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 6 of 9)

[DR. SEIDL continues.]

[Page 362]

The efforts to come nevertheless to an understanding with Poland with regard to the question of Danzig and the Corridor, made after the conclusion of the German-Soviet Non- Aggression Agreement and of the Secret Supplementing Protocol belonging to it, failed. The Pact of Assistance which was made on 25th August, 1939, between Great Britain and Poland did not prevent the outbreak of the war, but simply delayed it for a few days. I have no intention of going into particulars of the diplomatic negotiations which were conducted after the conclusion of the German-Soviet Agreement of 23rd August, 1939, in an effort to obtain an agreement. One thing, however, can be said with certainty:

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Should the one-sided guarantee declaration of England of 31st March, 1939. show that it increased the already existing stubbornness of the Polish Government against the German offers, then an assistance pact with Great Britain would operate quite certainly against a readiness to negotiate on the part of the Polish Government. The failure of the negotiations which were carried on between Germany and Poland are all the less surprising when one bears in mind the testimony of the witness Dahlerus before this Tribunal. Had not this witness confirmed that the Polish Ambassador in Berlin, Lipski, declared on 31st August, 1939 that he was not interested in discussing the proposals of the German Government? He based this negative attitude on the statement that in case of war a revolution would break out in Germany and the Polish Army would march towards Berlin.

Whatever the news might have been which induced the English Government to conclude the treaty with Poland, and which possibly intimated a rift in the German-Italian alliance and symptoms of deterioration in the German State structure - and here I refer to the testimonies of the witnesses Dahlerus and Gisevius - the future will prove that such ideas were not based on any facts.

When, on 1st September, 1939, war broke out between Germany and Poland, it was at first a matter of a localised conflict between two European States. But when Great Britain and France declared war on Germany on 3rd September, 1939 this conflict expanded into a European war, into a war which, as all modern wars between great Powers have indicated, from its very beginning tended to develop into a world war because of the presently insufficient preventive international organization and the complete collapse of the system of collective security. This war was to bring immeasurable suffering for all humanity, and when on 8th May, 1945, the European war found its end with Germany's unconditional surrender, it left behind a Europe in ruins.

Adolf Hitler did not live to see Germany's collapse and unconditional surrender. Twenty-two former leaders of National Socialist Germany stand before the bar of the Tribunal in order to answer charges of having committed crimes against the peace, against the rules of warfare, and against humanity in the execution of a common plan.

The so-called London Agreement of 8th August, 1945, concluded between the Government of Great Britain and Northern Ireland, the Government of the United States of America, the provisional Government of France, and the Government of the Union of Soviet Socialist Republics, is the basis of this trial. The present Tribunal was created pursuant to this agreement, the composition, competency, and tasks of which were established by the Charter of the International Military Tribunal, which is a considerable part of this agreement concluded by the four Governments on 8th August, 1945.

The Charter of the International Military Tribunal, however, does not only contain the regulations dealing with its composition, competence, and tasks; besides those, it includes - and these are the most important parts of the Charter - the regulations for its material-juridical contents. This applies above all to Article 6, which contains the definitions of crimes against the peace, war crimes, and crimes against humanity, with all the characteristics of such cases. Paragraph 3 of Article 6 of the Charter, which enumerates the characteristics of the so- called conspiracy in detail, has to be considered above all as the penal basis of the case. Furthermore, Articles 7, 8 and 9 of the Charter are to be considered as material- juridical regulations.

The subsequent part of my brief was not allowed by the Tribunal. It deals principally with the contents of the statement made by the defence at the beginning of this trial on the 21st of November; and therefore I need not read them.

I continue on Page 40, with the last paragraph.

In the Indictment the defendant Hess is charged with having supported the seizure of power of the so-called Nazi conspirators, the strengthening of their

[Page 364]

control over Germany, and furthermore the furthering of the military, economic and psychological preparations for war. He is furthermore charged with having participated in the political planning and preparation of wars of aggression and of wars in violation of international treaties, agreements and assurances, and in the preparation and planning of the foreign political schemes of the so-called Nazi conspirators.

THE PRESIDENT: This ought to be a convenient time to break off.

(A recess was taken.)

DR. SEIDL: Your Honours:

Count 1 of the Indictment refers to the so-called common plan of conspiracy. According to it, all the defendants and various other persons are alleged to have participated for a number of years prior to 8th May, 1945, in the planning and execution of a common plan as leaders, organisers, instigators and collaborators. This plan aimed at and brought about the commitment of crimes against the peace, of crimes against the laws of warfare and against humanity. It is asserted that the defendants planned, prepared, unleashed and directed wars of aggression, and committed war crimes against humanity in the execution of this common plan.

While the Charter only knows three specifications of crimes - crimes against the peace, against the rules of warfare, and against humanity - the Indictment contains four of them. In the Indictment, the common plan or conspiracy is made an individual and independent count of the charge, without the Charter bringing forth sufficient reasons for this. It may be left undecided whether conspiracy is considered a particular type of crime according to Anglo-American law. In view of the fact that the Charter rejects the use of both Anglo-American and Continental law, but has established its own standards of law, and these sui generis, only the text and spirit of the Charter itself is decisive.

According, however, to what is expressly stated in Article 6, paragraph 3, of the Charter, regarding the outlining or execution of a plan for the perpetration of a crime against peace, against the customs of war, or against humanity, it cannot be subject to any doubt that there cannot be an independent state of criminality as stated in Count 1 of the Indictment under the heading of Concerted Plan or Conspiracy. At all events, not according to the principle of the provisions of the Charter.

Since the defendant Hess has been charged with all four counts of the Indictment, it is necessary first to answer Count 1 of the Indictment:

The Indictment places at the centre of the incriminated concerted plan or conspiracy the National Socialist German Workers' Party (NSDAP) of which Adolf Hitler had become the leader in 1921, and which the defendant Rudolf Hess also joined as early as 1921. Even the Indictment does not, apparently, claim that the party programme of the NSDAP was actually criminal in itself. It appears all the less necessary to probe farther into this question, as in the subsequent routine of political life the party programme has not by any means played the part which could probably be supposed. Moreover, the appraisal of evidence has definitely revealed, as far as the position and rise of the NSDAP is concerned, that up to 20th January, 1933, the National Socialist Party was a party alongside other parties; that it fought with the same legitimate means as other parties for the attainment of its objectives; and that not least among the factors of its rise is that Germany experienced, in 1932- 1933, as a consequence of the reparations policy of the victor Powers in 1919, an economic and social decline of uncommon magnitude; and that, finally, on 30th January, 1933, the Party, as the strongest, was entrusted with the formation of the Government in application of the provisions of the Reich Constitution, and its leader, Adolf Hitler, was nominated Reich Chancellor.

[Page 365]

During the so-called period of struggle, the Party, like all other parties, openly fought for the principles it represented, and the prosecution could not submit in evidence a single argument which allowed the conclusion to be drawn that by using illegal means the Party and its leaders had been participants in a common plan aiming at launching a war of aggression. In fact, one need only keep in mind the political, economic, and military condition of Germany in the first years after the end of World War I in order to recognize how mistaken the acceptance of such a plan, aiming at starting a war, is for that time. The conception put forward by the Indictment reveals not only an entirely false idea of the economic, political, and military conditions which Germany faced as a consequence of the peace settlement of Versailles, but this conception also discloses complete failure to appreciate the intrinsic virtue of any policy.

When Adolf Hitler as the leader of the strongest party had been appointed Reich Chancellor by Reich President von Hindenburg on 30th January, 1933, it was necessarily out of the question for him and his Government, in which other parties participated, to start drafting a common plan aiming at a war of aggression, not being abreast with political, and above all, economic conditions. The problems which the German Reich Cabinet faced at that time resulted directly from the fact that up to 7,000,000 unemployed people in Germany had to be put to work. As the witness Dr. Lammers stated, the elimination of economic and social distress actually was the most important question at the first Cabinet session. There was no question at all of a common plan aiming at launching a war of aggression, and in fact, it is inconceivable that in the circumstances at that time even one member of the Government could consider such an idea in some concrete shape. Furthermore, it has been established through the testimony of Dr. Lammers and other witnesses that the subject matter of the first Cabinet meeting and the resolutions there passed are contained in the governmental declaration of 1st February, 1933, made known to the German people in the form of a manifesto of the German Government.

According to the Indictment, abrogation of the armaments restrictions imposed on Germany through the Versailles Treaty was the first aim of the conspiracy charged by the prosecution. I have already expressed my opinion on that question. The final refusal of the victor Powers to disarm in their turn, according to their pledge, at least accorded the German Reich the right to obtain an equalisation of armament through its own rearmament. This was not done in secrecy by any means, but in public, through the announcement of the reintroduction of the Draft Law on 16th March, 1935. The prosecution has not been able to show evidence for its assertion that this law was connected with, and was part of, a common plan aimed at bringing about a war of aggression. The exclusive purpose of the law was rather to re-establish Germany's right to equality at least for that question, sixteen years after the end of the First World War. Here, too, with regard to the details I also refer to the statements of counsel for the defendant von Neurath.

In this connection brief reference is appropriate to a document which the prosecution produced, together with nine other documents, so-called key documents, and which first of all serve the purpose of establishing the proof of existence of the common plan claimed in the Indictment. This is the written record of a discussion at the Reich Chancellery of 5th November, 1937, Exhibit USA 25, Document 386-PS. As is known to the Tribunal, this is not a literal reproduction of Adolf Hitler's statements, but a report by Colonel Hoszbach which was drafted by the latter five days later, viz., on 10th November, 1937. I have no intention of entering any farther into the contents of this document. I refer here to the statements which other defence counsel have made on this question. I only mention that when addressing this speech to the Commanders-in-Chief and the Minister for Foreign Affairs at that time, Hitler had a chronological plan in view which reveals no conformity whatever with the subsequent events. In these circumstances, the existence of a determined and well-outlined plan by Hitler

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himself seems very unlikely. Only one conclusion can, with certainty, be drawn from the contents of this document: namely, that until 5th November, 1937, Hitler himself only thought of an amicable settlement of the territorial problems raised by the Versailles Treaty. For this reason, therefore, there can have been no question of a common plan aiming at the launching of a war of aggression - at least, up to this time.

This document, however, is still worthy of notice for another reason: The report begins with the Fuehrer's assertion:

"that the subject of today's conference is of such importance that its discussion in other States would belong to the Forum of the Government Cabinet. He (the Fuehrer) however, considering the importance of the matter, refrained from making it the subject of discussion in a full session of the Reich Cabinet."
First of all, it can be left undecided in how far other questions from 1937 on were still dealt with by the Reich Cabinet in Cabinet sessions, or in the so-called circulation procedure; in the administrative procedure or in the legislative way. The conclusion can, however, be drawn with certainty, by reason of the total outcome of the presentation of evidence, and in particular by reason of the witness Dr. Lammers's statements and those of other witnesses, also from a great number of documents submitted by the prosecution itself, that, at the latest, from 5th November, 1937, all problems concerning the question of war and peace were no longer dealt with by the Government as State authority, nor by the larger circle of collaborators remaining almost the same, but exclusively by Adolf Hitler himself. In all probability this situation already existed in the year 1933.

In this connection, I should like to draw attention to the statements of several defendants in the witness box who, for example, were informed of the reoccupation of the demilitarised zone of the Rhineland in the same way as any other citizen, i.e., by means of the Press and radio.

It is certain, however, that all important political and military decisions were taken by Adolf Hitler alone after 5th November, 1937, and particularly after the so-called Fritzsch crisis and the transformation of the Reich War Ministry into the High Command of the Wehrmacht which it involved. According to the witness Dr. Lammers's statements, general conferences between the Reich Government, the Supreme Party Directorate and the generals never took place. According to the statement of this witness and others, it appears that a close connection never existed between these three bodies. Indeed, not a single one of the documents submitted by the prosecution reveals anything which might justify us admitting the existence of an independent collaboration between the Reich Government, the Supreme Party Directorate and the Reich War Ministry or afterwards the High Command of the Wehrmacht and the Commanders-in- Chief of the Wehrmacht branches and their Chiefs of Staff. On the contrary, if a positive conclusion can really be drawn from the presentation of evidence, it is that the power was concentrated exclusively in the hands of Adolf Hitler, that the Reich Government, the Supreme Party Directorate and the Wehrmacht received their orders and directives only from him; that it was Hitler's own policy to prevent a working and independent combination of these institutions.

It can thus also be explained that in all questions of a political or military nature, only those offices were included which had directly to do with the task to be carried out. It is clear from all the documents submitted by the prosecution that, as a rule, at the conferences presided over by Hitler, there was no question of conferences as, is customary in parliamentary democracies, but they were essentially only concerned with the issuing of orders.

It is not necessary to examine in detail the statements on their relation to Adolf Hitler made by nearly all the defendants, nor is it necessary to define an attitude towards the statements on the attitude assumed by a whole series of other witnesses regarding Adolf Hitler's position in the German governmental system. One

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thing can be said with certainty: At the latest, from 5th November, 1937, on, Hitler's position was so commanding and his treatment of all decisive political and military questions so free of doubt, that for this reason alone there could be no grounds left for the acceptance of a common plan.

The defendant Rudolf Hess, though the Fuehrer's Deputy and the highest political leader for Party matters, did not contribute to nor take part in any of the conferences, or any important political or military decisions characterised by the prosecution as being essential to prove the existence of a common plan, just as little as he contributed to or took part in the conference of the Fuehrer in the Reich Chancellery on 5th November, 1937 (Exhibit USA 25).

The same holds good, for example, for the next exhibit, USA 26 (Document 388-PS), submitted by the prosecution. This is the most important case "Grun", Czechoslovakia. Without having to enter any farther into the details of this document, it can be said without more ado that it deals only with what is entirely the work of the General Staff, which was originally intended as a problem, and afterwards elaborated into a real operational plan. This operational plan was not put into action; the documents referring to case "Grun", on the contrary, conclude with Directive 1 of the Fuehrer and Supreme Commander of the Wehrmacht, which refers to the occupation of the Sudeten German areas separated from Czechoslovakia by virtue of the Munich Agreement of 29th September, 1938. In these circumstances, it is superfluous to deal further with the letter of the Chief of the High Command of the Wehrmacht to the Fuehrer's Deputy of 27th September, 1938, which is also contained in the documents for the "Grun" case, and refers to the carrying out of mobilization measures which were to be effected without the issuing of a mobilization order or a corresponding code word.

What I have already said concerning Exhibit USA 25 applies in the same way to Exhibit USA 27 (Document L-79). This is another so-called key document having as subject the instruction of the Commanders-in-Chief of the Wehrmacht branches and the Chiefs of the General Staff by the Fuehrer in the new Reich Chancellery on 23rd May, 1939.

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