supported by Hitler's decrees, to have a
bigger say in the affairs of the State offices. The
witness Schlegelberger has given a clear account of
this. He declared that a considerable part of the work
in the State offices, especially in the Ministry of
Justice, of which he himself was the head, was directed
to warding off the repeated attempts of the Party
offices to make their influence felt. We have seen
Fuehrer decrees which were supposed to accomplish this
up till the very end of the war, an indication that the
Party never fully succeeded in its intended penetration
into the government administration. It is, therefore,
not possible to follow the prosecution in its claim
that owing to its permeation by the Party the State
apparatus was really an instrument of the Party.

In summing up I, therefore, come to the conclusion that
the proceedings have in no way proved that collectively
the members of the groups included in the indictment
ever desired a war of aggression and its criminal
consequences, as stated in the Articles of the Charter,
or that they even set it up as their goal and directed
all their activities towards it. As long as one can
speak at all of a certain cohesion in the Cabinet -
until the death of Hindenburg in 1934 - probably not
even Hitler had any clear conception of this aim. Even
if he himself had perhaps reckoned with this
possibility and had taken it into account in his
decisions, nevertheless all the circumstances show that
the group of people indicted here were the least
suitable to be informed of such plans or possibilities.
The fact that on the 5th November, 1937, Hitler did not
consider he could have sufficient confidence in the
Cabinet to reveal to it his intentions, that he made
even greater efforts to divide the Cabinet, and carried
his secrecy so far as to withhold from the minister
himself preparations which concerned a certain
department, as in the case of Darre, divulging them
only to a competent expert official, shows quite
plainly that collectively the Cabinet neither had the
knowledge of the alleged aim nor could have directed
its activities towards it. 

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