dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SEIDL: Russia is not interested in the existence of Poland and then Stalin knows it means the end of his regime, it being immaterial whether his soldiers are victorious or vanquished. Litvinov's removal was decisive. I gradually changed our attitude toward Russia. In connection with the commercial treaty we engaged in political talks. Proposal for a nonaggression pact. Then came a general proposition from Russia. Four days ago I took a special step which caused Russia to signify her willingness to conclude it, yesterday. Personal contact with Stalin is established. Von Ribbentrop will conclude the treaty the day after tomorrow. Poland is now in the position in which I wanted her to be." Besides the Commanders-in-Chief, no minister or leader of the Party, specifically not the Defendant Rudolf Hess, attended this speech of the Fuehrer. The same is true of Document Number 789-PS, Exhibit Number USA-23. The subject of this document is a conference with the Fuehrer on 23 November 1939. It appears from this document that here again only the Commanders-in-Chief of the Armed Forces were assembled to receive the Fuehrer's directions for the imminent operations in the West. The next key document is Exhibit USA-31, Document Number 446-PS, Directive Number 21 for "Case Barbarossa." This was a question of a directive by the Fuehrer and Supreme Commander of the Armed Forces which has an exclusively military character and was intended only for the sphere of the Armed Forces. Any participation by civilian administrative offices or of the Party, even in the person of the highest political leader, namely, the Defendant Rudolf Hess, is excluded by the nature of this directive. It appears also from Document Number 2718-PS, Exhibit Number USA-32, the subject of which is a file memo on the result of a conference on 2 May 1941 about Case Barbarossa, that neither the Deputy of the Fuehrer nor any other political leader took part in this conference.
DR. SEIDL: The last so-called key document to be discussed is Exhibit Number USA-33, Document Number 1881-PS, an account by Minister Schmidt of the conversation between the Fuehrer and the Japanese Foreign Minister Matsuoka in Berlin on 4 April 1941. By the very nature of this conference there could be as a matter of course no question of any participation in it by the Defendant Rudolf Hess or by any other political leader of the Party. However, something else appears from this document, namely, the fact that it is not only false to talk about a common plan within Germany aiming at a war of aggression but, even more than this, that no kind of close political or military co-operation existed between the so-called Axis Powers, in any case as far as the relations between Germany and Japan are concerned. What conclusion can now be drawn from the contents of these so-called key documents which the Prosecution themselves have characterized as particularly relevant to show the existence of a so-called common plan? Whether these documents are relevant or not, it is established by these notes that the Defendant Hess was not present at any of these conferences or when these orders were issued. If, in appraising this circumstance, one considers the further fact that the Defendant Rudolf Hess was the Fuehrer's Deputy and therefore the highest political leader, and that furthermore, after 1 September 1939, he was designated as the Fuehrer's successor after Defendant Hermann Goring, then there would in fact seem to be no basis for the assumption of a common plan in the form asserted by the Prosecution. In this connection, may I refer to the report of the Chief of Staff of the United States Army to the Secretary of War for the period from 1 July 1943 to 30 June 1945. I quote: ". . . The available evidence shows that Hitler's original intent was to create by absorption of Germanic peoples in the areas contiguous to Germany and by strengthening of her new frontiers, a greater Reich which would dominate Europe.
DR. SEIDL: To this end, Hitler pursued a policy of opportunism by which he succeeded in occupying the Rhineland, Austria, and Czechoslovakia without military opposition. "No evidence has yet been found that the German High Command had any over-all strategic plan. Although the High Command approved Hitler's policies in principle his impetuous strategy outran German military capabilities and ultimately led to Germany's defeat. The history of the German High Command from 1938 on is one of constant conflict of personalities in which military judgment was increasingly subordinated to Hitler's personal dictates. The first clash occurred in 1938 and resulted in the removal of Von Blomberg, Von Fritsch, and Beck, and of the last effective conservative influence on German foreign policy. "The campaigns in Poland, Norway, France, and the Low Countries developed into serious dissensions between Hitler and the General Staff as to details of execution of strategic plans. In each case the General Staff favored the orthodox offensive, Hitler an unorthodox attack, with objectives deep in enemy territory. In each case Hitler's views prevailed and the astounding success of each succeeding campaign raised Hitler's military prestige to the point where his opinions were no longer challenged. His military self-confidence became unassailable after the victory in France, and he began to disparage the ideas of his generals even in the presence of junior officers. Thus no General Staff objection was expressed when Hitler made the fatal decision to invade Soviet Russia. "When Italy entered the war, Mussolini's strategic aims contemplated the expansion of his empire under the cloak of German military success. Field Marshal Keitel reveals that Italy's declaration of war was contrary to her agreement with Germany. Both Keitel and Jodl agree that it was undesired. From the very beginning Italy was a burden on the German war potential. Dependent upon Germany and German-occupied territories for oil and coal, Italy was a constant source of economic attrition.
DR. SEIDL: Mussolini's unilateral action in attacking Greece and Egypt forced the Germans into the Balkan and African campaigns, resulting in overextension of the German armies which subsequently became one of the principal factors in Germany's defeat. "Nor is there evidence of close strategic co-ordination between Germany and Japan. The German General Staff recognized that Japan was bound by the neutrality pact with Russia, but hoped that the Japanese would tie up strong British and American land, sea, and air forces in the Far East." The statements which the Defendants Keitel and Jodl have made on the witness stand are essentially the same as the statements of the American Chief of Staff, so that further details on this point are superfluous. It may be considered as proven that not even among the most intimate circle of Adolf Hitler's associates did a complete agreement exist on the measures to be taken in the political and military field, whereby the constitutionally established relationship of rank between the officers of the Armed Forces and the head of the State and Supreme Commander need not be considered. It is plain that the existence of a common plan aiming at war cannot be accepted even in the case of that group of persons for whom it first seemed most likely. The second common goal of the conspiracy is declared by the Indictment to be the appropriation of the territories which Germany had lost as a result of the World War of 1914-18. The preamble to the Treaty of Versailles provides for the possibility of a revision of the treaty. Going beyond this, the demand for the reunion of Austria to the German Reich and the annexation of the Sudeten German regions cannot in itself be concluded to rest on the existence of a plan which was to have been realized at the proper moment by the use of violence or by way of war. As a matter of fact, by a disregard of the right of self-determination of nations, these territories had already been prevented in the year 1919 from annexing themselves to the German Reich.
DR. SEIDL: On this question I can refer to the statements I made at the beginning. Actually, the annexation of Austria took place-this may be said as a result of the presentation of evidence-under circumstances which cannot be described as warlike and which permit us to conclude that the greater part of the Austrian population approved the annexation. Concerning the Sudeten German question, it suffices here to refer to the Munich Agreement between Germany, Great Britain, France, and Italy by which the reunion of the Sudeten Germans with the Reich was settled. And finally, the third aim of the common plan was described as the annexation of additional territories on the European continent which should serve the conspirators as "Lebensraum." The Indictment is not clear in this point and lacks substance. But in fact the question of the so-called "Lebensraum" is a problem which is completely independent of the National Socialist ideology and is determined by the size of the area and number of inhabitants. Every German Government had to and still must deal with this question. If any argument by Hitler found a lasting response in the German people, it was the demand made by him for an appropriate share for the German people in the material wealth of the world. This demand appeared to be all the more justified for the German people as the relation between the area and the number of inhabitants is very unfavorable compared to other countries. For instance, in the European part of Russia alone there are - .1 inhabitants per square kilometer; in the United States of America the density of population is only 17 people; and France with a population of 74.6 per square kilometer owns a territory of no less than 11.5 million square kilometers. England has 47 million inhabitants and disposes of no less than 35 million square kilometers of ground. Compared with these figures Germany had, on 1 September 1939, over 80 million subjects, a density. of population of 140 and not even 600,000 square kilometers of territory. These figures speak for themselves.
DR. SEIDL: The question of territory is closely related to the problem of a fair distribution of the most important raw materials. I need not give detailed reasons on the inadequate distribution of the most important sources of raw materials nor mention that certain raw materials are completely monopolized. It is certain that the bitterness about the unjust distribution of the material wealth of the world was bound to increase in the German people, as not only was every reasonable revision rejected, but moreover it was said by the opposite side in an unmistakable manner that the nations were divided into two classes, namely the "haves" and the "have-nots". In fact, this classification could be felt as nothing but scorn. 2s July 46 Moreover, even after 1933 there was no unanimous opinion about the possible solutions concerning the removal of the difficulties resulting from the need for space. Thus, for instance, the Defendant Rudolf Hess belonged precisely to those who wanted to solve the problem of "Lebensraum" by the acquisition of colonies, if possible. For instance, in a big speech in Stettin, on 21 March 1936, he said: , "The most natural way to make more food available for the people of Germany is to improve our living standard, that is, to supplement it by having colonies. Therefore, the Fuehrer by stating his willingness to return to the League of Nations, hoped that the question of colonies would be submitted to examination. The Fuehrer knows that a people without sufficient area, without a sufficient food basis, a hungry people, must in the long run become a center of unrest because of its instinct of self-preservation against which even the most ingenious statesman is powerless. For hunger is a natural instinct which cannot be subdued either by warnings or by orders. Our desire for colonies is therefore only the desire for a pacification of Europe for a long time, and therefore the question of the allocation of colonies to Germany is part of the Fuehrer's big proposal of pacification. .
DR. SEIDL: ." The world knows that the fulfillment of this demand as well as the fulfillment of all other demands for revision was refused. The connection between the unjust distribution of the material goods of the world which contradicts all economic reason and the political tensions which shake the peace of the world again and again, simply cannot be overlooked. Generalissimo Stalin, Chairman of the Council of the People's Commissars of the USSR, stressed these facts clearly enough in his long speech of 11 February 1946 on the occasion of the elections for the Supreme Soviet, stating inter alia as follows: "It would be wrong to think that the second World War was caused by chance or was the result of mistakes made by various statesmen, although such mistakes had undoubtedly been committed. In reality the war was an inevitable result of the international economic and political forces founded on modern monopolistic capitalism . . . Perhaps we might escape the catastrophes of war if there were a chance of redistributing the raw materials among the countries according to their economic weight by virtue of agreed and peaceful decisions..." Somewhere else in his speech Stalin says: "This is the position regarding the question of the origin and the character of the second World War. Now everyone presumably recognizes that this war never was and never could be a matter of chance in the life of the nations, that it indeed changed into a war involving the nations and their existence, and that for this reason it could not be a blitzkrieg quickly running its course..." There is no need to add anything to these statements; they speak for themselves.
DR. SEIDL: Your Honors, I now turn to the legal evaluation of the state of affairs which may be considered as actually established: As I have already stated, Article 6, Paragraph 3 of the Charter is not the formulation of an independent state of criminality, but the expansion of the criminal responsibility of the leaders, instigators, and participants who have taken part in the drafting or in the execution of a common plan for committing one of the crimes mentioned in Paragraph 2. According to the regulation mentioned, these persons are to be responsible not only for the acts which they themselves have committed, but they also are to take upon themselves the penal consequences for all acts which were committed by any person in the execution of such a plan. In Article 6, Paragraph 2a, of the Charter the fact of a crime against the peace is defined as follows: "The planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing." While it is expressly defined in Article 6, Paragraph 3 of the Charter that the criminal responsibility of the participant in the drafting of a common plan is limited to acts which "have been committed by any person in execution of such a plan," the crime against the peace is according to Article 6, Paragraph 2a, of the Charter already completed with the "agreements or assurances or participation in a Common Plan or Conspiracy for the accomplishment of a plan which has as its aim the preparation, initiation, or waging of a war of aggression." In contrast to Article 6, Paragraph 3, it is here not necessary that an act of execution tee ' actually committed. I do not intend now to deal with the question more specifically whether the war as such and especially the starting of a war of aggression was a crime according to international law valid at the time of the outbreak of war, on 1 September 1939.
DR. SEIDL: This question has already been discussed in the opening speech of the Defense. This examination of the legal side of this question has shown that neither the League of Nations agreement nor the Briand-Kellogg Pact contains anything which would permit the conclusion that the starting of a war was a criminal and therefore punishable offense. International law knew neither a criminal responsibility of the state as a corporate body and even less a criminal responsibility of the agencies of the state, such as the head of the state, the members of the government, the military commanders, the economic leaders, et cetera. The causes for this unsatisfactory state of international law need not be discussed. It has already been correctly pointed out that the idea of sovereignty and the refusal of the great powers in particular to relinquish some of these rights of sovereignty in the interest of a better supernational organization, was also a reason for the unsatisfactory status of international law especially on this question. In connection with this there is another fact which does not seem to be less important to me, namely, that it was not possible until now to create an effective organization and a procedure which would satisfy the justified claims of the peoples for a proper participation in the material goods of the world, and which would also in other respects take care of a just settlement of the conflicting interests. On the basis of this examination alone there can hardly be any doubt that a crime against the peace, as it has found its factual definition in Article 6, Paragraph 2a, of the Charter, does not exist. This section of Article 6 of the Charter does not have a sufficient basis in existing international law. I omit the following decisive statements as they concern the effect of the secret German-Russian treaty of 23 August 1939 on the jurisdiction of the Tribunal. The Tribunal will have to consider officially to what degree the jurisdiction can still be considered valid in view of this secret treaty. I continue on Page 63. Mr.
DR. SEIDL: President, I am in a difficult position, as by omitting these statements from Pages 59 to 62, an incorrect picture would be created, as my actual statements concerning the contents of the German-Soviet secret treaty of 1939 could be misunderstood because of its legal consequences. I therefore ask the Tribunal to decide.
THE PRESIDENT: The Tribunal has fully considered this matter and does not desire to hear your point.
DR. SEIDL: Moreover, the following is to be said about Article 6, Paragraph 3 of the Charter: The concept of a conspiracy, as it has been expressed in Article 6, Paragraph 3, is a typical institution of Anglo-American law. The continental European law does not know any such criminal concept. But there cannot be any doubt that international penal law, insofar as there is any such law, and if one does not understand by it the sum total of the rules which are to be observed in the application of national or foreign law, likewise does not know the concept of conspiracy as constituting a crime in criminal law. But it is not only the question of prevailing international law and the agreement of the Charter with the same which is to be examined. The issue in connection with this requires an answer to the following question also: In the opening speeches of the four chief prosecutors and also in the discussions prior to the Trial concerning its legal basis, two entirely contradictory arguments were advanced. While some argued that the Charter was a complete expression of the prevailing international law and was in agreement with the common legal beliefs of all members of the international legal community, the others asserted that one of the main tasks of the International Military Tribunal which was then to be set up would be to develop international law further. This latter opinion, for example, stands out clearly in the report of the American chief prosecutor to the President of the United States of 7 June 1945. Here, word for word, it states among other things: "In initiating this Trial, we must also remain aware of the aims with which our people assumed the burdens of war.
DR. SEIDL: After we entered the war, and our men and our wealth were mobilized to eradicate this evil, there was the general feeling among our people that out of the war there should arise unmistakable rules and a practical machine from which anyone who entertains the thought of a further predatory war should realize that he will be held personally responsible and that he will be personally punished . . ." Or in another part of this report, the following is stated literally: ". . . According to the international law of the nineteenth and early twentieth century, the waging of war was not generally considered as unlawful or as a crime in the legal sense. Summed up, the prevailing doctrine held that both parties in any war were to be considered as being in the same legal situation and therefore had the same rights." The legal considerations in the report then actually conclude with the following challenge: "...An attack against the fundamental principles of international relations must be considered as nothing less than a crime against the community, which rightly must protect the integrity of its fundamental agreements by punishing the aggressor. We therefore propose to raise the challenge that a war of aggression is a crime, and that modern international law has abandoned the justification according to which he who instigates or wages a war acts in accordance with the law." And as a matter of fact, it would not be necessary to raise the demand for a new penal law if the action under consideration was already threatened with punishment by existing law. It is obvious that the fulfillment of such a demand by a court of law-whatever the legal basis for its proceedings-would be contradictory to a principle derived from the penal legislation of nearly all civilized nations and which finds its expression in the rule nulla poena sine loge, that an act can only be the object of punishment if the act was declared punishable by law before the act was committed.
DR. SEIDL: This state of affairs seems all the more remarkable, since the rule nulla poena sine lege is a principle firmly rooted in the constitution of practically all civilized nations. Thus, for example, it is contained in Article 39 of the English Magna Charta of King John of 1215, in the American Constitution of 1776 and in the declarations of the French Revolution in 1789 and 1791. This principle of nulla poena sine lege is not only contradictory to the assumption of a crime against peace as the Prosecution expects the Tribunal in the further development of prevailing international law to define as a punishable act, but rather it is also contradictory to the creation-of another independent concept of conspiracy in criminal law by judicial dictum, in the further development of hitherto existing international law. In this it cannot make any distinction as to whether this conspiracy was directed toward committing a crime against the peace or committing a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent crime in criminal law is not compatible with the principle of nulla poena sine lege. What are applicable here are rather-as already correctly expounded by the French chief prosecutor-are only the rules defining participation according to the law of the perpetrator's own country or according to the law in the place of perpetration. Under given circumstances, these rules defining participation are limited to the extension of the threat of punishment to cases of complicity, instigation, and assistance. Apart from his participation in the Common Plan or Conspiracy, as defined in Count One of the Indictment, the Defendant Rudolf Hess, in connection with his personal responsibility for War Crimes and Crimes against Humanity, is essentially accused by the Prosecution on the basis of the contents of only one document, and that is Document Number R-96, Exhibit Number GB-268.