THE PRESIDENT: Dr. Stahmer.
DR. STAHMER: If there had been a conspiracy to commit war crimes, then the war would have been waged, from the beginning, with utter ruthlessness and disregard of rules of war. Just the contrary happened. In fact, in the first years of the war -
THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you get a little bit further with your speech.
DR. STAHMER: I had to go a little farther in order to get this into the context, again; I had to start at No. 2, but if the Court wishes, I can continue with where I stopped. Especially in the beginning one endeavoured to wage war with decorum and chivalry. If any evidence is needed, a look into the orders of the German High Command regulating the behaviour of the soldiers in Norway, Belgium, Holland is sufficient proof. Moreover, a leaflet with "10 commandments for the conduct of the German soldier in wartime" was issued to the soldiers when they went into the field. Field Marshal Milch has read them out from his pay-book, during this trial. They all obliged the soldier to act loyally and according to international law. without any consideration of right and morals would really not send their soldiers into the field with a detailed written order saying just the opposite.
I think: If the prosecution believes that these 22 men are conspirators and conspirators against peace, the laws of war and humanity, it is completely mistaken. what relationship their client could have had with the alleged conspiracy. state. During the trial the prosecution also referred repeatedly to this elevated position of Goering's and tried to make it responsible for the defendant's special guilt pointing out that Goering, by virtue of this special position knew about everything, even the most secret matters, and had the possibility to intervene in a practical way on his own in course of Government business.
position. It meant: According to rank Goering was the second man in the state. had made a will and by a secret Fuehrer order had appointed Goering as his successor in the government. In 1935 or 1936 this succession was fixed in an unpublished Reichslaw which was signed by all the ministers.
On 1 September 1939 Hitler announced this law in the Reichstag. In this way the successorship of Goering became known to the German people.
Goering's task of deputising for the Fuehrer in the government now followed, but only in the event of Hitler being prevented by illness or absence from Germany - thus this occurred when in March 1938 Hitler spent a few days in Austria.
During Hitler's presence, that is as long as Hitler exercised his office himself, Goering derived no special powers from the deputyship. directly under him and he was not entitled to issue any official directives to other offices.
The consequence was: As second man in the state Goering could neither rescind, nor change nor supplement Hitler's orders. He could give no orders whatsoever to offices of which he was not directly in charge. He did not have the possibility of giving any binding orders to any other office whether it were an office of the party the police, the army or navy, nor could he interfere in the authority of these offices which were not his own. he used as especially incriminating for Goering; it is furthermore not fit to serve as a basis for the assumption of a conspiracy. or execution of a common plan or conspiracy which was concerned with the crimes stated in the indictment. conspiracy presupposes in the first place that such a common plan existed at all and that accordingly the participants had the intention and agreed to carry out the crimes of which they are accused. These presuppositions are not in evidence in the case of Goering. One has to assume the contrary. It is true that Goering wanted to do away with the Treaty of Versailles and to secure again a position of power for Germany.
But he believed he could obtain this goal, if not with the legal means of the League of Nations, at least with political means alone. The purpose of the rearmament was only to give more weight to the voice of Germany. The Weimar Government, which could not even express the self-determination of the Germans after 1918 in the surely very modest form of a German-Austrian customs - union, though they advocated this determination themselves, owed the lack of success of their foreign policy for Goering, just as for Hitler, mainly to the lack of respect for the German means of imposing power. Goering hoped, strengthened in his belief by Hitler's surprising initial successes that a strong German army, already by its mere existence would make it possible to secure German aims peacefully, as long as these aims kept within reasonable limits. In politics a state can only have its say and make its voice heard if it has a strong army to back it up, which demands the respect of other states. Only recently the American Chief of Staff Marshall said in his second annual report: The world does not seriously consider the wishes of the weak. Weakness is too big a temptation for the strong.... There was no arming for an aggressive war; not even the Four Years Plan, the purpose and aim of which has been clearly explained by the defendant himself and the witness Koerner was not aimed at the preparation of an aggressive war. testified in perfect agreement that the air force created by the armament program was only a defensive air force, which was not fit for an aggressive war and which was therefore called by them a dangerous air force ("Risiko Luftwaffe"). Such a modest rearmament does not allow for any conclusions of aggressive intentions.
After all this it is clear:
According to his character he was an opponent of war. Outwardly also, in his conferences with foreign diplomats and in his public speeches at every opportunity he has expressed with all possible clearness his opposition to war.
the attitude of Goering toward war. He know him especially from the first world war and he has exact knowledge of the attitude of Goering to war from frequent conversations he has held with him. Bodenschatz states that Goering repeatedly told him that he know the horrors of war very well from the first world war. His aim was a peaceful solution of all conflicts to spare the German people as far as possible the horrors of a war. A war would not be possible to burden with a second war a generation which had already experienced the horrors of one great world-war and its bitter consequences. with the defendant Goering that the latter opposed a war, that he already had not agreed with the occupation of the Rhineland and that he advised Hitler in gain against a war with Russia. 1933, frequently emphasized how much he had his heart set on maintaining the peace and that the rearmament had only been undertaken to make Germany strong outwardly and to enable her to play a political role again. the speech which he made at the beginning of July 1938 in Karinhall before all the Gauleiters of the German Reich. In this speech he emphasized energetically that the foreign policy of Germany had to be directed in such a way that it would under no circumstances lead into war. The present generation had still to get over the last world war; another war would shock the German people. Goering had not the slightest reason to hide his true opinion before this gathering, which consisted exclusively of the highest party leaders For that reason, this speech is a valuable and reliable proof for the fact that Goering really and truly wanted peace.
THE PRESIDENT: I'm afraid the two voices are coming together in such a way that it is impossible to understand it. You had better stop for a minute, Dr. Stahmer.
(A recess was taken.)
How deeply the defendant Goering was interested in maintaining 5 July LJG 5-1 good relations with England is shown by his conduct at the conference with Lord Halifax in November 1937 at Karinhall, in which Goering, with full candour, put before Lord Halifax the aims of German foreign policy:
(a) incorporation of Austria and the Sudetenland into Germany, (b) Return of Danzig to Germany with a reasonable solution of the corridor problem. He pointed out at the same time that he did not want war for these aims and that England could contribute to a peaceful solution. his suggestion. The conclusion of the Munich Pact is essentially due to his influence. in March 1939, the relations with England had deteriorated considerable as England was very angry about this step Hitler's, which was a violation of the Munich Pact -- Goering made serious efforts for the restoration of normal relations. by the witness Dahlerus, with English industrialists at the beginning of August 1939 in the Soenke-Nissen-Koog near Husum. In an address he pointed out that under no circumstances must it came to a war with England, and he asked these present to contribute to the best of their ability to the restoration of the good relations with England.
When, after the often quoted speech of Hitler's to the commanders in chief of the armed forces on the Obersalzberg on 22 August 1939 the danger of a war became imminent, Goering summoned immediately and attempted, by-passing the Foreign Office, to reach an agreement with England for the prevention of war on his own responsibility. in the dark as to his true intentions. His efforts were not aimed at the maintaining of peace but only at persuading England to deny to the Poles the support guaranteed to them and thus to separate England from Poland, which would enable Germany after this separation 5 July LJG 5-2 to exert pressure on Poland to submit to the German demands, or to be able to attack Poland and to realize her plans towards Poland without any risk.
The doubts about the honest will for peace are unjustified; the imputed intention was far from Goering's thoughts. inform the witness Dahlerus either of the content of the Fuehrer speech of 23 May 1939 or that of the 22 August 1939, this objection is not relevant and nothing is gained by it. and especially a foreigner--of these strictly confidential speeches without exposing himself to the accusation of high treason or treason against his country. These speeches were all immaterial for the commission given to the witness, since here was the peculiar situation that Goering--after the efforts of the diplomats had reached a deadlock--know as ultimo ratio of no other way out than to use his personal relations, all of his personal influence and his personal prestige. foreign political situation, had become dangerously critical through the quarrel between Germany and Poland, of which also the witness know and which had to be straightened out by an appropriate attitude on the part of England.
That Goering's aim was not to separate England from Poland has been clearly proven by the fart that Goering, to begin with, had transmitted to the British Ambassador in Berlin, Henderson, the text of the note which contained the proposition made by Germany to Poland - propositions which were called moderate by Henderson - and that, hereby, he tried to come to direct negotiations with Poland. Poland, however, obviously did not want an agreement with Germany. Several circumstances point to that.
The conflict with Poland existed for almost one year. Why did Poland not ask for a decision by a court of arbitration on the basis of the concluded arbitration agreement?
Why did Poland 5 July LJG 5-3 not appeal to the League of Nations?
Obviously Poland did not want any arbitration regarding Danzig and the Corridor. to the Legation Forbes, which was stated by the witness Dahlerus, is even more proof for the unwillingness of Poland to come to an understanding. by Germany; he was convinced that, in the event of a war, there would seen be a revolt in Germany and the Polish Army would march in triumph to Berlin. obviously finds its explanation in the fact that she felt too strong and secure by England's assurance. Poland was informed of the plans of the Canaris group to bring about a revolt. There can therefore be no question of an ambigious attitude or false play on the part of Goering. and to restore good relations with England is expressly recognized by Ambassador Henderson, who due to his thorough knowledge of the German conditions and his connections with the leading men of Germany had the right opinion also of Goering. I refer here to his beck "Failure of a Mission", in which on page 83 it says:
"I would like to express here by belief that the Field Marshal, if it had depended on him, would not have gambled on war as Hitler did in 1939.
As will be related in due course, he came down decisevely on the side of peace in September 1938" that Goering's efforts for the prevention of war were sincere. all the means at his disposal, but had been unable to prevent, Goering, as Commander in Chief of the air force exerted all his strength to win the victory for Germany is not contrary to the sincerity of his will to avoid the war. From that moment on he knew only his duty as a soldier to his fatherland. the armed forces, so for instance in November 1939 on 3 May 1939 and on 22 August 1939. The defendant Goering, at his personal interrogation has already given extensive explanations as to the importance and the purpose of these addresses. It is important for the question, whether the fact that he was present at these addresses might constitute perhaps a complicity in a conspiracy in the sense of the indictment, that on these occasions Hitler solely and one-sidedly made known his opinion about military and political questions. The participants were only informed what possible political developments Hitler expected. The participants were never asked for their opinion. They also had no possibility to express their criticism to Hitler's opinion. Hitler did not ask his generals to understand his orders. All he asked of them was to carry them out. principle : Sic voleo, sic iubeo, stat pre ratione voluntas, which he carried through to the last consequence. after the address of 23 May 1939 -- as Milch stated in his testimony -- he forbade expressly all discussions of those present, even among themselves. deduced by the participants from the said speeches and they did not deduce it. This has been confirmed unanimously by all witnesses who were present when those addresses were given.
At that time, Hitler had actually not yet planned a war. In that respect the testimony of General Field Marshall Milch is very informative.
When the witness, in the months following the speech of 23 May 1939, repeatedly pointed out to Hitler in personal reports that the air force was not ready for action with their bombing squadrons and that the air force had hardly any stocks of bombs, Hitler refused to give an order for the production of bombs and remarked that this manufacturing was unnecessary and superfluous. Hitler persisted in this refusal, although Milch pointed out that the production would take several months. Such an order was given by Hitler, only on 12 October 1939.
Hitler's exposition before the Commanders in Chief can be easily explain by the peculiarity of Hitler, to develop frequently political ideas without bothering how to carry them out. In each case, his practical policy resulted from the requirements of the living development. occupied by Germany and thus to have violated the Hague convention concerning land warfare. This accusation is not justified. with absolutely noteworthy reasons that the Hague conventions on land warfare from the years 1899 and 1907 respectively cannot be made to apply to a modern war since they had become obsolete and insufficient in some respects at the beginning of World War II. At the time when they were worked out, aerial warfare, economic warfare and psychological warfare were still unknown. Total war which put the entire people and the entire national economy without exception at the service of the war, was also not known, Especially, economic warfare was not considered at all. Because of this gap, there is no international law which has been generally recognized, for economic warfare. Therefore, the old statement of Hugo Grotius applies to economic warfare that everything is permitted in war "quod ad finem belli necessarium est". specifically by a differring settlement through treaties.
The following is to be said for the legal situation as it stands : international law -- in any case as far as land warfare is concerned -- that the war does not affect any private legal relations between the citizens of the belligerent states, that private property on principle was inviolable,that the war would only be pursued with arms and that the enemy civilian population would not be affected by it.
This method of warfare suffered a basic change at the outbreak of World War I, when England, in the field of naval warfare, applied her interpretation of war of people against people. At that time, the enemy powers went over to the course to paralyze the entire German national strength, disregarding all established rules of the law of naval warfare and of neutrality law, by cutting off the necessary raw materials and import of food. This new type of warfare corresponded to the Anglo-Saxon interpretation which was joined in by France at the beginning of World War I, that war is not only fought against the fighting troops, but against the entire population of the enemy. The citizen of the enemy state is the enemy of England, his property is enemy property which is subject to seizure by the British Government. but also against the peaceful subjects of the belligerent enemy.
This goal was achieved by the total blockade carried out by England. The Hague Convention did not contemplate a total blockade in the form in which it was carried out by England. This blockade made any supplying of Germany through neutral countries impossible. method used by England with means of her naval power, for the warfare on land accordingly This fact leads to the following consideration:
warfare. There the principle of protection of private property dominates. In naval warfare, however, prive property is unprotected. Is it therefore possible that the rules of land warfare with their restrictions apply also to a combined sea and land war? Would it be just that goods are taken away from one at sea while he would not be allowed to touch the same goods from the one taking the goods on land? as before that private property is actually inviolable during war. This principle only suffers exception insofar as the Hague Convention of land warfare permits certain encroachments on private property, and insofar as encroachments may also have been caused by a state of emergency in which the state may find itself, which then would be justified to the extent in which they appear necessary in the interests of self-preservation of the state. In this scope therefore, actions are also permitted during war which would otherwise not comply with the laws of war, and would thus be contrary to international law. of naval warfare, Germany was driven into a state of economic emergency. fare, then Germany could have supplier herself through neutral countries, and the state of economic emergency during the war would not have occurred. regulations, they cannot expect Germany to observe the regulations on requisitioning which formpart of the rules of land warfare. manner, there prevail a national state of emergency which has the legal effect that the state does not act illegally when committing a violation of international law which is necessary for the repelling of imminent danger. course of World War II by theaction of the enemy powers. Any connection with neutral countries was made impossible for Germany by the total blockade, since a sufficient supply of raw materials necessary for the conduct of the war, and of food for the feeding of the civilian population, was made im-possible.
Germany also had to takecare of the food supply of the enemy civilian population in the occupied territories. Germany was therefore forced for the sake of supporting her own economy, which would otherwise have collapsed, to use the stocks of raw materials and food available in the occupied territories, and all otheritems necessary for the continuation of the war for herself, whereby the interests of the population in the occupied territories were given die consideration. In this, the principles established in the preamble to the convention concerning the rules and customs of land warfare, dated 18 October 1907, as they result from the customs existing among civilized nations, from the laws of humanity and from the demands of publicconscience, were strictly observed. A resignation of the right to use these sources of assistance in the occupied territories would have meant the abandonment of the independence and existence of the state, it would have meant unconditional submission. Emergency which necessarily leads to submission during war is the highest and most genuine emergency in the life of a nation. are covered which are necessary for the alleviation of danger which would not be repelled otherwise. The limitations naturally fluctuate, and the establishment of whether a genuine emergency act is concerned cannot always be easily made in individual cases. Here the Tribunal will have to consider in favor of the defendants the special circumstances and the conditions which were had to view during the time of war. defendant intentionally or carelessly. ant personally can be responsible for a violation, possibly committed intentionally orcarelessly--a violation which has been committed exclusively by him in his capacity as plenipotentiary of the Fuehrer -- or whether in such a case there is only a liability of the state. This side is of the opinion that also in this case there is only a violation of international law which does not call for a personal liability. Conditions were peculiar in the Eastern theater of war because there was no private economy in the East, but only a national economy strictly regulated by a central office.
The juridical situation here was that property of the enemy state could generally be claimed as war loot.
For therest, a particularly careful regulation was made, which was defined in the so-called "Green folder". The regulations contained in the Green folder did not suggest any looting or annihilation of the population, as asserted by the prosecution. Its toner was rather the mobilization of economy and the rules for keeping it going, the seizure and the orderly utilization of stocks, and traffic-installations in the zones to be occupied in the course of fighting, whereby account had to be taken of the Russian behavior, and the far-reaching destruction to be expected in consequence. The folder does not contain any order or suggestion which might convict certain groups of the population of activities beyond the needs conditioned by war. This decree, for which the defendant Goering has taken full responsibility, does not furnish any reason for an indictment.
In all of this, one moist not disregard one thing: totality as the creators of the Hague Convention certainly never had or could have had the remotest idea. It was a war in which nations fought for their existence or destruction. It was a war in which all valued had changed. Thus the defendant had the right feeling when he declared:
"After all there is no legality in the fight for life or death." the deportation of workers from occupied territories to Germany. in his opinion made this measure necessary. Servatius, will review these matters in detail. Therefore, I do not need to concern myself with further considerations in this regard.
I now turn to the matter of plundering of art treasures: As to the reproach of art treasure looting the defendant has made an inclusive statement of facts, which will be referred to in orde to justify his conduct. was not directly engaged in the safeguarding of art treasures in Poland. lection. In this respect the defendant cannot be incriminated in any way. By order of the Fuehrer works of art in France which were owned by Jews were temporarily confiscated for the benefit of the Reich. They were considered as unclaimed property because their owners had left the country. the Fuehrer, Goering received but a small part, and not for himself personally, but for the gallery he had planned, and in which he also intended to incorporate the works of art already in his possession. French art experts, and the proceeds were to be distributed amongs the dependents of French war victims.
The juridical situation, therefore, was as follows: the benefit of the German Reich. By this confiscation the former owners lost their right to possession and it was transferred to the Reich. The objects which were left him Goering acquired from the Reich, which was their present owner. proved premature by the course of events, was to forestall the peace-treaty to be concluded at the end of the hostilities when the final accounts would be made. This is similar to the confiscations and seizures of property carried out at present in Germany in view of the ultimate peacetreaty.
Government was juridically entitled to confiscate the goods and to become their owner. Goering acted in good faith in the matter of this acquisition. In his testimony, he emphsized his belief that he was entitled to acquire these things as they had been previously confiscated by the Fuehrer. of looting. articles which occurred during normal business transaction, and which the defendant had been offered spontaneously and the sellers were only too eager to dispose of in view of the good price they received for them. acquired through a voluntary exchange in which the second party to the contract enjoyed the same rights as himself. of the British Air Force after their escape from the prisoner of war camp Sagan.
The act of prosecution (page 33 of the German translation) reads as follows: Stalag-Luft III in Sagan were murdered after their recapture. According to a later declaration of the prosecution the circumstances were as follows: cers of the RAF escaped from the prisoner of war camp Stalag Luft III in Sagan. 50 of these officers were shot by the Security Service after they had been recaptured.
An investigation must be made on the following points: who gave the order for the shooting? Did Reich Marshal Goering play any part in this occurrence?
Did he actually take part in the drafting of the order to shoot these 50 airmen? Did he agree to the measure although it was a grave offense against paragraph 50 of the Geneva Protocol dealing with the treatment of Prisoners of War? in the drafting of this order. It refers amongst other things, to the reports which Major General Westhoff and criminal-counsellor Wielen drew up while they were in British custody. But the interrogation of those witnesses in court, as requested by the defense counsel, as well as the bringing forward of further evidence which has been so carefully accomplished before the Tribunal, has shown in the meantime that the previous statements of Westhoff and Wielen were incorrect, and, in respect to Goering's presence at the camp conference and his knowledge of the shooting-order, were only based on suppositions which had their roots in the fact that it was a question of a prisoner of war camp for airmen. The result of the evidence was as follows: escape of the 76 officers to the Fuehrer. For this Hitler severely reprimanded General Field Marshal Keitel. He considered the event to be of great danger to public security, since the escaped officers might assist the six million foreigners in Germany in the organization of an armed revolt. Then Hitler gave the order: "The prisoners will remain with Himmler". 15 officers who had already been recaptured by the Armed forces and returned to the camp, and these officers remained unharmed. not order the shooting of the prisoners, who were to remain in Himmler's hands. Neither Keitel nor Jodl expected such measures. Jodl expected the escaped prisoners to be sent to a concentration camp for some time. Keitel and Jodl agree in their testimonies that Reich Marshal Goering did not attend this meeting. Therefore, it cannot possibly be correct that General Field Marshal Keitel declared in a conference with General Westhof that he had been reprimanded by Goering at the camp meeting on account of the prisoners' escape.
over the telephone around about the end of March or beginning of April 1944, that the Luftwaffe, namely the Reich Marshal and Korton himself, were not involved in the order and had only been informed of it later. Furthermore Keller testifies that the Reich Marshal was extremely angry about the shooting.
These statements are completely in accordance with the declarations of Reich Marshal Goering, who was on a vacation at the time fo the conference with Hitler. The fact of the escape reached him only through a telephone report of his adjutant. It was only after his return from vacation some time around Easter 1944 that he learned, through his chief of general Staff, Korten, about the fact that shootings of prisoners had taken place. Reich Marshal Goering was much upset about this last report because he had only condemned the deed in itself but moreover feared reprisals for his own airmen. Goering with the justification that an order to that effect had been issued to him by Hitler. and how its perpetration could remain concealed from the Wehrmacht. In the absence of Keitel and Jodl, Hitler issued the order to Himmler to carry out the execution and Himmler then, unknown to the Wehrmacht, immediately passed on the order to the Reich Security Headquarters - i,e, according to Kaltenbrunner's Statement- to Mueller or, as the case may be, to Nebe. the latter had executed the order without informing Goering- but he raised the most vigorous protest against this measure in a subsequent interview with Hitler. This resulted in a violent argument between Goering and Hitler. tly afterwards that the prisoner camps be taken in charge by the OKW. On being questioned, Field Marshal Keitel confirmed, as witness, that a few weeks after the occurrence, he received a letter from the general quartermaster of the Luftwaffe, in which the Luftwaffe requested the taking over of its camps by the OKW. zed- straightens out the initial statements of the witnesses Westhoff and Wielen, which are contradictory in many respects, as well as Keitel's earlier declaration of the 10 November 1945, also, vindicates the conclusion that Reich Marshal Goering was in no way involved in this affair, that he condemn it most severely when he was informed of it and that he therefore cannot be called upon to answer for this extremely regrettable and reprehensible order which it was not within his power to prevent.