Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 17

by Various

Morning Session

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: I continue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This fact leads to the following consideration:

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

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

By the fact that enemy warfare disregarded the established rules of naval warfare, Germany was driven into a state of economic emergency. If the enemy powers had observed this established law of naval warfare, then Germany could have supplied herself through neutral countries, and the state of economic emergency during the war would not have arisen. But since the enemy powers failed to observe the established blockade regulations, how could they expect Germany to observe the regulations on requisitioning, which form part of the rules of land warfare?

Through the action of the enemy powers Germany was thrown into a state of emergency. The prerequisite for the state of emergency within international law is, according to the prevailing theory, an existing or imminent threat of danger to the state, which it is impossible to avert in any other way and which endangers to the utmost the vital interests as well as the independence and existence of the state.

Thus, wherever the vital interests of a state are threatened in this manner there prevails a state of national emergency; this has the legal effect that such a state does not act illegally when committing a violation of international law necessary for the repulsion of imminent danger.

The economic situation of Germany became extremely precarious during the course of World War II by the action of the enemy powers. All connections with neutral countries were made impossible for Germany by the total blockade, so that supplies of raw materials necessary for the conduct of the war and of food for the feeding of the civilian population were cut off.

Germany was therefore forced, in order to support her own economy which would otherwise have collapsed, to use the stocks of raw materials and food available in the occupied territories and all other items necessary for the continuation of the war, for herself, the interests of the population in the occupied territories being given due consideration. In this, the principles established in the preamble to the Convention concerning the Rules and Customs of Land Warfare, dated 18 October 1907, as they result from the customs existing among civilized nations, from the laws of humanity, and from the demands of public conscience, were strictly observed. A renunciation of the right to use these resources in the occupied territories would have meant the abandonment of the independence and existence of the state; it would have meant unconditional submission. An emergency involving submission during war is the supreme and most fatal emergency in the life of a nation.

By referring to the state of emergency, however, only such actions are covered which are necessary to remove a danger which could not be averted otherwise. The limitations naturally fluctuate, and it is not always easy to determine in individual cases whether a genuine state of emergency exists. Here the Tribunal will have to consider in favor of the defendant the special circumstances and the wartime conditions, which are difficult to appreciate.

It has not been proved that the defendant intentionally or carelessly infringed these limitations.

It must be left to the examination of the Tribunal whether the defendant personally can be held responsible for a violation, possibly committed intentionally or carelessly—a violation which has been committed exclusively by him in his capacity as plenipotentiary of the Führer—or whether in such a case there is only a liability of the state. The Defense are of the opinion that in this case, too, the problem concerns only a violation of international law which does not constitute personal liability.

Exceptional conditions prevailed in the eastern theater of war because there was no private economy in the East, but only a national economy strictly regulated by a central office. The juridical situation here was such that property of the enemy state could generally be claimed as war loot. For the rest, a particularly careful regulation was made, which was defined in the so-called “Green Folder.” The regulations contained in this folder did not suggest any looting or annihilation of the population, as asserted by the Prosecution. Its tenor was rather the mobilization of economy and the rules for keeping it going, the seizure and the orderly utilization of stocks and traffic installations in the zones to be occupied in the course of fighting, taking into account the fact that far-reaching destruction was to be expected owing to the Russian attitude. The folder does not contain any order or indication which might burden certain groups of the population beyond the needs of war. This decree, for which the Defendant Göring has taken full responsibility, does not furnish any reason for disapproval.

In all this one must not overlook one thing. This war was of such bitterness, such proportions, such duration and totality as the creators of the Hague Convention certainly never had or could have even remotely imagined. It was a war in which nations fought for life or death. It was a war in which all values had changed. Thus the defendant was quite right when he declared, “After all, in a life-and-death struggle there is no legality.”

From the standpoint of emergency, a justification can also be found for the deportation of workers from occupied territories to Germany. In his testimony the defendant stated in detail all the reasons which in his opinion made this measure necessary. For the rest, the counsel for the Defendant Sauckel, Dr. Servatius, will review these matters in detail. Therefore, I do not need to concern myself with further considerations in this respect.

The defendant has made a comprehensive statement in regard to the charge of spoliation of art treasures, a statement which will be referred to in order to justify his conduct. In addition it will be observed that Reich Marshal Göring was not directly engaged in the safeguarding of art treasures in Poland. Not one of these art treasures did he take for his own collection. In this respect the defendant cannot be incriminated in any way.

By order of the Führer such works of art in France as were owned by Jews were temporarily confiscated for the benefit of the Reich. They were considered as derelict property, because their owners had left the country. Of these confiscated objects, with the express approval of the Führer, Göring received a small part, though not for himself but for the gallery he had planned, in which he also intended to incorporate the works of art already in his possession. He wished to acquire these objects at a price estimated by French art experts, the proceeds to be distributed among the dependents of French war victims.

The juridical situation, therefore, was as follows:

The objects were confiscated by decree of the Führer for the benefit of the German Reich. By this confiscation the former owners lost their right to possession and it was transferred to the Reich. Such objects as were ceded to him, Göring acquired from the Reich as their present owner. The Reich obviously saw in this a step which, though it was proved premature by the course of events, was intended to anticipate the peace treaty to be concluded at the end of the hostilities, when the final accounts would be made. This is similar to the confiscations and seizures of property carried out at present in Germany in view of the ultimate peace treaty.

Whether the Reich Government was juridically entitled to confiscate the goods and to become their owner is a moot question. A solution of the question is no longer necessary, because Göring acted in good faith in the matter of this acquisition. In his testimony he emphasized his belief that he was entitled to acquire these things, as they had been previously confiscated by a Führer decree. In consideration of these facts there cannot be any question of looting.

In any event there can be no objection to the purchasing of articles in the course of normal business transactions, which the defendant was offered spontaneously, the sellers being only too eager to dispose of them in view of the good price they received. The same applies to objects which the defendant acquired through a voluntary exchange, in which the other party to the contract enjoyed the same rights as himself.

I will now deal with the accusation of the shooting of 50 officers of the British Air Force after their escape from the prisoner-of-war camp Sagan.

The Indictment reads as follows: “In March 1944, 50 officers of the R.A.F., who had escaped from Stalag Luft III in Sagan, were murdered after their recapture.” According to a later declaration of the Prosecution the circumstances were as follows: During the night of 24 to 25 March 1944, 76 officers of the R.A.F. escaped from the prisoner-of-war camp Stalag Luft III in Sagan. 50 of these officers were shot by the Security Service after they had been recaptured.

Investigation must bear on the following points: Who gave the order for the shooting? Did Reich Marshal Göring play any part in this affair? Did he actually take part in the drafting of the order to shoot these 50 airmen? Did he approve the measure, although it was a grave offense against Paragraph 50 of the Geneva Protocol dealing with the treatment of prisoners of war?

The Prosecution states that the Defendant Göring collaborated in the drafting of this order. It referred, among other things, to the reports which Generalmajor Westhoff and Criminal Counsellor Wielen drew up while they were in British custody. But the interrogation of these witnesses in Court, as well as the bringing forward of further evidence, which has been so carefully gone into before the Tribunal, has shown in the meantime that the previous statements of Westhoff and Wielen were inaccurate, and in respect to Göring’s presence at the conference and his knowledge of the shooting order were only based on suppositions which had their roots in the fact that it was a question of a prisoner-of-war camp for airmen. The result of the evidence was as follows:

At this general conference on 25 March 1944 Himmler reported the escape of the 76 officers to the Führer. For this Hitler severely reprimanded Field Marshal Keitel. He considered the event a great danger to public security, since the escaped officers might assist the 6 million foreigners in Germany in the organization of an armed revolt. Then Hitler gave the order: “The prisoners will remain with Himmler.” Keitel definitely refused to hand over to Himmler the 15 officers who had already been recaptured by the Armed Forces and returned to the camp, and these officers remained unharmed.

At this general conference in the presence of Keitel, Hitler did not order the shooting of the prisoners who were to remain in Himmler’s hands. Neither Keitel nor Jodl expected such measures. Jodl expected the escaped prisoners to be sent to a concentration camp for some time. Keitel and Jodl agree in their testimonies that Reich Marshal Göring did not attend this meeting. Therefore, it cannot possibly be correct that Field Marshal Keitel declared in a conversation with General Westhoff that he had been reprimanded by Göring at the general conference on account of the prisoners’ escape.

General Koller has testified that General Korten assured him over the telephone, about the end of March or beginning of April 1944, that the Luftwaffe, that is, the Reich Marshal and Korten himself, were not involved in the order and had only been informed of it later. Furthermore Koller testifies that the Reich Marshal was extremely angry about the shooting. These statements are completely in accordance with the declarations of Reich Marshal Göring, who was on vacation at the time of the conference with Hitler. The fact of the escape reached him only through a telephone report by his adjutant. It was only after his return from vacation, some time around Easter 1944, that he learned through his Chief of General Staff, Korten, about the fact that shootings of prisoners had taken place. Reich Marshal Göring was much upset about this last report because he condemned the deed in itself and, moreover, feared reprisals for his own airmen. Upon inquiry, Himmler then confirmed the executions to Reich Marshal Göring with the justification that an order to that effect had been issued to him by Hitler.

It is made clear by this conversation how the execution was possible and how its perpetration could remain concealed from the Wehrmacht. In the absence of Keitel and Jodl, Hitler issued the order to Himmler to carry out the execution and Himmler thereupon, unknown to the Wehrmacht, immediately passed on the order to the Reich Security Main Office, that is, after Kaltenbrunner’s approval, to Müller or, as the case may be, to Nebe.

Not only did Reich Marshal Göring remonstrate with Himmler because he had executed the order without informing Göring, but also raised the most vigorous protest against this measure in a subsequent interview with Hitler. This resulted in heated controversies between Göring and Hitler.

As Göring strongly condemned such proceedings, he requested shortly afterward that the prisoner-of-war camps be taken in charge by the OKW. On being questioned Field Marshal Keitel confirmed, as a witness, that a few weeks after the occurrence he received a letter from the General Quartermaster of the Luftwaffe, in which the Luftwaffe requested the taking over of its camps by the OKW.

This result of the examination of evidence, correcting the initial statements of the witnesses Westhoff and Wielen, which are contradictory in many respects, as well as Keitel’s earlier declaration of 10 November 1945, also justifies the assertion that Reich Marshal Göring was in no way involved in this affair, that he condemned it most severely when he was informed of it, and that he, therefore, cannot be called upon to answer for this extremely regrettable and reprehensible order, which it was not within his power to prevent.

The Prosecution has gone on to the question of “lynch law” as resorted to by the German population in isolated cases in 1944 when enemy airmen had been shot down. For these occurrences, the defendants, especially Reich Marshal Göring, are held responsible. The charge that the Defendant Göring or the Wehrmacht are in any way involved in this action, that they issued orders or instructions to this effect or even merely approved the action, is seen to be entirely unjustifiable. The examination of evidence in this case has thoroughly cleared up the matter in favor of the defendant.

To support their charges against Reich Marshal Göring, the Prosecution invokes first of all a protocol of 19 May 1944 (Document L-166) concerning the so-called “Hunting Conference” which was held on 15 and 16 May 1944 under the direction of the defendant.

Numbered as Item 20 of this memorandum is a statement by the defendant saying he would suggest to the Führer that terrorist enemy airmen be immediately shot at the scene of their offense. The defendant most definitely denies having made any pronouncement to this effect and justly points to the following circumstances which belie any such statement: The session lasted for 2 days, and numerous technical and organizational questions were discussed. The question touched upon in Item 20 had nothing whatever to do with the agenda for the rest of the session, least of all with the purpose of the session. The remark is placed in the midst of themes which deal with matters of an entirely different nature and has no point in this connection. Besides, Göring, had he approved and wished it, could himself have immediately issued such an order without further ado, as he knew the Führer’s attitude on this point.

The decisive fact is that the statement is in the sharpest contradiction with the fundamental attitude of the defendant. He always stood for the view that the enemy airman who was shot down was a comrade and must be treated as a comrade, a fact which I have already remarked upon in another connection. Moreover, in the question as to how terrorist airmen were to be treated, he defended his position with all frankness against the conception held by Hitler and made no secret to Hitler of his entirely different opinion.

In view of this unwavering attitude and its resulting policy, it is utterly out of the question that he should suddenly have urged Hitler to issue the above-mentioned order against the terrorist airmen—an order which he opposed with all his might and the execution of which he sought to prevent by every means as soon as it came to his knowledge. And he did succeed in fact in preventing the execution of this order. If the terrorist airmen were actually discussed at the conference, this discussion could only have occurred with the implication that the Führer suggested such a measure.

With reference to the minutes, the following general remarks must be added: They consist of summary notes by a young officer, stretching over a two-day session during which there had been a great deal of talking and discussion. Experience acquired in many other cases has shown that such recordings are often very unreliable and have even at times reproduced the subject of the discussion in an utterly distorted form, precisely because the person taking notes—especially when several participants were present and talking at random—could not follow the course of the discussion and consequently did not reproduce the substance of it accurately, especially when, in addition to this, he was mixing up the people; this explains many factual errors as well as the inadequacy and unreliability of such records. The minutes were never submitted to the defendant. He has not therefore been able to verify their contents nor to correct their errors.

Records of this sort, which were taken down in the way described above and which are not submitted for perusal and approval by the parties concerned, are worthless in the production of evidence. They cannot in themselves alone serve as an adequate means of proof either to charge or convict the defendant. They can, therefore, only be made use of to the detriment of the parties implicated when the content matter is confirmed by other material brought for evidence from sources other than these minutes. In the present case there is no confirmation from other evidence that Göring actually made the statement contained in Item 20 or made a request to Hitler to that effect.

The note dated 21 May (Document 731-PS) fails to provide support for the claim. The note, “General Korten, according to a speech by the Reich Marshal, reports...” cannot, in view of the defendant’s uncontested statement, possibly mean that the Reich Marshal delivered an address on this matter in Hitler’s quarters but solely that Korten reported on this subject to the Reich Marshal and that Korten informed the Reich Marshal of Hitler’s order.

The rest of the examination of evidence has made it clear beyond doubt that Göring was against a special treatment of enemy terrorist airmen who had been shot down and that he opposed Hitler’s order.

The witness Colonel Bernd von Brauchitsch pointed out during his interrogation on 12 March 1946 that in the spring of 1944 there was a sudden increase in losses among the civilian population through machine gun attacks by enemy airmen. These attacks by enemy airmen were directed, within Germany, against civilians working in the fields, secondary railway lines without any military importance, and against pedestrians and cyclists. This constituted a gross violation of the Hague Rules of Land Warfare, according to which any combat act against the noncombatant population of the country is prohibited; and any attack or shelling of open cities, villages, residences, or buildings is forbidden.

According to the opinion of the witness Von Brauchitsch, this behavior, which quite evidently violated international law, caused Hitler to order specific measures against these aviators, besides general defensive measures. In this regard Hitler advocated, as far as it is known to the witness, the most severe measures; lynch action was to have a free run.

This attitude of Hitler toward the violations of international law by enemy aviators, however, did not meet with the approval of the Armed Forces, especially not with that of Reich Marshal Göring and his Chief of Staff, General Korten. Both of them did condemn to the utmost the attacks of enemy aviators, which were exclusively directed against the defenseless civilian population. However, they nevertheless opposed the handing over of defenseless, shot-down aviators to the aroused mob for lynch action; and they did not consider such measures to be an appropriate means of combating this conduct, however much in violation of international law.

The witness General Koller expressed himself to the same effect. Early in June 1944 General Korten informed this witness of the fact that the Führer intended to decree an order to the effect that terrorist aviators were to be surrendered to public fury.

In the course of repeated conversations the witness Koller and General Korten arrived at the opinion that the conception of the Führer must be rejected. They certainly considered the direct attacks of low-flying enemy planes on individual civilians, women and children, concentrations of civilians, school classes and kindergartens out on walks, farmers at work in the fields, as well as attacks on public passenger trains and hospitals, to be ruthless. However, the two did not see a way out or a solution of the difficult problem in the Führer’s order. They were of the opinion that such an order was contrary to basic military conceptions, the Articles of War, and international law, and that it would give rise to numerous evils through which both enemy and German crews would come to harm. And finally such an order might exercise, by its effects, a harmful influence on the morale of German crews.

All these reasons caused the Armed Forces to reject Hitler’s demand, and their attempts were now directed toward preventing the conception of Hitler from being put into practice. The witness Von Brauchitsch credibly states that the Armed Forces now looked for a way out finally found in the fact that the higher command levels were deceived by measures which were not actually carried out.

The witness Von Brauchitsch was ordered by Reich Marshal Göring to define in discussions with the OKW the concept of terrorist aviators. In the subsequent discussions and exchanges of correspondence those cases were mentioned which represented violations of international law and which were to be considered criminal acts. By this definition of the concept, lynch law was to be prevented. The exchange of correspondence, which lasted for quite a long period of time, showed the tendency of the office to protract the matter as much as possible.

The witness Koller is justified in emphasizing that this exchange of correspondence shows every sign of a “delaying action to gain time,” that is, those concerned either did not want any decision or at least wished to postpone it as long as possible.

In particular the marginal note on Document D-785, Exhibit GB-318, “No answer to be obtained from Commander-in-Chief of the Air Force,” admits of the conclusion that the Reich Marshal purposely wanted to prolong the matter. Furthermore Reich Marshal Göring, as can be clearly seen from the letter of 19 June 1944, maintained the opinion that in every instance he considered legal procedure against terrorist aviators as definitely necessary. Where it is stated in a subsequent document of 26 June 1944, “The Reich Marshal agrees with the formulation as communicated defining the concept of terrorist aviators and with the suggested procedure,” such agreement with the procedure refers exclusively to the procedure of publication suggested in the final paragraph of the letter of 15 June 1944, for which Reich Marshal Göring’s approval had been requested. That Reich Marshal Göring until the end of the war maintained the old aviator standpoint, according to which enemy aviators, once they have been shot down, are to be considered and treated as comrades, was not only expressly deposed by the witness Field Marshal Milch, but is also emphasized by General Koller in the following words:

“Notwithstanding occasional expressions of displeasure, the attitude of the Reich Marshal always remained correct and chivalrous in accordance with the flying tradition which he had retained from the first World War and frequently emphasized. In understandable anger about great difficulties in air defense, and pressed by the Führer, he perhaps once in a while used harsher words which were quickly forgotten.”—And the witness does not know of any case—“in which such a fit of ill-humor caused the Reich Marshal to take incorrect or harsh measures against members of the enemy air forces.”

The behavior of the Air Force as a whole was also correct and humane at all times. To fight chivalrously was a matter of honor with the German aviators. The Air Force as well as the Defendant Göring retained this point of view, although as Koller expressly mentioned, the flying personnel felt extremely bitter over the strafing attacks on German crews suspended on parachutes and individual hotheads spoke of equal measures as reprisals.

The best testimonial for the exemplary comradely behavior of the Air Force even toward an enemy who did not observe the rules of warfare can be seen clearly from the description of the witness Koller about the establishment of a maritime life-saving service of the Air Force, which brought aid to Germans and enemies in equal measure and which carried on despite enemy attacks in violation of international law.

It can thus be said that the Armed Forces and the Defendant Göring rejected lynch law, as well as all procedure against the terrorist aviators not in accordance with legal regulations, and did not issue any orders to troops under their command; in no case have enemy aviators been shot by the Air Force or by the Army, or handed over to the Security Service (SD).

The Prosecution accuses the Defendant Göring of having established a reign of terror in Prussia immediately after 30 January 1933 in his capacity as Prussian Minister of the Interior and soon afterward as Prussian Prime Minister, in order to suppress all opposition against the Nazi program. In order to carry out his plans he had used the Prussian police, which he had ordered as early as February 1933 to protect the new government by proceeding ruthlessly against all political opponents without consideration of the consequences. In order to safeguard and consolidate power, he had created the dreaded Secret State Police and established concentration camps as early as the spring of 1933.

To these accusations the following is to be said:

All this was only natural and cannot serve as an accusation against the defendant; rather would it have been a severe violation of the duties entrusted to him, if he had not devoted himself with all his strength to the safeguarding of the new government and taken every imaginable precaution in order to make any attack on this new government impossible from the very beginning. In order to achieve this goal, the first step concerned the police institutions.

It only remains to be examined whether the means which the defendant considered it necessary to apply were objectionable. The question must be answered in the negative because of the following considerations:

In every state the police is the inner-political instrument of power; in every state its task is to support the government, to protect it in every direction and to render the disturber of the peace and the violator of the law harmless, if necessary, by force of arms. The defendant assigned these tasks to the police under his direction, whom he ordered, in the speech mentioned by the Prosecution, to act energetically and to fulfill their duties conscientiously. Why such an appeal for the performance of duty should not be permissible is incomprehensible.

In his interrogation the Defendant Göring described expressly for what reasons and along which lines he considered a reorganization of the police necessary, and these directives cannot be objected to.

I should like to point out in this connection that according to the prevailing rules of international law a sovereign state has a right to regulate its internal affairs as it deems fit. The reform of the police is an exclusively internal affair. The violation of generally recognized rules of international law is, therefore, out of question in this respect.

A political police was also in existence in Prussia before the assumption of power. Before 30 January 1933 it was called Police Department 1a, which among other things had to watch and to combat political adversaries, at that time the National Socialists and Communists in particular. Such a police, dealing with the same tasks, was also needed after the assumption of power in order to protect the new state against attacks which threatened it, in particular from the very strong Communist Party.

In order to make clear that this department of the police was charged exclusively with safeguarding the state against enemies of the state it was named “Secret State Police.”

As long as the Defendant Göring was head of the Police—this was, in fact, the case only until 1934, when Himmler was put in charge—he strictly confined himself to the tasks prescribed to him and did not transgress his authority, and no misuse of power worth mentioning occurred. Nor has the evidence produced shown anything against the Defendant Göring for this period of time. Should, at a later date, the Secret State Police have transgressed their authority and committed illegal acts, the defendant had no knowledge of it and did not approve of it. For mistakes and crimes committed by his successors, which remained unknown to him, he cannot be held responsible.

Now there appeared before the Court a witness whose testimony was very incriminating for the defendant. This was the witness Dr. Gisevius. The defendant refuses to deal with this witness and his statement. He merely wishes to point out that this statement is untrue in all points which incriminate him. The conclusiveness of the witness’s statement depends on whether he is considered to be credible or not. Dr. Nelte has agreed to deal with this question extensively, so that, in order to avoid reiterated statements, I shall refrain from further declarations.

Naturally, the assumption of power by the National Socialist Party met with some resistance, and in particular the leftist parties were anything but satisfied with the situation thus created. The opponents were by no means weak either numerically or in the means at their disposal. The new rulers were, therefore, apprehensive of serious danger to their power if they allowed the opposition parties to continue their activity without hindrance; accordingly they had to take preventive measures against such dangers in good time. In order to stabilize their own power and to nip in the bud any possible source of unrest, the Defendant Göring considered it necessary for reasons of state to arrest at one blow both leaders and officials of the Communist Party and its organizations. The defendant himself has spoken at length explaining his reasons for such acts. For the removal of danger and to insure the safety of the state, the measures taken by the defendant were, for the Government, a necessity caused by the unrest of the time. Since it was a preventive measure, it was not requisite before a provisional arrest that a criminal act against the Government had already been committed or was obviously on the verge of being committed. The fact of membership in itself and previous activity in that party was sufficient to warrant arrest as a political act of self-protection on the part of the Government.

Such considerations very soon after the assumption of power, led to the establishment of concentration camps, of which there were two at the time when the Defendant Göring was at the head of the Police. The purpose of such camps was to hold temporarily politically unreliable persons, who might be of danger to the new state, until they had either adapted themselves to the new political conditions or until the power of the state had become so great that such persons could no longer endanger it.

The legal basis of this institution was the Reich President’s decree of 26 February 1933 for the protection of people and state. Reich President Von Hindenburg issued this decree on the basis of Article 48, Paragraph 2, of the Reich Constitution, in order to prevent Communist armed risings dangerous to the state; accordingly, the decree was perfectly constitutional. The decree temporarily suspended certain constitutional rights and declared legal, among other things, the restriction of personal liberty.

The establishment and use of concentration camps was founded, according to the defendant’s ideas at the time, on the revolutionary conviction inherent in the victorious Movement that it was the sole expression of historical truth, that it alone represented the right path, and that therefore everything was wrong that stood in its way.

There was no political discussion of the right political concept based on logical arguments, as in ideologically neutral liberalism; there was only the totalitarian establishment of a popular regime based on creed as the historically necessary truth.

Any person not caught up by this Movement but; on the contrary, opposing it, was therefore to be removed as an enemy of the true order. Under such conditions, the person concerned could not simply be punished for an infringement of specific rules in the traditional course of justice; but, according to the opinion of the National Socialist Government, he deliberately segregated himself from the newly found community of the people and from every foundation for any legal institution. He had therefore to be removed. There was, accordingly, no question of punishment but of a political purge based on ideological intolerance. Therefore no tribunal or administrative procedure was allowed on behalf of the persons concerned for the examination of the police proceedings. The individual who excluded himself from the community was not entitled to legal guarantees which the Constitution provided for his fellow countrymen. And a fellow countryman was he only who recognized such a community. In handling enemies of the people not only legal principles were applied, but also the viewpoint of the necessities of state.

Since it was an act of political expediency, the Defendant Göring could decide in some cases on his own responsibility that there was no necessity for further confinement and could use all his influence to procure the liberation of individuals who did not endanger the security of the state. In that case it was not a question of an act of grace breaking through any legal principle, neither was it tantamount to an acknowledgement of an injustice done to the other persons concerned; it simply was an act undertaken from the point of view of expediency, each case being decided on its own merits.

Such principles in handling elements which fail to fit into a totalitarian political rule are by no means specifically National Socialist; they also dominate the policy of the victor countries toward the conquered German population. Anyone who does not obey the newly arising democratic order in Germany, even anyone of whom an essential opposition to democracy can be expected because he was grounded in National Socialism before, is now interned. Whereas—according to Document R-129 of the Prosecution—21,000 people were in concentration camps at the beginning of the war in Nazi Germany, more than 300,000 National Socialists and militarists are held in internment camps in the U.S. Zone alone, according to figures published by the occupation powers.

A recently published decree of the Länderrat in the American occupation zone confirms the fact that such acts of political purging are not legal but political acts. This decree removes from the authority of the administration of justice and transfers to the authority of the general administration of the State all workers’ camps in which are interned Nazis who have been sentenced to forced labor on account of their Party membership; and this decree is issued because these camps are foreign to the administration of justice.

Those were the only considerations which influenced the Defendant Göring when he created concentration camps in 1933 and issued laws concerning the Secret State Police. These were intended to be, as he conceived them, a means of cleansing and strengthening the young community of the people. He did not aim at a definite annihilation of political enemies but, after a certain period of education, interceded generously for their release and discharged, at Christmas 1933, about 5,000 and in September 1934 about 2,000 prisoners.

He vigorously counteracted inevitable abuses and errors which he openly admitted in the book he published in 1934, intended for the British public, The Building of a Nation. For example, he permitted the Communist leader Thälmann personally to report to him about his complaints in the concentration camp and took care to have them remedied. He dissolved the so-called “wild” camps of Stettin and Breslau, punished the Gauleiter of Pomerania who had organized this camp without his knowledge and against his will, and had those responsible for these “wild” concentration camps brought to trial for their infringements of the regulations.

This attitude of the Defendant Göring denotes that he never intended the actual physical annihilation of the prisoners. If the Prosecution establishes that this was all in execution of a conspiracy which aimed at committing Crimes against Humanity, such an interpretation has no bearing on the actual political life during the years in question. Such a conspiracy did not exist, nor was it the intention of the defendant to commit crimes against the principles of humanity, nor did he commit any such crimes. As one of the political trustees of the German Government, he felt himself bound to safeguard it against dangerous disturbers of the peace and thereby to guarantee the future of the National Socialist way of life. Far from looking upon such measures as criminal, he considered them, on the contrary, to be the inevitable means of consolidating the political order as a basis of all law.

In 1936 the leadership of the Police, and therefore the management of the concentration camps, passed from the defendant to the Reichsführer SS; Heinrich Himmler. The defendant cannot be held responsible for the subsequent development of the concentration camps nor for the fact that they became, especially after the outbreak of the war, more and more gruesome places of torture and death and led—partly intentionally, partly on account of the chaotic war conditions—to the death of countless people and finally, in the last days before the breakdown of Germany, turned into one vast graveyard.

Certainly he knew that there still were concentration camps, also that the number of inmates had risen because of war tension and that they contained foreigners because of the expansion of the war machine over all of Europe; but the terrible happenings which have been disclosed in this Trial were unknown to him. He knew nothing of the inhuman experiments which were being carried out on inmates in misinterpretation of true scientific methods. The testimony of the witness Field Marshal Milch has shown that the Luftwaffe was not interested in these experiments and that the defendant personally did not learn anything specific at all about this matter.

By no means did the establishment of concentration camps as such have anything to do with the later extermination of Jews, which apparently originated in Heydrich’s and Himmler’s brains and was kept secret in a masterly manner until it was disclosed after the collapse as the horror of Auschwitz and Maidanek.

This brings me to the Jewish question. The Defendant Göring has explained in detail his views on the Jewish question during his interrogation as witness; furthermore, he has shown in all detail the reasons which influenced the National Socialist Party and, after the seizure of power, the State, to take a hostile attitude toward the Jews.

The defendant is reproached for having promulgated the Nuremberg Laws in 1935, which were intended to keep the race pure, and for having, in his capacity as Delegate for the Four Year Plan, issued decrees during the years 1938 and 1939 which had as their aim the exclusion of Jews from economic life. Furthermore he is blamed for a number of other laws which meant a one-sided and serious intervention into the legal sphere of Jews.

The legal reason for this reproach is obscure. For this deals with a purely domestic problem, namely, the regulation of the legal status of German subjects; according to internationally recognized legal opinion at that time, the German Reich as a sovereign state was free to settle such a matter. Even if these encroachments were harsh and the limitations of citizenship rights extremely severe, they nevertheless in no way represent an offense against humanity.

Legal provisions which limit a certain race or a certain circle of citizens in their legal position have been made by other states without offense being taken at such measures and without other states considering themselves bound to intervene. Reich Marshal Göring always rejected any illegal or violent action against Jews. This is clearly shown by his attitude toward the action against Jews during the night of 9 to 10 November 1938, instigated by Goebbels, of which he was informed only after the deed had been done and which he condemned most severely. In this respect he raised serious objections with Goebbels and Hitler. On this matter, the precise statements of the witnesses Bodenschatz and Körner are available. The testimony of Dr. Uiberreither shows how greatly Göring disapproved of this action. According to the former, the defendant summoned all Gauleiter to Berlin several weeks after this incident and in an address sharply censured this violent action, which was not in keeping with the dignity of the nation and which caused serious damage to German prestige abroad. That the defendant was no race fanatic became generally known by his expression, “I decide who is a Jew.” It has been established sufficiently that he aided many Jews.

About a biological extermination of the Jews he learned only at the end of the war. He never would have approved such a measure and would have opposed it with all his might. For he had too much political insight not to recognize the tremendous and at the same time senseless dangers which would perforce result for the German people from such a brutal and horrible act of extermination. Göring had already made it clear in the above-mentioned speech to the Gauleiter that he did not wish to fall foul of the world public and world opinion because of the treatment of the Jews. It is therefore out of the question that Göring should have approved of such an undertaking or participated therein in any manner, although it is natural that it should be put to the defendant that he must have been informed about such horrible measures as the second man in the State.

Furthermore it is no wonder that the statements of the defendant that he knew nothing of these atrocities should meet with a certain amount of distrust. Despite such doubts, however, the defendant insists that no information about such acts ever reached him.

This ignorance of the defendant, which can be completely understood only by one familiar with German conditions, may be explained from the fact—and this is the sole solution of the riddle—that Himmler, as was also emphasized by General Jodl during his interrogation, knew truly masterfully how to keep his actions secret, to obliterate all traces of his atrocities, and to deceive the surrounding world and even his and Hitler’s closer entourage. In this connection I also refer to the testimony of the witness Hoess, who confirms Himmler’s instruction concerning absolute secrecy toward everyone.

The question may come up here: Did not a legal obligation exist for the defendant to make investigations about this matter and to get reliable information as to the true whereabouts of supposedly evacuated Jews and as to their fate? And what legal consequence results if he negligently refrained from investigating and by such negligence violated his legal obligation to act, incumbent on him by virtue of his position? The decision of this extremely complicated question of law and fact may be considered a moot question, because Göring, even as the second man in the State, did not have the power to prevent such measures if they were carried out by Himmler and were ordered, or at any rate approved, by Hitler.

Mr. President, yesterday I already stated that I still wished to deal with the Katyn case; and I intend to do so now, before I go on with my conclusion. I am sorry I was not able to get any translations because the testimony was only given a few days ago. However, this matter is not very long. The interpreters have a copy. I shall begin with this report now.

A detailed opinion has still to be given on the Katyn case, in which the taking of evidence was concluded only a few days back. The Russian Prosecution based their indictment on the findings of an investigation which is set down in Document USSR-54. The following conclusion is drawn from the entire evidential material as presented:

(1) Polish prisoners of war, who were in three camps west of Smolensk, were still there in these three camps when the Germans came into Smolensk, up to and including September 1941.

(2) In the Katyn forest German occupation troops undertook the mass shootings of the prisoners of war from the aforesaid camps in the autumn of 1941.

(3) The mass shooting of the Polish prisoners of war in the Katyn woods was carried out by the German military authorities who had camouflaged themselves under the code name “Staff of Construction Battalion 537” at whose head was Lieutenant Colonel Ahrens, together with his collaborators First Lieutenant Rex and Lieutenant Hodt.

The question is, did the Prosecution prove this accusation? This question must be answered in the negative. No confirmation of guilt can be found from the contents of this document. The accusation is made against a definite military unit and names specific officers. The time mentioned for the perpetration of this deed is September of 1941. The Katyn forest is given as the scene of the crime. In view of the scanty facts, which considerably restricted the accusation, it was merely the task of the Defense to prove that this assertion would not bear examination.

First of all, let us consider the persons involved. Colonel Ahrens, who is obviously the Lieutenant Colonel Ahrens mentioned, is eliminated as the perpetrator because this deed is said to have been committed in September 1941, while Ahrens did not take command of Regiment 537 until the end of November 1941. He arrived only at that time at Katyn and had never before been in the eastern theater of war. Before Ahrens, Colonel Bedenck was in command of the regiment and he joined the regimental staff in August 1941. Before Bedenck, First Lieutenant Hodt took lodgings in the little Dnieper castle in July 1941, immediately after the capture of Smolensk. He came with an advance unit of the 537th Regiment and remained there until the arrival of the regimental staff, to which he was not yet attached at that time. He was transferred to the regimental staff only in September 1941, and from that time on he lived permanently in the little castle.

Special facts which would incriminate Hodt or Bedenck cannot be derived from the document which has been submitted, and such facts have not been presented here. Therefore, it is not proved that Bedenck and Hodt could be considered as perpetrators.

The following circumstances contradict the theory that Unit 537 or any other military unit had participated in this act. The Polish prisoners allegedly fell into the hands of the Germans in the three camps west of Smolensk. Thereby they would have become German prisoners of war. The fact that they had been captured would have had to have been reported to Army Group Center. Such a report was not made, as testified by the witness Eichborn. Considering the tremendous number of prisoners, it is quite out of the question that anyone could inadvertently have failed to make a report of that nature. Apart from that, the capture of 11,000 Polish officers could under no circumstances have been concealed from the Army Group. As results from the testimony of General Oberhäuser, the Army Group never had any knowledge of this.

From the statements of the two witnesses, Eichborn and Oberhäuser, it can be concluded that at the time of the capture of Smolensk by the Germans there could not have been any Polish officers present in these camps. Moreover, no eye witnesses who saw the officers after that date were interrogated by the Russian commission. The railroad employee who was interrogated on this subject knows nothing from his own observation.

Now, allegedly these 11,000 prisoners were taken from the camps to Katyn. The transport of so many Polish prisoners could not have been concealed from the Russian population even if the transport had been carried out most unobtrusively and secretly, nor could shootings on such a large scale have taken place without the Russian population taking notice of them.

Even though this little wood was blocked off, at a distance of about 200 meters there was a public highway open to traffic, and this highway was used daily and to a great extent by the Russian civilian population. Anything that took place in the little wood of Katyn could be seen from this highway.

In the direct vicinity of the Dnieper castle there were isolated homesteads which remained occupied by the owners during the whole time of the German occupation, and there was constant contact with the regimental staff. There are no reliable statements and testimony dealing with either transport or the observation of shootings. The Germans would hardly have chosen the site on which the graves were found for such a mass execution. Owing to its situation between the main road and the regimental quarters, this site was quite unsuitable for such a misdeed. As I have already stated, there was lively traffic not only on the nearby road, but also in the direct vicinity of the graves which were near a small road connecting the regimental headquarters with the main road. The executions could also have been observed by soldiers who had nothing to do with it. Even the unit selected to carry out the deed would have been very unsuitable. A technical unit, such as a signal corps unit, is the least suitable for such a task.

The witnesses Eichborn and Oberhäuser did not move into these quarters near the site of the deed until 20 September 1941, and they can only testify as to what they themselves observed from that date on. But from the end of July there was an advance unit near the castle and from August, a regimental staff. It is, however, quite out of the question that in this span of time or perhaps 6 weeks this act could have been perpetrated. The few people who were available were so overburdened with military tasks that in this short time it would have been quite impossible for them not only to kill 11,000 prisoners, but also to remove the bodies.

According to the statement of the Prosecution, Russian prisoners of war allegedly helped to remove the bodies. That has not been proved. None of the Russian population had ever seen such prisoners. In no case could all traces of the deed be effaced so quickly and the scene so speedily cleared that the witnesses Oberhäuser and Eichborn on their frequent trips to the Dnieper castle would not have noticed some suspicious signs.

The testimony of the witness who was heard here is not sufficient. He merely heard a story of such shootings from a certain Menschagin who cannot be found now. This witness did not make any personal observations. He himself did not see any Poles. He was told by students that they had seen Poles but they did not know the number of Poles or where they were being kept. Testimony which is so scanty in every respect is worthless, and the testimony given by the two doctors heard as witnesses is not adequate for use in the sense of the Indictment.

Within the scope of the evidence admitted by the Tribunal, it would not have been possible to clarify completely all the medical questions which were decisive for the experts in the facts you have established. Therefore, the Defense has also refrained from calling a medical expert to exonerate the defendant.

There is one thing, however, which must not be overlooked in this connection. The expert opinion obtained by the German Government was given by 12 members of a commission of leading representatives of legal medicine from European universities, while the expert opinion referred to by the Prosecution was deposed by a group of Russian experts only. The first expert opinion should be given preference since it was compiled by experts who were completely nonpolitical.

Now, the Witness Professor Markov in his examination went back on the opinion contained in the report of 30 April 1943. He claims that already at that time, due to his findings upon making an autopsy on the bodies, he failed to agree with the report that the shooting took place in the months of March and April 1940. However, this testimony must be met with considerable misgivings. The witness could give no plausible explanation why, in view of his opinion, he did not lodge an immediate protest against the version of the report of 30 April 1943 or refuse his signature, nor why, at least, he later...

THE PRESIDENT: [Interposing.] Dr. Stahmer, you realize, of course, that you have not offered in evidence the report of this German commission. You expressly refrained, as I understand it, from offering the report of the German commission. And you...

DR. STAHMER: Mr. President, that is a mistake. I did not refrain from doing so. I was not permitted to submit the White Book, but I was permitted to submit the report of 30 April 1943. However, I could not submit it immediately, for it was contained in the White Book and I was to have copies made. These copies were made and submitted. I used some of the passages from the protocol, with the express approval of the High Tribunal.

THE PRESIDENT: I know you did, and of course if you want to offer it there will be no objection to your offering it; but certainly I understood that you were only offering in evidence the parts which you read to the witness. That, I think, was put to you at the time you were cross-examining the witnesses on behalf of the Prosecution.

That is what I understood, but if you say that your interpretation was different and that you want to offer the whole of the report, then the matter will be considered by the Tribunal, if the Tribunal has not already considered it.

Are you saying that the Tribunal has already allowed the whole of that report to be offered in evidence?

DR. STAHMER: Mr. President, unfortunately the book...

THE PRESIDENT: Dr. Stahmer, what you are desiring to offer in evidence is the conclusion of the report or the protocol or whatever it is called, is that right? That, I take it, is not a very long document, is it?

DR. STAHMER: No, Mr. President. May I explain again. I am sorry but I have not received the transcript of the session. Therefore, I do not know just what is contained in this protocol; but I do recall—and one of my colleagues confirmed this to me just now—that at the time I was permitted to submit the entire so-called report of the commission, and I quoted certain passages not only from the conclusion but from the whole report, and with the permission of the High Tribunal I proposed to submit the entire report later.

THE PRESIDENT: Well, I do not know what you mean by the whole report or what you mean by the protocol.

DR. STAHMER: Mr. President, may I describe it once more.

This was a rather comprehensive protocol which described the findings of the investigations. It contained the entire facts of the case and it concluded with a joint expert opinion. It is composed, as I have stated, of facts and reasons. It contains, first of all, a very comprehensive statement in which the facts as they appeared to the experts are described individually. For instance, that they interrogated the Russian population on the spot, checked over the site of the graves, held a post mortem—all of these things were presented by me from the record with the permission of the High Tribunal.

Mr. President, may I be permitted to make another remark to clarify these matters? I remember this incident quite particularly because you, Mr. President, first mentioned it and asked whether I had another copy of this protocol. I answered, “No, I have only the White Book.” Then that was submitted to the witness, whereupon I suggested that the other witness be called so that in the meantime I could have a copy made of this protocol. Then you, Mr. President, thought it had better not be so but that I should take the book and then submit a copy afterward.

THE PRESIDENT: Well, the Tribunal will look at the record to see exactly what happened.

DR. STAHMER: As I said, I did not see the transcript myself. If it was not taken down like that, then the record is not complete. However, I do remember quite clearly that that is what took place.

THE PRESIDENT: We will continue then.

DR. STAHMER: The statement of the witness is subject to considerable doubt. The witness could give no plausible explanation as to why, in view of his attitude concerning the form of the protocol of 30 April 1943, he did not lodge an immediate protest and refuse to sign it or why he did not at a later date at least acquaint the other experts who participated with his true scientific conviction.

Through this testimony the German experts’ opinion cannot lose its weight and become weakened, especially since the other 11 experts obviously endorsed the statements set forth in this report.

Considering this state of affairs it will not be necessary to set forth the individual reasons which speak for the correctness of the statements contained in the German White Book of 30 April 1943.

The time given by the Russian experts for the shooting, that is, the autumn of 1941, is determined arbitrarily; and it cannot be true in any case for the corpses wore winter clothing, as the witness Markov noticed on the corpse upon which he performed an autopsy. The fact that ammunition for pistols of German make was found in the graves does not permit the conclusion that this shooting was necessarily carried out by Germans. In the German White Book it has already been pointed out that the German factory which produced this ammunition delivered a great deal to other countries, especially to the East.

In conclusion, it can be said that the task of this proceeding is solely to determine whether the 11,000 Polish officers were shot after the capture of Smolensk by the Germans, in other words, that this deed could have been committed by Germans. The Prosecution have not succeeded in proving this fact and therefore this accusation will have to be struck from the Indictment.

Mr. President, I come now to my closing sentences, my conclusion. I imagine it will take me roughly a little more than 10 minutes and think it would be best to give this conclusion in unbroken continuity. Either I will have to speak until after one o’clock; or, if I may be permitted to make a suggestion, the Tribunal might recess now.

Shall I continue now?

THE PRESIDENT: If you can finish in 10 minutes we will go on until you finish, Dr. Stahmer.

DR. STAHMER: I will not quite have finished in 10 minutes, and I should like to point out particularly that I would not like to have to interrupt my concluding remarks.

THE PRESIDENT: Perhaps if it would be more convenient to you—we will do whichever you like; we will recess now, if you like. It is a very hot day and we will recess now if you prefer.

DR. STAHMER: I would prefer to have the recess now. I do feel the heat a little today, Mr. President.

THE PRESIDENT: Very well.

[The Tribunal recessed until 1400 hours.]

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