[Page 132]

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

According to the statement of the prosecution, Russian prisoners of war allegedly helped with the disposal of the bodies. That has not been proved. None of the Russian population had ever seen such prisoners. In no case could all traces of the deed be erased so quickly, and the site so speedily made unrecognisable, that the witnesses Oberhauser and Eichborn on their frequent trips to the Dnieper Castle would not have noticed some suspicious signs.

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

[Page 133]

There is one thing, however, which cannot be overlooked in this connection. The expert opinion obtained by the German Government was given by twelve members of a commission of leading representatives of forensic medicine from European universities, while the expert opinion referred to by the prosecution was deposed by a group of Russian experts only. The first expert opinion is to be preferred, since it was compiled by experts who were completely non-political.

The witness Professor Markov, in his examination, deviated from the opinion contained in the report of the 30th of April, 1943. Allegedly, even at that time, due to his findings upon making an autopsy on the bodies, he did not agree with the report that the shootings took place in the months of March and April, 1940, and in this respect the testimony must be met with misgivings.

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

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

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

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

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

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

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

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

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

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

This was a rather comprehensive protocol which described the findings of the investigations. It contained the entire facts of the case, and it concluded with a general opinion of experts. It is composed, as I have stated, of facts and reasons. It contains, first of all, a very comprehensive statement in which the facts which the experts there were considering are described individually. The fact that

[Page 134]

Mr. President, may I be permitted to make one more remark to clarify these matters? I remember this incident very particularly because you, Mr. President, first mentioned it and asked whether I had another copy of this protocol. I said, "No, I have only the 'White Book'." Then that was submitted to the witness, and thereupon I suggested that the other witness be called in immediately so that I could have a copy made of this protocol. Then you, Mr. President, thought it had better not be so, but that I should take the book back and then afterwards submit a copy.

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

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

THE PRESIDENT: We will continue then.

DR. STAHMER: The statement of the witness is subject to considerable doubt. The witness could not give any satisfactory explanation as to why, in view of his attitude concerning the form of the protocol of 30th April, 1943, he did not immediately contest it and refuse to sign it, and why he did not, at a later date, at least tell the other experts who participated his true, scientific conviction.

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

Because of this state of affairs, it will not be necessary to set forth the individual reasons which support the correctness of the statements contained in the German "White Book" of April 30th 1943.

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

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

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

Shall I continue now?

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

DR. STAHMER: I will not have quite finished in ten minutes, and I should like to stress that I would not like to have to interrupt my concluding remarks.

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

[Page 135]

THE PRESIDENT: Very well.

(A recess was taken until 1400 hours.)

DR. STAHMER: I come now to the summary.

If we now review the personality and life of the defendant Goering, the following viewpoints must be considered for the appraisal of his actions:

With a good educational background and training in character, he received the impressions which determined his future attitude as a young officer and combat airman during World War I, in which he proved his outstanding worth, receiving the highest award for bravery, the order of Pour le merite. He experienced the collapse of the German war effort as a consequence of, as he saw it, German treachery from within.

After the rule of the Kaiser had been overthrown, the German people wanted to give themselves a new constitution on a democratic basis and then hoped to be able to work their way up again by industry and perseverance. In this, the confidence in the far-sightedness of the victorious powers of that time, and especially in the fourteen points of Wilson, played a great part.

But when the Treaty of Versailles utterly frustrated these hopes, the Weimar democratic Government fell into disfavour. This, together with the subsequent world economic crisis, formed the prerequisites which paved the way to the seizure of power by Hitler.

At first, the "fight against Versailles" made his rise as a party leader possible. Goering as witness described how he agreed with Hitler during their first meeting that nothing could be achieved by written protests.

The powerlessness of the German democracy had now become apparent to the entire world. Goering, like Hitler, was convinced that Germany inevitably must become a victim of Bolshevism unless the Communists were vigorously opposed, the economic conditions of the people improved and the self- confidence of the German nation restored. The continuation of the "fight against Versailles" was a matter of course. But in this, Hitler's view was that Germany belonged basically to the West, culturally, economically and even politically. He believed that the Bolshevist danger, which at first was directed against Germany, would ultimately also threaten the Western countries. He, therefore, was of the opinion that he would be able to gain gradually their recognition and support if he took up the ideological struggle against the East.

From this basic attitude alone, is it possible to explain his entire policy until the actual collapse. One may rightly condemn it today as having been a failure from the outset, but one cannot ignore the fact that, at first, many things in the development clearly seemed to justify it. And this explains how Hitler succeeded in gaining ever-increasing support from the German people.

Goering firmly believed that salvation could come only through Hitler. He recognized in him the born national leader who knew how to influence and to guide the masses, and whose hypnotic will-power could not be intimidated by any obstacle. He realised that under a democratic constitution only such a man of demoniacal-demagogic talent was able to prevail. And therefore he joined him. Because Goering was a true and honest German, inspired only by love for the Fatherland, he did not even think of using Hitler only as a tool for his own advancement. On the contrary, from the beginning, he freely and sincerely accepted Hitler as the man who' alone decides, in other words, as the "Fuehrer", and was willing to be satisfied with a subordinate role. Therefore, the famous air force captain and holder of the order Pour le merite, did not hesitate to swear the oath of allegiance to the then still unknown Hitler, an oath which was to hold good for the rest of his life and actually did so.

[Page 136]

His aim was at first directed to freeing Germany from the shackles of the Treaty of Versailles. The Weimar Government had made repeated attempts to be released from the most onerous obligations of this treaty. However, Germany was not successful in her endeavours for a revision.

No progress was made by negotiating.

Did not International Law appear to be only an instrument in the hands of the victors of Versailles to keep Germany down permanently? Was it not still true in the world that might came before right, and that the Germans would achieve something only if they had the courage to strike an inflexible attitude?

Such considerations appear absolutely understandable from the situation of that time. To construe from them a proof for the conspiracy alleged by the prosecution would mean a complete misunderstanding of the facts. Actually, the development after 1933 seemed at first to prove Hitler completely right. He easily achieved with his methods much more than what - if given freely - would have kept the Weimar Government in power.

From the willingness of the foreign countries not only to conclude treaties with Hitler - such as the Naval Agreement of 1935 and the Munich Pact of September, 1938 - but also to participate to the end in the Party rallies, the German people could only, conclude that Hitler had chosen the correct road for reaching international understanding.

This impression and this judgement were absolutely correct until the autumn of 1938. Had Hitler afterwards observed loyally the Munich Agreement, then he would probably have rendered abortive the arguments for the "stop" policy which was initiated against him. Not only would the peace have been kept, but Hitler could also have harvested the fruits of his domestic and foreign policy carried out until then and recognized by all Powers.

Basically, the argument today only centres in the question whether the developments since then and their catastrophic consequences are to be charged solely to him or to others. All Germans who followed Hitler at any time and in any way are accused. It is said by the prosecuting nations, above all, by those who put no trust in him from the outset and who denied the legitimacy of his government from the beginning - "It could be foreseen that he would end as he did!" Therefore, everyone who supported him at any time, and in any way, also shares the guilt.

To this accusation it must be objected that out of the sad results it constructs, in retrospect, an obligation which would destroy all belief not only in freedom, but also in the wisdom of man. Of course, Hitler himself did not desire the end as it came. He frequently announced at the beginning that he was not out for the laurels, of war, but wished to devote the rest of his life to peaceful construction work.

From a truly objective point of view, one can reproach him only for not having limited his aims when he realised he could not effect their achievement by peaceful and humane means.

If by such means, that is, by renouncing force of any kind, he could have achieved his aims, then he would not have had to go his own way and would not have had to seek a new solution. In the circumstances, a certain play with force, up to the point where it does not get out of hand, must be regarded as permissible. Where the excesses in force began can only be determined, due to lack of other proof, by the results of his policy. He certainly did not foresee and intend the bad results. However, the basis of his criminality must be regarded as the fact that he would never let himself be taught by his failures, but instead let himself be led on to still greater extremes. But how much of this guilt can and may be charged also to his followers?

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