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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Second Day: Friday, 19th July, 1946
(Part 8 of 12)

[DR. STEINBAUER continues.]

[Page 156]

On 20th November, 1945, at the beginning of the trial, the Presiding Judge stated that these trials are of supreme importance to millions of people all over the globe. For this reason, he said, everybody participating in this trial has the solemn responsibility to discharge his duties without fear and without favour to anybody, and according to the principles of law and justice.

This duty was often an almost too heavy burden for the defence counsel, not because of the extent of the material for the trials, not because of the abundance of legal questions which often were of a completely new kind, but because things were revealed here which are so monstrous and abysmally degrading that a normal brain will not even believe the possibility of such happenings. In so saying, I am not thinking of the prepared human skin, of the pieces of soap made out of human fat which were shown to us; I am not thinking of the systematic way in which millions of innocent people were tormented, tortured, beaten, shot, hanged or gassed. No, I am thinking of the many touching individual pictures which have made the deepest impression on me personally and probably also on everyone else.

Auschwitz alone has swallowed up 3.2 million people, men, women, and children. That is really the most terrible weapon of the Indictment, that the spirits of all these innocent victims stand beside the Prosecutor, accusing, and demanding revenge. But I do not stand alone, either. The many innocent war victims on the German side, women and children who have fallen victim to the terror attacks which violated International Law, in Freiburg, in Cologne, in Dresden, in Hamburg, Berlin and Vienna, and in almost all other German cities, stand beside me. My comrades from the Wehrmacht who, as honest and decent soldiers, have sacrificed their lives for the Fatherland by the hundred thousand, young and old, faithful to their oath of allegiance, also stand by my side.

But even if they did not exist, if the defendant stood quite alone before his judges, then even more is it my sworn duty as a lawyer to stand helpfully by his side and be his shield and defence, and in face of the mass of the most terrible, incriminating documents to say to you, his judges: "Do not judge in wrath, but as our Austrian poet Wildgans, who was a judge himself, wrote in the album of a young judge: 'Search for the Edelweiss which blooms under the thorn'."

Before I consider the Indictment in its individual points, I should like to sketch in a few short words the personality of the defendant. The words in Schiller's tragedy "Wallenstein" apply to him, too: "Von der Parteien Hass and Gunst verzerrt, schwankt sein Charakterbild in der Geschichte" (Distorted by the hatred and favour of the parties, his character hovers through history between good and bad).

The prosecution, in the trial brief, calls him a cunning, coldly calculating, political opportunist who had a mission before his eyes. It said it is notorious

[Page 157]

that he misused his position as Minister, in order, by his double dealing, to deliver Austria to the conspirators; that he has committed atrocities in Poland and in the Netherlands in cold blood, and has trampled upon the rights of small nations to freedom of religious and political thought, regardless of constitutional obligations.

George S. Messersmith testifies similarly in 1760-PS when he says that according to reliable information he received, Dr. Seyss-Inquart, with whom he himself had little personal contact (the defendant denies ever having met Messersmith), was completely insincere in his dealings with his friend, Chancellor Schuschnigg. Incidentally, the statement that Schuschnigg and Seyss-Inquart were friends is incorrect. Messersmith had left Vienna in the spring of 1937. As all witnesses testify, Dr. Schuschnigg had at that time only just become acquainted with Seyss-Inquart. But Messersmith added in his own words that there is only one thing which may be said in favour of Seyss-Inquart at that time: that he may have believed the German protestations which were made to him - that Austrian independence would be respected.

I shall turn to Page 7.

His political programme was the Anschluss idea and, considering his origin, this is also easy to explain. His real home is the old mining town of Iglau, a German-speaking island in a Slavonic sea. At an early age he became aware of the small-scale battle which was being waged by two hostile nations. Deeply moved, he learned that a year ago the storm had swept over his home town, and that Iglau, which had been German for 800 years, would be so no more. Therefore, in judging the defendant, we should not forget that it is the Germanic borderlands that have always experienced the greatest national distress and held more strongly and fervently to the idea of the great German Fatherland than the nationals of the rest of the Reich, lulled into self- complacency born of self-confidence. Thus it is no accident that leading men in the Anschluss movement, whose names stand out in my document book, came from the Sudetenland. Doctor Otto Bauer, the late leader of the Socialists, comes from Untertannowitz in Moravia, that is, from German Sudetenland.

The last time I saw the defendant was in the autumn of 1938, and I did not meet him again until I saw him here in prison. Therefore, I asked one of his collaborators in Holland, who also enjoys the respect of the Dutch, and who was no National Socialist, and who as a senior judge can be relied on, for an impartial opinion on the personality of Dr. Seyss- Inquart. He writes:

"In his work his clear, keen thinking, and the systematic manner in which he wholly applied his many-sided talents to carrying out his duties struck me at once."
I continue at the bottom of the page:
"It is the great tragedy of his life and work that in the person of Hitler and several persons among those who were his closest co-workers, elements crossed his path which were stronger than he ...."
As an intellectual and a spiritually cultured person he became immediately suspect to the chief personalities in the Party bureaucracy surrounding Hitler, Bormann, and in the SS administration, Himmler, although he wore the golden Party badge of honour and occupied a high honorary rank in the SS. He continued to be the young Party member who came from the ranks of the intellectuals, who were always regarded with mistrust. For those elements, however, he was too "soft".

He still hoped that he might succeed in preventing independent sections in the Reich from working their way into his sphere of action, as he himself was gradually winning the Fuehrer's confidence. As I already said, his relation to the Fuehrer was to be his doom.

"However, I am firmly convinced that he, like so many of our people, was more an unwitting victim than a willing tool of the demoniacal power of Hitler ...."

[Page 158]

This is the opinion of an upright German judge.

The prosecution bases the Indictment on the concept of conspiracy, in an endeavour thus to forge a chain around the defendants to link them all together in one common responsibility. My learned colleagues have already spoken extensively of the concept of conspiracy and its consequences in this trial. To repeat these statements would be to carry coals to Newcastle. But because this is the leading theme of the trial and because it seeks to shift the responsibility for the world-shaking events to my client in particular, I should like to submit to the Court a few additional ideas on this subject.

When turning over the pages of history, we often come across stories about men who combined together to overthrow a ruler who was disliked, or a system that was hated, and to seize the power for themselves. All these cases are lumped together under the general, all-embracing term "plots". In the book he published in Paris, entitled "The Technique of the State Plot", Malaparte, an Italian, attempted to describe the technical methods applied in plots and revolutions, from Catilina up to Hitler and Mussolini. Even this survey of technique will be sufficient to show how unjustified it is to dub all these undertakings plots, if it is intended to encompass within this term a definite concept such as is known in penal law.

In any case it is not possible to classify all these things which in popular terminology are called "plots" under the heading of "conspiracy", as is done by the prosecution. When Guy Fawkes and his companions at the time of James I tried to blow up the English Parliament in the so-called "Gunpowder Plot", perhaps this was a real conspiracy. Up to the present day the English people, on the 5th of November of every year, celebrate with fireworks and bonfires and the burning of a straw dummy the anniversary of the day which saw the happy prevention of the plot. It would be a mistake, however, to term any kind of co-operation for political aims a conspiracy, because, and it is particularly important to repeat and stress this, the vagueness of colloquial usage has always made it possible to use the word "conspiracy" when talking of political struggle, and thereby justify, because of the lack of adequate legal grounds, the destruction of political opponents.

I now turn to Page 12.

For the French Prosecutor I should like to cite from the history of his country, France, an example of an obviously unjustified accusation of conspiracy. Louis XVI was accused of conspiring against the nation and was found guilty. Citizen Deseze, on 26th December, 1792, in the first year of the Republic, conducted his defence at the bar of the National Convention. His plea was probably one of the most moving ever delivered, a discourse in which the defence counsel had to deal at the same time with another danger of criminal jurisdiction arising from political causes or political passions, namely against a violation of the legal principle "nullum crimen et nulla poena sine lege". Undaunted and unafraid he declared:

"Where there is no law which can serve as a precept, and where there is no judge to pronounce the sentence, one should not have recourse to the general will. The general will as such cannot speak either about a man or about a fact. But if there is no law according to which one can judge, then it is also not possible to give judgement, and there can be no sentence."
We still find today this principle of "nullum crimen, nulla poena sine lege" firmly rooted in almost all law books. We find it in the German and in the Austrian penal code; and we also find it in French law, in Article 4 of the "code penal", which states: "Nulle contravention nul delit, nul crime ne peu-vent etre punis de peines qui n'etaient pas prononcees par la loi avant qu'ils fussent commis."

That this principle has not lost any of its significance even today while this trial is still going on, but on the contrary has kept its full meaning, is shown by the fact, and I should like to remind the French Prosecutor again, that the French Constitution which was submitted to the National Assembly on 19th April, 1946, establishes specifically as a statute of the Rights of Man in Article 10:

[Page 159]

"The law has no retroactive force. No one can be convicted and punished, except according to the law which has been promulgated and made public before the deed which is to be punished. Every person accused is considered under reservation as innocent until he is declared guilty. No one can be punished twice for the same deed."
What is the Right of Man for the French must necessarily be the Right of Man for the Germans.

When in the year 1935 the idea of analogy found its way into German criminal law, this innovation met with severe criticism in juristic circles also outside Germany. The second International Congress for Comparative jurisprudence held in the Hague in the year 1937 formulated a resolution against analogy in criminal law. In this resolution, the Congress expressed itself in favour of the principle "nulla poena sine lege". (See "Voeux et Resolutions du Deuxieme Congres International de Droit Compare, La Haye, 4-11 Aout, 1937.")

From the above-mentioned statements it follows that it is legally inadmissible to apply principles in this trial which lack a legal basis. Continental law does not know the concept of conspiracy. Austrian law, which could come into question as the national law for my client, does not know this concept either. There are at best very small similarities if we point out that the Explosives Law of 27th May, 1885, Article 5, already declares the concerting together for the execution of a crime with explosives as punishable. Article 174 IC of the Penal Code makes theft a crime if the thief commits theft as a member of a gang which has banded together for the common commission of robbery. German law recognized the responsibility under the penal code for the act of another only as accomplice, instigator and helper. Conditions in French law are similar, and to save time I refer to articles 59, 60, 89 and 265 of the "Code Penal".

That this question is not clear, and at least dubious, is also admitted by the reputed Russian teacher of International Law, Professor A. N. Trainine, in his book "La responsabilite penale des Hitleriens". He states on Page 13:

"The problems of international penal law have unfortunately been studied very little. There is lacking a theoretical, clear definition of the fundamental concept of international crime and a well-ordered system of this law still remains to be created."
According to the prosecution, the aim or the means of the conspiracy are crimes against peace, against the rules of war and against humanity. Professor Jahrreiss has already spoken extensively about the liability for punishment of individuals for the violation of international peace, and has described and given due recognition to the status of non- German international jurisprudence. But since jurists of German tongue have also concerned themselves with this question, I would like to make an additional remark.

The well-known Austrian scholar of International Law, Alfred von Verdross, has established in his book, "International Law":

"According to prevailing opinion, subjects of a crime under International Law can only be States as well as other legal communities immediately subject to International Law, but not individual persons ...."
After these short supplementary statements of the legal bases of the trial, I turn to the Indictment, which accuses my client of having participated in the seizure and taking over of control in Austria as a conspirator, and of having committed war crimes and crimes against humanity in Poland and in the Netherlands.

Thus the first act takes place in Austria, and the second in the Netherlands, after a short interlude in Poland.

East of Berchtesgaden lies Obersalzberg, at an altitude of 1,000 metres. Adolf Hitler stands at the window of his country house, in deep thought, and gazes on the snow- covered mountains. The country which is protected by these mountains is Austria, his homeland. It is a German land, free and independent and not subject to his will as is the Reich, whose absolute Fuehrer he has become. When

[Page 160]

he wrote his book in the fortress of Landsberg, he wrote on the first page of that book: "German Austria must return to the great German Fatherland." The shades of night rise slowly from the deep valleys and his thoughts glide over the mountains to the old imperial city on the Danube, Vienna, which he both loves and hates. It is the city of his joyless youth, a memory filled with want and misery. In his book Mein Kampf he compares this city with Munich, and says about the latter:
"Munich, a German city, how different from Vienna; I feel sick when I recall this racial Babylon."
And still, this city is the goal of his longing and he calls this same city in the March days of 1938 a pearl to which he will give the setting which its beauty deserves. On his table lies a book: The History of German Austria. Hitler read this book again and again; it is the history of his homeland, and we also will glance through it, as far as time permits. We read:
"Austria was throughout many centuries one of the strongest pillars of German life. Its evolution, its rise, and its decline form a considerable part of German history. Austria was and is a piece of the German soul, of the German glory, and German suffering. Austria has received inestimable strength from the old Reich, but she herself has made a great and valuable contribution to the whole of German culture."
I shall pass on to Page 19.
"The old Roman Empire of the German nation was destroyed in 1806. The Reich died, but the concept of the Reich lived on. At Leipzig, in 1813, Prussians and Austrians fought shoulder to shoulder under Schwarzenberg, Scharnhorst, Gneisenau and Blucher to free themselves from the yoke of the Corsican tyrant. On 11th January, 1849, the deputies of all German States assembled at Frankfurt-on-Main for the constitutional assembly. The Austrian delegate Bergassessor Karl Wagner from Styria, in Austria, spoke at that time the memorable words: 'Leave an opening for us so that we can enter; we shall come, unfortunately, perhaps not all of us. We, Austria's Germans, will come, how and when, who can tell? Who can read in the book of the future? But we shall come!'"
The year before, in St. Paul's Church, where the delegates of all German lands and States had met, the poet Ludwig Uhland, as a deputy, spoke the memorable words:
"It may well be that Austria's mission is to be a light for the East; but she has a higher, a nearer mission - to be the artery in the heart of Germany."

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