Fourth Day:
Friday, 23rd November, 1945
THE PRESIDENT: The third page?
MR. DODD: No, on the first page, 1301-PS-7. In your folio,
it is page 19 of the group of documents bearing the serial
number 1301-PS.
THE PRESIDENT: Our documents are not paged.
MR. DODD: I think you will find the number on the upper left-
hand corner, very near to the top and at the extreme left.
THE PRESIDENT: Yes, I've got this document now.
MR. DODD: Paragraph No. 3 after the words "air force."
THE PRESIDENT: Yes.
MR. DODD: It states that according to an order of the
Fuehrer, the setting up if all air force units had to be
completed on 1st April, 1937; and if your Honour will turn
the page, page 20, about midway in the page, you will
observe that a copy of this document was sent to the
president of the Reichsbank, Dr. Schacht.
THE PRESIDENT: Yes, what are you passing to now?
MR. DODD: I am passing to another document immediately, your
Honour. After their successes in Austria and in the
Sudetenland, the Nazi conspirators redoubled their efforts
to equip themselves for the war of aggression, and in a
conference on 14th October, 1938, shortly before the Nazi
conspirators made their first demands on Poland, the
defendant Goering stated that, "The Fuehrer had instructed
him to carry out a gigantic programme, by comparison with
which
[Page 140]
THE PRESIDENT: That's not on page 25, is it? Is that on page
25 of 1301 ?
MR. DODD: Yes, your Honour.
THE PRESIDENT: Yes.
MR. DODD:
In the course of these preparations for war, a clash of
wills ensued between two men, the defendant Goering and the
defendant Schacht, as a result of which the defendant
Schacht resigned his position as head of the Ministry of
Economics and Plenipotentiary for the War Economy in
November of 1937 and was removed from the presidency of the
Reichsbank in January of 1939, I do not propose, at this
moment, to go into the details of this controversy. There
will be more said on that subject at a later stage in these
proceedings, but for the present, I should like to have it
noted that it is our contention that Schacht's departure in
no way implied any disagreement with the major war aims of
the Nazis. The defendant Schacht took particular pride in
his vast attainments in the financial and economic fields in
aid of the Nazi war machine. And in the document EC-257,
which is a copy of a letter from the defendant Schacht to
General Thomas, in the first paragraph of the letter, he
wrote, "I think back with much satisfaction to the work in
the rearmament of the German people as 'conditio sine qua
non' of the establishment of a new German nation." The
second paragraph is of a more personal nature. It has no
real bearing on the issues before us at this time.
In the document EC-252, a letter written to General von
Blomberg, dated 8th July, 1937, the defendant Schacht wrote,
[Page 141]
I should also like to call the Court's attention to the
next, to the last paragraph, on the first page. It is a one-
sentence paragraph, and it simply says, "I want to point
out, however, that all material and all information received
has to be kept in strict secrecy," and it refers to the
preceding paragraph concerning the war games in war economy.
It appears that the annexation of Austria was a goal which
the defendant Schacht had long sought, for in a speech to
the employees of the former Austrian National Bank, as set
out in the document bearing the label EC-297, and
particularly the second paragraph of the first page of that
document, nearly at the end, four or five lines from the end
of that paragraph, we find these words, immediately after
"large applause": " Austria has certainly a great mission,
namely, to be the bearer of German culture, to ensure
respect and regard for the German name, especially in the
direction of the South-east. Such a mission can only be
performed within the Great German Reich and based on the
power of a nation of 75,000,000, which, regardless of the
wish of the opponents, forms the heart and the soul of
Europe." Dr. Schacht goes on to say, "We have read a lot in
the foreign Press during the last few days that this aim,
the union of both countries, was to a certain degree
justified, but that the method of effecting this union was
terrible. This method, which certainly did not suit one or
the other power, was nothing but the consequence of
countless perfidies and brutal acts and violence which
foreign countries have practised against us." And I refer
now to page 3 of this same document and to the fourth
paragraph, about the centre of the page, and reading from
it: "I am known for sometimes expressing thoughts which give
offence and there I would not like to depart from this
consideration. I know that there are even here, in this
country, a few people - I believe they arc not too numerous-
who find fault with the events of the last few days; but
nobody, I believe, doubts the goal, and it should be said to
all grumblers that you can't satisfy everybody. One person
says he would have done it maybe one way, but the remarkable
thing is that they did not do it, and that it was only done
by our Adolf Hitler; and if there is still something left to
be improved, then those grumblers should try to bring about
these improvements from the German Reich, and within the
German community, but not to disturb us from without."
In the memorandum of 7th January, 1939, written by the
defendant Schacht and other directors of the Reichsbank to
Hitler, urging a balancing of the budget in view of the
threatening danger of inflation, it was stated, and I now
refer to the document bearing the label EC-369 and
particularly to the paragraph at the bottom of the first
page of that document: "From the beginning the Reichsbank
has been aware of the fact that a successful foreign policy
can be attained only
[Page 142]
The Reichsbank directors, as experts on money, believed that
a point had been reached where greater production of
armaments was no longer possible. That was merely a
judgement on the situation and not a moral principle, for
there was no opposition to Hitler's policy of aggression.
Doubts were entertained as to whether he could finance that
policy. Hitler's letter to Schacht on the occasion of
Schacht's departure from the Reichsbank, as contained in
document EC-397, paid high tribute to Schacht's great
efforts in furthering the programme of the Nazi
conspirators. The armed forces by now had enabled Hitler to
take Austria and the Sudetenland. We say Schacht's task up
to that point had been well done. And to quote from document
EC-397, in the words of Hitler, in a letter which he wrote
to the defendant Schacht, "Your name, above all, will always
be connected with the first epoch of the national
rearmament."
Even though dismissed from the presidency of the Reichsbank,
Schacht was retained as a minister without portfolio and
special confidential adviser to Hitler. The defendant Funk
stepped into Schacht's position as president of the
Reichsbank. And I ask at this point that the Court might
take judicial notice of the Volkischer Beobachter Of 21St
January, 1939. The defendant Funk was completely uninhibited
by fears of inflation, for like Goering, under whom he had
served in the Four-Year Plan, he recognised no obstacles to
the plan to attack Poland.
In document 699-PS, a letter from the defendant Funk to
Hitler, written on 25th August, 1939, only a few days before
the attack on Poland, the defendant Funk reported to Hitler
that the Reichsbank was prepared to withstand any
disturbances of the international currency and credit system
occasioned by a large-scale war. He said that he had
secretly transferred all available funds of the Reichsbank
abroad into gold, and that Germany stood ready to meet the
financial and economic tasks which lay ahead.
And it seems plain and clear from the writings, from the
acts, from the speeches of the Nazi conspirators themselves,
that they did in fact direct the whole of the German economy
toward preparation for aggressive war. To paraphrase the
words the defendant Goering once used, the conspirators gave
the German people "guns instead of butter " and they also
gave - we say, they also gave history its most striking
example of a nation gearing itself in time of peace to the
single purpose of aggressive war. Their economic
preparations, formulated and applied with the ruthless
energy of Goering, the cynical financial wizardry of the
defendant Schacht, and the willing complicity of Funk, among
others, were the indispensable first act in the heart-
breaking tragedy which their aggression inflicted upon the
world.
I should like to offer, if I may at this time, your Honour,
those documents which I have referred to in the course of
this discussion. We have here the original documents in the
folders, and they compare with the translations which have
been submitted to the court.
THE PRESIDENT: Have the defendants had the opportunity of
inspecting these documents?
MR. DODD: I doubt that they have had full opportunity to
inspect them, your Honour. The documents are there, but I
don't think they have had the opportunity to inspect them
because they haven't been there long enough for that.
THE PRESIDENT: Well, the Tribunal - I think that they should
be given full opportunity of inspecting them and comparing
them with the copies which have been submitted to us before
the originals are put in.
[Page 143]
THE PRESIDENT: Certainly. The Tribunal will adjourn for ten
minutes.
(Whereupon the Court, at l5.25 o'clock, recessed for ten
minutes.)
COLONEL STOREY: May it please the Tribunal:
The United States Prosecution now passes into the aggressive
war phase of the case and it will be presented by Mr.
Alderman.
MR. SIDNEY S. ALDERMAN: May it please the Tribunal:
I rise to present on behalf of the United States Chief of
Counsel, evidence to support the allegation of Count 1 of
the Indictment relating to the planning, preparation,
initiation, and waging of illegal and aggressive war, and
relating to the conspiracy to commit that crime.
The aggressive war phase of the case, the aggressive war
phase of the conspiracy case under Count 1, and the
aggressive war phase of the entire case is really, we think,
the heart of the case. If we did not reach it in our
presentation we would not reach the heart of the case. If we
did not present it to the Tribunal in the necessary detail,
we would fail to present what is necessary to the heart of
the case.
After all, everything else in this case, however dramatic,
however sordid, however shocking and revolting to the common
instinct of civilised peoples, is incidental to, or
subordinate to, the aggressive war aspect of the case.
All the dramatic story of what went on in Germany in the
early phases of the conspiracy, the ideologies used, the
technics of terror used, the suppressions of human freedom
employed in the seizure of power, and even the concentration
camps and the Crimes against Humanity, the persecutions,
tortures and murders committed, all of these things would
have had little juridical international significance except
for the fact that they were the preparation for the
commission of aggressions against peaceful neighbouring
peoples.
Even the aspects of the case involving War Crimes in the
strict sense are aspects which are merely the inevitable,
proximate result of the wars of aggression launched and
waged by these conspirators, and of the kind of warfare they
waged, that is total war, the natural result of the
totalitarian party-dominated State that waged it, and
atrocious war, the natural result of the atrocious
doctrines, designs and purposes of these war-makers.
For these reasons, I repeat, that in our view the phases of
the case dealing with territorial gains acquired by threats
of force and with actual aggressions and aggressive wars,
constitute the real heart of the case. Accordingly, we ask
the indulgence of the Tribunal if for these reasons we may
make the presentation of this part of the case as detailed
as seems to us necessary in view of the outstanding
importance of the subject matter.
The general scope of the case to be presented by the
American prosecution has been stated in the opening address
of Mr. Justice Jackson. That address indicated to the
Tribunal the general nature and character of the evidence to
be offered by the American prosecution in support of the
allegations with which I shall deal. However, before
approaching the actual presentation of that evidence, it
seems to us it would be helpful to an orderly presentation
of the case, to address the Tribunal in an introductory way
concerning this specific segment of the prosecution's case.
In doing so, I shall not attempt to retrace the ground so
ably covered by Mr. Justice Jackson. On the contrary, I
shall confine my introductory remarks to matters
specifically and peculiarly applicable to that part of the
American case relating to the crime of illegal warfare, and
the Common Plan or Conspiracy to commit that crime.
The substantive rule of law which must guide the
considerations of the Tribunal on this aspect of the case,
and the rule of law which must be controlling in the final
judgement of the Tribunal on this part of the case, is
stated in Article 6 of the
[Page 144]
The following acts, or any of them, are crimes coming
within the jurisdiction of the Tribunal for which there
shall be individual responsibility.
(a) Crimes Against Peace: namely, planning,
preparation, initiation or waging of a war of
aggression, or a war in violation of international
treaties, agreements or assurances, or participation in
a Common Plan or Conspiracy for the accomplishment of
any of the foregoing; " These two kinds of illegal war might not
necessarily be the same. It will be sufficient for the
prosecution to show that the war was aggressive,
irrespective of breach of international treaties, agreements
or assurances. On the other hand it would be sufficient for
the prosecution to show that the war was in violation of
international treaties, agreements or assurances
irrespective of whether or not it was a war of aggression.
We think the evidence in this case will establish
conclusively that the wars planned, prepared, initiated, and
waged by these defendants, and the wars which were the
object of their Common Plan and Conspiracy, were illegal for
both reasons. The fifth principle which I ask you to bear in
mind, is that individual criminal responsibility of a
defendant is imposed by the Charter not merely by reasons of
direct, immediate participation in the crime. It is
sufficient for the prosecution to show that a defendant was
a leader, an organiser, instigator, or accomplice who
participated either in the formulation or in the execution
of a Common Plan or Conspiracy to commit Crimes against
Peace. In the case of many of the defendants the evidence
will show direct and immediate personal participation in the
substantive crime itself. In the case of some of the
defendants the evidence goes to their participation in the
formulation and execution of a Common Plan or Conspiracy. In
the case of each defendant we think the evidence will
establish full individual responsibility for Crimes against
Peace, as defined in the Charter of this Tribunal. In this
connection I wish to emphasise that the Charter declares
that the responsibility of conspirators extends not only to
their own acts, but also to all acts performed by any
persons in execution of the Conspiracy.
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(Part 6 of 7)
MR. DODD: The sixth paragraph on the first page: "Existing
reserves will have to be touched for the purpose of carrying
through over this difficulty until the goal ordered by the
Fuehrer has been reached, and then in the case of war, they
are not a reliable backing in any case." And on the second
page, the eighth paragraph down: "If war should break out to-
morrow, we would be forced to take measures from which we
might possibly still find a way at the present moment. They
are therefore to be taken." With reference to the assertion
that the defendant Schacht was advised that Hitler ordered
that all formations of the Air Force be ready by 1st April,
1937, I respectfully refer to document 1301-PS, dated 31st
August, 1936. 1 am advised that the document should bear an
additional number. It should read 1301-PS-7. On the first
page, if your Honour pleases, the third paragraph, or the
paragraph marked 3 and after the words "air force"--
"Everybody knows from the Press what the world situation
looks like, and therefore the Fuehrer has issued an
order to him to carry out a gigantic programme compared
to which previous achievements are insignificant. There
are difficulties in the way which he will overcome with
the utmost energy and ruthlessness."
The supply of foreign currency had shrunk because of
preparations for the invasion of Czechoslovakia, and it was
considered necessary to replenish it. These - and I am now
referring to the third paragraph of that same page 25 of
document 1301-PS - "these gains made through export are to
be used for an increased armament. The armament should not
be curtailed by the export activities." He received the
order from the Fuehrer to increase the armament to an
abnormal extent, the Air Force having first priority. "
Within the shortest time, the Air Force should be increased
five-fold; also the Navy should create war weapons more
rapidly, and the Army should procure large amounts of war
weapons at a faster rate, particularly heavy artillery and
heavy tanks. Along with this manufacture of armaments a
larger production of armament, especially fuel, rubber,
powders and explosives must be moved to the foreground. This
should be coupled with an accelerated expansion of highways,
canals, and particularly of the railroads."
"The direction of the war economy by the plenipotentiary
would in that event never take place entirely independent of
the rest of the war mechanism, but would be aimed at an
accomplishment of the political war purpose with the
assistance of all economic forces. I am entirely willing,
therefore, to participate in this way in the preparation of
the forthcoming order giving effect to the Defence Act."
In the spring of 1937, the defendant Schacht participated
with representatives of the three branches of the Armed
Forces in war games in war economy which is probably
something new by way - or was something new by way of
military exercises. The war games in war economy were held
at Godesberg, Germany.
"Article 6. The Tribunal established by the Agreement
referred to in Article 1 hereof for the trial and
punishment of the Major War Criminals of the European
Axis countries shall have the power to try and punish
persons who, acting in the interests of the European
Axis countries, either as individuals or as members of
organisations, committed any of the following crimes.
Sub-paragraph's (b) and (c) of Article 6 are not pertinent
to this aspect of the case. However, the unnumbered final
paragraph of Article 6 is of controlling importance on this
aspect of the case. That paragraph reads:-
"Leaders, organisers, instigators and accomplices
participating in the formulation or execution of a
Common Plan or Conspiracy to commit any of the
foregoing crimes are responsible for all acts performed
by any persons in execution of such plan."
In receiving evidence on this aspect of the case I would
request the Tribunal to have in mind five principles derived
from the portions of the Charter I have just read:
(1) The
Charter imposes "individual responsibility" for acts
constituting "Crimes against Peace;"
(2) The term "Crimes
against Peace" embraces planning, preparation, initiation,
or waging of illegal war;
(3) The term "Crimes against
Peace" also embraces participation in a Common Plan or
Conspiracy to commit illegal war;
(4) an illegal war
consists of either a war of aggression, or a war in
violation of international treaties, agreements or
assurances.