Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-178.03
Last-Modified: 2000/09/19

SIR DAVID MAXWELL FYFE: Well, my Lord, I am afraid I have
not been able to collect the views of the prosecution on
that point.

My Lord, the substance of that affidavit was contained in
Dr. Kauffmann's speech. I do not think it really has any
materiality - or that there can be any objection to the
affidavit, because I am almost positive I remember this
passage occurring or an equivalent passage, giving the
defendant Jodl's views on Kaltenbrunner, in Dr. Kauffmann's
speech. My Lord, therefore, I do not think we should occupy
time discussing it and therefore I think we should let the
affidavit go in.

THE PRESIDENT: Very well.

Then there is an application from the defendant Rosenberg
for a document entitled "Tradition in Present Times." That
has been objected to as cumulative.

SIR DAVID MAXWELL FYFE: Yes, my Lord.

THE PRESIDENT: Dr. Thoma, are you wanting to say anything in
support of that application or is it sufficiently covered by
your speech?

DR. THOMA (counsel for defendant Rosenberg): I am of the
opinion that it has been sufficiently dealt with in my
speech.

THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one
from Ribbentrop and one from Schulze, not yet put in. Do you
want them?

DR. HORN (counsel for defendant Ribbentrop): Mr. President,
there must be some mistake about the Schulze affidavit. I
have not submitted any Schulze affidavit or made any
application for it.

THE PRESIDENT: It was a mistake.

Then, Ribbentrop's affidavit - are you asking as to that or
have we already dealt with that?

DR. HORN: No, I am asking that official cognizance be taken
of the affidavit of Ribbentrop, Document TD-75.

The other two affidavits of Thadden and Best have already
been approved.

THE PRESIDENT: Yes.

Why do you desire the defendant Ribbentrop to make an
affidavit? He has given his evidence in full. Is it
something that has arisen since?

DR. HORN: The defendant Ribbentrop only commented on a few
documents; which were submitted to him during his cross-
examination when he only had an opportunity to speak very
briefly about them. I did not want to make my final speech
any longer with a detailed discussion of the other documents
and, therefore, I have submitted this affidavit and beg the
Tribunal to approve it.

THE PRESIDENT: Then, with regard to TC-75 -

                                                  [Page 365]

SIR DAVID MAXWELL FYFE: My Lord, that is one of our original
British documents. I have no objection to Dr. Horn using it.

THE PRESIDENT: How about the translation, though? I suppose
it is a German document, is it not?

DR. HORN: Yes, it is a German document which was only
translated in part and I have referred to the entire
contents in my final plea.

THE PRESIDENT: Is it a very long document or not?

DR. HORN: No, it has only nine pages, Mr. President. The
prosecution submitted one page of the document to the
Tribunal in evidence. Then later I ascertained that there
are two copies of the document. I then took the second copy,
which represents the complete document, and submitted it to
the Tribunal and have had it translated.

THE PRESIDENT: It has been translated?

DR. HORN: Yes.

THE PRESIDENT: Very well then, that is all right then.

Now, Dr. Steinbauer, what about these two affidavits that
you are asking for, one from Erwin Schotter and the other
from Adalbert Jopisch?

DR. STEINBAUER (counsel for defendant Seyss-Inquart): I have
submitted the two documents for translation and since the
Translating Division is very busy I have not received the
translation yet. But I should like to submit the two
originals to the Tribunal under the numbers already given,
Seyss-Inquart 112 and 113.

THE PRESIDENT: Has the prosecution seen the substance of the
affidavits or not?

SIR DAVID MAXWELL FYFE: No, my Lord, we have not.

My Lord, they are very short affidavits. I will ask someone
to read them in German during the day and let the Tribunal
know before the Tribunal rises tonight.

THE PRESIDENT: Was the application made before 3rd July, or
when was it made?

DR. STEINBAUER: Yes, on 3rd July exactly. I received both of
these two documents on 3rd July through the General
Secretary and presented them on the same day.

THE PRESIDENT: The Tribunal will consider the matter then
and they will be glad to hear from the prosecution if they
have any objection.

DR. STEINBAUER: Mr. President, may I present one more
document on this occasion?

The Tribunal had approved the interrogation of Dr. Reuter
and the day before yesterday I received the completed
interrogatory.

THE PRESIDENT: What was it you were saying, Dr. Steinbauer?

DR. STEINBAUER: That I received the approved document
containing the interrogation of the witness, Dr. Reuter, on
Saturday in a German and English version. I should like to
submit the original to the Tribunal under the number 114.

THE PRESIDENT: What is the name of the person who was
interrogated?

DR. STEINBAUER: The physician, Dr. Gero Reuter. He was
questioned about the health conditions in the Netherlands.
The Tribunal expressly granted me that interrogatory.

THE PRESIDENT: Well, that will be considered, then.

DR. STEINBAUER: I shall submit it to the Tribunal under the
number 114.

THE PRESIDENT: Sir David, perhaps you can look at that
later.

                                                  [Page 366]

SIR .DAVID MAXWELL FYFE: Certainly, my Lord. I understood
that the Tribunal had already approved and that this was
just putting in the answer.

THE PRESIDENT: Yes, that is all.

SIR DAVID MAXWELL FYFE: Then, my Lord, there can be no
objection.

THE PRESIDENT: I ought to say that in order to save time,
all these documents which we are now dealing with must be
taken to be offered in evidence now because some of these
defendants' cases have been finally dealt with.

SIR DAVID MAXWELL FYFE: Yes, my Lord.

THE PRESIDENT: And they must, therefore, be given the
appropriate numbers as exhibits, and defendants' counsel
must see to that. They must give numbers, to them and give
them in with those numbers to the General Secretary so that
the documents will be identified as exhibits on the record.

SIR DAVID MAXWELL FYFE: My Lord, I appreciate that. I gather
that Dr. Steinbauer has just given that the number 174.

THE PRESIDENT: Yes, and the same applies to all the other
defendants' counsel, the counsel for Goering and Ribbentrop
and the counsel for Raeder and the other defendants, because
these are dealing with a considerable number of
interrogatories and affidavits all of which ought to have
exhibit numbers.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

My Lord, Dr. Siemers just wanted to know that his
applications were covered. I think he is quite safe.

THE PRESIDENT: Yes. Well, then, the only thing that remains
is Dr. Fritz's on behalf of the defendant Fritzsche. There
are two interrogatories which have not been received, as I
understand, from Delmar and Feldscher. Those have been
allowed - granted - and the interrogatories and the answers
will be put in when you get them.

SIR DAVID MAXWELL FYFE: That is the way I understand it, my
Lord.

THE PRESIDENT: Well, then, the Tribunal will consider all
these matters and make the appropriate order upon it.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: We will adjourn now.

Wait a minute, wait a minute!

DR. KUBUSCHOK (counsel for defendant von Papen): In the case
of the defendant von Papen there are still a number of
interrogatories which have not been received. In the
meantime, I have received four interrogatories with answers,
but they are still in the Translating Division. Three
interrogatories have not yet come back. I request an
opportunity to present them later on.

THE PRESIDENT: They have been granted before, I suppose?
Have they been granted?

DR. KUBUSCHOK: Yes, they had already been granted, with the
exception of one affidavit which I have also dealt with
here, but which has not yet been translated, and has been in
the Translating Division for some time.

THE PRESIDENT: Yes, but the application for that
interrogatory had been allowed, I suppose?

DR. KUBUSCHOK: I presented this application recently. I was
told to have this affidavit translated, but I have not yet
received the translation. I shall submit this document,
together with the other documents, as soon as I receive it
from the Translation Division.

THE PRESIDENT: Very well. We will adjourn now.

(A recess was taken.)

                                                  [Page 367]

THE PRESIDENT: Go on, Dr. Dix.

DR. DIX (counsel for defendant Schacht): Mr. President,
gentlemen of the Tribunal. The singularity of Schacht's case
is graphically illustrated by his position in the
defendants' dock and from the story of his imprisonment and
defence. There in the defendants' dock sit Kaltenbrunner and
Schacht. Whatever the powers of the defendant Kaltenbrunner
may have been, he was in any case Chief of the Reich
Security Main Office. Until those May days of 1945, Schacht
was a prisoner of the Reich Security Main Office in various
concentration camps. The sight of an ex-prison warden, a
prisoner, sitting beside one of his ex-prisoners in the dock
presents a grotesque picture. At the very start of the
criminal trial this remarkable picture alone must have given
cause for reflection to all those participating in the
trial, judges, prosecutors and defence counsel. Schacht was
interned in a concentration camp on the order of Hitler, as
has been established here. The charge against him was high
treason against the Hitler regime. The judicial authority,
the People's Court (Volksgerichtshof), presided over by that
bloodthirsty judge, Freisler, would have convicted him if
his imprisonment had not been exchanged for imprisonment by
the victorious Allied Powers. In the summer of 1944 I was
assigned to defend Schacht before Adolf Hitler's People's
Court; in the summer of 1945 I was asked to conduct his
defence before the International Military Tribunal. This,
too, is in itself a self-contradictory state of affairs.
This, too compels all those participating in the trial to
have some misgivings, as far as Schacht's character is
concerned. One involuntarily recalls the fate of Seneca;
Nero, as a counterpart to Hitler, put Seneca on trial for
revolutionary activities. After the death of Nero, Seneca
was charged with complicity in Nero's misgovernment and
cruelties, in short, with conspiring with Nero. A certain
wry humour is not lacking in the fact that Seneca was then
declared a pagan saint by early Christianity as early as the
fourth century. Even if Schacht does not indulge in such
expectations, this historical precedent nevertheless forces
us to remain always conscious of the fact that the justice
of the sentence to be pronounced by this High Tribunal will
also have to prove itself before the tribunal of history.

The picture of the Third Reich has been revealed to the High
Tribunal in a thorough and careful presentation of evidence.
It is a picture with a great deal of background. An
opportunity was given to depict this background also, within
the range of possibility. Within the range of possibility!
But at the same time this meant limitation of a completely
exhaustive investigation through a judicial presentation of
evidence which, to be sure, was thorough, but which
nevertheless had to be brought to an end as soon as
possible, according to the requirements of the Charter.

In order to learn what it was like under Hitler in German
countries, there is still much which must be left to the
intuition of the Court. It is not possible, and never will
be possible, to understand Hitler Germany from a
constitutional point of view, according to the scholarly
conceptions and views of people with a legal mind. As a
scholarly topic; "The Constitution under Adolf Hitler" is a
lucus a non lucendo. Understand me well: "The Constitution,"
which means the reduction of the Hitler State to a legal
system, and not the attempt made in the final pleading of
Jahrreiss to illuminate the tyranny of a despot from some
legal point of view. A scientific account or history of the
sociology of the Third Reich, which would be possible, but
difficult, has not yet been published.

Only a very few Germans who lived in Germany knew the
conditions and distribution of power within those circles of
people who were apparently, or actually, called upon to
contribute their share towards the formation of a political
will. Most Germans will be surprised when this picture is
unveiled. How much less possible it must have been for a
foreigner to form a correct judgement of the sociological,
constitutional and internal political conditions of Hitler
Germany at the time when the Indictment was presented. But a
correct judgement of these

                                                  [Page 368]

things was the prerequisite for an indictment founded
correctly, in both fact and law.

I am of the opinion that the members of the prosecution were
thereby confronted with what was for them an insoluble task.
I am furthermore of the opinion that the prosecution would
have never presented their criminal charges against the
defendants under the head of a conspiracy if they had been
able to understand the distribution of political power in
Hitler Germany in the same way as might perhaps be possible
today, although difficult enough for an intelligent observer
and listener at this trial who is gifted with political
intuition.

A conspiracy within the meaning of the Indictment was, as a
practical matter, not possible in Adolf Hitler's Third
Reich, as my colleagues have already pointed out. The only
thing possible in the Third Reich was a conspiracy against
Adolf' Hitler and the regime by the opposition. Several such
conspiracies were formed, as was here proven. The
relationship between conspirators is somewhat different from
that between an accomplice and the chief perpetrator. The
part to be played by the individual conspirator in the
execution of the common plan may vary. Several or even one
of the conspirators may hold a leading position within the
conspiracy. At all times, however, co-operation is
necessary. Common usage of the term in itself precludes
speaking of a conspiracy if only one commands and all the
others are merely executive agents.

I am, therefore, of the opinion that that which was defined
as a crime here in this courtroom can never constitute the
elements of a conspiracy according to criminal law. Other
legal factors which might come into question are of no
interest to me as defence counsel for the defendant Schacht,
because no criminal charge whatsoever can be brought against
Schacht personally, as an individual, without any connection
with deeds of others, and so merely on the basis of his own
actions. Schacht himself had only the best intentions and
wanted nothing illicit, and his actions were guided by these
intentions. To the extent that he erred politically, he is
frankly prepared for the verdict of history. But not even
under the extensive powers of International Law can
political error be penalised. If it could, the profession of
the statesman and politician would be impossible. World
history is more affected by mistakes and errors than by
correct perceptions. According to Lessing's wise words, the
perception of absolute truth is reserved for God. There
remains for man as his greatest blessing only the striving
for truth: "Nescis, mi fill, quanta stultitia mundus
regitur", as old Axel Oxenstierna once said, and he was
probably right. Schacht declared here that he felt that he
had been most grossly deceived by Adolf Hitler. He thereby
admitted for his part that certain of his decisions and
actions had been wrong. The prosecution disputes Schacht's
good faith and charges him with having deliberately worked
for a war of aggression as Adolf Hitler's financial agent,
thereby implying that he is criminally responsible, from the
point of view of the alleged conspiracy, for all the
cruelties and atrocities which were committed by others
during this war. The prosecution itself was not able to
produce any direct proof of these allegations. They
attempted to do so first by means of alleged documentary
evidence in the form of misinterpreted statements by
Schacht, torn from their context. For this the prosecution
referred to witnesses who could not be made available for
examination before this Tribunal because some of them were
absent and some had died. I recall for example, the
affidavits of Messersmith and Fuller and Dodd's diary notes.
Their lack of probative value was thoroughly set forth to
the Tribunal by Schacht during his examination. In the
interest of saving time, I do not wish to repeat things
which have already been said, and which surely must still be
within the recollection of the Court.

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