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-Eighth Day: Monday, 15th July, 1946
(Part 3 of 10)

[Page 364]

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.


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


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.


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.


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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