Chapter XVII: Part 4: , Book 20, as follows (2)

The fact of armament, as such, therefore, proves absolutely nothing for the assertion of the Prosecution that Schacht deliberately contributed to the preparation of a war of aggression. Simultaneous economic armament, however, belongs of necessity to armament in the modern sense. On the German side this was already recognized for the first time at the beginning of the first World War by two very important German Jews, the founder of the Hamburg-America Line, Albert Ballin, and the great German industrialist, Rathenau. This is the same Rathenau who made the wonderful speech on peace during the Genoa Conference, which was received with wild applause by the delegates of those very powers which had opposed his country but 4 years previously as enemies, and who, as German Foreign Minister, was the victim of an anti-Semitic outrage in the early twenties. I probably can assume that the personality of Albert Ballin is known to the Court. Both men recognized, at the very outbreak of the first World War, the error of omitting economic mobilization. Rathenau then organized the so-called War Raw Materials Department of the War Ministry. The first Plenipotentiary General for War Economy, for this is what he really was, was thus ideologically a pacifist; and certainly since that time there is probably no mobilization plan by any nation which does not provide for the purely military armament to be accompanied by a corresponding economic preparation for war. Therefore, the designation of a Plenipotentiary General for War Economy, even if he had taken up his duties, which as the evidence demonstrates most convincingly he never did but remained a dummy, does not show anything in the way of proof that the intention to wage a war of aggression existed. This post is equally necessary when arming for defense. The same applies to the institution of the Reich Defense Council, the Reich Defense Committee, _et cetera_. As such they are the same harmless, matter-of-course factors. They have no incriminating value. Only their misuse for the purpose of a war of aggression would be incriminating. However, Schacht’s criminal intention in this respect has not been established, nor has anything else been found. I therefore refrain from going into details on this subject.

In conclusion, the Prosecution sees something incriminating in the so-called maintenance of secrecy regarding certain mobilization measures and mobilization arrangements, as for example the second Reich Defense Law. Here, too, a natural and worldly-wise way of thinking deprives these findings of any incriminating character. All nations are accustomed to treat mobilization and armament measures as secret. Upon further consideration and after closer observation this practice can, of course, be recognized as a very superfluous routine matter. Only plans and technical details can be really kept secret. The fact of rearmament as such can never be kept secret. The same applies to the existence of a large body which is to serve the purpose of this rearmament. Either it becomes known because it starts to function, or, like the ominous Defense Council, it remains hidden and secret only because it does not function.

In the memoirs of a Czarist officer regarding his experiences in the Russo-Japanese war I found the following humorous observation:

“If I, as a member of the General Staff, wished an incident to
become known, I had it classified as ‘secret’ and my wish was
fulfilled. If I wished to keep something secret, which was
almost an impossibility, I unobtrusively gave it free
circulation and occasionally my wish was fulfilled.”

One should not quibble in a vacuum; but if one wishes to find the truth, one must take into account the teachings of experience based on hard facts.

Thus, the fact of the military activation of Germany after the seizure of power by Hitler and the subsequent rearmament was never a secret to the world. The main proceedings have produced a great deal of evidence to this effect. We know the report of Consul General Messersmith; we know his sworn testimony of 30 August 1945, submitted by the Prosecution under Number 2385-PS, according to which the armament program—he speaks of a giant armament program immediately following the seizure of power—and the rapid development of the air program had been apparent to everybody; it had been impossible to move in the streets of Berlin or in any other city of importance in Germany without seeing pilots or aviators in training. He expressly states, on Page 8 of his testimony, that this giant German rearmament program was never a secret and was quite publicly announced in the spring of 1935.

I would like to remind you, amongst a great deal of other evidence, of the remark of Ambassador Dodd, who contends that he pointed out to Schacht that the German Government had bought high-grade airplanes from American airplane manufacturers for 1 million dollars and had paid for them in gold. Even if Ambassador Dodd perhaps made a mistake in this detail, yet all this still proves that German rearmament—the extent of which was surely even overestimated abroad at that time—must have been, at the very best, an open secret.

Therefore it is not even necessary to refer to the mutual visits of the Chiefs of General Staffs, to which Milch and Bodenschatz testified, the visits of the Chief of the British Intelligence Service, Courtney, the permanent presence in Berlin of military attachés of nearly all countries, in order to recognize that the so-called secret rearmament was quite public and only safeguarded a few technical secrets, as did rearmament in every state. The outside world knew of the existence of this rearmament and, in any case, considered it to be compatible with world peace longer than Schacht himself did.

It is not for me to criticize the attitude of the outside world, nor is it my intention to do so. Each part on the stage of life has its own rules of tact, including the part played by the defendant and his defense counsel. Their task is to establish a defense, and not to bring charges and make an attack. In connection therewith I expressly wish to guard against a possible misunderstanding to the effect that I want to appear as an accuser, a critic, or a know-it-all in any way. I present all this only from the aspect of my submission that the indirect circumstantial evidence submitted by the Prosecution is not conclusive.

Furthermore, the Prosecution argues that Schacht was a member of the Reich Cabinet, at least as Minister without Portfolio from the time of his dismissal in January 1938, as Minister of Economics, until January 1943. The Prosecution makes the Reich Cabinet responsible—criminally responsible—for the belligerent invasions of Hitler. This argumentation has an attractively convincing power for somebody who starts with the normal concept of a Reich Cabinet. The effect disappears once it has been ascertained that the so-called Reich Cabinet was not a cabinet in the usual sense applying to a constitutional state.

Judgments should not, however, be based on outward appearances and form—not on fiction, but only on actually established conditions. This makes it necessary to penetrate sociologically the nature of the Hitler regime and to examine whether a member of the Reich Cabinet, hence of the Reich Government as such, must in this capacity bear the same criminal responsibility as if he were in any other normal state set-up, be it a democratic republic or a democratic monarchy or a constitutional monarchy or a monarchy which, although absolute, was nevertheless founded on law, or some other constitutionally based set-up which bears the character of a somehow lawful state based on a constitution. We are thus obliged to investigate the actual sociological structure of the Hitler regime. We have heard an account on the Führer Order (Führerbefehl) in this connection by Professor Jahrreiss. Here, too, I want to avoid repetition and would only state the following in abbreviated form:

I want to say first of all, in order to avoid once more the danger of a misunderstanding, that when I speak of the Hitler regime here I do so without referring in any way to the persons sitting in the dock; naturally with the exception of Schacht. For the latter, I do so in the negative sense, for he did not belong to the regime as such, in spite of the fact that he was a member of the Reich Government and President of the Reichsbank. I leave the question completely open as to whether any of the other defendants should be considered a member or supporter of the regime. That question is subject only to the judgment of the Tribunal and the evaluation of the defense counsel for each case.

At the very beginning of my argument I indicated that, even for a person who lived in Germany during the Hitler regime, it is difficult to differentiate between the ostensible distribution of power and the actual underlying influence, since this requires a great deal of political intuition; it is bound to be impossible to judge for people who lived outside Germany and can only be arrived at through the findings resulting from the presentation of evidence before this Tribunal. We have established here that the Reich Cabinet, whom Hitler termed a club of defeatists, was convened for the last time in 1938 and that it met then only to receive a communication from Hitler. For actual deliberation and the passing of a resolution it had last been convened in 1937. We have also established that Hitler deliberately kept all news of political importance from the Reich Cabinet, as is proved quite unequivocally by the so-called Hossbach minutes of 10 November. During this meeting the Führer called the attention of the chiefs of the branches of the Wehrmacht and the Reich Foreign Minister, who were present—Schacht, of course, was not present and did not learn about the Hossbach minutes until he came here—to the fact that the subject for deliberation was of such great importance that it would result in full Cabinet meetings in other countries but that, just because of its great significance, he had decided not to discuss the matter with the Reich Cabinet.

Thus, at least after 1937, the members of the Reich Cabinet can no longer be considered the architects and supporters of the political aspirations of the Reich. The same holds true for the members of the Reich Defense Council, which as such was nothing but a bureaucratic and routine affair. Accordingly Hitler, in the spring of 1939, explicitly excluded the Reich Defense Council also from further war preparations, saying: “Preparations will be made on the basis of peacetime legislation.”

Despotism and tyranny showed themselves in unadulterated form as from 1938. It is a characteristic quality of the Fascist as well as the National Socialist regime, to have the political will concentrated in the head of the Party, who with the help of this Party subjugates and becomes master of the State and the nation. Justice Jackson also recognized this when he stated, on 28 February 1946, that the apex of power rested with a power group outside the State and the Constitution.

To speak, in the case of such a regime, of a responsible Reich Government and of free citizens who, through some organizations or others, could exert influence on the formation of the political will, would be to proceed from entirely wrong hypotheses. Intangible elements devoid of all sense of responsibility usually gain influence on the head of the State and Party in such regimes. The formation of the political will can be recognized in its crystallized form only in the head of the State himself; all around him is shrouded in a haze. It is another characteristic of such a regime—and this again belongs to its inner untruthfulness—that beneath the surface of seemingly absolute harmony and union several power groups fight against each other. Hitler not only tolerated such opposing groups, he even encouraged them and made use of them as a basis for his power.

One of the defendants spoke here of the unity of the German people during this war in contrast with the first World War, but I must stress in reply that hardly at any time during its history was the German nation so torn internally as it was during the Third Reich. The apparent unity was merely the quiet of a churchyard, enforced through terror. The conflicts between the individual high functionaries of the German people, which we have ascertained here, reflect the inner strife-torn condition of the German nation, carefully concealed through the terror wielded by the Gestapo.

To give only a few examples: We were confronted here with the conflicts between Himmler and Frank, between Himmler and Keitel, between Sauckel and Seldte, between Schellenberg and Canaris, between Bormann and Lammers, between SA and SS, between Wehrmacht and SS, between SD and Justice, between Ribbentrop and Neurath, and so on and so forth. The list could be continued ad libitum.

Even ideologically the Party in itself was divided into pronounced oppositional groups, which was shown already at the very beginning of the presentation of evidence by Göring’s testimony. These oppositions were fundamental, and they were not bridged by Hitler but rather deepened. They were the instrument from which he elicited his power. The ministers were not responsible governing persons, as in any other state where law is the foundation; they were nothing but employees with specialized training who had to obey orders. And if a departmental minister, as in the case of Schacht, did not wish to submit to this, it resulted in conflict and resignation from his post.

For this very reason no minister could in the long run take full responsibility for his department, because he was not exclusively competent for it. A minister, in accordance with constitutional law, must first of all have access to the head of State; and he must have the right to report to him in person. He must be in a position to reject interference and influences coming from irresponsible sources. None of the characteristics applicable to a minister apply to the so-called ministers of Adolf Hitler. The Four Year Plan came as a surprise to Schacht. Similarly, the Minister of Justice was surprised by so extremely important a law as the Nuremberg Decrees. Ministers were not in a position to appoint their staffs independently. The appointment of every civil service employee required the consent of the Party Chancellery. The intervention and influence of all possible agencies and persons of the various Chancelleries—Chancellery of the Führer, Party Chancellery, _et cetera_—asserted themselves. They, however, were agencies placed above the ministries and they could not be controlled. Special delegates governed over the heads of the departmental chiefs. Ministers, even the Chief of the Reich Chancellery, as we have heard from Lammers, might wait for months for an audience, while Herr Bormann and Herr Himmler had free access to Hitler.

The anticamera and camarilla, indispensable accessories of all absolutism, have at all times been difficult to fathom as to the personal responsibility of the individual circles of which they are composed. The irresponsible influences exerted over and affecting Hitler were absolutely intangible.

Generaloberst Jodl described to us here how Hitler’s sudden actions, caused by some urge and attended by the most serious consequences, could be traced back to influences of an entirely obscure and unknown sort, such as pure chance, conversations at a tea party, or the like. For the objective facts this bears out what I already mentioned in the beginning. And so this state of affairs precludes even the possibility of the planning of a crime such as a war of aggression within a clearly defined circle of persons, much less within the so-called Reich Government. But where no planning is possible, there can be no plot, no conspiracy either, the most striking characteristic of which is this very common planning, even though the participants have different and varied roles. Let us assume the broadest conceivable interpretation of the ostensible exterior characteristics of the conspiracy. I am following Justice Jackson’s line of reasoning. He who takes part in a counterfeiters’ plot is guilty of conspiracy, even through he may have written only a letter or acted as bearer of the letter. He who participates in a plot for robbing a bank is guilty of murder if, in the course of the execution, not he but a third party in the group of planners commits murder. At all times, however, the prerequisite is a body of persons capable of evolving a common plan. Such a thing was not possible for Adolf Hitler’s ministers; it was not possible at all under Hitler. From this it follows that no conspirator could participate in Hitler’s crime of having forced upon his own people and the world a war of aggression, except those who served Hitler as assistants.

The forces at work in the Third Reich as depicted thus permit in thesis only the assumption that there existed a punishable complicity or punishable assistance, not, however, a punishable group offense such as a conspiracy. Whether such complicity or such punishable aid in the crime of a war of aggression committed by Hitler exists for individual defendants personally can only be investigated and decided in each individual case. It is my task to investigate this only in the case of Schacht.

A collective crime such as conspiracy is, however, excluded as inconceivable and impossible in the light of the actual conditions as already established. But even if this were not the case, the subjective aspect of the deed is completely lacking in the case of Schacht. Even if the objective facts of a conspiracy were to exist for a certain circle of the accused and even with the most liberal interpretation of the concept of conspiracy, it is still essential that the conspirator should include the plan of conspiracy and the aims of the conspiracy within his will, at least in the form of _dolus eventualis_.

The strict facts constituting a conspiracy can best be illustrated by comparison with a pirate ship. In reality every crew member of the pirate ship, even a subordinate, is guilty and an outlaw. But a person who did not even know that he was on a pirate ship but believed himself to be on a peaceful merchant vessel, is not guilty of piracy. He is equally innocent if, after realizing the pirate character of the ship, he has done everything he could to prevent any piracy, as well as to leave the pirate ship. Schacht did both.

As far as that is concerned, research on conspiracy also recognizes that a person is not guilty who has withdrawn from the conspiracy by a positive act before attainment of the goal of the conspiracy, even if he did co-operate previously in the preparation of the plan for conspiracy, which was not the case with Schacht. In this connection, I also consider as being in my favor Mr. Justice Jackson’s answer when I put up for discussion, during Schacht’s interrogation, the question whether the persecution of the Jews is also charged to Schacht. Mr. Justice Jackson said, yes, if Schacht had helped prepare the war of aggression before he withdrew from this plan for aggression and its group of conspirators and went over unreservedly to the opposition group, that is, to the conspiracy against Hitler. This desertion would then be the positive act which I have mentioned whereby a person at first participating in a conspiracy would separate himself from it.

This legal problem does not even enter into consideration as far as Schacht is concerned, because the evidence has shown that he never desired to participate in the preparation for a war of aggression.

As already stated, this accusation of the subjective fact of the conspiracy has not been proved either by direct or by indirect evidence. For the events up to the year 1938 I can point to the statements made previously. It has been proved that from 1938 on, at the latest, Schacht fought the bitterest struggle imaginable against any possibility of war in such a form that he attempted to overthrow the person responsible for this risk of war and this will for aggression and, thereby, the regime.

Your Lordship, I have now arrived at the end of a section, if Your Lordship would care to announce a recess now.

THE PRESIDENT: We will adjourn.

[_A recess was taken._]

DR. DIX: I beg your pardon for being late, but I was detained at the entrance.

Gentlemen of the Tribunal, I have arrived at the discussion of the beginning of the opposition by means of the various Putsch actions.

It is quite irrelevant and of incidental importance to investigate whether the attempts at a Putsch, which occurred at shorter or longer intervals during the war, would have been instrumental in securing better peace terms for Germany. This is absolutely meaningless for the criminal evaluation of Schacht’s course of action. Doubtlessly, according to human reckoning, a successful prewar Putsch would have prevented the outbreak of war; and a successful Putsch after the outbreak of war would at least have shortened the duration of the war. Therefore such skeptical considerations about the political value of these Putsch attempts do not disprove the seriousness of the plans and intentions for a Putsch, and that is all that counts in a criminal legal evaluation. For it proves first of all that a person who has been pursuing them since 1938, and even since 1937, if one includes the attempt with Kluge, could not possibly previously have had warlike intentions. One does not try to overthrow a regime because it involves the danger of war, if previously one has oneself worked toward a war. One does so only if by all one’s actions, even that of financing armament, one wished to serve peace. For this reason these repeated Putsch attempts on the part of Schacht do not have any legal significance of a so-called active repentance for previous criminal behavior but constitute _ex post_ proof that he cannot be accused even before 1938 of deliberately working for war, because it would be logically and psychologically incompatible with Schacht’s activity of conspiracy against Hitler.

These Putsche thus prove the credibility of Schacht in respect to his explanation of the reasons and intentions which caused him actively to enter the Hitler Government and to finance armament to the extent to which he did, namely, to the amount of 12,000 millions. They prove _ex post_ the purely defensive character of this financing of armament; they prove the credibility of Schacht’s contention of having tactically achieved, in addition, a general limitation of armament. If one does believe this explanation of Schacht’s, and I think one must believe it, then one cannot speak of Schacht’s co-operation in instigating a war of aggression.

This credibility is also proved by another circumstance. Schacht originally contradicted the testimony of Gisevius and my questions following the same line, that he had admired Hitler at the beginning and had unreservedly considered him a brilliant statesman. He described this in his interrogation as an erroneous assumption. He said that he had recognized from the beginning many of Hitler’s weaknesses, especially the fact of his poor education, and had only hoped to be in a position to control the disadvantages and dangers resulting from them. By this contradiction Schacht made his defense more difficult; but he is wise enough to have recognized this. Thus what he deliberately forfeited from the point of view of evidence which would serve his defense, he gains with regard to his credibility upon objective evaluation of evidence based on psychological experience. For a person who serves the truth by contradiction deserves increased credibility, when the suggested untruth or the half-truth is more advantageous to him technically and tactically by way of evidence.

There should be no doubt about Schacht’s leading role in the activities of the various conspiracies about which Gisevius testified on the very basis of this credible testimony. During the cross-examination Mr. Justice Jackson confronted Schacht with photographs and films which superficially show a close connection with Hitler and his paladins. This can only have been done in order to throw doubt on the earnestness of his active opposition to Hitler. I must, therefore, deal briefly with this point of the photographs and films. Mr. Justice Jackson has coupled this accusation with another one by quoting speeches ostensibly expressing great devotion on the part of Schacht toward Adolf Hitler even during the Putsch period. This accusation is on the same level. I believe that this argument cannot stand up either before the experiences of life nor before what we can observe of history. History teaches us that conspirators, especially if they belong to the closer circle of dignitaries of the threatened head of state, show special devotion for purposes of camouflage. Nor has it ever been observed that such people impart their intentions to the prospective victim in a spirit of contradictory loyalty. One could cite many examples of this from history.

There exists an effective German drama by a certain Neumann which concerns itself with the murder of Czar Paul by his first Minister, Count Pahlen. The Czar believes to the very end in the ostentatious devotion of Count Pahlen, even while the latter is already sharpening his knife. And the historical documents in existence include a note by Count Pahlen to the Russian Ambassador in Berlin, immediately before the assassination, in which Count Pahlen persists in speaking about “_Notre auguste Empereur_,” and so forth. Significantly, this drama bears the title _The Patriot_.

Thus, there is a higher patriotism than the merely formal loyalty of a servant of the nation. It would be closer to the psychological truth if this presumptive devotion, assumed for the sake of appearances, and the assurances of loyalty during this period were judged more in favor of the objective credibility of Schacht’s explanations than _vice versa_. As a conspirator, he had to camouflage himself especially well. To a certain degree this had to be done by practically everyone who lived under this regime in Germany. As far as the photographs are concerned, it is probably an inevitable consequence of every social and representative participation in a body that one becomes a victim of the camera along with the members of the body whether one likes it or not. A member of a Government cannot always avoid being photographed with these people on the occasion of their meetings. As a result we have pictures that show Schacht between Ley and Streicher and the scene in the film showing the reception of Hitler at the railroad station. Viewed ex post, these pictures give no pleasure to the observer, and certainly not to Schacht either. But they do not prove anything. In a natural evaluation belonging to a normal average experience of life, I consider these pictures without any value as evidence, either _pro_ or _contra_.

Foreign countries, too, through their prominent representatives, had social intercourse with Adolf Hitler’s Government, and this not only through their diplomatic corps. I wish to assure you that the Defense is in a position to produce pictures of a much more grotesque sort which do not seem nearly as natural as Schacht being photographed together with men who, after all, were his fellow dignitaries in the Third Reich. To produce such pictures, however, might not be very tactful on the part of the Defense; yet should it be necessary to investigate the truth in all seriousness, a defense counsel might have to take upon himself the odium of indiscretion. I do not believe that there is any need for me to do so in this case, because the irrelevance and insignificance of such a presentation of evidence through pictures taken on state occasions of the Third Reich seems to me to be obvious.

The only incriminating point pressed by the Prosecution which is left for me to argue now appears to be that Schacht, after his retirement as Minister of Economics and even after his retirement as President of the Reichsbank in January 1939, remained Minister without Portfolio until 1943. Schacht declared that this had been stipulated by Hitler as a condition for his release from the Ministry of Economics. Hitler’s signature, as that of the head of the State, was necessary for his dismissal. Had Schacht refused to remain as Minister without Portfolio, he would surely have been arrested sooner or later as a political suspect and thus been deprived of all possibility of action against Hitler. The witness Gisevius has testified as to the discussions at that time between him and Schacht concerning the continuation of Schacht’s function as Minister without Portfolio. In these deliberations the idea was quite justly considered important that Schacht could be of more use to the group of conspirators as a scout or an outpost if he remained in this position, to outward appearances at least, within the Reich Government. Even as Minister without Portfolio, Schacht remained exposed to great danger, as is shown by his and Gisevius’ declarations and as becomes obvious from Ohlendorf’s statement that Schacht already in 1937 was on the black list of the State Police.

How much Hitler feared Schacht is proved by his subsequent remarks to Speer, which have been discussed here, particularly his remarks about Schacht after the attempted assassination on 20 July. I would also remind you once more of Hitler’s memorandum of 1936, which he gave to Speer in 1944 and which shows that he saw in Schacht a saboteur of his rearmament plans. It has been declared and proved by Lammers that Schacht tried later on to get rid even of this nominal position. Lammers and Schacht have proved furthermore that this position of Minister without Portfolio was without any special importance. Hence my reference to him as an officer with assimilated rank, that is, an officer without command authority, a sham officer. Schacht could not give up the position unless there was a row, and the same held true of his position as Reichsbank President. Schacht, therefore, had to maneuver in such a way that he would be thrown out. He succeeded in this, as I explained, as Reichsbank President through the well-known memorandum of the Directorate of the Reichsbank and the refusal of credits by the Reichsbank in November 1938 contained therein. As far as his position of Minister without Portfolio was concerned, he succeeded through his defeatist letter of November 1942. In the meantime he made use of the time for the attempted _coup d’état_ in autumn 1938 and for the various other attempted _coups d’état_ leading up to that of 20 July 1944, which finally caused him to be put in a concentration camp.

A criminal reproach can on no account be made against him in his position as Minister without Portfolio. For his proved conspiratorial activity against Hitler during all this time eliminates by force of logic the supposition that he had furthered Hitler’s war plans and war strategy during this time. In any event, we can only raise—and even that only in the vacuum of abstraction—a political reproach against the Schacht of the years 1933-37. But this, too, is fully compensated by the extraordinarily courageous attitude of Schacht after this period. To obtain its just evaluation, may I remind you of the interesting statement of Gisevius to the effect that he, who had at first looked with a certain skepticism upon Schacht’s original attitude, not in a criminal but in a political sense, had later become completely reconciled with Schacht by the extraordinary courage which Schacht displayed as opponent and conspirator against Hitler since 1938. I am of the opinion, therefore, that the fact that Schacht remained as Minister without Portfolio does not incriminate him either directly or indirectly, neither according to penal law, which is out of the question, nor morally, if one takes into consideration his behavior as a whole, his motives, and the accompanying circumstances and conditions.

If the Prosecution now finally argues, on the basis of the text of the afore-mentioned memorandum by the Directorate of the Reichsbank, that an opposition to war is not evident from the memorandum, but only technical reflections on finance and currency, then I have only to refer in this respect to my earlier statements and the testimony of Vocke. The presentation of facts by Schacht himself would not even be necessary to refute this argumentation. Vocke in his capacity as closest collaborator declared quite unequivocally that Schacht wished to limit and sabotage rearmament from the moment when he recognized that it was becoming a potential war danger. The sworn affidavit of Hülse and the sworn affidavits of all the collaborators of Schacht in the Reich Ministry of Economics tally with the testimony of Vocke in this respect. I need not quote them individually. They are known to the Tribunal. The Tribunal does not need the commentary of a defense counsel on them; they speak for themselves. If the Prosecution now finally bases its argument on the text of the memorandum which, it is true, actually only deals with financial problems, then again I cannot suppress the remark that such an argumentation moves in a vacuum insofar as one does not take the experiences of history and the general experiences of life into consideration. Naturally, as I have already said, the Directorate of the Reichsbank could only bring up arguments from their department, particularly so in dealing with a Hitler. One says one thing while meaning another.

If the Directorate of the Reichsbank, along with their President, Schacht, had revealed their true purpose in this memorandum, namely, to avert the danger of war and to combat Hitler’s will of aggression, then they would have deprived themselves of the effect of technical departmental influence. Hitler very well understood the purpose of this memorandum when he shouted, after reading it: “That is mutiny!” With this, Hitler recognized the only thing that can be said of Schacht as conspirator: He was never a mutineer and conspirator against world peace; but, insofar as he was a conspirator and mutineer, he was so only against Adolf Hitler and his regime.

Again in this case I must ask the High Tribunal to turn their attention to Appendix Number II, which I must insert at this moment, because the matter that is dealt with here did not reach me for translation until after I had submitted my final speech.

I said that Schacht, insofar as he was a conspirator, was so only against Hitler. As such, he was the subject of ironical belittling by Generaloberst Jodl and my colleague Nelte through the epithet, “frock-coat and drawing-room revolutionary.” Now history teaches that the quality of the tailor does not play any role in the case of the revolutionary. And as far as the drawing room is concerned, shacks have no revolutionary precedence over palaces. I would just recall the political drawing rooms of the great French Revolution or, for example, the elegant officers’ club of the select Preobrashensk regiment under many a Czar. Should the Gentlemen of the Tribunal be of the opinion that Schacht and his accomplices themselves should have done the shooting, then all I can say is that things were not as easy as all that. Schacht would have loved to do the shooting himself; he proclaimed that here emphatically. But it was not possible for him to do so without possessing the power to master the attendant confusion, thereby making the attempt a revolutionary success. Thus generals with troops were necessary. I do not wish to repay Generaloberst Jodl with the same coin and shall therefore refrain from saying “a necessary evil.”

The further reproach of the basic lack of working-class elements to strengthen the Putsche is contradicted by the social composition of the revolutionaries of 20 July. As I stated before, all this is irrelevant for the decision of the Tribunal. But my client is morally entitled to expect his defense counsel not to let this ironical thrust pass, especially since it was delivered in the limelight of public opinion.

In summing up I may say: After the elections in July 1932 it was certain that Hitler was able and bound to seize power. Previous to this Schacht had particularly warned the foreign countries of this development, and thus he had not contributed to it. After the seizure of power only two roads were open to him, as to every German: He either had to estrange himself or to enter the Movement actively. The decision at these crossroads was a purely political one without any criminal aspect. Just as we respect the reasons which caused the foreign countries to collaborate with Hitler much more intensively and in a more pro-German way than with the previous democratic Governments of Germany, we must recognize the good faith of all those Germans who believed themselves able to serve the country and humanity better by remaining in the Movement, that is, within the Party or the apparatus of officialdom, because of the greater possibilities of exerting their influence, than by grumbling and keeping aloof. To serve Hitler as minister and President of the Reichsbank was a political decision, about the political correctness of which one can argue _ex post facto_ but one which certainly lacked any criminal character. Schacht has always remained loyal to the motivating reason for his decision, namely, to combat any radicalism from an influential position. Nowhere in the world, which knew his oppositional attitude, could he see any signs of warning or support. He saw only that the world trusted Hitler much longer than he himself did and permitted Adolf Hitler to gain honors and foreign political successes, which hampered Schacht’s work which had already for a long time been directed toward removing Adolf Hitler and his Government. He led this struggle against Adolf Hitler and his Government with a courage and determination which must make it appear a pure miracle that not until after 20 July 1944 did fate overtake him, when he was sent to a concentration camp and was in danger of losing his life either through the Peoples’ Court or through a spectacular act of the SS. He is sufficiently wise and self-critical to realize that from a purely political angle the picture of his character will be adjudged diversely in history, or at least in the immediate future, according to favor or hatred of the parties. He humbly resigns himself to the judgment of history, even if one historian or another will label his political line as incorrect. But with the pride of a good conscience he faces the judgment of this High Tribunal. He stands before his judges with clean hands. He also stands before this Tribunal with confidence, as he has already manifested in a letter which he addressed to this Tribunal before the beginning of the proceedings, in which he states that he is grateful to be able to expose before this Tribunal and before the whole world his actions and doings and their underlying reasons. He stands before this Tribunal with confidence because he knows that favor or hatred of the parties will have no effect on this Tribunal. While recognizing the relativity of all political actions in such difficult times, he remains sure of himself and full of confidence with regard to the criminal charges which have been raised against him. Whoever would be found guilty of being criminally responsible for this war and the atrocities and inhuman acts committed in it, Schacht, according to the evidence which has been given here with minute exactness, can confront that culprit with the words which Wilhelm Tell flings in the face of the emperor’s assassin, Parricida: “I raise my clean hands to Heaven, and curse you and your deed!”

I therefore request the findings to be established to the effect that Schacht is not guilty of the accusation which has been raised against him and that he be acquitted.

THE PRESIDENT: I call on Dr. Kranzbühler for the Defendant Dönitz.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for the Defendant Dönitz): Mr. President, Gentlemen of the Tribunal: “War is a cruel thing, and it brings in its train a multitude of injustices and misdeeds.”[2] With these words of Plutarch’s, Hugo Grotius begins his examination of responsibility for war crimes; and they are as true today as they were 2,000 years ago. Acts constituting war crimes, or considered as such by the opponent, have at all times been committed by belligerents. But this fact was always held against the vanquished parties and never against the victors. The law which was applied here was necessarily always the law of the stronger.

While more or less stable rules have been governing land warfare for centuries, in naval warfare the conceptions of the belligerents with regard to international law have always clashed. No one knows better than the British statesmen to what extent these conceptions are dictated by national or economic interests. I refer in this respect to noted witnesses such as Lord Fisher and Lord Edward Grey.[3] Therefore, if ever in history a naval power would have had the idea of prosecuting a defeated enemy admiral, based on its own conception of the rules of naval warfare, the sentence would have been a foregone conclusion from the very indictment.

At this trial two admirals are under indictment for a naval war which has been termed criminal. Thus the Tribunal is confronted with a decision regarding conceptions of law which are necessarily as divergent as the interests of a naval power and a land power. It is not only the fate of the two admirals which depends upon this decision. It is also a question of personal honor to hundreds of thousands of German seamen who believed they were serving a good cause, and who do not deserve to be branded by history as pirates and murderers. It is for these men, the living as well as the dead, that I feel bound by a moral obligation to reject the accusations raised against German naval warfare.

What are these accusations? They are divided into two main groups: Unlawful sinking of ships and deliberate killing of shipwrecked personnel. I shall deal first with the accusation of the illegal sinking of ships.

Two reports by Mr. Roger Allen, of the British Foreign Office, made in the autumn of 1940 and spring of 1941, form the nucleus of that accusation. I do not know to whom and for what purpose these reports were made. According to their form and content they appear to serve propaganda purposes, and for that reason alone I consider them to have little value as evidence. Even the Prosecution submitted only part of the accusations made therein. The reports trace only one-fifth of the total number of supposedly unlawful attacks back to submarines, whereas four-fifths are ascribed to mines, airplanes, or surface craft. The Prosecution omits these four-fifths, and this reticence may be explained by the fact that the use of these combat means on the British side differed in no way from that on the German side.

With regard to the use of submarines, however, there does seem to exist a difference between the principles followed in Germany’s conduct of the naval war and that of our enemies. At any rate, the public in enemy countries and in many neutral countries believed so during the war, and partly still believes it today. Propaganda dominated the field. At the same time the vast majority of all critics neither knew exactly what principles applied to German U-boat warfare, nor on what factual and legal foundations they were based. It shall be my task to attempt to clarify this.

The reports by Mr. Roger Allen culminate in the assertion that the German U-boats, beginning with the summer of 1940, torpedoed everything within range. Undoubtedly, the methods of submarine warfare gradually intensified under the pressure of the measures directed against Germany. This war, however, never degenerated into an orgy of shooting governed only by the law of expediency. Most of what might have been expedient for a U-boat was left undone to the last day of the war because it could only be regarded as legally inadmissible, and all measures of which Germany in her conduct of naval warfare is being accused today by the Prosecution were the result of a development in which both sides took part through measures and countermeasures, as occurs in the course of every war.

The London Protocol of 1936 formed the legal basis for German submarine warfare at the beginning of this war. These regulations were incorporated verbatim into Article 74 of the German Prize Ordinance, which even Mr. Roger Allen calls a reasonable and not inhuman instrument. This Prize Ordinance was sent in 1938 in draft form to the two U-boat flotillas and to the U-boat training school and served as a basis for the training of commanders. Stopping and examining merchant vessels was performed as a tactical task. In order to facilitate for the commander in economic warfare the quick and correct evaluation of his legal position towards ships and cargoes of the enemy and of neutral countries, the prize disc was constructed, which through simple manipulations indicated the articles of the Prize Ordinance to be applied. Thus, insofar as preparations had been made at all for economic warfare by submarines they were based exclusively on the German Prize Ordinance, and thus on the London Protocol.

The German High Command actually did adhere to this legal foundation in the initial stages of the war. The combat instructions for U-boats of 3 September 1939 contained clear orders to the effect that submarine warfare was to be carried on in accordance with the Prize Ordinance. Accordingly, sinkings were permissible only after stopping and examining the ship, unless it attempted to escape or offered resistance. Some examples were submitted to the Tribunal, from the abundance of available instances, showing the chivalrous spirit in which the German submarine commanders complied with instructions given. In particular, assistance afforded to the crews of ships lawfully sunk, after having been stopped and examined, occasionally reached a point where it could scarcely be justified on military grounds. Lifeboats were towed over long distances, whereby the few available U-boats were diverted from their combat mission. Enemy ships which might have been sunk lawfully were permitted to go free in order to send the crews of ships previously sunk to port aboard them. It is therefore only correct that Mr. Roger Allen stated that the German U-boats, during the first weeks of the war, adhered strictly to the London regulations.

Why was this practice not kept up? Because the conduct of the enemy made such a procedure militarily impossible, and at the same time created the legal prerequisites for its modification.

I shall consider the military side first. From the very first day of the war, U-boat reports reached the Flag Officer of U-boats and the Naval Operations Staff stating that hardly an enemy ship submitted voluntarily to being stopped and examined. The merchant vessels were not content with attempting to escape through flight or by changing their course and bearing directly down upon the U-boat in order to force it to dive. Every U-boat sighted was at once reported by radio; and subsequently, in the shortest space of time, attacked by enemy airplanes or naval forces. However, it was the arming of all enemy merchant vessels that settled the matter. As early as 6 September 1939 a German U-boat was shelled by the British steamship _Manaar_, and that was the starting signal for the great struggle which took place between the U-boats, on the one hand, and the armed merchant vessels equipped with guns and depth charges, on the other hand, as equal military opponents.

In order to show the effect of all the measures taken by the adversary, I have presented to the Tribunal some examples which I do not wish to repeat. They show unequivocally that further action against enemy merchant ships in accordance with the Prize Ordinance was no longer feasible from the military standpoint and meant suicide for the submarine. Nevertheless, the German command for weeks on end continued to act according to the regulations governing the Prize Ordinance. Only after it was established that action on the part of enemy merchant ships—especially armed action—no longer took the form of individual measures but of general instructions, was the order given on 4 October 1939 to attack all armed enemy merchant ships without warning.

The Prosecution will perhaps take the standpoint that, in lieu of this, submarine warfare against armed merchant vessels should have been discontinued. In the last war the most terrible weapons of warfare were ruthlessly employed by both sides on land and in the air. In view of this experience the thesis can hardly be upheld today that in naval warfare one of the parties waging war should be expected to give up using an effective weapon after the adversary has taken measures making the use of it impossible in its previous form. In any case such a renunciation could only be considered if the novel utilization of the weapon were undeniably illegal. But this is not the case for the utilization of German submarines against enemy merchant shipping, because the measures taken by the enemy changed not only the military but also the legal situation.

According to German legal opinion a ship which is equipped and utilized for battle does not come under the provisions granting protection against sinking without warning as laid down by the London Protocol for merchant ships. I wish to stress the fact that the right of the merchant ship to carry weapons and to fight is not thereby contested. The conclusion drawn from this fact is reflected in the well-known formula: “He who resorts to weapons must expect to be answered by weapons.”

During cross-examination the Prosecution referred to this interpretation of the London Protocol as fraudulent. It admits only the closest literal interpretation and considers the sinking of a merchant ship as admissible only if the latter has offered active resistance. It is not the first time that fundamental differences of opinion exist between contracting parties with respect to the interpretation of a treaty, and the extremely divergent interpretations of the meaning of the Potsdam Agreement of 2 August 1945 provide a recent example. Diversity of conception, therefore, does not permit the conclusion that the one or the other party acted fraudulently during the signing or the subsequent interpretation of a treaty. I will endeavor to show how unjustified this charge is particularly in regard to the German interpretation of the London Submarine Protocol.

There are two terms on which the German interpretation hinges, namely, that of “merchant vessel” and “active resistance.” If I now consider some legal questions, this will in no way represent a comprehensive exposition. I can only touch on the problems and due to lack of time must limit myself also when dealing with research on the subject. I shall primarily refer to American sources, because the interests of naval strategy of that nation were not as firmly established as those of the European nations and its research literature can thus claim greater objectivity.

The text of the London Protocol of 1936 is based, of course, on a declaration which was signed at the London Naval Conference of 1930. The committee of jurists appointed at that time expressed its opinion concerning the greatly disputed definition of a merchant vessel in the report of 3 April 1930:

“The committee wishes to place on record that the expression
‘merchant vessel’ where it is employed in the declaration is not
to be understood as including a merchant vessel which is at the
moment participating in hostilities in such a manner as to cause
her to lose her right to the immunities of a merchant vessel.”

This definition clarifies at least one thing, namely, that by no means every vessel flying a merchant flag may lay claim to being treated as a merchant vessel in the sense of the London Agreement. Beyond this, the explanation has few positive aspects because the question through what kind of participation in hostilities a vessel loses her right to the immunity of a merchant vessel is again subject to the interpretation of the contracting parties. The London Conference, as far as I can see, did not consider this ticklish question any further, and one is probably entitled to assume that this remarkable reserve is based on experiences which the same powers had accumulated in Washington 8 years before.

The Washington Conference of 1922 was held under the impression of the first World War; and therefore it is no wonder that Great Britain, the naval power which during the World War had suffered most from German submarine warfare, now tried to outlaw and abolish altogether by international law submarine warfare against merchant shipping. The resolution, named after the American chief delegate, Root, which in its first part substantially corresponded to the London text of 1930, served that aim. But in the second part the Root Resolution goes further and stipulates that any commander who, no matter whether he acted with or without higher orders, violated the rules established for the sinking of merchant vessels should be punished as a war criminal like a pirate. Finally it was recognized that under the conditions stipulated in the resolution submarine warfare against merchant shipping was impossible, and such warfare was therefore renounced altogether by the contracting powers. The Root Resolution designates these principles as an established part of international law. While it was accepted as such by the delegates, none of the five participating naval powers, U.S.A., Britain, France, Japan, and Italy ratified it.