MARSHAL: May it please the Tribunal, the Defendants Hess and Raeder are absent.

THE PRESIDENT: The Tribunal will now hear the applications for witnesses on behalf of the various organizations, taking the SS first.

MAJOR JONES: If Your Lordship pleases, with regard to the SS organization, defending counsel have applied for seven witnesses. Five of these-Von Eberstein, Hinderfeld, Hausser, Riedel, and Reiniche-are among the 29 SS witnesses whose evidence has been heard on commission. The Prosecution have no objection to the calling of these witnesses although, as there is a certain amount of overlapping in the evidence of Eberstein and Hinderfeld, it is suggested with respect that this might be avoided when those two witnesses are examined by Dr. Pelckmann.

As to the other witnesses applied for; with regard to Rode, the Tribunal will see from defending counsel's application that an affidavit from this witness was put in by the Prosecution as Exhibit USA-562. Dr. Pelckmann has informed me that he does not propose or desire to call Rode to testify before the Tribunal itself, but will be quite content to cross-examine Rode on commission. Therefore, if the Tribunal think that the interests of justice demand the resumption in this particular case of the taking of evidence on commission, the Prosecution have no objection to Dr. Pelckmann's suggestion. Perhaps in fairness to Dr. Pelckmann, I ought to add that I understand that Rode only arrived in Nuremberg a few days ago.

The last witness applied for is Hermann Rauschning, the former Senate President of the former Free City of Danzig and the author of the book The Voice of Destruction, extracts from which the Prosecution have submitted in Document USSR-378, as part of the Prosecution case. No affidavit from Rauschning has ever been used by the Prosecution. I understand that Dr. Rauschning himself is now in the United States. With regard to him, the Prosecution object to his being called as a witness upon the following grounds.

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If the Tribunal will look at defending counsel's application, it will be seen that there are three matters which it is desired to have clarified by Rauschning. Insofar as some of these facts may be relevant or have evidential value, I submit that those facts can be extracted from Rauschning's book The Voice of Destruction, and that in those circumstances it is quite unnecessary to have Rauschning here as a witness himself. The Prosecution would, of course, have no objection to further extracts from that book being put in as part of the defense case of the SS organization.

THE PRESIDENT: Would the Prosecution object to interrogatories being put to Rauschning?

MAJOR JONES: No, My Lord, we should have no objection to that.

There are facts set out in the first two paragraphs of defending counsel's application with regard to Rauschning. I submit that with regard to the first, a Cassandra-like statement by Rauschning that up to 1939 his warnings were not heeded, it has, I submit, no evidential value whatsoever. With regard to the second paragraph, in which it is stated that Rauschning has knowledge of the fact that in 1936-37 Hitler did not yet have the intention of exterminating the Jews, it is not in any way clear how Rauschning could, in fact, have had any knowledge of Hitler's intentions at all-even the devil knoweth not the heart of man.

I do not submit that testimony of that kind from Rauschning would be wholly irrelevant. Whatever I have said, the Prosecution would have no objection to further extracts being taken from Rauschning's book, or interrogatories being administered to him.

THE PRESIDENT: Dr. Pelckmann.

HERR PELCKMANN: May it please the High Tribunal, I am in complete agreement with what Mr. Elwyn Jones has said, as far as it applies to the rest of the witnesses.

Regarding his statement about the witness Rauschning, I should like to say the following. The decision of 13 March, Figure 6a, Paragraph 3, specifies that it is relevant to submit evidence on whether the possible criminal aims and activities of the SS were quite obvious, or were known to the bulk of the members. I tried before the Commission to prove that the aims and activities were not criminal, that the crimes committed were only individual acts or acts of certain groups, and that these acts were not known to the majority of the members. I tried to prove this by means of relatively very few witnesses, compared with the number of members as the Prosecutor has stated, by means of 29 witnesses from among thousands of affidavits. All this material will still be submitted to the High Tribunal in due course, but it all concerns the so-called

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legal standing of membership. The Prosecution, on the other hand, submitted their evidence against the SS, as well as against the other organizations, directly to the Tribunal through documents and through the direct testimony of witnesses, a procedure which took many weeks.

With regard to the further assertion that the bulk of the SS knew of such criminal aims of the SS and of the criminal acts of individual members or certain groups, the Prosecution did not present any proof, but merely asserted that this could be seen from the circumstances, and was a matter of course. I consider it only just and proper that in addition to the statements of SS members, which as indirect proof I shall submit in large numbers in the form of affidavits, and the probative value of which could be disputed by the Prosecution because they are statements of the people in question themselves, of the SS members-as I say, I consider it only right and proper that in addition the witness Rauschning, the only one of my witnesses who is not under automatic arrest, should testify before this Tribunal, and should testify in person. The only other witnesses who will appear in person are the five witnesses of the SS who held a relatively high rank in the SS and, therefore, have an over-all knowledge; but it can be held against them that their testimony is not quite credible.

As for the person of Rauschning and the relevance of his testimony I should like briefly to say the following: As has already been stated, he was an SS Standartenfuehrer and President of the Danzig Senate. He had the complete confidence of Hitler until 1936, when the rupture with Hitler occurred. Rauschning emigrated and was very active in publishing material abroad. In his books, which have become well known throughout the world, he constantly warned against Hitler and his plans, and he is still known everywhere as a man who did not defend or protect the Hitler regime and its guilty members.

In his many conversations with Hitler, he learned-and now I come to the main point of my application-first, that, at least in the years 1936 and 1937, Hitler did not intend to exterminate the Jewish population. He has given detailed reasons for this statement, and the objection of the Prosecution that it was impossible to recognize Hitler's intentions is not quite apposite, because this precisely is the task of the Tribunal, to recognize Hitler's intentions with regard to the salient points of the Indictment. If Hitler's intentions are recognized then perhaps one can judge the responsibility of the bulk of the members of the organizations. Of course, we have only circumstantial evidence and must, if possible, obtain and evaluate direct evidence of Hitler's intentions. This direct evidence of Hitler's intentions, the witness Rauschning can give on the basis of

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his conversations with Hitler, and I do not think that one can find a better witness for this subject. Second-continuing with the points of my application-Rauschning learned that Hitler...

THE PRESIDENT: What is it, Dr. Pelckmann, that makes you think that Rauschning would be able to give this evidence?

HERR PELCKMANN: I know his books, My Lord.

THE PRESIDENT: Then if it is in his book, how will it help to have him say what is in his book again?

HERR PELCKMANN: Of course, his books represent only a very small part of his entire knowledge, and he certainly did not write them with this Trial in mind. The chief points brought up by the Prosecution in this Trial can now be answered much more satisfactorily by the witness himself than by quotations from his book torn out of their context.

THE PRESIDENT: I understand you to be saying that the only reason you have got for thinking that he would be able to answer these questions is because of what you see in the book. Then you do not know that he can give any further evidence than is in the book.

HERR PELCKMANN: Of course, I do not know that but it is probable, and my assumption that he can do it is based on experience. I do not think that I am asking for anything out of the ordinary. I expect a man who in the years from 1933 to 1936 concerned himself so intensively with Hitler and Nazism, and then studied this regime in later years and discussed it with foreigners-I expect such a man to know much more than is set down in his books.

And I also have the following reasons for my application. In preferring their charges the Prosecution used quotations from the books of Rauschning, and these quotations are practically identical with affidavits. The Prosecution would equally well have been able to obtain affidavits on the pertinent passages in Rauschning's book which would perhaps have contained his assertions in more detail. According to the rules of procedure established by this Tribunal, I am entitled to ask that witnesses who have deposed affidavits for the Prosecution be cross-examined by the Defense before the Tribunal. I believe that if...

THE PRESIDENT: I am not aware that such a rule applied to witnesses in the United States. The rule, insofar as any rule at all was made, was that people who were in this country, if they had made affidavits, might be brought here for cross-examination. That rule has never been applied to persons who were in the United States or in any other country outside this country. The case of Mr. Messersmith is an instance, and there has never been a case of anybody being brought in, except perhaps the witness Dahlerus.

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HERR PELCKMANN: Since the Indictment and the Tribunal's verdict is of great importance for all members of the SS, and since, unlike the cases of the individual defendants, I can only call members of the organization as witnesses-and this is a considerable restriction-I think I may ask the Tribunal that this witness-the only one who is not implicated and can tell the Tribunal something about conditions at that time and his views on them-that this witness be brought here; for technical difficulties should play no part in this Trial of surely world-wide significance. This is my full conviction.

May I continue, My Lord?

THE PRESIDENT: Certainly.

HERR PELCKMANN: The witness is to testify further that it was Hitler's deliberate policy to deceive the German people, as well as foreign countries, about his plans and intentions-for instance, about his war intentions. In very intimate conversations with Rauschning, Hitler remarked-and almost joked about it-how successful he was in leading by the nose not only foreign countries but- even his own people. These questions are relevant for the decision regarding evidence.

With reference to the Jewish question, I refer to the assertion of the Prosecution that the Party program resulted directly in the extermination camp at Auschwitz. The Party program, as the bulk of the SS members saw it, provided only for a solution of the Jewish question on the basis of the statute of minorities, supplemented by the somewhat more severe Nuremberg Laws of 1935. But, however this may be, it would not yet constitute a crime against humanity. If it could be proved that during this time Hitler actually did not intend to exceed this program, then the assertion of the Prosecution could no longer be upheld. If this attitude of Hitler, at that time, can be proved, then the SS and the simple SS man who followed this program could not have ha* any other attitude either.

Secondly, the deception of the German people. The following is clear. 1) We know today from the various documents just what did take place at that time. We need only read the Reichstag speech about Hitler's will for peace, or the reasons given for the murders on 30 June 1934. But it would be startling if a witness asserted that Hitler had confided to him that it was his principle to deceive the Germans about his true intentions. In answer to this, the Prosecution would have to prove that just the SS was not to be deceived- that the SS, in agreement with Hitler, knew what Hitler actually wanted.

THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to hear a general argument from you upon the whole case. They are

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simply dealing with the question of whether this man Rauschning should be brought from the United States.

HERR PELCKMANN: If the relevance of his testimony is not disputed, then I can very well understand...

THE PRESIDENT: Dr. Pelckmann, we have your written application before us, and you are dealing with a variety of matters which are not mentioned in that written application.

HERR PELCKMANN: I cannot, of course, set down in my application everything that I would want to include. This application, naturally, contains only my main points: (1) The Jewish question, (2) the deception of the German people, and (3) of the SS members.

THE PRESIDENT: We have indicated to you what the view of the Tribunal is-that we think that you have dealt with the application, and we do not desire to hear a general argument.

HERR PELCKMANN: Air. President, I tried only to show the relevance of my three points of evidence. If the Tribunal can assume that these points are relevant, then, I think, I need only add this: A single witness who is outside the SS, who, it is true, at one time. . .

THE PRESIDENT: You have already said that, Dr. Pelckmann, more than once, and the Tribunal are quite aware of what you have said.

HERR PELCKMANN: Mr. President, do you not want an answer to the question why we should deviate from the general rule and bring this witness here from America? Do you not want an answer to that?

THE PRESIDENT: You have already presented argument to that effect.

Now we will deal with the SD.

MR. DODD: Mr. President, counsel for the SD has asked for only two witnesses, and the Prosecution have no objection to, these two witnesses being heard by the Tribunal. It seems like a reasonable number. · ,

While I am before the Tribunal, may I go on with the applications for the Reich Cabinet and High Command as well?

THE PRESIDENT: The Reich Cabinet, we understood' was not going to be dealt with today.

MR.DODD: We received the application for one witness this morning

THE PRESIDENT: Oh, yes. Certainly, go on and deal with these.

MR. DODD: With respect to the High Command, counsel for the defendant organization has asked for six witnesses, and our position

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is that it is at least twice as many as are necessary, and that three- something like three-would be a much more reasonable number to present before the Tribunal. We have no particular preferences or no objections-no particular objections-to any of the three. I understand, however, that counsel prefers Von Rundstedt, Von Brauchitsch, and Von Manstein, and we have no objections if that is his choice of the six, but we do object to six, on the ground that they axe too numerous, and all of them have been heard before the Commission.

With respect to the application of the Gestapo, only two witnesses are asked for-the witness Best and the witness Hoffmann-and we have no objection to the appearances of these two witnesses.

THE PRESIDENT: The two names, Karl Heinz, are Christian names, I suppose?

MR. DODD: Yes, so I have understood, Mr. President.

I am not clear, Mr. President, whether or not you wish to have me deal with the Reich Cabinet. Shall I make known our attitude toward the one witness?

THE PRESIDENT: I think so. Certainly, you may deal with them now if they are ready. Dr. Kubuschok . . .

MR.DODD: In any event, he has only asked for one witness, Mr. President, and we have no objection-the witness Schlegelberger.

THE PRESIDENT: Very well, Mr. Dodd. Unless counsel for the SD, Gestapo, and the Reich Cabinet want to say anything, the Tribunal do not think it is necessary to hear them.

Then, they would hear counsel for the High Command, Dr. Laternser. Yes, Dr. Laternser.

DR. LATERNSER: Mr. President, in view of the importance of the accusations raised against the military leaders, I am convinced that the application for six witnesses is justified. In order to be able to decide the question whether the military leaders were criminal or not, the Tribunal must first obtain a personal picture and a personal impression of some of these military leaders. If only a few of the 129 persons affected by the Indictment against the organization I defend are heard here, can one assume that the High Tribunal will have gained a true picture? My definite answer is "no."

THE PRESIDENT: Can you tell me how many of the 129 we have already heard before the Tribunal?

DR. LATERNSER: Before this Tribunal, Mr. President-before the Commission, seven members of the group were heard, two are still outstanding.

THE PRESIDENT: I did not say before the Commission; I said before the Tribunal. ,

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DR. LATERNSER: I put questions to about five or six persons, I believe, of this group when they appeared here.

THE PRESIDENT: Yes. Go on.

DR. LATERNSER: In estimating the number of witnesses to be heard here, I ask that the following also be taken into consideration. In regard to the calling of witnesses who could refute the statements made by the witnesses of the Prosecution, the defense of the organizations are handicapped greatly by the resolution of the Tribunal which says that witnesses can be heard before the Tribunal only if they have previously been heard before the Commission, even though in any other legal proceedings there would be extensive examinations of witnesses on many points. The circle of witnesses is thus restricted from the beginning and dependent upon the scope of the Commission's activities.

I consider it necessary, Mr. President, to be in a position to convey to the Tribunal a personal picture of the group indicted, and I should, therefore, like to make the following suggestion, which I believe to be practicable. May I suggest that for the group which I represent-only for my group, since I am not entitled to make a similar application on behalf of the other organizations-that for my group the Tribunal fix a certain time within which I may examine my witnesses before the Tribunal, and that the actual distribution of the time allotted be left to the defense. Then I should be able to question the six witnesses for whom I asked. I would even be prepared to use only two-thirds of the time to be allotted by the Tribunal, and to put one-third of it at the disposal of the Prosecution for cross-examination. In this way, Mr. President, I merely want to accomplish one thing-in my opinion the most important point-I want the Tribunal to gain a personal impression of the persons falling under the Indictment. I assume that the Tribunal will not object to this.

I would also like to suggest for the consideration of the Tribunal that the case against the organizations...

THE PRESIDENT: Dr. Laternser, let me make certain that I understand the suggestion. You are suggesting that the Tribunal should allot a certain time for the witnesses for the High Command, and that you, as counsel examining the witnesses, should take up two-thirds of the time. and that the Prosecution, in cross-examination, should take up one-third of the time. Is that correct?

DR. LATERNSER: Yes. I agree that within this time I may examine as many witnesses as I choose.

THE PRESIDENT: How much time are you contemplating?

DR. LATERNSER: That is rather difficult for me to answer.

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THE PRESIDENT: It is your suggestion. The Tribunal would like to know how much time you are suggesting.

DR. LATERNSER: One and a half to two days in all.

I should like to make two more suggestions to the Tribunal which have some significance in this connection. All the witnesses appearing here have already been heard by the Commission, and the transcripts of the interrogations are in the hands of the Tribunal. If the same questions are put again, the evidence would certainly be cumulative. How then is the examination of the witnesses to be carried through without interruptions? Looked at from this angle, the suggestion I have just made becomes even more important, and also seems to remove the difficulties which I have described. If this is taken into consideration I believe the Tribunal would be able to follow my suggestion.

Finally, I should like to suggest the Tribunal also make a decision with regard to the handling of the final words on behalf of the accused organizations.

That is ale

THE PRESIDENT: The Tribunal would like to hear you with reference to Dr. Laternser's suggestions, Mr. Dodd.

MR. DODD: Very well, Mr. President.

We have, insofar as. we recall, made a list of the names of the people who have appeared before the Commission as members of the organization, or of the groups, and those who have appeared before the Tribunal. I stated a few minutes ago that all of those who have not appeared-such as Von Brauchitsch, who was to appear, and who may have appeared yesterday, I am not informed- will appear in a day or so.

With reference to the suggestion of Dr. 1aternser that he be allowed a specific time and may use as many witnesses in that time as he sees fit, we find two difficulties. First of all, we do not feel that he is being generous enough in allotting us one-third of the time. Possibly we may require more time for such a number of witnesses. In any event, we do not want to have a restriction placed on us to the effect that we have only one-third of the time that he has. If we are to examine witnesses on the time standpoint, we feel that much of the time would be taken up before the Tribunal on matters that have already been thoroughly dealt with before the Commission. All the witnesses have been heard before the Commission, and Dr. Laternser has had a full opportunity to examine and cross-examine before the Commission, and it seems unnecessary to burden the Tribunal with a great number of witnesses here.

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THE PRESIDENT: The Tribunal would like to know whether it would make any difference to the arguments just presented to us if the Prosecution were allotted the same amount of time as Dr. Laternser?

MR. DODD: Well, it would make a little difference. Frankly, I did not consider that too important a point.

THE PRESIDENT: Perhaps there is one other thing which bears upon it. The Tribunal would like to know how you think the difficulty is to be met, that it seems unnecessary for the witnesses who are called before us here to give the whole of the evidence given before the Commission, or even to enter upon the subjects which have been entered upon before the Commission; and the Tribunal would like to know how that difficulty is to be met.

MR.DODD: We have been thinking about this very problem, and we had assumed that the witnesses who have appeared before the Commission, and who have been examined there, would not go over the same grounds before the Tribunal, otherwise the proceedings of the Commission would be rather senseless, and we might just as well get up and read the record of what was said before the Commission. We had understood that the witnesses would have something new to add to what they had already said before the Commission. That is our understanding.

THE PRESIDENT: Of course, I think Dr. Laternser has said on various occasions that he attached importance to the actual presence of the witness so that the Tribunal could see him and form their own opinion of the witness' credibility.

MR.DODD: Yes, that is what I understood to be one of the reasons, but three members...

THE PRESIDENT: In addition to our seeing the witnesses and forming an opinion of their credibility, he would be able to summarize the evidence given.

MR. DODD: Yes, I assume that would be so. Of course, four of these members of the groups we are in the dark about-and two of the members of Naval Command, Von Brauchitsch and Milch, and a number of others.

THE PRESIDENT: Thank you.

MR.DODD: With respect to the time suggestion which I made, I repeat I do not think that is too important. I know we can confine ourselves in cross-examination to the important matters, but I think it is the experience of the Tribunal that we seldom stayed within the limits which were established.

THE PRESIDENT: I do not think it is necessary to hear further argument. We will consider your suggestion; and your arguments, Dr. Laternser, are unnecessary unless there is anything particularly

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new that you wish to say. The Tribunal will consider your suggestion.

We will now deal with the political leaders.

LT. COL. GRIFFITH-JONES: The Leadership Group has asked for seven witnesses: Two of them are Gauleiter, and are witnesses Kaufmann and Wahl; one Kreisleiter, Meyer-Wendeborn; one Ortsgruppenleiter, Wegscheider; Blockleiter Hirth and two experts on the staff of the Hoheitstrager-namely, a farming expert who was also a political leader, and Hupfauar who was a political leader in the DAF. The Prosecution have no objection to any of these witnesses, but we feel that the grounds could not be adequately and properly covered. And it may be of help to the Tribunal if I suggested the witnesses most important, and those which might be dispensed with.

THE PRESIDENT: Probably the Defense Counsel would wish to make their own selection.

LT. COL.GRIFFITH-JONES: My Lord, I fully appreciate that. I was only trying to assist the Tribunal if I could.

THE PRESIDENT: Yes, in indicating which appeared to you to be the most important.

LT. COL. GRIFFITH-JONES: Yes.

THE PRESIDENT: Yes, perhaps you could do that.

LT. COL. GRIFFITH-JONES: The Blockleiter Hirth, I respectfully submit, ought to be called, as he is the only Blockleiter represented. The witness Hupfauer ought to be called, because he represents the experts on these staffs. There is a certain amount of dispute about them. And also, he represents a number of political leaders who were in the DAY itself. Of the Gauleiter, Kaufmann and Wahl are experienced. Kaufmann comes from an industrial district and Wahl from an agricultural district, and I understand, if there were to be any preference, that Dr. Servatius prefers Kaufmann. There are also representing the agricultural districts, in addition to the Gauleiter Wahl, the Ortsgruppenleiter Wegscheider and the farmer Mohr. My Lord, I would respectfully suggest that certainly three of those witnesses are unnecessary. They really cover very much the same ground as each other and the Prosecution, quite frankly, would have preferred the witness Wahl. I simply put that forward to explain that they are all from agricultural areas and perhaps one, or certainly two, would be sufficient. Meyer-Wendeborn is an experienced Kreisleiter from an industrial district, and does, to a great extent, cover the same ground as the Gauleiter Kaufmann, so that the Tribunal might consider having one or the other if they felt that the present number was excessive.

Now, I do not think I can assist the Tribunal further than that.

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DR. SERVATIUS: Mr. President, I named two Gauleiter; one from the industrial area-that is, the witness Kaufmann-and the witness Wahl from a rural area in the vicinity of Augsburg. I believe it would be important to get an impression of these two types of Gauleiter; one of these men was active in the Party for 20 years, and the other for 17 years, and both were political leaders. Before being able to judge the activities of the political leaders over such a wide area, and throughout such a long period of time, it is necessary to hear two people from the top level. I should, therefore, like to ask that, if possible, both witnesses be allowed. I should like the witness...

THE PRESIDENT: Dr. Servatius, two things I should like to ask you about these Gauleiter. Did not these two, Kaufmann and Wahl, deal with exactly the same topics before the Commission?

DR. SERVATIUS: Yes, but I want to divide the topics, and ask Kaufmann about relations with the top authorities, with the Reich Government, and Wahl about relations with the 1o\ver echelons, with the Kreis and Ortsgruppen. Of course, I could limit myself to one witness, but then the topics would not lie separated and would be bigger.

THE PRESIDENT: You mean you have not asked them about it before the Commission?

DR. SERVATIUS: Yes, but in the same way, separately.

THE PRESIDENT: There is one other thing. How many Gauleiter have we heard already before the Tribunal?

DR. SERVATIUS: I should think three or four, I do not know the exact figure; but they were not questioned about this topic, because it would have disturbed the taking of evidence at the time if we had gone into such detail.

THE PRESIDENT: Go ahead and deal with the other matters.

DR. SERVATIUS: The next witnesses are for Kreis, Ortsgruppe, and Block, and I think that from each level there should be one witness who can speak of the conditions in his field. Their testimony' will, of course, overlap, but it can be shortened so that the actual examination will perhaps be quite brief and not too far afield; but it is, I think, important to have one witness from each level.

THE PRESIDENT: Could you give the Tribunal any estimate of the time you think it would take to deal with these seven witnesses?

DR. SERVATIUS: I am sure I can do it in one day; it depends

upon how the evidence is to be taken. I assume we shall have a brief summary and clarify only a few questions on principle.

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Then there are two more witnesses, Hupfauer and Mohr. One is from the German Labor Front, from an industrial region, and the other is from the Reich Food Estate and can speak about rural conditions. Both witnesses can speak about the position of the specialist offices which were not political directing offices, and can thus differentiate between the nonpolitical and the political leaders.

That is all I have to say.

THE PRESIDENT: The Tribunal will adjourn.

[a recess was taken.]

THE PRESIDENT: The Tribunal makes the following order:

With reference to the case of the SS, the five witnesses, Brill, Von Eberstein, Hinderfeld, Reinicke, and Hausser are allowed. Rode may be called to be cross-examined before the Commissioners. Interrogatories may be administered to Rauschning, but they must be administered immediately, and they will only be considered if they are received before the case is closed. Further extracts from Rauschning's book, which has been referred to, may be submitted to the Tribunal.

With reference to the case of the SD, the two witnesses applied for, Hoppner and Rossner, are allowed.

The two witnesses applied for by the Gestapo, Best and Hoffmann, are allowed.

With reference to the application on behalf of the Reich Cabinet, the witness named must be called before the Commission.

With reference to the General Staff and High Command, General Von Manstein and two others will be allowed. If it is desired that General Von Brauchitsch should be one of the two, he must be called before the Commission, and it is necessary that these matters should be decided by counsel for the defendant organization at once.

With reference to the political leaders, the defendants counsel must select five out of the witnesses applied for and those five will be allowed.

That is all.

I call on Dr. Von Ludinghausen.

DR. VON LUDINGHAUSEN: May it please the Tribunal: Yesterday I attempted to show the weighty and compelling reasons why the leaders of the German State had to decide to reinstate Germany's armed sovereignty.

But also before making this decision Germany had waited for the outcome of the negotiations for a general agreement on disarmament, which the British Government had opened again with

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the so-called London Communiqué of 3 February 1935, and in which Germany, faithful as always in its foreign policy to the principle of peace, had at once agreed to participate. Germany was prepared to wait even longer, until one could see whether or not these new negotiations would succeed; but before the negotiations had really begun, the French Government, on 1 March 1935, suddenly brought out a new defense bill prolonging military service, and almost simultaneously the British Government published its White Paper, which has already been mentioned. In view of these two measures, the German Government had no alternative: It had to take the steps which I have described, otherwise it would have betrayed its own people.

The effect of these German measures on the Western Powers was a varied one. England and Italy, it is true, at once protested against them as an alleged unilateral cancellation of international treaties; but they did not by any means exclude the possibility of further negotiations, and the British note of protest explicitly inquired whether the German Government was ready to conduct further negotiations of the nature and extent provided in the London communiqué. This inquiry was immediately answered in the affirmative by the Defendant Von Neurath. The reply was contained in the German Communiqué of 18 March 1935, Neurath Document Book 3, Document Number 98, and the then British Foreign Secretary Eden went to Berlin at the end of March 1935 for conversations about the possibilities of an agreement in the naval question.

In this connection, I particularly want to draw attention to the testimony of the witness Ambassador Dr. Dieckhoff, who. was heard here. Only France, in consequence of her attitude that only the League of Nations was entitled to solve collectively the problems of disarmament and, therefore, of peace-only France considered it necessary to submit the measures taken by Germany to the League of Nations, on 20 March 1935, and to induce the League to establish that Germany had committed a violation of a duty incumbent on all nations, the duty of carrying out contracted obligations. It goes without saying that the German Government, in its note of 20 April 1935, refused to accept the renewed discrimination contained in this resolution of the League of Nations.

However, neither this resolution, nor the signing, on 2 May 1935, of the afore-mentioned Franco-Russian Treaty of Mutual Assistance, nor the Russian-Czechoslovak Treaty of Mutual Assistance which supplemented it, prevented Germany from continuing her very active efforts for an agreement with the Western Powers. On 21 May 1935 Hitler, in the German Reichstag, proclaimed a new peace program, in which he again stressed and underlined in the

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most emphatic manner possible his own and the German people's irrevocable will for peace, and his full readiness to participate in any system, or in a collective collaboration, which would guarantee European peace, to re-enter the League of Nations, provided that Germany's equality of rights was acknowledged, and to apply to the rearmament of the German Wehrmacht any restriction which the other powers might also adopt. This speech of Hitler and the diplomatic discussions with other powers, initiated at the same time, had the promising result that the well-known Naval Agreement of 18 June 1935, establishing a fixed ratio of the respective naval forces, was concluded between England and Germany.

This German-English agreement is of the greatest importance in two respects. On the one hand, from a diplomatic point of view, it constitutes no more and no less than the de facto acknowledgment, on the part of England, of German armed sovereignty, the negation of the League of Nations' resolution and, therefore, of the French point of view, and England's acknowledgment and approval of the German act which had been stigmatized by the League of Nations as a treaty violation. For the first time, therefore, Germany's equality of rights was recognized not only de jure but also de facto by one of the Western Powers, and by one of the most important ones.

On the other hand, this agreement proves irrefutably, from the point of view of this Trial, that the Prosecution's contention that Germany's rearmament was an act of preparation for Hitler's future wars of aggression is incorrect. On the contrary, this naval agreement shows quite clearly that German foreign policy, at that time, while it was still conducted by my client, had no warlike intentions of any sort, not to speak of plans, and that the reinstatement of German armed sovereignty was not under any circumstances an indication of warlike intentions, but an obviously defensive measure and nothing else. Would a statesman who harbors warlike intentions or plans, moreover, voluntarily consent to a restriction of his armaments to the extent provided by the naval agreement, and thus endanger the successful execution of his intentions and plans? Even the most malevolent person cannot earnestly maintain that the naval power granted Germany by this agreement was even remotely sufficient for a war of aggression; that has been · clearly established by the evidence in this Trial. Through this agreement Hitler actually deprived himself of the possibility of creating a navy sufficiently powerful to wage a war of aggression. It is clear that any considerable transgression of the agreed ratio of the two navies which, as things were, could under no circumstances and by no means have been kept secret, would beyond doubt have induced England immediately either to increase her

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own navy accordingly or to obstruct this German intention by force, as she had the power to do at any time. From whatever point of view one may look at this naval agreement, nothing can remove the fact that it was, and is, an unshakable proof of the absolute honesty and sincerity of the repeated declarations of Germany's will for peace, an irrefutable proof against the existence of any, even the most secret warlike designs or plans of German foreign policy and, therefore, of its leader, the Defendant Von Neurath.

In France this Anglo-German naval agreement met with general opposition. It was regarded as an arbitrary act on the part of England, a departure from the common line which still found expression in the resolution of the League of Nations, a departure, moreover, which was bound to interfere with French plans. So France was very reluctant and negative in her attitude toward the negotiations which England had begun with the aim of concluding a general air pact, and which ran parallel with the negotiations for the naval agreement. Hitler's speech of 21 May 1935 had also been the cause for these negotiations, because in it, Hitler, referring to the London communiqué, had also offered to take part in an agreement for the limitation of air armament, and the German Government, taking up the English suggestion, actually presented a draft for such an air pact on 29 May 1935. But talks of nearly 3 months' duration between the English and French Governments were necessary before England succeeded in inducing France to consent even to participate in these negotiations. This consent, however, was in reality not a consent at all because, among other things, it was made dependent on the condition that the realization of this air pact must keep pace with the negotiations for the Eastern treaty, and since this treaty had, at that time, to be rejected by Germany for reasons of her own security, as has already been mentioned, it was clear that the French condition would block the way to successful negotiations from the very beginning. When the Soviet sponsored Comintern Congress met in Moscow on 25 July 1935, and it became quite clear that the Comintern's aim was world revolution, Germany's opposition-as will be understood-only stiffened.

It could not be surprising that on 16 September 1935 the Defendant Von Neurath informed the English Ambassador that the German Foreign Office did not consider that an answer to the memorandum of the British Government of 5 August 1935 would be opportune; that was the memorandum which had demanded answers to a number of French questions hardly connected with the air pact. Besides, the conflict between Italy and Abyssinia had already cast its shadows, which alone were sufficient to suspend further negotiations for the air pact. For how could a political agreement between the five powers of the Locarno Treaty be possible-and the

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German Foreign Of lice very rightly pointed this out-if co-operation between these powers was in a state of dissolution, and if some of these powers were even facing each other in armed readiness. On 7 September 1935, as is known, the British Home Fleet set out for the Mediterranean, and negotiations between England and France for the application of sanctions against Italy were in full swing. On 3 October 1935 war broke out between Italy and Abyssinia.

German foreign policy succeeded in keeping out of the events which now followed in Africa and the efforts of the powers to apply sanctions against Italy. But nevertheless these events proved of importance for German foreign policy, too; because they prepared, and especially the question of sanctions, a new constellation of powers, which on one hand led to a closer union between England and France and the adoption by England of France's point of view, and on the other hand brought Germany, again defamed by the resolution of the League of Nations of 17 April 1935, naturally closer together with Italy, who was also defamed by the sanctions applied against her. These sanctions, at the same time, logically enough resulted in the dissolution of the Locarno Treaty, for it was quite impossible to consider a treaty as still justified in its existence if its participants were opposed to one another in such a hostile way that the danger of warlike actions was always present.

The efforts of the French Government, already having begun in its note of 10 September: 1935 to draw England also into the net of its pacts and obligations, clearly showed the tendency of French policy, and were only to confirm the German statesmen's conviction that France was consistently following her policy of encirclement, which was regarded as a menace to Germany. But Germany's leaders and the Defendant Von Neurath were still reluctant to draw the consequences from this state of affairs and take the absolutely essential step for the most primitive needs of Germany's security. German foreign policy, in its unshakable desire for peace and its readiness to negotiate, was still hoping that an agreement could be reached, that France would abandon her course, and that a really honest and sincere understanding with France could be reached. This hope, however, was soon a delusion.

On 16 January 1936 the French Foreign Minister Laval announced that after his return from Geneva at the beginning of February he would ask the French Parliament to ratify the Pact of Mutual Assistance concluded with Russia. And at about the same time the Defendant Von Neurath heard from reliable sources that the French General Staff had worked out military plans for an attack on Germany, providing for the advance of French troops from the Rhineland, along the course of the river Main, for a link with the Russian armies through Czechoslovakia. This proved even to the

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most naive the offensive character of the Franco-Russian pact, and there was even less room for doubt if one took into consideration the negotiations which took place inside and outside the French Chamber before the ratification of the pact. For even in France, opposition to this pact, specifically on account of its offensive character, was not small. The French veterans of the first World War headed the opposition: The Union Nationale des Combattants declared, in a resolution of 8 February 1936, that this pact contained more certainties of war than possibilities of peace. And the speech of Deputy Montigny in the French Chamber on 13 February 1936 was a single flaming protest-this is contained in my Document Book 4, Document Neurath-107. The pact, Montigny said, only widened the breach between France and Germany, and Germany must more than ever gain the impression that she was being encircled if a party dependent on Moscow, like the Communist Party, followed the policy of Delcasse, the policy of revenge and the policy of the former Russo-French pact. The greatest danger of war would arise if France were to convey the impression that she enjoyed the secret protection of Moscow.

Even the German Government made a last attempt to dissuade France from ratifying the pact. In the interview which he gave to Bertrand de Jouvenel, the correspondent of the French newspaper Paris Midi, on 21 February 1936-Document Book 4, Document Neurath-108-Hitler once again held out his hand to the French people for an understanding, for lasting peace and for friendship. "I want to prove to my people," Hitler said, "that the idea of hereditary enmity between France and Germany is an absurdity." And in that interview Hitler once and for all disposed of the continual references to his book Mein Kampf, which were being made at that time just as much as today in this courtroom, when he said:

"When I wrote this book, I was in prison. At that time, French troops occupied the Ruhr-it was at the moment of greatest tension between our two countries. Yes, we were enemies, and I stood by my country as I was bound to do, just as I stood by my country against yours when I spent 4 years and 6 months in the trenches. I should despise myself if, in the event of a conflict, I had not considered myself a German first and foremost. But today there is no longer any reason for a conflict.

"You would like me to correct my book, as a writer would do.... But I am not a writer; I am a politician. I make my corrections in my foreign policy, which is directed toward an understanding with France. If I achieve this German-French understanding, it will be a worthwhile correction."

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In the same interview, however, Hitler drew attention quite clearly to the inevitable consequences of the Franco-Russian pact:

"My personal efforts for such an understanding will never cease. But this more than regrettable pact would, in fact, create a new situation. Are you in France not conscious of what you are doing?

"You are allowing yourself to be drawn into a diplomatic game of a power which is interested only in causing confusion among the great European nations, a state of affairs from which this power alone will derive an advantage. One must not lose sight of the fact that Soviet Russia is a political factor with an explosive revolutionary idea and gigantic armaments."

He concluded the interview by emphasizing again that France could, if she wanted, end this alleged German danger permanently, because the German people had complete confidence in him, their leader, and he desired friendship with France. That Hitler was honest and sincere in these declarations has been proved by the evidence of the Trial.

But it was all in vain. The French Government could no longer be moved to abandon its rigid attitude, and on 27 February 1936, the French Chamber, in spite of all warnings, voted to ratify the pact. The die was cast. On 7 March 1936 German troops again marched into their old garrisons in the Rhineland zone, demilitarized until then. The German Reich had restored its full sovereignty over the entire territory of the Reich. The last of the barriers of the Versailles Treaty, restricting this full sovereignty, had fallen.

This reinstatement of the full sovereignty of the Reich over the Rhineland, however, was of importance for a reason which, from the standpoint of existence of the German State and nation, far surpassed the politics and prestige of this step, and which was also the sole cause for the grave decision of the German Government. This reason was the security of the Reich. As long as the Rhineland was demilitarized, not only was one of the most valuable and most important provinces of the Reich, but the Reich itself, and especially its life source, the Ruhr territory, defenseless against any military attack from the West. The only protection for Germany against this terrible latent danger was the Locarno Treaty of 1925, which was guaranteed by Great Britain and Italy, and in which France and Belgium, on the one hand, and Germany on the other hand, undertook not to wage war against each other. Therefore, for the German Reich, if it was in the future to accept the vulnerability of its western frontier in the form of a demilitarized Rhineland, it was a matter of life and death that the protection which this treaty afforded should not be falsified.

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But the meaning of this treaty and its essence, the protection of Germany, were, in fact, falsified at the moment when the political conditions and constellations which had existed at the time of the conclusion of the treaty changed fundamentally. When the Locarno Treaty was concluded, political conditions in Europe, and also in Germany, were governed and determined solely by the four powers -England, France, Italy, and Germany-acting in unison. And, therefore, the men who made the Locarno Treaty for Germany could legitimately rely on the faithfulness to this treaty of France and Belgium as sufficient protection. These circumstances, however, ceased to exist-and, therefore, the meaning and essence of this treaty, and with it the conditions for the protection for Germany, were bound to change or to be falsified-when France altered this political relationship in Europe fundamentally by concluding her pact of mutual assistance with Russia, and thereby creating a situation which frustrated the aim and purpose of the Locarno Treaty-namely, to give Germany protection against the permanent danger arising from the demilitarization of the Rhineland.

The political constellation of Europe had been completely changed, indeed reversed, by this pact, because the world's greatest military power, which was, moreover, at that time openly revolutionary-minded, had now entered the political arena. In the face of the obscure situation in the East, amply strewn with the seeds of a conflict, the pact could easily result in the possibility of France, in view of her obligations toward Russia, being drawn into a war against Germany, and attacking Germany who might be involved in a conflict in the East. One has to admit that it was in no way certain, or in any case highly problematical, whether the guaranteeing powers, England and Italy, would under those circumstances consider the case in point as one in which the guarantee applied, and would actively assist Germany against a French attack, or whether they would not rather prefer to stay neutral. That this possibility actually existed, also from the legal point of view of the treaty, was already shown in the German note of 25 May 1935 about the French-Russian pact-Document Book 3, Document Neurath-105-and was emphasized again in the German memorandum of 7 March 1936 to the signatory powers of the Locarno Treaty- Document Book 4, Document Neurath-109.

As I have already said, this possibility, this danger, became even greater and more imminent as a result of the events leading up to the ratification of the French-Russian pact by the French Chamber, and as a result of the ratification itself. It was, therefore, an imperative and manifest act of self-defense and self-preservation when the German Government, in realizing this tremendous danger, took the minimum steps necessary to meet this danger-namely,

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when it restored the armed sovereignty of the Reich in 1935, when one year later it reoccupied the demilitarized zone, the ideal base for any French attack, and thus advanced the defense line against any attack from the West forward to the border of the Reich.

With all due respect to the rights and rightful interests of other nations, the very highest, overriding duty of every government- and of all responsible statesmen-was, is now, and always will be, to maintain and safeguard the existence and life of its own state and nation. A statesman who neglects this duty commits a sin against his nation. The re-establishment of armed sovereignty, rearmament, and the reoccupation of the Rhineland were the natural reactions, the dutiful answer, of the German statesmen-and of the Defendant Von Neurath-to the policy of the French Government, in which, after all that had gone before, they saw a threat to Germany.

Far be it from me-and I wish to state this quite emphatically- to reproach by my foregoing statements the French Government here, morally or otherwise, for its policy as I have described it. I am, in fact-together with the Defendant Von Neurath-firmly convinced, and I recognize fully, that the French policy was dictated solely by France's interests, and that the French statesmen surely did only what they believed was right from the French point of view. And if, in doing this, they proceeded on a premise which, according to German conviction, was a false one-namely, the premise that a Germany which had regained her strength constituted a danger and a threat to France, and that the German people had always regarded the French people with blind rage, hatred, and enmity, and were animated only by a passion for aggression and a desire for revenge-then my client and I can only sincerely deplore this, but we cannot condemn it.

But, on the other hand, I, too, must claim for the German statesmen-for the Defendant Von Neurath-the right that their deeds and actions be judged on the basis of their reasons, on the basis of the needs and circumstances of the time, and from the viewpoint of German interests; and that these men not be accused of motives which in themselves are more than improbable and were, in any case, far from their minds.

Politics, diplomacy, is history come to life. Like the entire universe, like everything that lives and moves in it, this living history, too, is subject to an unchangeable fundamental law, the law of causality. And I believe, Gentlemen of the Tribunal, that I have been able to produce clear evidence that the two actions with which the defendant is charged by the Prosecution, and which are said to incriminate him, in particular, because they constituted

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treaty violations in preparation for war-namely, the re-establishment of the armed sovereignty of the Reich and the remilitarization of the Rhineland-were a logical and inevitable sequence of the events and the political development during the years of my client's activity as Foreign Minister, the result of the policies of the Western Powers; and that neither he nor Hitler consciously, intentionally, or according to a preconceived plan, brought them about, but that they were the unavoidable outcome of French policy. They, therefore, not only cannot have an aggressive character or tendency, and cannot indicate preparations for war, as the Prosecution assert in their retrospective consideration of these things but, on the contrary, they served only the defensive purpose of warding off a possible attack, and have a decidedly defensive and, therefore, peaceful character. That they cannot, therefore, be viewed as actions preparatory for a future war of aggression on the part of Germany, I need hardly emphasize.

The assertion of the Prosecution proves only that it is absolutely inappropriate and quite absurd to view retrospectively and draw conclusions from single historical actions and events torn out of their context and roughly and incoherently put together This way of viewing things is absolutely useless for the purpose of investigating and finding historical truth, which is surely the first condition and duty of this High Tribunal not only for the forming of their judgment but also for their task of showing the way for a new conception.

But a critical examination of the two steps charged against the defendant as breaches of international treaties fails, upon closer scrutiny of the circumstances, to prove the charges sound. For the Treaty of Versailles, as well as the Treaty of Locarno, had, in the course of time and events, not only lost their significance and therewith their inherent justification, but both of them had long since been broken by French policy and, therefore, annulled. The Treaty of Versailles had been broken by the obstinate refusal to carry out the disarmament obligations imposed upon France, as well as upon the other contracting nations, in return for Germany's disarmament; and the Treaty of Locarno had been broken by the conclusion of the agreement with Russia, which was incompatible with the Locarno Treaty. History, as often before, had passed over them, and had thus shown the absurdity of applying rigidly the dogma Pacta servanda sent, as France tried to do with regard to Germany. This fact cannot be altered by the League of Nations resolution of 19 March 1936, which had been proposed by France, and which in itself was not astonishing in view of France's dominating position in the League of Nations; in this resolution the League stated that by reoccupying the Rhineland, Germany had

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violated Article 43 of the Treaty of Versailles. But history passed over that, too.

I do not think that further comments are needed upon this resolution and the statements and parleys between the participating nations which preceded and followed it; they came to nothing, in the course of events,' and Europe finally made the best of the accomplished facts.

But even on the supposition that this resolution were correct, a breach of an international treaty is punishable-according to the Charter of the High Tribunal-only if it served in the preparation of a war of aggression. And during this Trial one of the gentlemen of the American Prosecution expressly stated that it was absolutely legal and justifiable to bring about the revision or annulment of treaties by peaceful means; and German foreign policy did nothing else. The whole military action of the reoccupation of the Rhineland was, in view of the small force of troops used-only one division, and the Luftwaffe did not take part in it at all-in reality only a symbolic act for the restoration of the sovereignty of the Reich; that was already evident from the- fact that, as early as 12 March 1936, the German Government, through a statement of its Ambassador in London, contained in my Document Book 4, Document Neurath-113, made the proposal that in the case of reciprocity it would not reinforce its troops and would not order them to advance closer to the borders. The proposal was rejected by France.

German policy has throughout, and in every respect, remained true to its principle of peace for which it had consistently stood for many years; and in reality it only desired to serve and did serve peace and its maintenance in Europe. Both steps, the restoration of armed sovereignty and the reoccupation of the Rhineland, were-and I especially want to emphasize this here-were nothing else but the visible expression of the full and unrestricted sovereignty of the Reich. This sovereignty had already been recognized by the Western Powers in the oft-mentioned Five Power Agreement of 11 December 1932, containing the recognition of Germany's right of equality. More conclusive evidence can hardly be found for the love of peace and the clear policy of peace of the Defendant Von Neurath than the fact that he waited for years for the realization of this recognition in order to avoid complications which, in view of the earlier attitude of the French and their policy, might possibly have arisen. He waited for years-up to the moment when, in consequence of the changed balance of power, this realization became an unquestionable necessity for the security of the Reich, a necessity of self-defense.

And German foreign policy continued unchanged in practice to follow this peaceful tendency even after, and in spite of this resolution. In the German memorandum of 31 March 1936-Document

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Book 4, Document Neurath-116-the German Foreign Office, on behalf of the Reich Government, once more submitted to the powers a new great peace plan for a quarter of a century of peace in Europe, by means of which, as is stated at the end, it wanted to make its contribution to the building of a new Europe on the basis of mutual respect. This again was clear and unmistakable evidence of its unalterable will for peace. It was not Germany's fault that this German peace plan-and its absolute honesty and sincerity has been affirmed here upon oath by the defendant-was not successful and did not lead to the building of a new and peaceful Europe.

The same peaceful tendencies and intentions continued to be uppermost in the defendant's policy during the years 1936-1937, in spite of all disappointments. Evidence of this is, above all, the treaty between the German Reich and Austria, which was concluded on 11 July 1936, as the result of negotiations which had been conducted for some time by the Defendant Von Papen. Not only the defendant's own testimony but also the testimony of the witnesses K8pke and Dieckhoff proves beyond doubt that the view on the Austrian question, which from the very beginning the defendant consistently held and supported, was this: closer cooperation between the two countries-both in the political and particularly in the economic field-must indeed be aimed at, but Austria's independence must, under all circumstances, be respected and remain untouched. For that reason, the defendant was an implacable opponent of any German attempts to interfere in the internal politics of Austria, and of the attempts of the Party to support the Austrian National Socialists in their fight against the Austrian Governments of Dollfuss and Schuschnigg; and he again and again protested to Hitler against them, not without success. mat he, this Christian-minded and honorable man, abhorred and condemned the murder of Dollfuss from the bottom of his heart, I need not emphasize. And exactly from that point of view he welcomed the agreement of It July 1936, since it so fully corresponded to his own opinions. His alone refutes the assertion of the Prosecution that the agreement was concluded with intent to defraud-that is, with the intention to lull the Austrian Government into security and thereby to prepare and facilitate for the future the real intention already existing at that time-namely, to incorporate Austria by force into the German Reich.

The absolute sincerity and honesty of the defendant during the conclusion of the agreement is confirmed by the sworn testimony of the then Austrian Foreign Minister Dr. Guido Schmidt. And that the Defendant Von Neurath had no reason to doubt Hitler's honesty and sincerity with regard to this treaty was shown quite irrefutably by the witness Kopke, who confirmed Hitler's statements to the

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British Foreign Secretary Simon during his visit to Berlin in March 1935; the defendant himself gave evidence that, immediately after the conclusion of the agreement, Hitler told the leaders of the Austrian National Socialists Rainer and Globocznik that it was their duty and the duty of the Austrian Nazis to adhere strictly to this agreement. And so, from his viewpoint, the defendant considered this agreement as another step on the road toward peace in Europe, since the recognition of Austria's independence, which he had pronounced in the agreement, eliminated the European danger point inherent in the Austrian problem.

In the same way, the defendant worked for an improvement of the relations between Germany and the Czechoslovakian Republic. It was only with this aim in mind that he so often pointed out to the Czechoslovak Ambassador Dr. Mastny that the Czechoslovak Government must at last meet the demands of the Sudeten Germans, still very moderate at that time, which were based on a promise once given by the Czechoslovak Government in Versailles, but not kept. Nothing, however, was further from the defendant's mind, in both the Austrian and the Czechoslovak question, than the idea of a solution of these questions by force, a solution which later, after the defendant had left his position as Foreign Minister, Hitler considered right.

And his efforts to improve the relations between the Reich and the southeastern European nations also did not serve any aggressive intentions or even plans to partition Czechoslovakia with the help of these nations. If in Messersmith's affidavit it is alleged that in order to secure this aim Germany had promised to the southeastern states, and also to Poland, parts of Czechoslovakia and even of Austria, then these are entirely absurd ideas which do not contain a word of truth. What the true value of these assertions is becomes clear from the fact that the Prosecution have not been able to submit a single report from one of the diplomats of the Western Powers accredited in the states in question, which could confirm the accuracy of these assertions. Was only Mr Messersmith clever enough to obtain knowledge of such plans? In reality, the defendant's efforts and his trip to Budapest, Belgrade, and Sofia served only peaceful purposes-namely, the exchange and strengthening of economic relations between Germany and these states. As the testimony of the witness Kopke showed, the defendant was particularly interested in these efforts, and they influenced his policies.

How much he opposed any policy which seemed to him even remotely out of line with his own policy of peace and international reconciliation is best proved by the fact that he rejected the negotiations with Japan, which the Defendant Von Ribbentrop had entered into and conducted in London without his assistance and

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completely independent of him on direct instructions from Hitler, and also the Anti-Comintern Pact which was finally concluded with Japan. He expressed his opposition clearly by refusing to sign this pact, and it was, as is well known, signed by Herr Von Ribbentrop as Ambassador, which was a most unusual procedure. The objection of the defendant to this kind of policy could hardly find a stronger 'form of expression.

The Defendant Von Neurath adhered faithfully and unflinchingly to his consistent peace policy up to the last moment, in spite of the influences of other circles-especially Party circles-on Hitler which made themselves felt during the defendant's last years in office. He hoped, until the last moment, that he would be able to check these influences successfully, to eliminate them and to continue directing the policies of Germany along peaceful lines, according to his own convictions and his promise to Hindenburg.

When Hitler's speech on 5 November 1937, and the defendant's subsequent conversation with Hitler about it, forced him in 1938 to the conclusion that he no longer had any influence on Hitler, that Hitler would no longer shrink back from aggressive, warlike measures, he immediately took the consequences and submitted his resignation, which was accepted. His task, entrusted to him by Hindenburg, had become impossible to fulfill. He would not, and could not, have anything to do with a policy which did not shrink from warlike measures. It was completely out of the question for him to endorse such a policy with his name; it would have been the negation of his entire life work; he would have betrayed himself and his people.

But this did not mean that the defendant, who placed the welfare of his people above everything, even above all his personal interests and desires, would not make himself available again if the need arose, or if he believed that he would be able to save Germany from warlike complications, for that was the danger of the policy which Hitler now directed along a line different from that of the defendant. This attitude of the defendant readily explains why, when Hitler summoned him on 11 March 1938 to inform him of the march of German troops into Austria and, because Reich Foreign Minister Von Ribbentrop was away in London, to ask him to advise him and to answer the note of protest from the British Embassy, he declared himself willing to do so.

If the Prosecution now charge that the contents of this answer were factually incorrect, the following must be pointed out in response. In this letter the defendant only stated what Hitler himself had told him about the events. The defendant himself knew just as little about the actual events as the rest of the world, since after his resignation as Foreign Minister he no longer received

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political information of any sort. Hitler's announcement that German troops were marching in surprised him just as much as it Surprised everybody else, and as the order for it had surprised even the highest commander of the German Armed Forces, which Henderson himself admits in his well-known book, wherein he adds that Hitler's decision to march in could have been made only a few days before. There was even less reason for him to doubt the accuracy of the description which Hitler had given him of the preceding events, because he had given it in the presence of Goring who had not contradicted it. It did not even occur to him-because of his own upright and true nature, and because of his entire previous official activity under clean and honest governments-that the head of the State, Hitler, could lie to him and at such an important moment, for the purpose of answering the British note of protest, give him information which was bound within a very short time to be proved manifestly incorrect. And whom could he really have consulted? Only very few men besides Goring had real knowledge; but those he could not approach, because they were not in Berlin. Goring did not contradict Hitler's description.

I particularly want to point out that the reply which the defendant authorized to be drafted on the basis of Hitler's description, and for which he also did not use the letterhead of the Ministry of Foreign Affairs, was not signed by him in his own name nor on behalf of the absent Foreign Minister but, as the wording of the document discloses, the description of the events was forwarded by him on the order of the Reich Government. But the Reich Government was Hitler, or rather on that day Goring. He, therefore, made perfectly plain that he was not writing in his own name, on his own responsibility, but that like an attorney, he was only forwarding information of a third person-namely Hitler. He really cannot be reproached for not having doubted the accuracy of this information and for not having checked the official description of the head of the State-and Hitler was, after all, the head of the State-quite apart from the fact that he would not have been in a position to check it.

He also cannot be reproached for the statement which he made a short time later to the Czechoslovak Ambassador Dr Mastny. In the first place,-according to the sworn statement of the defendant, the discussion in question took place in a way rather different from that described in the report of Ambassador Dr. Mastny, which apparently aimed at greater emphasis and effect. But, in any case, the penultimate paragraph of this report-Document Book 5, Document Neurath-141-shows clearly that even Mastny interpreted and understood the statement of the defendant that Hitler had no intention of attacking Czechoslovakia and, now as before, considered

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himself bound by the provisions of the agreement of arbitration which offered no guarantee for ever after but only for the immediate future; that is, until the action against Austria had been terminated. In view of the insufficient preparations of the Wehrmacht for a war, confirmed here by the Defendant Jodl, there was absolutely no reason to doubt the accuracy of this statement; that is, to doubt that it actually corresponded to Hitler's wish at the time, in spite of the references of the Prosecution to Hitler's statements, in his speech on 5 November 1937, about the conquest of Austria and Czechoslovakia. For these statements referred only to the possibility of war with other states and to a mum later period.

So the accusations raised by the Prosecution against the defendant on this point are also unfounded. That already a few months after his speech on 5 November 1937 Hitler decided to incorporate Austria into Germany came as a surprise to all, even to his closest collaborators. This decision, however, was taken not only on the basis of developments in Austria, but most likely not least on the basis of conferences between Hitler, the defendant, and Lord Halifax, the then Lord President of the Council, in November and December 1937, in which, according to the sworn statement of the defendant, Lord Halifax declared that the British people would not understand why they should enter a war because two German countries had united.

[The Tribunal recessed until 1400 hours.]

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Afternoon Session

DR. VON LUDINGHAUSEN: Once more, in the autumn of 1938, the Defendant Von Neurath took it upon himself to stem the tide of events in order to spare the German people the immediate danger of war. In view of the corroboratory testimony of Goring and other witnesses, I need not describe in detail how the Munich conference, toward the end of September 1938, had come about. The fact remains that it was held and was successful-I refer to the agreement with Britain and France on the Sudeten question- and this was due in no small measure to the initiative and cooperation of the defendant.

If, however, he was able to accomplish this, it is because of a circumstance which the Prosecution, completely misunderstanding the situation, now include among the accusations-namely, that upon his resignation as Foreign Minister he was appointed President of the Secret Cabinet Council, which had been newly created by Hitler at this time. Had he not been in this position it would not have been at all possible for him to get to see Hitler in September 1938 and persuade him to agree to the Munich conference; for, contrary to the allegation of the Prosecution, even though he kept the title of Reich Minister from the day he resigned as Foreign Minister, he was no longer a member of the Reich Cabinet, which is already shown by the fact that from that day on his salary was decreased by one-third. Any joint responsibility which the defendant might have had for the policy of the Reich ceased as from that day; for, contrary to the assertion of the Prosecution, as President of the Secret Cabinet Council he was not a member of the Reich Cabinet and had no access to it, let alone a seat or a vote in the Cabinet sessions. This is established beyond doubt by the very wording of Hitler's decree whereby this Secret Cabinet Council was created; for there it says expressly that the sole purpose of this Secret Cabinet Council was to advise the Fuhrer personally-that is, Hitler alone-and only on questions concerning foreign policy. Even Huber's book Verfassungsrecht des Grossdeutschen Reiches, quoted by the Prosecution under Document 1744-PS in their attempt to prove the contrary, shows that the Secret Cabinet Council and its President had nothing whatsoever to do with the Reich Cabinet, and was not a branch or an organ of it, but only one of several of the Fuhrer's personal offices.

As had been shown by the testimony of Goring, Lammers, and other witnesses, the Secret Cabinet Council never really functioned, and was never meant to function. In point of fact, all that was intended was to bestow a personal honor on the defendant, and

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thus efface the impression that differences had arisen between him and Hitler. That he himself did not look upon his appointment in any other way is proved by the fact that after 4 February 1938 the defendant lived a life of leisure on his own estate in Wurttemberg as a private citizen, and went only very rarely to Berlin where, however, he was not and could not have been active in any official capacity, since all information as to what was happening in the Foreign Ministry was deliberately kept from him.

If the Prosecution believe that they are able to conclude, from the documents submitted under Number 3945-PS, that the defendant received sums of money from the Reich, or the Reich Chancellery, for obtaining diplomatic information, then-apart from the defendant's own testimony under oath-this is refuted by a letter among these documents, dated 31 May 1939, from Amtsrat Koeppen, the head of the office of the Secret Cabinet Council, which was kept going merely for the sake of appearances-a letter which proves conclusively that these not very large payments at long intervals were for covering the cost of maintaining this office, and were not intended for purposes of secret information.

And if the defendant made no use of his position as President of this Secret Cabinet Council-except for this one occasion in September 1938 he made just as little use of his position as a member of the Reich Defense Council, to which he was appointed by the Reich Defense Laws. Here, too, the Prosecution err when they make use of this membership to accuse the defendant of warlike intentions or of promoting such intentions.

Since this Reich Defense Council has already been discussed so much during the hearing of the evidence, I believe there is no need for me to examine more closely this assertion of the Prosecution, and that I can limit myself to pointing out that no aggressive. tendencies of any kind were embodied in these Reich Defense Laws; but that, on the contrary, as their contents state, they merely contain-as is the custom in any country which has to reckon with the possibility of a war-the necessary provisions in the event of the Reich's being attacked, or being drawn into a war in some other manner. How one can deduce from them that the defendant had warlike intentions, or planned for war, is utterly incomprehensible. Moreover, the defendant did not take part in a single one of the meetings of this Council, and no reports about the decisions of this Council were ever forwarded to him. The Document 2194-PS, submitted by the Prosecution as alleged counterevidence, was not sent to the defendant at all, but to a department of the Reich Ministry of Transportation attached to the Government of the Protectorate-namely, the transport department-and was intended for the latter. Also the sender of the

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document was not the Reich Defense Council, but the Ministry for Economy and Labor of Saxony.

All these and similar efforts will never enable the Prosecution to prove that the defendant, by his policies, was at any time directly or indirectly guilty of a crime of planning or preparing an aggressive war, or even of approving or supporting such a war. Quite the contrary. All his efforts were directed to one end, and one end only: to attain by peaceful means and in a peaceful way only those aims which had been sought by all former democratic Governments after 1919-namely, the removal of the provisions of the Versailles Treaty which discriminated against Germany and stamped the German Reich as a second-rate power, and the bringing about of a general pacification of Europe. Not one of his diplomatic actions served any other purpose, or was performed with any intention which would imply a crime in the sense of the Charter. It is not surprising, therefore, that his resignation as Reich Foreign Minister was received by the whole world with anxiety and dismay, both outside Germany-I refer ,to the statement of the witness Dieckhoff-as well as inside Germany, and especially in conservative circles. This alone serves to prove that the assertion of the Prosecution, that he was active in these circles as a fifth columnist, is untrue.

All the Prosecution's references to Hitler's speech to his generals in November 1939, and still less to the speeches by the defendant himself of 29 August and 31 October 1937, will alter none of those facts. Hitler's speech was made at the time of the first military successes and was calculated to vindicate Hitler's state leadership, and should be taken at its face value. The speeches made by the defendant, however, say just the opposite of what the Prosecution see fit to put into them. For both speeches, Numbers 126 and 128 in my Document Book 4, stress quite clearly the success of the peaceful intentions of the German foreign policy conducted by the defendant, and lay particular emphasis on the fact that the results were obtained entirely by peaceful means, and not by means of force. In particular, the speech of 31 October 1937, the last public speech of the defendant as Foreign Minister, is actually a resume of his peace policy. That this was and still is a correct resume, the Prosecution themselves have had to admit in this Court-that Hitler's speech of 5 November 1937, which was used by my client as an excuse for his resignation, was, as described by a member of the Prosecution, the turning point in German foreign policy. Thus the Prosecution acknowledged unequivocally that up to that day German foreign policy had not been an aggressive policy of force, or pursued any warlike plans or schemes, but had been peaceful throughout.

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Indeed it could not have been otherwise, in view of the defendant's political and humane creed; and this has been unanimously confirmed by all witnesses examined here and in all of the questionnaires and affidavits in my document books. This creed was built on three main pillars: love of men, love of the fatherland, and love of peace-all three springing from and sustained by a deep sense of responsibility toward himself, toward his God, and toward his people.

When, a few days after the occupation of Czechoslovakia, Hitler called the defendant to Vienna from his well-deserved otium cum dignitate on his estate, and told him that he had been selected as Reich Protector for Bohemia and Moravia, it was this same sense of responsibility which made him feel it his duty to accept this post. At first he was opposed to the idea and struggled long with himself, for he had always been an inveterate opponent of any interference in the affairs of other nations, let alone the more or less forcible annexation of a country to the German Reich. It was for this reason that he had also condemned the annexation of Czechoslovakia and the so-called protection pact concluded with President Hacha, although at this time he had not the slightest idea of how this really came about. He got to know the true facts of this incident for the first time here in Nuremberg.

In spite of his reluctance to accept a public office once more, especially at his age, and to serve again under Hitler and his regime of which he heartily disapproved, his sense of responsibility toward his people and his humane principles persuaded him that it would be wrong to refuse this mission. When Hitler explained to him that he had chosen him as being the only man possessing the necessary qualities to reconcile the Czechoslovakian people with the new conditions and with the German people- which Hitler said was his desire-he could not fail to recognize that the task given him was one which, in the interests of the German people, of humanity, and of international understanding, he ought not to refuse. And was it not indeed a task worthy of the utmost effort, to appease by just government and humane treatment a people who would regard every restriction and encroachment on their liberty and independence as the worst injustice that could be done them, and who would be filled with mortal hatred and resentment toward a people they felt to be an intolerable oppressor, and to reconcile them with these very people and the conditions for which they were directly responsible? But was not this aim in line with the endeavor to insure and preserve peace, which clearly and unequivocally pervaded his whole foreign policy? And he had every justification for telling himself that if he refused this task, then another man from Hitler's

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entourage would in all probability be nominated Reich Protector, who would be neither able nor willing to conciliate the Czech people by humane and just treatment, but who, on the contrary, would be more inclined to hold them down by force and terror, as indeed happened 21/2, years later.

Such were the only thoughts and considerations which led him to accept the appointment offered him, setting aside all personal interests and willing to face the risk that this might be interpreted and held against him in some quarters as denoting approval and support of Hitler and his regime-for Hitler had made him the definite and firm promise that he would at all times be willing to support the defendant's intended policy of appeasement and reconciliation for the Czech people through humane and just treatment and through safeguarding the interests of the Czech people to the greatest extent.

He was fully aware that the task which he had accepted was a difficult one. I do not hesitate to admit that it was here a question of a decision, the justification of which could-if one admits the point of view put forward here by the British prosecutor that it was immoral to remain in a government which should be repudiated because of its amorality-cause embarrassment in the judgment of a man whose thoughts arid dealings were different from those of the Defendant Von Neurath. But having in mind the character of Herr Von Neurath, which I hope has been described to you clearly enough, and his deep sense of responsibility, this decision was the only possible and logical one. It is a veritable tragedy, resembling those of the ancient Greeks, that the failure of this mission, which had been undertaken with only the highest ethical motives, should have brought the Defendant Von Neurath into this dock.

But at this point now, I should like to make the following comments on the Prosecution's attempt by means of the photostatic documents which they submitted under Document 3859-PS-consisting of a letter from the defendant to the Chief of the Reich Chancellery Lammers, dated 31 August 1940, and its alleged enclosures-to discredit the defendant's assertion that in assuming his office as Reich Protector his sole aim was to appease and reconcile the Czech people by safeguarding to the utmost their interests and their national traditions, and thus work for the well-being of this people and their prosperity as a nation. I believe that the second examination of the defendant, which the Tribunal, in their readiness to help, granted to me, has proved that those documents, particularly the two reports attached to the letter to Lammers-which indeed, with regard to the question of the Germanization of the

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Czech people, cannot be reconciled with the intentions and tendencies of the defendant as mentioned above-have no evidentiary value. Not only do those photostatic copies in no way tally-and the defendant has made a definite statement to this effect-with the contents and the form-that is, the length of the originals attached to the letter to Lammers, and which had been submitted to the defendant for signature and approved by him-but the photostatic copies also give rise in several places to well-founded doubts as to whether they are really identical with the enclosures to the letter addressed to Lammers, and this owing to the following facts.

Contrary to the practice adopted by all administration offices, neither of the photostatic copies bears the reference number of the letter to Lammers, or even a note that they are enclosures to a third document, let alone to the Lammers letter. Neither does the photostatic copy of the first report bear the defendant's signature which, according to his definite statement, when he signed the letter to Lammers, he added to the report enclosed with it, which report had been drawn up by himself or by his office according to his instructions, and submitted to him in a fair copy. Another thing which strikes one is that it only bears a correction note of the copy which should have been, but actually was not, signed by an SS Obersturmfuehrer working in the office of State Secretary Frank.

These facts support the defendant's assertion that, if the reports from which the photostatic copies have been made were in fact annexed to the Lammers letter, they have been substituted for the original report of the defendant and for Frank's report-the draft of which was approved by the defendant in the office of State Secretary Frank which was entrusted with the dispatch-either by the latter or by his orders. Furthermore, the defendant's statement, made by him in order to explain the purpose of this Lammers letter and its enclosures, is quite worthy of belief: namely, in the same way as was intended by the plan contained in General Friderici's report-dated 15 October 1940, submitted under Exhibit USA-65, Document L-150-to induce Hitler by reporting verbally to him, and on the basis of the two reports sent, to abstain from dividing the Protectorate territory and from germanizing the Czech people in any way whatever, and to prohibit any such plans, a course which the defendant repudiated for many reasons, but chiefly because he had at heart the interests of the Czech nation, which had been entrusted to him, and its national character and unity. These assertions of the defendant are confirmed by the statements of the witness Von Holleben in the questionnaire answered by him,-Document Book 5, Document Neurath-156-of the witness Dr. Von Burgsdorff, as well as by the

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defendant's letter to Baroness Ritter-quoted in her affidavit, Document Book 1, Document Neurath-3.

And the defendant has actually succeeded in carrying his point, as shown by Ziemke's report on his conversation with Hitler, submitted by the Prosecution. As long as he was in Prague, no measures were taken to germanize the Czech people; the defendant even prohibited the discussion of this entire question, as shown by Document 3862-PS submitted by the Prosecution. Especially by preventing any division of the Protectorate territory and any more or less forcible Germanization of the Czech nation according to plan, the defendant has proved, in the most striking manner, the sincerity of his aims and endeavors to protect and preserve the Czech people, their national traits, and their national unity and character, in conformity with his principles and intentions as stated publicly in his article on the New Order in Central Europe, reproduced by the Frankfurter Zeitung of 30 March 1939-Document Book 5, Neurath-143-which set forth his line of conduct for the accomplishment of his task.

In this article he himself describes his task as a fine one, but at the same time a difficult one. How difficult it really was-how nearly impossible-was to become obvious, unfortunately, only too soon.

Chief among the reasons for this was that from the beginning not only were the full powers in the Protectorate not transferred to the Reich Protector, not only was he not given the sole executive and controlling position-quite apart from his subordination to Hitler-but also his competency and powers were not sufficiently clearly defined. It is true that Hitler's decree of 16 March 1939, establishing the Protectorate, and the supplementary decree of 22 March 1939-Document Book 5, Documents Neurath-144 and 145- had specified that the Reich Protector was subordinate to the Fuhrer and Reich Chancellor, that he was to be the sole representative of the Fuhrer and the Reich Government, and was to receive his directives from the Fuhrer and Reich Chancellor.. But, at the same time, not only were certain administrative branches, such as the Armed Forces, communications, the postal, telegraphic and telephone services, removed from his control at the very beginning, but the Reich Government-that is, the Reich-had also been given the right to take under its own so-called "reichseigene" jurisdiction, in the administration of the Reich proper and independent of the Reich Protector, those administrative branches which actually were Reich Protector offices, and to establish, if necessary, Reich offices which did not fall within the Reich Protector's competence. The Reich was also given the right to take measures necessary for security and order in the Protectorate over the head of the Reich

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Protector himself. Furthermore-and this is the most important point of all-every one of the many supreme Reich authorities- that is, not only the Reich Ministries but, for instance, the Reichsbank, the Four Year Plan, the Ministerial Council for Defense of the Reich, and others-was given the right to decree laws and organizational measures on its own authority, quite independently of the Reich Protector and, therefore, could interfere in these administrative branches which actually were to come within the jurisdiction of the Reich Protector without the Reich Protector having either the right or the possibility to protest against or prevent such decrees or measures should they be in opposition to his own decrees, measures, and policy. On the contrary, he was bound not only to publish them in the Protectorate if asked to do so but also to supervise their execution.

Therefore, the position of the Reich Protector was, to use an example by way of explanation, by no means the same as that of the British Viceroy in India; it was more like the position-though to outward appearances on a somewhat higher level-of a Reichsstatthalter or the Oberprasident. Therefore, it was different from what had hitherto been understood constitutionally by a protectorate; nor could it be otherwise, because this so-called Protectorate of Bohemia and Moravia belonged, according to Article 1 of the abovementioned decree of 16 March 1939,-and to this I wish to draw particular attention here-to the territory of the German Reich- that is to say, it was a part of the German Reich. And it only had a certain amount of independent authority, a limited autonomy within the Reich, so that the laws and regulations valid in the rest of the Reich territory were introduced into the Protectorate as a matter of course. It was quite obvious that this vague and loosely defined limitation of the powers and competence of the Reich Protector was bound to lead very soon to the greatest difficulties, difficulties not only in the way of a uniform policy, uniformly conceived and directed, but difficulties which prevented the defendant himself, as Reich Protector, from governing in the way he wished and from keeping to the course already taken, difficulties and reverses which became more and more acute in the course of time.

In view of all this, it follows that the responsibility of the defendant can only be judged against this background-that is, only by taking into account the power exerted by these many other authorities. He can never be held responsible for decrees, measures, and actions which he did not decree or order himself, but which were decreed without his co-operation, without his knowledge, even against his will, by authorities or other offices outside his sphere of power and influence-decrees, measures, and

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actions which he had neither the right nor the power to prevent, and for which he was at most an intermediary, a link in the chain.

This is especially relevant for the accusation of joint responsibility brought against him by the Czech Prosecution-Document USSR-60(a)-for all the actions of Hitler and of the Reich Government before and after the setting up of the Protectorate. The Prosecution take as basis for their assertion the fact that Herr Von Neurath, after having given up his post as Reich Foreign Minister, remained a member of the Reich Cabinet-whereas in fact this is incorrect. I have already proved elsewhere beyond all doubt that he was not a member of the Reich Cabinet, either as a Minister without Portfolio or as President of the Secret Cabinet Council; nor was he a member of the Reich Cabinet as Reich Protector. That, too, is certain, and has never been maintained by the Prosecution before this Court. Therewith, any joint responsibility of the defendant for any actions or measures which preceded or prepared the way for the setting up of the Protectorate is disproved. Also I have already proved elsewhere that his statement to the Czechoslovak Ambassador on 12 March 1938, which has been used by the Prosecution in support of their allegation that this prepared the way, was not false, not deceitful, and therefore was not an action which prepared the way for the invasion of Czechoslovakia.

If the Czech Prosecution further deduce from Article 5 of the above-mentioned decree of 16 March 1939 that, as Reich Protector, he was wholly responsible for everything that occurred in the Protectorate during the time he was in office-that is, from 17 March 1939 to 27 September 1941-then this conclusion also is wrong and factually incorrect, in view of the actual position with regard to the division of powers in the Protectorate, as explained above. There is no system of law in the world according to which one can charge a person with criminal responsibility for occurrences and acts by third persons, acts in which he did not participate or co-operate, or which even occurred against his will.

Thus he cannot be made responsible for the fixing of the rate of exchange between the Reichsmark and the Czech crown, because this rate had already been fixed when he took over office; neither had he any hand in fixing it, nor had he the power or right to change the rate of exchange-quite apart from the question, which we need not discuses here, of whether, as the Prosecution maintain without producing proofs, the rate of exchange really was detrimental to the Czech people or not. Incidentally, I need hardly say that even if this had been the case, it would not be a crime according to the Charter, and only as such would it be punishable.

Nor can he be made responsible for the setting up of the customs union and putting it into practice. This had already been

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laid down in Article 9 of the decree of 16 March 1939, which reads, "The Protectorate belongs to the customs area of the German Reich and is subject to its customs sovereignty." This regulation was a natural consequence of the fact, which I have already stressed, that the Protectorate was a part of the territory of the German Reich. However, I would like to draw special attention here to the fact that the defendant, because he regarded the inclusion of the Protectorate into the customs area-the customs sovereignty of the Reich-as detrimental and harmful to Czech economy, managed to prevent this inclusion for a year and a half, until October 1940, in spite of all the pressure exerted by the Reich Finance Minister, which is clear proof that the defendant put the interests of the Czech people, who had been entrusted to him, above the interests of the German Reich. He had absolutely nothing to do with the economic measures for the alleged transfer of Czech banks and industrial undertakings nor with filling the key positions with Germans. Those measures were taken by other offices-especially by the Reichsbank and the Delegate for the Four Year Plan- behind his back and without his collaboration. These were merely the natural consequences of the fact that already in earlier days a very large amount of German capital had been invested in these banks and undertakings, and this capital increased after the occupation because the credits given by the other countries were withdrawn by them and were now granted by German firms.

Lastly, he had nothing whatever to do with the judiciary. This was exclusively under the control of the Reich Ministry of Justice. This alone set up the German courts, including summary courtsmartial, and the prosecuting authority; it alone appointed judges and prosecutors. Herr Von Neurath himself had nothing to do with these appointments and still less with the jurisdiction of the courts, as is clearly shown by the ordinances and decrees by which they were set up, especially the decree concerning the practice of criminal jurisdiction, of 14 April 1939,-Document Book 5, Document Neurath-147.

Here again I must draw attention to the fact that neither the economic measures nor the setting up of German courts in the Protectorate, which was a part of the German Reich, can even remotely fall under the category of crimes enumerated by this Charter. And this applies equally to the alleged intrusions into the Czech educational system, the appointment of German school inspectors, measures with which the defendant has been charged in the Czech indictment. These measures also were not taken by him, but by the German Reich Ministry for Education. And the closing of a larger number of Czech secondary schools was not ordered by the defendant, nor by order of the German Reich

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Ministry, but by the Czech Government itself even if it did so at the suggestion of the defendant. This measure turned out to be a useful one, and was in the interests of the Czech youth and, therefore, of the Czech intelligentsia and people because it obviated the danger of the formation and growth of a large well-educated proletariat. After the incorporation of the Sudeten German territory into the German Reich in the autumn of 1938 this danger had become acute, for a very large number of Czech officials and members of the free professions had streamed into the territory of the Protectorate, with the result that because of the overcrowding of all professions and the diminution of the Protectorate territory owing to the separation of the Sudeten territory and Slovakia, the chances of finding employment for the pupils leaving the secondary schools were still further diminished.

In addition to this came the closing of universities in the middle of November 1939 upon personal order of Hitler. The Czech Government could not shut its eyes to the truth of these considerations of the defendant, and itself decreed the closing of quite a number of schools. The defendant did not exercise any pressure on the Czech Government. This has been proved by the evidence. The dissolution of Czech gymnastic and sport clubs and similar organizations, however, as well as the confiscation and the use of their assets, was ordered, without knowledge or participation of the defendant, by the Police, which was not under his jurisdiction. It is not even certain, by the way, whether this dissolution took place while the defendant was holding office or only after his departure. The dissolution of the Sokol, it must be said, was a real necessity for the protection of German interests, and moreover it was a measure which was taken to appease and reconcile the Czech nation, too; for the Sokol was, beyond doubt, the focus of all anti-German efforts and of the incitement of the Czech people toward an active resistance against everything which was German.

The preceding arguments show how manifold were the encroachments of other administrations and offices on the administration of the Protectorate,- and, accordingly, the difficulties and resistance which arose against a uniform policy of the defendant. They were, however, by no means removed, but, on the contrary, aggravated by the decree of 1 September 1939 concerning the organization of administration and the German Security Polite-Document Book 5, Document Neurath-149. This decree was issued, without previous consultation with the defendant, by the Ministerial Council for the Reich Defense. Its first part especially is obscure and misleading. True, it placed all German administration offices and their officials in the Protectorate under the control of the Reich Protector, but this subordination was a formal one only, that is, simply on paper and

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not an actual one in view of the administrative duties which were actually performed.

In this respect, things remained unchanged, as had already been indicated from the authority of the supreme Reich offices, according to Article 11 of the decree of 16 March 1939 and of the ordinance of 22 March 1939. The difference was only that from now on all administrations and offices, established or to be established by other offices, were formally attached to the Reich Protector's office and took up their functions under the official designation of "The Reich Protector of Bohemia and Moravia." However, this by no means insured that such attached departments were put, in fact, under control of the Reich Protector himself-that is, the defendant-and that they had to receive from him their factual directives and orders to work according to his views and his directives. On the contrary, they received their instructions, just as before, from their original Reich offices, and had to observe and obey them. For instance, the so-called transportation department under the Reich Protector which had to deal with the transportation system-already taken out of the Reich Protector's jurisdiction by ordinance of 16 March 1939- was controlled just as before by the Reich Ministry of Transportation and not by the Reich Protector, and received instructions not from him but from the Ministry in Berlin. And the same applied to other sectors, also including the purely internal administration.

According to this ordinance of 1 September 1939 of the Ministerial Council for the Reich Defense-and not, as the Czech prosecutor erroneously contends, by a decree of the defendant-a new plan was undertaken for the Protectorate territory with Oberlandratsbezirke and the Oberlandrat at their head, which official is, according to Paragraph 6 of the ordinance, the competent administrator for all administration branches of the internal administration and subordinate to the Reich Protector in an administrative sense. As such, he was invested with far-reaching authority, and also supervised the Czech authorities in the Protectorate, and this, to be sure, not by the order of the Reich Protector, but of the pertinent Reich Ministry in Berlin. This, too, was bound to result in very serious differences between the measures taken by those Oberlandrate on the basis of the directives issued to them by the Reich Ministry of the Interior in Berlin and the policy pursued by the defendant. To what extent the latter affected and influenced the Czech administrative offices does not have to be taken into consideration, since this decree, too, and its result, the control of the activities of the Czech administrative authorities by Reich German officials, is not a crime punishable according to the Charter of this Tribunal. This decree, too, is only a result of the fact that the Protectorate belonged to the German Reich.

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On the other hand, this decree clarified the question of the position of the Police within the Protectorate territory, the political as well as the Security Police. This question was quite unsettled until the decree came into force and from the very first day of his activity had led to differences and difficulties between Herr Von Neurath and his State Secretary Frank.

At the time when Hitler charged the defendant with the office of the Reich Protector he had, according to the defendant's testimony, assured him of far-reaching power, especially for protecting and fully supporting the defendant's intended policy of conciliation and compromise in opposition to radical aims of the Party and other chauvinistic circles. The defendant deduced from this that as the representative of the Fuhrer in the Protectorate he must and would have a decisive influence on the activity of the Police also. According to his own testimony he could not visualize at that time that a large part of the sphere of activity accepted by him became illusory from the start, since the Police had not been from the outset expressly subordinated to him. However, due to the fact that Frank-who had been made Higher SS and Police Fuhrer in the Protectorate-was at the same time appointed to the position of State Secretary, and as such was subordinated to him, the defendant felt entitled to assume that Hitler's intention was to centralize the police authority, if not in his own hands, at least under his jurisdiction-that is, in the hands of his State Secretary. In practice, however, this relation worked out entirely differently, since State Secretary Frank had not the slightest intention of letting his official chief, the defendant, have any authority whatsoever over the Police, and recognized only the jurisdiction and authority of Himmler, his superior, as SS and Police Leader, or of his Reich Main Security Office (Reichssicherheitshauptamt).

This actual state of affairs was established by law in the decree of 1 September 1939. For this decree unequivocally states that the German Security Police, and thereby also the Gestapo, was not subordinated to the Reich Protector. This is already evident, in itself, from the fact that the decree completely separates the two departmental spheres-administration and Police-by dealing in Part 1 with the building up of a German administration in the Protectorate subordinated to the Reich Protector, and then dealing separately in Part II with the German Security Police. This Security Police is not under the jurisdiction of the Reich Protector, but, as was already reserved in Article V, Paragraph 5, of the decree of 16 March 1939, is taken over by the administration of the Reich itself-that is to say, it receives its orders directly from the Chief of Police in Berlin-that is, Himmler-and in part also from the Higher SS and Police Leader in Prague.

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The second sentence of Paragraph 2 describes the relationship of the Police toward the Reich Protector. Its wording is as follows:

'`The organs of the German Security Police are to collect and make use of the results of their investigations, in order to notify the Reich Protector and his subordinated offices about important events, and to keep him informed and offer suggestions."

This signifies that the Reich Protector legally could not actually influence the activities of the Police in any form whatsoever. He could not oppose their orders, emanating from Berlin, prior to their execution; quite apart from the fact that he never got to see them, he had no authority whatsoever to oppose them. He had but one claim and that was to be subsequently informed by the Police about measures already taken by them and even that happened-as was proved by the evidence-only in the rarest cases. He himself did not have any right or any possibility whatsoever of issuing orders to the Police.

In consequence of this separation of powers, and in view of the totally different attitude of Frank toward the Czech people in contrast with Herr Von Neurath, the sharpest differences and contradictions were inevitably bound to crop up from the very beginning. For Frank, as a Sudeten German and one of the leaders of the Sudeten Germans, was filled with hatred and revenge against anything that was Czech. He did not want to hear of a reconciliation or an understanding between the German and the Czech peoples, and gave free rein to this anti-Czech attitude from the first day of his activity.

At first-that is to say, up to the time of the outbreak of the war-the activity of the Police was actually slight, so that these opposing viewpoints did not become so apparent. Herr Von Neurath could consequently assume that this opposition would gradually diminish, and that Frank would conform to his wishes and aims, and would show himself to be accommodating; and he, the defendant, did not yet recognize the necessity of exerting influence upon the Police. When, however, he finally realized-from the gradually increasing activity of the Police and their excesses-that his expectations were not being fulfilled, he protested to Hitler orally and by letter, time And time again-as confirmed by the testimony of the witnesses Dr. Volckers and Von Holleben-and implored him to alter this ominous state of affairs, and to subordinate the Police to him, and to him only. However, all of Hitler's promises and assurances proved to be false, and the subordination of the Police to Herr Von Neurath did not take place.

Yet, he did not want to relinquish the fight so soon, nor despair of the task he had undertaken. Now, more than ever, he wanted

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to try to impose his ideas and policy and, should he not be successful in major as well as in minor issues, at least try to soften the measures taken by the Police. For this purpose he had the most detailed accounts given to him personally in all cases of measures and action taken by the Police, such as arrests and other excesses, insofar as he received information about them mostly from Czech sources. Wherever he could, he exerted his influence for the release of arrested persons. This is evident from the testimony of all witnesses produced by me, above all, from the testimony of Dr. Volckers who, as head of the defendant's office, was continually engaged in receiving such complaints. This is moreover evident from documents submitted by the Prosecution themselves, such as the notes of the defendant about his conference with President Hacha of 26 March 1940-Appendix 5 to Supplement Number 1, USSR-60-and even from the testimony of Bienert-who himself was arrested by the Police but released in a very short time upon the intervention of the defendant.

With the one exception of the testimony of Frank of 7 March 1946, submitted during the hearing of evidence, the testimony of all witnesses corresponds on the question of responsibility of the defendant for the measures taken by the Police. Frank's testimony, however, is in direct contradiction to his own earlier testimony. At his interrogation on 30 May 1945-Document Book 5, Document Neurath-153-Frank said the following, and I quote:

"The Police, however, was not under the control of the offices of the Reich Protector.... Both Gestapo and Security Police received their directions and orders directly from the Reich Main Security Office in Berlin."

Frank's statement of 5 May 1945 concerning the student riots- Document Book 5, Document Neurath-152-is also typical of the manner in which the Police received its instructions directly from Berlin, over the head of the Reich Protector. Frank speaks therein of the report on the first demonstrations, which he had sent to Berlin, and in which he had asked for instructions; he had received them by return mail from the Fuhrer's headquarters through the Security Police in Prague, to which office they had been sent by Berlin directly and he, Frank, received them from there. There is no mention whatever of the person or even of the office of the Reich Protector during the entire proceedings; it is an internal affair of the Police involving the Higher SS and Police Leader Frank.

Because of the importance of this point, I would like to refer explicitly to the statements, made by the witnesses Von Burgsdorff and Volckers, both of whom were, on the basis of their official position, thoroughly conversant with this question during the entire time the defendant was in office. Burgsdorff testified that the Police

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was under Frank, who received his orders directly from Himmler. Volckers said that the defendant had no influence on Frank's activities, and thereby on the Police. In practice, from the very start, the Police and, therefore, also State Secretary Frank took their measures independently of the defendant. This was legally confirmed later through the ordinance of 1 September 1939. All witnesses, also in their written testimonies, testify that the relations between the defendant and Frank had been as bad as can be imagined.

It is entirely impossible in such a state of affairs that the Chief of the SD and the Security Police should have been active as political adviser to the defendant. The defendant cannot at all remember a decree of May 1939 about the appointment of this man, to which reference is made in the document by the Chief of Security Police-Document Number USSR-487. In any case, according to his definite statement, he never performed any duties. The document, USSR-487, therefore, does not appear to be conclusive as evidence. lithe copy handed to me by the Prosecution is dated 21 July 1943. That alone proves that the appointment of the SD leader, if it occurred at all, did not take place during the defendant's entire time in office. Aside from the date, however, the "reference" of the latter shows that this appointment does not at all concern a political adviser to the Reich Protector himself, but to the State Secretary for Security Matters-that is, Frank. The address "Der Herr Reichsprotektor" is not to be understood to mean the person, but rather the office. In German official circles it was customary to speak of the "Herr" Reichsminister, et cetera, even though he was not meant personally, but some department of his office. It is entirely credible and probable that the SD leader was appointed political adviser to the State Secretary, who at the same time was State Secretary to the office of the defendant and independent State Secretary for Security Matters.

Precisely from the so-called "warning," given at the end of August 1939, with which the Prosecution charged my client, it can be seen how he himself felt about the ways and means of easing the minds of the population and of preventing acts of violence and insubordination on their part. According to his sworn testimony, the defendant thereby intended to discourage the population from committing acts of violence and especially to prevent acts of sabotage-which were to be expected in this time of high political tension before the war-thus preventing harsh police or legal measures which would only serve to embitter the population even more. It is doubtless more humane to issue such a warning, and thereby prevent such crimes, rather than allow crimes to be committed without previous warning and afterward mete out severe punishment.

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The fact that acts of sabotage, if it was impossible to prevent them, had to be severely punished in those times would certainly have been acknowledged also in any other country and taken for granted. As the defendant testified, the warning fulfilled its purpose. No special punishments were threatened or fixed; it contained no special threats of punishment whatever, but referred, as the wording proves, to criminal law already in force.

The sentence, that the responsibility for all acts of sabotage affected not only the culprit but the entire Czech population, is, of course, concerned only with the moral responsibility and not the penal one, as was also confirmed by the defendant. It means that in the case of repeated serious acts of sabotage, general measures would be taken in the respective territories, as for example, earlier curfew, ban on going out, or general stoppage of traffic or electric current, under which the entire population would have to suffer. A responsibility in the penal sense would have had to be formulated much more concretely. It was expressly mentioned at the beginning of the proclamation that anyone who committed the cited crimes thereby proved himself to be an enemy of the Reich and had to be punished accordingly. This sentence especially shows that the penal treatment of such sabotage acts was to be applied individually. At that time, nobody in Prague, not even the Chief of Police, would have thought of the idea of decreeing collective punishments or even, as the Prosecution asserted without any evidence whatever, of introducing the hostage system. In this connection, I also wish to refer to the statement made by the witness Von Holleben, Document Book 5, Document Neurath-158, in which he states, "Neurath, therefore, always refused to make a person responsible for acts committed by somebody else."

From all that has been said previously, we see that the Defendant Von Neurath cannot be made responsible for the arrests made at the time of the occupation of the Czech territory, nor for the arrests made at the outbreak of the war of, as the Prosecution assert, 8,000 prominent Czechs sent to concentration camps or executed as hostages. These arrests, according to the defendant's testimony, with which Frank's testimony agrees, were made on direct order from Berlin without knowledge of the defendant nor even of Frank himself. Bienert's contradictory testimony presented by the Prosecution is factually incorrect, and is based on completely illogical and false deductions. His deduction that this entire action was under the defendant's direction because his order for Bienert's release had been issued only 4 hours after his arrest is without any logic and is objectively wrong.

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Finally, on the basis of the evidence, it is irrefutable that the defendant is also not responsible for the order to shoot 9 students and to arrest approximately 1,200 students during the night from 16 to 17 November 1939; that these measures, rightly called terror actions, had been ordered during his absence from Prague, and without his knowledge, by Hitler personally and had been carried out on Hitler's direct order by Frank; and that also the proclamation of 17 November 1939 announcing it was neither issued nor signed by him, that on the contrary his name under it had been misused. It is proved by the testimony of the defendant himself and by that of the witness Dr. Volckers, who accompanied the defendant on his trip to Berlin on 16 November 1939, the day after the student riots, and had returned from Berlin to Prague with him on the very afternoon of 17 November; furthermore by the written testimony of Herr Von Holleben, and finally by the affidavit of the defendant's secretary, Fraulein Friedrich-Document Book 5, Document Neurath-159-and of the Baroness Ritter, that the defendant, during the night of 16 to 17 November, when the shootings and arrests took place, was not in Prague but in Berlin, and the publication of these incidents was already posted on the house walls of Prague when the defendant returned to that city. The defendant is not in the least responsible for these atrocities. The order for them, as well as the simultaneous order for the closing of the universities, had, on the contrary, been given directly to Frank by Hitler in Berlin, and this, as the witness Volckers expressly affirms, in the absence and without the knowledge of the defendant.

The value, in consideration of this, which may be ascribed to Dr. Havelka's testimony, presented by the Prosecution, is selfevident. The credibility of this witness Havelka, as well as of all the other Czech testimony submitted by the Prosecution, must in general be examined with the very greatest caution. It is subject, from the first, to two very serious objections. First, all these witnesses are members of the former autonomous Czech Government-that is, the so-called collaborationists, whole in jail today for this reason and are awaiting their sentence. It is humanly quite understandable if today they see in a different light the conditions then prevailing, judge them differently from what they really were, and involuntarily confuse the terrible things which happened after Herr Von Neurath had left Prague with the events while he was there. This results from a haziness of their memory. We must not overlook the fact that, as is quite natural, they hope by incriminating Herr Von Neurath to clear themselves.

Added to this is the fact, which is more important still, that they had no knowledge whatsoever and could not have had any of the internal, factual, and legal conditions and competences

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within the office of the Reich Protector, and that they therefore are not at all able to judge to what extent the defendant himself was really the man who issued the individual decrees and orders or brought them about. One example shows this very clearly. In the witness Kalfus' testimony, it is alleged that the defendant was responsible for the customs union between the Protectorate and the German Reich. In this respect, I wish to refer only to the fact that already, in Hitler's decree of 16 March 1939, it had been expressly announced that the Protectorate belonged to the customs district of the Reich. The witness Bienert further asserts that it was Herr Von Neurath who subordinated to the Germans the political administration of Bohemia and Moravia, which means state as well as communal administration. This is, however, also objectively wrong. As I have already proved, this subordination was ordered by the decree of 1 September 1939, which was not issued by the defendant but by the Ministerial Council for the Defense of the Reich. These examples should suffice to show how little credibility can be attached to all these testimonies, and hove little the witnesses were informed about the actual conditions of org