The Prosecution has gone on to the question of "lynch justice" which was practised by the German population in individual cases in 1944 when enemy airmen had been shot down. For those occurrences, the defendants, especially Reich Marshal Goering, are held responsible. The charge that defendant Goering or the Whermacht are in any way involved in this action, that they issued orders or instructions to this effect or even merely approved the action is seen to be entirely unjustifiable. The examination of evidence here has thoroughly cleared up the matter in favour of the defendant.
Witness Colonel Bernd v. Brauchitsch pointed out during his interrogation on the 12 March 1946 (page 5680 of the German minutes) that in Spring 1944 there was a sudden increase in the losses among the civilian population through machine-gun attacks by enemy airmen. invokes fusi of all a protocol of 19 May 1944 (L. 166) concerning the socalled "Hunting Conference" which was held on the 15 and 16 May under the presidency of the defendant. saying he would suggest to the Fuehrer that terrorist enemy airmen be immediately shot on the place of their offence. The defendant most definitely denies having made any pronouncement to this effect and justly points to the following circumstances which belie any such statement:
The session stretched over two days. Numerous technical and organisational questions were discussed. The question touched upon in item 20 had nothing whatever to do with the agenda for the rest of the session, least of all with the purpose of the session. The remark has its place amongst themes which deal with matters of an entirely different kind and has no point in this conjuncture. immediately issued such an order without further ado, as everyone knew the Fuehrer was well disposed to him.
tion with the fundamental attitude of the defendant. He always stood for the view that the enemy airman who is shot down is his comrade and must be treated as a comrade, a fact which I have already remarked upon in another connec tion. Moreover, in the question as to how terror airmen are to be treated, he has defended his position with all frankness against the conception upheld by Hitler and has made no secret to Hitler of his entirely different opinion. utterly out of the question that he should suddenly have urget Hitler to issue the above-mentioned order against the terror airmen- an order which he opposed with all his might and the execution of which he sought to prevent by every means as soon as it came to his knowledge. And he did succeed in fact in preventing the execution of this order. cussion could only have occurred with the implication that the Fuehrer suggested such a measure. be added: a two-day session during which there has been a great deal of talking and cross-talking. Experience made in many other cases has shown that such recordings are often very unreliable and have even at times reproduced the subject of the discussion in an utterly perverted form, precisely because the author of the script,- especially when several participants were present, and were talking at random, - could not fellow the course of the discussion and consequently did not reproduce the substance of it accurately especially when, in addition to this, he was relayed by other people; this explains many factual errors as well as the inadequacy and unreliability of such records.
The minutes were never submitted to the defendant. He has not therefore been able to verify their contents nor to correct their errors. which are not submitted to the perusal and approval of the parties concerned are worthless in the production of evidence.
They cannot in themselves alone serve as an adequate means of proof either to charge or convict the defendant. They can therefore only be made use of to the detriment of the parties implicated when the contended facts are confirmed by other material brought for evidence from sources external to these minutes. In the present case, there is no confirmation from other evidence that Goering actually made the statement contained in item 20 or made a request to Hitler to that effect.
The note dated 21 May (731-PS) fails to provide support for the claim. The note :"General Korten teilt nach Vertrag des Reichsmarschalls mit" can not, in viewof the defendant's undisproved statement, possibly mean that the Reich Marshal delivered an address on this matter in Hitler's quarters, but solely that Korten reported on this subject to the Reich Marshal and that Korten informed-the Reich Marshal of Hitler's order. that Goering was against a special treatment of enemy terror airmen who had been shot down, and that he opposed Hitler's order. civilians working in the fields, minor railway lines without any military importance and against pedestrians and cyclists. This constituted a gross violation of the Hague Rules of Land Warfare, according to which any combat act against the non-combatant population of the country is prohibited, and any attack or shelling of open cities, villages, residences or buildings is forbidden.
According to the opinion of the witness v. Brauchitsch this behavior which quite evidently violated international law caused Hitler to order measures against these aviators themselves, besides defensive measures. Relative to this Hitler advocated -as far as it is known to the witness- the most severe measures; lynching justice was to be given the right of way. enemy aviators, however, did not meet with the approval of the Armed Forces, especially not with that of Reich Marshal Goering and that of his Chief of Staff (Generalstabschef) General Korten. Both of them did condemn to the utmost the attacks of enemy aviators which were exclusively directed against the defenseless civilian population.
However, they nevertheless opposed the handing-over of defenseless shot down aviators to the aroused mob for the carrying out of lynching justice, and they did not think these measures an appropriate means of combating this conduct which was in violation of international law.
The witness General Keller expressed himself to the same effect. Early in June 1944 General Korten informed this witness of the fact that the Fuehrer intended to decree an order to the effect, that terror-aviators were to be surrendered to public fury. Korten arrived at the opinion that the conception of the Fuehrer was to be rejected. They did consider the direct attacks of enemy low-flying planes on individual civilian persons, women and children, concentration of civilian persons, school-classes and Kindergardens out on walks, farmers at work in the fields, as well as attacks on public passenger trains and hospitals as ruthless; however, neither did the two see a passable road or a solution of the difficult problem in the Fuehrer's order. They were of the opinion that such an order was contrary to basic military conceptions the articles of war and to international law, and that it would give cause to numerous evils through which also other enemy as well as own crews would have to come to harm. And finally such an order could exercise also in its effects, a harmful influence on the morale of our own crews.
All these reasons caused the Armed Forces to reject Hitler's demand , and the attempts of the Armed Forces were now directed toward preventing the disapproved conception of Hitler. The witness v. Brauchitsch therefore credibly states, that the Armed Forces now looked for a way out which way was seen in the fact, that the higher command levels were deceived by measures which were not actually carried out. om doscussion with the OKW the concept of terror-aviators. In the subsequent discussions and exchange of correspondence those cases were mentioned which represented violations of international law and which were to be considered criminal acts. By this definition of the concept a lynching lustice was to be prevented. The exchange of correspondence which lasted for a longer period of tiem showed the tendency of the agency to prolong the matter as much as possible.
correspondence shows all signs of a "delaying action to gain time", i.e., those concerned either did not want any decision, or they wanted to postpone it as Ion as only possible.
In particular the margin note on document 785 D (Exhibit GB 318), entitled: "No answer received from Commander in Chief of the Air Force", allows for the conclusion that the Reich Marshal purposely wanted to prolong the matter. Furthermore Reich Marshal Goering, as can be seen from the letter of 19 June 1944 (D 779) maintained the opinion, that in every instance he considered legal procedures also against terror-aviators as definitely necessary. If it is stated in a subsequent document of 26 June 1944 : "The Reich Marshal agrees with the announced formulation defining the concept of terror-aviators and with the suggested procedure", then the agreement with the procedure refers exclusively to the suggested procedure of publication suggested in the final paragraph of the letter of 15 June 1944, for which Reich Marshal Goering's approval had been requested. That the Reich Marshal Goering until the end of the war maintained the old aviatorstandpoint, according to which enemy aviators as soon as they have been shot down are to be considered and treated as comrades - was not only expressly deposed by the witness General Field Marshal Milch, but is also emphasized by General Koller with the following words :"Undamaged by occasional expressions of displeasure the attitude of the Reich Marshal always remained correct and valiant in accordance with his frequently emphasized flying tradition which he had retained from the First world War. In understandable anger about great difficulties in the air defense, pressed by the Fuehrer, he perhaps for once used harsher words, which were quickly forgotten", and the witness does not know of any case "in which such a spontaneous displeasure caused the Reich Marshal to take incorrect of harsh measures against members of the enemy air forces". at all times. To fight chivalrously was a matter of honor with the German aviators. The air Force as well as the defendant Goering retained this point of view, although as Koller express mentioned the flying personnel felt extremely bitter over the strafing attacks on German crews suspended on parachutes, and individual hotheads spoke of equal measures as reprisals.
be clearly seen from the description of the witness Koller about the establishment of a sea-emergency-service of the Air Force, which brought aid to Germans as well as the enemy in an equal measure and which carried on despite enemy attacks in violation of international law, with its attempt to provide aid for both friend and enemy in need. Accordingly it must be determined: justice as well as all procedure against the terror-aviators, no in accordance with legal regulations and have not issued any orders to troops under his command; in no case have enemy aviators been shot by the air Force or by the Army, or handed over to the Security Service (SD).
Gestapo -K.Z. a reign of terror in Prussia immediately after 30 January 1933 in his capacity as Prussian Minister of the Interior and soon afterwards as Prussian Minister President in order to suppress all opposition against the Naziprogramm. he had ordered as early as in February 1933 to protect the new government by proceeding ruthlessly.
against all political opponents without consideration of the consequences. feared Secret State Police and established concentration camps as early as spring of 1933. and it would rather have been a severe violation of the duties entrusted to the defendant, if he had not devoted himself with all his strength to the safeguarding of the now government and taken every imaginable precaution in order to make any attack on this new government impossible from the very beginning. In order to achieve this goal first of all the police institutions had to be considered. defendant considered necessary, were objectionable. considerations:
In every state the police is the inner-political instrument of power; in every state it has the task to support the government, to protect it in every direction and to render the disturber of the peace and the violator of the law harmless by force of arms, if necessary. The defendant transferred the same tasks to the police which was under his direction, whom he ordered in the speech mentioned by the Prosecution, to act energetically and to fulfil their duties conscientiously. To what extent such an appeal for the performance of duty should not be permissible remains incomprehensible. reasons and along which lines he considered a reorganization of the police as necessary and these directives cannot be objected to. reorganized rules of international law a sovereign state has the right to regulate its internal affairs as it deems fit to do.
The reform of the police is an exclusively internal affair. The violation of rules, generally recognized by international law, is, therefore, out of question in this respect.
as well. Before the 30th of January 1933, it was called Police Department Ia, which among other things had to watch and to fight political adversaries. National Socialists and Communists in particular. Such a police dealing with the same tasks was also needed after the assumption of power in order to protect the new state against attacks, which threatened it in particular from the very strong Communist Party. exclusively with safeguarding the state against enemies of the state it was named "Secret State Police." fact, only the case until 1954 as then Himmler was put in charge - he strictly confined himself to the tasks prescribed to him, did not transgress his authority and no misuse of power occurred. The evidence produced has shown nothing against the defendant Goering for this period of time. Should, at a later date, the Secret State Police have transgressed their authority and should have committed illegal acts the defendant had no Knowledge of then and did not approve of it. For mistakes and crimes committed by his successors which remained unknown to him, he cannot be held responsible. for the defendant. This was the witness Dr. Gisevius. witness. He wants only to point out that this statement is untrue in all points incriminating the defendant. witness is considered to be trustworthy or not.
My fellow defense counsel, Dr. Nelte, has agreed to deal with this question extensively, so that - in order to avoid repetitious statements I shall refrain from further declarations. with resistance, and particularly the leftist parties were anything but satisfied with the situation thus created. The opponents were by no means weak, neither numerically nor in the means at their disposal.
The new rulers were, therefore, afraid of serious dangers to their power, if they let the opposition parties continue their activity without hindrance; they had accordingly to take preventive measures against such dangers in good time. In order to stabilize and consolidate their own power and to nip in the bud any possible source of unrest, thee defendant Goering considered it necessary for reasons of state to settle at one blow both leaders and officials of the communist party and its organizations. The defendant has spoken at length about his reasons for such acts. For the removal of danger and to ensure the safety of the state, the measures taken by the defendant were, for the government, a necessity caused by the unsettled nature of the times. As it was a preventive measure, it was not necessary for a provisional arrest that a criminal act against the government had already been committed or was, obviously, on the verge of being committed. The fact of membership in itself and previous activity in the said party was enough for arrest, as it was a political act of self-protection on the part of the government. the establishment of concentration camps, of which there were 2 at the time when defendant Goering was at the head of the police.
The aim of such camps was to hold provisionally politically unreliable persons, who might be of danger to the new state, until they either had adapted themselves to the new political conditions or until the power of the state had become so great that such persons could no longer endanger it. I can omit the next few pages and I shall continue to page 61, paragraph 4. Goering, when he created concentration camps in 1933 and issued laws concerning the Secret State Police. These were intended to be as he conceived then, a means of cleansing and strengthening the young community of the people. He did not aim at a definite annihilation of political enemies but after a certain period of education interceded generously for liberations,and discharged at Christmas 1933 about 5,000, and in September 1934 about 2,000 prisoners. admitted in the book he published in 1934, intended for the British public "The Building of a Nation". He let, for example, the Communist leader Thaelmann personally report to him about his conplaints in the concentration camp and took care to remove their cause. He dissolved the so-called "wild" camps of Stettin and Breslau, punished the Gauleiter of Pomerania, who had organized this camp without his knowledge and against his will, and had those responsible for these wild concentration camps brought up on trial for their infringements of the regulations. the actual physical annihilation of the prisoners. If the prosecution establishes that this was all in execution of a conspiracy which aimed at committing crimes against humanity, such an interpretation has no bearing on the reality of political life in the years in question. Such a conspiracy did not exist, nor was it the intention of the defendant to commit crimes against the principles of humanity nor has he committed any such crimes. As one of the political trustees of the German government, he felt himself bound to safeguard it against dangerous disturbers of the peace and to contribute accordingly to the permanence of the National-Socialist way of life. Far from looking upon such measures as criminal, consider them on the contrary to be the inevitable means of consolidating the political order as a basis of all law.
management of the concentration camps, passed from the defendant to the Reichsfuehrer SS Heinrich Himmler. The defendant cannot be held responsible for the subsequent evolution of the concentration camps; for the fact that they became especially after the outbreak of the war more and more gruesome places of torture and death, and led -- partly intentionally partly through the chaotic war conditions -- to the death of countless people, so that finally, in the last days before the breakdown of Germany, and through errors in organization they turned into one vast graveyard.
Certainly he know that there still were concentration camps, also that the number of inmates had risen because of war tensions, and that they also contained foreigners because of the expansion of the war machine over all of Europe - but the horrible occurences as they have been disclosed in this trial were unknown to him.
He knew nothing of the irresponsible experiments which were being carried out on inmates because of misinterpretation of true scientific spirit. The testimony of witness field marshal MILCH has shown that the Luftwaffe was not interested in these experiments, did not participate in them, and that the defendant personally did not learnanything specific at all about this matter. as such have anything to do with thelater extermination of Jews Which apparently originated in HEYDRICH'S and HIMMLER'S brains, and was kept secrect in a masterly manner, and was disclosed after the collapse as the horror of Auschwitz and Maidanak.
This beings me to the Jewish question: the Jewish question during his interrogation as witness; furthermore, he has shown in all their details the reasons which influenced the national Socialist party and after the siezure of power, influenced that State, to take a hostile attitude toward the Jews. Nurnberg laws in the Year 1935, which were intended to keep the race pure, and that in his capacity as Commissioner for the four Year Plan, he issued decress during the years 1938 and 1939 which had as their aim the exclusion of Jews from economic life. meant a one-sided and serious intervention into the legal sphere of Jews. foundation, is obscure.
For here it is a question of a purely domestic problem -
namelu the regulation of the, legal position of one's own subjects; according to interntionally recognized legal opinion at that time, the German Reich as a sovereign state could freely settle such a problem. of citienship rights were extremely sever, they nevertheless in no way comprise an offense against humanity. tain circle of citizens in their legal position have also been made by other states without offense being taken at such measures or without other states considering themselves induced to intervene, Reich Marshal Goering always refused any illegal or violent action against Jews. This is clearly shown by his attitude toward the action against Jews during the night of 9 to 10 November 1938, instigated by Goebbels, of which he was informed only after the deed had been done, and which he condemned most severely. In this respect, he raised serious objections with Goebbels and Hitler. On this matter, the precise statements of witnesses BODENSCHATZ and KOERNER are available. The testimony of Dr. UIBERREITHER shows how greatly GOERING disapproved of this action. According to the former, the defendant summoned all Gauleiters to Berlin several weeks after this incident and in an address censured the violent action with the sharp words that this action did not correspond to the dignity of the state, and that it had caused serious damage to German prestige abroad. That the defendant was no race fanatic, became generaly known by his expression: "I decide who is a Jew". It has been established sufficiently that he aided many Jews, extermination of the Jews. He never would have approved such a measure, and opposed it with all his might. For he had too much political insight not to recognize the tremendous and at the same time, senseless dangers which would perforce result for the German people from such a brutal and detestable extermination drive.
Goering had already proved by the above mentioned speech to the Gauleiters that he did not wish to ruin himself in the eyes of the world public and world opinion because of the treatment of Jews.
agreed to such an undertaking or for him to have participated in it in any manner. It is understandable, if it is held against the defendant, that he should have been informed about such horrible measures as the second man in the state. defendant that he know nothing of these atrocities, are met with a certain amount of distrust. no information about such acts ever reached him. understood only by one familiar with German conditions - may be explained from the fact - and this is the sole solution of the riddle - that HIMMLER, as was also emphasized by General JODL during his interrogation, know most masterfully how to keep his actions secret, to obliterate all traces of his atrocities, and to deceive the surrounding world and even his and Hitler's closer entourage. ness HOESS who confirms Himmler's instruction concerning absolute secrecy toward everyone.
The question may come up here: Did not the legal obligation, exist for the defendant to instigate investigations about this matter and to get reliable information as to the true wherabouts of Supposedly evacuated Jews, and as to their fate? And what legal consequence results if he carelessly refrained from such investigations and thus carelessly violated his legal obligation to act incumbent on him by virtue of his position? The decision of this extremely complicated question of Law and fact may be left undecided because Goering, even as the second man in the state, did not have the power to prevent such measures if they were carried out by Himmler and were ordered, or at any rate, approved by Hitler.
Mr. President, yesterday I stated that I still wished to deal 5 July M LJG 9-1a with the case "Katyn", and I intend to interpolate, dealing with this matter, before I go on with my conclusion.
I an sorry I was not able to get any translations in this respect because the testimony was only given a few days age. However, this matter is not very long. The interpreters have a copy. I shall begin with this report. Katyn case, in which the taking of evidence was concluded only a few days back. The Russian prosecution based their indictment on the findings of an investigation, which is set down in Document USSR 54. The following conclusion is drawn from the entire evidential material as presented: camps west of Smolensk, were still there in these three camps when the Germans came into Smolensk, up to and including September, 1941. Second, these prisoners of war were taken from those prisoner-of-war camps by the German occupation troops in the autumn of 1941.
Third, the mass shooting of the Polish prisoners of war was carried out by the German military authorities who had concealed themselves under the code name "Staff of the Engineering Battalion 537" at whose lead was Colonel Ahrens, together with his co-workers, Lt. Rex and Lt. Hodt. accusation? This question has to be answered in the negative. From the contents of this document we can not determine any fact of guilt, as the time of this perpetration, September of 1941, is determined and as the act of the crime at Katyn forrest is specified. With the material at hand, which limited this crime so very much, it was the sale work of the prosecution to prove that those things did take place; but those facts do not stand up after a subsequent examination. at. Ahrens cannot be considered one of the perpetrators of this misdeed because this deed was committed in September, 1941, and 5 July M LJG 9-2a Ahrens, together with Regiment 537, took ever the command at the end of November, 1941.
That was when Ahrens came to Katyn, and up until that time he had never been in the Eastern theater of war. Before Ahrens, Colonel Bedenck was in command of the regiment. He came to the regimental staff in August of 1941 and then took a leave. Before Colonel Bedenck, First Lt. Hodt, at the end of July of 1941, immediately after the capture of Smolensk, came to the Dnieper Castle, together with a First Commando, and he remained there until the arrival of the regimental staff, to which he did not at that time belong. He was transferred to the regimental staff only in September of 1941, and from that time on he lived in the little Castle constantly. not be concluded or derived from the document which has been submitted, and such facts have not been presented here. Therefore, it is not proved that Bedenck and Hodt could be considered as perpetrators. ment 537 or any other military unit had participated in or had committed this act: the hands of the Germans. In that way they would have become German prisoners of war. The fact that they had been captured would have had to have been reported to the Army Group Center. witness Eichborn. Considering the tremendous number of prisoners, it is quite out of the question that a report of that nature could have not taken place inadvertently. Apart from that, the capturing of 11,000 Polish officers could, under no circumstances, have been concealed from the Army Group. As can be seen from the testimony of General Oberhaueser, the Army Group never had any notice or any knowledge to this effect.
and Oberhaueser, it can be concluded that at the time of the capture 5 July M LJG 9-3a of Smolensk by the Germans there could not have been any Polish officers present in those camps.
Eye witnesses who could have soon the officers at this period of time were not interrogated by the Russian Commission. what he says here is that there were no eye witnesses interrogated by the Russian Commission, eye witnesses who could have testified as to the Polish officers having been in these concentration camps at that time.
A railroad employee who was interrogated in this matter knew nothing from his own experience and observation.
The transport of so many Polish prisoners could not have been kept from the Russian population even if the transport had been carried on most unobtrusively and secretly, and shootings on such a large scale could not have taken place without the Russian population gaining knowledge and taking notice of them. 200 meters there was a public highway through which there was open traffic,and this highway was used daily and to a great extent by the Russian civilian population. Anything that took place in the little forest of Katyn could be seen from this highway. estates, which remained occupied by the owners during the time of the German occupation, and there was constant contact with the regimental staff. There are no reliable statements and testimony dealing with either the transport or the observation of shootings. Never, even on the part of the Germans, would such a site as actually was found be chosen for the mass shooting. This site was located between the main road and the regimental quarters, and as such would have been completely unsuitable for such an act. As I have already stated, there was lively traffic on the nearby road, and there was also traffic in the direct vicinity of the graves which were near a small road connecting the regimental headquarters with the main road. Even soldiers who had not participated would have had to see any act like that if it had taken place. very unsuitable. It was a technical unit, a signal corps unit the most unsuitable of all for such a task. the site of the deed on the 20th of September 1941, and they could only give testimony 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 quite out of the question that in the period of time of perhaps six weeks this act could have been perpetrated. The few people who were at their disposal were so overburbened 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.
allegdly helped with the disposal of the bodies. That cannot be proved. None of the Russian population had ever seen such prisoners. In no case could the dead be disposed of so quickly, and the site made unrecognizable so that the Witnesses Oberhaueser and Eichborn on their frequent trips to the Knieper Castle would not have seen any signs of such activity.
The testimony of the witness Baseliveski is not relevant. He allegedly heard a story to this effect from a certain Menchagin who cannot be found now. This witness did not make any personal observations. He himself did not see any Poles. He was told this by students, that they, the students, had seen Poles, but they did not know the number of Poles or where they were being kept.
This testimony is very spotty and it seems to be worthless, and the testimony given by the two witnesses cannot be quoted in that connection.
medical testimony. The German Government put out an expert report, made by 12 members of a commission who were representatives of legal medicine from European universities. However, the Prosecution refers to an expert opinion which was deposed by a group of Russian experts only. The first expert opinion, that given by the German Government, is to be preferred since it was compiled by experts who were completely impartial. ment contained in the report of the 30th of April 1943. Allegedly, he did not agree with the findings; he did not agree with the statement that the shootings took place in the months of March and April 1940, and this testimony must be met with misgivings.
THE PRESIDENT : Dr. Stahmer, you realize, of course, that you haven't offered in evidence the report of this German commission. You expressly refrained, as I understand it, from offering the report of the German Commission.
Dr. Stahmer : Mr. President, that is a mistake. I did not refrain from doing so. Rather, I was not granted the submission of the White Book, but I was granted that the submission of 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 copied made. These copies are being made, Mr.President, and they will be submitted. I used some of the passages from the protocol, from the records, 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 of 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 Prosecution. different and that you want to offer the whole of the report, then that matter will be considered by the Tribunal if the Tribunal hasn't already considered it. report to be offered in evidence ?