Afternoon Session

MARSHAL (Lieutenant Colonel James R. Gifford): May it please the Tribunal, the Defendant Hess is absent.

DR. FRANZ EXNER: We are dealing with crimes which were through toleration committed. As far as Jodl is concerned, the following applies: What an officer or official is legally bound to do or to prevent depends on the regulations governing his jurisdiction, and we know how strictly Hitler insisted on their being adhered to, how sharply he managed to demarcate the spheres of action of the political and military leadership, the military and the SS. This indeed was the reason why Jodl took every opportunity to oppose the plans for extending the SS. For one thing was clear: Once something fell into the sphere of the SS, the Armed Forces lost their right to have any say in it. It does not therefore mean much, for instance, that Jodl was present at a discussion between Hitler and Dr. Best, at which one of the things discussed was terrorism in Denmark and the way to fight it (RF-90). The so-called “counter-murders,” if such were really discussed, were not heard by Jodl—he was not present throughout the session. His presence at this session does not mean much, for the whole matter concerned occupied territory and did not concern the Chief of the Armed Forces Operations Staff, who was brought into this meeting because of other matters discussed there. Thus, even if Jodl had heard more drastic things at that time than he actually did, any interference would have been out of the question and would have been rejected at once.

The reproach of having tolerated things also assumes that the possibility existed of preventing the crime. In the case of Jodl we are mostly concerned with Führer orders which it is said he should have prevented. But enough has already been said here about how matters stood with regard to influencing Hitler’s decisions. As long as his decision had not yet been made, good arguments could, under favorable circumstances, still impress him; but once his decision was made, it was irrevocable. Any opinion to the contrary is simply based on ignorance of the facts.

In the course of time Jodl did actually develop other methods for influencing decisions of the Führer, or at least for influencing their practical effects. He used dilatory tactics; either he waited until the matter would perhaps be forgotten, or else he created difficulties and raised objections, using a type of counterargument adapted to Hitler’s way of thinking—the order regarding commissars is a case in point—or he sent for opinions from various departments in order to gain time—as in the case of low-flying airmen. If the order had to be published, he often inserted in it on whose application the order had been issued, in order to show the commanders-in-chief that he did not identify himself with this matter—as in the case of the Norwegian villages. Or he tried to influence the practical application by overlooking failure to carry out the order—as in the case of the Commando Order, et cetera. But if one thinks that he could simply have refused to draft an order which was contrary to ethics, one has only to look at the Commando Order, where this method had exactly the opposite effect to what was intended.

I now come to the second part of the Latin saying I quoted: The deed in itself is no crime—nisi sit mens rea.

This is the last point in my statement and is at the same time the most difficult and the most important in a modern criminal trial.

“No guilt, no punishment”; this principle has been accepted in all civilized states since the Renaissance, even though different views as to the nature of guilt may exist in some places.

May I first make a short comparison between the Anglo-American legal view and that held on the Continent, for example in Germany. It is important when judging some cases.

I have already had to touch on an important point of the question of guilt when discussing aggressive wars. If one really seeks to make Jodl, the General Staff officer, responsible for waging these wars, it is at any rate of decisive importance to know how he viewed the whole state of affairs. If he believed, on the basis of the reports he received, that facts existed which—if they were true—justified the waging of war, then Jodl cannot be reproached with having knowingly waged an unlawful war. This applies even if his assumption was based on mistakes. Such mistakes exclude design. In a decision, Green v. Tolson, it is stated:

“In common law a reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has always been held to be a good defense.”

In another decision Regina v. Prince it is stated:

“It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present in the prisoner’s mind and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his act no criminal offense at all.”

In a third case, Commonwealth v. Pressby (an American decision) a good example is given:

A sentry shoots at his commanding officer who is approaching him, in the belief that he is an enemy. This last example is closely related to the wars of aggression which are to be judged here.

As a rule, ignorance of criminal law is no excuse under British law. However, the following principle is worthy of note:

“If, however, there is a doubt as to a question of law, a person cannot be convicted and subjected to imprisonment if he has merely acted on a mistaken view as to the law.”

Naturally a mistake about preliminary questions in civil law can also exclude criminal intention:

“If a person takes what he believes to be his own, it is impossible to say that he is guilty of felony.”

This rule could also be significant in our field, too, for mistakes regarding the regulations of international law.

Yet in this doctrine of mistakes I see a certain difference between it and German law, for in German law any mistake, even if resulting from negligence, excludes intention. In British law this seems to apply only to “reasonable” mistakes “unaccompanied by negligence.” If that sentry had shot too soon, without sufficient investigation, he would indisputably under German law only have to be sentenced for killing by negligence. In England and America, if I understand it correctly, this mistake by negligence would not be taken into consideration at all, and this soldier would have to expect a sentence for intention to kill. But this difference in the conceptions of law should not play any part in our case, for one can hardly reproach Jodl with having come to his interpretation of the situation on the basis of a hurried and careless examination of his reports.

There is one more point of divergence in the law.

I read in an English decision that intention and deed must coincide in order to constitute a crime, but we take a more precise view of this coincidence. According to German law, a person can be punished for intentional killing, only if he foresaw the fatal results and wished them. On the other hand in the decision already quoted in Regina v. Prince it is stated: “If a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk.”

According to German law this man could be punished only for aggravated bodily injury, never for intentional killing (Paragraph 226 of the German Penal Code). That the “result,” which may rest on chance, should turn the act into murder—is rejected by us as unjust.

I will not read what follows, in order to save time, and I wish to omit Paragraph 1, on Page 110.

Lastly, in a third point, which is of importance here, the views again agree. Every serious crime must be intentional, although the intent need not be linked with the consciousness of doing something criminal, but with the consciousness that it is not right to act in such a manner.

“To constitute a criminal act there must, as a general rule, be a criminal intent. The general doctrine is stated in Hale’s Pleas of the Crown that ‘where there is no will to commit an offense, there can be no transgression.’ ”

In German law it has been argued, for a long time whether the perpetrator must know that he is acting in direct contravention of the law, or whether it is sufficient for him to know that he is doing something contrary to his duty. The prevailing opinion, which has also been taken over in the drafting of our German Penal Code, states: “The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense.” I was greatly interested to find the same idea, expressed in almost the same words, in a British decision Green v. Tolson:

“It must at least be the intention to do something wrong. That intention may belong to one or another of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed.”

Thus, according to English law, knowledge that it is not allowed to act thus is one of the elements of intent:

“There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offense.”

This decision quotes some exceptions to this principle, which do not interest us here. They concern bigamy and seduction, where positive provisions of statute law are involved, as well as certain offenses against public order, et cetera.

Our question now is: Was Jodl aware of wrongdoing when he prepared and passed on the various plans and orders of which he is accused today? According to my innermost conviction: No.

The only evidence which the Prosecution have produced is the reproach: Why, if he had a clear conscience, was he in so many cases so intent on observing strict secrecy? There is an answer to this: In military questions there are manifold reasons for not allowing certain things to become known. This was so before the war and all the more so during the war, and even now after the war deep secrecy shrouds the atom bomb, to cite an example. Such observance of secrecy need not be connected with a guilty conscience. And if Jodl says he had arranged that one of the two Commando Orders should—apart from other reasons—be kept secret because of its obnoxious final regulation, he did so, presumably, for the sake of the honor of the German Armed Forces, and certainly not because he thought that he himself was doing something wrong by passing on the order, an order which he had after all not drafted himself, and for which he was convinced he was not responsible.

This last fact must be stressed. It is of general importance. In all Jodl’s military preparatory work, whether he was making plans for wars, or drafts of orders, or memoranda, the point is not merely whether he knew that this war or that decree was contrary to law, but decisive is whether he knew that by his co-operation, by his actions, he was doing something wrong. That Jodl did not have a bad conscience seems to me to be clearly shown by the fact that before his capture he had 3 weeks in which to burn most of these documents but did not do so, because he was convinced that he had nothing to conceal.

When drawing up these orders, he was not conscious of wrongdoing. He could not be, if only for two reasons: On the one hand, because he felt himself bound by the Führer’s orders, on the other hand, because—apart from a concrete order—he was convinced that in his position as Chief of the Armed Forces Operations Staff he was in duty bound to act in this way. Let us look into this more closely:

I will not speak any further about the order and its legal meaning. One point, however, appears to me to be in need of elucidation: Mr. Justice Jackson quoted Paragraph 47 of the German Military Penal Code to prove that according to German law an order by a superior officer does not excuse the subordinate.

Incidentally, it is striking that in the case of the conspiracy British-American law is brought in, whereas in the case of this order, German law is drawn on—in each case according to whichever is the less favorable to the defendant. I do not know, however, whether Mr. Jackson would have referred to Paragraph 47 of the Military Penal Code, if he had known how it was interpreted by the highest courts, and what the real legal situation in Germany was.

It is first of all necessary to note that at the beginning of Paragraph 47 there stands the principle: “Should, by the execution of an order in the course of duty, a criminal law be infringed, the superior officer issuing the order is alone responsible.” And now comes the exception which practice has cut down to the absolute minimum for the sake of maintaining military discipline. It is based on the point of view that a subordinate is subject to punishment as a participant only if the order was not binding on him—for instance, because of its nature it did not come within the framework of Armed Forces’ tasks—and if the subordinate was aware that the action ordered had a crime or an offense as its aim. The offense must thus be directly intended by the person issuing the order, and the subordinate must be certain of this. That he could and should have realized this is not sufficient. And, even if the subordinate is responsible, in a case of slight guilt punishment may be waived.

The whole ruling is very much contested, but one can see how the courts have limited its application in order to shield the obedient soldier as much as possible. Actually, cases of this kind were very rarely punished. Jodl does not remember a single case in his 30 years of service.

I must insert something here, because a few days ago Mr. Jackson made a late presentation of a document which concerns this problem (3881-PS). These are statements made by Dr. Freisler, as President of the People’s Court, during the trial of those who took part in the attempt on Hitler’s life on the 20th of July 1944. Freisler was always considered in Germany as a caricature of a judge. His undignified shouting in that murder trial was reproduced here before us by the Prosecution a few months ago in a sound film. What this legal expert meant to say—as far as the meaning of his remarks, torn from the general context, can be understood—was: When an officer ordered a subordinate to give assistance in murdering Hitler, this order did not justify the one who obeyed.

Certainly, Freisler’s authority is not required to establish this. If ever a military order was issued which was outside the competence of the Armed Forces and was, therefore, not binding and did not exculpate, it was the order to murder the head of these very Armed Forces. But how an order by some officer to murder the head of the state can be compared with the order of the head of the state to commit an act contrary to international law is incomprehensible to me. However, I will not dwell any longer on this.

It will not be possible to understand Jodl’s position or form a correct judgment of his actions if we do not visualize clearly the two men who here confronted each other. It is very easy for the Prosecution. Were Hitler still alive, he, as the head of the major war criminals, would sit in the first place on the defendants’ bench and would be considered as the prime agent and source of all the terrible things that have happened. Now that he is dead, his person is belittled when judging the other defendants, and their conduct is treated almost as if he had never existed at all. This despot, this infernal power, as Jodl called him, cannot be passed over as a negligible quantity when the question is to judge justly the commissions and omissions of his immediate entourage. During these months I have again and again been reminded of the combination of genius, madness, and crime which was once depicted by the discerning Cesaro Lombroso. In history it is success that has the last word on the worth and worthlessness of man. Therefore, history’s verdict on Hitler will perhaps be a crushing one. But one must not forget his beginnings; when one compares Germany’s position toward the end of 1932 with that at the end of 1938, one is not surprised at the incomparable prestige which he had at the very time when Jodl came into close contact with him.

Jodl now stood before this man. Jodl, an honest soldier, extraordinarily gifted, but never striving to be anything but a conscientious soldier; a sober realistic mind, ill-disposed toward all diplomacy, all political machinations, brought up in the ideals of the German officer corps—bravery, faithfulness, obedience—trained according to the 100-year-old tradition of the German General Staff, who knew only fulfillment of duty, selfless work, and ever more and more work.

That this man, working at Adolf Hitler’s side, was bound to come under his influence is self-evident. One must consider the time at which this took place. There could of course be no relationship of mutual confidence, but Jodl was also not the man to submit without opposition. There were clashes and explosions enough. Jodl was regarded as the man who dared to oppose the Führer more than anybody else. He could, as Kesselring reported, stand up against him with a curtness which at times reached the limits of what is militarily permissible. For this very reason I do not believe that it is merely the receiving and obeying of commands which can make us appreciate fully Jodl’s behavior during these years. It was much more the wider conception of the fulfillment of duty: Complete devotion to that which had been assigned to him as his task at a critical time. One should realize and appreciate the situation in which Jodl found himself.—His country’s struggle for existence, the demands of a war which was becoming increasingly horrible, and at the same time the views of his Supreme Commander which disregarded all traditions about what was permissible and not permissible in a war. It was quite clear that Jodl was bound to come into conflict—into conflict with Hitler and into conflict with himself.

Permit me to make a comparison: You, Your Honors, as you have already informed us, feel yourselves bound by the Charter of this Tribunal. Perhaps some of you have been assailed by doubts as to whether all the conditions of this Charter conform to international law as at present understood and to the generally recognized principles of law. But you have rejected such doubts, since you, as judges, consider yourselves bound by the rules which your four governments have agreed upon.

Jodl, as a General Staff officer, may have felt himself bound in a similar way to support the orders of his Supreme Commander, even if doubts regarding their admissibility in international law may have assailed him here and there. But he considered himself bound by his office to draw up plans for war without examining whether and under what conditions they were carried out; he had to formulate and issue thousands of orders, even if he disagreed with some of them. Where neither remonstrances nor delaying tactics had any effect, he had to submit. As a General Staff officer he had a purely auxiliary function. That he might be doing wrong while fulfilling this function according to the best of his knowledge and conscience never even occurred to him.

It is said now: Jodl should under no circumstances have taken any part in this or that affair. What should he have done? If one reproaches somebody with having acted in a certain way, then one must be in a position to state what action would have been right in that situation. It is now said that he should have resigned. This, of course, would have been an easy way out. That course could be taken in peacetime, but in wartime it was quite different.

Jodl tried repeatedly to get out of the OKW and to be ordered to the front, but in vain. Requests to be relieved of his post were altogether futile unless the Führer desired it, as in the case of Von Brauchitsch and Von Leeb. In wartime he strictly forbade his generals to apply for release. That was desertion he said. The private in the front line could not resign when he found things uncomfortable. The general, too, had to remain at his post. In 1944 this order was repeated in writing; it was still more peremptory and the reasons more potent. If a general wanted to quit for reasons of conscience, he was told that the Führer himself bore full and sole responsibility for his orders; all that the generals had to do was to be responsible for their strict execution. Resignations on such grounds were not soldier-like and would be criminal.

Therefore, Jodl could not resign. Should he perhaps have simulated illness? This also is desertion and in wartime a crime punishable by death. Is it possible seriously to expect an officer, brought up in the good old traditions, to betray his country in time of need like a coward—his country, to which he had devoted his whole life—which would mean that he would not be able to look any new recruit in the face? I do not believe so.

Thus, there was only a third way out: Murder and revolution. In peacetime this would have meant civil war—in wartime, the immediate collapse of the front and the end of the Reich. Should he then have cried: Fiat justitia, pereat patria?

It really appears that the Prosecution holds the view that such conduct could be demanded of the defendants. An astonishing idea! Whether murder and treason can ever be justified ethically had better be left to moralists and theologians. At all events, jurists cannot even discuss such an idea.

To be obliged on pain of punishment to murder the head of the state? A soldier should do that? And in wartime? Those who have committed such crimes have always been punished, but to punish them for not doing so would indeed be something new.

Naturally there are limits to legal obligations for jurists too; but in a state of conflict which offers only this kind of solution, the old saying applies: Ultra posse nemo obligatur.

Jodl was no rebel. His conscience told him: The fatherland is in need. Every man to his post! Jodl’s place was at the head of the Armed Forces Operations Staff. He did not enter this post of his own free will; he did not keep it of his own free will. It was a hard duty. He fulfilled the task which this post imposed on him according to the best of his ability and conscience—up to the bitter end.

Your Honors. Allow me in conclusion to recall a personal reminiscence, which throws more light on Jodl’s personality. I made his acquaintance about 20 years ago in the house of his uncle, the philosopher Friedrich Jodl, in Vienna. There I had a conversation with him on training for the career of an officer. The young captain spoke with such moral earnestness, and what he said was so far from anything that could be called militarism, that I have always retained it in my memory. I then lost all contact with him until last autumn, when I received the surprising summons to defend him here. My first thought was: “This gallant soldier must be helped.” But I doubted whether I should undertake this, as I am not a professional attorney. But when I met him in the courthouse for the first time, he said something to me which swept away all my doubts: “Rest assured, Professor,” he said, “if I felt a spark of guilt in me, I would not choose you as my defense counsel.”

Your Honors, I believe that these are the words of a gentleman, not of a criminal. I ask that Generaloberst Alfred Jodl be acquitted.

THE PRESIDENT: I call on Dr. Steinbauer for the Defendant Seyss-Inquart.

DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): Mr. President, members of the Tribunal:

Nuremberg, the old, venerable, imperial city, which has given not only to the German nation but also to the world one of its most significant painters, Albrecht Dürer, an unsurpassed sculptor, Veit Stoss, and the Meistersinger Hans Sachs, has, in its ruined state become the stage for the greatest criminal trial which legal history knows. Not only has Nuremberg seen within its walls the pomp of the old emperors, but the rallies of the NSDAP also took place there, year after year, as a part of that propaganda machine which knew how to put into motion millions of people by a gigantic, but also diabolical stage management, with flags and standards, drums and fanfares under the slogan of equality of rights for Germany in order finally in its extravagant aims, to lead a nation which has given humanity so much that is good and beautiful to the verge of ruin.

We have heard the Indictment here which tries to prove in a comprehensive way that these men had conspired to conquer the peaceful world by waging wars of aggression. It was said that the waging of these wars not only violated the treaties which were supposed to prevent war and, furthermore, the rules for a humane conduct of the war but had also trodden under foot the basic rights of humanity in the most contemptible way. We saw for months how mountains of documents and a long chain of witnesses were supposed to confirm the Indictment and, on the other hand, how the Defense as keeper and servant of the law was striving to help the Tribunal discover the truth. But in the gallery the representatives from all parts of the world were seated, and only too often the whole world held its breath, when there was a break in the dark fog banks which again and again gave us a glimpse into the depths of unsuspected crimes. But outside, before the gates of the courthouse, stands a deeply moved German people, whose former leaders the defendants were. But regardless of how the trials will end, the Defense must be given credit for one thing—namely, that with regard to the question of the guilt of the German people, one will never again be able to talk about complicity or collective guilt—perhaps rather about collective disgrace, because they were German men under whose leadership crimes of the most horrible kind were committed. The curtain now rises on the final act of this world tragedy, to give a hearing once more to the Defense and then to pronounce a sentence which must not only conform to fundamental legal principles but also insure that crimes such as the Prosecution describe will forever be prevented.

On 20 November 1945, at the beginning of the Trial, the presiding judge stated that this Trial is of great importance for millions of people in the whole world. For this reason, he said, everybody participating in them has the solemn responsibility of fulfilling his duty without fear and without favor to anybody, and according to the principles of law and justice.

This duty was often an almost too heavy burden for the Defense Counsel, not because of the extent of the material for the Trial, not because of the abundance of new legal questions, but because things were revealed here which are so monstrous and abysmally degrading that a normal brain would reject even the possibility of their existence. In so saying I am not thinking of the prepared human skin, of the pieces of soap made out of human fat which were shown to us; I am not thinking of the systematic way in which millions of innocent people were tormented, tortured, beaten, shot, hanged, or gassed. No, I am thinking of the many touching individual pictures which have made the deepest impression on me personally and probably also on everyone else.

Once more, I hear the report of the village priest Mogon regarding the shooting of the hostages from Choisel Camp in Châteaubriant:

“My father, we have not your religious conviction, but we are united in the love for our native country. We wish to die so that the French people will be happier.”

I visualize the march of the Jews from Dubno which slowly approaches the place of execution, how the individual victims help each other to undress, how the little boy persuades his parents to die bravely, and how they carry an old woman whose lameness prevents her from taking the few steps to the pit where the deadly bullet from the submachine gun awaits her. I once more hear the testimony of the French journalist, Marie Claude Vaillant-Couturier, who describes in deeply touching words how the sacred experiences of maternity and female honor were shamelessly trampled under foot in the extermination camp.

Auschwitz alone has swallowed up 3½ million people—men, women, and children. That is really the most terrible weapon of the Indictment, that the spirits of all these innocent victims stand beside the prosecutor, admonishing and demanding revenge. But I do not stand alone, either. The many innocent war victims on the German side, women and children who have fallen victim to the terror attacks which violated international law, in Freiburg, in Cologne, in Dresden, in Hamburg, Berlin, and Vienna, and in almost all other German cities, stand beside me. My comrades from the Armed Forces, who, as honest and decent soldiers, have sacrificed their lives for the fatherland by the hundred thousand, young and old, faithful to their oath of allegiance, also stand by my side.

But even if they did not exist, if the defendant stood quite alone before his judges, then even more is it my sworn duty as a lawyer to stand helpfully by his side and be his shield and defense, and, faced with the mass of the most terrible, incriminating documents, to call to you, Honorable Judges:

Do not judge in wrath, but as our Austrian poet Wildgans, who was a judge himself, wrote in the album of a young judge: “Suche das Edelreis, das unter Dornen blüht...” (Seek the precious shoot which grows among the thorns).

Before I consider the Indictment in its individual points, I should like to sketch in a few short words the personality of the defendant. The words in Schiller’s tragedy “Wallenstein” apply to him, too: “Von der Parteien Hass und Gunst verzerrt, schwankt sein Charakterbild in der Geschichte” (Torn by the hatred and favoritism of parties, his character wavers irresolutely in history).

The Prosecution in the trial brief call him a cunning, coldly calculating, political opportunist who had a mission before his eyes. It said it is notoriously known that he misused his position as minister in order by his double-dealing to deliver Austria to the conspirators; he has committed atrocities in Poland and in the Netherlands in cold blood, and has trampled upon the rights of small nations to freedom of religious and political thought, regardless of constitutional obligations.

George S. Messersmith judges similarly in 1760-PS, when he says that according to reliable information he received, Dr. Seyss-Inquart, with whom he himself had little personal contact (the defendant denies ever having met Messersmith), was completely insincere in his dealings with his friend Chancellor Schuschnigg. Incidentally, the statement that Schuschnigg and Seyss-Inquart were friends is incorrect. Messersmith had left Vienna in the spring of 1937. As all witnesses testify, Dr. Schuschnigg had at that time just become acquainted with Seyss-Inquart. But Messersmith added in his own words that there is only one thing which may be said in favor of Seyss-Inquart at that time: That he may have believed the German protestations which were made to him that Austrian independence would be respected.

Mr. Gedye who was the Vienna correspondent of English and American newspapers for many years has also mentioned Seyss-Inquart in his book, Austria’s Suicide, and has said about him: “He is a well brought up National Socialist, which is twice as disturbing, a young, intelligent lawyer of nice appearance and good manners, who clearly emphasized that he is opposed to the throwing of bombs and to noisy demonstrations, and who preaches in drawing rooms regarding the superiority of intellectual weapons over rough, material methods.” Martin Fuchs, the author of the book quoted by me, A Pact with Hitler, says concerning the defendant, “Seyss-Inquart was known to the public as a National Socialist but also as a practicing Catholic and representative of an Austrian Nazi movement which was to keep Austria on the side of the Reich.” In Austria they now condemn the defendant because he brought about the German entry by his telegram. Many a friend of mine who has returned from Dachau and Mauthausen has, therefore, reproached me for defending before the Tribunal the man who betrayed our country. Dutchmen whom I questioned concerning the personality of the defendant told me that the Dutch people hated him as Hitler’s supreme representative in the country, especially since he had stated at the beginning of the occupation that he came as friend of the Dutch, and that he had deceived them in this respect.

I myself knew the defendant in Vienna only as a professional colleague. He was generally considered as an able and decent lawyer, and politically he was in close touch with Nationalist circles, without being outstanding in any particular manner. But in the many discussions which I have had with the defendant in the course of the trials, I have tried to form an exact picture of his personality. We often talked together about our families, our common experience at the front, especially in the Tyrolese mountains, where he was a brave and cautious company leader, and where he was wounded. He also liked to talk about daring excursions into the mountains, but he liked best to talk about music, and I have often thought that a man who could speak so sensitively about Bach, Mozart, Beethoven, and Bruckner cannot be a monster and above all not a cruel cold-blooded criminal, because love of nature and music can find an abode only in the heart of a good person.

His political program was the Anschluss idea, and, considering his origin, this is also easy to explain. His real home is the old mining town of Iglau, a German-speaking island in a Slavic sea. At an early age he became aware of the small-scale battle which was being waged by two hostile nations. Deeply moved, he has heard that last year the storm of the times swept over his home town too and that Iglau, which had been German for 800 years, has ceased to be German. Therefore, in judging the defendant, we should not forget that it is the Germanic borderlands that have always experienced the greatest national distress and held more strongly and fervently to the idea of the great German fatherland than the nationals of the rest of the Reich, lulled into self-complacency born of self-confidence. Thus, it is no accident that leading men in the Anschluss movement, whose names stand out in my document book, came from the Sudetenland. Doctor Otto Bauer, the late leader of the Socialists, comes from Untertannowitz in Moravia—that is, from German Sudetenland.

The last time I saw the defendant was in the autumn of 1938, and I did not meet him again until I saw him here in prison. Therefore, I also asked one of his collaborators in Holland, who enjoys the respect of the Dutch, and who was no National Socialist, and who as a senior judge can be relied on, for an impartial opinion on the personality of Dr. Seyss-Inquart. He writes:

“In his work, his clear, keen thinking and the systematic manner in which he applied his many-sided talents in carrying out his duties struck me at once as his outstanding qualities.

“Unlike many of his equals he never dulled his sense of reality by fanatically preconceived notions but, as is fitting for a conscientious politician, always strove to approach things soberly and without prejudice and to see them as they really were. That also is why he developed the ability and inner composure to listen calmly to other people, including his subordinates, to deliberate with them and to yield to their opinion... Social life in his house was on a dignified and unusually high level. The atmosphere of the house revealed at once that the host was a man of culture. He knew no hate, and whenever he thought he saw hate approaching, he never answered with hate or revenge, but only with measures deemed appropriate for the prevailing situation.

“It is the great tragedy of his life and work that in the person of Hitler and several persons among those who were his closest co-workers, elements crossed his path which were stronger than he...

“As an intellectual, spiritually cultivated person he became immediately suspect to the main forces in the Party bureaucracy surrounding Hitler—Bormann and, in the SS administration, Himmler—although he wore the Golden Party Badge of Honor and occupied a high honorary rank in the SS. He continued to be the young Party member who came from the ranks of the intellectuals, who were always regarded with mistrust. For those elements he was too ‘soft.’ He nevertheless hoped that he might succeed in preventing independent sections in the Reich from working their way into his sphere of action, as he himself was gradually winning the Führer’s confidence. As I have already said, his relation to the Führer was to be his fate.

“The Führer’s amazing knowledge, his never-yielding, all-conquering energy and his outstanding successes in the field of domestic as well as foreign policy during the first years after the so-called seizure of power, drew Seyss-Inquart—as also happened to outstanding men in foreign countries—under Hitler’s influence. He became a loyal follower of Hitler and sincerely believed that in the latter love for the German people was the prime motive of his actions. He also believed—in any case for some time and during the extreme distress of the German people—that he must continue to cling to Hitler even though the recognition of his weaknesses and faults dawned upon him...

“However, I am firmly convinced that he, like so many of our people, was more an unwitting victim than a willing tool of the demoniacal power of Hitler...”

This is the opinion of an upright German judge.

The Prosecution base the Trial on the concept of conspiracy, in an endeavor thus to forge a chain around the defendants to link them all together in one common responsibility. My learned colleagues have already spoken extensively of the concept of conspiracy and its consequences in this Trial. To repeat these statements would be to carry coals to Newcastle. But because this is the leading theme of the Trial, and because it seeks to shift the responsibility for the world-shaking events to my client in particular, I should like to submit to the Court, a few additional ideas on this subject.

When turning over the pages of history we often come across stories about men who combined to overthrow a ruler who was disliked, or a system that was hated, and to seize power for themselves. All these cases are lumped together under the general, all-embracing term “plots.” In the book published in Paris, entitled The Technique of the State Plot, Malaparte, an Italian, attempted to describe the technical methods applied in plots and revolutions, from Catiline to Hitler and Mussolini. Even this survey of technique will be sufficient to show how unjustified it is to dub all these undertakings “plots,” if it is intended to encompass within this term a definite concept such as is known in penal law. In any case it is not possible to classify all these things which in popular terminology are called “plots” under the heading of “conspiracy,” as is done by the Prosecution. When Guy Fawkes and his companions at the time of James I tried to blow up the English Parliament in the so-called “Gunpowder Plot,” perhaps this was a real conspiracy. To the present day the English people on the 5th of November of every year celebrate with fireworks and bonfires and the burning of a straw dummy the anniversary of the day which saw the fortunate prevention of the plot. It would be a mistake, however, to term any kind of co-operation for political aims a conspiracy, because—and it is particularly important to repeat and stress this—the vagueness of colloquial usage has always made it possible to use the word “conspiracy” when talking of political struggle, and thereby justify, because of the lack of adequate legal grounds, the destruction of political opponents.

Because in this Trial Holland is of particular interest to me, I wish to cite two illustrations from her history. The one is to recall Holland’s fight for liberty against Philip II, which two of our greatest poets—Goethe in Egmont and Schiller in his Geschichte des Abfalls der Vereinigten Niederlande—chose as subjects for their dramatic representations. Schiller writes about the heroic death of the two brave Dutchmen, Egmont and Horn. The insulted ruler had pronounced both counts guilty, because they had encouraged and assisted in the outrageous conspiracy of the Prince of Orange and because they had protected the confederate noblemen and had badly served the king and the Church in their governorships and other offices. Both were to be beheaded in public, their heads were to be mounted on spears and were not to be removed until so ordered by the Duke. All their possessions, feudal tenures and rights were confiscated by the Royal Treasury. The verdict was signed by the Duke alone and his secretary Pranz, and nobody took the trouble to obtain the consent of the rest of the criminal counsellors...

Two decades later during the well-known period of 1588 to 1598, the young Dutch State had been given its final safeguard, thanks to the joint leadership of the Republic by the Raadspensionaris Johann van Oldenbarnevelt as statesman and through Maurits van Oranje Nassau as Field Marshal. But the opposition between these two men was to lead to a tragic result. Both, the highly respected, aged Raadspensionaris Oldenbarnevelt, as well as his friend Hugo Grotius—the father of international law—were imprisoned because of conspiracy. While Grotius saved his life by escaping from his prison cell in a bookcase, Oldenbarnevelt’s head fell because—so the verdict said—he had deeply afflicted the Church of God. The unity of the State, however, had been saved. Spain’s dominion over the seas passed to the small Republic of Holland.

For the French prosecutor I should like to cite from the history of his country, France, an example of an obviously unjustified accusation of conspiracy. Louis XVI was accused of conspiring against the nation and was found guilty. Citizen De Sèze, on 26 December 1792, in the first year of the Republic, conducted his defense at the bar of the National Convention. His plea was probably one of the most moving ever delivered, a discourse in which the defense counsel had to deal at the same time with another danger of criminal jurisdiction arising from political causes or political passions—namely, against a violation of the legal principle nullum crimen et nulla poena sine lege. Undaunted and unafraid, he declared: “Where there is no law which can serve as a precept, and where there is no judge to pronounce the sentence, one should not have recourse to the general will. The general will as such cannot speak either about a man or about a fact. But if there is no law according to which one can judge, then it is also not possible to give judgment, and there can be no sentence.”

We still find today this principle nullum crimen nulla poena sine lege firmly rooted in almost all law books. We find it in the German and in the Austrian Penal Code; and we also find it in French law, in Article 4 of the code pénal, which states: “Nulle contravention, nul délit, nul crime, ne peuvent être punis de peines qui n’etaient pas prononcées par la loi avant qu’ils fussent commis.”

The American weekly Time wrote with justice in its 22d Number, 26 November 1945, in an article: “Whatever laws the Allies attempt to establish for the purpose of the Nuremberg Trial mostly did not yet exist at the time when these acts were committed. Since the days of Cicero, a punishment ex post facto has been damned by the jurists.”

That this principle has not lost any of its significance even today while this Trial is still going on, but on the contrary has kept its full meaning, is shown by the fact, and I should like to remind the French prosecutor again, that the French Constitution which was submitted to the National Assembly on 19 April 1946, establishes specifically as a statute of the Rights of Man in Article 10:

“The law has no retroactive force. No one can be convicted and punished, except according to the law which has been promulgated and made public before the deed which is to be punished. Every person accused is considered under reservation as innocent until he is declared guilty. No one can be punished twice for the same deed.”

What is the Right of Man for the French, must necessarily be the Right of Man for the German.

This principle is not only rooted firmly in national law, but also in international law. When after the first World War the Allies demanded from the Netherlands the extradition of Emperor Wilhelm II who had found sanctuary there, the Dutch Government refused the surrender of the emperor with the following words:

“Article 227 of the Treaty of Versailles has come into force on 10 January 1920, and it does not appear on the list of punishable acts which are considered in Holland’s laws or in the treaties which Holland concluded. This new crime was also not contemplated by the penal legislation of the countries which demand the extradition of the emperor.”

A. Morignhac and E. Lemonon, Droit des gens et la guerre de 1914-18, Volume II, Page 572 express themselves similarly:

“Nul ne peut être puni autrement qu’en vertu d’une loi auparavant adoptée et publiée, pour cette raison, ce qu’on exige de la Hollande c’est de collaborer à un procès contraire à l’idée même de la justice.”

When in the year 1935, the idea of analogy found its way into German criminal law, this innovation met with severe criticism in juristic circles also outside Germany. The second International Congress for Comparative Jurisprudence held in The Hague in the year 1937 formulated a resolution against analogy in criminal law. In this resolution, the congress expressed itself in favor of the principle nulla poena sine lege. (See: Voeux et Résolutions du Deuxième Congrès International de Droit Comparé, La Haye, 4-11 Août 1937.)

From the afore-mentioned statements it follows that it is legally inadmissible to apply principles in this Trial which lack a legal basis. Continental law does not know the concept of conspiracy. Austrian law, which could come into question as the national law for my client, does not know this concept either. There are at best very small similarities if we point out that the Explosives Law of 27 May 1885, Article 5, already declares the concerting together for the execution of a crime with explosives as punishable. Article 174, IC of the Penal Code makes theft a major crime if the thief commits theft as a member of a gang which has banded together for the common commission of robbery. German law recognized the responsibility under the Penal Code for the act of another only as accomplice, instigator, and helper. Conditions in French law are similar, and to save time I refer to Articles 59, 60, 89, and Article 265 of the Code Pénal.

That this fact is not clear and at least dubious is also admitted by the reputed Russian teacher of international law, Professor A. N. Trainin in his book, La responsabilité pénale des Hitlériens. He states on Page 13:

“The problems of international penal law have unfortunately been studied very little. There is lacking a theoretical, clear definition of the fundamental concept of ‘international crime,’ and a well-ordered system of this law still remains to be created.”

According to the Prosecution, the aim or the means of the conspiracy are crimes against peace, against the rules of war, and against humanity. Professor Jahrreiss has already spoken extensively about the liability for punishment of individuals for the violation of international peace, and has described and given due recognition to the status of non-German international jurisprudence. But since jurists of German tongue have also concerned themselves with this question, I would like to make an additional remark.

The well-known Austrian scholar of international law, Alfred von Verdross, has established in his book International Law:

“According to prevailing opinion, subjects of a crime under international law can only be states as well as other legal communities immediately subject to international law, but not individual persons...”

There would be only an international obligation of an individual person when international law itself would connect and order a state of facts with a consequence of injustice that these standards are applied immediately to the state of facts established by a person. Only by that will persons, who according to valid law are only subject to national civil and penal law, be bound as an exception by international law itself.

After these short supplementary statements of the legal bases of the Trial I turn to the Indictment, which accuses my client of having participated in the seizure and control in Austria as a conspirator, and of having committed war crimes and crimes against humanity in Poland and in the Netherlands.

Thus the first act takes place in Austria and the second in the Netherlands, after a short interlude in Poland.

East of Berchtesgaden lies Obersalzberg, at an altitude of 1,000 meters, a mountain at the northern base of the Hohen Göll, covered with meadows and forests, with scattered farm houses and with a wonderful view. Above the old road is the impressive Berghof which resulted from the reconstruction of the Wachenfeld House in 1936. It is here, not on the Rhine, not in the Teutoburg Forest or on the shores of the North Sea, that Adolf Hitler established his residence when he desired relaxation far away from the Reich Chancellery.

Hidden by a small hill, the house of General Field Marshal Göring lies behind the corner of the house.

Adolf Hitler stands at the window of his country house, in deep thought, and gazes on the snow-covered mountains. The country which is protected by these mountains is Austria, his homeland. It is a German land, free and independent, and not subject to his will as is the Reich, whose absolute Führer he has become. When he wrote his lifework in the fortress of Landsberg, he wrote on the first page of his book: “German Austria must return to the great German fatherland.” The shades of night rise slowly from the deep valleys and his thoughts glide over the mountains to the old imperial city on the Danube, Vienna, which he both loves and hates. It is the city of his joyless youth, a memory filled with want and misery. In his book Mein Kampf, he compares this city with Munich, and says about the latter: “Munich, a German city, how different from Vienna, I feel sick when I think of this racial Babylon.”

And still, this city is the goal of his longing and he calls this same city in the March days of 1938 a pearl to which he will give the setting which its beauty deserves. On his table lies a book: The History of the Germans in Austria. Hitler read this book again and again; it is the history of his homeland, and we also will glance through it, as far as time permits. We read:

Austria was throughout many centuries one of the strongest pillars of German life. Its evolution, its rise, and its decline form a considerable part of German history. Austria was and is a piece of the German soul, of the German glory, and German suffering. Austria has received inestimable strength from the old Reich, but she herself has made a great and valuable contribution to the whole of German culture.

Her historical beginnings go back to the Frank, Charlemagne, who created the first “Ostmark,” for the protection of the Reich against the East; she became a victim of the advance of the Magyars. The victory of the German King Otto I at Lechfeld in 955 is the hour of the rebirth of an Austria which now remains, under the rule of the Frankish house of the Babenbergs, the rampart against the East for almost three centuries. When the last of the Babenbergs fell in the fight, Austria came to the Alemanian house of the Hapsburgs which was to bear throughout centuries the imperial crown of the Holy Roman Empire of the German Nation and was to be by its predominant position the strongest shield of the Reich. The mystic strength of the Reich idea gives to Emperor Frederick III the unshakable belief in the universal future of the House of Austria: Austria erit in orbe ultima. Under Maximilian Vienna becomes the main seat of humanism. Charles V goes on beyond the nation and is filled with the world-power idea of the medieval empire. The defense and liberation of Vienna in the year 1683 is a deed of the greatest significance. Under the ruling colors of the German king, Catholics and Protestants, sons of all German peoples, fight for the fate of the capital of Christianity. In the eighteenth century, in the clash of the territorial states against the Reich, princely dominions against the Reich concept, German dualism arises, which from now on was to be the tragic fate of the Reich and Austria—Austria and Prussia, Maria Theresa and Frederick the Great, the great empress and the great king. Through the conflict between the two powers the old Roman Empire of the German nation was destroyed in 1806.

The Reich died, but the concept of the Reich lived on. At Leipzig, in 1813, Prussians and Austrians fought shoulder to shoulder under Schwarzenberg, Scharnhorst, Gneisenau, and Blücher to free themselves from the yoke of the Corsican tyrant. On 11 January 1849 the deputies of all German states assembled at Frankfurt-am-Main for the constitutional assembly. The Austrian delegate, Bergassessor Karl Wagner from Styria in Austria, spoke at that time the memorable words:

“Leave an opening for us so that we can enter; we shall come, unfortunately, perhaps not all of us. We, Austria’s Germans, will come—how and when, who can tell? Who can read in the book of the future? But we shall come!”

The year before, in St. Paul’s Church, where the delegates of all German lands and states had met, the poet Ludwig Uhland, as a deputy, spoke the memorable words:

“It may well be that Austria’s mission is to be a light for the East; but she has a higher, a nearer mission—to be the artery in the heart of Germany.”

But on the battlefields of Königgrätz in 1866, the thousand years’ mutual bond between Austria and Germany was broken and Austria was forced to leave the German federation.

How unsatisfactory the solution of the German question by Bismarck’s forced exclusion of Austria from the union of German states was, was also recognized in the Reich, where Paul de Lagarde wrote in 1875:

“But despite this, 1866 and the German Reich is an episode. Nikolsburg cannot separate what has been decided by geography and history to be together, if this being together will not be a union for a long time to come.”

But before the double eagle of the Hapsburgs went down forever, Germans and Austrians once again fought shoulder to shoulder in 1914-18, with true Nibelung loyalty, for the freedom of the fatherland.

The common history of almost a thousand years, but above all the common language and origins, the same customs and mode of life—all combine to form the bond of unity between the two countries in the whole field of culture, of creative poetry and scientific research.

If here, the Austrian shows a special structure, then this is above all the fact that especially in the field of the art of poetry and music he has achieved performances which surpassed the creation of other German peoples by far, or at least were equal to them. As it can also be emphasized, that the living together for centuries with other nations makes the Austrian stand out, to equalize contradictions and to bridge inequalities. His joy in the sensuous, in the colorful, and his sense for the superficialities of life may have made him especially suitable for this. The narrow frame of the Trial imposes justified limitations here on an extensive description of the mutual cultural life. I limit myself to the quotation of names: The singers of the Nibelungenlied; the Minnesänger, Walther von der Vogelweide, Ulrich von Lichtenstein, and Oswald von Wolkenstein; the humanists Aeneas Sylvius and Konrad Celtis; the orientalist Hammer-Purgstall; the poet of the “Wehrmannslieder” Von Collin; the classical dramatic Franz Grillparzer; the homeland poets Stelzhammer and Rosegger; and finally Rainer Maria Rilke, Franz Werfel, Anton Wildgans, and Hermann Bahr. When I turn to the magic world of music, then there is an abundance of the most illustrious names: Mozart, Haydn, Schubert, the waltz kings Lanner and Strauss, the symphonic composer Anton Bruckner, all were Austrians.

But is it not a symbol of spiritual unity that not only the North German poet Hebbel, but also Beethoven and Brahms made art-loving Vienna the permanent city of their work? There is no German music without Austria. But Austria not only made her contribution to the cultural life of the German people in the field of art, but also in the fields of science and technology.

But let us return to the Obersalzberg. If Hitler, the demonic psychopath, loved his homeland with the love of a rejected suitor then the love of Hermann Göring was of an entirely different kind. He also liked to look over into nearby Austria. He spent his youth there; it was not joyless and empty.

In the land of Salzburg with its old bishop city, its lakes and mountains, Hermann Göring learned to know Austrian characteristics, learned to love the people and country. What a joy it was for the courageous huntsman and later aviator when he got the first chamois on the crags in the cross-hairs of his telescopic sight. When he was severely injured by a burst of machine-gun fire on 9 November 1923 in the Odeonsplatz in Munich, faithful friends accompanied by his wife Karin, herself mortally ill, then took him from the pursuing bailiffs over lonely wood trails into the free Tyrol mountains of Austria. A large relief, on which already long before the Anschluss Austria was marked on the map of Germany without borderlines, shone in the large hall of Karinhall. But Hermann Göring was also Delegate of the Four Year Plan and knew that Austria was not only beautiful and rich with honors, but that she also owned the Erzberg where there was iron ore for the forging of guns; he knew the rich forests of Austria where there was wood for cellulose, for the construction of ships, and for rearmament; it was not unknown to him that there was in Austria the largest bauxite and magnesium sources of the world, and that Austria had the rich petroleum wells at Zisterndorf. Only power makes right! If Germany wants to have her say again in the world, then she must have a strong army and a strong navy. And for this reason he loved Austria!

Hermann Göring also never denied this, his conviction, and he expressed this repeatedly to the diplomats of the great powers. For instance, he stated openly to Lord Halifax, that it was an integrated part of German policy, regardless what government was in power, that the moment had to be created so that the unification of the two brother nations of purely German origin and blood could take place. He has also testified with human candor as witness before the Tribunal that when the question of the Anschluss came into its acute stage, he had grasped this ardently longed-for possibility for the total solution and that he takes upon himself the responsibility for everything which happened then, one hundred percent. He is therefore also to be believed when he stated further that he would do everything therewith so that the Anschluss would not lead to an endangering of the peace.

THE PRESIDENT: I think it is possible for the Tribunal to become acquainted with the history of Austria without having it read to them as a part of your argument. Up to now there has been nothing in your 20 pages but history of Austria.

DR. STEINBAUER: Mr. President, I beg your pardon; I consider it essential to portray the background in Austria which motivated my client. I have now finished, and I shall pass on to the facts.

The massed common will of the big two of the Third Reich to take over Austria at the opportune moment is the key to the solution of the Anschluss question. For that, there is no need for a conspiracy; those who participated were pawns on the chessboard of the two men, supers on the great stage of the world.

But let us return to Austria.

Only if we know the history of this country in the time from 1918 to 1938, are we in a position to judge the role of the defendant in this question justly.

I have already pointed out in the presentation of evidence that in my opinion there were three reasons for the Anschluss, and I have also attempted to reinforce these by the documents submitted, to which I now refer: 1. The economic distress; 2. The disunity resulting from this; 3. The conduct of the great powers toward Austria, especially during the critical days of March 1938.

Dr. Karl Renner, the Federal President of the Austrian Republic, who enjoys the confidence of the four occupying powers, and on whom the entire Austrian people look with respect because he took the helm of the ship of state for the second time in a period of dire distress, described the history of the Anschluss very aptly in his memorandum in 1945:

“The political reason why the Anschluss idea took hold of almost all of Austria at the conclusion of the first World War lay in the repeated proclamations of the victorious powers that the war was waged for the right of self-determination of nations—

“That every nation had a claim to her own complete national state, and that the peace would fulfill this requirement.

“But it was not this political reason that was decisive for the masses. Austria is a mountainous country with much too little arable land, a country with an entirely one-sided economic structure. Its capital alone sheltered a third of the population; its industry was able to feed a large part of the people only by working for Austria’s neighbors, receiving from them raw materials and bread. The sudden separation of the highly agrarian parts of the previously uniform tariff territory of the Danube monarchy and the measures of the succession states in 1918 introducing high protective tariffs deprived the country simultaneously of its food sources and its export markets. The fear of not being able to feed themselves and of not being able to find work at home, the sudden construction of the labor market, were the factors which in 1918 made the Anschluss appear to almost everybody as the only possible solution. One cannot talk about the national chauvinism of the Austrian working class, because a large percentage of this class derived from parents of non-German blood who had hardly lost their ties with the homeland. The overwhelming competition of the Reich German and Czechoslovakian industry loomed menacingly before the workers of all professions in this small country, cut off from the sea, and poor in raw materials, and afraid that it would not be able to stand up against this competition. Not until we understand the economic situation can we understand the Anschluss movement, and why it was that Hitler’s boastful announcement that he had done away with unemployment made such a deep impression on the Austrian working class, and why the will to resist the Anschluss was so weak within this working class at the beginning.”

I have in front of me an economic statistical comparison from the year 1938. There are a few figures only, which speak volumes:

GermanyAustria

Population68,150,0006,710,000

Area (in square km.)470,71483,868

Change in population (1936) per 1,000 inhabitantsplus 7.2minus 0.1

Unemployed 19342,353,000363,000

Unemployed 1937573,000319,000

Austria’s Foreign Trade 1937; Export: To Germany, 179.8 millions; to Italy 172.6 millions; to Hungary 111.2 millions; to Czechoslovakia 87.5 millions.

By the decision of 5 September 1931 the Permanent International Court at The Hague declared the contemplated customs union between Germany and Austria incompatible with the Geneva Protocol of 4 October 1922 by 8 votes to 7. This was the last attempt of the governments to achieve a closer mutual constitutional relationship with the express agreement of the victorious powers. It failed. Was not the conviction bound to arise in the minds of fanatical Anschluss partisans that this supreme national aim could only be achieved through their own initiative?

A year later Austrian foreign trade showed a deficit of 613 million schillings. On 15 July 1932 Dr. Dollfuss concluded a loan agreement in Lausanne on the condition that the Anschluss question would be put off for another 10 years. The ratification took place during the session of the National Council on 30 August 1932 by 82 votes to 80. In the federal council, the Social Democrat Koerner, at present mayor of Vienna, had protested against this law, in view of a rapprochement with Germany.

Hitler came to power the year after. The Social Democrats saw their party dissolved in the Reich and the trade unions smashed; they saw the Reichstag fire and the beginning of the persecution of the Jews, and their leaders turned away from the Anschluss idea. The Catholic circles who wanted to fortify the Catholic element in the Reich by means of the Anschluss also turned away because the persecution of the Church in the Reich had begun; and only the National Socialists, whose membership had increased tenfold within a short time, were in favor of the Anschluss. As Dr. Dollfuss had eliminated Parliament and thereby the way to power by means of the ballot, the National Socialists under the leadership of Landesinspekteur Theo Habicht strove with all means to gain power in the state. We come to the bloody events of the year 1934. Dr. Dollfuss is killed by the hands of assassins and his successor Dr. Schuschnigg attempts to restore order in the seriously shaken state system. The Socialists, however, remain sulkily aloof because of the events in February 1934. There are changes in the political situation abroad too. Whereas Italy in 1934 still stood at Austria’s side, and Mussolini had deployed his divisions on the Brenner menacingly against the North, the Ethiopian adventure had forced Italy to Hitler’s side. Austria is forced to follow the changed course and in order to improve the economic situation concluded the Agreement of 11 July 1936. In this agreement Germany recognizes the independence of Austria and ceases the economic war. The price for that, however, is a series of measures which give the National Socialists in Austria a new boost. In order to extend the small platform of his Government and bring about a real appeasement, Chancellor Dr. Schuschnigg declares himself willing to invite also the so-called Nationals to co-operate. Among these men is also the defendant, who then became Austrian State Councillor in May 1937. As already mentioned, the Anschluss idea constituted his political program. He never tried to hide this fact. He also comes from the ranks of the National Opposition, a factor which must not be overlooked. The Anschluss also brought him nearer to National Socialism, and it seems idle to engage in long investigations to find out at what time he officially became a member of the Party. Among the documents confiscated at his arrest was his membership card with the number above 7,000,000. The witnesses Gauleiter Rainer and Uiberreither confirm the statements concerning his Party membership. When, after taking office, the new State Councillor paid his first visit to the Führer’s deputy, Hess, the latter was very polite but cool and expressed his regret that Seyss-Inquart was not an old fighter. The task of Dr. Seyss-Inquart was to supervise the execution of the July Agreement and to act as a mediator between the Austrian Government, the National circles, and the Reich. It was a thorny and thankless task. The Austrian patriotic circles (Vaterländische Kreise) could not forget the terror methods of the National Socialists during the Dollfuss period. The National Socialists, headed by Captain Leopold, were not satisfied with the methods of the national representative Seyss-Inquart in his dealings with the Government. Between these two men there were constant differences of opinion, which went so far that Seyss-Inquart wanted to give up the task entrusted to him—namely, bring about an agreement. To save time I refer in this connection to Documents Seyss-Inquart-44 (letter from State Secretary Keppler to General Bodenschatz), Seyss-Inquart-45 (Göring’s telegram to Keppler) and Seyss-Inquart-46 (USA-704) of my document book. There were continuous violations of the July Agreement, and the Austrian Police found the plan for a revolution known as Tavs Plan, which was an attempt to overthrow the Government by violence. Minister Guido Zernatto has declared that the defendant kept himself aloof from all these endeavors.

Then came the conference of 12 February 1938 at Obersalzberg. What happened at this conference is well known. That the defendant discussed things on the evening before this conference not only with Zernatto, the representative and confidant of the Chancellor in the Government, but also with the National leaders is understandable, for one must never lose sight of the fact that the defendant had always openly declared his role as mediator. He also had to know the claims of the opposition, so that when the two statesmen met at Berchtesgaden the differences could be cleared up. The defendant cannot be charged with playing a double game within the framework of a conspiracy, because the National Socialist Party tried to exploit the knowledge of the situation to their profit, and by dispatching Mühlmann were quicker than the unsuspecting Chancellor Schuschnigg. Here, too, we must have recourse to Zernatto, who died in exile, and who declared that he was under the definite impression that Seyss-Inquart did not know at the time about the agreements concluded at the Obersalzberg. On the basis of this agreement Seyss-Inquart was appointed Minister of the Interior and Security. He went in that capacity to Berlin to pay an official visit to the Chief of State of the German Reich and to present to him his political program for the relations between the two states, as set down in the memoranda for file (Exhibit Number 61) submitted to the Tribunal. The account of this conference as given by the defendant in his testimony appears to be quite authentic. For various reasons Hitler had at that time obviously not yet decided to carry out the Anschluss. Let us here refer to what the Defendant Göring says, when he testified as a witness on 14 March:

“I was not present at Berchtesgaden; moreover I was not in favor of this agreement, because I was always against any half measures which would prolong this state of suspension.”

In a sense the Berchtesgaden agreement gave the Nazis in Austria a free hand to carry on their activities and propaganda. The 2,000 Party members released from prison on the basis of the amnesty and at least some of the members who had returned from the Reich became increasingly active in the federal states and sought to bring about a rapid growth of the Party. Hitler’s Reichstag speech of 20 February was used by them as a signal for hostile demonstrations against the Government and thus to bring them quickly to power. Not only Schuschnigg but also the great mass of the working class realized how dangerous the situation had now become. The threatening danger caused them to forget their differences, and the negotiations between Schuschnigg and the Socialist labor leaders and the Christian trade unions seemed to provide a guarantee for the defeat of the imminent attack of Nazism by uniting all democratic forces in a common defensive front. Prompt action was necessary, and Schuschnigg proclaimed his plebiscite. The whole country awoke from its lethargy. Workers and peasants were called upon to defend their country, and under the leadership of Zernatto swift electoral preparations were made in the factories and in the remote mountain valleys. It was clear that this attempt of Chancellor Schuschnigg to veer round and alter his course at the last moment could not fail to call forth the resistance of the National Socialists in Austria as well as in Germany. Hitler raved, and Mussolini’s words before the election warning Schuschnigg that the bomb would explode in his own hand, unfortunately proved only too true.

And now let us come back to the defendant. He was not only a Government member, he was the confidant of the National Opposition and guarantor answerable to the Reich for Berchtesgaden. When the Prosecution charge him with having given Schuschnigg his word of honor about the election and having failed to keep it, that is not correct. Let us refer to the speech made by Gauleiter Rainer on 11 March 1942 to the Berlin Party members. On Page 12 of this Document, 4005-PS, it is disclosed that Zernatto’s secretary was a secret member of the NSDAP and betrayed the plebiscite plans to her comembers as soon as she came to know of them. Rainer says he already knew the whole plan at 11:30 p. m. that same evening.

THE PRESIDENT: The Tribunal will recess now.

[A recess was taken.]

DR. STEINBAUER: The protest against the plebiscite made to the Chancellor by Seyss-Inquart in the name of the Nationals was entirely justified legally. Apart from the fact that there could be no guarantee for a proper vote at such short notice, the vote itself was not constitutionally legitimate. Article 65 of the Austrian Constitution of 1 May 1934 specifies exactly under what circumstances the nation can be called upon to vote. Dr. Schuschnigg, therefore, bases his proclamation of the election on Article 93 of the Constitution which article merely says generally: “The Federal Chancellor determines policy.”

The Austrian Patriotic Front (Vaterländische Front), that is, the political organization, had the task of carrying out the election. The subsequent developments are well known, particularly the events of 11 March 1938. The main charge in respect to the conspiracy is, I take it, that Seyss-Inquart caused the entry of the German troops by his telegram about alleged unrest. We find this historical lie, which has given the defendant the name of “Judas of Austria” in the story of the Anschluss. We find this historical lie for instance, in Raphael Lemkin’s Axis Rule in Occupied Europe (Page 109). We find it again in the opening speech of the American Chief Prosecutor, Mr. Justice Jackson, although it is incontestably proved by the submission of Göring’s telephone conversations (Document Number 2449-PS) in connection with Göring’s testimony, that this telegram was never sent and, what is more, was dictated and addressed to a third party at a time when the German troops had already received the order to cross the frontier. Consequently, these telephone conversations of Göring represent a historical document of the greatest importance.

Rainer’s speech in Carinthia and his testimony as a witness before the Tribunal also give the lie to the charge that Seyss-Inquart participated in the seizure of power. According to this document (Document Number 4005-PS) it was Globocznik who wrongfully used the telephone in the Federal Chancellery to give the alarm to the federal states. Appointed Federal Chancellor by virtue of Schuschnigg’s withdrawal under duress, the defendant discusses the constitution of the Cabinet, invites the ministers to enter it, and takes the retiring head of the Government home in his own car.

When it is further learned from the testimony of the witness Stuckart and from Glaise-Horstenau under what circumstances the law of annexation came into being, then it can indeed be said that Zernatto was right when he wrote that Austria was conquered, in his opinion, even against the wishes of Seyss-Inquart and his Government. I refer to Exhibit Number 63. Whoever, therefore, dispassionately surveys the whole set of events of March 1938 relative to the Anschluss, and examines particularly the part played by the defendant, can only come to the conclusion that one cannot really speak of a carefully thought out “conspiracy,” of the perpetration of a crime by co-ordinated stages. Where Austria is concerned, however, the Englishman Geyde is right when he says the curtain fell on the “Tragedy of Austria” when the troops marched in. It was to rise again soon on a new play: “The Martyrdom of Austria.”

On 15 March 1938 Adolf Hitler came to Vienna. We have seen in this courtroom the film record of his reception. Deeply moved, the defendant addressed him as follows:

“What centuries of German history have striven for, what untold millions of the best Germans have bled and died for, the final goal in fierce combat, the only solace in hours of bitterness has today been achieved. The Ostmark has come back to the homeland. The Reich is restored, the empire of racial Germans is established.”

With these words Seyss-Inquart defined his political aim, which was and remained the guiding star of his actions.

With the Führer came Josef Goebbels, who turned on his gigantic propaganda machine at high pressure. There was rally after rally. Festivals were held. There was not a house in the land which was not beflagged. The leader of the Socialist workers said: “I vote yes” and the bishops exhorted the people to fulfill a national duty: “Render unto God the things that are God’s and unto Caesar the things that are Caesar’s.” Both were to be disappointed. For with Goebbels came Himmler and his Gestapo and SS. Already during the night of 13 March there was a wholesale arrest operation in Vienna. It included the members of the former military associations, as well as prominent leaders of the Socialist paramilitary organizations, Jews who were active in political and public life, Communists and Monarchists, priests and Freemasons, and even the leaders of the Boy Scouts and of the Austrian youth organizations. In Vienna alone 76,000 arrests were made. Already on the 2d of April 1938 the first Dachau convoy left the West Station with 165 leading officials, including the present Federal Chancellor Figl, Education Minister Hurdes, and Minister of Justice Dr. Gerö. The second convoy followed on 21 May, the third at the end of May, and so it went on. Punctually, every 8 days, convoys left for Dachau, Buchenwald, and Sachsenhausen. On 10 May 1946, the People’s Court in Vienna sentenced to death Anton Brunner, who had had 49,000 people, mostly Jews, sent to the extermination camps in Theresienstadt, Auschwitz, Minsk, and Riga.

And what of the defendant? He was given the cold shoulder and pushed to the wall. The victor of the Saar electoral contest, Josef Bürckel, was set up as Reich Commissioner for the reunion of Austria with the Reich and armed with dictatorial powers. The powers of the defendant scarcely exceeded those of an Oberpräsident in the Reich, that is, those of a second level administrative authority. Still less, because immediately above him was Bürckel who under the pretext of the annexation interfered with everything and laid claim to everything, particularly in matters concerning the churches and the Jews. This is evidenced by Documents 67, 70, and 91. The defendant opposed Bürckel’s methods. He even raised objections to Hitler himself against Bürckel’s action in Graz on 8 April 1938.

This we know from the testimony of Neubacher, Schirach, and Stricker, and from the documents submitted by the Defense. But Bürckel, whom Churchill described as the Governor of Vienna in his book Step by Step, remained the stronger man and the importunate admonisher, Seyss-Inquart, was transferred to southern Poland as a provincial commissioner. This treatment alone at the hand of his alleged fellow conspirators shows only too clearly that Seyss-Inquart was actuated by his enthusiasm for the Anschluss and cannot have been a conspirator. He was not a leader, he was led or, what in my opinion is more accurate, he was misled, perhaps also a docile tool in the hands of the big two, Hitler and Göring. But it was solely for his political ideals, the Anschluss, without any intention of a war of aggression.

Of course, there was something of an economic boom in Austria after the Anschluss. It was partly a fictitious boom due to rearmament. But what took place was not the Anschluss that the Anschluss enthusiasts in Austria had visualized, especially when the war provided a motive and a pretext for ruthlessly controlling and repressing every dissenting or critical opinion.

Austria never ceased hoping for her liberation and fighting for it. There was much suffering and many died; 6,000 were executed in Austria. In the Landesgericht of Vienna alone 1,200 men died by the guillotine, 800 of them merely because of their anti-Nazi conviction. In the last days of the war Vienna’s most beautiful buildings came down in ruins, and St. Stephan’s Cathedral, one of the noblest monuments of German Gothic, went up in flames. Thus was fulfilled the promise that Hitler had made on 15 March 1938: “The pearl has the setting which its beauty deserves.”

Not the idea of the Anschluss, that is to say, the wish to bring about the national unification of a people, was a crime; it was the introduction of a system that has probably prevented it from ever coming true; that was criminal. The defendant certainly did not wish that.

To conclude my statements on the Austrian question I shall now proceed briefly to examine the legal aspect of the charge against my client. To elucidate his legal responsibility, I will review his behavior in the following short survey:

First his political activity:

1) After the Agreement of 11 July 1936, the Federal Chancellor, Dr. Schuschnigg, took the Defendant Seyss-Inquart to work with him as a representative of the National Opposition, therefore, not as a political follower of his, as for instance the witness Guido Schmidt.

2) Seyss-Inquart always declared—for the first time to Dr. Dollfuss in July 1934—that the National Opposition consisted only of National Socialists who obey only Hitler’s will, who, in any case, would never act against Hitler’s will.

3) Seyss-Inquart declared he was a National Socialist; thus he always stood for the interests of the Austrian National Socialists. This is not only confirmed by the witness Skubl but borne out by the authorities previously quoted by me.

4) To avoid any military or international conflict, Seyss-Inquart pursued the following aim: To allow the Austrian National Socialists to participate independently of the Reich National Socialist Party, should Austria and Germany form a close union.

5) Seyss-Inquart declared that this aim could only be attained if Hitler agreed to it and directed the Austrian National Socialists expressly toward this policy. This he wanted to attain.

6) The culminating point of Seyss-Inquart’s efforts was his interview with Hitler on 7 February 1938; although he was so to speak, minister by the grace of Hitler, he stood for his Austrian program.

Herein lies Seyss-Inquart’s mistake. He thought Hitler and Berlin would pursue a joint policy, that is, as Bismarck said, use the “art of the possible.” Berlin, however, did not wish to pursue a joint policy. In the face of this fact Seyss-Inquart’s policy broke down on 11 March. Is this mistake punishable, especially as the Austrian State leaders desired to reach an agreement along the same lines, and Dr. Schuschnigg, knowing his program, allowed him to continue his activity? In view of the defendant’s basic attitude until March 1938, details of his political tactical attitude are of secondary importance.

And now the activity of the defendant as Minister of the Interior and Security.

7) There is no trace of any National Socialist influence on the Austrian executive. The witness Skubl has confirmed this with exceptional clarity. Seyss-Inquart forbade the Police to take up any political attitude (Document 51); he forbade National Socialist demonstrations (Document 59); he avoided such occasions (Document 59); he demanded that the Austrian Nazis stand for legality (Document 52).

8) On 11 March 1938 Seyss-Inquart fulfilled his duties as mediator, in accordance with the Berchtesgaden agreement. Together with Glaise-Horstenau he gave Dr. Schuschnigg, in the forenoon of 11 March, a perfectly candid statement of the facts. He particularly pointed out the threatening National Socialist demonstrations and the possibility of a German invasion. In the afternoon he delivered Göring’s demands to Schuschnigg and the latter’s answers to Göring.

9) After Dr. Schuschnigg’s offer to resign, Seyss-Inquart retired. He did nothing to comply with Göring’s demand to obtain the transfer of the Federal Chancellorship or to seize power. The ultimatums, with the threats of invasion by the Reich, were, as is known, transmitted by Embassy Counsellor Von Stein and General Von Muff, to whose pressure President Miklas finally yielded. This appears from President Miklas’ statements (Document Number 3697-PS) and the statements of the witnesses Rainer and Schmidt.

10) Only after Dr. Schuschnigg’s farewell speech did Seyss-Inquart publicly demand the maintenance of order. He did not designate himself as a provisional government but, in good faith, as Minister of the Interior and of Security, as was confirmed by the witness Schmidt. He took the order not to put up any resistance to the German troops from Dr. Schuschnigg’s farewell speech.

11) Seyss-Inquart tried as long as possible to preserve Austria’s independence, as instanced by his telephone conversations with Göring (Document 58), also by his request to Guido Schmidt to join his Ministry as Foreign Minister, as confirmed by the witness Schmidt, and according to the statements of witness Skubl; by refusing the demanded telegram (Document 58); by the request to Hitler not to march in, as confirmed by Göring; by the request to Hitler also to let Austrian troops march into the Reich.

12) On 13 March 1938 the Anschluss Law was issued in conformity with Article III of the Austrian Constitution of 1 May 1934. The psychological situation for Seyss-Inquart was the same as for all Austrians, who on 10 April had by secret ballot voted for the Anschluss by 4,381,070 votes to some 15,000.

Some of the accusations made against Seyss-Inquart are:

1) That he used his various positions and his personal influence to promote the seizure, incorporation, and control of Austria by the Nazi conspirators.

2) That, as an integral part of his evil intentions in the sense of the Indictment, he participated in the political planning and preparations of the Nazi conspirators for wars of aggression and wars in violation of international treaties, agreements, and assurances.

Concerning the first accusation, I refer to the above survey and limit myself to the following short statements: As a political aim, the annexation of Austria to the German Reich is nowhere indicted, and the defendant pursued no other aim. Here—as also on other points—the Prosecution go beyond the limits of the Charter.

Concerning the second accusation—that Codefendant Seyss-Inquart had participated in a conspiracy against peace must be judged by Article 6 (a), Part II (a) of the Charter. There it is stated, among other things, that collective planning, preparation, or execution of a war of aggression or a war in violation of international treaties, is punishable as a breach of the peace.

I leave it to the Tribunal to examine if this ruling can really be applied to the case of the entry into Austria in spite of the fact that there was no war. It is a significant point that, according to the meaning of the said ruling, the outbreak of a war is the condition for rendering an act punishable for breach of the peace within the meaning of the said provision.

In any case I cannot reconcile myself to an interpretation of this ruling which goes so far as to consider even an abandoned plan for war, or the possible planning for a war which turns out to be bloodless as punishable as the accomplished crime.

It must be pointed out most emphatically that no proof has been furnished that my client ever imagined that events would even lead to a war between Austria and any other power because of the Anschluss or pursuant to it. On the contrary, his decision to take an active part in politics after the drama of 25 July 1934 was dictated by the resolve not to let the Anschluss question become the cause of military or international complications. Furthermore, it must have been far from his mind to imagine that Hitler or his entourage had seriously considered the possibility of such a consequence. The outcome of the Austrian enterprise proved him to be right. The German troops were greeted on their march into Austria with flowers and cheers.

As for the great powers, France and England protested on 12 March 1938 against the Anschluss. But this was only a very mild and ineffectual protest. Military support for Schuschnigg was not forthcoming; above all, the League of Nations, the guarantor of Austria’s independence, was not appealed to.

On 14 March 1938 the British Government declared in the House of Commons that they had discussed the new situation with their friends of the Geneva Entente and that the unanimous opinion had been that a debate in Geneva would lead to no satisfactory result.

When the League of Nations was informed of the Anschluss by the German Foreign Office it took note of it without protest, and the Austrian representative at the League of Nations, Pflügl, was given his papers. The Hague Court of Arbitration struck its Austrian member, Professor Verdross of Vienna, from the register of judges. The diplomatic agencies were withdrawn or transformed into consulates in the German Reich.

Only a very short time elapsed, in fact it was only a few months after the occupation and annexation of this small country that a treaty concerning another small state was concluded in Munich on 29 September 1938 with the alleged aggressor.

The French Prosecutor, M. de Menthon, in his opening speech mentioned that great politician and statesman Politis. I also would like to call him to mind. Shortly before his untimely death he wrote in his book, La Morale Internationale: “Qui menace les petites nations menace l’humanité toute entière.” The League of Nations powers did not feel called upon to pay any heed to this sentence.

But there is another principle of international order which they did not see fit to apply when confronted with the Austrian Anschluss. I mean that principle which, under the name of the Stimson Doctrine, has found entry into the science of international law and diplomatic language.

It is the principle according to which the nations of the world refuse to recognize territorial acquisitions obtained by force. This principle has at least penetrated into the legal consciousness of present times as deeply as the prohibition of wars of aggression, which is one of the main pillars upon which the Nuremberg Trial rests.

As evidence of this fact I will recall here the proposition of the Brazilian Delegate Braga to the second session of the League of Nations, in which he proposed a blocus juridique universal (universal juridic blockade) against aggressor states and at the same time submitted as one of the measures to be adopted, the denial of the right of annexation by aggressor nations. You will find this explanation printed in the document book submitted by Professor Jahrreiss to the Court as complement to his legal arguments, and which is reproduced there as Document Number 10 on Page 35.

I will further recall the so-called Saavedra-Lamas Pact signed by several South American states on 10 October 1933 in Rio de Janeiro and which the Little Entente and Italy also joined. Here the signatory states bound themselves not to recognize the validity of a forcible occupation or annexation of national territories. The Seventh Pan-American Conference accepted this principle on 26 December 1933 with the participation of the United States of America. It agrees as to contents with a proposition already submitted previously by the Peruvian Delegate Cornejo on 14 January 1930 to the Council of the League of Nations.

It is above all contained in the famous notes of the American Secretary of State Stimson to China and Japan of 27 January 1932, which contains the following sentence: “The American Government does not intend to recognize any situation, treaty or agreement brought about by means that are contrary to the statutes and obligations of August 27, 1928 in Paris.”

And finally I remind the Tribunal of the declarations of the Council of the League of Nations on 16 February 1932, in which the Stimson Doctrine, raised to a principle, was expressed as follows:

“No encroachment on the territorial integrity and no infringement of the political independence of a member of the League of Nations in violation of Article 10 of the Covenant of the League of Nations could be recognized as legally valid by the member nations.”

Nevertheless all the nations of the world recognized the incorporation of Austria into the German Reich without feeling compelled to concern themselves with the Stimson Doctrine.

This likewise substantially answers the accusation of the crime against peace by violation of treaties. Germany is supposed to have violated three treaties. First the German-Austrian Agreement of 11 July 1936; second, Article 88 of the Treaty of St. Germain; lastly, Article 80 of the Treaty of Versailles. Here also, it must be pointed out that all the nations concerned have not only tolerated the violations of the treaties but, moreover, tacitly sanctioned them by their attitude. This implies at least a renunciation of international law, and the powers concerned have thereby forfeited the right to take any action because of treaty violations, as this would be contrary to all sense of fairness.

With particular regard to Article 88 of the Treaty of St. Germain, the German Government, and therefore Seyss-Inquart as alleged coconspirator, cannot be charged with violation of this provision because Germany was not bound by this treaty, which she had not signed, and which for her represented a res inter alia acta.