The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Second Day: Friday, 5th July, 1946
(Part 2 of 9)

[Page 120]

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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