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 10 of 12)

[DR. STEINBAUER continues.]

[Page 165]

And what of the defendant? He was given the cold shoulder and pushed aside. The victor of the Saar electoral contest, Josef Burckel, was appointed Reich Commissioner for the Reunion of Austria with the Reich, and invested with dictatorial powers. The powers of the defendant scarcely exceeded those of an "Oberpraesident" in the Reich, that is, those of a second level administrative authority. Still less, because immediately above him was Burckel, who, under the pretext of the annexation, interfered with everything and laid claim to everything, particularly in matters concerning the Churches and the Jews. This is evidenced by Documents 67, 70 and 91. The defendant opposed Burckel's methods. He even raised objections to Hitler himself against Burckel's action in Graz on the 8th April, 1938.

This we know from the testimony of Neubachter, Schirach and Stricker, and from the documents submitted by the defence. But Burckel, whom Churchill described as the "Governor of Vienna" in his book Step by Step, remained the stronger man, and the importunate admonisher, Seyss-Inquart, was transferred to Southern Poland as a Provincial Commissioner. This treatment alone at the hands of his alleged fellow- conspirators shows only too clearly that Seyss-Inquart was actuated by his enthusiasm for the Anschluss and cannot have been a conspirator. He was not a leader, he was led, or, what in my opinion is more accurate, he was misled, perhaps also a docile tool in the hands of the big two, Hitler and Goering. But it was solely for his political ideals, the Anschluss, without any intention of a war of aggression.

Of course, there was something of an economic boom in Austria after the Anschluss. It was partly an artificial boom due to rearmament. But what took place was not the Anschluss that the Anschluss enthusiasts in Austria had visualised, especially when the war provided a motive and a pretext for ruthlessly controlling and repressing every dissenting or critical opinion.

Austria never ceased hoping for her liberation and fighting for it. There was much suffering and many died; 6,000 were executed in Austria. In the "Landesgericht" of Vienna alone 1,200 men died by the guillotine, Boo of them merely because of their anti-Nazi convictions. In the last days of the war, Vienna's most beautiful buildings fell in ruins, and St. Stephen's Cathedral, one of the noblest monuments of German Gothic architecture, went up in flames. Thus was fulfilled the promise that Hitler had made on the 15th March, 1938:

"The pearl has the setting which its beauty deserves."

[Page 166]

The idea of union, that is to say, the wish to bring about the national unification of a nation, was not a crime; criminal, however, was the introduction of a system that has presumably blocked its realization for ever. The defendant certainly did not will that.

To conclude my statements on the Austrian question I shall now proceed briefly to examine the legal aspect of the charge against my client. To elucidate his legal responsibility I will review his behaviour in the following short survey

First his political activity:

1. After the agreement of the 11th July, 1936, the Federal Chancellor, Dr. Schuschnigg, took the defendant Seyss- Inquart to work with him as a representative of the National opposition, therefore, not as a political follower of his, as for instance the witness Guido Schmidt.

2. Seyss-Inquart always declared - for the first time to Dr. Dollfuss in July, 1934 - that the National opposition consisted only of National Socialists who obey only Hitler's will, who, in any case, will never act against Hitler's will.

3. Seyss-Inquart declared he was a National Socialist; thus he always stood for the interests of the Austrian National Socialists. This is not only confirmed by the witness Skubl but borne out by the authorities previously quoted by me.

4. To avoid any military or international conflict, Seyss- Inquart pursued the following aim: To allow the Austrian National Socialists to work independently of the Reich National Socialist Party, should Austria and Germany form a close union.

5. Seyss-Inquart declared that this aim could only be attained if Hitler agreed to it and directed the Austrian National Socialists expressly towards this policy. This he wanted to attain.

6. The culminating point of Seyss-Inquart's efforts was his interview with Hitler on the 7th February, 1938, although he was, so to speak, Minister by the grace of Hitler, he stood for his Austrian programme.

Herein lies Seyss-Inquart's mistake. He thought Hitler and Berlin would pursue a joint policy, that is, as Bismarck said, exploit the art of possibility. Berlin, however, did not wish to pursue a joint policy. In the face of this fact Seyss-Inquart's policy broke down on the 11th March. Is this mistake punishable, especially as the Austrian State leaders desired to reach an agreement along the same lines, and Dr. Schuschnigg, knowing his programme, allowed him to continue his activity? In view of the defendant's basic attitude until March, 1938, details of his political tactical attitude are of secondary importance.

And now the activity of the defendant as Minister of the Interior and Security.

7. There is no trace of any National Socialist influence on the Austrian Executive. The witness Skubl has confirmed this with surpassing clarity. Seyss-Inquart forbade the police to take up any political attitude (Document 51); he forbade National Socialist demonstrations (Document 59); he avoided such occasions (Document 59); he demanded that the Austrian Nazis stand for legality (Document 52).

8. On the 11th March, 1938, Seyss-Inquart fulfilled his duties as mediator, in accordance with the Berchtesgaden Agreement. Together with Glaise-Horstenau he gave Dr. Schuschnigg, in the forenoon of the 11th March, a perfectly candid statement of the facts. He particularly pointed out the threatening National Socialist demonstrations and the possibility of a German invasion. In the afternoon he delivered Goering's demands to Schuschnigg and the latter's answers to Goering.

9. After Dr. Schuschnigg's offer to resign, Seyss-Inquart retired. He did nothing to comply with Goering's demand to obtain the transfer of the Federal Chancellorship or to seize power. The ultimatums, with the threats of invasion by the Reich, were, as is known, transmitted by Embassy Counsellor von Stein and General von Muff, to whose pressure President Miklas finally yielded. This

[Page 167]

appears from President Miklas's statements (3697-PS) and the statements of the witnesses Rainer and Schmidt.

10. Only after Dr. Schuschnigg's farewell speech did Seyss- Inquart publicly demand the maintenance of order. He did not designate himself as a Provisional Government, but, in good faith, as Minister of the Interior and of Security, as was confirmed by the witness Schmidt. He took the order not to put up any resistance to the German troops from Dr. Schuschnigg's farewell speech.

11. Seyss-Inquart tried as long as possible to preserve Austria's independence, as instanced by his telephone conversations with Goering (Document 58), also by his request to Guido Schmidt to join his Ministry as Foreign Minister, as confirmed by the witness Schmidt, and according to the statements of witness Skubl;

by refusing the demanded telegram (Document 58);
by the request to Hitler not to march in, as confirmed by Goering;
by the request to- Hitler also to let Austrian troops march into the Reich.
12. On the 13th March, 1938, the Anschluss Law was issued in conformity with Article III of the Austrian Constitution of the 1st May, 1934. The psychological situation for Seyss- Inquart was the same as for all Austrians, who, on the 10th April, had by secret ballot voted for the Anschluss by 4,381,070 votes against some 15,000.

Some of the accusations made against Seyss-Inquart are:

1. That he used his various positions and his personal influence to promote the seizure, incorporation and control of Austria by the Nazi conspirators.

2. That as an integral part of his evil intentions in the sense of the Indictment, he participated in the political planning and preparations of the Nazi conspirators for wars of aggression and wars in violation of international treaties, agreements and assurances.

Concerning the first accusation, I refer to the above survey and limit myself to the following short statements:

As a political aim, the annexation of Austria to the German Reich is nowhere indicted, and the defendant pursued no other aim. Here - as also on other points - the prosecution goes beyond the limits of the Charter.

Concerning the second accusation that co-defendant Seyss- Inquart participated in a conspiracy against peace, this must be judged by Article 6 (a) of the Charter. There it is stated, among other things, that collective planning, preparation or waging of a war of aggression or a war in violation of international treaties is punishable as a breach of the peace.

I leave it to the Tribunal to examine if this ruling can really be applied to the case of the entry into Austria in spite of the fact that there was no war. It is a significant point that according to the meaning of the said ruling, the outbreak of a war is the condition for rendering an act punishable for breach of the peace within the meaning of the said provision.

In any case I cannot reconcile myself to an interpretation of this ruling which goes so exceedingly far, so far as to consider even an abandoned plan for war or the possible planning for a war which turns out to be bloodless as punishable as the accomplished crime.

It must be pointed out most emphatically that no proof has been furnished that my client ever imagined that it would even come to a war between Austria and any other Power because of the Anschluss or pursuant to it. On the contrary, his decision to take an active part in politics after the drama of the 25th July, 1934, was dictated by the resolve not to let the Anschluss question become the cause of military or international complications. Furthermore, it must have been far from him to imagine that Hitler or his entourage had seriously considered the possibility of such a consequence. The outcome of the Austrian enterprise proved him to be right. The German troops were greeted on their march into Austria with flowers and cheers.

[Page 168]

As for the Great Powers, France and England protested on the 12th March, 1938, against the Anschluss. But this was only a very mild and ineffectual protest. Military support for Schuschnigg was not forthcoming; above all, the League of Nations, the guarantor of Austria's independence, was not appealed to.

On the 14th March, 1938, the British Government declared in the House of Commons that it had discussed the new situation with its friends of the Geneva Entente and that the unanimous opinion had been that a debate in Geneva would lead to no satisfactory result.

When the League of Nations was informed of the Anschluss by the German Foreign Office it took note of it without protest, and the Austrian representative at the League of Nations, Pflugl, was given his papers. The Hague Court of Arbitration struck its Austrian member, Professor Verdross of Vienna, from the register of judges. The diplomatic agencies were withdrawn or transformed into Consulates in the German Reich.

Only a very short time elapsed, in fact it was only a few months after the occupation and annexation of this small country that a State treaty concerning a small State was concluded in Munich on September 29th, 1938, with the alleged aggressor.

The French Prosecutor, M. de Menthon, in his opening speech mentioned that great politician and statesman Politis: I also would like to call him to mind. Shortly before his untimely death he wrote in his book La Morale Internationale:

"Qui menace les petites nations menace l'humanite toute entiere!"
The League of Nations Powers did not feel called upon to pay any heed to this sentence.

But there is another principle of international order which they did not see fit to apply when confronted with the Austrian Anschluss. I mean that principle which, under the name of the Stimson doctrine, has found entry into the science of International Law and diplomatic language.

I turn over one page and continue at the bottom of Page 44.

And finally I remind the Tribunal of the declarations of the Council of the League of Nations on the 16th February, 1932, in which the Stimson doctrine, raised to a principle, was expressed as follows:

"No encroachment on the territorial integrity and no infringement of the political independence of a member of the League of Nations in violation of Article 10 of the Covenant of the League of Nations could be recognized as legally valid by the member nations."
Nevertheless all the nations of the world recognized the incorporation of Austria into the German Reich without feeling compelled to concern themselves with the Stimson doctrine.

This likewise substantially answers the accusation of the crime against peace by violation of treaties. Germany is supposed to have violated three treaties. First the German- Austrian agreement of 11th July, 1936; secondly Article 88 of the Treaty of Saint-Germain; lastly, Article 8o of the Treaty of Versailles. Here, also, it must be pointed out that all the nations concerned have not only tolerated the violations of the treaties, but, moreover, tacitly sanctioned them by their attitude. This implies at least a renunciation of International Law, and the Powers concerned have thereby forfeited the right to take any ulterior action because of treaty violations, as this would be contrary to all sense of fairness.

With particular regard to Article 88 of the Treaty of Saint- Germain, the German Government, and therefore Seyss-Inquart as alleged co-conspirator, cannot be charged with violation of this provision, because Germany was not bound by this treaty which she had not signed and which for her represented a "res inter alia acta".

On the other hand, the German-Austrian Treaty of 11th July, 1936, was a "res inter alia acta" for Powers other than Germany and Austria; here Austria alone could have raised the objection of a breach of treaty. In this connection attention is called to the fact that the reconstituted Austria is not among the signatories of

[Page 169]

the London Agreement of the 8th August, 1945. Therefore the four States which have established the International Military Tribunal are not entitled to vindicate the interests of Austria at this trial.

With regard to Article 80 of the Treaty of Versailles, I resist the temptation to discuss the question of the legal validity of this provision, in particular to dwell on the legal significance of the contradiction of this Article with the so-called fourteen points of President Wilson.

But in concluding this, my legal exposition of the Austrian affair, I cannot altogether refrain from expressing a general idea:

One of the great principles of international order which, in the course of the nineteenth and twentieth centuries, has established itself after much suffering, much confusion and many makeshifts and become more and more a reality, is the right of self-determination of nations.

This basic principle of the right of self-determination of nations has become so firmly rooted in the legal conceptions of international relations in our century that one is forced to the idea that it belongs to the general principles of International Law, an idea that particularly appeals to the democratic way of thinking. But as a general principle of International Law, it would, together with the Charter, the International Law of Custom and, thirdly, the Law of Treaty, then become the standard criterion of judgement, for the Nuremberg International Military Tribunal, which at all events must find a similar basis for other questions. And further it would acquire, like all other generally accepted principles of law, a constraining force and above all have precedence over international treaty law.

A number of States owe their existence to this lofty expression of the democratic way of thinking. Such a privilege was denied the Austrians after the First World War. Despite the fact that the people in Austria as well as in Germany unanimously strove for union, Austria was forced to eke out an existence as an artificial, unnatural State structure, neither able to live nor die. How bitter are the words of the Encyclical "Ubi areano" of 23rd December, 1932:

"We hoped for peace, but it did not bring salvation; we hoped for healing, but terror came; we hoped for the hour of recovery, but only confusion came; we hoped for light, but only darkness came."
In the year 1938, too, Austria and Germany strove for union, according to the wish of the overwhelming majority of their citizens, and this time their wish was fulfilled.

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