THE PRESIDENT: The Tribunal understands that the British Prosecution will answer on behalf of all the prosecutors with reference to the documents to be translated, relating to the organizations of the SS and the political leaders; so shall we deal with those first?

LIEUTENANT COLONEL J. M. G. GRIFFITH-JONES (Junior Counsel for the United Kingdom): My Lord, I am myself dealing with the documents for the political leaders, and my friend, Mr. Elwyn Jones, is dealing with those for the SS.

Perhaps it would be convenient for the Tribunal to take the documents for the political leaders first.

THE PRESIDENT: Yes.

LT. COL. GRIFFITH-JONES: My Lord, I have spoken to Dr. Servatius, who represents the political leaders corps, and we have agreed on the documents which he should submit in his final book. I have had lists printed which show the documents on which we have agreed.

Originally he has submitted six document books, with a total of over 250 documents, some of considerable length. We have agreed that from those a total of 90 odd documents should be included in the final book, and of those 90 we have only-certain passages-to be translated. I have a copy of the document books which have been marked, the passages on which we agree, and the remainder, of course, would be excluded.

TIIE PRESIDENT: What length will the document book be? Can you tell at all?

LT. COL. GRIFFITH-JONES: Except that there will be about- nearly 100 exhibits, but they will be quite short, the majority of them. The longest, I think, is two pages, and the remaining documents are just short extracts, perhaps a paragraph or two paragraphs.

PRESIDENT: Yes.

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LT. COL. GRIFFITH-JONES: Perhaps I might say this: Dr. Servatius had included in these books a number of affidavits which we have excluded, because we understood the Tribunal desired affidavits to be heard before the Commissioners. He had also included a number of quotations from Mein Kampf. These, if the Tribunal agree, we have excluded, because we thought that the Tribunal had their own copy of Mein Kampf and it would save work in the translating and printing departments.

For the remainder, much of the matter that was suggested was cumulative, and Dr. Servatius, I think, quite agrees that what we have put down now in Column A will meet his purpose.

There are-I understand, talking to him just before the Tribunal sat this morning-there are certain amendments to this list which he desires to make. He desires to include in Column A Documents 50, 68, 69, and 162, which at the moment are excluded.

My Lord, perhaps it would be convenient if Dr. Servatius and myself discussed the matter further, and perhaps you would entrust us to come to some arrangement about the inclusion or exclusion of those documents.

THE PRESIDENT: Yes, certainly.

LT. COL. GRIFFITH-JONES: I do not know whether Dr. Servatius wishes to say anything.

DR. ROBERT SERVATIUS (Counsel for Leadership Corps of the Nazi Party): Mr. President, I agree with this arrangement, and these minor questions which still require clearing up I will settle with the Prosecution. The books will probably then be reduced to two. There will be two document books left.

THE PRESIDENT: Thank you.

Yes, Mr. Elwyn Jones?

MAJOR F. ELWYN JONES (Junior Counsel for the United Kingdom): If Your Lordship pleases, with regard to the SS documents, Dr. Pelckmann and the representatives of the Prosecution have reached an agreement as to 99 of the documents. It has been agreed that 22 should be excluded and, with regard to the others, some are to be included in toto, and as to the others only extracts are to be included.

As to Documents 31 and 32, Dr. Pelckmann indicated that he was reconsidering his application with regard to these two documents, and it may, therefore, be possible that Dr. Pelckmann will have some observations to make to the Tribunal with regard to them.

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With regard to six of the documents, however, the Prosecution and the Defense have not been able to reach an agreement. Dr. Pelckmann insists that those documents are necessary for his case and it might, therefore, be convenient for me to indicate to the Tribunal the Prosecution's objections with regard to those six documents.

The first is Document Number 69, which is an extract from a speech made before the first meeting of the Reichstag after the Nazi seizure of power by the Social Democrat leader, Wels. This extract states that Wels' party favored the plea for national equality and denied Germany's war guilt. I submit, on behalf of the Prosecution, that that extract is wholly cumulative. There is an abundance of evidence of that kind before the Tribunal already. It is in any event, I submit, not relevant to the SS case.

THE PRESIDENT: Germany's war guilt, at what time?

MAJOR JONES: With regard to the war before the last one.

THE PRESIDENT: Yes.

MAJOR JONES: I finally suggest that if that document is admitted by the Tribunal then it would be proper, in the interests of historical truth, for the extract to be continued to include the severe criticism of the Nazi Party made by Mr. Wels.

The next document is Document 85, which is an extract from the Voelkischer Beobachter giving a quotation from William Randolph Hearst's alleged statement to the Defendant Rosenberg on the 3d of September 1934 to the effect that when that distinguished gentleman was in Germany 3 years ago there was the greatest disorder there; today, the 3d of September 1934, under Hitler's leadership Germany is a country of order. The Tribunal will remember that this date was about 9 weeks after what even Himmler has described as the appalling murders of the 30th of June 1934. I respectfully submit that that extract is, again, cumulative, irrelevant, and, finally, is of no probative value whatsoever.

The next document is Document 86, which is an extract from the Voelkischer Beobachter purporting to be an American athlete's impression of a journey through Europe in 1934. He states that he is satisfied with what he saw in Germany. Again, I submit that that is cumulative, irrelevant to the SS Case, and of no probative value.

The next document which is in dispute is Document Number 96, which is an extract from a book by an author alleged to be an American which was, significantly, published in Germany in 1935. It is a long extract dealing with concentration camps. It describes a visit by the author to Oranienburg Concentration Camp, in which he refers to the modern sanitary installations there, bedrooms which are apparently as good as those of the American

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Army; the prisoners apparently ate exactly the same dinners as the camp commandants and the SS guards. The author says that they had three rich meals every day, naturally without luxury, and he goes on in that vein. I do submit that that extract is of no probative value whatsoever.

There are, finally, two further documents, 101 and 102.

Number 101 is an extract from an American magazine purporting to describe the result of certain experiments carried out by American scientists with a vaccine said to be immunizing.

Number 102 is an extract from a book, An American Doctor's Odyssey, referring to further experiments with agents said to be immunizing and to other experiments in connection with the beriberi disease.

The Prosecution does not, of course, in any way admit the truth of the facts set out in these extracts, but I submit that even if they were true they have only a to quoque relevancy and I submit should not be included in the documents for the SS organization.

Apart from those documents, the Defending Counsel and the Prosecution have reached an agreement, and there is no more to say, My Lord.

THE PRESIDENT: The Tribunal would like to hear Dr. Pelckmann.

HERR HORST PELCKMANN (Counsel for the SS): Mr. President, I have to deal with various documents which have just been objected to by the Prosecution. First of all, I refer to Document Number SS-31 and Document Number SS-32.

Documents SS-31 and SS-32 have to do with the question whether the SA and the SS demanded that students should enter the SA and the SS. This is a question which is highly important for the SA. The SA have not yet completed their collection of documents. I think these documents are going to be submitted by the SA, and I shall therefore put them aside for the moment. Up for debate are the remaining six documents only. Let us first come to Document Number SS-69.

I should like first to say something in principle with reference to these documents. The documents do not, by any means, deal with the question as to whether what they contain is or was objectively true. They are merely submitted in order to point out how the readers assumed that real facts were being presented, and these facts were decisive for the opinions formed by the German people as well as, of course, by the members of the SS who are part of the German nation; just as they were for the opinions formed by a Party member or a non-Party member.

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They are documents dealing with the attitude adopted abroad or in our country. I believe that matters will have to be looked at from a different point of view in this connection than perhaps was done in the case of the individual defendants. The attitude adopted abroad cannot be relevant for the individual defendants, for the Prosecution assert that for the majority of the defendants it would appear to be evident that it was just these major defendants who deceived foreign countries. With reference to the masses of the population, however-and that affects the SS members also-what was thought and done abroad must be decisive in forming an opinion as to whether the Nazi regime is criminal or not. That is the general point of view which I think applies to all these documents.

The first Document Number SS-69 is a speech, as the prosecutor has said, by the Social Democrat member of Reichstag Wels. It is merely to show that this Social Democrat deputy, even after the seizure of power by Hitler, agreed with Hitler that the Treaty of Versailles must be fought against. By that I do not wish to say anything about the justification or nonjustification of the Treaty of Versailles. I am merely trying to show what the masses of the people were thinking and what the followers of Hitler, who had only just come into power, were thinking, when even a Social Democrat agreed with the Party Program on that point. For that reason I consider the documents as relevant, and particularly for the SS, because they, just as all the other Germans, were influenced by such statements in forming their own opinion.

THE PRESIDENT: Do you mean that the document says that the Treaty of Versailles should be fought against by war, or should be attempted to be changed by negotiations?

HERR PELCKMANN: No, it does not at all mean that the Versailles Treaty should be fought against by war.

Now, as to Documents Number SS-85 and SS-86.

Hearst, the American publisher of world-wide reputation, who as far as I know had considerable influence at that time in America, says, as the Prosecution correctly point out, in September 1934, a few months after the bloody events of 30 June 1934, that when he was in Germany 3 years ago he found the greatest chaos and that today under Hitler's leadership Germany is a land of perfect order.

Please note-and I must emphasize once more-that I am not referring to the objective facts; I am stating what was said about conditions in Germany by circles abroad-which in my opinion, were of weight in the publishing field-what was spread abroad and what was brought to the notice of the German people by means of the National Socialist propaganda machine, so that the German people, and with them also the bulk of the members of the SS, could not believe anything else than these published statements

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and saw in them a confirmation of their real belief at the time that here something really was being done for order and thereby also for world peace.

The second statement, in Document Number SS-86, is on somewhat similar lines. It is a report of 27 September headed "America is participating in the Olympic Games." The man in charge of American athletics had gone into the question very carefully as to whether the American nation ought to participate in the Olympic Games, and he then made a report in America in which he made statements about his experiences in various parts of Germany. He expressed himself very satisfied and was very much in favor of American participation in the Olympic Games.

The result was, as expected, that the committee decided that America would participate in the games. This again constitutes a corroboration, a consolidation and strengthening of German public opinion, and therefore also of the opinion of the bulk of the SS members, that in certain respects foreign countries were adopting an absolutely positive attitude toward the new Germany. It should not be forgotten that the different years, the different dates are most important. When the fundamental questions affecting the Indictment against the organizations were discussed before the Tribunal, from 28 February to 2 March, it was also pointed out that the time at which membership of an organization was acquired must very likely be regarded as a deciding factor. One must take into account in this connection that, when after 1933 the membership of the SS grew considerably, it was surely a decisive factor for the individual contemplating membership to know that, especially in those years following the rise to power, foreign countries too were giving some evidence-I am giving only examples-of their approval. I regret, Mr. President, that I have to dwell on this subject more than perhaps was expected, but it is necessary, because the fundamentals of the defense-at least the defense of the organizations-have not yet been discussed before the Tribunal.

Then we come to Document Number SS-96. Here again it is a voice from abroad-an American journalist. Of course, I am not in a position to investigate what standing this journalist has. But again, the objective importance is that it is the voice of an American journalist whose comments were published in Germany by a well-known German publisher in a book which had a tremendous sale. This American journalist describes, in the pages which I am quoting, among other things, conditions in Germany and conditions in the concentration camps.

To summarize them, they are described as not unfavorable, and I am of the opinion that again this, in 1935, was of importance to the question...

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THE PRESIDENT: Could you tell the Tribunal the name of the journalist?

HERR PELCKMANN Yes; his name is Doug Brinkley, for Douglas Brinkley-D-o-u-g-l-a-s B-r-i-n-k-l-e-y.

THE PRESIDENT: Would you spell it again?

HERR PELCKMANN: Douglas-D-o-u-g-l-a-s; Brinkley- B-r-i-n-k-l-e-y. I had already said that I, of course, know this man even less than the Judges. But one must remember that after all this was published in Germany; and the average German cannot know whether there is a well-known or unknown American journalist of this name.

At any rate, he speaks in detail about conditions in concentration camps, and about the knowledge the Germans and also the SS members had. This statement is relevant because during future hearings and before the commissions I shall show, and have shown, that the knowledge of these conditions in concentration camps was confined to the very small circle of those who were occupied with them.

Finally, Documents SS-101 and 102. Here we are concerned with the question of the medical experiments on living human beings. First of all, I should like to say that I do not by any means maintain that experiments undertaken in concentration camps conform with the principles of humanity. Without detailed evidence I am not capable of passing judgment on this point; but I can prove from scientific publications of recent date that the question of whether experiments which might cause death should be carried out on living men to save the lives of tens or hundreds of thousands of human beings is, at least, argued in scientific circles and, at least according to these documents, has certainly been affirmed by wellknown foreign-American and British-scientists.

In this connection, I am assuming that internees in concentration camps-as I have been trying to prove before the Commission and, perhaps, shall continue to prove-volunteered for such experiments. I must point out, however, that evidence that such experiments were carried out abroad on people who did not volunteer is supplied, in-my opinion, by the wording of this statement. Document SS-101...

THE PRESIDENT: Would you mind pausing there? I thought you said that they had volunteered for it.

HERR PELCKMANN: I said that those documents do not show clearly that experiments made abroad were made on real volunteers, whereas I contend and must contend that according to testimony given up to now, experiments in concentration camps were carried out on volunteers. It...

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THE PRESIDENT: I was only asking you what these documents that you are speaking of, 101 and 102, said. Did you say that they show that the people who were experimented on volunteered for the experiments?

HERR PELCKMANN: No. I said, Mr. President, that it is different, and neither one nor the other of the documents states quite clearly what the position was. One document seems to indicate that the people did not volunteer. What appears of more importance to me is that...

MAJOR JONES: If the Tribunal please, I do not think that the defending counsel's statement should go without challenge. It appears from the Document 101, the report from the magazine, which is not a scientific magazine-it is the Time magazine, which I understand is not a work of science-that the extract is silent on the question whether the persons who were used for these experiments were volunteers. The second extract from Document 102 states quite clearly that the subjects of the experiments were volunteers.

HERR PELCKMANN: Quite right. The second document deals with voluntary experiments. The first document, however, leaves the question open. But I conclude from circumstances shown in the document that it does not seem to be absolutely certain whether there were volunteers. It is an extract from a fairly recent publication, Time of 24 June 1946. It deals with a new remedy for tuberculosis. American scientists carried out experiments with antituberculosis inoculations on 3,000 Indians. Half of them were inoculated with this drug. Half were given a harmless salt injection; 40 tuberculosis cases developed; 185 cases did not show any react-ion, and 38 died. And these experiments were carried out on Indians who were free from tuberculosis.

The other document is a German translation of an American book, An American Doctor's Odyssey, written by an American doctor. In it he describes how the research worker, Fraser, experimented with the well-known disease of beriberi on criminals in Bilibid who, as the Prosecution have mentioned, earned for that a small perquisite and, if the experiments were dangerous, they could obtain a reduction in their sentence. These experiments were tried on the inmates of the lunatic asylum of Kuvala Lumpur and were carried out in the following manner: Part of the inmates were given unpolished rice to eat, and part were given polished rice. The second group of these inmates became ill. Then the two groups were exchanged, and the sick became healthy and the healthy, sick. The effect of these experiments and of the disease in general is very severe. The patients cannot leave the bed and often die of a

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weak heart. I quote from this book: "I shall not forget the impression made upon me by the huge hospital for beriberi incurables at Singapore, where these poor people were crawling around on their hands..."

THE PRESIDENT: We do not need all the details of it.

HERR PELCKMANN: I am merely going to say that we are concerned here with a contested scientific opinion...

MAJOR JONES: I am intervening again. But such a sinister implication is being given by the alleged purport of these extracts by defending counsel that I really must protest. The report that is given is of the symptoms of beriberi disease; it is not an account of the result of these experiments at all. The experiments took this form: some Malayans were tested with their ordinary diet of polished rice, which is said to bring on beriberi; other prisoners were tested with a diet of unpolished rice. And it was proven that a diet of polished rice, which is their usual diet, brought on beriberi. There is no sinister import. There is no Dr. Rascher element about this.

HERR PELCKMANN: I should like finally to come to the subjective angle. It is alleged by the Defense that these experiments too were kept extraordinarily secret. And if they had become known . . .

THE PRESIDENT: We have got the essentials of the arguments.

HERR PELCKMANN: Thank you.

THE PRESIDENT: We will hear now from the United States Prosecutor with reference to the General Staff and High Command, the SD, and the Gestapo.

MR. THOMAS J. DODD (Executive Trial Counsel for the United States): Mr. President, with reference to the SD and the Gestapo we have come to a complete agreement with the defense counsel so there is no contest concerning the documents. They number some 150 pages for the Gestapo and some 80 pages for the SD.

With reference to the High Command and the General Staff, we have not been able to agree on a few documents. In the first Document Book Number 1, Document Number 5, we have objected to its translation certainly, because it has to do with the knowledge of General Busse, about the political feelings of some of the generals toward National Socialism, and it's simply his own opinion and does not purport to be anything more. Attached to it are graphs and charts and so on, and it's made to appear that it is based upon opinions which General Busse has gathered from conversations- nothing to show that he is any authority on the subject or would be in a position to know anything beyond the ordinary capacities of any other man.

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Document Number 8 we also object to because again it is an instrument based upon General Winter's collection of the opinions of other people. Insofar as we can tell, General Winter made some kind of a poll-a private poll, to be sure-of his associates, and asked them what their opinions were. And he.. .

THE PRESIDENT: What is the nature of the actual document. Is it a publication?

MR. DODD: No, Sir, it is not. It is in the form of a statement by General Winter.

THE PRESIDENT: Is it sworn to?

MR. DODD: Yes, Sir, it is.

THE PRESIDENT: Busse and Winter, they are both sworn, are they?

MR. DODD: Yes, Sir, they are and they submitted their statements, these two men.

THE PRESIDENT: And what is the date of them, 1946?

MR. DODD: Yes, Sir, very recently. Sometime in June 1946.

THE PRESIDENT: What's the date of that one?

MR.DODD: One of them is July-anyway within the last 2 months.

The Document Number 9 is of the same character again. It is a statement based on written opinion. In all our statements which have been supplied by members of the German armed services, and in any case all of these statements which are affirmed to and sworn, no statement has been sworn to by themselves. The individual who makes the affidavit goes about and inquires and he, on his oath, states that these things are true or represents that they are, without showing that the persons who gave him the information have done so on an affirmation or on oath.

Document Number 11 is a newspaper article about General Marshall's report to the Secretary of War of the United States. That has already been introduced here by the Defense and our objection is somewhat technical, but I think nevertheless necessary and valuable. We feel that a newspaper extract should not be used, particularly when the document itself is in evidence, and if the counsel will only use what already is in evidence, it will have no troubles. It is Exhibit Jodl-56. We have not been able to make that clear to the Defense Counsel, so far.

Document Number 13 is again a poll, conducted by-a statement by General Winter rather, based on another one of his private polls of his fellow prisoners, concerning their attitude toward the so-called Commissar Order, and besides this matter has been handled before the Commission established by the Tribunal, and there the

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matters were objected to and sustained by the Commissioners. But in any event we object again here, even to the translation, because it seems of no value at all to have General Winter's submitted statement, based on this kind of information.

Document Number 20 is a letter written by a General Seidler. The letter written by General Seidler, of course, is not a sworn statement. This is Document Number 20, and we objected to it on that ground. Besides we have very grave doubt about its value in any event.

Document Book 2 contains one document which we object to. That is Document Number 15. That also is not an affidavit, but instead it is an unsworn letter from General Von Graevenitz to General Von Kleist-it is written under the date of June 24, 1946- which, in our judgment, is of no value; and we do not see that it would be helpful in any event to the Tribunal. Other than that, we have no differences.

THE PRESIDENT: Mr. Dodd, will you tell us with reference to these documents that you object to, how long they are?

MR.DODD: They average about-from what I see of the German text-two to three pages, and attached to some are drafts. Do you mean the whole, in total?

THE PRESIDENT: Yes, take them in order, starting with Number 5.

MR.DODD: That has two pages. It is the statement with the draft attached to it.

THE PRESIDENT: What about Winter's Number 8?

MR. DODD: That's seven pages and two pages of drafts, which makes it altogether nine pages. The newspaper article about General Marshall's report, I don't know. So far, only one typewritten page. Document Number 13 is a 10-page document. General Seidler's letter is one page, and Document Number 15 is only one page. It is also a letter.

THE PRESIDENT: Thank you. Now, Dr. Laternser.

DR.HANS LATERNSER (Counsel for General Staff and High Command of the Armed Forces): There still remain certain documents which are disputed. First of all, Document Number Mil-5. The table submitted with Number 5, on Page 29, refers only to historically established facts which are graphically represented in that table in order to show their extent and the effect they had within the accused military leadership. The affidavit of General Busse, which is attached, is not intended to prove facts which are historically known in any case, but merely to explain the table. It is not, therefore, a private opinion on the part of General Busse. The admissibility of that table can therefore not be objected to.

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I will take Documents Mil-8 and 9 together, because the objections raised against them are similar. The lists contained therein are meant to facilitate the Tribunal's judgment on the circle of persons falling under the Indictment. Thus we are not concerned with written statements but with lists and I am only too willing, if the technical department is too busy, to furnish the necessary number of copies of these lists myself.

The basis for these lists is Exhibit Number USA-778, (Document Number 3739-PS) which was submitted by the Prosecution on 2 March 1946. This Document USA-778 which was prepared by the Prosecution contains the names of all the persons who are said to come under the Indictment and also shows the periods during which they held office. This Prosecution document, Exhibit USA-778, does not state the source from which these details originate, therefore they are merely assertions on the part of the Prosecution. Using this Exhibit Number USA-778 as a basis, however, I asked General Winter to draw up the submitted lists, Number Mil-8 and 9, to the best of his knowledge and conscience. In contrast to the lists submitted by the Prosecution the Tribunal will be able to judge the source of these lists particularly well, for General Winter appeared personally before the Tribunal as a witness in Jodl's case. The list Number 8 contains the names of persons dead and further those of individually accused persons and those whose posts were only temporary, not permanent. According to the lists that makes 56 persons and for all practical purposes of judgment that number need not be taken into account. In this list are shown also the many cases where commanding generals were relieved of their positions on account of serious differences of opinion.

The list Number Mil-9 gives the names of 31 people who occupied positions for less than 6 months and to whom the Prosecution have referred. This document is relevant with regard to alleged conspiracy. If therefore the Tribunal desires to have a good factual basis for judging the composition of the Circle of persons indicted, then these lists should be accepted. Moreover, the list already accepted by the Prosecution, USA-778, can only refer to the same or similar sources as those of the lists which I am submitting, and the lists of the Defense quote the sources and can be checked. If I had used the same method as the Prosecution, I would only have had to submit the lists without the addition of an affidavit. Therefore, I beg that these documents be admitted.

Number Mil-ll has already been accepted in the same form by the Tribunal as Document Number Jodl-56, a fact which, incidentally, I mentioned at once to the Prosecution, and attempts to make that clear to me were really not necessary.

THE PRESIDENT: Number 11 we understood was a newspaper report with reference to General Marshall's report.

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DR.LATERNSER: When that objection was brought up I immediately pointed out that the same document to which I was going to refer had already been submitted during the proceedings against General Jodl. That is the Marshall report. Therefore, I withdraw this document of mine.

THE PRESIDENT: You are withdrawing it? I see.

DR.LATERNSER: Yes, as the document has already been submitted. I merely wanted to include it in my book for the sake of having it complete. Then I would just like to remark, Mr. President, that attempts on the part of the Prosecution to make this clear to me are not necessary, because I usually understand that kind of argument fairly easily.

Document Number Mil-13 is also based on USA-778 as far as the circle of indicted persons is concerned. This list, also compiled by General Winter, is meant to complete the picture proving the correct attitude on the part of the generals toward the Commissar Order. As that list-based on the list submitted by the Prosecution- and the affidavit attached to it give the exact sources, the document can readily be checked as to its worth. The objections on the part of the Prosecution may detract from its value as evidence, but the documentary character of the document cannot be destroyed; therefore, this list, too, should be admitted.

THE PRESIDENT: Hasn't Document Number 13, that is to say .the subject of the attitude of the generals to the Commissar Order, already been dealt with before the Commission?

DR. LATERNSER: Yes, Mr. President, but examination of witnesses and submission of affidavits cannot give the same picture as the one I am attempting to give by means of this document. This document contains the names of the generals who belonged to that so-called group; in a special column I have marked whether the order was received and in another column whether the order was carried out, and these facts which General Winter mentions here are explained by him in his affidavit which is attached to the list itself. He goes on to quote the sources from which he had gained his knowledge, so that I can examine the sources and so the evidential value.

THE PRESIDENT: Dr. Laternser, you have called a certain number of witnesses before the Commission, have you not?

DR. LATERNSER: Yes. I had eight witnesses.

THE PRESIDENT: I suppose all of them, or almost all of them dealt with this subject. You put in a certain number of affidavits and those affidavits have dealt with this subject, have they not?

DR. LATERNSER: Yes.

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THE PRESIDENT: How many affidavits have you put in before the Commission?

DR. LATERNSER: I cannot, Mr. President, give you the exact number at the moment. Affidavits have been submitted by me on only two matters.

MR. DODD: There were 72 of them, Mr. President. He put in 72 of those affidavits.

Am; PRESIDENT: Well, isn't this really an attempt to extend and make more exhaustive the proof which you are submitting?

DR. LATERNSER: Mr. President, this Commissar Order no doubt is a criminal order, and I was merely trying to show clearly to the Tribunal by means of this list how, well the high generals had conducted themselves on the point; I had summarized the outcome of that part of the evidence in this list. General Winter has compiled the list, so the Tribunal can decide whether this list is valuable or not. I am merely trying to say that the objections raised by the Prosecution can affect the evidential value of this document but not the document itself. I ask that it be admitted.

THE PRESIDENT: But if you put in 72 or 82 affidavits before the Commission, why shouldn't you put in this document before the Commission?

DR.LATERNSER: Well, but here we are not concerned with affidavits. Up to now only affidavits have been submitted whereas here in Document Number Mil-13, the most important thing is the list, and the affidavits which are attached are merely an appendix to that list. They are intended to give an explanation of the list. The main feature of this document, therefore, is the list and not just the explanatory affidavit, so that it would not have been admissible before the Commission.

THE PRESIDENT: Yes, Dr. Laternser, but it doesn't make it inadmissible before the Commission that it is an affidavit exhibiting a list. It could have been put in before the Commission, and if it had been put in before the Commission it would have been brought to our notice as is, of course, everything that goes before the Commission. Also, it is pointed out to me of all these documents, they could all have been put in before the Commission.

DR. LATERNSER: No, Mr. President, that point of view cannot be right. Up to now we could merely submit affidavits to the Commission and not documents. The documents were to be included in the document books, and that is what we are discussing today. This Mil-13 is a document, that is, the list, whereas the affidavit is purely of secondary character. It is merely meant to give an explanation. I ask that a decision be made.

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THE PRESIDENT: Well, we hear what you say and we will consider the matter.

DR. LATERNSER: Then I wish to speak about Documents Mil-15 and Mil-20. Both are letters, the admissibility of which is of importance to me particularly since ordinary letters have frequently been admitted as evidence during this trial. I will remind you in particular of the Rainer letter in the case of the Defendant Dr. Seyss-Inquart. Then there is the letter of Generaloberst Zeitzler, dated 8 July 1946, which is Mil-20. It is important because it shows that as a result of the efforts of a general who comes within the indicted group the Commissar Order was rescinded. That is why this letter assumes particular significance for me as defense counsel of the indicted group.

THE PRESIDENT: Will you give me the dates of the letters?

DR.LATERNSER: The letter is dated 8 July 1946, and it was addressed to me. That, Mr. President, is all I have to say to the objections raised by the Prosecution.

THE PRESIDENT: Thank you. Mr. Dodd, that concludes the arguments that we need hear this morning, does it not?

MR.DODD: Yes.

THE PRESIDENT: Well, the Tribunal will consider your suggestions. I call on Dr. Steinbauer for the Defendant Seyss-Inquart.

DR. STEINBAUER: Gentlemen of the Tribunal, on Friday I was on Page 71 and, with the permission of the Tribunal, I should like to continue on that page.

From what has been said it is shown that the Reich Commissioner had to assume only a limited responsibility for the German Police, that is to say, insofar as he used them for the execution of his orders in civilian matters. When the Reich Commissioner called for their help, the Police as a rule first got in touch with Himmler. But in all matters which came within the jurisdiction of the Police, the Reich Commissioner could neither issue orders to them nor intervene de jure in their activity. This fact must never be lost sight of when judging the Jewish question, the concentration camps, and the deportations.

The admissibility of special courts and police protective custody is recognized even in the report of the Dutch Government. The Police were responsible for the arrests and the management of the concentration and prison camps. As explained in detail by the defendant when examined as a witness, he went to great trouble, as Wimmer and Schwebel also confirmed, to put an end to abuses he had heard about in the camps. I shall refer only briefly to the treatment of the so-called Dutch reprisal hostages in whose case the defendant was very interested, also to the fact that he succeeded

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in obtaining permission for the members of the clergy who had been imprisoned in the Reich to return to the Netherlands.

Having thus briefly outlined the position of the Police and their tremendous power, I shall pass on to one of the main points of the Indictment-the Jewish question.

In their trial brief the Prosecution state that Reich Commissioner Seyss-Inquart alone bears full responsibility for the carrying out of the Nazi program to persecute the Jews in Holland, and that in his Amsterdam speech before the members of the NSDAP on 13 March 1941 he himself declared: "To us the Jews are not Dutchmen; to National Socialism and to the National Socialist Reich the Jews represent the enemy." In that speech Seyss-Inquart also explains why, as defender of the interests of the Reich, he believed he had to adopt that attitude toward the Jews. He knew them to be people who, through their influence on the German people, would paralyze their will to resist, and who would always prove to be the enemies of the German people. But this speech shows more than anything else that Seyss-Inquart considered all measures against the Jews as security measures for the duration of the war only. He speaks of his desire to create tolerable measures during the period of transition and says that after the occupation had come to an end it would be for the Dutch people to decide what was to be the fate of the Jews. It was quite natural and obvious for the Jews, as a result of the treatment they had experienced in Germany and later in the occupied countries, to become no matter what their nationality the most bitter opponents of National Socialist Germany That had to be taken into account by every official who had to look after the interests of the Reich in occupied territories. This also makes the speech referred to in the beginning understandable. Therefore when Seyss-Inquart was commissioned by the Fuehrer decree to safeguard the interests of the Reich in Holland, he also had to take some kind of stand on the Jewish question. It was his intention to remove the Jews from leading positions in the State and in the economic life of the country for the duration of the occupation, but otherwise to refrain from further measures against them. Actually, the measures instituted by him merely provided that those Jews who were working for the State were sent on leave or were retired with a pension.

In the meantime Adolf Hitler had transferred the handling of the whole Jewish question to Himmler, or to Heydrich, who received full powers for the whole sphere of interest of the Reich. The Security Police, dissatisfied with the dilatory way in which the Reich Commissioner handled the Jewish problem, availed themselves of their full powers and had established an office in Amsterdam, whose interference was the cause of constant friction with the deputy of the Reich Commissioner in Amsterdam. The Security

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Police claimed that they were unable to guarantee the safety of the Reich, with which task they had been entrusted, unless further measures against the Jews were taken to restrict their activities in the field of economy and limit their personal liberties. English and French people had been assembled in separate camps and had been driven over the Reich border after their property had been confiscated as enemy property, which treatment Germans living abroad had likewise experienced in enemy countries. The Police made it known that very many Jews were actually involved, and often took a leading part in all the more serious attempts at sabotage and other forms of resistance. The Dutch Jews also, some of whose ancestors had come from proud Spain, and many of whom had come from Germany and the East as emigrants, had already held leading positions before the occupation in the economic field, and especially in the press, which they had used to combat National Socialism. When the enemy entered the country, they knew it would be a life-and-death struggle and, contrary to Shylock's words in the Merchant of Venice: "For sufferance is the badge of all our tribe'" they not only placed their property at the disposal of the resistance movement but also their lives. The Reich Commissioner could not close his eyes to this fact. Because of the great number of persons involved, it was simply not possible to mete out to the Jews treatment similar to that of the English or the French or other enemy aliens by confining them in a camp. Measures restricting personal freedom of action were taken by the Higher SS and Police Leader as Himmler's direct subordinate, or by the Security Police on direct orders from Heydrich. Included in these measures was also the introduction of the Jewish star-incidentally, the Dutch did not consider this a mark of abasement. At the same time that measures affecting the freedom of movement were taken, the property of Jewish organizations and Jews was also placed under control. The Reich Commissioner appointed Dr. Boemker his special trustee and gave him the task of supervising the measures taken by the Police-insofar as this was administratively possible-and of preventing excesses. In fact, he intervened a number of times and was able to prevent unjustified police measures.

A large part of the activity of the Reich Commissioner's office was concerned with economic measures, and the description by the Dutch Government Commissioner for Repatriation, Exhibit Number USA-195, (Document Number 1726-PS) gives a clear picture of the entire Jewish problem in Holland. The chart shows that the Reich Commissioner was able to delay measures against the Jews for almost a year, and that really intensive measures did not begin until February 1941 with the formation of the Central Office for Jewish Emigration which was ordered by Heydrich and which was under the supervision of SS Obersturmfuehrer De Funte. A

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comparison with measures taken against the Jews in Germany itself and in other occupied countries shows a pronounced uniformity, which likewise indicates that the measures in question were not taken by the Reich Commissioner but were measures applied uniformly by Reich offices, in other words, by the Police. The Reich Commissioner also saw to it that Jewish property was sequestrated in an orderly manner. When it finally came to the liquidation of the property, following orders from the Berlin central offices, proceeds from the liquidation were not confiscated, but credited to the Jewish owners. Toward the end the Jewish administrative office had accumulated some 500 million guilders.

In order to put an end to the constant pressure and interference by the Police through Heydrich, the Reich Commissioner, together with the Higher SS and Police Leader, tried to stabilize the Dutch Jewish question by assembling the Jews affected by the restrictive regulations in two districts of Amsterdam and in two camps, where they were to live under their own administration. One of the camps was Westerborg, where they had a Jewish camp police of their own. On the outside, the camp was under the supervision of the Dutch police. When, in the spring of 1945, it was taken by the Canadians, the British radio reported that they found the Jews housed there to be in good condition, unlike the state of affairs in other camps which were found outside Holland. The second confinement camp was to be Vught. Himmler made a concentration camp out of it. The Jewish community of Amsterdam was under the direction of Ascher, a merchant who dealt in precious stones. Funds were made available to the Jewish community, especially for school purposes; negotiations were carried out with firms to provide work in the Jewish quarters. At the beginning of 1942 Heydrich, or rather Himmler, demanded the transfer of the Dutch Jews to assembly camps situated in Germany. Both referred to the full powers given them by the Fuehrer and pointed out that sooner or later an invasion had to be expected. Holland seemed a likely territory, because the ports of Rotterdam and Amsterdam provided suitable supply bases, and from there the British would take the shortest route to the Ruhr, the industrial center of Germany. To permit so many people extremely hostile to Germany to remain in a territory which would see future operations in the battle against Britain was inconsistent with the safety of the Reich. The Police were adamant and all the Reich Commissioner was able to do was to take steps to make the evacuation by the Police more humane. The Reich Commissioner succeeded in getting thousands of Jews exempted so that these people were able to remain in Holland. The defendant got his agents to inspect the internment camps and, insofar as he was able to do so, he managed to have bad conditions remedied by the intervention of the Christian

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Church. The order for the evacuation was not given by the defendant but by Himmler or Heydrich. The defendant did not even give his consent for the evacuation. As a result of representations by the defendant, a number of Jews were taken to Theresienstadt, which was said to be a camp supposedly under the supervision of international agencies, such as the Red Cross, and where the Jews were said to be well treated. As a result of exemption regulations introduced at the request of the Reich Commissioner, a great many Jews were exempted from evacuation. The afore-mentioned Dr. Boember was appointed to supervise the transport of the Jews in Holland and in many cases succeeded in getting the Higher SS and Police Leader to remedy bad conditions. Most of the Jews were taken to Poland, and probably one of the most terrible sentences is that to be found in Exhibit Number USA-195-a document submitted by the Prosecution-which reads:

"Total number of deportees: 117,000.... After their leaving Holland all trace of them was lost. Absorbed in an agglomeration of deportees from almost all occupied countries, they can no longer be identified as a separate group."

Now comes the cardinal question of the whole Indictment, the dramatic climax in the Trial against this defendant. Did the defendant know of the fate of these many unfortunate and innocent people; did he intentionally approve of their fate or is he guilty because he did not prevent it?

Again and again, the defendant has solemnly declared, even when questioned as a witness under oath, that he did not know anything about this, and that he was of the opinion that the Jews really were going to be resettled in the East for the duration of the war.

When in 1942 or 1943 the defendant had an opportunity of speaking to Adolf Hitler himself, when he had to make a report to him, he steered the conversation round to the Jewish question. When the Reich Commissioner pointed out that the evacuation of the Jews was causing serious unrest in the Netherlands, Adolf Hitler replied that he had to segregate the Jews from the body of the German people, because they were a destructive element, and that he wanted to resettle them in the East. When Himmler, the Chief of the SS and of the German Police, was questioned by the defendant at the beginning of 1944, all he said in answer to the Reich Commissioner's apprehensions was that he should not be worried about his Jews, his Dutch Jews were his best workers.

The government representatives who had been sent to inspect some of the camps returned with the report that the Jews were getting along well and that they were satisfied. News from the deportees reached the Netherlands at regular intervals, although

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it became less frequent as time went on. Now that the heavy curtain which concealed the horror of these mass murders has been lifted, we know the circumstances and the truth. The scrupulously careful probings in this Trial especially have revealed the diabolical manner in which Hitler and Himmler knew how to disguise and conceal their criminal intentions concerning the final solution of the Jewish question. When I read the Dutch report about the Jewish question for the first time, I myself was deeply moved. This is the document which, together with the so-called Hossbach document-the last will of Hitler of the year 1937-I have especially submitted to my client. As for the Hossbach document, in which the evacuation of 1 million Austrians was demanded, Dr. Seyss-Inquart told me that he had never seen it and had also never heard of it. He said: "If I had known about such intention I would never have been a party to it."

Also when I submitted to him the document concerning the Jews, he told me in a way which convinced me that at the time he knew nothing about the "final solution" and the happenings in the extermination camps. When I then asked him why he did not resign when he found he could not prevail upon Himmler and his accomplices, especially concerning the Jewish question, he told me that, after all, I too, had been a soldier and knew that a soldier must not desert in wartime. He had arrived at the conclusion that if he had remained in his post, quite apart from his other tasks, it was because he doubted very much that the Netherlands would fare any better under a successor.

As a defense counsel and jurist, I must add the following: One could not know of the measures of extermination which the Prosecution have mentioned. If extermination did take place to the extent alleged, then these are the acts of a special group of Himmler's hangmen resulting only from a desperate situation. But in penal law, the principle applies that the causal nexus is interrupted if an independent criminal act interposes. This is the case here. Before I conclude the most difficult chapter of the whole Indictment I should still like to examine the question, as to whether the statement of the defendant, that he actually could not have had any knowledge of the terrible crimes which were committed in the extermination camps, is, in fact, credible...

THE PRESIDENT: Wouldn't that be a convenient time to break off?

[A recess was taken.1

THE PRESIDENT: I will deal with these documents. The documents objected to in the case of the SS, 69, 85, 86, 96, 101, and 102, are all disallowed.

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In the case of the SD and the Gestapo all the documents are agreed.

In the case of the High Command, the Tribunal allows the Documents 8 and 9 to be translated and put in the document book. Number 11 is withdrawn. Numbers 5, 13, 15, and 20 may be submitted to the Commissioners, but they will not be translated for the document books. That is all.

Now, Dr. Steinbauer.

DR.STEINBAUER: I continue.

First of all I should like to present the testimony of a French medical doctor, who himself was a prisoner in an extermination camp for a long time. This is Dr. Goutbien from Montgeron (Seine-et-Oise), who writes:

"It is difficult for a normal human being to picture exactly what a concentration camp, which is designated in the German language by the two letters 'KZ,' is like.

"It is difficult for various reasons: First of all, a man brought up according to the principles of our civilization, which is based on the elementary Christian humanitarian doctrine, cannot believe the statements made by the victims of so many atrocities; the sadism, the exaggerated refinement used in causing suffering, go beyond the normal powers of feeling; moreover, the Nazis tried to conceal their crimes in a hypocritical way, so that a foreigner who might have inspected a concentration camp 2 or 3 years ago would have been impressed by the order and cleanliness.

"If a jurist had examined the execution cases, he would always have found at least sufficient reasons, if not valid ones, for their justification. Finally, if a doctor had searched for medical records, he could very easily have concluded that the causes of death were normal.

"So heavy was the curtain which covered the concentration camps, so careful were the SS to see that it was so kept-and so jealously did they guard the secrets! The SS tried to give a legal appearance to their crimes. We have here a characteristic feature of Hitlerian hypocrisy."

The Jesuit, Father Kueble, also expresses himself in a similar vein in his book, Die Konzentrationslager, eine Gewissensfrage fuer das deutsche Volk and fuer die Welt (The Concentration Camps-a Question of Conscience for the German People and the World). He writes, Page 19:

". . . and he believed it possible to prevent discovery by an absolutely impenetrable ring of silence with which he surrounded his works. This ring was so tightly drawn that a

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German had to travel abroad to learn something concrete about the camps and to read there about these 'Soldiers of the Marshes' (Moorsoldaten). At home books like these did not exist, and one learned only very little from hearsay. Nobody came out of the worst camps, and the wrongdoers themselves were 'liquidated' from time to time, so that they could not tell anything. But the few who got out of the less terrible camps were so intimidated, that they gave only quite general, obscure hints-just enough to create in the entire people a general feeling of horror of these mysterious places."

But even the little which went from mouth to mouth never came to the knowledge of higher officials of the Third Reich, for if they followed up these things, the Police learned about it and took care to see that the bearers of such "atrocity propaganda" kept silent. Therefore, as time went on one refrained from telling anything to these officials.

But the most important testimony is that of one who knows, who himself had an active share in the liquidation of the Jews. On 25 June 1946 Dieter Wisliceny, the special representative of Eichmann, who was in charge of the liquidation of the Jews, was questioned as a witness by the appointed judge of this Tribunal. He stated that commissions of the International Red Cross or foreign diplomats were conducted to Theresienstadt in order to make it appear that conditions were normal. The Jews who were brought to Auschwitz were forced to write postcards before they were murdered; these postcards were then mailed at long intervals in order to create the impression that the persons were still alive.

He invited various representatives of the press. To the specific question, "Under whose jurisdiction is the Jewish question in the occupied countries, under the commander of the Order Police, the Security Police, or the Security Service?" he gave the answer: "According to my knowledge, the Jewish question in the other occupied countries is an affair of the Higher SS and Police Leader, according to a special order by Himmler."

In order to make the deception even greater, 500 Reichsmark, for instance, would be demanded from the Slovak Government as settlement contribution for every Jew. I confronted the defendant with this, and he told me that Himmler also demanded from him a settlement contribution of 400 Reichsmark for every Dutch Jew. As Reich Commissioner he refused this, because of the inadequate information about the actual settlement of the Jews. Also he argued that the final settlement would have to be left over until the peace.

During his examination the defendant, of his own accord, mentioned individual cases of sterilization. The applications I made

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to have the letters written by Seyss-Inquart to Himmler procured as evidence, taken in conjunction with the statement of the defendant, show the following facts:

Contrary to the statement of the then 18-year-old informant Hildegard Kunze, Seyss-Inquart never reported through any sort of official channels to Himmler about the Jewish question. What happened was that Seyss-Inquart asked Himmler not to aggravate the situation of the Jews in the Netherlands any further, referring in this connection to the measures which had been carried out in the meantime against the Jews and which exceeded the measures in the Reich, and at the same time pointing out the cases of sterilization.

Seyss-Inquart took an immediate stand against the sterilization of women and made a statement to the Christian Churches that no coercion must be exercised. As a matter of fact, after a short time there were no further cases.

As regards the case itself, the defendant can only be made responsible insofar as he did not take an immediate stand against it, without being sure of course of being able to prevent the action. The reasons for the attitude of the defendant are given in the letter which it was requested should be put in evidence. He was worried that the position of the Jews should be made even worse and supposed that these Jews would be spared further attention from the Police in the future.

In any case, insofar as measures against the Jews went through the defendant, they were taken only as measures against hostile foreigners, for reasons which the defendant mentioned in his speech of 21 March 1941 in Amsterdam. Whatever happened beyond that was the express order of the Reich Central Agencies, especially Heydrich, and was mostly carried out by organs of these Reich Central Agencies themselves.

A further count of the Indictment is the assertion that the defendant as Reich Commissioner, in pursuance of the planned policy to weaken and exterminate the peoples of the occupied countries, had deliberately neglected food supplies for the Dutch, and this finally brought about a hunger crisis.

Such allegations appear to be refuted by the testimony of the witnesses Dr. Hirschfeld and Van der Vense, as well as by the statements of the defendant himself. In the interests of the population the whole machinery of food supply was from the very beginning under Dutch direction, although it was known to the Reich Commissioner that it was particularly in this field that leading cells of the resistance movement had established themselves. The food supply in the Netherlands was certainly not worse than in Germany, from whom they even received supplies of grain. As late as 1944

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the ration amounted to 1,800 calories and before that 2,500 calories, which was supplemented by a great variety of things.

The Reich Commissioner succeeded in putting a stop to the knapsack traffic of the Armed Forces, which was mentioned in the cross-examination, by intervening with the Reich Food Estate-even if it was not until 1943.

How much was done by the defendant to improve the food supplies of the Dutch, for example by developing the northeast polders, and by resisting the excessive demands of the Reich, is confirmed by the witness Van der Vense.

That the Dutch production of nitrogen could be reserved for Dutch agriculture until September 1944 is due exclusively to the defendant. From the autumn of 1944 on, the situation with regard to food supplies deteriorated considerably. Most of the country was in the fighting zone after the invasion, and the traffic routes had been smashed by countless air attacks. This created a very difficult food situation, particularly in the west of Holland, where millions of people were crowded into a small area in three large cities. In view of the small number of occupation troops, it would have been an egregious blunder to drive these crowded masses to desperate resistance by planned starvation.

When in September 1944 there was a strike of railway men and barge men, engineered by the London exile government, which was counting on a favorable outcome of the battle near Arnhem and a German collapse in the very near future, this, seen under the aspect of international law, was a state of emergency in which the country had placed herself vis-a-vis the occupying power. It was only natural that the Wehrmacht used all available shipping space for its own defense and to secure its food supplies.

In order to avoid repetition, may I refer to the testimony of Van der Vense and Dr. Hirschfeld and stress the most important point, namely, that the witness Dr. Hirschfeld testified that on 16 October 1944 the Reich Commissioner had already given the order for lifting the ban on shipping traffic. He could have reckoned with the fact that a blockade of 4 weeks, which was not intended as a reprisal, would not cause any damage, because sufficient foodstocks were available or could be sent into Holland in the months of November and December, but what he really did was to lift the embargo at an earlier date, organize emergency transport and import food from the northeastern provinces, using for this German transport.

The failure of the Dutch transport system, the constant day and night enemy air attacks, the acts of sabotage by the resistance movement, and finally the serious coal shortage hampered the supply operations, so that the state of emergency caused by the strike

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cannot in any way be laid to the charge of the defendant as a criminal offense.

In any case, the statistics submitted by me showed that during the entire period of the occupation, until the middle of 1944, the population steadily increased, and that general standards of living in spite of wartime conditions did not deteriorate to any considerable extent.

As the food situation deteriorated more and more because of the war, the defendant arranged for food to be brought in by German trains, and also made food available for children from German Wehrmacht stocks. He supported the welfare work of the churches and of the Red Cross, although the Geneva badge was often misused by the resistance movement. The Crown Prince of Sweden, as President of the Swedish Red Cross, expressed his special thanks to the Reich Commissioner. Finally, the Reich Commissioner contacted the Dutch Government-in-Exile through their confidential agents, and in this manner brought about an agreement with the Allied High Command, whereby supplies of food for Holland were secured and the occupation actually brought to an end.

In Allied military circles at that time one still expected the resistance to continue for another 60 days. The German occupation troops in the Netherlands would certainly have been able to hold out for this length of time, but this would have meant that the country and its population would have perished.

I come now to the last count of the French indictment, that of the floods and destruction caused by the occupying power. Even if the Prosecution had not brought up this point, then I, as his defense counsel, would have discussed this matter before the Tribunal, because it is this point perhaps more than any other which makes the defendant appear in another light-a very favorable light. In referring to the testimony of the witnesses Wimmer, Schwebel, and Dr. Hirschfeld, also that of General Von Kleffel, I should like to make the following brief statement: The Tribunal are perhaps aware that 40 percent of the total area of the Netherlands lies below sea level. In the course of centuries of hard work the land was wrested from the sea and converted into fertile farming land. Mighty dikes protect the land; locks and pumping installations regulate the entry of water and traffic on the inland waterways. The constant struggle against storms and water have made Dutchmen a proud and freedom-loving people. "God has created the earth, but we have created our country ourselves" says a Dutch proverb.

When the Canadian troops thrust toward the north, the Reich Commissioner did not take the road back to the Reich from

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Groningen, as many people expected him to do, but returned to The Hague in order to carry out his task until the end. He feared that the collapsing Reich might adopt a policy of desperation which would lead to the destruction of a country as vulnerable as Holland, where there were 271 people to the square kilometer.

The legendary battle of the Goths in which everything is utterly destroyed became an obsession with many. It was Goebbels who said in his boastful manner that if they must go, they would slam the door with such a bang that the whole world would hear. The Reich Commissioner warned the people against such ideas. In fact, the "scorched earth" order was given and it would have meant the destruction of all technical installations in Holland, including dams and locks, and laying waste two-thirds of the country. Acting together with Minister Speer and Doenitz, he prevented all this. This has also been confirmed in my questionnaire by the commander, General Von Kleffel, and acknowledged by a U. S. Army Chief of Staff, Bedell Smith. Historical monuments were also to be destroyed, as has been testified by Schwebel.

The defendant's counsel of General Christiansen has informed me that in addition to the technical troops of the Armed Forces who dynamited and flooded those installations which military necessity justified, Himmler sent his own men to carry out destruction behind the backs of the Armed Forces. All this was prevented by the Reich Commissioner who, conscious of his responsibility, intervened, and the country was spared enormous devastation.

In May 1932 a simple memorial was placed on the dam of the Zuiderzee, the largest dam ever constructed, which bears no name- only the words: Een volk dat leeft, bouwt aan zijn toekomst (A nation that lives builds at its future).

Regardless of how the Trial may end, perhaps the day will come when under this proverb the words will be added: "Saved from destruction by Seyss-Inquart."

Thus I come to the end of the second point of the Indictment.

Slowly the curtain falls on the drama of the alleged conspirators. But I ask you: Can one call that man a cruel and ruthless despot and war criminal, who in the middle of the life-and-death struggle of his nation is placed at the head of the administration of an enemy country and yet tries again and again to prevent excesses or to moderate them?

However, I would not wish to conclude my discourse without expressing some general remarks on the Trial. I esteem France and her cultural tradition, and I have considered it an honor to be allowed as an attorney to cross swords with Frenchmen in these proceedings. I have listened to the speech of the Chief Prosecutor

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for France, M. Francois de Menthon, with close attention and sympathetic interest. However, it cannot remain entirely undisputed that M. De Menthon has described Germany as the eternal enemy of France and demanded the severest penalty, death, for all defendants without exception. He thereby brings out one of the weaknesses of this Trial, namely, that it will always be the trial of the victors over the vanquished. One is reminded too strongly of the Gaul, Brennus, who with his "vae victis" throws the sword into the scale. M. De Menthon with this demand unintentionally obstructs the road to a lasting peace.

The sin against the spirit is the basic error of National Socialism and the source of all crimes, says M. De Menthon; National Socialism is based on racial theory, a product of German mentality. But M. De Menthon rightly explains that National Socialism is the final stage of a doctrinaire development over a long period. There are no direct transitions in history, but all is rooted in preceding ideas and undercurrents. The events of the twentieth century can only find their explanation in the developments of the preceding century. The closing years of the nineteenth century saw the birth of an exaggerated nationalism, and here it must be said that it was not the Germans, but the French who first established the racial theory, for instance, Count Gobineau in his essay Sur l'Inegalite des Races Humaines and Georges Sorel in his Reflexion sur la Violence.

At the end of his statement M. De Menthon quotes the book by Politis, La Morale Internationale, which I have also mentioned. Politis describes this exaggerated nationalism as a veritable international malady, deriving from the nineteenth century. He mentions particularly the case of the Frenchman Maurice Barres. He sees in the phrase, La patrie eut-elle tort, it faut lui donner raison (my country right or wrong), the negation of all ethical laws.

I would like to confront M. De Menthon with another Frenchman. He is an obscure professor of history. With the Gestapo, the German and the French police on his track, he frequently changes his appearance and his name. He is everywhere; we find him in the Massif Central, in Auvergne, in the mountains near Grenoble, at Bordeaux on the coast, and in Paris. Wherever he appears Wehrmacht trains are derailed, ammunition dumps blown up, and important industrial plants shut down. He always remembers the words of De Gaulle: "Our country is in mortal danger, join us, everybody; fight for France!" The name of this man is Georges Bidault. The first thing he did after the enemy had been driven out of the country was to visit severely wounded soldiers in the hospitals. But he does not only go to the Frenchmen, he also visits the German wounded in their wards, and says to them: "Comrades, I wish you speedy recovery and a happy return to your homes." These words of the man who today is the leader of France show

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us the path to peace by the honest and frank collaboration of peoples and nations.

Hitler wanted to create a new Europe; in this he failed because of his methods. Germany lies defenseless, her towns are destroyed, her economy shattered. France, one of the oldest countries of Christendom, the country which at the end of the eighteenth century proclaimed the Rights of Man, has today the special mission and responsibility of saving western civilization. To achieve this, however, it is necessary that distrust, which poisons the life of all peoples, should disappear. I thus conclude my very brief and general remarks on the Trial.

Honorable Judges, into your hands I confidently commend the fate of my client. I know well that you will consider carefully all the facts which speak for Seyss-Inquart. But I will walk once again through the streets of Nuremberg, as I have done so often during the long months of this Trial, and from the ruins of the imperial castle look down on the German countryside. From the ruins of the old city rise, scarcely damaged, the monuments of the painter Albrecht Duerer and the geographer Martin Behaim. They are the prophets of German art and science. May those two names be symbols for the future, and like beacons guide the German people from dark misery to the shining realms of a lasting peace.

THE PRESIDENT: The Tribunal will adjourn for a few minutes.

[A recess was taken.]

THE PRESIDENT: I call on Dr. Bergold for the Defendant Bormann.

DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann): Your Lordship, Your Honors: The case of the Defendant Martin Bormann, whose defense the Tribunal has commissioned me to undertake, is an unusual one. When the sun of the National Socialist Reich was still at its zenith, the defendant lived in the shade. Also during this Trial he has been a shadowy figure, and in all probability, he has gone down to the shades-that abode of departed spirits, according to the belief of the ancients. He alone of the defendants is not present, and Article 12 of the Charter applies only to him. It seems as though history wanted to preserve the continuity of the genius loci and to have chosen the town of Nuremberg to be the scene of a discussion as to whether the fact that a defendant is allegedly no longer alive, can obstruct his being tried in contumaciam, in absentia. In Nuremberg we have an adage which has come down to us from the Middle Ages, and which says: "The Nurembergers would never hang a man they did not hold." Thus,

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even in former times they had an excellent way in Nuremberg of dealing with the question as to how proceedings can be taken against a person in his absence.

THE PRESIDENT: It appears to the Tribunal that you are now about to argue first of all that the Tribunal has no right to try the Defendant Bormann in his absence, and secondly that if it has the right it is not advisable. Both these points were considered on the 17th of November 1945, and were decided on the 22d of November 1945, after you had been appointed; and both were decided in favor of trying Bormann in his absence. That is to say that the Tribunal has the power under Article 12 of the Charter and that it was in the interests of justice in the circumstances to conduct a hearing in his absence.

DR.BERGOLD: That is true, Your Honors. I know of this decision. I should only like to ask whether in the course of the proceedings points of view were put forward which might have caused the Tribunal to change this decision, for I assume that decisions of the Tribunal can be reconsidered by the Tribunal themselves. If I put forward this point it is to show that the Trial here has brought out some points of view which call for a reconsideration of the question.

THE PRESIDENT: Dr. Bergold, surely this is an inappropriate moment at which to advance this argument when we have already conducted the trial of Bormann. We have given you over a long period the opportunity to make application for a reconsideration of this decision.

Are you not hearing what I say?

DR. BERGOLD: I did not quite understand the last sentence.

THE PRESIDENT: I said that to make such an application now is far too late. You have had all these months since November in which you could have made such application for a reconsideration of the decision of the Tribunal. But instead of making it, you proceeded with the defense of the Defendant Bormann.

Possibly you have your disk wrongly set. Would you look at the disk and see whether it is all right?

DR. BERGOLD: Mr. President, the translation is coming through so badly and indistinctly that I cannot fully understand your meaning. The translation is bad. It is only the German translation of what you are saying that is not sufficiently clear.

THE PRESIDENT: I shall speak very slowly. What I said was that if you wished the Tribunal to reconsider the decision of the 22d of November 1945, you should have made application earlier. Instead of that, you went on to appear as the representative of

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Bormann, and the Tribunal decided to hear the case against Bormann. Therefore, they are not prepared to listen to this argument for the reconsideration of their decision now.

If you think it in the interests of your client, the Tribunal has no objection to this document's being filed-or to the filing of these pages of your speech. But the Tribunal does not propose to reconsider its decision.

DR.BERGOLD: Mr. President, one piece of evidence did not come up until the end of my case-the testimony of the witness Kempka. In my opinion, this statement by the witness Kempka made the probability of Bormann's being dead so evident that only from this point of view can the question of a reconsideration be brought up. I assumed...

THE PRESIDENT: All I was saying was that from Page 1 to Page 10 the Tribunal will not hear that read. The question of whether Bormann is dead or not is a question with which you deal later in your argument, and the Tribunal will hear you upon that. But from Page 1 to Page 10 the argument does not deal with the death of the defendant.

If you will begin at Page 10, with the words, "I cannot..." it is the last paragraph on Page 10-the Tribunal will hear you.

DR. BERGOLD: Then I must submit to the decision of the Tribunal.

Gentlemen of the Tribunal:

I cannot and I will not criticize the Charter. In bringing forward my argument, which the Tribunal will not hear, I merely wanted to establish the fact that the Charter has created a novel procedure in that, in a trial in absentia, a final decision is being made, without its being possible to reconsider the case, should the defendant be found. But in my modest opinion, in consideration of this quite novel procedure in the legal history of all times and of all countries, the Tribunal will at the present stage of the Trial and in view of the proof brought by the witness Kempka, make further use of the right given to it by Article 12.

As a reconsideration of the decision is no longer possible, the proceedings, in my opinion, should only be carried out if, by a suitable application of the clear principles of Russian law, it is first proved that the Defendant Martin Bormann is willfully evading the Trial, and secondly that there is no doubt whatsoever about the facts. As the Charter does not stipulate more clearly when and under what conditions the Tribunal may enforce its right, the Tribunal itself must create the law.

Owing to the incontestable nature of the sentence, the Tribunal's responsibility in this particular case is a very heavy one. My

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opinion that the sentence is final is also shared by the Tribunal, as in the last phrase of the public summons against the Defendant Bormann it is stated explicitly that, should the defendant be found guilty, the sentence will be carried out without any further procedure as soon as he is found.

But in my opinion it has not been proved at all that the defendant is willfully fleeing justice. I think that, as revealed by the examination of the witness Kempka, it is even highly probable that the Defendant Bormann is already dead. Witness Kempka has stated that on the night of 1 to 2 May 1945 he, together with State Secretary Naumann, who led the way, followed by the Defendant Bormann and Standartenfuehrer Dr. Stumpfecker and himself, had tried to flee through the Russian lines by keeping close to the left side of an advancing tank. Bormann was walking close to the middle of the tank, so that the witness thought that Bormann was holding on to the tank. It seemed to the witness that it was necessary to do this in order to keep pace with the moving tank. Having advanced some 30 to 40 meters, and after having passed the German tank barrier, this tank was blown up, presumably by a direct hit from an anti-tank grenade.

The witness observed, without there being any possible doubt, that in the immediate vicinity of the tank, just where Bormann had been walking, a spurt of flame came from the exploding tank, knocking down Bormann and State Secretary Naumann who was walking immediately ahead of him. Thus Bormann found himself in the center of the explosion, which was so violent that the witness is convinced that there can be no doubt that Bormann died from its effects. It cannot be maintained that since the witness escaped the violence of the explosion Bormann also must have come out alive. It should be noted that Kempka was running behind the tank on the left hand side and thus was at a distance of some 4 meters from the explosion. Furthermore, he had additional protection due to the fact that Dr. Stumpfecker was running in front of him and his body was hurled against him by the explosion and served as a cover. Kempka has testified that Bormann was wearing the uniform and the rank insignia of an SS-Obergruppenfuehrer at that time.

Even if Bormann had not been killed on this occasion he would certainly have been so seriously wounded that it would have been impossible for him to escape. Unquestionably he would have fallen into the hands of the Soviet troops who, according to the affidavit of the witness Kruger, were quite close to the Reich Chancellery and had occupied it already on 2 May 1945, the defenders having fled. In view of the loyal manner in which the U.S.S.R. is taking part in these Trials, they would have delivered Bormann to the Tribunal for trial.

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Where are only two possibilities-at least in my opinion-namely, that the wounded Bormann fell into the hands of the U.S.S.R.- having been proved not to be true, there remains only the second possibility-namely, that Bormann lost his life. I am therefore of the opinion that I have showed that there is sufficient proof to believe that Bormann is dead.

In my opinion, one should not be allowed to say that a man is presumed to be alive until death is established with absolute certainty, a presumption which I, the defendant's counsel, would have to refute. The legal assumption of a person's being alive has been valid in all countries of the world but only in the field of civil law, and only for the purpose of regulating matters relating to inheritance or the property of married persons. However, a legal assumption of a person being alive has only very seldom been established, for instance, in common law and in the Prussian law, and even there it is contested.

The Civil Code makes no provision at all for the assumption that a person is still alive; it merely admits a declaration that a missing person is dead in the eyes of the law. Common law neither provides for a declaration of the death of a person nor for the legal assumption of a person's being alive. Russian law permits, after a short period of time, the declaration that a missing person is dead in the eyes of the law, and this may be followed by the declaration of the person's death. But neither of these rulings justifies the assumption that a person may be alive.

Whatever may be the case in civil law, it is nevertheless a fact that there is no provision in the criminal law of any country for the assumption that a person is alive. If criminal law does not recognize the assumption of a person's being alive, then it is not my duty either to refute such an assumption of a person's being alive. It must then suffice that the Defense should prove, as I have already done, such circumstances as could lead one to conclude, after reasonably evaluating the chances in the usual course of life, that a defendant is dead.

I am, therefore, most definitely of the opinion that the death of the Defendant Bormann has been proved with sufficient probability; in fact the probability is so great that the proceedings should be suspended for all time, since the Charter, too, does not recognize proceedings against a dead person. If there were such a thing as the trial of a wrongdoer after his death the Prosecution, according to all logic and reason, would have had to indict the real heads of National Socialism.

But apart from all this, it is not at all proved, in my opinion, that the Defendant Bormann is intentionally evading trial as long as the possibility exists that the defendant is dead. It is true that

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the Charter does not recognize such an assumption in the proceedings against a defendant who cannot be found. The Charter is very reserved on this particular point and I have already stated that I am convinced that following the hearing of the witness Kempka the Tribunal should once more examine very carefully whether they should exercise their right in this special case of the Defendant Bormann. Considering the finality of the verdict it seems to me fair and just in the case of Bormann to consider the general legal principle of all civilized countries, by which a defendant must be guaranteed a hearing even if only after his arrest. Thus, by suspending the proceedings now, one would avoid creating accomplished facts so long as it is still possible that Bormann's absence can be excused.

May I point out in this respect that in the second part of Article 12 of the Charter, the Tribunal refers expressly to the interests of justice that they should consider, in examining the question, whether they intend to take proceedings in absentia for any other reason than that the defendant cannot be found. These interests of justice are not unilateral and are not directed against the defendant only. True justice is always universal and demands in all legal systems of the world that, as far as that is possible, the interests of the defendant shall be protected as well.

Owing to the state of health of the Defendant Krupp, the Tribunal has already exercised their right not to try a person in absentia. Even if this last-mentioned case cannot be compared with that of the Defendant Bormann, this decision should be given consideration in the present instance, too.

Having in view the peculiar character of the case and the testimony of the witness Kempka, it can by no means be considered as proved that the Defendant Bormann is deliberately absenting himself from the Tribunal, for in whatever way the matter is viewed one cannot dismiss the possibility that-even if he had been rescued and had not fallen into the hands of the Allies-he may have suffered such serious lasting injury that he is neither physically nor mentally able to surrender himself to the Tribunal. In my considered opinion it is precisely for this reason that the Tribunal in the interests of true justice should suspend proceedings against the Defendant Bormann even now.

Such a decision, however, is also justified according to the second principle, which was formulated by the Russian law, namely, that proceedings shall, as a rule, be admitted only if the facts of the case no longer leave any room for doubt.

The Defendant Bormann is absent. He has not been able to defend himself against the charges for which he is indicted. He has not been able to give me any information, neither could I find

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any witnesses who know the circumstances sufficiently well, and who would have been able to disclose to me any exonerating evidence concerning the accusations made.

During the course of these long proceedings the man Bormann and his activity have remained shrouded in that obscurity in which the defendant, by his predisposition, held himself during his lifetime. The charges which many codefendants have made against him, perhaps for very special reasons, and obviously in order to assist their own defense and exonerate themselves, cannot for reasons of fairness be taken as the basis for a judicial decision. The Prosecution has stated on more than one occasion through its representatives that the defendants would seek to throw the chief blame upon dead or absent men for the acts which are now being judged by the Tribunal. In their pleadings some of my colleagues have followed these tactics of the defendants. Perhaps it was right to do this. I cannot judge. Besides, I have no authority to form a judgment.

But nobody knows what the Defendant Bormann could have said in answer to these men if he had been present. Perhaps he would have been able to show that all his activities were not the cause of the happenings arraigned in the Indictment, also that he did not possess the influence which is imputed to him as the Secretary of the Fuehrer and of the Party.

It has always been a well-known fact that secretaries and chiefs of central chancelleries, in the same way as valets to princes in the times of absolutism, were attributed a considerable influence upon their superiors and lords, for in the nature of things everything which can only be handled officially must pass through the hands of this secretary. But what in a modern state can evade the Moloch of bureaucracy?

The document book and the trial brief presented by the Prosecution contain no conclusive evidence that in the incriminating events and measures Bormann personally had any effective and outstanding influence on the actions and dealings of the Third Reich, of the NSDAP, or even of Hitler himself nor of how strong that influence had become.

In the comments on the Bormann decree, reproduced in Volume II of the official collection of Verfuegungen, Anordnungen and Bekanntgaben der Parteikanzlei, Page 228, submitted as Document Number Bormann-ll in my document book, it is stated that the Party Chancellery was an agency of Hitler, which he used for directing the NSDAP. Stress is laid on the fact that on 12 May 1941 Hitler again assumed full and complete responsibility for the leadership of the Party. The Chief of the Party Chancellery, at that time Bormann, had been charged with keeping Hitler continually informed about the work of the Party and to bring to his knowledge

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any circumstances about which he should know when making decisions in Party affairs. This had to be done according to Hitler's basic directives, and the Chief of the Party reserved for himself the right to determine these, especially as far as political affairs were concerned.

Thus it followed that the Party Chancellery was the central chancellery for matters concerning the home policy of the Reich leadership, and through this channel all suggestions and information from below were passed upward to Hitler and all directives from Hitler were passed down through it to the lower levels.

THE PRESIDENT: The Tribunal will adjourn.

[The Tribunal recessed until 1400 hours.]

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Afternoon Session

DR. BERGOLD: It is true that a man in a position such as I described to you this morning can have great influence, if there is a man at the top who can be easily influenced; but it is equally correct to say that a man in such an office can play a purely formal role as the head of a liaison agency, if at the top there is a dictatorial autocrat who cannot be influenced and if the chief of the office has no special ambition nor any special abilities.

The proceedings which have been held for many months here have shown which of the two alternatives is more likely. It is obvious that, seen from lower levels, the head of the Chancellery would appear influential even in the case of the second alternative, because everything goes through his hands and because any blame arising from subordinates passes through his agency and because all mistakes which arise in the vicinity, committed by other officials, are reported there. These officials and subordinates, however high a rank they may have held, and even though in part they may have feared the chief of the Party Chancellery-perhaps indeed only for reasons originating in their personality or their errors-these are not the right people to enlighten us as to which of the two alternatives described is the proper one. As long as Bormann does not appear and is not heard, personally, the true part he played remains obscure. Nobody, not even the High Tribunal, could ever pass just sentence. All the facts remain dubious. They remain dubious even in the individual points. I would like to demonstrate this by just a few examples.

My esteemed colleague of the Defense, Dr. Thoma, has stated that Bormann prevented the Defendant Rosenberg from following his policy. To make his point he referred to the memorandum of Dr. Markull, submitted as R-36. But this document is nothing more than a comment on an unknown and unproduced Bormann document. Markull declares expressis verbis that he put Bormann's formulations into the language of a simple member of the German civil service and presented them more pointedly. Only Bormann could enlighten us in this case and tell us whether he wished his writing to be understood in this way at all or whether Markup twisted the meaning and sense of Bormann's words, so that only Bormann could disclose whether this writing, like almost all the Bormann documents submitted, did not simply transmit the utterance of another Reichsleiter or of Hitler. So this very case, too, seems altogether doubtful. An explanation can hardly be expected. Furthermore, it must be pointed out that almost all the documents which the Prosecution have gathered in their document book are, in general, mere reproductions and publications of a Hitler decree or a Hitler instruction. Bormann transmitted these instructions to

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the subordinate agencies with an accompanying letter in order to inform the agencies concerned. This is an activity which, as office work, has to be done even under the most reprehensible and tyrannical despotism; how much more so in a modern state like the National Socialist Reich. Someone has to forward all the instructions and orders to the subordinate agencies; that is a purely formal activity. It is immaterial whether it is done by a plain office assistant or by a brilliant Reichsleiter.

The official transmission of such instructions-I mention for example the Documents Number 069-PS, 1950-PS, 656-PS, 058-PS, 205-PS, and even the famous Document Number 057-PS-can only be considered a transmission of directives and opinions of Hitler; from such a method of transmission nobody can draw the conclusion that the forwarding party had any influence on the decrees, orders, and decisions. It is possible, but it has not been proved with certainty.

But before a sentence is passed, this question of influence should be entirely clarified. Because even if one could see any offense in the transmission of an order, according to Chancellery routine- whereby one would even have to sentence the women who wrote such orders on the typewriter-the just verdict would have to distinguish between the extent and severity of the punishment for such clerical work; and that should fall upon a man whose collaboration was a decisive factor in causing such orders and decisions and who by his influence and advice led the chief of the state to issue them. All this is not clear in Bormann's case and continues to be uncertain. The empty statements of the codefendants, whose motives can never be entirely unveiled, to the effect that Bormann exercised great, even diabolic, influence are no proof.

The other documents of the Prosecution only prove that Bormann, in keeping with the decree of 29 May 1941, Document Number 2099-PS, and the decree of 24 January 1942, Document Number 2100-PS, arranged for an exchange of correspondence between the individual Reichsleiter and forwarded their desires and suggestions. As an example I mention Documents Number 056-PS, 061-PS, 072-PS, 205-PS, and 656-PS. Nobody can derive with certainty from these activities as a go-between, which were necessary from the administrative standpoint, the extent and true nature of Bormann's influence.

Further documents show that Bormann very often served as a mere stenographer, taking the necessary notes during Hitler discussions with some of the defendants. This is proved by Document Number L-221, concerning the annexation of the Eastern Territories, and the Russian Document Number USSR-172. But in any case such documents do not make clear whether and in what way

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Bormann influenced the policies and the measures of the Third Reich during such meetings. According to all rules, a stenographer has no influence at all. He only fulfills an automatic function.

I would not like to be misunderstood here. Far be it from me to dispute the fact that Bormann occupied quite an important position within the leadership of the Third Reich. But no clear view has emerged during this Trial as to Bormann's actual importance or to what extent it was exaggerated and vilified by the bad conscience of third parties and, finally, of what his influence actually consisted. Statements of the other defendants, which were made for their own defense, do not constitute relevant evidence. At any rate the document book of the Prosecution contains, almost exclusively, documents like those I have just examined more closely. Bormann scrupulously did only what was legal in Germany; this was revealed in the documents I submitted-for instance Documents Number Bormann-2, 3, 5, 7-in which he repeatedly pointed out to Party offices that no illegal action against Jews was permitted.

It is characteristic of Bormann's case that measures against Jews could not be proved against him personally. He never did more than forward such instructions, divulge, or publish them, as this was prescribed by law and as it followed from his position as Party secretary. Even the big conference of 12 November 1938, which was held under the chairmanship of Herr Goering and from which emanated a series of laws against the Jews, can only be brought into relationship to Bormann insofar as Bormann forwarded to Goering Hitler's instruction ordering that such a conference be held. In any case it has not been made clear at all what influence Bormann himself had on these questions. But how can a just and fair Tribunal determine the extent of appropriate punishment, if the part played, if the participation of an individual defendant in an offense, is not clearly established? Nobody can say then that there is no doubt about the circumstances of the case.

At first glance it seems to be most certainly proved by the document book of the Prosecution that Bormann was one of the most zealous in the fight against the Christian churches. Most of the documents quoted in the trial brief referred to this point. It is certainly correct to say that Bormann, because of his philosophy, was a violent opponent of the Christian doctrine. But such attitude of mind, in itself, is neither an offense nor a crime before mankind, which embraces so many different conceptions of the world and which will perhaps give birth to many more.

In modern times there are countless convinced atheists. In other countries of the world, too, there are officially recognized organizations which oppose the Christian doctrine; and at the turn of our century there were big associations in many countries which raised pure materialism to a philosophical system and openly proclaimed

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the negation of spiritual facts and truths. No one can be punished for wishing to teach others the precepts of his ideology or for wanting to convert them to his point of view. The modern world still recalls the horrors of the Inquisition.

Therefore Bormann could only be punished if it were proved that he participated in a real religious persecution and not merely in an ideological struggle.

In my opinion the two most important pieces of documentary evidence which the Prosecution have produced against Bormann- namely, Documents Number D-75 and 098-PS-do not show that the Defendant Martin Bormann on his own authority undertook anything against the churches as religious institutions. The gist of Document Number D-75 is contained in the sentence which says that from the incompatibility between National Socialist and Christian ideology it must be deduced that any strengthening of existing Christian denominations and any promotion of new ones is to be avoided by the Party. It is of no importance for what pressing reasons Bormann came to such a conclusion at the end of his letter. It goes without saying that failure to support a religious concept which one opposes on philosophical grounds does not constitute religious persecution. Nobody is obliged to support a religious view. It is not fair to consider his antireligious attitude and to disregard the fact that nothing came of it.

Furthermore, it is important in this connection to note that we received only one copy of this document, a copy which a Protestant minister by the name of Eichholz made out for himself. Whether the reproduction of the contents of Bormann's statement in this document is correct in every detail has not at all been proved. In any case the document in this form does not constitute authentic evidence.

In Document Number 098-PS, which may be recognized as being authentic, Bormann takes a very definite stand indeed against the Church. It ends, however-and this is the only fact which should be considered for the verdict-by saying that no National Socialist teacher should be reproached for teaching Christian religion and even that in such a case the original text of the Bible should be used; any new interpretation of, comment on, or analysis of the text of the Bible is to be avoided. Therefore Bormann, despite his previous philosophical attack upon the Church, takes here the legal standpoint that Christian dogma may be freely propagated. Could a more loyal action ever be expected of such a strong opponent of a doctrine?

The remaining documentary evidence does not reveal any real persecution either. The fact that Bormann, on Hitler's orders, prohibited the admission of priests or of members of certain

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religious associations to the Party and that, on Hitler's order, he forbade priests to be appointed to leading positions in the Party, in order to prevent dissension, is not religious persecution. The fact that during the war he demanded that the Church make the same financial sacrifices as other state institutions does not represent a criminal act undertaken for religious reasons. That, while closing many lay institutions in order to make use of the human reserves of the nation, he tried to close down religious institutions too; that, considering the limitation on the number of copies and number of pages of lay publications, he wished Church publications to be limited also, does not come under the provisions of Article 6 of the Charter. It is true that in this respect he followed, among other things, his anticlerical attitude. But when, aside from this, the same measures were taken in Germany against other institutions and other publications-measures which were supposed to be only temporary war measures-one cannot speak of actual religious persecution. That Bormann might have been coresponsible for the persecution of priests has not even been submitted or proved at all. All documents indicate that Bormann always adhered to the legal stipulations in effect; and since he desired to comply in every way with Hitler's orders, it is to be assumed that he observed Hitler's decree at the beginning of the war which directed that all measures against the Church be discontinued.

Therefore it may be said in conclusion that this matter, too, cannot be really cleared up despite the numerous documents presented. Documents alone do not suffice to dissipate all doubts on the case. Especially with respect to the importance and weight of Bormann's share in measures aimed at persecution of the Church, it seems necessary to determine Bormann's personal responsibility. This fact therefore also remains somewhat obscure. A basis for a just determination of the punishment to be inflicted cannot be established.

I shall not take up the time of the High Tribunal by bringing up further details. I think that the indications I have just given are sufficient to show that even the documents presented by the Prosecution prove, in any case, only one thing with certainty-namely, that Bormann in his capacity as chief of the Party Chancellery held "as ordered by the law" an intermediary position in official and secretarial communication between the head of the Reich and the subordinate agencies and among those subordinate agencies themselves. Anything else is only an assumption which has not been definitely proved-in any case not with the certainty necessary to render a just verdict in absentia and without hearing the defendant and to determine the severity of the punishment. Unfortunately, a legend has already been woven around Bormann's personality, his

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activity, and his survival. But for the sober judgment of jurists legends are not a valid basis for a verdict free from any doubt.

In view of the innovation created by the Charter-completely novel in the history of law of all times and all nations-in passing a final, irreversible sentence upon an absent defendant, I beg the High Tribunal to make use of their right to adopt such a procedure only after having considered the hitherto existing legal concepts and, especially when examining the case, to consider the prerequisites set down in a precise manner by Russian law. I therefore expressly propose that the Tribunal decide either to suspend the proceedings against the Defendant Bormann because of his proved death, or to postpone his trial until he is personally heard and can personally state his case and that the Tribunal make no use of its right according to Article 12.

THE PRESIDENT: I call on Dr. Kubuschok on behalf of the Defendant Von Papen.

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Before beginning my final plea I should like to submit to the Tribunal a few completed interrogatories which have since been received and of which some have also been translated. Since I refer to them in my final plea, I should like to submit them now.

THE PRESIDENT: Yes, Dr. Kubuschok.

DR.KUBUSCHOK: First of all I submit the completed interrogatory which has been received from the witness Tschirschky as Document Number Papen-103. I now submit a copy in English and in French.

On this occasion may I draw the attention of the Tribunal to the fact that Tschirschky was the secretary of the Defendant Von Papen who, at the time when he was in Vienna, was called to Berlin by the Gestapo and then emigrated to Great Britain, where he has presumably obtained British citizenship by now. The correspondence with reference to this Tschirschky case was the subject of the cross-examination. With reference to the numerous questions dealing with Papen's vice-chancellorship and his activities in Vienna, the witness has expressed himself in great detail and in all cases answered in the affirmative.

Presumably the Tribunal do not want me to discuss these questions in detail now. The copies submitted to the Tribunal will be sufficient. But perhaps I could quote the last paragraph from Question 1:

"Regarding his relation to the NSDAP, I can say that during the time when I was working with Von Papen, Von Papen's attitude was a negative and, in fact, a hostile one in every respect."

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It appears important to me to refer to the answer to Question 2, which deals with the safety measures during the formation of the Government on 30 January...

THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you to comment twice on the interrogatory. If you want to comment upon it to the Court in your speech, well and good. You comment now as you put it in, and then presumably you may make some observation later on in your speech.

DR.KUBUSCHOK: Mr. President, during the plea I will refer only very briefly to the special questions answered in this interrogatory. On the whole I do not refer to them in my plea. In my plea I merely give a summary of the answers, but I do not deal with the questions themselves again.

THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the appropriate course for you to take is to put in these interrogatories now, and when you deal with them in your speech, you can refer to any particular passage that you want.

DR. KUBUSCHOK: Yes. In its present written form the reference is very brief and does not even consist of a sentence. Besides . . .

THE PRESIDENT: When you get to it.. .

DR. KUBUSCHOK: Shall I read it then?

THE PRESIDENT: Yes.

DR. KUBUSCHOK: Very well. I have submitted the completed interrogatory of Tschirschky as Document Number Papen-103 and then the completed interrogatory of Archbishop Groeber as Document Number Papen-104. Groeber has to do with the conclusion of the Concordat. I am also submitting the interrogatory of Archbishop Roncalli as Document Number Papen-105, and finally, the interrogatory from the Polish Ambassador Jan Gavronski, which is Document Number Papen-106. These are documents which I received already translated. In addition I would like to ask the Tribunal to allow me another document, which in spite of all my efforts I have not yet been able to have translated. It is an affidavit from a foreign correspondent, Rademacher von Unna. He had transmitted in a letter to my colleague Dr. Dix, on 29 May 1946, an affidavit for Papen which arrived here about 3 weeks ago. Of chief interest in this affidavit is one paragraph. I should be most grateful to the Tribunal if I could read the paragraph so that the Tribunal would be in a position to see if this affidavit is relevant, and if so, to permit me to submit this document. Then I would submit the original, and the translation could be supplied as soon as completed.

THE PRESIDENT: You have not shown it to the Prosecution yet, have you?

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DR.KUBUSCHOK: I had submitted the German text at the time, but now it has been in the Translation Division for 2 weeks, and I have not been able to get it yet. I have already mentioned the document during the last session when we discussed evidence, and the Tribunal informed me that I should submit it on another occasion, when the matter came up for discussion.

THE PRESIDENT: Is it long?

DR. KUBUSCHOK: It is not long. The document is a page and a half, and I will read a paragraph which is shorter than half a page. Only that paragraph is of real importance to me.

THE PRESIDENT: Does the Prosecution object to this?

MAJOR JONES: My Lord, I have not seen a copy of this document, but we have no objection in principle; I have not seen the document myself, and it is a little difficult to give any opinion as to whether we would object, if we had the opportunity of examining it.

THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read the document and the Prosecution can move to strike it out of the record if they object to it.

MAJOR JONES: Yes, My Lord. That would be quite a convenient course for the Prosecution, My Lord.

DR. KUBUSCHOK: I shall read from that affidavit from Rademacher von Unna, dated 29 May 1946, which was executed in Milan, half of the penultimate paragraph. The executor of the affidavit in this communication is referring to a statement made by Von Papen which is worded as follows:

"He, Papen, would, however, not allow himself to be deterred by anybody from carrying out his mission in the way he himself understood it: to be an intermediary and peacemaker; and therefore he would show anyone the door who might wish to misuse him in Austria for obscure purposes.

"In this connection it is worth mentioning that a member of the Austrian Government, a state secretary whose name I have forgotten, was making efforts to establish personal, but secret, contact with the German Ambassador in order to offer him his services for the German cause. Herr Von Papen turned down this offer, giving as his reason the fact that he refused to participate in conspiracies which were directed against the official policies of the Ballhausplatz. Up to now he had attempted to co-operate openly and loyally with the Federal Government; and he, on his part, would not use any other means."

As an explanation I should like to add that the member of the Austrian Government who is mentioned here is Neustaedter-Sturmer.

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Your Lordship, may it please the Tribunal, Papen is accused of taking part in a conspiracy to commit a crime against peace. With respect to time the Prosecution limit the discussions of the facts of the case to the termination of his activity in Vienna. They admit that as far as the subsequent period is concerned, especially during his activity as Ambassador in Ankara, no indications were found to support the accusation. In other words, according to this viewpoint Papen is said to have taken part in the preparatory actions for unleashing a war of aggression-which actions the Prosecution have placed very far back chronologically-but he is not said to have actively participated in the immediate preparations and in the crime against peace itself.

The Prosecution deal with Papen's activity as Reich Chancellor in the last pre-Nazi Cabinet, with the part he played as Vice ChancelIor in Hitler's Cabinet until 30 June 1934, and with his activity as Minister in Vienna. They were faced with the task of proving that during this period preparatory actions for a crime against peace actually took place, and that Papen, in full recognition of these aims, collaborated in the preparations. Since the counts of the Indictment deal with a field of activity which is in itself a legal one, and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective sphere. The Prosecution are faced with the fact that Papen's own views, which often came to light, and the policy which he actually pursued cannot be made to agree with the interpretation given by them. Therefore, they seize upon the premise that he is a double-faced opportunist who has sacrificed his real sentiments, or those displayed, to the existing conditions of the day and to Hitler's will.

In consequence, it must be the task of the defense to elucidate his personality in order to prove that Papen's actions and statements follow a uniform, consistent line and that his entire attitude de facto was such as to preclude connecting him with the offenses of the Charter and that those of his actions which are under discussion must have been undertaken in pursuit of other aims than those which the Prosecution think they can recognize. Furthermore, the defense will outline Papen's entire political activity with regard to its legality; and within the framework of this activity it will deal with the actions considered punishable by the Prosecution and will finally submit counterevidence showing that he actively worked against a political development as represented by the facts brought forward in this Indictment.

We shall arrive here at a just evaluation only if the question of political expediency and correctness is left out of discussion and if we accept the politician as he reveals himself to us with the

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opinions and attitudes derived from heritage and tradition. Moreover, an essential element in judging fairly will be the necessity of eliminating what we have learned during the Trial concerning later years and this later period. We shall have to direct our consideration only to the time of the actions themselves, and only then shall we obtain a clear picture of what Papen could see and expect at that time.

The Prosecution gives the date of Papen's initial participation in the conspiracy as 1 June 1932, the date of his appointment as Reich Chancellor. However, it does not answer the question as to what circumstances are to indicate to us Papen's entry into the clique of conspirators alleged to have been already in existence. Indeed, it is impossible to give an answer to this. Papen's activity as Reich Chancellor cannot be regarded in any way as activity having to do with a Hitler conspiracy. The idea behind the formation of the Cabinet, the entire leadership of the Government during his chancellorship, and finally his departure from office are too clear to allow us to read into them a promotion of National Socialist ideas, a paving of the way for National Socialism, or even participation in a conspiracy allegedly already in existence. The Papen Cabinet was formed at the time of an unusual economic, political, and parliamentary depression. Unusual means had already become necessary under the preceding Cabinet. They were to be continued now, in part on entirely new lines. In times of unusual crises a parliamentary legislative body probably always offers certain difficulties. Therefore, even in the days of Bruening's Cabinet, the Reichstag was practically completely excluded from legislation which the Emergency Powers Law gave to the Reich President. It was now thought necessary to work along completely new lines. A cabinet of men who were experts in their own field but who were not bound to any party was to do away with these difficulties. Therefore the new Cabinet was intentionally created without the collaboration of parties. The task with which the new Government was faced and the program necessarily resulting from the conditions of the time brought with them, of necessity, an attitude hostile to National Socialism. To strike at the roots of the depression, government policy would have had to attack the causes for the growth of the National Socialist movement. These consisted of discontent with economic conditions and the political situation abroad.

But on the other hand one could think of doing peaceful reconstructive work of any lasting benefit only if some modus vivendi could be found with the National Socialist Party. The Party had not only constitutional power practically to paralyze every government activity; but with nothing more than influence on the masses by its propaganda it promised amelioration of domestic political conditions, the first prerequisite for far-reaching economic measures.

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Papen was faced with this situation in the last days of May 1932, when to his complete surprise he was commissioned by Hindenburg to form a presidential cabinet.

With regard to his governmental activity, I wish to limit myself in my defense against the Indictment to the following details: The formation of the Cabinet of 1 June 1932 took place contrary to previous parliamentary custom without any previous consultation with the National Socialist Party. Epoch-making new economic laws subsidized by unprecedented financial appropriations were decreed in order to combat unemployment and at the same time to stifle at its source the seemingly invincible growth of the National Socialist Party. The aim of the new economic measures and the limited financial possibilities demanded application of these measures over a long period of time. The labor market was to be stimulated by the use of funds to consist of the future savings in public taxes if the measures were successful. The economic laws were based only on this exploitation of financial possibilities. No use was made of unproductive public work projects intentionally, nor was the labor market artificially stimulated by armament orders. These long-range economic measures, which could be successful only during an uninterrupted government policy, made their acceptance by the Reichstag appear especially urgent.

In the field of foreign politics Papen continued the course which the Bruening Cabinet had pursued; and in so doing he placed particular emphasis on these points of honor, the recognition of which would have brought no damage to the other parties of the treaty but which would have taken from the National Socialist Party a powerful propaganda weapon to influence the masses.

At the conference of Lausanne Papen openly explained the domestic political situation in Germany. He pointed out that ideological points mainly were involved, the nonrealization.of which would give the National Socialists the impetus they desired. He explicitly emphasized that his efforts were the last attempt of a nonradical Cabinet and that in the event his policy failed only National Socialism would profit from it.

Papen strove to make the National Socialist Party take a share of the responsibility without wishing to entrust to it the key position of Reich Chancellor-a share in the responsibility which would have forced this party of negative politics to recognize actual conditions and which would thus have eliminated its attractive demagogic propaganda.

These first attempts by Papen to bring about the participation of the National Socialist movement in the work of government are regarded by the Prosecution as paving the way for National Socialism. However, this is actually nothing but an attempt to

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find a basis of some kind for practical governmental work, an attempt which had to take into account the experience of the Bruening Cabinet and the development of the National Socialist Party.

The fact could not be disregarded that already the Reich presidential election in March 1932 had brought Hitler 36.8 percent of all the votes. If one takes into consideration that Hindenburg was the opposing candidate and that Hindenburg's personality certainly caused many followers of the NSDAP to vote in this special case not in accordance with Party directives, the fact follows that a heretofore hardly known opposition party had arisen which outnumbered by far all the other parties and the antagonism of which was able to paralyze a priori any governmental activity. Hence followed, what was a foregone conclusion for Papen, the endeavor to get this party out of its status as an opposition party. This decision would be all the easier if the firm conviction were there that a share in the responsibility of government would turn the opposition party from its radical course and above all curb it considerably in its further development.

The best evaluation of Papen's governmental activity, seen from the standpoint of the National Socialists, comes from the fact that it was the National Socialist Party which opposed Papen's decisive economic legislation and with its vote of no confidence-pronounced jointly with the Communist Party-brought about the end of the Papen Cabinet. The subsequent negotiations of the still acting Reich Chancellor, especially the events of 1 and 2 December 1932, show again his unequivocal attitude toward the NSDAP.

Papen proposed a violation of the Constitution to Hindenburg. He wished to exhaust this last means in order to avoid a Hitler chancellorship. Schleicher opposed this solution on the grounds that in the event of a civil war, which might then break out, the Government would not remain master of the situation with the police and military forces at its disposal. In the light of these clear historical events, the attempt of the Prosecution to give a different interpretation to the facts and to these clearly recognizable unequivocal motives is of little avail.

What then are the points which the Prosecution believe that they can marshal in the face of this?

For one thing, Papen in his first negotiation with Hitler, and a short time after forming his Government, consented to rescind the order prohibiting the wearing of uniforms, a measure which, even if it had merely been taken as a political deal to have the Cabinet accepted, is quite natural according to parliamentary rules. Not only was the NSDAP the strongest party in the Reichstag, but due in particular to its general political influence in public life it constituted an instrument of power of the first order. Therefore, it

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could not a priori be driven into a state of opposition if it was intended at all to pursue a realistic policy of long duration and seriously to try to overcome the emergency through a revolutionary economic program.

The repeal of the prohibition of uniforms was based also on more basic reasons, since it was a one-sided prohibition against a single party; the opposing organizations were not limited in this respect and the acknowledgment of the law of parity here could only eliminate dangerous propaganda material. The repeal of the prohibition of uniforms was furthermore by no means the announcement of a license for political acts of violence. It was reasonably to be expected that the warning of the Reich President, announced with the proclamation of the decree, that acts of violence resulting from the decree would bring about an immediate prohibition of the organizations as such, would prevent just such pernicious results.

The claim of the Prosecution that the repeal of the prohibition concerning uniforms was the main cause of the increase in the number of National Socialist seats at the July election is completely at variance with the facts. I refer to the already-mentioned result of the Reich presidential election of March 1932, at which the real situation did not even become completely manifest because of the fact that Hindenburg was the opposing candidate. T