committed intentionally or carelessly, 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 are peculiar in the Eastern theater of war because there was no private economy in Russia 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 the rest, 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 tenor 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 this, one must not disregard one thing, this war was of such gravity, such proportions, such duration and totality as the creators of the Hague convention certainly never had or could have had the remotest idea. It was a war in which the nations fought for their existence or destruction. It was a war in which all values have changed. Thus the defendant had the right feeling when he declared: "After all there is no legality in the fight for life or death."

From the standpoint of necessity a justification can also be found for the deportation of workers from occupied territory to Germany. In his testimony the defendant stated in detail all the reasons which in his opinion made this measure necessary.

For the rest the defense counsel for defendant Sauckel, Herr Dr. Servatius, will review these matters in detail.

Looting 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 order to justify his conduct. In addition it will be observed that Reichmarshal Goering was not directly engaged in the safeguarding of art treasures in Poland.

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Not one of these art treasures did he take for his own collection. 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.

Of these confiscated objects, with the express approval of 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.

He wished to acquire these objects at a price established by French art experts, and the proceeds were to be distributed among the dependents of French war victims.

The juridical situation was therefore as follows: The objects were confiscated by decree of the Fuehrer for 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.

The Reich obviously saw in this a step which, though it was 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 peace treaty.

Therefore the question remains open whether the Reich Government was juridically entitled to confiscate the goods and to become their owner.

A solution to the question is no longer necessary, because Goering acted in good faith in the matter of this acquisition; in his testimony he emphasized his belief that he was entitled to acquire these things as they had been previously confiscated by the Fuehrer.

In consideration of these facts there cannot be any question of looting.

Certainly there could be no objection to the purchasing of 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.

It is the same case with objects which the defendant had acquired through a voluntary exchange in which the second party to the contract enjoyed the same rights as himself.

Airmen

I will now consider the accusation of the shooting of 50 officers 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:

In March 1944, 50 officers of the RAF, who had escaped from Stalag-Luft III in Sagan, were murdered after their recapture. According to a later declaration of the prosecution the circumstances were as follows:

During the night of 24-25 March 1944, 76 officers of the RAF escaped from the prisoner of war camp Stalag-Luft III in Sagan. Fifty 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 Reichmarshal 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?

The prosecution states that the defendant Goering collaborated in the drafting of this order. It refers among 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 these 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 only in respect of 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:

At this camp conference of 25 March 1944 Himmler reported the 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 6 million foreigners in Germany in the organization of an armed revolt. Then Hitler gave the order: "The prisoners remain with Himmler".

Keitel definitely refused the retransfer to Himmler of the 15 officers who had already been recaptured by the armed forces and returned to the camp, and these officers remained unharmed.

At this camp conference in the presence of Keitel, Hitler did 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. As Keitel and Jodl agree in their testimonies Reichmarshal Goering did not attend this meeting. Therefore it cannot possibly be correct that General Field Marshal Keitel declared in a conference with General Westhoff he had been reprimanded by Goering at the camp meeting on account of the prisoners escape.

General Koller has testified that General Korten assured him over the telephone round about the end of March or beginning of April 1944, that the Luftwaffe, namely the Reichmarshal and Korten himself, were not involved in the order and had only been informed of it later. Furthermore Koller certified that the Reichmarshal was extremely angry about the shooting.

These statements are completely in accordance with the declarations of Reichmarshal Goering who was on a vacation at the time of 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. Reichmarshal 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.

Upon inquiry, Himmler then confirmed the executions to Reichmarshal Goering with the justification that an order to that effect had been issued to him by Hitler.

It is made clear by this conversation how the execution was possible 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.

Not only did Reichmarshal Goering severely upbraid Himmler because 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.

Because Goering strongly condemned such proceedings, he requested shortly afterwards that the prisoner camps be taken in charge by the OKW. On being questioned, Field Marshal Keitel