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-Sixth Day: Thursday, 25th July, 1946
(Part 4 of 9)

[Page 353]

THE MARSHAL: May it please the Tribunal, the defendants Streicher and Raeder are absent.

THE PRESIDENT: The following is the order on the procedure to be followed in the cases against the organization:

First: The Tribunal draws the attention of counsel for the organizations to the Order of 1st July, which directed that any of the evidence taken on commission, which counsel for the defence or the prosecution wish to use, should be offered in evidence and thus become part of the record, subject to any objections. It will be convenient to the Tribunal, if it is desired, to offer the whole of the evidence at the outset of the proceedings. Paragraph 2: The counsel for the defence will then put in their document books, subject to any objections.

Paragraph 3: The witnesses for the defence will then be called and examined by defence counsel, who will bring out the matters they regard as important, given in evidence before the Commission, and any new relevant matters. Each organization will be dealt with in turn, and the whole of the evidence for that organization, both examination and cross-examination, heard before dealing with the next organization.

Paragraph 4: Counsel for each organization will then make his closing speech, dealing with the evidence given before the Tribunal, and making the necessary references to the documents introduced in evidence. He will also draw the attention of the Tribunal to the matters contained in the evidence given before the Commissioners and in the summaries of the affidavits which he deems important and which he wishes the Tribunal specially to consider.

Paragraph 5. The counsel for the prosecution will reply when all the speeches of the defence counsels have been made.

Paragraph 6. The Tribunal is of the opinion that the closing speeches of counsel for the prosecution and the defence ought to be short, not exceeding one half-day in each case. If this time is thought likely to be exceeded, a special application must be made to the Tribunal, stating the grounds for such extension of time, not later than Monday next, July 29th. That is all.

THE PRESIDENT: I call on Doctor Seidl for the defendant Hess.

DR. SEIDL: Mr. President, before beginning with the final plea for the defendant Hess, I beg the permission of the Tribunal to represent the defence counsel for defendant Goering, and submit on his behalf two exhibits. Both have been allowed by the Tribunal, and they refer to the Katyn case, that is to say, the question of the murder of 11,000 Polish officers in the neighbourhood of Smolensk. The first is Exhibit Goering 60, an extract from the German White Book, referring to the post-mortem examination conducted by the Italian Professor Palmieri and the post-mortem examination conducted by the Bulgarian Professor Borotin. The second is Exhibit Goering 61, which is also an extract from the German White Book, and refers to the Katyn case. It is the report of the International Medical Commission of 30th April, 1943.

Mr. President, when the German people, having lost the First World War, set out in 1919 to rebuild their public life according to democratic principles, they

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found themselves facing difficulties which were caused not merely by the war itself and the material loss resulting therefrom. The defendant Rudolf Hess, being among the first comrades-in-arms of Adolf Hitler, belonged to those who time and again reminded the German people of the great dangers which would of necessity arise for Germany's domestic economy and for world economy as the result of the reparations policy of the victorious States of 1919. The consequences of that policy were bound to be all the more devastating for Germany when in 1923 France proceeded to effect the military occupation of the Ruhr territory, the centre of Germany's economic power. At that time of economic collapse and complete disarmament of Germany, Adolf Hitler made the first attempt through the revolution of 9th November, 1923, to seize the power of the State. The defendant Rudolf Hess also took part in the march to the Feldherrn Hall in Munich. Together with Adolf Hitler, after conviction by the People's Court, he underwent imprisonment at Landsberg Fortress where Hitler wrote his book Mein Kampf.

When in 1925 the Party was established again, Rudolf Hess was one of the first to resume with Adolf Hitler the struggle for a national rebirth of the German people. During the first years after its re-establishment, the Party at first only began to develop slowly. Germany's domestic economy had recovered from the worst effects of the Ruhr invasion. The currency had been stabilised and owing to very extensive foreign credits it had even been possible to bring about an economic boom.

Very soon, however, it was revealed that the economic progress of the years 1927-1928-1929 in reality was but illusory prosperity for which in Germany, at any rate, there was no foundation of a sound and well-balanced national economy. It is true that the economic crisis which began in 1930 was a general crisis in world economy and that the decline which Germany experienced at that time was but a part of the general disintegration in the world economy. It is just as certain, however, that it was not a question here simply of a seasonal decline within the capitalist economy - such as had been experienced repeatedly before by individual commercial economies of States and by world economy - but a case, in this instance, of structural changes arising from various causes, one of the most important of which, however, undoubtedly was the disturbance in the exchange of products and legal tender caused by the unreasonable reparations policy.

It is certain that the reason the consequences of the crisis of the world economy were so devastating in Germany, finally finding expression in an unemployment figure of almost seven millions, was because the changes brought about in the national economy as a result of reparations payments were particularly far-reaching. The fact that the National Socialist Party won a major electoral victory in the Reichstag elections of 14th September, 1930, and entered the new Reichstag with no less than 107 delegates, is not to be principally attributed to the economic crisis then prevailing, to the great unemployment and, indirectly, to the economic absurdity of the reparations payments and the refusal of the victorious States to consent to a new arrangement despite the most urgent warnings. True, the reparations payments stipulated in the Treaty of Versailles and the mode of settlement were amended by the Dawes and Young plans. It is, however, just as trite that these amendments came too late and demands were continued for payments from Germany to an extent and under conditions which were bound to, and did in fact, lead to an economic catastrophe. In this connection, I must point to the following fact: The prosecution has produced an extensive amount of documentary evidence in reference to the rise of the NSDAP until its seizure of power. A comparison of the Reichstag mandates in the years ranging from 1930 to 1932 with the unemployment figures for the same period would disclose that the progression of these figures was approximately parallel. The more hopeless the social consequences of unemployment became - and in 1932, no less than 25 million people may be estimated to have been affected by the consequences of unemployment - the more impressive became the electoral successes of the National

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Socialists. I hardly think there could be a more convincing proof of the existence of a causal relation between the consequences of the reparations policy of the victorious Powers of 1919 and the rise of National Socialism. The causal relation may be summed up in a short formula: No Versailles Treaty, no reparations - no reparations, no economic collapse with its particularly catastrophic effects upon Germany, which found expression in an unemployment figure of nearly seven millions - and without this collapse, no seizure of power by the National Socialists. The political and historical responsibility of the authoritative statesmen of the opposite side resulting from this causal connection is so crystal-clear that further demonstrations of it are superfluous in the framework of this trial.

This formula may appear too pointed, and it may furthermore be true that it was not the economic emergency and the high unemployment figure alone which induced millions of Germans to vote National Socialist on the 14th September for the first time, and which led to the subsequent progress of the Party's rise to power. Nevertheless, these causes were assuredly among the foremost, and even the other causes which played a part in the decision of many voters can finally be traced back to the fatal effects of the Treaty of Versailles and refusal of the victorious powers - especially France - to consent to a revision of the treaty. This applies in the first place to the claim for equality of rights raised by all subsequent democratic governments.

When the German nation had disarmed in fulfilment of the Versailles Treaty, it was entitled to expect the victorious Powers to disarm also, in accordance with the obligation assumed by them in the Treaty. This was not carried out, and there can be no doubt that their denial of the equality of rights, as evidenced by their refusal to disarm themselves, figures amongst the most decisive causes of the rise of National Socialism in the years 1931 and 1932. And if any of Hitler's arguments ever found a response in the German nation, it was that equality of rights could not be denied in the course of time, even after a lost war, to a nation like the German nation with a population of over 75 millions, situated in the heart of Europe and with a cultural past of which few other nations can boast. It has already been remarked in this courtroom that a nation which has produced a Luther, a Goethe and a Beethoven cannot be indefinitely treated as a minor nation.

Again and again Hitler had occasion to remark upon the fact that the statesmen of the Weimar Republic left no method untried to arrive at a peaceful revision of the more unbearable clauses of the Treaty of Versailles. For eight years the statesmen of democratic Germany, a Stresemann, and a Bruning, went to Geneva to obtain the repeatedly promised equality of rights for Germany and they were repeatedly sent home with empty hands. The dangers produced by this situation could not remain concealed from anyone. In fact, the world was warned by German statesmen, as well as by shrewd politicians of Germany's former enemies. All these warnings were ignored.

When finally in 1932 the National Socialist Party with 250 seats in the Reichstag had become by far the strongest party in Germany, it could only be a question of time until Hitler and his party would be entrusted with the taking over of government leadership. This was all the more inevitable since the heads of the previous governments, Herr von Papen and General Schleicher, had no effective following in the Reichstag at their disposal and exercised their governmental authority exclusively by means of emergency decrees in accordance with Article 48 of the Weimar Reich Constitution. When on 30th January, 1933, Adolf Hitler was actually appointed Reich Chancellor by Reich President von Hindenburg and was entrusted with the formation of a new cabinet, this was done legitimately according to the clauses of the Reich Constitution.

At the Reichstag election in 1932 the National Socialist Party obtained in its favour more votes than had been received by any party since the existence of the German Reich. If the leader of this strongest party was entrusted with the formation of the Cabinet, then this was by no means extraordinary, particularly

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in view of the parliamentary conditions prevailing in Germany at that time, and there cannot be the slightest doubt that Hitler and his Party came to power legally, that is according to the Constitution. However, it is correct that in the course of the following years the constitutional structure of the German Reich, and particularly Hitler's position, underwent a change. There is, however, no evidence on hand that this development as well was not legal. In this respect, in order to avoid repetition, I am referring to the statements of the witness Dr. Lammers.

In this case it may be left completely undecided whether one wants to attribute this development to Hitler's absolutely autocratic rule by the creation of a so-called common law or whether one avails oneself of another theory. For the scope of this trial it seems to me much more decisive that not a single nation with which Germany maintained diplomatic relations raised any objections whatsoever, or even drew diplomatic or international legal conclusions either at the seizure of power or on the occasion of the transformation of the constitutional structure carried on openly before the entire world. Neither at the seizure of power nor at any later period was the question of diplomatic and international legal recognition of the National Socialist State in doubt.

In addition, may it merely be pointed out that the law, which in the following period was to be of the greatest importance for the relationship between citizen and State, was still issued by Reich President von Hindenburg pursuant to Article 48 of the Reich Constitution. I have in mind the decrees of the Reich President for the protection of the people and the State, dated 28th February, 1933 (Reichsgesetzblatt, Part 1, Page 83). In Article 1 of this decree, the pertinent basic laws of the Weimar Constitution were voided and curtailments of personal liberty, the rights of free speech, including freedom of the Press, the right to organize and assemble, interference in the privacy of the letters and mails, telegraph and telephone, orders for searching of homes and confiscations, as well as limiting property, were declared valid.

From a formal viewpoint there can be just as little doubt about the validity of this decree as there can be about any other so-called constitutional or basic State law issued by the Reichstag, the Reich Cabinet, the Ministerial Council for Reich Defence, or by Hitler himself.

On behalf of the defendant Rudolf Hess, I have already stated that he assumes the full responsibility for all laws and decrees which he has signed in his capacity as the deputy of the Fuehrer, as Reichsminister and member of the Ministerial Council for Reich Defence.

I have refrained from presenting documentary evidence in reference to accusations which, as a sovereign State, merely concern the domestic affairs of the German Reich and have no bearing on the crimes against peace and crimes against the laws of war specified by the prosecution. I shall, therefore, now also only touch on such laws and constitutional and political measures which have some recognizable connection with the actual Counts of the Indictment and the common plan or conspiracy asserted by the prosecution.

The Indictment accuses the defendant Rudolf Hess of having sponsored the military, economic and psychological preparations for war and of having participated in the political planning and preparation of wars of aggression. As evidence for this assertion, the prosecution pointed to the fact that the defendant Rudolf Hess, in his capacity as Reich Minister without portfolio, co-signed the law of 16th March, 1935, for the reconstruction of the armed forces. This law reintroduced general conscription in Germany and stipulated that the German peace-time army was to be divided into 12 corps commands and 36 divisions. For this trial the proclamation which the Reich Cabinet directed to the German people in connection with the publication of this law, and which was placed ahead of the law in the Reichsgesetzblatt, appears to me no less important than the contents of this law. I refer to the contents of this proclamation which has been presented as an exhibit. This proclamation of 16th March, 1935, contains no essential

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arguments on this question which had not already previously been brought out by the democratic German Government at the time of the Weimar Republic.

Your Honours, the Tribunal has permitted me at least to read some of my brief in connection with this question. However, in view of the fact that defence counsel for the defendant von Neurath has already referred to this question in detail, I shall merely refer to his argument in this connection, and I shall therefore, on my part, forgo detailed comment on that question. Rather, I shall continue on Page 119 of my script and begin with the fourth line from the bottom of the page.

The reintroduction of general military service by the law of 16th March, 1935, is apparently not considered in the Indictment as a punishable offence in itself, but only as part of the general plan asserted by the prosecution, which is claimed to have been intended to commit crimes against peace, against the laws of war and against humanity. Whether such a plan ever existed at all, whether and to what extent the defendant Rudolf Hess was involved in it, and what part the reintroduction of general military service may have played in both an objective and a subjective way, I shall take up in detail later.

Within the scope of the common plan, of having planned and prepared a war of aggression, the defendant Rudolf Hess is also accused of having, in his capacity as deputy of the Fuehrer, set up the foreign organization of the NSDAP, the National League for Germans Abroad, the German Eastern League, the German-American Bund and the German Foreign Institute. The documents submitted by the prosecution in this connection are not able to furnish proof to the effect that the defendant Hess himself issued directives or orders to these organizations, which could have caused them to pursue activities similar to those of a fifth column. The testimony of the witnesses Bohle, Stroelin and Alfred Hess has, on the contrary, proved that the defendant Hess, in particular, forbade these organizations and leaders in the most definite way to interfere in the internal affairs of other countries. The prosecution has not been able to prove in any way that the above-named organizations had actually developed activities which were aimed at undermining the structure of foreign States from within.

Under these circumstances it is superfluous to go into the activity of the above-named organizations and establishments in more detail, all the more so since there is nothing at all tending to prove that there was any causal connection between the tasks and functions of these organizations and the events which later led to the outbreak of war in the year 1939.

The prosecution furthermore tried to prove that defendant Rudolf Hess also took a decisive part in the occupation of Austria on 12th March, 1938. I do not intend to enter into details of the history of the annexation and to consider from the legal point of view the facts which actually led to the annexation of Austria to the German Reich in the year 1938. In order to save time, again I shall refer to the extensive statement made by the defence counsel for the co- defendant, Dr. Seyss-Inquart, and I shall now continue in my brief on Page 23, beginning with paragraph 2.

Whatever now concerns the participation of the defendant Rudolf Hess and the Party in the execution of the annexation, the evidence has shown here only that the annexation of Austria was an incident which did not really have anything to do with the National Socialist Party in the Reich as such. It is sufficient to refer in this connection to the testimony of the defendant Goering and to that of Dr. Seyss-Inquart on the witness stand, which shows that the question of the annexation was solved exclusively by the Reich; that is, therefore, by State authority and not by the Party.

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