1941 about the Barbarossa case, that neither the deputy of the Fuehrer nor any other political leader took part in this conference.

The last so-called key document to discuss is USA 33 (1881-PS) an account by Ambassador Schmidt of the conversation between the Fuehrer and the Japanese Foreign Minister Matsuoka in Berlin on April 4th, 1941. By the very nature of this conference there could be as a matter of course, no question of any participation in it by the defendant Rudolf Hess or by any other political leader of the Party. However, something else appears from this document; namely, the fact that it is not only false to talk about a common plan within Germany aiming at a war of aggression, but even more that this, that no kind of close political or military cooperation existed between the so-called Axis powers, in any case as far as the relations between Germany and Japan are concerned. What conclusion can now be drawn from the contents of this so-called key document which the prosecution itself has characterized as particularly relevant as to the existence of a so-called common plan? Without wanting to express a view as to the material relevance of those documents, in any case it is established by these notes that the defendant Hess was not present at any of these conferences or when these orders were issued. If, in appraising this circumstance, one considers the further fact that the defendant Rudolf Hess was the Fuehrer's deputy and therefore the highest political leader, and that furthermore, after September 1st, 1939, he was designated as the Fuehrer's successor after the defendant Hermann Goering, then there would not seem to be in fact any place for the assumption of a common plan in the form asserted by the prosecution.

In this connection, may I refer to the report of the Chief of Staff of the United States Army to the Secretary of War for the period from July 1, 1943, to June 30th, 1945. I quote: "The proofs at hand show that Hitler's original intention was to create a Greater German Reich that would dominate Europe by absorbing the Germanic peoples in the countries bordering on the German Reich and by strengthening these new boundaries. For the achievement of this aim Hitler pursued a policy of opportunism by which he succeeded. in occupying the Rhineland, Austria and Czechoslovakia without military resistance. No proof has yet been found that the German High Command had an over-all strategic plan. The High Command did fundamentally approve Hitler's policy, but his impetuous. strategy outran Germany's military capacities and finally led to Germany's defeat. The history of the German High Command since 1938 is full of constant personal conflicts in which Hitler's personal order increasingly prevailed against military judgment.

The first clash occurred in the year 1938 and ended in the dismissal of von Blomberg, von Fritsch and Beck, and in the elimination of the last important conservative influence on German foreign policy.

"The campaign in Poland, France, Norway, and the Netherlands resulted in serious dissensions between Hitler and the generals, with regard to details in the execution of the strategic plans. In every case, the general staff favored an orthodox form for the offensive, whereas Hitler was for an unorthodox attack, the objectives of which lay deep in enemy territory. In every case, Hitler's idea prevailed and the really amazing success of each of these successive campaigns raised Hitler's prestige to a point where one no longer dared to oppose his views. His military self-confidence became boundless after the victory in France, and henceforth he began to criticize and disparage his generals' way of thinking even in the presence of junior officers. So the result was that no opposition was brought forward by the general staff when Hitler made his fateful decision to advance against the danger threatening in the east.

"By Italy's entrance into the war, Mussolini intended to realize his strategic plans for the expansion of his empire under the cover of the German military successes. Field Marshal Keitel states that the Italian declaration of war was in contradiction with the declarations made to Germany. Both Keitel and Jodl agree that it was not desired. From the beginning Italy was nothing but a burden for the German war potential. Because of her dependence for oil and coal, Italy was a constant source of friction in the economic field. Mussolini's one-sided campaign against Greece and his attack on Egypt forced the Germans into the Balkan campaign, as well as into the African campaign and led to an overstraining of the German forces which became one of the chief factors of the German defeat.

"Moreover, there is no evidence whatsoever of a strategic planning between Germany and Japan. The German general staff recognized the fact that Japan was obligated by her neutrality pact with Russia, but hoped that Japan would tie up strong British and American land, sea, and air forces in the Far East . . ."

The statements of the defendants Keitel and Jodl, which they have made on the witness stand, are essentially the same as the statements of the American chief of staff; so further details on this point are superfluous. It may be considered as proven that not once did a complete agreement exist among the most intimate circle of Adolf Hitler's associates on the measures to be taken in the political and military field, whereby, first of all, the constitu

tionally established relationship of rank between the officers of the armed forces and the head of the state and supreme commander need not be considered. One sees that the existence of a common plan aiming at war cannot be accepted even in the case of that group of persons for whom it first seemed most likely.

The second common goal of the conspiracy is declared by the indictment to be the appropriation of the territories which Germany had lost as a result of the World War of 1914-1918. The preamble to the Treaty of Versailles provides for the possibility of a revision of the Treaty. Going beyond this, the demand for the reunion of Austria to the German Reich and the annexation of the Sudeten German regions cannot in itself be concluded to rest on the existence of a plan which was to have been realized at the proper moment by the use of violence or by way of war. As a matter of fact, by a disregard of the right of self-determination of nations, these territories had already been prevented in the year 1919 from annexing themselves to the German Reich. On this question I can refer to the statements I made at the beginning. Actually, the annexation of Austria took place-this can perhaps be said as a result of the presentation of evidence-under circumstances which cannot be described as warlike and which permit the conclusion that the greater part of the Austrian population approved the annexation. Concerning the Sudeten-German question, it suffices here to refer to the Munich agreement between Germany, Great Britain, France, and Italy by which the reunion of the Sudeten-Germans with the Reich was settled.

And finally, the third aim of the common plan was described as the annexation of additional territories on the European continent which should serve the conspirators as "Lebensraum." The indictment is very unclear in this point and lacks every substance. But in fact the question of the so-called "Lebensraum" is a problem which is completely independent of the National Socialist ideology and is determined by the size of the area and number of inhabitants. Every German Government had to and must deal with this question. If any argument by Hitler found a lasting response in the German people, it was the demand made by him for an appropriate share of the German people in the material wealth of the world. This demand appears to be all the more justified, as the proportion between the size of the area and the number of inhabitants was more unfavorable for the German people than for any other people.

I do not need to give detailed reasons in what insufficient way the most important sources of raw materials are distributed and that certain raw materials are completely monopolized. It is certain

that the bitterness about the unjust distribution of the material wealth of the world had to increase in the German people, as not only every reasonable revision was rejected, but moreover it was said by the opposite side in an unmistakable manner that the nations were divided into two classes; namely, the "haves" and the "have-nots." In fact, this classification could be felt as nothing else than ridicule. Moreover, even after 1933 there was no unanimous opinion about the possible solutions concerning the removal of the difficulties resulting from the need for space. So as, for instance, the defendant Rudolf Hess belonged precisely to those who wanted to solve the problem of "Lebensraum" by the acquisition of colonies if possible. For instance, in a big speech in Stettin, on 21 March 1936: "The natural way to make more food available for the people of Germany, to improve our living standard, is to supplement it by having colonies. Therefore, the Fuehrer by stating his willingness to return to the League of Nations, connected with this the expectation that the question of colonies would be submitted to examination. The Fuehrer knows, that a people without a sufficient area, without a sufficient food basis, a hungry people must in the long run become a center of unrest because of its instinct of self-preservation against which the most ingenious statesman is powerless. For hunger is a natural instance which cannot be subdued either by warnings or by others. Our desire for colonies is therefore only the desire for a pacification of Europe for a long time, and therefore the question of the allocation of colonies to Germany is part of the Fuehrer's big proposal of pacification.

The connection between the unjust distribution of the material goods of the world which contradicts all economic reason and the political tensions which shake the peace of the world again and again, cannot simply be overlooked.

Your Honors, I now turn to the legal evaluation of the state of affairs which may be considered as actually established. As I have already stated, article 6, paragraph 3, of the Statute is not the standardization of an own and independent state of criminality, but the expansion of the criminal responsibility of the leaders' instigators, and participants who have taken part in the drafting or in the execution of a common plan for the committing of a crime. mentioned in paragraph 2. According to the mentioned regulation, these persons are to be responsible not only for the acts which they themselves have committed, but they also are to take upon themselves the penal consequences for all acts which were committed by any person in the execution of such a plan.

In article 6, paragraph 2a, of the Statute the fact of a crime.

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against the peace is defined as follows: "The planning, the preparation, the initiation, or the execution of a war of aggression or of a war which violates international treaties; the conclusion of agreements or the giving of assurances, or the participation in a common plan or in a conspiracy for the execution of one of the abovementioned acts."

While it is expressly defined in article 6, paragraph 3 of the statute that the criminal responsibility of the participant in the draft of a common plan is limited to acts which "have been committed by any person in execution of such a plan", the crime against the peace is according to article 6, paragraph 2a, of the Statute already completed with the "conclusion of agreements or the giving of assurances or the participation in a common plan or in a conspiracy for the execution of a plan which has as its aim the preparation or initiating or execution of a war of aggression." In contrast to article 6, paragraph 3, it is here not necessary that an act of execution is actually committed.

I do not intend now to deal with the question more specifically whether the war as such and especially the start of a war of aggression was a crime according to international law valid at the time of the day of the outbreak of war, on 1 September 1939. This question has already been discussed in the opening speech of the defense. This examination of the legal side of this question has shown that neither the League of Nations agreement nor the Briand-Kellogg Pact contain anything which would allow the conclusion that the starting of a war was a criminal and therefore punishable offense. Valid international law knew neither a criminal responsibility of the state as a body corporate nor even less a criminal responsibility of the agencies of the state, such as the head of the state, the members of the government, the military commanders, the economic leaders, etc.

It can also be left undecided to what this unsatisfactory condition of international law had to be traced back. It already was correctly pointed out that the idea of sovereignty in the refusal of the great powers in particular to relinquish some of these rights of sovereignty in the interest of a better supernational organization, also were a reason for the unsatisfactory status of the international law especially in this question. In connection with it there is another fact which does not seem to be less important to me, namely that it was not possible until now to create an effective organization and a procedure which would guarantee a real satisfaction of the justified claims of the peoples for a proper participation in the material goods of the world, and which would also in other respects take care of a just settlement of the conflicting interests.