dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SEIDL: This concerns a letter from the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery on 17 April 1941, which deals with the introduction of penal laws against Poles and Jews in the incorporated Eastern territories. The Defendant Rudolf Hess plays a part in this only insofar as the letter mentions, among other things, that the Deputy of the Fuehrer had proposed the discussion of the introduction of corporal punishment. If one considers that the staff of the Deputy of the Fuehrer alone comprised 500 officials and employees, and that for questions of legislation, there was a special department which dealt directly with the separate ministries, it seems very doubtful whether the Defendant Rudolf Hess was personally concerned in this matter at all. In this connection I refer to the affidavit of the witness Hildegard Path, Exhibit Number Hess-16. Considering, however, that the measure proposed for discussion by the Deputy of the Fuehrer was not introduced, the knowledge of the defendant should not matter very much. Without it being necessary to probe any deeper into the subjective elements of the case, it can be said that, in application of principles such as can be derived from the penal law of all civilized countries there is here not even question of an attempt. The attitude of the Fuehrer, or, more correctly, the Deputy of the Fuehrer, as expressed in the letter of the Reich Minister of Justice is irrelevant from the point of view of criminal law. We need not consider in this connection whether a penal law would have been violated if the measure proposed for discussion had actually found legislative expression in a Reich law. Another document submitted by the Prosecution is Exhibit USA-696, Document Number 062-PS. This refers to the order of the Deputy of the Fuehrer of 13 March 1940, which deals with the instructing of the civilian population as to the proper attitude to be adopted in case of landings by enemy aircraft or parachutists on German national territory.
DR. SEIDL: This is the same document concerning which I have already applied for a correction of the translation because the translation from German into English was at any rate in my opinion not correct. This document, however, is neither contained in the trial brief submitted by the British Prosecution nor was it mentioned by Colonel Griffith-Jones on 7 February 1946 when he discussed the personal responsibility of the Defendant Rudolf Hess. In consideration, however, of the fact that this order was officially submitted as documentary evidence, it is necessary to go into it at least briefly. The reason for this order of 13 March 1940 was the fact that the French Government had given instructions to the French civilian population officially and by radio as to how they were to conduct themselves in case of landings by German aircraft. On the basis of these instructions of the French Government, the Commander-in-Chief of the German Air Force considered himself also called upon on his part to inform the German population via the official Party channels. He therefore issued a directive about the attitude to be adopted in the case of landings by enemy aircraft or parachutists, which was used as an appendix to the afore-mentioned order of the Deputy of the Fuehrer of 13 March 1940. This directive, however, does not contain anything which is contrary to the laws and customs of warfare, as they have been expressed, for example, in the Hague Rules on Land Warfare. This applies particularly to Figure 4, which contains the order that enemy parachutists are either to be arrested or rendered harmless. According to the text as well as the sense of this Figure 4, there cannot be the slightest doubt that this was only meant to say that enemy parachutists were to be fought and subdued if they did not surrender voluntarily and tried to avoid their arrest by using force, particularly by the use of firearms. This becomes evident from the word "or" alone. First of all, the attempt was to be made to take them prisoner. This alone in the interest of the intelligence service.
DR. SEIDL: Only if this proved impossible because of resistance were they to be rendered harmless, that means subdued. Any other interpretation of this order would not only be contrary to the text and the sense, but moreover would also be contrary to the fact that up to the French campaign the war had been waged according to rules such as had been established, among others, in the Hague Rules on Land Warfare and that, at any rate at that time, March 1940, the war had not yet developed into the mutual struggle for annihilation that it was to become after the outbreak of the German-Russian war. The fact that a different interpretation is absolutely impossible is also evident from the so-called "Commando Order" of the Fuehrer of 18 October 1942, which was presented by the Prosecution under Exhibit Number USA-501, Document Number 498-PS. The deliberations preceding this order-which, by the way, was issued under completely different conditions-and the fact that this Commando Order was decreed by Hitler himself, in spite of the opposition of the High Command of the Armed Forces and the Chief of the Armed Forces Operations Staff, would have been entirely superfluous, if the Commander-in-Chief of the Air Force had already issued instructions which served the same purpose in March 1940. It is furthermore expressly specified in Figure 4 of the Fuehrer Order of 18 October 1942, that captured members of Commando groups were to be handed over to the SD. As the German text of this directive about the order of 13 March 1940 is completely unequivocal and does not leave any room for doubt, I refrained from procuring additional evidence about this question. In the event, however, that the Tribunal should not share this assumption, it would be unavoidable for the complete clarification of the facts that the Tribunal should, on their own initiative, procure the instructions which the French Government issued at the beginning of the year 1940 to the French civilian population in case of landings by German aircraft or German parachutists.
DR. SEIDL: It is not necessary to go into any more detail into Exhibit Number GB-267, Document Number 3245-PS, which is also brought forward against the Defendant Hess, as the contents of this document can under no circumstances be considered a crime against the rules of warfare or against humanity, if the afore-mentioned principles are applied. Besides being indicted as an individual, Rudolf Hess is also indicted as a member of the SA, the SS, the Corps of Political Leaders and the Reich Cabinet. As far as his membership in the SA and the SS is concerned, more detailed explanations are superfluous. From the documents presented by the Prosecution, it becomes evident that the Defendant Rudolf Hess held only the honorary rank of an Obergruppenfuehrer in both of these organizations. No command or disciplinary powers were connected with it. As Deputy of the Fuehrer, however, the Defendant Rudolf Hess held the highest office which existed in the Corps of Political Leaders. I cannot assume the task of commenting in detail on the charge which is brought against the Corps of Political Leaders under, and in application of, Article 9 of the Charter, and which is characterized by its motion to declare the Corps of Political Leaders a criminal organization. Considering the fact, however, that the Defendant Rudolf Hess, although not the only political leader here on the defendants' bench, was nevertheless the highest political leader, there arises the occasion for making a few fundamental remarks. According to Article 9 of the Charter, the Tribunal can declare to a member of an organization that the organization to which the defendant belongs or belonged was a criminal one. According to the Charter, a necessary condition for this is that the declaration of the Tribunal be connected with an act for which the defendant is convicted.
DR. SEIDL: By an "act" within the meaning of Article 9 of the Charter one can only understand a deed of commission or omission for which the defendant is personally accountable and to blame, but not the extended liability for the act of another resulting in a given case from Article 6, Paragraph 3. Since, however, neither in the Indictment nor in the trial brief dealing with the personal responsibility of the Defendant Rudolf Hess, is an act of any kind charged against him which satisfies the conditions constituting a war crime or a crime against humanity, a conviction of the Defendant Hess, in this case also-namely as a member of the Corps of Political Leaders-would be synonymous with the establishment of a criminal responsibility for the acts or omissions of another. Although the Defendant Rudolf Hess was the highest political leader and although no action is charged against him personally which constitutes a crime according to any penal law, he is to be convicted as a member of the allegedly criminal organization of which he was the leader; it cannot be denied that this is a legal situation which does not happen every day. But something else appears more important. The Defense were compelled to attack the very heart of the Charter, namely Article 6, as not being consistent with generally valid principles of international law. Article 9 of the Charter is no less in contradiction with the common legal beliefs of all members of the international legal community. There is neither a legal statute in international law nor a legal statute in any national law which declares the membership in an organization as criminal without examining in each individual case whether the person concerned has made himself personally guilty by his own actions or omissions.
DR. SEIDL: Contrary to the general principles of criminal law, as they are derived from the penal laws of all civilized countries, the Charter provides in Article 9 for a criminal responsibility and collective liability of all members of certain organizations and institutions, and this without any consideration as to whether the individual member has incurred any guilt. The Charter thus abandons a principle which is an integral part of any modern system of criminal law. The rule of "no punishment without guilt"-and the declaration that a certain organization is criminal is a punishment for the members affected by it-is an essential part of the idea of the criminal law of our time, insofar as one understands by guilt the sum total of those necessary conditions for punishment of the culprit. If the fact of membership in a certain organization alone becomes the object of a penal sentence, then the act which constitutes the charge no longer appears as a legally objectionable expression of the culprit's personality. This must particularly apply to organizations which had hundreds of thousands, and even millions of members. For that reason punishment without guilt has hitherto existed only in primitive law. Therefore, Von Liszt, the great German teacher of criminal law, who was at the same time a constructive thinker in the field of international law, says appropriately: "Just as religious teaching does not oppose the visiting of the sins of the fathers on 'the children and on the children's children, just as in the dramas of the ancients the place of guilt is taken by blind, inexorable fate and in the literature of today by the law of heredity, so even the oldest law of all nations knows of no penalty without guilt." Only in primitive law did there exist a criminal responsibility without guilt.
DR. SEIDL: As a matter of -fact, in the legal history of all countries, the so-called criminal 'responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility attaching to the guilty only and thereby that state was reached which is alone compatible with the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a regrettable contribution to the hastening of the apparently inevitable reduction of men to mere members of a mass, but it is, moreover, a relapse to the first beginnings of concepts of criminal law. Considering these facts, it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal beliefs of all the members of the community of international law and from the general principle of criminal law in all civilized nations. Rudolf Hess is finally accused as a member of the Reich Cabinet. Insofar as his membership in the Secret Cabinet Council is concerned, the following may be said: The presentation of evidence has shown that this Secret Cabinet Council was only created so that the resignation of the former Reich Foreign Minister Von Neurath would not appear to the public as signifying a breach between him and Adolf Hitler. Actually, no session of this Secret Cabinet Council ever took place. The council did not even meet to outline its sphere of activity. With reference to the Reich Cabinet, it is established on the basis of the results of the presentation of evidence that no cabinet meetings took place after 1937 at the latest. The tasks to be performed by the Reich Cabinet, especially its legislative functions, were taken care of by the so-called circulating procedure. The presentation of evidence has shown further that from 1937 on at the latest, the major political and military decisions were made exclusively by Adolf Hitler alone without the members of the Reich Cabinet having been informed of them in advance.
DR. SEIDL: After Hitler's appointment as Reich Chancellor, and surely much earlier than 1937, the Reich Cabinet as an institution probably made no ultimate decision on politically or militarily important questions. It would be completely misleading to assume that the members of the Reich Cabinet in the National Socialist State had a position even approximately like the position which is a matter of course in a state governed by parliamentarian principles. Just as little as there was a common plan or conspiracy among the men sitting on the defendants' bench, was there anything of the kind within the Reich Cabinet. It was even partly true that forces with divergent aims became apparent within the Reich Cabinet, which in itself would have made it impossible to agree on a common plan, such as was expressed in the Indictment. It is sufficient here to point to the testimony of the witness Lammers and to the fact that Adolf Hitler, from whom such facts could not remain hidden, finally issued a prohibition to the effect that the individual Reich ministers no longer had the right to assemble for conferences on their own motion. In this connection, something else cannot be left unmentioned. If the presentation of evidence in this Trial has revealed anything with certainty, then it is the proof of the position of enormous political power and unimaginable authority which Adolf Hitler held within the German governmental system. When Generaloberst Jodl testified on the witness stand that there was no one who could successfully contradict Hitler in the long run and that such a person could not exist, then one might say that he expressed the true state of affairs in a few words. That may perhaps be regrettable, but cannot in any way alter the facts as such. Now, if one also bears in mind that this dominant position of Hitler became constantly greater during the course of the years, then this alone should be sufficient to exclude the assumption of a common plan, such as is alleged in the Indictment.
DR. SEIDL: In any case, the following must be said: The former Party leaders, generals and cabinet members indicted before this Tribunal receive an importance in this Trial because of Hitler's death which it is apparent they actually did not have in public life in the past. While the entire political life of Germany was overshadowed during the past 12 years by the overwhelming influence of Hitler's personality, the absence of this man from the defendants' bench affects this Trial in such a manner that it undoubtedly must result in an entirely distorted picture of the political reality of the past 12 years. Your Honors, I come now to the event which was to conclude the political career of the Defendant Rudolf Hess-his flight to England on 10 May 1941. For several reasons this undertaking is of importance in this Trial as evidence. As is shown by the presentation of evidence, the Defendant Rudolf Hess had made the decision for this flight as early as June 1940-that is, immediately after the surrender of France. The execution of the plan was delayed for a number of reasons: In particular, certain technical conditions had to be fulfilled in advance. Moreover, considerations of a political nature played a part, namely, that such an enterprise could be attended by success, if at all, only when political conditions and especially the military situation appeared favorable for the opening of peace negotiations; for re-establishment of peace was undoubtedly the aim which Hess pursued in his flight to England. When the Defendant Hess was led before the Duke of Hamilton on the day after his landing, he declared to the latter, "I come on a mission of humanity." During the conversations which the defendant had with Mr. Kirkpatrick of the Foreign Office on 13, 14, and 15 May, he explained to him in detail the motives which had induced him to take this extraordinary step. At the same time, he informed him of the conditions under which Hitler would be prepared to make peace.
DR. SEIDL: On 9 June 1941, a conversation took place between Rudolf Hess and Lord Simon, who appeared on the order of the British Government. I submitted the transcript of this conversation to the Tribunal as evidence and am referring to it. It is shown by this document that the motive for this extraordinary flight was the intention to avoid further bloodshed and to create favorable conditions for the opening of peace negotiations. During the course of this conversation, the Defendant Hess handed a document to Lord Simon which stated the four conditions under which Hitler would have been prepared at that time to conclude peace with England. The conditions were: "1. In order to prevent future wars between the Axis and England, a delimitation of spheres of interests is to take place. The sphere of interests of the Axis Powers is to be Europe, and that of England her Colonial Empire. "2. Return of the German colonies. "3. Indemnification of German nationals who were domiciled prior to or during the war in the British Empire and who suffered damage to life or property because of measures taken by the Government in the Empire, or through incidents such as pillage, riots, et cetera. Indemnification to British nationals on the same basis by Germany. "4. Conclusion of an armistice and peace treaty with Italy at the same time." Rudolf Hess explained to Mr. Kirkpatrick, as well as to Lord Simon, that such were the terms on which Hitler was prepared to make peace with Great Britain immediately after the conclusion of the French campaign and that this position of Hitler had undergone no further change since completion of the campaign against France. There are no indications of any kind why this account of the defendant should not appear plausible. On the contrary, it is fully in harmony with many statements which Hitler himself had made concerning relations between Germany and England.
DR. SEIDL: In addition to that, the Defendants Goring and Von Ribbentrop likewise confirmed while in the witness box that the terms which Hess disclosed to Lord Simon corresponded completely with Hitler's views. If the terms announced by Hess provided that Europe was to be the sphere of interests of the Axis Powers, the conclusion can in no way be drawn from this that this was synonymous with a 'domination of Europe by the Axis Powers. The declarations made by Hess-they are included in written notes on the conversation between him and Lord Simon-rather demonstrate with all clarity that this was merely to eliminate any interference by England in continental Europe. What legal consequences result from these facts? In the Indictment, the Defendant Hess is charged-together with the other defendants-with having co-operated in the psychological preparations of the German people for war. To the extent that the psychological preparation for war alleged by the Prosecution is part of the common plan, it is sufficient to refer to the remarks I have made in that connection. However, if the Prosecution also want to allege that the Defendant Hess went further and personally engaged in this psychological preparation for war, then the contrary is proved at the very least-apart from his numerous speeches in favor of peace-by his flight to England and the intentions behind it. Without going into detail as regards general circumstances and the personal relations between Hitler and the Defendant Hess, one thing can still be said with certainty: By his flight to England the Defendant Hess accomplished a deed which in view of his position in the Party and in the State, and especially in view of the fact that after Goring he was marked as Hitler's successor, can only be characterized as a sacrifice, a sacrifice which Hess made not only in the interest of the restoration of peace, and in the interest of the German people, but also in that of Europe and the whole world.
DR. SEIDL: This sacrifice was all the greater as Hess was one of the very few whose relation to Hitler was based on intimate personal confidence. If, nevertheless, the Defendant Hess decided to stake his position in the Party and in the State and his personal bond with Hitler for the re-establishment of peace, this must lead to the conclusion that the Defendant Hess likewise saw in war the ghastly scourge of mankind and that it must appear quite improbable for this reason alone that it was his intention to prepare the German people for war. Your Honors, the following statements deal with the question of what legal conclusions are to be drawn from the flight of the Defendant Hess to England with respect to his participation in the Common Plan or Conspiracy alleged by the Prosecution, particularly, in view of the attitude of the defendant, to what extent any criminal responsibility can still be assumed, even after the flight to England. The Defendant Hess himself does not wish to have any favorable conclusions drawn for him in the course of this Trial from this flight and from the intentions connected with it. He has, therefore, also asked me to omit a part of the following statement. Nevertheless, I consider it my duty as the defense counsel to draw all the legal conclusions resulting from the flight of the Defendant Hess and his intentions in connection with it and to point out the facts and points of view which in any way speak in the defendant's favor. As I have explained, it must be assumed on the basis of the evidence presented, that the plan alleged by the Prosecution did not exist.