Chapter XXIV: Book 1: , Mr. President (12)

Fehr showed that every judge, as far as the law allows him latitude, judges individually according to his ideology. In an era of liberal freedom of ideology this naturally brought forth a danger for the uniformity and sureness of the law. Therefore the liberal state in particular had to make its criminal court judges conform closely to the codified substance in each case and forbid them to employ analogies. Fehr already pointed out the danger inherent in such judgment based on codified substance, tending to give undue preponderance to the act over the perpetrator. Following the lines of a dynamic jurisprudence, the liberal school of legal conception, he therefore advocated an extension of the judge’s authority to create law.

In that sense, as will be understood from the above, the nonliberal states directed by a definite ideology had taken the lead. The Soviet Union, after the Marxists had already long ago rejected the liberal, allegedly objective, jurisdiction as “bourgeois class justice,” was the first to introduce a proletarian class justice which deliberately abandoned the idea of the equality of all before the law. The National Socialists, according to their racial ideology, followed suit by forming the thesis, “Right is what serves the people, wrong is what injures it.” Inside such a solid ideological frame the dangers of criminal analogy, which were still further narrowed down by Article 2a of the Criminal Code, dwindled considerably.

In contrast to this, no fixed ideological base as a foundation for the Charter is discernible. Since its signatories stand on very different ideological ground we will have to proceed, as in the international law valid hitherto, from the liberal idea of freedom of ideology. Therefore the legal thesis _nulla poena sine lege_ should be especially sacred to it. This is also proven by the fact that the Control Council for Germany, by abolishing the criminal analogy of Article 2a of the Criminal Code, brought the above maxim back again to all Germans most emphatically.

It would be all the more unintelligible and intolerable for the German sense of justice if this phrase were not to apply to Germans accused of War Crimes. In itself the Charter is an exceptional law by the mere fact that it was created only against members of the Axis Powers and based on an agreement made for one year and subject to notice. If, in addition, it should abolish the maxim _nulla poena sine lege praevia_, specifically for actions that were not only within the scope of German legality, but under most severe penalties had even been made a duty by the Government of the sovereign German State, then all understanding would cease for the interpretation that the Court is bound by the Charter.

Nor is an examination of the political aims connected with the Charter of any assistance. Justice Jackson has called the Charter and the Trial a step toward “creating a juridical guarantee that he who starts a war will pay for it personally.” The American commentator Walter Lippmann stated elsewhere that the system of collective security for the prevention of wars had broken down because nobody was prepared to declare war on the country breaking the peace in order to help prevent a war which did not directly affect them.

The means for combating the disease of war would have been just as bad as the disease itself. In consequence of the fiasco of the collective methods the conception of basing security in the future upon holding responsible those individual persons accountable for breaking the peace was evolved by the enemies of Germany in the last war. And this finally led to the Nuremberg Trial. Taking one’s starting point from this fact, today one might say: During this second World War revolutionary developments have taken place; it has driven humanity beyond the bounds of what was the modern age until a short time ago. The first but essential steps to create a world state have been made.

The way to peace, as shown here, will be welcomed on principle, although one will still doubt its absolute reliability. Justice Jackson himself has expressed doubts whether punishment will serve to intimidate and thus help prevent breaking the peace in the future. Only somebody certain of victory will decide to wage a war and thus will not seriously consider punishment, which would reach him only in the case of defeat. Therefore the educational issue of this Trial, namely, to strengthen the sense of justice, seems more important than the effect of intimidation, which can also be achieved by warning for the future. The politician will have to learn that the principle of division of power will have to be observed by him, too, and that he will not find a judge willing subsequently to condone his mistakes, because he will also punish him on the basis of subsequent laws. Confidence in international jurisdiction, which today still suffers from a suspicion of being easily misused for political purposes, would be heightened considerably through such a pronouncement. On the other hand, it would most certainly suffer by the sentencing of acts whose punishable quality remained doubtful. Thus the violation of the sentence _nulla poena sine lege_ could not be justified even from the angle of political utility, although conversely one must realize that the strengthening of the belief in the inflexibility of justice as the basic pillar of the tremendous dynamics of political forces serves peace best.

This result cannot be questioned on the basis of the individual considerations presented by the prosecutors.

The French prosecutors have pointed out that living international law could not be imagined without international morals, and that a moral code has precedence over all claims for freedom by the individual as well as by the nations. These certainly are facts well worth bearing in mind. Correctly considered, however, they speak only for my viewpoint that any strengthening of the sense of justice must not start out with a violation.

When the French chief prosecutor declared that without punishing the chief culprits of Nazi Germany there could be no future belief in justice, then obviously he went too far. Justice does not grow out of obtaining satisfaction for the violated sense of justice at any price. Otherwise we should quickly arrive again at reprisals, at the endless chain of vendetta. No; justice demands moderation and consideration of motives and countermotives. And there the one-sided action taken only against members of the Axis Powers violates the idea of justice. It is impossible to justify it by a direct violation of its own principles, that is, of the commonly prevailing rule: _nulla poena sine lege_. The British chief prosecutor himself declared the possibility of subsequent legislature to have been one of the most offensive doctrines of National Socialist jurisdiction. He does, however, believe that the possibility of punishing an act already branded as a crime does not represent a change of the legal situation but only its logical further development, and is therefore permissible. I do not at all want to contest the institution of the Tribunal as thereby justified by him. But the question certainly arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offenses with punishment at the time of their commission. To affirm this question would be going much further than the National Socialist judicial procedure which is so vehemently denounced by the British chief prosecutor. He did not offer the slightest motivation for such a course, and appears thus to reject it.

Moreover, he would certainly be ready to admit that the Charter, if it not merely presumed but possibly wished to establish that the acts concerned were punishable, ought to have stated this clearly and unambiguously. The passage involved, in Paragraph 6 of the Charter, completely lacks such clarity. It reads: “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal.”

This may be interpreted either as a mere regulation of competence or, albeit with difficulty, as a regulation originally establishing some act as being punishable. Therefore, this passage must definitely be interpreted in favor of the defendants according to the established legal principle _in dubio pro re_. The next phrase, “for which there shall be individual responsibility,” and the material regulations for punishment quoted in the following paragraphs, according to their wording leave no reason for doubt as to their interpretation. However, they contain only modifications in dealing with acts established as punishable. The Tribunal may decide whether or not and to what extent they are compatible with the principle _nulla poena sine lege praevia_.

I find the viewpoint of the American prosecutor most difficult to understand. On the one hand he denounces all legal arbitrariness on the part of the Nazis, yet on the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not merely considered reprehensible at the time they were committed, but were actually threatened with punishment. On the one hand he does not desire executions or punishment without first having established guilt in a fair manner; on the other he demands a strict application of the Charter even where it contains new laws surprising the defendants. On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants.

It seems to me that he speaks too much as an accuser, the sole role he really wants to assume according to his own words. For the prosecutor—especially in Anglo-American procedure—the word “justice” has a different meaning than for the judge, let alone the defendant. Unquestionably Justice Jackson thinks of himself not only as a prosecutor but to a large degree also as politician. To him this Trial is to serve not only as an atonement for wrongs committed, but also, and above all, in order to develop legal principles which he wishes to enforce by precedence and from which he expects a consolidation of international law for the prevention of future wars. Whoever approaches a cause with so many preconceived opinions and intentions lives in so completely different a world from that of the defendants, that from them to him, and vice versa, hardly any ways of understanding will be found.

As far as the political side of this Trial is concerned, I have already stated why it must not exert any influence on the course of the proceedings. I merely wish to point out here that a policy applied by the victors to the vanquished, which perhaps may be characterized as one of “least resistance,” has once before proved to be a failure—namely, with regard to the question of disarmament under the Versailles Treaty.

If Justice Jackson really wishes to forego straightforward decision by force and is prepared to become a party to and submit to a legal procedure, although not bound to do so, then he will have to forego presenting arguments which do not belong in a legal procedure. A hybrid, which is neither a clear act of violence nor a trial in the usual sense—however much one may try to place it in a halfway position under the name of a political trial—is an absurdity. It is true that history knows of other so-called “political” trials of similarly vague character. I want to point out only the sentencing of Louis XVI by the French National Assembly. There, however, it was clear from the composition of the judicial _gremium_ as well as from the procedure employed, that this was not a matter of finding justice but amounted simply to a revolutionary act of violence, and courage to proceed with it was found in mutual exhortation. But here outstanding professional judges have been entrusted with the proceedings by the victorious powers. They have been given certain directions by the Charter, but otherwise their judicial discernment was granted the most far-reaching authority. There can be no doubt that the politicians called upon the judges to relieve them of a job which they could not manage themselves. And now the judges will have to decide by their own competence if and in how far they are able to execute the mandate. With any remainder the politicians will have to manage somehow or other on their own.

I was not able to pick a single one from among Justice Jackson’s arguments which might cause the Tribunal to punish acts which were not punishable at the time of their perpetration. For this reason I shall examine the individual points of the Indictment only from the legal situation prevailing at the time of perpetration.

Of the crimes of which all the defendants are accused the conspiracy is most extensive as regards time and object. Professor Exner, in his capacity as a university teacher of criminal law, has given special attention to this legal conception for our Trial. In order to save time by avoiding a duplicate report, Professor Exner has placed the result of his research at my disposal. In conformity with him I have to present the following regarding this question.

The concept of conspiracy belongs to the sphere of Anglo-American law. Even there, however, it is in no way uncontested; remarkably enough, some opinion in England has it that this conception is long since obsolete: “It has been said that in England this law has become entirely disused.”

In these proceedings it is a different point that matters. The concept of conspiracy as used by the Prosecution is entirely unknown to German law. I would like, therefore, to begin my short legal argument with two questions which give rise to doubts.

(1) May a criminal procedure, bent on realizing justice, employ legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people?

(2) How would this be consistent with the rule _nullum crimen sine lege praevia_, a principle which the British chief prosecutor has acknowledged as a fundamental principle of civilized criminal law?

Can it be honestly stated that already before 1939 not only the initiation of an illegal war was held to be an act punishable individually, but also the conspiracy to initiate such a war? The affirmative answer to this question given by the Prosecution has surprised not only Germany. May I clear up, in this connection, a misunderstanding. It has been said that the National Socialist State itself had issued criminal laws ignoring the rule of _nullum crimen sine lege_, so that the defendants had no right to invoke this rule. It is by no means my purpose to defend National Socialist criminal law, but honesty compels me to say that this is an error. The Third Reich has—as mentioned before—issued three laws increasing the penalty for an action with retroactive effect by applying the death penalty to acts which carried, when committed, prison sentences only. But in no case so far was a lawful act declared punishable, nor an act which was not a crime when committed retroactively converted into a crime. And that is the case here.

However, the Charter, which I follow now, has enjoined the use of the concept of conspiracy. I do not, therefore, go any further into these questions of doubt. At any rate, it would appear therefrom that if such a concept is to be applied to Germans, this must only be done with all limitations imposed by equity.

Anglo-American law defines conspiracy as an agreement between a number of persons to commit crimes, “a combination or an agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means.”

Similar definitions keep recurring. Two points form the main characteristics: “agreement” and “common plan.”

Agreement means an explicit or tacit understanding. If several persons pursue the same end independently of one another, then there is no conspiracy. It is accordingly not enough that the plan be common to all of them, they must have knowledge of this community and everyone must voluntarily accept the plan as his own. The very expression “to conspire” implies that everyone contributes knowingly and willingly. A person under duress is no conspirator, for duress does not produce agreement, at the utmost purely external assistance. For instance, if somebody imposes his will on another, then there is no conspiracy. Therefore, a conspiracy with a dictator at its head is a contradiction in itself. A dictator does not enter into a conspiracy with his followers; he does not make any agreement with them, he dictates.

Knowledge and will of the conspirators are aimed at a common plan. The contents of such a plan can be very different. In English law, for instance, conspiracies are known for committing murder, fraud, blackmail, false accusation, certain economic delicts, and so forth. In all these cases, conspiracy is treated as a crime _sui generis_; and therefore the conspirators are punishable for conspiracy regardless of whether a murder, a fraud, or even a mere attempt at such crimes has been committed in any given case.

According to German terminology, we would say that conspiracy is one of the cases where even preparation of a crime is punishable. Such cases are known to German criminal law. The partner in an agreement for committing a crime against life is punishable. According to Article 49b he is punishable for a crime of preparing a killing even if the intended action failed to take place.

In a certain sense Article 129 can also be applied here. Participation in an association pursuing certain aims hostile to the state is punishable, again independently of whether a crime has actually been committed. But if it becomes a fact, everybody is charged with his own culpability in this action. If it happens that the individual conspirator is guilty neither as the perpetrator, nor as an instigator, nor as an accessory to the actual crime, then he can be charged only with participation in an association hostile to the state, but not with such a crime.

The prosecutors in this Trial go further. They want to punish, under certain circumstances, the conspirators for individual actions they did not participate in. To take the most significant example: They want to charge a conspirator even with those crimes which were committed prior to his entering the conspiracy.

With the scant material at my disposal, I was not able to find any evidence that this has any foundation in English or American law. One thing is certain, however, that such a conclusion is utterly contrary to the German criminal law, for the latter is based on the self-evident and unanimously accepted principle that a person is responsible for an action only when he was the author, or at least the coauthor of it.

Let us now look at the Charter. The Charter quotes two cases which are declared as punishable and which fall within the competence of the Court:

(1) Article 6(a) states: Participation in a Common Plan or Conspiracy for the perpetration of a Crime against Peace. As such are listed the planning, preparation, launching, and conducting of a war of aggression or of a war involving the violation of international treaties or assurances. It is remarkable that a concept which belongs to the internal criminal and civil law of England and America is applied here, without more ado, to international facts. The Charter does this by treating individuals who plan or conduct illegal wars as gangsters participating in a highway robbery. This is a piece of legal audacity, because in this case the sovereign state stands between the individuals and the result of their actions, and this removes all foundation from the comparison with facts in national daily life. Up to now the concept of conspiracy has been unknown to international law.

(2) According to the last paragraph of Article 6 of the Charter, the partners in a conspiracy or in a common plan to commit crimes against peace, the law of war, or humanity are responsible for all actions committed by any partner while executing such a plan. This is fundamentally quite another thing from the case mentioned in (1). It does not mean punishment of the crime of conspiracy, but responsibility for the individual act of another conspiracy. In other words, conspiracy, as taken here, is not a crime _sui generis_, but a form of complicity in the actions of the conspirators. Mr. Justice Jackson has given us an example: If three robbers conspire and one of them kills the victim, then all of them, through their complicity, are responsible for the killing.

The case mentioned under (2) is of the greatest importance in this Trial. The individual conspirator is to be punished for crimes committed not by himself, but by another conspirator. One defendant, who had nothing to do with the annihilation of the Jews, is to be punished for this Crime against Humanity only because he was a partner in a conspiracy.

The question at issue is: In this Trial, are principles of liability to be applied which go beyond our German criminal law?

Article 6 of the Charter says that all conspirators are responsible for any action committed by any one of the conspirators “in execution of such plan.” These are the decisive words for the interpretation.

In my opinion the meaning of these words is as follows: The other conspirators are also responsible for any actions of their comrades forming part of the common plan which they helped to conceive, desired, or at least condoned. A few examples:

Case (a): A, B, C, and D commit a concerted housebreaking in a villa. They happen to find a girl in the house, and A rapes her. B, C, and D cannot be charged with this rape. The reason is that A was not, when committing the crime, acting “in execution of the plan” but at best “on occasion of the execution of the plan.” The point at issue is not the execution, but merely the occasion arising while executing the plan. This view, which will hardly be disputed, is of importance in that it shows that there cannot be any question of responsibility for all the actions of the partners to the conspiracy.

Case (b): While exploring the villa, B and C begin to fight about some loot and B knocks down C. This action, too, was not committed “in execution of the plan,” but was foreign to the plan. A and D are not responsible for this “excess.”

The third case: While exploring the villa the burglars are detected by the owner. D shoots him. Now the issue depends on the special circumstances of the case. Let us, for instance, go back to the example, quoted by Mr. Justice Jackson, of the three robbers, one of whom kills the victim. Considering the nature of American gangsterism, it would appear quite normal that the individual gangsters concerned bore in mind the possibility of such an occurrence, and were quite prepared to accept it. If this is the case they are responsible for the killing, as accessories or assistants, according to our opinion as well. In such a case there would be no objection to Mr. Justice Jackson’s solution. But if the case is different, if the fatal issue had not been foreseen by the others, perhaps could not be foreseen—for instance, if they assumed that the inhabitants of the house were away from home—then there exists no liability on the part of the coconspirators. They are responsible only for acts incidental to the “execution of the plan.” The common plan, however, includes only what was foreseen and approved from the beginning. Other ways of execution are alien to the plan.

Mr. Justice Jackson’s argumentation is deceptive insofar as he derives a common principle from a decision which clearly and obviously happens to apply to the “normal case” of his parable of the robbers and can hardly be applied to any other case. As the case stands, coresponsibility in any single act could be made to apply to those conspirators only who foresaw and approved of their comrade’s act.

A legal principle extending the fellow conspirator’s responsibility to actions not included in their common responsibility is alien to German law. Whether or not it belongs to Anglo-American law, the application of such a principle in the present Trial would make punishable acts which heretofore could not be punished. This would clearly contradict the rule of _nullum crimen sine lege_, a principle, as I previously emphasized, acknowledged explicitly by the British prosecutor, too. In view of the fact that Article 6 can be interpreted in various ways, we should select from two possible interpretations, as corresponding to the author’s will, the one which does not contradict the said principle.

There is such a thing as withdrawal from a conspiracy, and also later entrance into it. The question is: What about responsibility for acts committed during the period of nonmembership? The Prosecution appears to be of the opinion that a person entering into the conspiracy thereby approves anything previously done by any conspirator in pursuance of the common plan. Such an assertion seems to arise out of the civil law theory of a subsequent ratification of a business transaction. This theory is not tenable in criminal law. The Charter does not mention anything of the sort; after all, the common plan, in the execution of which the act was perpetrated, was common only to those who were members at that time. Even if one takes the act of joining the conspiracy to be an approval of any acts so far committed, the approval of a crime already committed does not establish partnership in such crime. The person joining later has nothing to do with these crimes. The same applies to the withdrawal from the conspiracy. The person withdrawing can be made responsible only for what happened during his membership, even if the result has come about only after his withdrawal. Any other opinion would again lead to the result that an _ex post facto_ law is being applied. Now, did the 22 defendants participate in a conspiracy within the meaning of the Indictment, namely, a conspiracy to commit crimes against peace, usages of war, and humanity?

If such a conspiracy had existed, then Hitler would have been—nobody can doubt it—the leader of these conspirators. But it has already been emphasized that a conspiracy headed by a dictator is a contradiction in itself. Hitler would have ridiculed the suggestion that he had made an agreement with his Ministers, Party leaders, and generals to wage this or that war, or to conduct the war by such or such means. He was an autocrat. He was not concerned with the approval of these men, but merely with having his decisions executed, whether they agreed with these decisions or not. Quite aside from legal considerations, Hitler’s environment, in fact, was quite different from a band of conspirators, as visualized by the Prosecution before the hearing of evidence. Apart from a small Party clan, he was surrounded by an atmosphere of distrust. He trusted neither the “defeatist club” of his Ministers nor his “generals.”

Such was already the case before the war, and his surroundings during the war have been described by witnesses with great impressiveness. A cunning system of secrecy insured that the plans and aims of the Führer remained unknown to his associates as long as at all possible, so that his most intimate assistants time and again were taken by surprise by the events, and, in fact, were shocked to learn some of them only at the present Trial. This system of secrecy also insured an isolation of the individual collaborator, since one person was not allowed to know what the other did. Does this look like a conspiracy? In fact, Hitler complained at times that the generals were “conspiring” against him, and used, strangely, this very word while speaking of those who today are charged with having conspired with him. The hearing of evidence repeatedly mentions conspiracies, but conspiracies against Hitler. From a psychological point of view it is, to say the least, highly improbable that the score of survivors of the Third Reich selected and put in the dock by the Prosecution should have formed a gang of conspirators in the sense of the Indictment. In this group of people all homogeneity as to outlook, background, education, social position, and function is lacking, and some of the defendants only met in the dock.

The Prosecution considers the Party with its organizations as the nucleus around which the conspiracy formed. We should, however, in this connection consider the different attitude displayed by the individuals. Some of the defendants have never been Party members at all, or, at any rate, not for a long time, and only a few of them have played an important part in the Party. Some held top positions in the Party and its organizations, and devoted their entire activity to the aims of these organizations, while others did everything in their power to eliminate from their sphere of activity any influence of Party and SS.

The NSDAP was founded in a period of utter powerlessness of the State and of general war-weariness of the people at a time when, truly, no intelligent person thought of a second war, much less of a war of aggression.

But were not some of the defendants’ aims attainable without war?

Presumably every true German from the bottom of his heart desired the union of all adjoining German territory with the Reich. This applied to the Saar territory, Austria, Memel, Danzig, and, as a hope lingering in the far future, also to the Sudeten territory. In the past they all had been parts of the German Reich, they all would have returned to the German Reich already in 1919, had the right of self-determination solemnly promised to all peoples been realized. But these objectives of German longing could be reached by peaceful means. And in fact, they had been reached without a shot or a stroke with the one exception of Danzig, which would have been managed in the same peaceful way if the Führer had had a shred of patience and the Poles a shred of good will.

But they neither wanted nor believed in a war. Hitler was thought capable of large-scale bluffing, but not of launching the catastrophe of a war. I cannot, therefore, believe in a conspiracy to commit crimes against peace and the usages of war. May I add two points of general importance:

(1) The first point refers to Göring’s attitude immediately previous to the outbreak of war. He was at that time Hitler’s confidant and friend, the country’s second string, and he is now the chief figure among the defendants. If there had been, in truth, a conspiracy to launch wars of aggression at that time, then he would have taken second place within such a conspiracy, yet it was actually he who tried everything within his power during the last days of August 1939 to prevent the attack on Poland, and who tried behind Hitler’s back to maintain peace. How can this be consistent with a conspiracy for initiating wars of aggression? Nor did he approve of a war against Russia and strongly advised the Führer against such a war.

(2) If there had been a conspiracy to commit war crimes, then the war would have been waged, from the very beginning, with utter ruthlessness and disregard of rules of war. Just the contrary actually happened. In fact, during the first years of the war, international law was on the whole respected. Especially in the beginning every endeavor was made to wage war with decency and chivalry. If any evidence is needed, a glance at the orders of the German High Command of the Armed Forces regulating the behavior of the soldiers in Norway, Belgium, Holland is sufficient proof.

MARSHAL: The Tribunal adjourns until tomorrow.

[_The Tribunal adjourned until 5 July 1946 at 1000 hours._]

ONE HUNDRED AND SEVENTY-SECOND DAY
Friday, 5 July 1946

_Morning Session_

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: I continue.

Number 2. If there had been a conspiracy to commit war crimes, then the war would have been waged from the beginning with utter ruthlessness and disregard of rules of war. Just the contrary happened. In fact, during the first years of the war...

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you got a little bit further with your speech.

DR. STAHMER: I had gone somewhat further, that is true; but in order to get this into the context again I have started again with Number 2, but if the Court wishes, I can continue where I stopped.

Especially in the beginning every endeavor was made to wage war with decency and chivalry. If any evidence is needed, a glance at the orders of the High Command of the Army regulating the behavior of the soldiers in Norway, Belgium, Holland, is sufficient proof. Moreover, a leaflet with “10 Commandments for the Conduct of the German Soldier in Wartime” was issued to the soldiers when they went into the field. Field Marshal Milch has read them out from his pay book, during this Trial. They all obliged the soldier to act in a proper manner and according to international law.

A gang of conspirators at the head of the state, which plans to wage a war regardless of right and morals, would certainly not send their soldiers into the field with a detailed written order saying just the opposite.

I believe the assumption of the Prosecution that these 22 men are conspirators against peace and the laws of war and humanity is quite erroneous.

It is up to counsel for the individual defendant to show what connection his client might have had with the alleged conspiracy.

I just mentioned that Reich Marshal Göring was the second man in the State. During the Trial the Prosecution also referred repeatedly to this elevated position of Göring’s and tried to make it the basis of a special charge against the defendant, pointing out that Göring, by virtue of this advantageous position, knew about everything, even the most secret matters, and had the possibility of intervening independently in a practical way in the course of government business.

This opinion is wrong and is based on ignorance of the importance of his position. It meant that according to rank Göring was the second man in the State.

This rank was due to the fact that Hitler, in the fall of 1934, had made a will and by a secret Führer order had appointed Göring as his successor in the Government. In 1935 or 1936 this succession was confirmed in an unpublished Reich law which was signed by all the ministers. On 1 September 1939 Hitler announced this law in the Reichstag. In this way the successorship of Göring became known to the German people.

Göring’s task of deputizing for the Führer in the Government was to apply only in the event of Hitler’s being incapacitated by illness or absence from Germany—this occurred when in March 1938 Hitler spent a few days in Austria. During Hitler’s presence, that is, as long as Hitler exercised office himself, Göring derived no special powers from the deputyship. In this instance his authority was limited to the offices directly under him, and he was not entitled to issue any official directives to other offices. From this follows that, although the second man in the State, Göring could neither rescind, nor change, nor supplement Hitler’s orders. He could give no orders whatsoever to offices of which he was not directly in charge. He had no possibility of giving any binding orders to any other office, whether it were an office of the Party, the Police, the Army, or Navy, nor could he interfere in the authority of those offices which were not his own.

This position as second man in the State cannot, therefore, be judged as especially incriminating for Göring; nor is it qualified to serve as a basis for the assumption of a conspiracy.

The Defendant Göring never participated in the drafting or execution of a Common Plan or Conspiracy which was concerned with the crimes stated in the Indictment.

As already emphasized, the participation in such a conspiracy presupposes in the first place that such a common plan existed at all and that, therefore, the participants had the intention and were agreed to carry out the crimes of which they are accused. These presuppositions are not in evidence in the case of Göring. In fact, one may assume the contrary. It is true that Göring wanted to do away with the Treaty of Versailles and to secure again a position of power for Germany. But he believed he could obtain this goal, if not with the legal means of the League of Nations, at least with political means alone. The purpose of rearmament was only to give more weight to the voice of Germany. The Weimar Government, which could not even express the self-determination of the Germans after 1918 in the surely very modest form of a German-Austrian customs union, though they advocated this determination themselves, owed the lack of success of their foreign policy, in Göring’s opinion just as in Hitler’s, mainly to the lack of respect for the German means of imposing power. Göring hoped, strengthened in his belief by Hitler’s surprising initial successes, that a strong German army by its mere existence would make it possible to secure German aims peacefully, as long as these aims kept within reasonable limits. In politics a state can only have its say and make its voice heard if it has a strong army to back it up, which demands the respect of other states. Only recently the American Chief of Staff, Marshall, said in his second annual report that the world does not seriously consider the wishes of the weak. Weakness is too big a temptation for the strong.

There was no arming for an aggressive war; not even the Four Year Plan, the purpose and aim of which have been clearly explained by the defendant himself and by the witness Körner, was aimed at the preparation of an aggressive war.

Field Marshals Milch and Kesselring have both testified in perfect agreement that the Air Force created by the armament program was only a defensive air force which was not fit for an aggressive war and which was therefore looked upon by them as a risky proposition. Such a modest rearmament does not allow for any conclusions of aggressive intentions.

After all this it is clear that Göring did not want a war. By nature he was an opponent of war. Outwardly also, in his conferences with foreign diplomats and in his public speeches, he has expressed with all possible frankness his opposition to war at every opportunity.

The testimony of General Bodenschatz explains most clearly the attitude of Göring toward war. He knew him intimately from the first World War, and he has exact knowledge of the attitude of Göring toward war from frequent conversations he has held with him. Bodenschatz states that Göring repeatedly told him that he knew the horrors of war very well from the first World War. His aim was a peaceful solution of all conflicts and to spare the German people, as far as possible, the horrors of a war. A war was always an uncertain and hazardous thing and it would not be possible to burden with a second war a generation which had already experienced the horrors of one great world war and its bitter consequences.

Field Marshal Milch also knows from conversations with the Defendant Göring that the latter opposed a war, and that he advised Hitler in vain against a war with Russia.

In public the Defendant Göring, in his many speeches since 1933, frequently emphasized how he had his heart set on maintaining peace and that rearmament had only been undertaken to make Germany strong outwardly, thus to enable her to play a political role again.

His serious and honest will for peace can best be seen from the speech which he made at the beginning of July 1938 in Karinhall before all the Gauleiter of the German Reich. In this speech he emphasized energetically that the foreign policy of Germany had to be directed in such a way that it would under no circumstances lead to war. The present generation had still to get over the last world war; another war would shock the German people. Göring had not the slightest reason to hide his true opinion before this gathering, which consisted exclusively of the highest Party leaders. For that reason, this speech is a valuable and reliable proof for the fact that Göring really and truly wanted peace.

How deeply the Defendant Göring was interested in maintaining good relations with England is shown by his conduct at the conference with Lord Halifax in November 1937 at Karinhall, in which Göring, with full candor, put before Lord Halifax the aims of German foreign policy: (a) Incorporation of Austria and the Sudetenland into Germany; (b) return of Danzig to Germany with a reasonable solution of the Corridor problem. He pointed out at the same time that he did not want to reach these aims by war and that England could contribute to a peaceful solution.

The meeting in Munich in the fall of 1938 was arranged at his suggestion. The conclusion of the Munich Pact is essentially due to his influence.

When, due to the occupation of the remainder of Czechoslovakia in March 1939, the relations with England had deteriorated considerably because England was very angry about this step of Hitler’s, which was a violation of the Munich Pact, Göring made serious efforts for the restoration of normal relations. In order to achieve this goal he arranged the meeting, described by the witness Dahlerus, with English industrialists at the beginning of August 1939 in the Sönke-Nissen-Koog. In an address he pointed out that under no circumstances must a war with England come about, and he asked those present to contribute to the best of their ability to the restoration of good relations with England.

When, after the often-quoted speech of Hitler’s to the commanders-in-chief of the Armed Forces on the Obersalzberg on 22 August 1939, the danger of a war became imminent, Göring immediately—that is, already on the following day—summoned the witness Dahlerus from Sweden and endeavored, passing over the Foreign Office, to reach an agreement with England for the prevention of war on his own responsibility.

The objection was raised here that Göring had left Dahlerus in the dark as to his true intentions. His efforts were not aimed at the maintenance of peace but only at persuading England to deny to the Poles the support guaranteed to them and thus to separate England from Poland, which would enable Germany, after this separation, to exert pressure on Poland to submit to the German demands or to attack Poland and to realize her plans toward Poland without any risk. Any doubt about the honest will for peace is unjustified; the imputed intention was far from Göring’s thoughts.

If this objection is substantiated by the fact that Göring did not inform the witness Dahlerus either of the content of the Führer speech of 23 May 1939 or that of 22 August 1939, then it cannot be considered relevant and nothing is gained by it. Under no circumstances could Göring inform a third person—and especially a foreigner—of those strictly confidential speeches without exposing himself to the accusation of high treason or treason against his country. These speeches were all without significance as far as the task given to the witness was concerned, especially since the peculiar situation arose here that Göring—after the efforts of the diplomats had reached a deadlock—as a last resort knew of no other way out than to use his personal relations, his personal influence, and his personal prestige.

The only thing that mattered for the activity of Dahlerus was that the foreign political situation, which had become dangerously critical through the quarrel between Germany and Poland and of which the witness was fully aware, had to be straightened out by an appropriate attitude on the part of England.

That Göring’s aim was not to separate England from Poland has been clearly proven by the fact that Göring, to begin with, had transmitted to the British Ambassador in Berlin, Henderson, the text of the note which contained the propositions made by Germany to Poland—propositions which were called moderate by Henderson—and that, hereby, he tried to come to direct negotiations with Poland. Poland, however, obviously did not want an agreement with Germany. Several circumstances point to that.

The conflict with Poland lasted for almost a year. Why did Poland not ask for a decision by a court of arbitration on the basis of the concluded arbitration agreement? Why did Poland not appeal to the League of Nations? Obviously Poland did not want any arbitration regarding Danzig and the Corridor.

The utterance of the Polish Ambassador, Lipski, to the First Secretary of the British Embassy, Mr. Forbes, which was stated by the witness Dahlerus, is even greater proof of the unwillingness of Poland to come to an understanding. Lipski said he was not interested in any note or proposition by Germany; he was convinced that in the event of war there would soon be a revolt in Germany and the Polish Army would march in triumph to Berlin. This intransigent and incomprehensible attitude of Poland obviously finds its explanation in the fact that she felt too strong and secure as a result of England’s assurance. The reference to the imminent revolt makes one believe that Poland was informed of the plans of the Canaris group. There can therefore be no question of an ambiguous attitude or false play on the part of Göring.

The serious will of the Defendant Göring to maintain peace and to restore good relations with England is expressly recognized by Ambassador Henderson, who, due to his thorough knowledge of the German conditions and his connections with the leading men of Germany, summed up Göring correctly. I refer here to his book _Failure of a Mission_, in which, on Page 83, it says:

“I would like to express here my belief that the Field Marshal,
if it had depended on him, would not have gambled on war as
Hitler did in 1939. As will be related in due course, he came
down decisively on the side of peace in September 1938.”

Lord Halifax also, according to the information he gave, had no doubts that Göring’s efforts for the prevention of war were sincere.

That after the outbreak of the war, which he had wanted to prevent with all the means at his disposal but had been unable to prevent, Göring, as Commander-in-Chief of the Air Force, exerted all his strength to win the victory for Germany is not contrary to the sincerity of his will to avoid the war. From that moment on he knew only his duty as a soldier to his fatherland.

At different times Hitler made addresses to the commanders-in-chief of the Armed Forces, thus for instance in November 1937, on 23 May 1939, and on 22 August 1939. The Defendant Göring at his personal interrogation has already given extensive explanations as to the importance and the purpose of these addresses. For the question of whether the fact that he was present at these addresses might constitute perhaps a complicity in a conspiracy in the sense of the Indictment, it is important that on these occasions Hitler solely and one-sidedly made known his own opinion about military and political questions. The participants were only informed of what possible political developments Hitler expected. The participants were never asked for their opinion nor had they even any possibility to express their criticism of Hitler’s opinion. Hitler did not ask his generals to understand his orders; all he asked of them was to carry them out.

His autocratic leadership of the State was exclusively directed by the principle _sic volo, sic jubeo_, which he carried through to its logical conclusion. How rigidly Hitler followed this principle can be seen from the fact that after the address of 23 May 1939—as Milch stated in his testimony—he expressly forbade all participants to comment on the speech, even among themselves. That Hitler was irrevocably resolved on an aggressive war could not be deduced by the listeners of the said speeches, and they did not do so. This has been confirmed unanimously by all witnesses who were present when those addresses were given.

At that time Hitler had actually not yet planned a war. In that respect the testimony of Field Marshal Milch is very informative. When the witness, in the months following the speech of 23 May 1939, repeatedly pointed out to Hitler in personal reports that the Air Force was not ready for action with its bombing squadrons and had hardly any stocks of bombs, Hitler refused to give an order for the production of bombs and remarked that this manufacturing was unnecessary and superfluous. Hitler persisted in this refusal, although Milch pointed out that the production would take several months. An order to that effect was given by Hitler only on 20 October 1939.

Hitler’s discourse before the commanders-in-chief can be easily explained by the odd inclination of Hitler frequently to develop political ideas without ever thinking of their realization. In each case his practical policy resulted from the requirements of the actual development.

The defendant is accused of having plundered the territories occupied by Germany, thereby violating the Hague Convention concerning Land Warfare. This accusation is not justified.

During his examination the Defendant Göring has explained in detail, with absolutely noteworthy reasons, that the Hague Convention on Land Warfare dating from the years 1899 and 1907 cannot be made to apply to a modern war, since they had become obsolete and insufficient in some respects at the beginning of World War II. At the time when they were drafted, air warfare, economic warfare, and psychological warfare were still unknown. Total war, which put the entire people and the entire national economy without exception at the service of the war, was also not known. Especially, economic warfare was not considered at all. Due to this gap, there is no international law which has been generally recognized for economic warfare. Therefore the old statement of Hugo Grotius that everything is permitted in war (_quod ad finem belli necessarium est_) applies to economic warfare.

Naturally, this principle only applies so far as it has not been affected specifically by a differing settlement through treaties.

The following must be said about the legal situation as it stands:

Until the beginning of World War I it was generally acknowledged in international law—in any case as far as land warfare is concerned—that the war does not affect any private legal relations between the citizens of the belligerent states, that private property on principle was inviolable, that the war would only be pursued with arms, and that the enemy civilian population would not be affected by it. This method of warfare suffered a basic change at the outbreak of World War I, when England, in the field of naval warfare, applied her interpretation of war of people against people. At that time the enemy powers resorted to the policy of paralyzing the entire German national strength, disregarding all established rules of the law of naval warfare and of neutrality law by cutting off the necessary raw materials and import of food. This new type of warfare corresponded to the Anglo-Saxon interpretation, which was joined by France at the beginning of World War I, that is, that war is not only fought against the troops in combat but against the entire population of the enemy. The citizen of the enemy state is the enemy of England; his property is enemy property, which is subject to seizure by the British Government. With this, naval warfare was not only directed against the combat forces, but also against the peaceful subjects of the belligerent enemy. This goal was achieved by the total blockade carried out by England. The Hague Convention did not contemplate a total blockade in the form in which it was carried out by England. This blockade made any supplying of Germany through neutral countries impossible.

Under these circumstances Germany cannot be blamed for applying to warfare on land the method used by England by means of her naval power.

This fact leads to the following consideration:

The rules of land warfare, according to their meaning, used to apply to land warfare. There the principle of protection of private property obtained. In naval warfare, however, private property was unprotected. Now, is it possible for the rules of land warfare with their restrictions to apply to a combined sea and land war? Would it be just that merchandise should be taken away from a party at sea who would not be allowed to touch similar goods belonging to the other party on land?

According to established international law, the principle applies now as before that private property is actually inviolable during war. This principle suffers exception only insofar as the Hague Convention on Land Warfare permits certain encroachments on private property caused by an emergency in which the state may find itself, which are deemed justified to the extent in which they appear necessary in the interests of self-preservation of the state. Within this scope, therefore, certain actions are permitted during war which are not normally consistent with the laws of war and actually contrary to international law.