Afternoon Session (continued 2)

On the other hand, the German-Austrian Treaty of 11 July 1936 was a res inter alia acta for powers other than Germany and Austria; here Austria alone could have raised the objection of a breach of treaty. In this connection attention is called to the fact that the reconstituted Austria is not among the signatories of the London Agreement of 8 August 1945. Therefore the four states of the International Military Tribunal are not entitled to vindicate the interests of Austria at this Trial.

With regard to Article 80 of the Treaty of Versailles, I resist the temptations to discuss the question of the legal validity of this provision; I will dwell on the legal significance of the contradiction of this article with the so-called Fourteen Points of President Wilson.

But in concluding my legal exposition of the Austrian affair, I cannot altogether refrain from expressing a general idea: One of the great principles of international order which in the course of the nineteenth and twentieth centuries has established itself after much suffering, much confusion, and many makeshifts and become more and more a reality is the right of self-determination of nations.

This basic principle of the right of self-determination of the nations has become so firmly rooted in the legal conceptions of international relations in our century that one is forced to the idea that it belongs to the general principles of international law, an idea that particularly appeals to the democratic way of thinking. But as a general principle of international law it would, together with the Charter, the prescriptive international law and, thirdly, the law of treaty, then become the standard criterion of judgment for the Nuremberg International Military Tribunal, which at all events must find a similar basis for other questions. And further it would acquire, like all other generally accepted principles of law, a constraining force and above all have precedence over international treaty law.

A number of states owe their existence to this lofty expression of the democratic way of thinking. Such a privilege was denied the Austrians after the first World War. Despite the fact that the people in Austria as well as in Germany unanimously strove for union, Austria was forced to eke out an existence as an artificial, unnatural state structure, neither able to live nor die. How bitter are the words of the Encyclical Ubi areano of 23 December 1932:

“We hoped for peace, but it did not bring salvation; we hoped for healing, but terror came; we hoped for the hour of recovery, but only confusion came; we hoped for light, but only darkness came.”

In the year 1938, too, Austria and Germany strove for union, according to the wish of the overwhelming majority of their citizens, and this time their wish was fulfilled.

From the point of view of world history, the incorporation of Austria has no other significance than the triumph of a mighty and living principle of international order—the right of self-determination of nations. This dynamic force carried away artificial and unnatural treaty stipulations. Who can speak here of guilt?

I have nothing to say on the question of Czechoslovakia, and on the question of Poland very little, for during his short stay he was not in evidence at all of the Poles but was mainly concerned with the organization problems connected with the building up of the German administrative apparatus. In this matter it is sufficient for me to refer to the outcome of the evidence.

Nor will I say anything more about his honorary rank in the SS except that an honorary rank was never under Himmler’s command and disciplinary power, nor did such rank carry with it this power in the SS.

As regards his position as a minister without portfolio, the importance of this function within the scope of the organizations will be discussed in the chapter “Reich Cabinet.” Therefore, passing now from this interlude, I hasten on to the second scene of this case: the Netherlands.

Many know her only as the country of windmills, wooden shoes, and wide breeches; the red brick buildings, large herds of cattle in green meadows, and vast multicolored tulip fields. I know her as the country that gave to mankind a Rembrandt, and the many masters of the Dutch school, and Grotius, the great teacher of international law; the country that fought for her liberty in bloody battles against Philip II of Spain and produced the great naval hero De Ruyter, who won one of the most famous naval battles in history on 21 August 1673. But during this Trial we learned here that of all the occupied countries, the Netherlands offered the most united and stiffest political as well as increasingly effective physical resistance; we also learned that throughout these years these people never abandoned the hope that the day of liberation would surely come. The motto of the province of Zeeland: ‘Luctor et emergo—I struggle but emerge’—had become the rallying cry of the whole country.

Seyss-Inquart came to this country in May 1940 as chief of the civil administration. Whatever he may have thought and planned, it is his tragedy that he came as the representative of Adolf Hitler and of a system hated the world over. Hundreds of laws, orders, and decrees bore his signature, and no matter how correct they may have been legally, in the eyes of the people they still were measures of the enemy, and Seyss-Inquart still their oppressor. My client did not put himself forward for this office. On the contrary, he asked permission to go to the front as a soldier. Adolf Hitler refused this. Seyss-Inquart has also never contested his responsibility, and gave himself up voluntarily after the collapse. In case the legal opinion of the defense concerning the command of a superior is not shared by the Tribunal, the total organization of the Reich on the one hand, and the attitude of the Dutch people on the other, must, if only by virtue of Article 8 of the Charter, be taken into consideration in passing judgment on his administrative activity. The way in which Seyss-Inquart discharged his two conflicting tasks—namely to represent the interests of the Reich and at the same time to provide for the welfare of the population within the meaning of the Hague Land Warfare Regulations—is revealed by his attitude which I now describe: In the administration of Holland my client clearly allowed himself to be guided by the following legal conceptions:

The development of war technique, particularly in air warfare, the enormous extension of economic warfare, the expansion of the war into “total and indivisible war,” the beginning of the idea of total blockade, have all made international law—as it was in force in the years 1899 and 1907 when the Hague Convention was established—meaningless from the viewpoint of the clausula rebus sic statibus, and absolutely incomplete and useless because of new requirements and prevailing conditions. Only a few vestiges from the old days were still valid in the second World War.

How drastic this change is, is most strikingly shown by the bombing of residential quarters, made possible by the colossal development of explosives and flying technique, and which had no justification whatever according to previous law. If indeed there is any justification at all, then this can only be found in the concept of total war. But, above all, this development brought the individual into war—due not least to the influence of the Anglo-American concept of war.

Accordingly, in the course of this development the enemy civilian population, as well as the resources of the occupied regions, have become a war potential of the occupying power up to the limits imposed by humanity.

A further limit is imposed by international law, which provides that the demands of these forces must be justified by military necessity, and lastly that these demands must be reasonable ex aequo et bono.

Moreover, the totalitarian and indivisible nature of modern warfare precludes the special treatment of specific areas. It is no longer a question of requisitioning the human and economic forces of a definite area only for the requirements of that area, as it is still prescribed by the Hague Convention for Land Warfare. Henceforth the belligerent in power must have at his disposal the sum total of these forces, which on the other hand benefit from belonging to the whole.

Modern technical development, especially in the field of communications and traffic, also raise another problem of warfare, the so-called partisans, involving new and heavy tasks. In contrast to the period of the first World War, the partisan organization assumed enormous proportions in the second World War, and endangered the fighting troops, which at most can be compared with the guerrilla war of attrition against Napoleon I in Spain. The old international law made no adequate rules to offset this danger. It is evident that the guiding principle for fighting the partisans must be the security of the fighting troops at any price.

This means that the army as well as the occupation administration have both the right and the duty to take the severest repressive and preventive measures without going beyond the bounds of reason and humanity. My client performed the functions of his office in accordance with these guiding principles, always in the firm belief that he was carrying out his duty according to the directives of international law—that is, of the supreme Reich leadership. Any thought of acting illegally or even of committing punishable acts never entered his mind. That has nothing to do with the applicability in this case of the principle that ignorance of the law is no excuse, for here not national penal law is concerned, but international law and moreover it is not a question of a legal error, but of a subjective conception of duty, which may have erred here and there but was always sincere.

Having discussed the principles, let us now turn to the individual administrative acts of the defendant. Here it must be pointed out that, as everywhere in occupied territories but particularly in Germany proper, the National Socialist administration tended more and more to become overorganized, and responsibilities often overlapped. At the same time there was an extremely rigid centralization in Berlin. Consequently the following authorities were in control in the Netherlands: 1) The Reich Commissariat (civil administration and protection of Reich interests); 2) The Commander-in-Chief of the Armed Forces and the various commanders-in-chief, with their own courts; 3) The Police, about which I shall speak later; 4) Four Year Plan—Göring; 5) Einsatzstab Rosenberg; 6) Department for the Allocation of Labor—Sauckel; 7) Armament Ministry—Speer; and 8) last but not least, the NSDAP with its offices and organizations.

Pursuant to the Führer order, thus de jure, the Reich Commissioner was bound to obey unquestioningly the instructions of these central agencies, and he was not allowed to have a say in measures taken by them. The record of history still to be written will perhaps reveal with what skill the defendant prevented some of these measures or at least succeeded in toning them down. As to the Dutch population, its attitude, as already mentioned, was completely hostile, and the resistance movement, organized, equipped, and directed through the Dutch Government in London, grew stronger every year. To reach a fair judgment, the defendant’s actions should be considered against this background.

I now turn to the Indictment and shall follow in broad outline the presentation of the French prosecutor.

The first charge is the alleged violation of the sovereignty of the country by the introduction of the Reich Commissariat with its four general commissariats: Abolition of civic liberties; introduction of the Leadership Principle and dissolution of legislative bodies and political parties. These measures cannot constitute a breach of international law. Inasmuch as Germany, like the Netherlands one of the signatories of the Fourth Hague Convention of 1907, recognized during the war the laws governing land warfare, and notwithstanding the failure of the joint participation clause (Allbeteiligungsklausel) after entry into the war of the Soviet Union, the validity of the laws governing land warfare, in the sense of the limitations referred to at the beginning of the above statements, must be accepted for the Netherlands as well. Its rulings do not appear to have been violated. As a result of the complete occupation of the country and the flight of the Queen and of the ministers, the highest governing power in civil affairs passed from the Crown and the Parliament to the occupying power, and thus to the Reich Commissioner. Owing to the unconditional capitulation of 10 May 1940, General Winkelmann, who had been left behind in the country and was vested with special powers, renounced his authority in every respect.

Furthermore, it is the recognized right of the occupying power to organize the administration as its requirements demand. In so doing it must do nothing which anticipates the final decision as to the fate of the country. This was definitely recognized also by the Supreme Court of the Netherlands by the decision of 12 January 1942, submitted by me. The division of authority between the Reich Commissioner and the Commander-in-Chief of the Armed Forces, as provided for by the Führer decree, also represents an internal distribution of jurisdiction by the occupying power. This is definitely established in the British Manual of Military Law of 1936. The fact that the State Parliament was suspended, the activity of the State Council restricted to the preparation of opinions in disputes on administrative matters and that, finally, the parliamentary parties were dissolved, is likewise no violation of international law, because during the period of occupation it is the occupant who decides to what extent there is need for legislative measures and for amendment of the legislation of the country. As a rule, at every election about 50 parties entered the contest for the 150 seats in the Dutch Parliament. The fact that these parties, formerly at variance with one another, not only joined forces in their antagonism to the occupying power, but very often were active in the various resistance movements, gave the occupant every justification for suspending and subsequently dissolving them—their final dissolution was not decreed until 5 July 1941—the more so as the country lay on the direct path of the coming developments of the war, and an invasion was to be expected. This made it necessary for the administrative apparatus to concentrate all its force to do away with parliamentary obstruction and deprive these institutions of their latent power to carry on hostile propaganda.

In answer to the accusation that the NSB was sponsored for this purpose it must be said that the Reich Commissioner consistently refused to form a government from these parties. That parties which were already in existence in the country, or were newly formed, and who identified themselves ideologically with the occupying power were encouraged by the latter is likewise not disallowed by international law. As no official administrative powers were vested in the NSB, and since political organizations had no influence on the administration, the fact that in 1943 this party declared itself to be the representative of the political will of the Dutch nation is immaterial. It always has been and continues even today to be the practice of the occupying power to encourage and assist political parties friendly to them.

The charge of Germanization is also unjustified. By their origin the Dutch people were always considered to be Teutonic and it is, therefore, not possible to make Teutons out of them. When we look into Dutch history we find that for centuries the Netherlands belonged to the Federation of the German Reich. If you roam through the country you can still see in Groningen’s coat of arms the German Reich eagle, in the same way that Amsterdam’s coat of arms has borne the emblem of the German imperial crown since 1489. The first and the last Salic Emperors, Konrad II and Heinrich V, died in Utrecht. That the occupying power should desire to orientate toward central Europe a country cut off from the sea and her colonies by the blockade was understandable, but it never was intended, certainly not by the Reich Commissioner, to eliminate the national traits and the independence of the Dutch. The defendant was perfectly right when in his speech of 9 November 1943, in Utrecht (Document Book 102), he declared among other things:

“We ourselves would cease to be Europeans should we fail in our mission to tend and to promote the growth of these flowering cultures of the European peoples, each with its own individuality, and bound together with blood ties.”

Equally unjustified is the charge of the French Prosecution that pressure was used to bring the Netherlands into the war. There was nothing against enlisting volunteers of Dutch nationality in the German Armed Forces; Article 45 of the Law of Land Warfare only forbids compulsory recruiting for war against one’s own fatherland. This did not make those who took up arms voluntarily immune from the regulations of the Dutch penal code, as mentioned by the Prosecution, which during the war were made more severe by royal edict. The same holds true of the citizenship regulations for these volunteers and regulations concerning marriage to German nationals. Inasmuch as these orders of the Reich Commissioner had no legal value outside the compass of the German Reich, the legal deduction that they do not constitute an abuse of sovereignty in the sense advanced by the Prosecution can be put forward with a clear conscience. That a press which notoriously placed itself in the opposite camp of the occupying powers was silenced goes without saying.

The French Prosecution see a further suppression of sovereignty in the stifling of intellectual life by the closing of the universities and the demand for a declaration of allegiance. Special mention is made of the closing of the University of Leyden. But the University of Leyden was closed because of rioting by the students, and being a security measure of the occupying power, it cannot be an infringement of international law. In the same way, the demand for a declaration of allegiance is not at variance either with the Rules of Land Warfare. According to Article 45 the population of an occupied country may not be forced to take the oath of allegiance; according to the wording of the declaration all that was demanded was to abstain from any action directed against the German Reich or its army. Inasmuch as the population of an occupied country is bound to obey the occupying power exercising the authority of the state, this declaration, which does not make any actual demands, cannot be considered a violation of international law.

The organization of the administrative authorities was taken over almost as a whole, and maintained in the face of an entirely un-co-operative, even hostile attitude; especially did one refrain from interference in the courts. The only reproach in this direction is the dismissal of the President of the Court of Justice at Leeuwarden. The defendant has definitely declared that he assumes responsibility for this case, and he has a perfect right to do so. The occupying power may interfere in the field of the judiciary only when the purpose of the occupation is in jeopardy. If a judge refuses to administer justice, even though the cause for his complaint was removed by the Reich Commissioner, as was the case in this instance, then the occupying power has the right to remove from office the judge concerned.

The French Prosecution then continue, asserting that the defendant initiated a series of acts of terror. In the course of the presentation of evidence on this point we have heard what the circumstances of this collective punishment were. Moreover, Kammergerichtsrat Rudolf Fritsch and President Joppich showed by their testimony that the defendant was extremely conscientious in the application of the right to grant pardon, and that he limited capital punishment as much as possible. And as regards the special police courts, both the defendant and the witness Wimmer have proved that this was a procedure applied in exceptional cases only, headed by an official of the judiciary, and that the defendant had the right to the services of a freely chosen defense counsel who could also be of Dutch nationality; a procedure which lasted a short time only—about 14 days. Even today we find the individual occupying powers using this procedure in a much severer form in exceptional cases. In July 1944, as a result of a Führer order, the regular courts were abolished and saboteurs and members of the resistance handed over for sentencing, in spite of the protests of the defendant.

One of the main points of the Prosecution is the question of hostages, and I must therefore discuss this in detail. Dr. Nelte has already generally discussed its legal aspect and I refer to his statements.

In RF-879 the Prosecution have picked out two particular cases: The so-called hostage shootings at Rotterdam and the shootings after the attempt against the Higher SS and Police Leader Rauter. Already in the course of his first interrogation by the Prosecutor, the defendant, in connection with the first case, spoke of the Armed Forces’ demand for 25 to 50 hostages. The witness Wimmer confirmed that these hostages had been demanded by the Armed Forces, that through the defendant’s influence this number was finally reduced, to 5, and that the Higher SS and Police Leader was entrusted with the shootings.

The relations between the Armed Forces and the Reich Commissioner, as well as the relations between the Armed Forces and the Police, were regulated by the decree dated 18 May 1940 (Reich Law Gazette, Part 1, Page 778, Document Number 1376-PS, Paragraphs 2-3).

In order to convict the defendant, the Prosecution submitted the accusation but not the testimony of General Christiansen. In the course of the interrogation the witness did not take the oath.

The record proves that: a) The order was issued by the Armed Forces because of serious cases of sabotage and was analogous with the so-called Law Governing Hostages promulgated in Belgium and France; b) the hostages were then arrested by the German Police on the order of the commander of the Armed Forces in Holland—“An order is an order”; c) the High Command of the Armed Forces or Command, West insists on the execution of the orders in spite of all representations; d) execution by the Police; e) Proclamation I made in the judicial department of the headquarters of the Armed Forces in Holland. Proclamation II drafted by the Higher SS and Police Leader.

Would the Tribunal consider the argument for the justification of the defendant to be sound if he used the arguments of General Christiansen for his justification?

As to the second so-called hostage case, it concerns the consequences of an attempt directed in March 1945 against the Higher SS and Police Leader, SS Obergruppenführer Rauter, the highest police officer in the Netherlands, who was directly subordinated to Himmler. If we recall the consequences when in 1942 the tyrant Heydrich was murdered by the Czech patriots, we can well imagine how Himmler in 1945, at the height of his power, clamored for vengeance for the plot against one of his nearest and most important officials. It is likewise understandable that the defendant too, as head of the administration, ordered deterrent measures to be taken, under the heading of “general prevention,” after an attack had been made on one of his commissioners general. But he did not demand any hostages; he merely asked for the execution of sentences passed at legally conducted criminal cases. Exhibit Number RF-879 proves the truth of these assertions since the witnesses Schöngarth, Lages, Kolitz, and Gerbig unanimously confirm that only men already sentenced to death were shot, and not 200 but 117, some of them possibly before the date originally fixed for the execution. This also is confirmed by the Criminal Commissioner Munt in D II of the report of the Dutch Government, and likewise by Dr. Friedrich Wimmer, who was heard as a witness before the Court. In this case it was not at all a question of hostages in the real sense, but the justifiable execution of saboteurs, plunderers, et cetera, from the point of view of the occupation, and which was called the shooting of hostages in order to frighten the population. The fact that the defendant succeeded in getting the number of 500 real hostages as originally demanded by Himmler reduced to 117 orders of execution can certainly not be a reason for making him responsible for Himmler’s cruelties.

The Prosecution furthermore asserts that the defendant in his capacity of Reich Commissioner had agreed to, directed, and supported the deportation of an enormous number of Dutchmen to Germany. The principle which the question of the use of foreign workers involved has already been thoroughly discussed by other defense counsel. May I be allowed to add a few remarks on this point of the Indictment. According to information which I received from the Office of Statistics, the prewar unemployment figures of 300,000 to 500,000 men out of a population of 9 million was a chronic situation in the economic life of the Netherlands, which was more or less rightly considered to be one of the richest countries of Europe. When the country was occupied and the Reich Commissioner took over the governmental power, he considered it his duty to deal with unemployment in the interests of order and peace.

It was evident that this could not be achieved according to liberal principles, because even in countries adhering to the liberal economic order, the whole economy was directed to meeting the requirements of war conditions. Until 1943 the employment of labor was based on the voluntary principle. The defendant himself stated that a certain amount of economic pressure was used. He had found Minister Speer in particular very much in favor of his plan to transfer German undertakings from the Reich to Holland, thus enabling the workers to be used in their home country.

In 1943, three age groups of young unmarried men were called up by the labor offices, but not by compulsion. When in 1944 the Reich demanded 250,000 workers, the Reich Commissioner refused, and this has been confirmed by Lammers. The witnesses Hirschfeld, Schwebel, and Wimmer have confirmed that the “man-hunting action” of the autumn of 1944, which rounded up all men of military age among the population, was a drive by the Armed Forces, for which the defendant cannot be made responsible. On the contrary, and this fact must be recorded here, the Reich Commissioner softened these measures by issuing 1,000,000 certificates of deferment and by urging proper transport, as well as by mobilizing the workers. And in this connection it should not be forgotten that the steady growth of the resistance movement rightly caused the Armed Forces to fear lest the massing of people in the southwest provinces might represent a grave danger to the occupying power.

Seen from the legal aspect, it must be pointed out that the defendant was bound by the orders of the central offices within the framework of the Four Year Plan—that but for these orders and demands he would never have sent workers to the Reich, also that where even the execution of these orders represented a violation of the laws of humanity, he raised protest. In his actions the defendant upheld the laws of humanity.

As to the Prosecution’s next point, the so-called economic looting of the country, I likewise refer to the general principles I gave at the beginning. Raw materials were requisitioned from the very start of the occupation in accordance with the Four Year Plan with the help of the Dutch authorities, who thus were able to prevent unnecessary hardship. The defendant would naturally have preferred to keep the stocks within the territory of his own administration. When requisitioning had to be carried out, the defendant insisted on fair compensation being given and he also prevented the transfer of Dutch concerns, as for instance the margarine factory in Dortrecht or the Leyden Cold Storage Works. On the insistence of the Reich Commissioner, Göring promised that the Dutch people should not be in a worse position than German citizens and, therefore, as far as the defendant is concerned, it would appear that Article 53 of the Hague Rules of Land Warfare, if not too narrowly interpreted, had been adhered to.

The report of the field economy officer under the Armed Forces commander in the Netherlands, dated 9 October 1944 (Exhibit RF-132), and of Lieutenant Haupt (Document Number 3003-PS, Exhibit USA-196) prove that the requisitions were in the first instance carried out by the Armed Forces. The latter points out that the whole position is made more difficult by the fact that Reich Commissioner Seyss-Inquart is still in the country, although to all intents and purposes he had resigned. This certainly shows that as far as it lay within his power, the defendant always tried to oppose or reduce hardship in this sphere of his activity. In a total war the removal by the Armed Forces of stocks of war material and rolling stock after the invasion, and when the enemy was approaching, is likewise in keeping with international law.

The state of emergency created by the war called for the redirection of Dutch economy in Europe. Before the war, according to official statistics, 39 percent of the employed population were engaged in trade and industry, 23 percent in commerce and transport, and 20 percent in agriculture. Cut off from the rest of the world, navigation was at a complete standstill. To give an example—60 percent of the trade passing through the port of Rotterdam consisted of German goods. The highly developed agricultural industry was based on improved and intensive cultivation, dependent on artificial fertilizers from South America and concentrated fodder from Canada. We have learned from the testimony of Dr. Hirschfeld how relatively well Dutch agriculture and particularly the world famed cattle-breeding industry survived the war. This was only made possible by the understanding and collaboration of the Reich Commissioner with the Dutch administration offices and the support the defendant gave them.

The extension of trade over the continent of Europe, practically the whole of which during the war was controlled by Germany and her allies, no doubt offered good markets for Dutch trade and industry. It was, therefore, natural that also as regards finance, the economy had to be brought in line with conditions in the German Reich, or rather in the European economic area. It was necessary to regulate the financial economy if only for reasons of price policy. It would exceed the limits of this Trial to state more details here.

May I only point out to the Prosecution that the defendant had no part in fixing the amount of the occupation costs and was not even able to examine them. Only the civilian budget of the Reich Commissariat was settled by the Reich Commissioner and had to be approved by the Reich and audited by the Reich Treasury. In agreement with the Dutch agencies, civilian requirements were set at 3 million guilders per month, which was not exceeded. On the contrary, at the end of 1943, a saving of 60 million guilders had been affected, and this remained in the Netherlands.

The lifting of the customs barriers in interstate traffic was justified by the joint price policy and could only benefit the Netherlands. Likewise the ratio of the mark to the guilder was also fixed by mutual agreement. A difference arose for the first time when the blocking of foreign exchange was lifted. Here the views of the former Dutch Secretary General, Trip, and those of Commissioner General Fischböck differed. The defendant, who after all was not a financial expert, submitted this important question to the central Reich authorities for their decision, and the Defendant Göring has expressly stated during the hearing of the evidence that he decided in favor of Dr. Fischböck. The defendant therefore cannot be charged with criminal responsibility, not even that of a culpa in eligendo, if in the place of Secretary General Trip, who had resigned, he now appointed Rost van Tonningen, who was a former commissioner of the League of Nations and therefore a first-class financial expert.

The Defendant Funk has also testified here that he always considered the clearing debts as real debts. In the Netherlands Government report it is pointed out that the financial demands of the Reich amounted to approximately the same in all the occupied western territories and that only the methods differed. If Germany had won the war, the method employed in the Netherlands would have produced the result that the Netherlands would have had a real claim amounting to 4,500,000,000 guilders against the Reich. The whole question therefore is not a matter for a criminal trial, but rather is one that should be dealt with in the peace negotiations. Furthermore, an exact account was kept of everything. It even went so far that every time a member of the Armed Forces boarded a train with a free ticket, the conductor of the Netherlands Railroad Company always made a careful note of it.

As far as the alleged looting of museums and libraries is concerned, as well as the looting of the royal property, to save time let us refer to the evidence which proved beyond doubt that the defendant was particularly mindful of the need to safeguard the world famous public art treasures and that he reduced any arbitrary demands of the Reich offices, if there were such, to a minimum.

Insofar as any objects not essential for the conduct of the war, such as, for instance, art treasures, libraries, et cetera, were taken away, the defendant had no part in this. The few pictures which he bought for Vienna he acquired in the open market. As for the royal property, the instructions he issued were such that the confiscation of this property was no more than a demonstration. That this is true is shown in the Dutch Government report. The Rosenthaliana library which has been mentioned so often, did not reach the Reich, as the defendant had it stopped at Groningen after it had been removed against his will. The Arnhem case would likewise appear to have been cleared up by the witnesses Dr. Hirschfeld and Wimmer, and the report of the field economic detachment (Document 81).

The Jewish question has also a certain connection with the economic problems. Before I deal with this main point I must make the position of the Police in the Netherlands clear. The Prosecution seeks to establish that the Police, and by that is meant also the German Police, particularly the Security Police, was under the defendant. This attempt falls short when it is remembered that all the signatories with the exception of the Soviets hold that the Police is actually a part of the civilian, particularly the domestic, administration. The situation in Germany was this: De facto, and not de jure, Himmler was independent, more powerful even than any other minister, although he was nominally State Secretary of the Ministry of the Interior. The strictly disciplined and centrally directed SS was subordinate to him in his capacity as Reichsführer. The Defendant Keitel testified on 5 April 1946 that from the outbreak of war the SS became more and more an independent power factor in the Reich. He and those who worked with him had no full knowledge of the extent of Himmler’s powers, and Himmler and Heydrich had usurped the jurisdiction over life and death in the occupied countries by the frequently mentioned Führer order.

What was the situation in the Netherlands?

1) The Führer decree of 18 May 1940 already shows that the German Police was not part of the Reich Commissioner’s organization, nor was it subordinated to him. For it says in the decree: “The Police is at the Reich Commissioner’s disposal,”—which would not have been necessary if it had been a part of the Reich Commissioner’s office.

Thus even though the Reich Commissioner is the supreme governing power in the civil sphere, the Police is not a part of it.

2) In Decree Number 4 the Reich Commissioner named the administrative agencies so that the Dutch could clearly see how it concerned them, without being affected by the splitting up of the Reich authorities. With regard to the Police, that is, the German and Dutch Police, a second Commissioner General was appointed for security affairs (Higher SS and Police Leader). According to Article 5 of this decree the Higher SS and Police Leader has under his command:

a) The German Police and Waffen-SS (For the Dutch this order of things was declarative, for the Higher SS and Police Leader was appointed by the Führer on Himmler’s recommendation, without the Reich Commissioner being consulted. Rauter presented himself to the Reich Commissioner as having been already appointed, and the Reich Commissioner would never have been able to appoint the commander of the Waffen-SS, which opinion is also shared by the Prosecution).

b) The Dutch Police (This order of things was constitutive, because the Reich Commissioner was responsible for the Dutch Police).

The Dutch witness, Dr. Hirschfeld, who was Secretary General throughout the occupation, definitely confirmed that Rauter was directly subordinate to Himmler, and that the apparent unity of the Police and administration, according to the decree, did not exist in reality.

On Page 21 of his book Axis Rule in Occupied Europe Raphael Lemkin defines the task of the Police as being the liquidation of politically undesirable persons and Jews, just as the main responsibility for the seizure and deportation of the workers in the occupied countries was borne by the Police.

THE PRESIDENT: Would that be a convenient time to break off?

[The Tribunal adjourned until 22 July 1946 at 1000 hours.]