Chapter XXI: Book 1: , Mr. President (9)

[_A recess was taken._]

THE PRESIDENT: Mr. Dodd, you have got some other papers to put in?

MR. DODD: I would like to offer, Mr. President, Document 4006-PS, which is the bulletin of the Reich Minister for Armament and Ammunition; and it is a matter that the Tribunal, in our judgment, may take judicial notice of. It is an official publication, but it will be quite helpful in connection with the labor program as between Sauckel and Speer; and it is offered for that purpose, to clear up some of the doubts that may have arisen after the Speer and Sauckel testimony. I think there is no necessity to read it at all but simply to offer it. And it would become Exhibit USA-902.

And then I would like to offer Document 1452-PS. This is a report of a conference of the chiefs with the chief of the department of the Economic Armament Office, and I would just like to read a short excerpt from it. It is Document 1452-PS, dated the 24th of March 1942. It says:

“Conferences of the chiefs with the chief of the department.
Report of the chief of the department on the conference on the
23d of March with Milch, Witzell, Leeb, in Minister Speer’s
office. The Führer looks upon Speer as his principal mouthpiece,
his trusted adviser in all economic spheres. Speer is the only
one who has something to say today. He can interfere in any
department. He already disregards all other departments.”

The remainder of the document we do not wish to quote, I do not think it is necessary because the text is not changed any by what we have quoted from it. That becomes Exhibit USA-903.

Now, we also have here some photographs, Mr. President; and these are offered with respect to the Defendant Kaltenbrunner. They were turned over to us by our colleagues of the French Prosecution. And the first one is Document F-894, which becomes Exhibit USA-904. That is a picture showing Himmler congratulating someone, Kaltenbrunner immediately to his rear.

THE PRESIDENT: How are they identified?

MR. DODD: I will submit it—well, these are all captured documents, of course, but—you mean in the picture, Mr. President?

THE PRESIDENT: No, I mean by capture or any other way. Where do they come from?

MR. DODD: Well, I assume them to be all captured documents. Oh, I see now—there are affidavits attached to each one which explain their source. Here, this first one is a man by the name of François Boix, who says that he is a photographer and was interned at Mauthausen and so on; and he attests that this photograph was taken, and so forth. I think that is sufficient—I assume it is—to identify the picture. I believe that each one of them has a similar statement.

Now the next one is Document F-896, which becomes Exhibit USA-905. And this as well on the back of the original bears an affidavit by François Boix.

The next one is Document F-897, which becomes Exhibit USA-906. And this as well, bears the affidavit of François Boix and shows Kaltenbrunner and Himmler and other SS officials.

And then, lastly, Document F-895, which becomes Exhibit USA-907; and this picture we particularly call to the Tribunal’s attention. It, as well, bears the certificate of François Boix. Kaltenbrunner is there in the second row, Himmler and Hitler in the immediate center between Kaltenbrunner and, apparently, Martin Bormann, taken at a concentration camp, which appears from the picture of the inmates on the left side.

Then we wish to offer a very short affidavit, which is Document 4033-PS and we offer as Exhibit USA-907—no, 8, 908. It is the deposition of Oswald Pohl, P-o-h-l, dated the 28th of May 1946. The affidavit—the substance of the affidavit reads as follows:

“I can say with absolute certainty that while on official
business at Mauthausen I saw and spoke to SS Obergruppenführer
Kaltenbrunner...”

THE PRESIDENT: One moment. Was Pohl called as a witness?

MR. DODD: No, Sir, he was not, he was not called. That was Puhl, P-u-h-l. The names are similar.

“...I saw and spoke to SS Obergruppenführer Kaltenbrunner there
at the officers’ mess on the right-hand side of the camp
entrance either in the autumn of 1943 or the spring of 1944. I
took lunch with him there at the mess table.”

And then another affidavit, Document 4032-PS, which becomes Exhibit USA-908—no, 909. I think it is unnecessary to read this; it has been translated. It is the deposition of one Karl Reif, R-e-i-f, in which he states that he saw Kaltenbrunner either in May or June, about midday, in 1942 in the camp at Mauthausen.

That is all we have to offer, Mr. President.

THE PRESIDENT: Do the other members of the Prosecution wish to offer any other evidence?

[_There was no response._]

Then now we can pass to evidence to be called on behalf of Bormann. Dr. Bergold, will you call the witnesses you wish to call—Kempka.

DR. BERGOLD: Gentlemen of the Tribunal, I shall call the witness Kempka.

[_The witness Kempka took the stand._]

THE PRESIDENT: Will you state your full name, please.

ERICH KEMPKA (Witness): My name is Erich Kempka.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the Almighty and Omniscient:—that I will speak the pure truth—and will withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. BERGOLD: Witness, in what capacity were you employed near Hitler during the war?

KEMPKA: During the war I worked for Adolf Hitler as his personal driver.

DR. BERGOLD: Did you meet Martin Bormann in that capacity?

KEMPKA: Yes, I met Martin—Reichsleiter Martin Bormann in this capacity at that time as my indirect superior.

DR. BERGOLD: Witness, on what day did you see the Defendant Martin Bormann for the last time?

KEMPKA: I saw the Reichsleiter, the former Reichsleiter Martin Bormann, on the night of 1-2 May 1945 near the Friedrichstrasse railroad station, at the Weidendammer Bridge. Reichsleiter Bormann—former Reichsleiter Bormann—asked me what the general situation was at the Friedrichstrasse station, and I told him that there at the station it was hardly possible...

THE PRESIDENT: You are going too fast. He asked you what?

KEMPKA: He asked me what the situation was and whether one could get through there at the Friedrichstrasse station. I told him that was practically impossible, since the defensive fighting there was too heavy. Then he went on to ask whether it might be possible to do so with armored cars. I told him that there was nothing like trying it.

Then a few tanks and a few SPW (armored personnel carrier) cars came along, and small groups boarded them and hung on. Then the armored cars pushed their way through the antitank trap and afterwards the leading tank—along about at the middle of the tank on the left-hand side, where Martin Bormann was walking—suddenly received a direct hit, I imagine from a bazooka fired from a window, and this tank was blown up. A flash of fire suddenly shot up on the very side where Bormann was walking and I saw...

THE PRESIDENT: You are going too fast. You are still going much too fast. The last thing I heard you say was that Bormann was walking in the middle of the column. Is that right?

KEMPKA: Yes, at the middle of the tank, on the left-hand side.

Then, after it had got 40 to 50 meters past the antitank trap, this tank received a direct hit, I imagine from a bazooka fired from a window. The tank was blown to pieces right there where Martin—Reichsleiter Bormann—was walking.

I myself was flung aside by the explosion and by a person thrown against me who had been walking in front of me—I think it was Standartenführer Dr. Stumpfecker—and I became unconscious. When I came to myself I could not see anything either; I was blinded by the flash. Then I crawled back again to the tank trap, and since then I have seen nothing more of Martin Bormann.

DR. BERGOLD: Witness, did you see Martin Bormann collapse in the flash of fire when it occurred?

KEMPKA: Yes, indeed, I still saw a movement which was a sort of collapsing. You might call it a flying away.

DR. BERGOLD: Was this explosion so strong that according to your observation Martin Bormann must have lost his life by it?

KEMPKA: Yes, I assume for certain that the force of the explosion was such that he lost his life.

DR. BERGOLD: How was Martin Bormann dressed at that time?

KEMPKA: Martin Bormann was wearing a leather coat, an SS leader’s cap, and the insignia of an SS Obergruppenführer.

DR. BERGOLD: Do you therefore believe that if he had been found wounded on that occasion he would have been immediately identified, by this clothing, as being one of the leading men of the Movement?

KEMPKA: Yes, indeed.

DR. BERGOLD: You said that another man was walking either beside or ahead of Martin Bormann, namely a Herr Naumann of the Propaganda Ministry?

KEMPKA: Yes, it was the former State Secretary, Dr. Naumann.

DR. BERGOLD: Was he approximately at the same distance from the explosion?

KEMPKA: No, he was about 1 or 2 meters ahead of Martin Bormann.

DR. BERGOLD: Have you seen anything of this State Secretary Naumann subsequently?

KEMPKA: No, I have not seen him again either, nor Standartenführer Dr. Stumpfecker.

DR. BERGOLD: Then you crawled back, did you not?

KEMPKA: Yes.

DR. BERGOLD: And nobody else followed you?

KEMPKA: Certainly. Always, when you passed this antitank trap, you would run into defensive fire; a few only would remain lying on the spot while the rest always retreated. But those on that tank I have never seen again.

DR. BERGOLD: Gentlemen of the Tribunal, I have no further questions for this witness.

MR. DODD: I have no questions, Mr. President.

THE PRESIDENT: Do the Defense Counsel want to ask him any questions?

[_There was no response._]

[_Turning to the witness._] How many tanks were there in this column?

KEMPKA: That I cannot say at the moment—possibly two or three. There may have been four, but there were more SPW cars, armored personnel carriers.

THE PRESIDENT: How many were there of them?

KEMPKA: More and more came up, and then some of them drove away again. They tried to break through at that point. Possibly one or two tried. The others withdrew after the tank was blown up.

THE PRESIDENT: Where did the column start from?

KEMPKA: That I do not know. They came quite suddenly—there they were, I assume that they were tanks which had withdrawn into the middle of the town and were also trying to break out in a southerly direction.

THE PRESIDENT: When you say they were there suddenly, where do you mean they were? Where did they pick you up?

KEMPKA: I was not picked up. I left the Reich Chancellery...

THE PRESIDENT: Well, where did they join you? Where did you first see them?

KEMPKA: At the Weidendammer Bridge, behind the Friedrichstrasse station. They turned up there during the night.

THE PRESIDENT: Where was it that Bormann first asked you whether it would be possible to get through?

KEMPKA: That was at the tank barrier behind the Friedrichstrasse station at the Weidendammer Bridge.

THE PRESIDENT: Do you mean that you met him in the street?

KEMPKA: Yes. Martin Bormann was not present when we left the Reich Chancellery; he did not appear at the bridge until between 2 and 3 o’clock in the morning.

THE PRESIDENT: You met him there just by chance, do you mean?

KEMPKA: I only met him by chance, yes.

THE PRESIDENT: Was there anybody with him?

KEMPKA: State Secretary Dr. Naumann from the Ministry of Propaganda was with him, as well as Dr. Stumpfecker who had been the last doctor who was with the Führer.

THE PRESIDENT: How far were they from the Reich Chancellery?

KEMPKA: That is—are—up to—from the Reich Chancellery to the Friedrichstrasse station is approximately a quarter of an hour’s walk under normal circumstances.

THE PRESIDENT: And then you saw some tanks and some other armored vehicles coming along, is that right?

KEMPKA: Yes, yes indeed.

THE PRESIDENT: German tanks and German armored vehicles?

KEMPKA: Yes, German armored cars.

THE PRESIDENT: Did you have any conversation with the drivers of them?

KEMPKA: No, I did not talk to the drivers. I think State Secretary—former State Secretary Dr. Naumann did.

THE PRESIDENT: And then you did not get into the tanks or the armored vehicles?

KEMPKA: No, we did not get in—neither State Secretary Dr. Naumann nor Reichsleiter Bormann.

THE PRESIDENT: You just walked along?

KEMPKA: I just walked along, yes.

THE PRESIDENT: And where were you with reference to Bormann?

KEMPKA: I was behind the tank, about—on the left-hand side behind the tank.

THE PRESIDENT: How far from Bormann?

KEMPKA: It was perhaps 3 or 4 meters.

THE PRESIDENT: And then some missile struck the tank, is that right?

KEMPKA: No, I believe the tank was hit by a bazooka fired from a window.

THE PRESIDENT: And then you saw a flash and you became unconscious?

KEMPKA: Yes, I suddenly saw a flash of fire and in the fraction of a second I also saw Reichsleiter Bormann and State Secretary Naumann both make a movement as if collapsing and flying away. I myself was thrown aside with them at that same moment and subsequently lost consciousness.

THE PRESIDENT: And then you crept away?

KEMPKA: When I recovered I could not see anything and then I crawled away and crawled until I bumped my head against the tank barrier.

THE PRESIDENT: Where did you go to that night?

KEMPKA: I waited there for a while, and then I said farewell to my drivers, some of whom were still there; and then I stayed in the ruins of Berlin, and on the following day I left Berlin.

THE PRESIDENT: Where were you captured?

KEMPKA: I was captured at Berchtesgaden.

THE TRIBUNAL (Mr. Biddle): How near were you to the tank when it exploded?

KEMPKA: I estimate 3 to 4 meters.

THE TRIBUNAL (Mr. Biddle): And how near was Bormann to the tank when it exploded?

KEMPKA: I assume that he was holding on to it with one hand.

THE TRIBUNAL (Mr. Biddle): Well, you say you assume it. Did you see him or did you not see him?

KEMPKA: I did not see him on the tank itself. But to keep pace with the tank I had done the same thing and had held on to the tank at the back.

THE TRIBUNAL (Mr. Biddle): Did you see Bormann trying to get on the tank just before the explosion?

KEMPKA: No, I did not see that. I did not see any effort on Bormann’s part which indicated that he wanted to climb onto the tank.

THE TRIBUNAL (Mr. Biddle): How long before the explosion were you looking at Bormann?

KEMPKA: All this happened in a very brief period. When I was still talking to Bormann the tanks turned up and we passed the tank trap right away and after 30 or 40 meters the tank was hit.

THE TRIBUNAL (Mr. Biddle): What do you call a brief period?

KEMPKA: Well, while we were talking, that was perhaps a few minutes only.

THE TRIBUNAL (Mr. Biddle): And how long between the conversation and the explosion?

KEMPKA: I cannot tell you the exact time, but surely it was not a quarter of an hour, or perhaps rather not half an hour.

THE TRIBUNAL (Mr. Biddle): Had you been in the Chancellery just before this?

KEMPKA: I left the Reich Chancellery in the evening about 9 o’clock.

THE TRIBUNAL (Mr. Biddle): Have you ever told this story to anyone else?

KEMPKA: I have been interrogated several times on this subject and have already made the same statement.

THE TRIBUNAL (Mr. Biddle): And who took your interrogation, some officers?

KEMPKA: Yes.

THE TRIBUNAL (Mr. Biddle): Of what army, what nations?

KEMPKA: I have been interrogated by various officers of the American Army, the first time at Berchtesgaden, the second time at Freising, and the third time at Oberursel.

MR. DODD: As a result of the Court’s inquiry there are one or two questions that occur to me that I think perhaps should be brought out which I would like to ask the witness, if I may.

THE PRESIDENT: Certainly.

MR. DODD: You were with Bormann, were you, at 9 o’clock in the bunker in the Reich Chancellery on that night?

KEMPKA: Yes, indeed. I saw him for the last time about 9 o’clock in the evening. When I said farewell to Dr. Goebbels, I also saw Martin Bormann down in the cellar; and then I saw him again during the night about 2 or 3 o’clock in the morning.

MR. DODD: Well, maybe you said so, but I did not get it if you did. Where did you see him at 2 or 3 in the morning prior to the time that you started to walk with him along with the tank?

KEMPKA: Before that I saw him at the Friedrichstrasse station between 2 or 3 in the morning, and before that I saw him for the last time at 21 hours in the Reich Chancellery on the preceding evening.

MR. DODD: Well I know you did. But did not you and Bormann have any conversation about how you would get out of Berlin when you left the Reich Chancellery bunker at about 9 o’clock that night?

KEMPKA: I took my orders from the former Brigadeführer Milunke. I was not receiving direct orders from Reichsleiter Bormann any more.

MR. DODD: I did not ask you if you got an order from him. I asked if you and Bormann had not—and whoever else was there—had not discussed how you would get out of Berlin. It was 9 o’clock at night and the situation was getting pretty desperate. Did you not talk about how you would get out that night? There were not many of you there.

KEMPKA: Oh yes, there were about 400 to 500 people in all still in the Reich Chancellery and those 400 or 500 people were divided into separate groups, and these groups left the Chancellery one by one.

MR. DODD: I know there may have been that many in the Chancellery. I am talking about that bunker that you were in. You testified about this before, have you not? You told people that you knew that Hitler was dead as well as Bormann. And you must have been in the bunker if you know that.

KEMPKA: Yes, I have already testified to that effect.

MR. DODD: Well, what I want to find out is whether or not you and Bormann and whoever was left in that bunker talked about leaving Berlin that night before you left the bunker?

KEMPKA: No, I did not speak about it any more to Reichsleiter Bormann at that time. We had marching orders only to the effect that if we were successful we should report at Fehrbellin where there was a combat group which we were to join.

MR. DODD: You are the only man who has been able to testify that Hitler is dead and the only one who has been able to testify that Bormann is dead, is that so, so far as you know?

KEMPKA: I can state that Hitler is dead and that he died on 30 April in the afternoon between 2 and 3 o’clock.

MR. DODD: I know, but you did not see him die either, did you?

KEMPKA: No, I did not see him die.

MR. DODD: And you told the interrogators that you believe you carried his body out of the bunker and set it on fire. Are you not the man who has said that?

KEMPKA: I carried out Adolf Hitler’s wife, and I saw Adolf Hitler himself wrapped in a blanket.

MR. DODD: Did you actually see Hitler?

KEMPKA: I did not see all of him. The blanket in which he was wrapped was rather short, and I only saw his legs hanging out.

MR. DODD: I do not think I will inquire any further, Mr. President.

DR. BERGOLD: I have no further questions either.

THE PRESIDENT: The witness can retire.

DR. BERGOLD: Gentlemen of the Tribunal, the witness Walkenhorst is also still present here. It appears to me that there is a misunderstanding between the High Tribunal and myself. I stated Saturday that I did not wish to call any more witnesses besides the witness Kempka, and I expressly waive the witness Walkenhorst.

THE PRESIDENT: What was he? What did you ask for him to prove in the first instance?

DR. BERGOLD: I had originally called him as a substitute...

THE PRESIDENT: We have got your application.

DR. BERGOLD: But after talking to witness Klöpfer, whom I have also waived, I am also waiving the witness Walkenhorst because he does not appear to me to be competent enough to testify on what I wanted him to testify about.

My entire presentation of evidence, therefore, is now completed, except for the two documents which the Tribunal have already granted me, namely, the decree about stopping the measures against the churches and Bormann’s decree from the year 1944, with which he forbade members of the Chancellery to be members of the SD. Those two documents I have not yet received. When I have received them I shall submit them.

THE PRESIDENT: Very well.

Dr. Servatius, you have some question or affidavit you wanted to get from this witness Walkenhorst, did you not?

DR. SERVATIUS: I have an affidavit from this witness Walkenhorst which deals briefly with the question of the telephone conversation which Sauckel had at that time about the evacuation of the Buchenwald Camp. He has been accused of having ordered the evacuation of the camp when the American army approached. Now this witness Walkenhorst has accidently been found and it turns out that oddly enough he was the man with whom Sauckel spoke. He has confirmed to me in an affidavit that Sauckel demanded that the camp should be surrendered in an orderly way.

That is all I wanted to ask this witness. I can submit it here in the form of an affidavit.

THE PRESIDENT: Do the Prosecution want the man called or will the affidavit do?

DR. SERVATIUS: I am satisfied with handing over the affidavit.

COL. PHILLIMORE: My Lord, as far as the Prosecution are concerned, an affidavit would suffice.

THE PRESIDENT: Very well.

DR. SERVATIUS: Then I shall submit the affidavit and I will give the exhibit number together with my list.

THE PRESIDENT: Yes, there is one other matter to which I wish to draw the attention of defendants’ counsel.

The Tribunal have been informed as to the length of the speeches of certain of the defendants’ counsel which have been placed before the Translation Division for translation, and in the case of the Defendant Keitel and in the case of the Defendant Jodl the speeches which have been put into the Translation Division seem to be very much longer than the Tribunal had anticipated and quite impossible to be spoken in 1 day.

Would counsel for the Defendant Keitel explain to the Tribunal why that is and what steps he has taken to shorten his speech?

DR. NELTE: Mr. President, I have sent a letter to the Court today which I believe is not yet in the Tribunal’s possession. In it I requested that in the case of the Defendant Keitel I should be permitted to exceed the regular length of time, which had been limited to 1 day for the big cases. When, at the request of the Tribunal, I stated the time which my final speech would take, I had my manuscript completed. This manuscript would have taken about 7 hours. I gave that manuscript to the Translation Division in that form because it was no longer possible to alter it. I submitted the first part last Wednesday and then the second part on Saturday morning.

If the Tribunal, in accordance with its decision, fixes 1 day, that is, 5½ hours of actual speech, as the maximum and is unwilling to depart from that ruling in any case, not even in the case of the Defendant Keitel, who has been particularly seriously implicated, then I shall be forced to eliminate certain passages from the manuscript and to submit them only in writing. I hope the Tribunal will also decide whether that is possible.

THE PRESIDENT: Dr. Nelte, the Tribunal takes note of the fact that when you were asked how long your speech would take, you said, I think, 7 hours.

DR. NELTE: Yes.

THE PRESIDENT: 7 hours. Well, according to the estimate which has been given to the Tribunal, the speech which you submitted for translation would take about 13 hours. That is nearly double as long as you yourself said, and it is almost exactly double the length of the speech which has been submitted for the Defendant Ribbentrop, whose case is almost as extensive if not quite as extensive; and it appears to the Tribunal to be out of all reason to put in a speech which will probably take nearly double the time that you yourself stated. The speech you put in is more than double the length of the speech which has been put in on behalf of the Defendant Göring.

DR. NELTE: Naturally, I am unable to know by what points of view the counsel for Reich Marshal Göring or Foreign Minister Von Ribbentrop are guided and governed. I can only be guided by my own views and sense of duty.

THE PRESIDENT: Perhaps that is a matter of comparison, it is true, but you said 7 hours yourself, and you now put in a speech which will probably take 13.

DR. NELTE: I believe, Mr. President, that I shall make that speech in 7 hours, if I have 7 hours speaking time.

THE PRESIDENT: Well, the Tribunal has given this matter a very full consideration, as you are aware; and they have said that every speech must be made in 1 day and that will take up some considerable time for the whole of the defendants to make their speeches.

DR. NELTE: Mr. President, I shall wait for your decision. If I am confined to 1 day, then I shall have to leave out certain parts from my manuscript. But in that case I should have to ask that the remainder be taken cognizance of by the Tribunal, because every thing that I have included in my manuscript is the minimum of what should be delivered on such a comprehensive case.

THE PRESIDENT: Dr. Nelte, we will consider that application for you to be allowed to put in the other passages in your speech; and we will let defendants’ counsel know what our decision is upon that.

Dr. Siemers, the Tribunal has now received a full report showing the immense trouble taken by the Secretariat to find or to try and find the witness Schulze, Otto Schulze, for you since you first asked for him in February of this year; and the Tribunal would like to know what steps you have taken in the meantime to try and find him.

DR. SIEMERS: I believe, Mr. President, that there was no need to find the witness because, actually, it was known that he was living in Hamburg-Blankenese and because, in my opinion, he is still in Hamburg-Blankenese; and I have given this address to the General Secretariat many times.

THE PRESIDENT: Well, you knew what the General Secretary’s office were doing about the matter. You knew that they were unable to find him at the address. You knew that they had sent the interrogatories to Washington because they were told he had been taken over there, and we are told that you have been in Hamburg yourself.

DR. SIEMERS: That the interrogatory was sent to Washington is something which I have known only since last Friday, after my return from Hamburg. I personally did not anticipate that such a mistake or such a misunderstanding could arise. Unfortunately, I also do not know how it did arise. Far be it from me to make any kind of accusation. I have merely requested that if the document were received, then the Tribunal should agree to receive it in evidence later. Unfortunately, I cannot submit it today. I immediately informed the General Secretariat of the address once more; I do not know anything more than this address in Hamburg, either. In my opinion, Admiral Schulze is not in captivity. It is possible that during my absence some misunderstanding occurred, but I myself heard that only last Friday.

THE PRESIDENT: Well, I cannot understand why, during all these months that you have been here and have had full opportunity of seeing the General Secretary and have received all the assistance which you and all the other defendants’ counsel have received from the General Secretariat, that you should not have helped the General Secretary better to find this witness. That is all.

We will adjourn now.

[_The Tribunal adjourned until 4 July 1946, at 1000 hours._]

ONE HUNDRED AND SEVENTY-FIRST DAY
Thursday, 4 July 1946

_Morning Session_

THE PRESIDENT: Dr. Sauter.

DR. SAUTER: If you please, Mr. President.

THE PRESIDENT: The Tribunal has received your letter of the 17th of June of this year, signed by the Defendant Walter Funk.

DR. SAUTER: Yes.

THE PRESIDENT: The Tribunal proposes to take notice of that; and if you will read it, it will then become a part of the record. So if you will read it to us now.

DR. SAUTER: Mr. President, at the moment I do not have the letter with me.

THE PRESIDENT: You may have my copy, but that is in English. The Tribunal would wish you to do it at 2 o’clock, then—to read that letter.

DR. SAUTER: Thank you, Mr. President.

THE PRESIDENT: The same observation applies to Dr. Exner’s letter of the 23d of June 1946 on behalf of the Defendant Jodl; only the Tribunal thinks that that letter also should be signed by the defendant, and read by Dr. Exner at 2 o’clock.

I call on Dr. Jahrreiss.

PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr. President and Gentlemen of the Tribunal, the main juridical and fundamental problem of this Trial concerns war as a function forbidden by international law; the breach of peace as treason perpetrated upon the world constitution.

This problem dwarfs all other juridical questions.

The four chief prosecutors have discussed the problem in their opening speeches, sometimes as the central theme of their presentation, sometimes as a fundamental matter, while indeed differing in their conceptions thereof.

It is now up to the Defense to examine it. The body of Defense Counsel have asked me to conduct this examination. It is true that it is for each counsel to decide whether and to what extent he feels in a position to renounce, as a result of my arguments, his own presentation of the question of breach of the peace. However, I have reason to believe that counsel will avail themselves of this opportunity to such an extent that the intention of the Defense to contribute materially toward a technical simplification of the phase of the Trial which is now beginning, will be realized by my speech.

I am concerned entirely with the juridical question, not with the appreciation of the evidence submitted during the past months. Also, I am dealing only with the problems of law as it is at present valid, not with the problem of such law as could or should be demanded in the name of ethics or of human progress.

My task is purely one of research; research desires nothing but the truth, knowing full well that its goal can never be attained and that its path is therefore without end.

I wish to thank the General Secretary of the Tribunal for having placed at my disposal documents of a decisive nature and very important literature. Without this chivalrous assistance it would not have been possible, under the conditions obtaining at present in Germany, to complete my work. The literature accessible to me originated predominantly in the United States. Familiar as I am with the vast French and English literature on this subject, which I have studied during the last quarter of a century—I am, unfortunately, not conversant with the Russian language—I believe, however, that I can fairly say that no important concept has been overlooked, because in no other country of the world has the discussion of our problem, which has become the great problem of humanity, been more comprehensive and more profound than in the United States.

This very fact has enabled me to forego the use of legal literature published in the former German sphere of control. In this way even the semblance of a _pro domo_ line of argumentation will be avoided.

Owing to the short time at my disposal for the purpose of this speech, and at the same time in view of the abundance and complexity of the problems with which I have to deal, it will not be possible for me to cite all the documents and quotations I am referring to. I shall present only a few sentences. Any other procedure would interrupt the train of argument for the listener. I shall therefore submit to the Tribunal the documents and literary references in the form of appendices to my juridical arguments. What I am saying can thus quickly be verified.

The Charter threatens individuals with punishment for breaches of the peace between states. It would appear that the Tribunal is accepting the Charter as the unchallengeable foundation for all juridical considerations. This means that the tribunal will not examine the question whether the Charter, as a whole or in parts, is open to juridical objections; yet such a question nevertheless continues to exist.

If this is so, why, then, have any discussion at all on the main fundamental legal problems?

The British chief prosecutor even made it the central theme of his long address to examine the relationship of the Charter, where our problem is concerned, to existing international law. He justified the necessity of his arguments by saying that it was the task of this Trial to serve humanity and that this task could be fulfilled by the Trial only if the Charter could hold its own before international law, that is, if punishment of individuals for breach of the peace between states was established in existing international law.

It is, indeed, necessary to clarify whether certain stipulations of the Charter may have created new laws, and consequently laws with retroactive force.

Such a clarification does not serve the purpose of facilitating the work of the historians. They will examine this, just as all the other findings in this Trial, according to the rules of free research; perhaps through many years of work and certainly without limiting the questions to be put and, if possible, on the basis of an ever greater wealth of documents and evidence.

Such a clarification is indispensable, if only for the reason that the decision as to right and wrong depends, or may depend, thereupon, all the more so if the Charter is considered legally unassailable.

Let us assume for the sake of argument that the Charter does not formulate criminal law which is already valid but creates new, and therefore retroactive, criminal law. What does this signify for the verdict? Must not this be of importance for the question of guilt?

Possibly the retroactive law which, for instance, penalizes aggressive war had not yet become fixed or even conceived in the conscience of humanity at the time when the act was committed. In that case the defendant cannot be guilty, either before himself or before others, in the sense that he was aware of the illegality of his behavior. Possibly, on the other hand, the retroactive law was promulgated at a time when a fresh conscience was just beginning to take shape, although not yet clear or universal. It is then quite possible for the defendant to be not guilty in the sense that he was aware of the wrongfulness of his commissions and omissions.

From the point of view of the European continental conception of penal law, the fact that a person was not aware of doing wrong is certainly a point which the Tribunal must not overlook.

Now the question as to whether the penal law contained in the Charter is _ex post facto_ penal law does not present any difficulty as long as the stipulations of the Charter are unequivocal and the prescriptions of international law as applying to date are uncontested.

But what if we have regulations capable of different interpretations before us or if the concepts of international law are the subject of controversy? Let us take the first: A stipulation of the Charter is ambiguous and therefore requires interpretation. According to one justifiable interpretation the stipulation appears to be an _ex post facto_ law; according to another, which can be equally well justified, it does not. Let us take the second: The regulation is clear or has been clarified by interpretation of the Court, but experts on international law are of different opinions as to the legal position applying to date; it is not certain whether we are not concerned with an _ex post facto_ law. In both cases it is relevant whether the defendant was conscious of the wrongfulness of his behavior.

I intend to demonstrate how important these considerations are in this Trial, and shall now begin the examination.

The starting points of the British and French chief prosecutors are fundamentally different.

The British chief prosecutor argues as follows, if I understood him correctly:

First, the unrestricted right of states to wage war was abolished in part by the League of Nations Covenant, later as a general principle by the Kellogg-Briand Pact, which continues to be the nucleus of world peace order to this very day. War, thus prohibited, is a punishable violation of law within and toward the community of nations, and any individual who has acted in a responsible capacity is punishable. Secondly, the indictment of individuals for breach of the peace, although novel, not only represents a moral necessity, but is in fact long overdue in the evolution of law; it is quite simply the logical result of the new legal position. Only in outward appearance does the Charter create new law.

And if I understood the British chief prosecutor correctly, he is asserting that since the conclusion of the Pact of Paris there exists a clear legal order based on the entire world’s uniform conviction as to what is right. Since 1927 the United States have negotiated first with France, then with the remaining Great Powers, with the exception of the Soviet Union, and also with some of the smaller powers concerning the conclusion of a treaty intended to abolish war. Secretary of State Kellogg stated (in a note to the French Ambassador, 27 February 1928) with memorable impressiveness what the Government in Washington were striving for, namely:

The powers should renounce war as an instrument of national politics, waiving all legal definitions and acting from a practical point of view, plainly, simply, and unambiguously, without qualifications or reservations.[1] Otherwise the object desired would not be attained: To abolish war as an institution, that is, as an institution of international law.[2]

After the negotiations had been concluded, Aristide Briand, the other of the two statesmen from whose initiative springs that pact which in Germany is often called the “Pact to Outlaw War,” declared, when it was signed in Paris:

“Formerly deemed a divine right and remaining in international
law as a prerogative of sovereignty, such a war has now at last
been legally stripped of that which constituted its greatest
danger: its legitimacy. Branded henceforth as illegal, it is
truly outlawed by agreement....”[3]

According to the conception of both leading statesmen, the Paris Pact amounted to a change of the world order at its very roots, if only all, or almost all, nations of the world—and particularly all the great powers—signed the pact or adhered to it later on, which did actually happen.

The change was to be based on the following conception: Up to the time of the Kellogg-Briand Pact, war had been an institution of international law. After the Kellogg-Briand Pact, war was high treason against the order created by international law.

Many politicians and scholars all over the world shared this conception. It is the definite basic conception of that unique commentary on the League of Nations Covenant by which Jean Ray, far beyond the borders of France, stirred the hearts of all practical and theoretical proponents of the idea of preventing war.[4] It is also the basic conception of the Indictment at Nuremberg.

Diplomacy and the doctrine of international law found their way back into their old tracks after the first World War, after a momentary shock from which they recovered with remarkable rapidity. This fact horrified all those who were anxious to see the conclusions—all the conclusions—drawn from the catastrophe.

Mankind had a “grand vision of world peace” then, as Senator Bruce called it when the Pact of Paris was before the Senate for ratification.[5] I know how much the personality and the achievements of Woodrow Wilson are a subject of dispute. But the more detachment we achieve, the clearer it becomes that he—by making fortunate use of his own preparatory work and of that of others[6]—finally conceived and presented to the humanity of the time an entirely brilliant train of thought which is as right today as it was then, and which can best be condensed as follows:

It is necessary to start afresh. The tragic chain of wars and mere armistices termed peace must be broken. Sometime humanity must have the insight and the will to pass from war to real peace, that is, to peace which is good in its essence, founded on existing legal principles, without regard to victory or defeat; and this peace, which is good in its essence, must be maintained—and maintained in good condition—by an organized union of states.

These aims can only be achieved if the most frequent causes of war are eliminated, namely excessive armaments, secret treaties, and the consecration—detrimental to life—of the _status quo_ as a result of lack of insight on the part of the possessor of the moment.

Humanity did not follow this path. And it is not to be wondered at that among those who fought against the instruments of Versailles, St. Germain, Trianon, Neuilly, and Sèvres, be it in the camp of the vanquished or in that of the victors, were the very ones who strove after real, lasting peace. When the Governments of the South African Union and Canada, in their replies to Secretary of State Hull’s Principles of Enduring Peace of 16 July 1937, indicated in unusually strong language that a revision of unjust and forcibly imposed treaties was an indispensable precondition for real world peace, they took up one of the basic views of the great American President.[7]

Humanity did not follow Wilson.

Even for the members of the League of Nations war remained a means for settling disputes, prohibited in individual cases, but normal on the whole. Jean Ray[8], as late as 1930, said:

“The League of Nations did not prove to be a guide to the true
order of peace, indeed it did not even prove to be a sufficient
brake to prevent a complete backward movement into the former
state. For the world did in fact slide back entirely.”

For this is the all-important factor in our problem of law. Before the commencement of the second World War the whole system of collective security, even in such scanty beginnings as it had made, had collapsed;[9] and this collapse was acknowledged and declared expressly, or by equivalent action, by three world powers—and, in fact, declared with full justification. Great Britain clearly stated this at the beginning of the war to the League of Nations. I shall show this immediately.

The Soviet Union treated the German-Polish conflict simply according to the rules of classical international law concerning debellatio. I shall explain this shortly.

The United States declared their strict neutrality. I shall also explain the import of this declaration.

The system of collective security has been the subject of much dispute. In this matter involving the world’s conscience, which is of fundamental importance in this very Trial, it cannot be a matter of indifference that the system, rightly or wrongly, appeared in 1938 to such a prominent specialist on international law as the American, Edwin Borchard, to be absolutely inimical to peace and the offspring of the hysteria of our age.[10] The collapse may have had various causes; it is certain that the above-mentioned three world powers testified at the beginning of September 1939 to the collapse—the complete collapse—and that they did not, in fact, do so as a consequence of the German-Polish war.

To begin with, on 7 September 1939 the British Foreign Office told the Secretary General of the League of Nations[11] that the British Government had assumed the obligation, on 5 February 1930, to answer before the Permanent International Court of Justice at The Hague whenever a complaint was filed against Great Britain, which would include all cases of complaints which other states might lodge on account of conduct whereby Great Britain in a war had, in the opinion of the plaintiff, violated international law. The British Government had accepted this regulation because they had relied on the functioning of the machinery of collective security created by the League of Nations Covenant and the Pact of Paris—because, if it did function properly, and since Britain would certainly not conduct any forbidden wars, her opponent on the contrary being the aggressor, no collision between Britain and those states that were faithful to the security machinery could possibly be caused by any action of Britain as a seapower.[12] However, the British Government had been disappointed in this confidence: Ever since the League Assembly of 1938 it had no longer been possible to doubt that the security machinery would not function; on the contrary it had, in fact, collapsed completely. A number of members of the League had already declared their strict neutrality before the outbreak of war:

“The entire machinery intended to maintain peace has broken
down.”[13]

I will proceed to show how right the British Government were in the conclusions they drew. It should not be forgotten that the British Premier, Mr. Neville Chamberlain, had already proclaimed, on 22 February 1938 in the House of Commons, that is, before the so-called Austrian Anschluss, the complete inefficiency of the system of collective security. He said:[14]

“At the last election it was still possible to hope that the
League might afford collective security. I believed it myself. I
do not believe it now. I would say more: If I am right, as I am
confident I am, in saying that the League as constituted today
is unable to provide collective security for anybody, then I say
we must not delude ourselves, and, still more, we must not try
to delude small weak nations into thinking that they will be
protected by the League against aggression and acting
accordingly, when we know that nothing of the kind can be
expected.”

The Geneva League of Nations was “neutralized,” as Noel Baker politely expressed it later in the House of Commons.[15]

Secondly, in view of the correct conclusions drawn by the British Government and expressed in their note of 7 September 1939 to the League of Nations, it is no wonder that the Soviet Union treated the German-Polish conflict in accordance with the old rules of power politics. In the German-Russian Frontier and Friendship Pact of 28 September 1939 and in the declaration made on the same day in common with the Reich Government,[15a] the Moscow Government bases its stand on the conception of the _debellatio_ of Poland, that is, the liquidation of Poland’s government and armed forces; no mention is made of the Pact of Paris or the League of Nations Covenant. The Soviet Union takes note of the liquidation of the Polish state machinery by means of war, and from this fact draws the conclusions which it deems right, agreeing with the Reich Government that the new order of things is exclusively a matter for the two powers.

It was therefore only logical that in the Finnish conflict, during the winter of 1939-1940, the Soviet Union should have taken its stand on classical international law. It disregarded the reactions of the League of Nations when, without even considering the application of the machinery of sanctions and merely pretending to apply an article of the Covenant referring to quite different matters, that body resolved that the Soviet Union had, as an aggressor, placed itself outside the League.[16] The report of the Swiss Federal Council of 30 January 1940 to the Federal Assembly endeavored to save the face of the League which was excluded from all political realities.

Thirdly, the President of the United States stated on 5 September 1939 that there existed a state of war between several states with whom the United States lived in peace and friendship, namely, Germany on the one hand, and Great Britain, France, Poland, India, and two of the British dominions on the other. Everyone in the United States was required to conform with neutrality regulations in the strictest manner.

Since the time of the preliminary negotiations, it was a well-known fact in the United States that Europe, and particularly Great Britain and France, saw the main value of the Pact to Outlaw War in the fact that the United States would take action in case of a breach of the pact. The British Foreign Secretary stated this on 30 July 1928, that is, 4 weeks previous to the signing of the pact. During the deliberations of the American Senate on the ratification of the pact, Senator Moses drew particular attention to this.[17] Senator Borah affirmed at the time that it was utterly impossible to imagine that the United States would calmly stand by.[18] After the discredit resulting from the failure of the policy of collective security in the case of Manchuria and Abyssinia the world had come to understand the now famous “quarantine” speech of President Franklin D. Roosevelt on 5 October 1937 and his “Stop Hitler!” warnings before and after Munich to mean that the United States would act on the next occasion. The declaration of neutrality of 5 September 1939 could therefore only mean: Like Great Britain and the Soviet Union, the United States accepts as a fact the collapse of the system of collective security.

This declaration of neutrality has often been looked upon as the death blow to the system. The Washington Government would be entitled to reject such a reproach as unjustified. For the system had already been dead for years, provided one is prepared to believe that it was ever actually alive. But many did not realize the fact that it was no longer alive until it was brought into relief by the American declaration of neutrality.

By 1 September 1939 the various experiments, which had been tried since the first World War with a view to replace the “anarchic world order” of classical international law by a better, a genuine, order of peace, were over, that is, to create in the community of states a general statute according to which there would be wars which are forbidden by law and others which are countenanced. These experiments, in the opinion of the major powers of the time, had failed. The greatest military powers of the earth clashed in a struggle in which they pitted their full strength against one another. For the proponents of a materialistic conception of history this meant the second phase in a process developing according to inexorable laws, whereby history swept away all diplomatic and juridical artifices with supreme indifference.

The majority of international lawyers throughout the world maintained that in universal international law as at present applied, there exists no distinction as to forbidden and nonforbidden wars.

Hans Kelsen set this forth in 1942 in his paper _Law and Peace in International Relations_, which he wrote after painstaking research into literature. He himself belongs to the minority who are prepared to concede a legal distinction between just and unjust wars, so that his statement carries all the more weight.

Now we must ask: Are we in point of fact right in speaking of the collapse of the system of collective security? This would presuppose that such a system at one time existed. Can that really be maintained? This is a question of the greatest importance for this Trial, in which the existence of a world-wide consciousness of right and wrong is taken as the basis for the indictment for breach of the peace.

Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from which all those have suffered so much who rejoiced when the pact was concluded and who later, after a first period of depression, hailed the Stimson Doctrine as a long overdue step essential for the achievement of real peace and as an encouraging omen of fresh progress.