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THE PRESIDENT: The Tribunal will sit in closed session this afternoon and will not sit in open session after 1 o'clock.
DR.THOMA: Mr. President, may it please the Tribunal, with regard to the question of the justification of the decree concerning the compulsory labor service of the inhabitants of the Eastern Territories, I should like to continue on Page 33.
Thus the following principle recognized by international law is indicated:
Measures undertaken by an occupying power in occupied territory are legal as long as they are not in opposition to a proven stipulation of the international rules of warfare. The occupying power is therefore assumed to be entitled to the full exercise of all powers derived from territorial sovereignty over an occupied territory. According to the uniform opinion of experts on international law the occupying power acts by virtue of an original law of its own, guaranteed and defined as to content solely by international law, in the interest of its own conduct of the war as well as for the protection of the civil population in the occupied territory. I quote Heyland from Handbuch des Völkerrechts.
"The inhabitants of the occupied territory no longer have a duty of allegiance to the enemy sovereign but only to the occupying power; the will of the occupying power rules and decides in the occupied territory; the occupying power is the executor of its own will; its own interests alone are decisive for the exercise of its sovereign rights and, therefore, it is at liberty to act against the interest of the enemy state."
In view of Article 52 of the Hague Rules of Land Warfare the right to conscript labor in the occupied territory is acknowledged. It is stipulated here that labor services may be demanded from the inhabitants of the occupied territory; the demand must be limited to the requirements of the occupation forces; it must be in proportion to the resources of the country and must be of such a nature as not to compel the population to participate in military operations
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against their own country. In these stipulations I cannot discern any prohibition of labor conscription in occupied territories; on the contrary, I consider that an approval of compulsory labor service can be clearly deduced from them. The employment of such labor in war industry is undoubtedly in accordance with the requirements of the occupation forces and, in my estimation, it is equally beyond doubt that this constitutes no commitment to military operations. The Rules of Land Warfare contain no stipulations as to whether labor service may be demanded only in the home country or whether the conscript may be transported into the native land of the occupying power for the purpose of rendering labor services there. Thus, the general principle holds good that the occupying power is assumed to be entitled to exercise to the utmost extent all powers deriving from territorial sovereignty.
If one takes the correct view that the international rules of warfare should tend to humanize war by limiting the rights of the belligerents and that the trend in this direction should be continued, one must consider on the other hand that the stern reality of war tends toward the opposite direction.
THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is your contention that the Hague Rules authorize the deportation of men, women, or children to another country for the purpose of labor service.
DR. THOMA: Mr. President, I propose to speak about the interpretation of the Hague Rules of Land Warfare and I am dealing here with the question as to whether it is permissible to transport inhabitants of the country in order to meet the requirements of the occupying forces. I have stated my position here that laborers can also be transported into the country of the occupying power. About children, of course, I have said nothing. I did not say anything about Jews either. I only spoke about persons able to work, who were required to work in accordance with the necessities of the occupying power, and I said it was admissible for them to be transported into the home country of the occupying power. I leave this problem to the discernment of the Tribunal.
THE PRESIDENT: The Tribunal would like to have any authorities in international law which you have to cite for that proposition.
DR. THOMA: Mr. President, I shall mention some more quotations, more detailed scientific quotations concerning this problem. I have already quoted in that regard. I have repeatedly quoted Heyland's Handbuch des Völkerrechts, published by Stier-Somlo, and I shall give more quotations.
THE PRESIDENT: Will you tell me what language that book is in?
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DR. THOMA: In German, Mr. President; it is the Handbuch des Völkerrechts, published by Stier-Somlo, 1923.
Present-day warfare is no longer what it was in 1907. War has developed into total war, a life-and-death struggle of annihilation, in which the very last physical and moral forces of the nation are mobilized, and the loss of which, as is shown by the example of Germany, means unconditional surrender and the total destruction of her existence as a State.
Can one maintain, in view of this fact, that Germany, in this struggle of life and death, should not have been granted the basic right of self-preservation recognized by international law?
I refer to Strupp, Handbuch des Völkerrechts, published by Stier-Somlo, Stuttgart 1920, Part III, "Violations of International Law," Page 128 et sequentes.
There is no doubt that the very existence of the State was at stake; that is, it was an emergency which justified the compulsory employment of labor, even if it had not been permissible according to international law. It is inherent in that great anomaly called war that, as soon as the state of war has been proclaimed, international law is in a large measure set aside in the interest of the objective of the war, the overpowering of the enemy.
I quote Strupp, as above, Page 172.
"The development of civilization has seen a progressive moderation of the conception according to which everything is permissible in war until the enemy is destroyed; nevertheless the rules of warfare constitute even today a compromise between the demands of unrestrained military necessity and progressive humanitarian and civilized views.
"One thing, at any rate, is certain, namely, that the existence of a genuine emergency may be pleaded, even under the stipulations of the Hague Rules of Land Warfare. During the negotiations preceding the formulation of Article 46 of the Hague Rules, the following was stated literally and without opposition in the plenary session of the Conference:
"'The restrictions might affect the liberty of action of the belligerents in certain extreme emergencies,' indicating that for extreme contingencies, therefore, a state of emergency may be pleaded. It is recognized international law that even an aggressor must not be denied the right of pleading a state of emergency in case his existence is directly threatened."
In connection with the chapter concerning the eastern administration, I should like, without pointing out specifically all that the defendant has said during his testimony concerning accusations of
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the Soviet Prosecution, in particular the reports of the state commissions and the Molotov reports (Documents USSR-39, 41, 51, 89, and record of 16 April 1946), to express a hope that the factual corrections made by the defendant will be duly evaluated by the Tribunal.
Now I come to a new subject: Contrary to the assumption of the Prosecution, Rosenberg was in no instance the instigator of a persecution of Jews, any more than he was one of the leaders and originators of the policy adopted by the Party and the Reich, as the Prosecution claims (Walsh, on 13 December 1945, Volume III, Page 539). Rosenberg was certainly a convinced anti-Semite and expressed his conviction and the reasons for it both verbally and in writing. However, in his case anti-Semitism was not the most outstanding of his activities. In his book Blood and Honor, speeches and essays between 1919 and 1933, out of 64 speeches, for example, only one had a title referring to Jewry. The same applies to the other two volumes of his speeches. He felt his spiritual ancestors to be the mystic Meister Ekkehart, Goethe, Lagarde, and Houston Stewart Chamberlain; anti-Semitism was for him a negative element, and his chief and most positive efforts were directed toward the proclamation of a new German intellectual attitude, and a new German culture. Because he found this endangered after 1918, he became an opponent of Jewry. Even such different personalities as Von Papen, Von Neurath, and Raeder now confess to their belief that the penetration of the Jewish element into the whole of public life was so great that a change had to be brought about. It strikes me as very important, however, that the nature of Rosenberg's anti-Semitism was intellectual above all. For example, at the Party Rally of 1933 he explicitly mentioned a "chivalrous solution" of the Jewish question. We never heard Rosenberg use expressions like "We must annihilate the Jews wherever we find them; we shall take measures that will insure success. We must abandon all feelings of sympathy." The Prosecution itself quotes the following as an expression of the program Rosenberg set up for himself (Volume III, Page 529):
"After the Jews have been ousted as a matter of course from
all official positions, the Jewish question will find a decisive solution through the setting up of ghettos."
GENERAL R.A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. President, rather reluctantly I interrupt counsel for the defense, and I do not like to take the time of the Tribunal; but what I just heard is going beyond any permissible limits. When the defendants sitting in the dock tried to express their Fascist views, this was deemed inappropriate and cut short by the Tribunal.
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I think that it is absolutely inadmissible that defense counsel should use this place to promote antihuman propaganda; I cannot understand the contention of the lawyer who alleges the existence of a noble, spiritual anti-Semitism which Rosenberg advocates and that Rosenberg's belief in gathering all Jews in ghettos was chivalrous. Please note that the lawyer is not quoting any Nazi leader but expresses his own opinion, and I protest against the use of the International Military Tribunal for the spreading of Fascist propaganda. I ask the Tribunal to consider this objection of mine and to take appropriate action.
DR. THOMA: May it please the Tribunal-may I make an answer to that?
THE PRESIDENT: Dr. Thoma, we don't think it is necessary to trouble you. The Tribunal thinks-there may be, of course, differences of opinion as to the use of words in the course of your argument, but they see no reason for stopping you in the argument that you are presenting to the Tribunal.
DR. THOMA: Thank you, My Lord.
May it please the Tribunal, after what General Rudenko has said, I should like to make one statement. In my speech I have tried to argue upon the statements of the Prosecution and nothing else. I would like to say something else. The words "chivalrous solution of the Jewish question" were not my expression; I just quoted that as a statement made lay Rosenberg a long time before he came into this Court. The Prosecution quotes the following as
Rosenberg's statement of a program: "The Jewish question..." and so on; I have already read that.
It was not a mere question of chance that Rosenberg did not take part in the boycotting of Jews in 1933, that he was not called upon to work out the laws against the Jews in 1933, 1934, 1935, and so on (expatriation, prohibition of marriages, withdrawal of the right to vote, expulsion from all important positions and offices). Above all, he never took part in the action of 1938 against the Jews, nor in the destruction of synagogues, nor in anti-Semitic demonstrations. Neither was he the instigator in the background who sent out, or ordered, lesser people to commit certain actions. To be sure, Rosenberg was a true follower of Hitler, who took up Hitler's slogans and passed them on. For example, the motto, "The Jewish question will be solved only when the last Jew has left Germany and the European continent," and once the slogan of "Extermination of Jewry."
Exaggerated expressions were always part of the National Socialist weapons of propaganda. A Hitler speech was hardly imaginable without insults to his internal or external political
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opponents, or without threats of extermination. Every one of Hitler's speeches was echoed a million times by Goebbels down to the last speaker of the Party in a small country inn. The same sentences and words which Hitler had used were repeated, and not only in all the political speeches, but in the German press as well, in all the editorials and essays, until, weeks or months later, a new speech was given which brought about a new echo of a similar kind.
Rosenberg was no exception. He repeated, as everyone did, all of Hitler's slogans, including that of the "solution of the Jewish question," and once also that of the "extermination of Jewry." Apparently, like Hitler's other supporters, he gave as much or as little thought to the fact that in reality none of those phrases were clear but that they had a sinister double meaning and, while they might have meant real expulsion, they might also have implied the physical annihilation and murder of the Jews.
May I remind the Tribunal at this point that Rosenberg, during his testimony, made a reference to a speech of the British Prime Minister in the House of Commons in September 1943, in which speech it was stated that Prussian militarism and National Socialism had to be exterminated root and branch. No German interpreted that literally, and I believe no one interpreted it to mean that German soldiers and the National Socialism had to be exterminated physically.
Aside from the knowledge and will of the German people, and aside from the knowledge and will of the majority of the leadership of the Party-that is to say, known only to Bormann, Himmler, and Eichmann-there was hatched and carried out, from 1941 onward, a mass crime which surpassed all human concepts of reason and morality. The "Jewish question" was developed even further and brought to a so-called "final solution."
The Tribunal will have to decide the question whether Rosenberg, the specially characteristic exponent of the Party, the Reich Minister for the Occupied Eastern Territories, is also responsible for the murder of the Jews, and particularly for the murder of Jews in the-East; that is, is he a murderer of Jews? Or must it be recognized and admitted that, although he- stands but a hair's breadth from the abyss, it was, after all, external circumstances which led up to it all, and that these circumstances were outside his sphere of responsibility and guilt?
I believe I can say that Rosenberg never aimed, either openly or in secret, at the physical extermination of the Jews. His reserve and moderation were certainly no mere tactics. The slipping of anti-Semitism into crime took place without his knowledge or will. The fact in itself that he preached anti-Semitism justifies his punishment as the murderer of Jews as little as one could hold Rousseau
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and Mirabeau responsible for the subsequent horrors of the French Revolution.
Furthermore, no matter how much the first impression might lead to it, criminal guilt on his part cannot be deduced from his position as Reich Minister for the Occupied Eastern Territories. As already stated, the "responsible minister" cannot simply be held responsible for criminal acts committed in his sphere or his territory. Criminal responsibility, according to the German Penal Code, Paragraph 357, exists only if an official knowingly assents to the criminal actions of his subordinates, and if-the commentaries furnish this supplement-the superior is in a position to prevent the action.
I should like to take up the question of his responsibility on the grounds of the documents submitted for this purpose.
(1) The action taken against the Jews at Sluzk (Document Number 1104-PS).
On 27 October 1941, a horrible slaughter of Jews took place in Sluzk, committed by the four companies of a police battalion, because the commander received an order from his superior to clear the city of all Jews without exception. The district commissioner immediately made vigorous protests, demanded that the action be stopped at once, and gun in hand kept the police officers in check as far as he was able. He reported to the General Commissioner of White Ruthenia, Kube, at Minsk, and the latter suggested to the Reich Commissioner Ostland, Lohse, that the officers implicated be punished for this "unheard-of bestiality." He in turn reported to the Reich Minister for the East, with the request that immediate measures be taken at higher levels. The Reich Minister for the Occupied Eastern Territories sent the entire report to Heydrich, the Chief of the Security Police and of the SD, requesting further action. Due to an ingenious system according to which the Police were not responsible to the competent administrative chief and were not even obliged to report, Rosenberg could not take any further steps either in this or in similar cases. He was not head of the Police, and could only hope that the transmission of the report to Heydrich would be sufficient to stop what he considered to be regional excesses of the Police.
It can be seen from the indignation of all the administrative offices over the reported incidents that none of them knew that it was no question of excesses, but of an action ordered by Heydrich and Himmler. Even though Rosenberg violently disliked Heydrich and Himmler, not even he could suspect anything of this kind.
(2) Also from October 1941 dates Document 3663-PS in which the Reich Minister for the Occupied Eastern Territories, for whom Dr. Leibbrandt signed, calls for a report by the Reich Commissioner
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Ostland, because a complaint has been made by the Reich Security Main Office that the Reich Commissioner Ostland had prohibited executions of Jews in Libau. To this the addressee replied:
"I prohibited the execution of Jews in Libau because there was no justification for the way in which it was carried out."
This is followed by a request for further instructions. Regarding this document-which is signed by the departmental chief Leibbrandt, and which in no way points to any knowledge on the part of the Defendant Rosenberg-I wish to make the following provisional brief statement:
It is not conceived as a reproach by the Reich Minister for the East because the executions of Jews were discontinued, but it simply represents the transmittal of a complaint by the Reich Security Main Office, adding a request to report. It is to be presumed that the reason for the complaint was that the Reich Commissioner Ostland encroached on the competency of the Reich Security Main Office and the demand for a report was presumably issued in that sense. In a letter of 18 December 1941, the Reich Minister, in a letter also signed "By order: Brautigam," asked the Reich Commissioner Ostland to settle directly any questions which might arise with the Higher SS and Police Leader.
To identify the letter "R" as Rosenberg's initial, because the Prosecution obviously was more than doubtful about Rosenberg's knowledge of matters, turned out to be equally unfortunate. This "R" is not Rosenberg's.
(3) Document Number 3428-PS concerns a letter of the General Commissioner for White Ruthenia to the Reich Commissioner for the East. It is a shocking document about the mass extermination of Jews in White Ruthenia; however, there is nothing of interest in it for the case against Rosenberg, because those horrible events could be attributed to him only if he knew of them, and in neglect of his duty failed to intervene. There is no actual proof to found a supposition of such knowledge. The claim that these documents were found in Rosenberg's possession cannot be in accordance with the actual facts, for they show the Reich Commissioner in Riga as the addressee.
(4) In the '`Memorandum for the Fuehrer of 18 December 1941" (Document Number 001-PS) the defendant suggested the following, which I must quote literally:
"The assaults against members of the German Armed Forces have not stopped, but have gone on. It seems to be an obvious plan to disturb German-French co-operation, to force Germany to take measures of retaliation, thereby bringing about a new defensive attitude on the part of the French against
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Germany. My suggestion to the Fuehrer is that instead of killing 100 Frenchmen, he should have 100 or more Jewish bankers, lawyers, et cetera' shot."
It is not my task here to discuss how far it is admissible to shoot hostages, but one thing is certain, that Rosenberg was convinced such a measure was admissible. In that case, however, his suggestion must be considered in that light, and can by no means be judged as an independent incitement to murder. Besides, the suggestion had no results. In his reply of 31 December 1941, Lammers, acting on behalf of the Fuehrer, merely referred to the suggestion of utilizing the furniture and fittings from Jewish houses, and not to the shooting of hostages. Therefore, Rosenberg made no more reference to it.
At this point I should like to interpolate the following: The French prosecutor charged Rosenberg, when the latter was in the witness box, with the fact that this was murder. Gentlemen of the Tribunal, it was not murder, because no execution took place. But neither was it incitement to murder. One can only incite someone who still has to be persuaded. However, if the man who commits the act is already prepared for anything, is an omni mode facturus, then he can be incited no more, and there only remains the offense of a suggestion of a criminal act, which, according to German law, must be judged as an offense to receive only slight punishment, because it has had no consequence.
Just at this point I should like to recall that Rosenberg testified as a witness that on one occasion a court sentenced a district commissioner in the East to death for having extorted valuables from a Jewish family, and that that sentence was carried out. Please do not consider it an improper argument of the defense when I say: Does that not prove that Rosenberg abhorred criminal acts against the Jews?
(5) Document Number Rosenberg-135, Exhibit Number USSR-289, refers to the report of the General Commissioner of White Ruthenia in Minsk, dated 1 June 1943, on the subject of what happened in the prison of Minsk as regards gold fillings. This was addressed to the Reich Commissioner Ostland, who forwarded the report on 18 June 1243 with the utmost indignation. At his hearing before the Tribunal on 16 April 1946 the defendant already made a statement on this point. I should like to repeat this briefly now: The defendant had returned on 22 June 1943 from an official visit to the Ukraine and found a pile of notices about conferences, a number of letters, and above all the Fuehrer decree from the middle of June 1943, in which Rosenberg was instructed to limit himself to the fundamentals of lawmaking and not to bother about details. Herr Rosenberg did not read the letter concerned, but he has to surmise-he cannot
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remember this-that the letter was explained to him by his office, and presumably in the course of the reading he was informed of many documents and learned that there was again serious trouble between the Police and the civilian administration, and it is probable that Rosenberg said: Turn that over for investigation to Gauleiter Meyer or to the liaison officer. Otherwise the terrible details would certainly have remained in Rosenberg's memory.
Nobody doubts for a moment that the horrible crimes shown in these documents and all the other frightful things not covered in the documents, but which actually happened, call for atonement. Nobody doubts that not only the lesser henchmen acting on higher orders shall be punished, but also above all those who issued the orders, and those responsible for the crimes. Rosenberg did not issue an order to murder Jews; that much is clear. Is he, in spite of this, responsible for the frightful murders?
There is no trace of the defendant's handwriting on any of the murder documents. Nor has it been determined in any case that he knew anything about what went on. Can we condemn Rosenberg on the basis of his presumed and probable knowledge? Rosenberg has by no means the intention of playing a false and cowardly game of hide-and-seek behind his advisers and officials. But let us remember how cunningly the so-called executions of the Jews were kept secret, not only from' the public, but even from Hitler's closest collaborators.
Is it not possible, and even credible, that they were playing a game of hide-and-seek even with Rosenberg? The thoughts and intentions of none of the other NSDAP leaders were revealed so openly and clearly to all the world as particularly those of the author Rosenberg. Of none other could one be so sure that he would turn with indignation from inhuman and criminal acts.
But let us go one step further and assume that Rosenberg had full knowledge of this greatest crime. It is not proved, but one could imagine it and surmise it. Is he then responsible, too? Peculiar, even subtle, as we well know, was the departmental authority, and the responsibility which went with it, in the eastern countries. The entire police system had been taken from Rosenberg's sphere of influence, at the highest level of which was Himmler, and under him Heydrich. Of their orders and measures Rosenberg naturally had no knowledge and no idea.
The lower echelons of police leaders and police agencies were in effect subordinate and responsible to their police superiors and no one else. It was quite immaterial whether or not Rosenberg knew anything of the measures taken by the Police; he could change them as little as any other of his fellow citizens in the Third Reich. One might say: Yes, he could have remonstrated with Himmler or Hitler;
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he could have resigned. Of course, he could have done so. The decisive point, however, is not whether he could have done; it; the question is whether he would have achieved anything by doing so- that is to say, whether he could have prevented the execution; for only in such a case could his responsibility be affirmed on the basis of his failure to act, and only in such a case could one speak of causality without which criminal responsibility is unthinkable.
One might further claim, still under the assumption of Rosenberg's knowledge of matters, that Rosenberg could at least have taken steps against the Reich commissioners, who were obviously involved in these matters. We know that the administrative organization and the dividing up of final authority in the East were vague, to say the least. The Reich commissioners were sovereign masters in their own territory, who had the final decision in the shooting of hostages and in other retaliatory measures of far-reaching consequence. And what was the actual extent of their authority? In case the Reich Commissioner was dissatisfied with Rosenberg-and mostly he was' dissatisfied-he went to Hitler. Does anyone really believe that if Rosenberg disagreed with Koch as regards the execution of Jews, he would have been upheld by Hitler if he had approached him? Here again, there is a lack of that causality which is indispensable for a legal condemnation.
I come now to the Einsatzstab Rosenberg, the Operational Staff Rosenberg.
No less than three prosecutors have taken the stand in this Trial against Rosenberg, and have accused him of wholesale stealing of objects of art and science in the East and West (Storey, 18 December 1945; Gerthoffer, 6 February 1946; Smirnov, 15 February 1946). First I must take exception to some obvious exaggerations and injustices, that is, the assertion that the activities of the special staff in the West extended to public and private property without distinction (Volume VII, Page 55), and that the objects of art Germany appropriated amount to more than the combined treasures of the Metropolitan Museum in New York, of the British Museum in London, of the Louvre in Paris, and of the Tretjakov Gallery. Further, I must declare the statement incorrect that the "looting program" of Rosenberg was intended to rob the occupied countries of their entire centuries-old possessions of art and science. Finally, the Prosecution contrasts Rosenberg's actions to the looting of art treasures in former wars. It says that while egotism, conceit, taste, and personal inclination used to be the underlying motives of such looting, the National Socialists primarily had the criminal intention of storing up reserves of valuables (Volume VII, Page 65). I think it unnecessary to refer to the looting of art treasures in former times as far back as Napoleon, because the concepts of international law
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and regulations have changed in the meantime, but I should like to mention two things:
First, how many of the most famous objects of art in the most famous galleries of the world got there through the channels of war and how many got there in a peaceful way?
Second, I am prepared to accept the fact that the Prosecution denies Rosenberg's delight in art, or joy in the possession of art treasures as a possible motive for his actions, because Rosenberg was no robber, no plunderer, of art. He had no intention of appropriating the objects of art for himself or for someone else.
What were the actual facts? Rosenberg's operational staff was active in the East and in the West. It had two tasks: First, to search libraries, archives, et cetera, for material suitable for the proposed "university" of the Party, to confiscate this material and take it away for the purpose of research, and secondly, to seize objects of cultural value which were in the possession of or which belonged to Jews, or which had no owner or were of a doubtful origin. The Prosecution says: "The true and only motive, the true and only purpose of this 'seizure' was robbery and looting; there could be no question of intentions of mere 'safeguarding."'
On 20 August 1941 Rosenberg wrote to the Reich Commissioner Ostland that he wished distinctly to prohibit the transfer of any kind of art treasure from any place whatsoever without the approval of the Reich Commissioner (Document Number 1015(c)-PS). On 30 September 1942 the Commander-in-Chief of the Army issued an order (Document Number 1015(n)-PS) in agreement with Rosenberg to the following effect:
"Apart from exceptional cases when it is urgent to safeguard endangered objects of cultural value, it is desired that for the time being such objects be left where they are."
Later on, it says:
"The troops and all military commands within the operational area are now as before directed to spare valuable cultural monuments as far as possible and to prevent their destruction or damage."
In the report of the Special Staff for Creative Arts (report on work carried out between October 1940 and 1944, Document Number 1015(b)-PS) it is stated that in the Occupied Eastern Territories the activities of the Special Staff for Creative Arts were restricted to the scientific and photographic registration of official collections, and that the safeguarding and protection of these was carried out in co-operation with the military and civilian agencies. It says further that in the course of vacating the territories, several hundred valuable icons and paintings, et cetera, were saved and, with the co-operation of the individual army groups, were brought to a
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place of safekeeping in the Reich. Finally, on 12 June 1942 Rosenberg sent out the following decree in a circular letter to the highest Reich authorities, which reads:
"In the Occupied Eastern Territories a number of offices and individuals are engaged in the safeguarding of objects of cultural value. They work from various approaches to the subject and independently of each other. It is absolutely essential for the administration of these territories that a survey be made of the existing objects of cultural value. Furthermore it must be endeavored, as a general rule, to leave them where they are for the time being. To this end I have set up a central office for the registration and safeguarding of objects of cultural value in the East as a special division within my ministry."
Thus Rosenberg, as can be proved, proceeded from the point of view that objects of cultural value had to remain in the country and only through the retreat of the German troops were a few hundred valuable icons and paintings brought into Germany.
In time of war, objects of cultural value, both mobile and immobile, are as exposed to the danger of destruction as are any other objects of value. Rosenberg stopped all unnecessary destruction, theft, and removal; he centralized the safeguarding of objects of cultural value and had all necessary actions taken through his operational staff in the East and the West (for example, see Abel's report on the library at Minsk, Document Number 076-PS). It is quite in accordance with the conception of international law (I quote Scholz, Privateigentum im besetzten And unbesetzten Feindesland, Berlin 1919, Page 36) that care should be taken on the part of the occupying powers not only to protect, but to safeguard' and salvage protected objects of art as far as the war situation permits. It is even considered a cultural duty for the occupying power to remove particularly valuable objects of art from the combat zone and place them in safety as far as possible. Under certain circumstances the concept of international law may render it the cultural duty of the occupying power to bring into his own country for reasons of salvage objects of special scientific and artistic value. This is not an inadmissible 'Seizure'' (Article 56, Paragraph 2, Rules of Land Warfare), because this term could only apply to acts which are anticultural, not to acts which are procultural. (See Scholz, as above, Page 37).
Finally, I want to refer to Document Number 1109-PS, a report according to which scientific institutes that' had been saved were ready to be taken back to the Ukraine immediately after the hoped for re-entry of the troops. I consider it completely impossible to read anything about looting into this clear text.
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Certainly, in the East great quantities of cultural objects of considerable value were destroyed by direct military actions, or by wanton destruction, or looting. It would be a fundamental misconstruction of the true facts of the case, and a great injustice, if these losses should be charged to the account of the Einsatzstab and its chief, for his efforts went exactly in the opposite direction.
In the West (I refer to the testimony of the witness Robert Scholz of 19 June 1946, Document Number Rosenberg-41), the case was different but, in my opinion, here also the defendant cannot be charged with looting and robbing objects of art. When in the summer of 1940 the inhabitants of Paris, with the exception of the Jews, had once more returned, somebody conceived the idea of searching the now ownerless apartments, houses, and palaces for books and libraries and of taking to Germany whatever of this scientific material was of interest. From various branches of the Armed Forces came the report that especially in Jewish-owned palaces there were collections of objects of art which one could not guarantee to remain intact in case of a long occupation. Thereupon, Rosenberg made the proposal that his Einsatzstab be allowed to direct its attention to objects of art and to take them into its custody, which was then ordered by Hitler. What did the Einsatzstab do with these objects of art? It set up an accurate card index containing the names of the particular owner of each picture, photographed the art objects, scientifically appraised them, repaired them expertly insofar as was necessary, packed them carefully and shipped them to the Bavarian castles of Neuschwanstein and Chiemsee. Because of the danger of air raids, they were then stored in an old Austrian mine. Rosenberg attached great importance to keeping separate the objects cared for by the Einsatzstab, and not to have them mixed with the large-scale purchases which Hitler made for the proposed gallery in Linz.
Was that looting, robbery, theft? Looting is the indiscriminate and wanton carrying-off of objects in situations involving general distress and danger. Robbery is carrying off by force. Theft is carrying off without force. In all cases intent must exist to appropriate the object illegally for oneself or somebody else. What intent did Rosenberg have? He never denied that he and his co-workers had hopes of the pictures remaining in Germany. Perhaps as compensation or as a security for the peace negotiations, but in any case his intent was only directed at confiscating and safeguarding the objects and it has been proved that the question of what should be done with the confiscated items was left open until the end and that no decision was made on it. It is absolutely certain that Rosenberg did not have the intention of
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appropriating the things for himself or anybody else. If Rosenberg had been a plunderer of objects of art, he certainly would not have had exact notations made concerning dates and place of confiscation and names of the owners. As a precaution, however, I should also like to point out that because of the flight of their owners the objects were virtually ownerless, and that the question of the lack of a possessor and of the legality of their acquisition by Rosenberg cannot be judged by normal circumstances, but must be judged according to the extraordinary circumstances of the war. If the Prosecution claims that public and private objects of art were stolen at random, I should like to reply to the statement that only Jewish possessions, and indeed the specified ownerless objects were confiscated. Above all it is not true that state-owned property was also touched. Finally he did not act on his own responsibility but in carrying out a governmental order, and I want to ask that the fact be not overlooked that Rosenberg acted without any egotistical motive. Not a single picture passed into his private possession; he did not gain a single Reichsmark from this transaction involving millions, and after all, all the artistic and cultural property has been found again. I would like to thank the French Prosecution for having acknowledged this fact here publicly.
Goering supported the work of the Einsatzstab and, as he admits, "diverted" some objects for his own use, with the Fuehrer's approval. This disturbed Rosenberg because the Einsatzstab was in his name, and he declared that as a matter of principle he did not want to give anything even to the museums, that his task was purely one of registration and safeguarding. The Fuehrer should have the final decision on these works of art. Rosenberg could not undertake anything against Goering, but he ordered his deputy Robert Scholz at least to make an accurate inventor' of what was given to Göring, and to have the latter sign a receipt, which he did. Thus, most certainly it cannot be proved that Rosenberg had the intention of illegally appropriating the objects of art for himself or for somebody else. Furthermore, Robert Scholz confirmed that Rosenberg also forbade all his assistants to acquire any objects of art or culture even by virtue of an official appraisal (Document Number Rosenberg-41).
The Prosecution says that with the Rosenberg Einsatzstab a gang of vandals broke into the European Mouse of Art in order to plunder in a barbarous way. If one contemplates the tremendous work of drawing up an inventory, of cataloging, of restoration, and of scientific appraisal, and if one finally bears in mind that all these treasures were most carefully stored away, and certainly came through the war better than would have been the case if the
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German authorities had not taken care of them, then I believe that, objectively speaking, one can use any term but that of "vandalism."
THE PRESIDENT: I think this would be a good time to break off.
[A recess was taken.]
DR. THOMA: Rosenberg is also especially charged with looting furniture. He allegedly ransacked the contents of 79,000 Jewish-owned homes, among them 38,000 in Paris, and took the loot to Germany. Unquestionably, these measures were taken for the benefit of air-raid victims; in the cities which had been destroyed by air warfare new homes were set up for the homeless. It was in line with National Socialist mentality and it must certainly be morally condemned that the confiscation was limited to Jewish property. The essential question, however, is whether the confiscation was at all legal. In all my statements I have avoided trying to excuse a weak legal position with a state of military emergency, and I do not wish to do it at this point either, for, as an expert on international law states, "The state of emergency is the lever by means of which the entire body of martial law can be torn from its hinges." In this case, idles not the justification of national and military necessity exist, did not air warfare bring intense and general distress to Germany?
One might object that such distress could have been ended by unconditional surrender. In my opinion, however, the above-mentioned justification cannot be denied to the defendant by this reference to unconditional surrender, entailing the Reich's abandonment of its own existence, its independence, and its own vital interests. The appropriation of enemy private property took place in application of a right of requisitioning, which was extended beyond the legal terms of martial law and justified by the state of emergency. I venture to assert that his procedure of confiscating furniture, in view of the devastating effects of air warfare against Germany, was not contradictory to "the customs among civilized peoples," "the laws of humanity," and "the demands of the public conscience" (Marten's clause in the preamble to the agreement concerning the Laws and Customs of Land Warfare; see Scholz, in the afore-mentioned book, Page 173).
May it please the High Tribunal, I shall now pass on to the Norway operation. The Prosecution characterizes Rosenberg and Raeder as the most energetic conspirators in the Norway operation, and later in the same matter calls Rosenberg a "dealer in high treason." The opinion of the Prosecution and also the assumption of the present Norwegian Government (Norwegian Report of 13 October 1945, Document Number TC-56' are obviously to the
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effect that the Party's Foreign Political Office, of which Rosenberg was the head, and Quisling had plotted the war against Norway in mutual conspiracy. I believe that of all the charges against Rosenberg hitherto dealt with, none has less foundation than this one. On the basis of the few documents which have been submitted to the Court, in my opinion the case could doubtlessly be cleared up in favor of the defendant.
There existed a Foreign Political Office of the Party, which had the task of informing foreign visitors about the National Socialist movement, of referring any suggestions to the official offices, and otherwise of functioning as a central office of the Party for questions of foreign policy. The special interest, and I may say the special sympathy, of the leading men of the Party and the State was directed toward the Scandinavian countries. It was specifically in this direction that the Foreign Political Office placed the main emphasis on the field of cultural policy. The already existing "Nordic Society" was expanded, the birthdays of great Scandinavian scientists and artists were observed in Germany, a great Nordic music festival was held, and so forth. The relations took on a really political note only with the appearance of Quisling, whom Rosenberg had seen for the first time in 1933 and who then, in 1939, 6 years later, looked up Rosenberg again after the convention of the Nordic Society in Lubeck; the former spoke of the danger of European entanglements and expressed the fear that Norway was in danger of being drawn into them. He then feared) above all a partitioning of his country in such a manner that the Soviet Union would occupy the northern and England the southern part of Norway.
Quisling again came to see Rosenberg in Berlin in December 1939. The latter arranged for a conference with the Fuehrer. Hitler declared that he would by far prefer to have Norway remain completely neutral and that he did not intend to extend the theater of war and involve more nations in the conflict, but he would) know how to defend himself against a further isolation of Germany and further threats against her. In order to counteract the increasing activity of enemy propaganda, Quisling was promised financial support of his movement, which was based on the pan-Germanic idea. The military treatment of the questions now taken up was assigned to a special military staff; Rosenberg was to deal with the political aspect, and he appointed his assistant Scheidt to maintain liaison. Hagelin, a Norwegian confidential agent of Quisling's, in January 1940 gave Rosenberg some more disturbing reports on the feared violation of neutrality by the Norwegian Government, and Rosenberg passed them on to Hitler. After the Altmark incident, Hagelin, who moved in Norwegian Government circles, intensified
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his warnings to the effect that the Allies had already begun to examine the Norwegian seaports for disembarkation and transportation possibilities; in any case, the Norwegian Government would be satisfied with protests on paper, and Quisling was indicating that any delay in undertaking a counteraction would mean an exceptional risk. Rosenberg again handed the reports immediately to Hitler. If he had not done so that would have been downright treason to his country. The German counterblow followed on 9 April 1940, and Rosenberg learned about it from the radio and the newspapers like any ordinary citizen. After his above-mentioned report, which he made in the line of duty, Rosenberg did not participate in either diplomatic or military preparations.
Should there still be any doubt that in the Norwegian case Rosenberg was only an agent who forwarded information to Hitler, and not an instigator, conspirator, or traitor, I should like to refer to two documents. First, to Document Number C-65, Rosenberg's file note concerning Quisling's visit. Obviously, it is the information on Quisling which Hitler had requested from Rosenberg. If Rosenberg had been on closer terms with Quisling, he certainly would have been only too glad to inform Hitler about it. Rosenberg had only heard of a fantastic and impracticable plan of Quisling's for a coup d'etat (occupation of important central offices in Oslo by sudden action, supported by specially selected Norwegians who had been trained in Germany, afterward having the German fleet called in by a newly formed Norwegian Government). However, an earlier report of Quisling appeared less fantastic to Rosenberg; according to this-names being given-officers of the Western Powers traveled through Norway as consular officials, ascertained the depth of the water in ports of disembarkation, and make inquiries into the crosssections and clearances of railway tunnels. This was the true and only reason for everything Rosenberg did in the Norwegian matter.
The second document is the report concerning "The Political Preparation of the Norway Operation".(Document Number 004-PS, Exhibit Number GB-140), a report from Rosenberg to Hess of 17 June 1940. In this interdepartmental report there is also nothing which deviates from Rosenberg's own trustworthy statement and which would allow him to appear as an instigator of war and of high treason. Rosenberg was not called into any political or military discussion concerning Norway. Thus, what criminal act did Rosenberg commit? Was it criminal that he tried' "to gain influence in Norway" (Document Number TC-56), or that with his knowledge the Foreign Office gave subsidies to Quisling? Finally, I should also like to point out that later on, after the operation had succeeded, Rosenberg was in no way entrusted with an office or function with
regard to Norway; that even the appointment of a Reich Commissioner for Norway was carried out without consulting him.
I shall not deal with the case of Minister Goga, which I have set forth in detail, but I ask the High Tribunal to consider it as having been dealt with. Now I turn to the topic: Persecution of the Church.
The Prosecution maintains that Rosenberg, together with Bormann, issued the orders for religious persecutions and induced others to participate in these persecutions. However, not a single order of that kind is known. There were presented only letters by Bormann, partly to Rosenberg, partly to others, from which no charges against Rosenberg can be drawn. On the contrary Rosenberg was repeatedly reproached, as on one occasion when in the presence of Hitler he praised a book by Reich Bishop Muller (Document Number 100-PS); another time when Rosenberg gave Reich Bishop Muller instructions to work out directives for thoughts regarding religious instruction in schools (Document Number 098-PS); once again when Rosenberg sponsored a strictly Christian work by General Von Rabenau.
As a witness Rosenberg himself declared (Volume XI, Page 461) that he had opposed propaganda advocating withdrawal from the Church and had never called for state and police measures against his opponents in the fields of theology and research, and particularly that he had never used the Police for suppressing those who were opponents of his book The Myth of the 20th Century. In December 1941, as Reich Minister for the Occupied Eastern Territories, he issued an edict for Church toleration (Documents Number 1517-PS and 294-PS). Rosenberg had nothing to do with arrests, the deportation of priests, and persecution of the Church. He had no part either in the negotiations with the Vatican over the Concordat or in the assignment of the Protestant Reich Bishop; neither did he take any part in measures which were hostile to the Church, and which were later carried out by the Police. He never participated in any other administrative or legislative anticlerical measures.
In my opinion it is quite impossible, for lack of documentary evidence, to construe from what Rosenberg thought and said about religious and philosophical matters-which I will quote presently- that he conspired toward a political suppression of religion by force. The only document (Number 130-PS) pointing in this direction was withdrawn by the American Prosecution itself before I was obliged to draw attention to its being a pamphlet directed against Rosenberg.
His book The Myth of the 20th Century, which is allegedly written for the reshaping of the denominations in the direction of a Germanic Christianity, is moreover chiefly addressed to those who had already broken with the Church. "No consciously responsible
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German," says Rosenberg at one place in it, "should suggest withdrawal from the Churches to those who are still believing members thereof" (Document Number Rosenberg-7, Document Book 1, Page 122), and once again: "Science would never have the power to dethrone true religion" (see as above, Page 125). His writings are not addressed to the faithful churchgoers of today in order to hinder them in the course of their chosen spiritual life, but to those who have already discarded their religious faith (Document Number Rosenberg-7, Document Book 1, Page 125). In his speeches he upheld the view that the Party is not entitled to establish norms in metaphysical matters which contest immortality, et cetera. After he had been assigned to supervise ideological education, he said explicitly in his Berlin speech of 22 February 1934: "No National Socialist is allowed to engage in religious discussions while wearing the uniform of his Movement," and he declared at the same time that "all well-disposed persons should strive for the pacification of the entire political and spiritual life in Germany" (Document. Number Rosenberg-7(a), Document Book 1, Page 130). That in this respect, too, things developed along different lines is not due to the desire or influence of Rosenberg.
Moreover, I need make only brief allusion to the fact that it is a question of the 1000-year-old problem of relations between the clerical and so-called temporal powers. The struggle of emperors, kings, and popes in the Middle Ages; the French Revolution with the shooting of priests; Bismarck's clerical controversies; the secular legislation of the French Republic under Combos; all those were things, which from the standpoint of the Churches...
Mr. President, may I make a brief statement by way of explanation? I wanted to say that I have concluded this topic, that I do not wish to concern myself with the problem of Church persecutions any further. I have finished with it. I am coming to the topic of ideology and general politics.
Ideology and education have been nothing but a means of obtaining power and consolidating that power; uniformity of thinking has played an important part in the program of the conspiracy; the formation of the Armed Forces has only been possible in conjunction with the ideological education of the nation and Party-so says the Prosecution (Burden, on 9 January 1946). And continuing its attacks against Rosenberg, the Prosecution proceeds by saying that Rosenberg's ideas formed the foundation of the National Socialist movement, and that Rosenberg's contribution in formulating and spreading the National Socialist ideology gave foundation to the conspiracy by shaping its "philosophical technique."
I think that one will have to take care, in judging Rosenberg's case, not to yield to certain primitive ways of thinking and become
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a victim of them: First of all an exaggeration of the conception of ideology and the inexact use of that concept. At best it was a political philosophy which was hand in glove with Hitler's political measures and which Hitler himself preached in his book Mien Camp, but it was not an ideology in an all-embracing sense. It is true that National Socialism endeavored to create a spiritual philosophy and an ideology of its own, but it had not reached that stage yet by far. Rosenberg's book The Myth of the 20th Century is an attempt in that direction, being a personal confession, without any suggestion of political measures. Therefore, his philosophy cannot have formed the ideological basis of National Socialism. In addition there is a total lack of proof that a straight spiritual line, a clear spiritual causal connection, exists between the conceptions of Rosenberg and the alleged and actual crimes.
If one goes to the trouble of looking through the book, The Myth Of the 20th Century, one will immediately observe that though there is some philosophizing in the National Socialist way, it would be, however, pure fiction to affirm that there is any dogmatic formulation of a tangible program in this book, or that it is a foundation for the activities of the responsible leaders of the Reich in this World War. Another mistake of National Socialism was perhaps the boundless unification and simplification: people were made uniform; thinking was made uniform; only one uniform type of German was left. There was also alleged to be only one National Socialist way of thinking, and only National Socialist ideology. But in spite of this, as we see today, the leaders were frequently of different opinions on essential questions. I will recall the question of the policy in the East. Here too, there seems to be danger of accepting this way of thinking, of observing everything through the spectacles of uniformity, and of saying: One idea, one philosophy, one responsibility, one crime, one punishment. Such a simplification, apart from its primitive nature, would certainly also constitute a great injustice toward the Defendant Rosenberg.
Finally, when one hears how the Prosecution attacks "Germanic Christianity," the "heathen blood myth," making much of Rosenberg's expression, "the Nordic blood is the mystery which has superseded and overpowered the old sacraments," one feels inclined to close one's eyes for a moment and to picture oneself attending a session of the Inquisition in the Middle Ages where they are about to sentence Rosenberg to the stake as a heretic. Yet nothing must be farther from the Tribunal's mind than to harbor thoughts of intolerance, since here, in spite of all attempts by some of the prosecutors, it is not ideologies but crimes which are involved.
In the Defendant Rosenberg's case it is a question of whether by his teachings he was guilty of preparing and promoting crimes.
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The Prosecution has brought forth arguments to this end, but have not proved it, while I can prove the opposite merely by pointing to Rosenberg's activities in the East. Had he been the bearer and apostle of a criminal idea, he would have had an opportunity, such as no criminal has ever yet had in world history, to indulge in criminal activities. I have stated explicitly that in his case it was just the opposite. So when the bearer and apostle of an idea himself has the greatest of opportunities and yet in practice himself behaves morally, then his teachings cannot be criminal and immoral either. Above all, he cannot then be punished as a criminal on the basis of his teachings. What criminally degenerate persons practiced as alleged National Socialism cannot be laid to the charge of Rosenberg. Moreover, Rosenberg's speeches in three volumes, which express what he taught in the course of 8 years, bear witness to the honorable nature of his endeavors.
Thus, if we relinquish the false conception of uniformity: One party, one philosophy, one ideology, one crime-and we will have to, in view of the indisputable fact that Rosenberg himself never pursued a policy of extermination, destruction, and enslavement in the East-we shall have to admit that the facts of the terrible central executive orders and of Rosenberg's philosophy are not identical, and on these grounds alone the conclusions of the Prosecution are invalid.
Karl Marx teaches that historical events and political social reality are conditioned by the mere casual play of materialistic forces. Whether Marx in addition acknowledges the independent influence of man and ideas on history is at least doubtful. On the other hand, Rosenberg stresses emphatically the influence and the necessity of the highest ideas in the history of peoples. But Rosenberg does not overlook the fact that every event in history is the result of a totality of acting forces. The will, the passions and the intelligence of the people involved work together to form a historical process which cannot be calculated in human terms. It has already been pointed out that, just as little as Voltaire's and Rousseau's ideas can be recognized as the causes of the French Revolution, and the slogans of "Liberty, Equality, and Fraternity" be taken as the cause of the Jacobinic terror, as little as one can say that Mirabeau and Sieze had wanted or plotted such a blood bath, so little can one ascribe to Rosenberg as his moral or even criminal guilt that which National Socialism became during its development through the decades. In other words, I believe it is as unjust as it is unhistorical to ascribe today, in retrospect, the negative aspects of National Socialism, which were connected with the terrible collapse, to a plan desired from the outset and emanating from Rosenberg's ideas.
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Therefore, in considering Rosenberg's work the mistake of a standardization which does not correspond to reality is added to the further mistake of mechanization; there is neither a mechanical man nor mechanical history. And, finally, the construction of the Indictment is also an absolutely negative one; it views the defendant from the standpoint of political polemics and is impressed by the excitement of people in these excited times. I must briefly take exception to this distortion of the defendant's mental traits.
The spiritual state of the period after the first World War and even of the preceding period, which gave birth to the defendant's ideas, are known to all of us only too well: The turmoil in the spirit and soul of man brought about by the technical age, his hunger and thirst for a new spirit and a new soul; liberty was the slogan and a "new beginning" the impulse which directed the will of youth. Its longing and enthusiasm were aimed at nature. The thoughts and wishes of this generation were led into political paths by the contrast between rich and poor, which youth considered unjust and sought to bridge through socialism and the fellowship of the people. In Germany the development along political lines was given further impetus by the national misfortune of 1918-19 and the Treaty of Versailles, which was likewise felt to be unjust. The idea of building German history through the union of nationalism and socialism glowed unconsciously in the hearts of millions, as the undisputed tremendous success of National Socialism proves. The spiritual foundation was the desire for external and internal self-assertion and love for one's fellow countrymen and for the people themselves, who had had to suffer so much torment and misery in history.
The desire for self-assertion and love for one's own people, together with the whole system of National Socialist ideas, then developed in an inexplicable manner into a furious conflagration. The most primitive considerations of common sense were eliminated just as in a delirium; in complete delusion everything was risked and everything was lost.
The searching questions which present themselves to Rosenberg time and time again are whether he could have done more for what he thought and upheld as just and worthy; where he neglected essential things; where he fell short of requirements, what negative symptoms, insofar as he had knowledge of them, he should have paid more attention to. Can such questions, which every person asks when he is crushed by disaster, be considered as evidence for his objective guilt? I do not think so. On 17 January 1946 the French Chief Prosecutor, M. de Menthon, stated the following, which I quote (Volume V, Pages 378, 379):
"We are rather facing systematic criminality which directly and necessarily derives from a monstrous doctrine with the
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full will of the leaders of Nazi Germany. The crime against peace, which was undertaken, is immediately derived from the National Socialist doctrine."
To refute this assertion I must briefly present this doctrine. I have classified the National Socialist ideology-in accord, I believe, with scientific opinions-under the so-called new romanticism. This trend, which was grounded in fate and the necessities of history, had gone through the whole civilized world since the turn of the century as a reaction against rationalism and the technical age. It differs from the old romanticism in that it adopts the naturalistic and biological consideration of man and history. It is borne up by a confident faith in the value and meaning of life and the whole of reality. It does not glorify sentiment or intellect, but the innermost motives of man-heart, will, and faith. This philosophy receives its National Socialist stamp through the emphasis which is placed upon the mysterious importance of peoples and races for all human experience and activity. It is in the people, in the common possession of blood, history, and culture, that the real roots of strength are thought to be found. Only by participating in the movements of a people and its strength does the individual serve himself and his generation.
Rosenberg's scientific contribution to the racial ideology consists in his description of the rise and fall of great historical figures, who sprang from races and peoples and set up definite standards in all spheres: language, custom, art, religion, philosophy, and politics. According to Rosenberg the efforts of the twentieth century to establish a form for itself are a struggle for the independence of the human personality. In Rosenberg's opinion, its essence is the consciousness of honor. The myth of national honor is at the same time the myth of blood and race, which produce and support honor in its highest form. Therefore, the struggle for honor in its highest form is also a spiritual struggle with other systems and their maximum values. Thus, intuition stands against intuition, will against will.
Rosenberg expresses this thought in the following manner (The Myth of the 20th Century, Introduction, Pages 1 and 2):
"History and the task of the future no longer mean a struggle between classes, no longer a struggle between Church dogma and dogma, but the dispute between blood and blood, race and race, people and people. And this means: A struggle between psychologies."
Consequently, Rosenberg had, in any case, no ideas of genocide as Raphael Lemkin expounds in Axis Rule in Occupied Europe, Page 81, where he ends the above quotation after the words "race
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and race, people and people," but he believed in a struggle between psychologies, in other words, spiritual controversy.
I mention this spiritual trend in order to explain the peculiar fact in National Socialism that political considerations born of the intellect often gave way before the pathos of will and faith. In Rosenberg's case this danger did not appear so much since in making everything revolve around the "soil," that is, the fatherland, and its history and peasantry as the force from which springs the essence of a race, he remains in the sphere of life's realities. Perhaps unaware of it himself, he was nevertheless borne upward by this current. The question arises as to what effects this ideology had on political life.
It is clear that the emphasis on will and faith gave special weight to political demands. After the Treaty of Versailles the political demands of Germany were aimed at recovering freedom and equality among the peoples as a still fettered great power. This had been the objective of German statesmen even before Hitler. The other great powers had certain misgivings about recognizing Germany again as such. Rosenberg fought to remove these misgivings. His weapon was his pen. The Tribunal has allowed me to present in evidence a group of excerpts from Rosenberg's speeches and writings. I submitted it in my Document Book 1, Volume II. In view of the quantity of material and of my intention to submit only the most important matter, I depend on the Court's being familiar with my document book.
In the first place I wish to call attention to the effect which these works had on German youth. I may recall the witness Von Schirach's testimony. I repeat verbally:
"At conventions of youth leaders, at which he spoke once a year, Rosenberg chiefly chose educational, character-building subjects. I remember, for instance, that he spoke on loneliness and comradeship, personality and honor, and so forth. At these conventions of leaders he did not deliver any speeches against Jews. As far as I remember, he did not touch on the religious problem of youth either, in any case not to the best of my memory. Mostly I heard him talk on such subjects as I have just mentioned before."
The attitude of youth was actually better than before the taking over of power. Idleness, the root of all evil, had ceased and had been replaced by work, the fulfillment of duty, the aiming at ideals, patriotism, and the will to get ahead. It was a fatality here too, that through Hitler's policy these values were directed in the wrong manner.
The charges by the Prosecution that Rosenberg was the advocate of a conspiracy against peace, of racial hatred, of the elimination
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of human rights, of tyranny, of a rule of horror, violence, and illegality, of unbridled nationalism and militarism, of a German master race, I could already refute by pointing to the excerpts from The Myth of the 20th Century, which the Prosecution itself has submitted as evidence for the truth of its assertions. In reply to this, in order to refute this assertion by the Prosecution, I want to point in particular to the following facts: To prove Rosenberg's honest struggle for the peaceful existence of nations side by side I wish to refer to his speech in Rome in November 1932 before the Royal Academy of Rome (reproduced in Blood and Honor, Document Book 1, Page 150). In his speech in Rome Rosenberg pointed to the fateful significance of the four great powers and proclaimed- I quote his words:
"Therefore he who strives in earnest to create a Europe which shall be an organic unit with a pronounced multiplicity of form and not merely a crude summation, must acknowledge the four great nationalisms as given to us by fate and must, therefore, seek to give fulfillment to the force radiating from their core. The destruction of one of these centers by any power would not result in a 'Europe,' but would bring about chaos in which the other centers of culture would also have to perish. In reverse it is only the triumph of the radiations in those directions where the four great forces do not come into conflict with each other which would result in the most dynamic force of creative being and organic peace, not an explosive forced situation such as prevails today, whereby it would guarantee to the small nations more security than appears possible today in the struggle against elementary force."
To this line of thought Rosenberg, as Chief of the Foreign Political Office of the Party, remained true. Unfortunately, he could only work for it through his words. No witness could confirm in this courtroom that Rosenberg had any influence on actual foreign policy, whether it was directed by Neurath, Ribbentrop, Goering, or Hitler himself. Neither in the Austrian, nor in the Czech, nor in the Polish, nor in the Russian subject matter has his name been mentioned in connection with the charge of participation in aggressive wars. Everywhere he was placed before accomplished facts. In the war against the Soviet Union he received his orders only when the war against Russia had already been established as an acute possibility. Me did not stir up the Norwegian campaign, but passed on personal information in accordance with his duty.
Now, as regards Rosenberg's speeches and writings on the problems of general foreign policy, he advocated the Anschluss of the Austrians, who had been forcibly excluded from the Reich, as
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a demand born of the right to self-determination which had been proclaimed by the Allies themselves. The revision of Versailles was a postulate of justice against a violation of the Treaty of 11 November 1918. To advocate the German Armed Forces was, in view of the nondisarmament of the other powers, a defense of the solemnly promised equality of rights.
I shall now take up the charge of racial hatred.
Rosenberg's opinions in regard to the race question were the result of racial research of international scientists. Rosenberg repeatedly asserts (I refer again to the opinion stated in Document Book 1, Volume II) that the purpose of his racial political demands was not contempt of race, but respect for it. I quote Page 70:
"The leading moral idea of an approach to world history based on the laws of heredity belongs to our times and to our generation, being in full accord with the true spirit of the modern eugenics movement with regard to patriotism, that is, the upholding and expansion of the spiritually, morally, intellectually, and physically best hereditary forces for our fatherland: only in this way can we preserve our institutions for all future times."
These words embody the main theme of his demands, though their originator was not Rosenberg, but Henry Fairfield Osborn, Professor at Columbia University, who wrote them in discussion of the book by his colleague in science, Madison Grant, The Decline of the Great Race. This research, long before the existence of the Third Reich, led to eugenic legislation in other countries, in particular to the American Immigration Law of 26 May 1924, which was aimed at a strong reduction of immigrants from southern and eastern Europe while favoring those from the north and west of Europe.
I do not think I have to say that I am not hereby defending the murders of those mentally diseased in Germany as an alleged eugenic measure. With this measure, too, Rosenberg did not have the slightest connection.
For Rosenberg it was a question of the spiritual strengthening and consolidation of the German nation, indeed of the Aryan race. He would like to have his ideology considered in that light, above all The Myth of the 20th Century. His preaching of the significance of race in history did not call-I stress this again-for race contempt, but for consideration and respect of race, and demanded the acknowledgment of the racial idea only by the German people, not by other nations. He considered the Aryan nations as the leading ones in history. And if in doing so he underestimated the significance of other races, as for instance the Semitic ones, he, in his praise of Aryan races, did not think of the German nation alone,
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but of the European nations in general. I refer to his speech in Rome of November 1932.
I am keeping within the framework of historical truth in pointing to the fact that anti-Judaism is not an invention of National Socialism. For thousands of years the Jewish question has been the minority problem of the world. It has an irrational character which can be understood to some extent only in connection with the Bible. Rosenberg was a convinced anti-Semite, who in writing and speech gave expression to his convictions and their foundations. I have already emphasized that even such different personalities as Von Papen, Von Neurath, and Raeder are still of the opinion that the predominance of the Jewish element in the entire public life had reached such proportions that a change had to come about in this respect. The concrete result of that predominance, the fact that the Jews in Germany when attacked knew how to repay in kind, sharpened the anti-Semitic fight before the accession to power.
I wanted to present to the Tribunal a selection of Jewish literary attacks on the national feeling at that time, but the Tribunal ruled that my application was irrelevant; as these writings were not introduced as evidence I cannot speak about them. It is, however, an injustice to Rosenberg to assert that blind hatred of the Jewish race had goaded him into that controversy. He had before his eyes concrete factual evidence of the disintegrating activities of Jews.
It appeared as if the Party program of placing Jews under a generous law of aliens would be realized. It is true that Goebbels at that time arranged a one-day boycotting of Jewish stores. Rosenberg, however, in his speech of 28 June 1933, the anniversary of the Versailles Treaty, in the assembly hall of the Reichstag in the Kroll Opera House, declared that it was no longer necessary that in the capital of the Reich 74 percent of all lawyers should be Jews, and that 80 to 90 percent of the physicians in Berlin hospitals should be Jewish; about 30 percent of Jewish lawyers in Berlin would suffice amply. In his speech at the Party Rally in September 1933 Rosenberg stated in addition, and I quote:
"In the most chivalrous way, the German Government has
excluded from the percentage stipulations those Jews who
have fought for Germany at the front, or who have lost a
son or a father in the war" (Document Book 1, Page 153a).
In his speech at the Kroll Opera House Rosenberg gave the reason for this measure, saying that there was no intention thereby to discriminate against a whole people, but that it was necessary for our younger German generation, who for years had had to starve or beg, now to be able to obtain bread and work too. But despite his strong opposition to the Jews he did not want the "extermination" of Jewry, but advocated as the nearest aim the political
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expatriation of Jews, that is, through classifying them by law as aliens and giving them protection as such. In addition, he granted to the Jews a percentage access to nonpolitical professions, which still by far exceeded the actual percentage of Jews in the German population. Of course, his final aim was the total emigration of the Jews from Aryan nations. He had no understanding and appreciation of how great a loss to the Aryan nations themselves such an emigration would be in cultural, economic, and political respects. But one will have to admit that he believed that such an emigration would prove useful for the Jews themselves, first, because they would be set free from all anti-Semitic attacks, and also, because in their own settlement area they might live unhampered and according to their own ways.
The dreadful development which the Jewish question took under Hitler, which he justified as being a reaction against the policy pursued by emigrants, was never more regretted by anyone than by Rosenberg himself, who blames himself for not having protested against the attitude of Hitler, Himmler, and Goebbels as firmly as he protested against Koch's actions in the Ukraine. Nor does Rosenberg hesitate to admit that his suggestion to Hitler to shoot 100 Jews instead of 100 Frenchmen after the recurring murders of German soldiers was an injustice born of a momentary feeling-despite his belief in its formal admissibility-because, from the purely human standpoint, the real basis for such a suggestion was lacking, namely, the active participation of those Jews.
I have returned to this case again, as in my opinion it is the only instance where Rosenberg desired retribution by the death of Jews. On the other hand, one must insist with the greatest emphasis that there is no proof of Rosenberg's having been aware of the extermination of five million Jews. The Prosecution accuses him of making preparations for an anti-Semitic congress as late as 1944, which did not take place only because of the course of the war. What point could such a congress have had, had Rosenberg known that the majority of the Jews in Europe had been exterminated already?
Rosenberg had no faith in democracy, because in Germany it led to a splitting up into numerous parties and a constant change of government, and finally made the formation of an efficient government impossible. Another reason for his not having faith in democracy was that non-German democratic powers did not stand by their democratic principles in certain cases where they might have been of benefit to Germany, for instance in 1919, when Austria was willing to be incorporated in Germany, and later on at the plebiscite in Upper Silesia. But Rosenberg did not for that reason turn
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toward tyranny. In connection with Paragraph 25 of the Party Program he said in his comments, on Page 46:
"This central power"-referring in this case to the Fuehrer's
power-"should have as advisers representatives of the people
as well as those councils which had evolved in the course of time" (Document Book 3, Page 6).
And in his speech in Marienburg on 30 April 1934 on the state of the German Order, he said that the National Socialist State must be "a monarchy on a republican foundation." I quote:
"From that standpoint the State will not become a deified end
in itself, neither will its leader become a Caesar, a God, or a deputy of God" (Document Book 1, Page 131).
In his speech in German law of 18 December 1934, Rosenberg stressed:
"In our eyes the Fuehrer is never a tyrannical commander" (Document Book 1, Page 135). Only in such terms was a protest against the development of tyranny possible.
The development passed over Rosenberg and degenerated. Rosenberg himself learned this while acting as Minister for the East. Rosenberg was an idealist, but he was not the unscrupulous man who inspired the State and the Fuehrer to commit crimes. I believe, therefore, that he should not be included in Mr. Justice Jackson's Indictment (Page 8), where it says that Rosenberg belonged to those men in Germany who have been "the very symbols of race hatred, of the rule of terror and violence, of arrogance and cruel power."
In looking through Rosenberg's writings one finds, on the contrary, statements and expressions which give a decided impression of tolerance. He says, for example, in his Myth, of the national Church which he aspired to:
"The German Church cannot pronounce compulsory dogmas
which every one of its followers is compelled to believe at the
very risk of losing his everlasting salvation."
In his speech on ideology and dogma at the University of HalleWittenberg, he called for tolerance toward all denominations with a demand for "inner respect for every genuine denomination." In his speech on German intellectual freedom of 6 July 1935 he also spoke up for the freedom of conscience. No document was presented which contained a request by Rosenberg for criminal persecution of one of his numerous ideological opponents, although he might easily have been prompted to do so by their sharp attacks on his opinions.
Further, the Prosecution accused him of promoting militarism. Rosenberg was indeed an admirer of the soldier's profession and a soldierly attitude toward life, but he also, admired the peasant's standards as the basis of the national character. He advocated the
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creation of a people's army, both as the outward expression of Germany's capacity as a political ally and for the purpose of training and educating the people at home. However, he denies having contemplated world conquest. On this point I can refer to his speech on Germany's Position in the World of 30 October 1933. There he offered peace to Russia on the occasion of the German withdrawal from the League of Nations (Document Book 1, Page 147). I shall quote this passage, for it also proves that National Socialism did not desire to interfere in the affairs of other countries:
"We are ready at any time to maintain absolutely correct relations with Soviet Russia, because naturally we do not necessarily want to modify an ideology in the field of foreign policy and foreign relations."
In the same speech he emphasizes that the avowal of an ideology he describes as racial science is "not meant to be an expression of racial hatred, but an expression of racial respect" (Blood and Honor, Page 377).
Mr. Justice Jackson called Rosenberg's nationalism a "wild" one. Rosenberg was passionate, but he wanted thereby to overcome class conflict in the nation, which threatened its existence. For a clearer understanding of the facts it may also be said...
THE PRESIDENT: Dr. Thoma, the Tribunal would like you to finish your speech before lunch, if you could possibly summarize some parts of it. I don't know whether that is possible.
DR. THOMA: I shall try to do that, Mr. President.
I once more refer to Mr. Jackson's statement that Rosenberg's nationalism, or militarism, was "wild." In this connection I should like to refer only to the fact that such nationalism was a compensatory symptom, which is easily found in a conquered- country.
The accusation dealing with anti-Christianity and, neopaganism is something which I have already mentioned, and I should just like to refer to it. I have dealt with the term "master race," mentioning the fact that these words are not found in Rosenberg's works at all.
Concerning the Party Program, I stated that Rosenberg did not draft it, but only supplied a commentary upon it, and that it is not a question of what is contained in the Party Program, but rather with what its effect was. I referred to the witness Funk, who stated that his first action and his first program as Minister of Economics had no reference at all to the Party Program, but was simply democratic and liberal.
The Party Program was adhered to neither in a positive nor a negative sense. The government was carried on just as in other states, on the basis of general necessity.
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May it please the Tribunal, I shall turn to the charge that Rosenberg was the delegate of the Fuehrer for the supervision of all education and spiritual ideology within the NSDAP. During the reading of the affidavit by Dr. Eppe I pointed to the fact that Rosenberg, as head of this office, had no executive power, and that Rosenberg interpreted the duties of his office in such a way that he published magazines on all cultural and scientific topics, especially the NS Monatshefte, the polemic political contents of which, after 1933, were more and more superseded by historical, scientific, and cultural subjects. On the basis of all the literature at our disposal it is not in accordance with the facts that Rosenberg interpreted his position as one from which to sow hatred. After 1933 he mainly endeavored to intensify and promote new definite talent. I have said in addition that this nonpolitical office concentrated its efforts on exercising a regulating and guiding influence on all noble and cultural values which manifested themselves.
May it please the Tribunal, I shall now turn to the topic: "Morality as a basis of the Indictment." I should like to ask the High Tribunal, even though I do not propose to read this passage, to consider it as having been presented by me. I refer to Pages 82a through 82g, and I should like to ask the High Tribunal for permission not to read this matter and yet to have this matter considered as having been submitted in its entirety and read into the record. I shall now sum up...
THE PRESIDENT: Dr. Thoma, all the speech Will be taken as being presented to the Tribunal. By your summarizing it, you are not excluding it from the record of the Tribunal. The Tribunal will take note of it all.
DR. THOMA: Thank you, Mr. President.
I shall now sum up in conclusion, and I should like to point out the following:
. . . that he is to be understood as a Phenomenon of psychic compensation, as often appears in a conquered people. In addition, Germany, situated in the middle of Europe, was always exposed to so many political and military dangers that military circles in Germany, particularly after the entrance into the Ruhr in 1923, were necessarily particularly sensitive on national questions. As a German Halt he was brought up in a national way of feeling that led him to expect more of self-assertion and mobilization for defense than of the disappointments resulting from the international negotiations carried on up to that time. He was always ready for an understanding based on equal representation (Document Number no3-Ps, Exhibit Number USA-303).
Rosenberg has been further reproached with anti-Christianity and neopaganism. It is true that this reproach was not brought against his theory, but in connection with the persecution of the Christian religion in all its forms which later resulted. Rosenberg was an opponent of Christianity in its-as he sees them- present historical forms, just as he was of Jewry. In place of Christianity he strove for an idealistically, racially, and ethnically conditioned religion, an emotional religion of blood and soil.
He thereby attacked both Christianity and Jewry theoretically, and hoped that the Christian Churches would gradually become extinct among the German
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people, yet it will always have to be admitted that Rosenberg staged no violent persecution. He carried on this battle with intellectual weapons. Here, too, since he expected freedom of conscience for himself, he advocated freedom of conscience for others, and pointed out that with his M y t h and his new religiousness he did not wish to confuse Church believers but to create new spiritual ties for those, too, who had ceased to be believers in the Church.
The term "master race," to my knowledge, does not appear in Rosenberg's writings, nor does it fit into Rosenberg's ideology, which proceeds from the race as a general law. Therefore. Rosenberg speaks of the Nordic, Mediterranean, Dinaric race, in relation to races which are biologically different, not in the sense of an arrogant judgment as to value, but in the sense of racial facts, in the sense of honoring the entire human race of Europe.
As far as the Party Program is concerned, despite the assertions of the Prosecution, it was not he, Rosenberg, who designed it. Like so many other things, the meaning and action of the Party Program has also been overestimated and exaggerated. It was one of the first deeds of the National Socialist Government to design a reconstruction program, of which the Defendant Funk said that almost any other liberal or democratic government could accept it also. In place of breaking up capital investment, the reinstatement of a sound money and credit system was demanded. I could go on quoting a number of examples, for instance the program of aliens' status for Jews, which was not carried out. The Party Program was never adhered to subsequently either in the positive or the negative sense. Rules were simply enacted as in other states, too, based on the necessities of the moment.
The entire ideology of the journalist and author Rosenberg becomes intensifled and is rendered more menacing to peace, according to the Prosecution, by the fact that Rosenberg was nominated the deputy of the Fahrer for the supervision of the entire intellectual and ideological education of the NSDAP. How did this assignment come about and what were the circumstances concerning it? On the basis of his previous experience in the educational work of the Party, its organizational leader asked Rosenberg whether he would not undertake a common intellectual project. Rosenberg answered in the affirmative, ff the Fuehrer £0 desired. Thereupon, on 24 January 1934, the Fuehrer appointed him chief of that office. It was a Party office and had nothing to do with the schools, as is erroneously assumed. The office had no right to issue directives to Reich offices; even any correspondence with them had to be sent via the Party Chancellery. Neither did it have any right to suppress books, et cetera. Even a right to issue directives to the Party was not granted, the more so since the branch school directors were also subordinated to the Reich leaders (SA, SS, HJ). Therefore, from the very beginning Rosenberg did not consider his work as representing the talks of an intellectual police, but as an executive and unifying work, as the central point of the expression and realization of the factual and personal power of conviction and initiative.
He had no offices in the various Gaue, not even individual representatives; he agreed to the Gau education leader as his deputy at the same time, in order to maintain a connection with practical) education in the country.
The office had many things to review in the course of time, yet it remained limited in extent. It became subdivided into various spheres of work; teaching and education proper, cultivation of literature, the arts, cultural and general problems. About twice a year, for the purpose of comparing tuition experiences, Rosenberg called together the so-called "Working Community for the Instruction of the Entire Movement."
In it were represented the educational deputies of the political leadership and its various subdivisions. They reported on their work and expressed their suggestions. On the basis of these suggestions, Rosenberg frequently lectured m the Gaue on appropriate topics, and likewise induced his collaborators to handle such questions in all the subdivisions. These are the two educational meetings which the Prosecution mentioned by reason of their alleged "broad influence on the community schools" as an indication of criminal activity (Volume V, Page 48). This generally executive work found expression particularly in the periodicals of the of flees of Rosenberg's department; primarily in the N. S. Monatshefte, which after 1933 acquired a gradually increasing polemical political content in the interest of handling historical, cultural, and scientific topics. Die Kunstim Deutschen Reich achieved special significance by simply offering the
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most beautiful examples in the way of contemporary plastic art, excellently presented without discussion. The Buecher Kunde offered a monthly cross section of writings and literary contributions. The monthly periodical Musik devoted itself above all to serious art, the cultivation of the German classics, and without any pettiness toward new creations. The journal Germanisches Erbe published contributions on research in early history the Deutsche Volkskunde was devoted to games, folk songs, peasant customs. Deutsche Dramaturgie described the ambitions and problems of the contemporary theater.
Besides this there were special exhibitions of the Iife work of great artists in Rosenberg's exhibition building in Berlin, and book exhibitions in various cities.
It is simply not true if the Prosecution declares that Rosenberg used his assignment to disseminate hatred. The essence of his entire work after 1933 went toward a profounder and large-scale promotion of new positive talents.
Political polemics in these seven years had almost entirely disappeared. But for the difficulties in the language, one would find, in glancing through the journals and speeches, an honest great effort, whether Rosenberg spoke to youth or to the technicians, teachers, lawyers, workers, professors, women, at meetings of historians, or before the Northern Society.
The heads of his offices were instrumental in publishing and promoting valuable works of art: Classics of music, history of the German ancestry, world political libraries, development of German peasantry, and others. In the present impassioned days one is not interested to know of this side of somebody's life work, and therefore I only touch upon it; but I wish to emphasize that it was just that which seemed to Rosenberg, since 1933, to constitute the essential part of his work, and similarly he intended to devote himself in his old age entirely to scientific-cultural research and teaching. I shall permit myself a few more words about this later.
Contrary to some opinions which at first appeared necessary, although some individuals may perhaps have looked upon them as rather petty, Rosenberg advocated at the universities of Munich and Halle the right of examining new problems of our times as well as the independence of scientific thinking. He declared that we would have to "feel that we were the intellectual brothers of all those who
once in mediaeval times raised the flag for this free research" (Document Book 1, Page 134). Against certain attempts to identify certain scientific physical theories with the Party, he protested in an official declaration which rejected this danger of hairsplitting. "It is not the task of the National Socialist movement," he said in a speech about Copernicus and Rant on 19 February 1939, "to make any regulations for research other than necessarily connected with our philosophy of life" (Document Book 1, Page 173).
When a certain trend toward mass statistics, peak figures for the number of visitors, et cetera, developed in the otherwise desirable progress achieved by the German Labor Front, he made a determined stand in favor of emphasis ' on the personal element. He rejected this idea of "mass production" in an address to youth with the words: "One cannot receive art and culture like mass-produced, ready-made clothes in a department store" (Document Book 1, Page 155). Today poisoning of this youth is imputed to him, but on the contrary he asked (Document Book 1, Page 161) for comprehension in teaching on the part of everybody to whose care young people are entrusted, and he decidedly rejected any orders in the intellectual field.
With regard to any form of collectivism, as has already been mentioned, he impressed on youth the importance of comradeship, but emphasized the personal element and the right to solitude. When on the grounds of certain occurrences many voices criticized the teaching class, Rosenberg began to fear lest general discrimination against the profession might develop. He took a stand against this danger In two speeches: at a great meeting in October 1934 at Leipzig, and later at the conference of the N.S. Teacher's League at Bayreuth (Document Book 1, Page 162), where he declared that the National Socialist movement would step in and see that the teaching class be respected, just as it would have done for all other professions.
By these brief allusions I mean to say that Rosenberg, as a regulating and leading intellectual force, advocated high cultural values and the rights of personality in a manner rendered convincing by his attitude and motives. Throughout the whole Party it was no secret that this activity involved profound opposition
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to the Propaganda Minister. Rosenberg from the very considered it a calamity that culture and propaganda should be associated in one ministry. For him art was a creed, propaganda a form of tactics.
As things at first could not be changed, Rosenberg emphasized his attitude to the outside world by not attending a single annual meeting of the Reich Chamber of Culture, in the firm hope that at some later day another conception would win through.
Many things Rosenberg said did not fad to have their effect and certainly prevented some harmful actions, but more, and probably the most important, did not succeed because the legislative and executive powers in the State lay in quite different hands, and these finally, due to the war and in spite of the will to sacrifice, brought about not the development of the National Socialist idea but its degeneration. Moreover, this happened to an extent which Rosenberg could not foresee.
It was seen that the foundations for the spiritual education of the Party were not sufficient, and round about 1935 there developed a wish to create a serious place for research and study. This desire led to the idea later known as ``high school," which was intended to take the form of an academy. Rosenberg considered the creation of this academy as a task for his old age. Since it would have taken years to provide tuition material and to choose suitable personnel, the Fuehrer authorized Rosenberg at the end of January 1940 to carry on the preparatory work he had started on official orders. Thus, contrary to what the Prosecution asserts, (Volume V, Page 48) the "high school" had nothing to do with Rosenberg's "Einsatzstab," which was not even planned at that time.
Mr. Justice Jackson, in his fundamental speech of 21 November 1945, expressed the desire that this Trial should appear to posterity as the fulfillment of the human yearning for justice. Mr. Jackson furthermore declared that he had brought the Indictment because of conduct which according to its plan and intention meant injustice from the moral and the legal standpoint. In his report of 7 June 1945 Mr. Justice Jackson outlined that by this Trial those actions are to bee punished which since time immemorial have been considered as crimes and are designated as such in any civilized legislation. The most difficult problem, the greatest task, and the most tremendous responsibility for the Tribunal ties concentrated in this single point; What is justice in this Trial?
We have no code of laws, we have, however astonishing it may sound, not even any fixed moral concepts for the relations of nations among each other in peace and war. Therefore the Prosecution had to be satisfied with the general terms "civilized conception of justice," "traditional conception of legality," "conception of legality bunt on sound common sense with regard to justice"; they have spoken of "human and divine laws" (Volume VII, Page 78); the Hague Land
Warfare Rules refer in their preamble to the "laws of humanity" and to the demands of the public conscience."
The basis of justice is without any doubt a morality, the moral law; thus if we wish to determine what injustice among nations is, what is contrary to the idea of justice among nations according to international law, then we must broach the question of morality. The answer will be: everything is moral which our conscience accepts as being moral.
But what is the original cause of moral discrimination: desire and happiness of the individual; or progress, improvement, preservation of the life of an individual, of a people, of humanity; or virtue; or duty?
How can we recognize what is good and what is bad? By intuition, or by experience, or by authoritarian and religious education? What is good and bad in the actions of a State, what is good and bad in the mutual relationship between nations? Does a difference exist between national morals and private morals? Can the State commit any injustice at all? From Saint Augustine through Machiavelli and Nietzsche to Hegel, Tolstoy, and the pacifist thinkers, yearning humanity has received the most different answers to this question.
And furthermore: Have fixed moral laws existed since time immemorial or have changes in the ideals of nations brought about changes in morals, too? What is the situation with regard to this today?
I have already said once that, according to my opinion, war itself is a brutality and a great crime of humanity against itself and the laws of life. An essentially different question is whether this conviction has already entered the conscience of humanity. We consider ourselves far above the moral level of
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former nations and ages, and are, for example, surprised to find that the highest representatives of Greek morality such as Plato and Aristotle consider abandoning of children slavery to be absolutely right, or that in certain parts of East Africa even today only robbery and murder give a man the stamp of heroism; on the other hand it is absolutely compatible with our present-day idea of morality that human beings are killed by hundreds of thousands in war and that the products of human welfare and culture are wantonly destroyed. Neither in a Moral nor in a legal sense is this considered as unjust.
If the Prosecution now charges the defendant with a wrong in the moral or legal sense, it is its duty to present the prerequisites for a punishment of the defendant, in such a way as to convince the Court, for, according to the hitherto existing moral concepts of nations, killing in war is not murder within the meaning of the penal codes of the individual countries, and the measures of a sovereign country in war or in peace have never been interpreted as an offense within the meaning of these penal codes or as punishable and immoral acts by the legal convictions of civilized humanity. Christianity teaches us to return good for evil and to love one's enemies; this has been a world religion for 2,000 years, but many people today will laugh outright if one should venture to claim certain principles for the relations of nations between each other. In the face of the yearning of humanity the Prosecution now desires to aid its progress, even if only step by step, in this direction; it seeks to achieve the end that `'unequivocal rules" shall emerge from this Trial, its mistake however, is that it wants to explain ``traditional opinions of justice" and civil criminal laws as the contents of a public conscience which hardly exists any longer, compliance with which cannot in any case be demanded retroactively of the defendants.
It is certainly very true that a profound change is commencing today in the moral thinking of humanity, a regeneration of the moral law of nations, and that this Trial before the High Tribunal marks the beginning of this new era. However, it appears to me very doubtful whether it is proper to impress a new kind of justice upon the conscience of mankind by making an example of the defendants.
It is easy to speak of human and divine laws, or of the demands of public conscience, but we become greatly embarrassed for an answer to the question: What is the substance and content of private morality' when is an act immoral according to private morality? In their concern over what is good or evil, some rely on religion, others have been taught wisdom by experience and education, still others find an explanation in the philosophers.
The State has in recent times taken up the moral education of its citizens in increasing measure, not only through criminal laws but also through "political education" or whatever other name is used for it. Not only did the National Socialist State have a great advantage here over the liberal states, but so do all totalitarian states of the world: They have hammered moral principles into the minds of their citizens, both of a private and public nature. They have proclaimed moral ultimate values, such as fidelity, honor, and obedience. By this means reflection concerning private and public morals is made easier for the individual citizens and they are obliged by force to uphold these ultimate values in the prescribed form. The German people, who had become tired and resigned as a result of continual warlike disputes and religious upheavals, willingly followed National Socialism, even when the latter's ethics were exalted to a faith; it took this leap into the unknown, not with the idea of being taught by this means to deceive people, to enslave them, to rob them, to kill them, to torture them (see Volume VII, Page 78), but because it was in search of moral elevation, an authoritative moral leadership in its material and spiritual distress, and because nothing else was offered to it, especially not by a liberal world conscience which did not know how to make the fundamental principle of humanity a reality. The National Socialist ethical conceptions were taught to Germans as summum bonum, as the highest idea, and they believed the idea to be moral and good. Then National Socialism came into conflict not only with ideologies, but also with the plans of power of other states, because it could not find the formula which would include not only perfection and life for Germany, but also the interests and justice for all nations of the world. To try to construe out of such inadequacy of a national ethical idea, however inefficient, a punishable action, a conspiracy, is not admissible in my opinion, if only because uniformly acknowledged national morality has not yet developed, and unlimited national
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egotism has not yet been dethroned and is still considered the highest moral instance of the State.
It might be objected that the Germans should only have followed the teachings of their great philosopher in thought and action, according to his "categorical imperative": Act in such a way that the maxim of your will could always serve as a principle for general legislation! Then they would and should have recognized the moral instability of National Socialist teachings. To that I can answer with the words of the great English philosopher, John Locke, who says on the question of what is good or evil in his Essay Concerning Human Understanding; Book 2, Chapter xxvm, Paragraph 6: ``Gad has ordained it in such a manner that certain activities produce general happiness, preserve society, and even reward the doer. Man has discovered this, and has established it as a practical rule. With that rule are connected certain rewards and punishments either by God Himself (reward and punishment of infinite size and duration in the Beyond) or by mortals (legal penalties, social approval or condemnation, loss of honor) good and evil which are not the natural effect and results of the actions themselves. Then men look to those rules or laws, be they divine or made by the State, and the laws of usage or of private opinion, and measure their actions by them. They judge the moral value of their actions according to whether they conform with the rules or not. Moral good or evil therefore amounts only to conforming or not conforming our action with a law which by the will and power of the legislator determines for us what is good and evil."
Therefore good and evil has been and still is today what the authorities want or do not want. Christianity for centuries has been preaching not only to Germans but to all nations of the world: ``Let every man be subject to the authority above him." And the authorities do not move beyond conscience and morality so long as the expansion of national egotism is not opposed by clear laws and commandments and irrefutable legal convictions.
The highest good, summum bonum, in international morals of nations has not yet been mandatorily codified. There does not exist any authoritative idea for the community of nations. Instead of discussions on individual ethics and individual criminality, the Prosecution should have submitted its accepted principles and criteria as international common law, which was not done.
Therefore, with regard to the standpoint of the prosecuting authorities as to the personal responsibility of acting statesmen, I feel impelled to look upon this as a totally new philosophy and one which is very dangerous in its consequences.
Apart from the misdeeds of the individual, which do not satisfy even the minimum of moral conceptions, the ethical conceptions of National Socialism and the actions resulting from them, insofar as they are an expression of National Socialist ethics, cannot be subjected to the judgment of a human forum, since they are an event of world history. And the fate and guilt of the Defendant Rosenberg likewise cannot be judged conclusively within the framework of this Trial. As to the question of deciding the criminal guilt of the defendant, that is the hard task of the High Tribunal; but his potential historical gust cannot and will not be judged by the Tribunal. Rosenberg, like all persons of historical importance, has acted according to his character and spirit, thereby perhaps becoming guilty in the eyes of history. The more freedom of action a given personality has in his win, the clearer the importance of conditions and the one-sidedness of all human activities becomes, and out of an insignificant guilt there grows, particularly in historical personalities, an enormous power which decides the fate of many, and which remains a gloomy foreboding for whoever lets it loose.
Goethe once said: "The doer never has a conscience, no one feels his conscience but the observer." But this maxim can never mean that a person must not move and act to the best of his knowledge and conscience, and particularly far his country's sake. And we all know that in reality nobody is capable of attaining the good he is striving for. Just as his knowledge, so will his actions always be incomplete: Any action we accomplish as free beings is an infringement on the operating forces of the universe, which we are never able to assess.
Rosenberg was caught up in the destiny of his nation in a period of severe foreign political oppression and internal dissension. He struggled for cultural purity, social justice, and national dignity,
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And rejected vehemently all elements, which did not admit this high, values or consciously attacked them in an irreverent manner. With respect to foreign policy he stood for an agreement between the four central powers of the European continent, in full realization of the grave consequences of a lost war. He acted in all loyalty and respect toward a personality who appeared to give political shape and increasing power to his ideals. After the political victory at home, Rosenberg proposed that the polemics and other aspects of the period of struggle be subdued. He stood for a chivalrous solution of the existing Jewish problem, for spiritual and cultural instruction of the Party on a high plane and, contrary to the statements of the Prosecution, he opposed any form of religious persecution. He can hardly be reproached for emphasizing a definite religious-philosophical conviction of his own.
The practical application of many of his views was practiced to an increasing degree by authoritative agencies of the Party, although later they were disregarded, especially after the, outbreak of the war. Finally, as has been discovered now, they were often turned into the opposite of what Rosenberg fought for.
Until 17 July 1941 Rosenberg was excluded from participation in any national legislation. Considered from the point of view of personal responsibility, all his speeches and writings up to that time come within the scope of unofficial journalistic activity which every politician and writer must admittedly be free to engage in-a freedom which the Tribunal has fundamentally acknowledged with regard to all utterances by the statesmen of other countries during the unofficial period of their career. It seems to be all the more significant that Rosenberg as a private citizen did not call for war or for the commission of any inhuman or violent acts.
As Minister for the East he advocated a generous solution in accordance with the understandable national and cultural aspirations of the eastern European peoples. He fought for this concept as long as there were any prospects for its realization. Ultimately realizing that Hitler refused to be persuaded, he requested his dismissal. The fact that Rosenberg could not prevent many outrages from happening in the East cannot be charged against him in the criminal sense. Neither the Armed Forces nor the Police nor the Allocation of Labor were subject to his authority. Whenever injustices or excesses came to his knowledge, he did everything he could to counteract them.
For almost a whole year, Rosenberg endeavored to keep labor recruiting on a voluntary basis. Later, when several age groups were drafted, he protested against every abuse by executive agencies and always demanded redress. Quite apart from the legitimate requirements of the occupation power, his labor legislation for the Eastern Territories was necessary for the establishment of order and
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the repression of arbitrary measures as well as of dangerous idleness, increasing sabotage, and the growing number of murders. There was a war on and it was a war area, not a postarmistice period, much less one following final capitulation.
So far as he was informed of things and commanded any influence, Rosenberg fought for his convictions. The fact that adverse powers became stronger than he was cannot be brought up as a charge against him. One cannot punish offenses, and at the same time punish those who revolted against them. In view of the terrible extermination orders which have now been disclosed, it is certainly possible to raise the point whether Rosenberg could not have exerted much stronger opposition. To expect this would, however, suppose an earlier knowledge of things which he only learned about after the collapse. Should he be charged with any carelessness it must not be forgotten that he felt it to be his duty to serve the Reich engaged in the struggle for its existence,-and that terrible injuries were also inflicted upon the German nation, injuries which Rosenberg was equally unable to recognize as war necessities.
His official tasks, as for example the duties of the Einsatzstab in the West and East, were carried out by Rosenberg without compromising his personal integrity. The requisitioning of artistic and cultural objects he always carried out provisionally, subject to final decisions by the supreme authority and; as far as was at all possible, with proper identification of the proprietor. Moreover, in the use of unclaimed furniture for the benefit of air-raid victims in Germany, provision was made for the subsequent indemnification of the owners based upon a precise inventory.
In considering his entire personality we see that Rosenberg followed with faith and devotion an ideal of social justice combined with national dignity. He fought for it openly and honorably, went to prison, and risked his life for it. He did not step in only when National Socialism afforded the opportunity to begin a career, but at a time when it was dangerous and asked only for sacrifice. In his speeches after 1933 he took his stand in favor of deeper spiritual formation, a new cultural education, personality values, and respect for every form of honest work. He accepted the gloomy days of that time as unfortunate but inevitable accompanying phenomena of a revolution otherwise acclaimed as having passed without bloodshed, without having in fact learned of the secret details. He fully believed that good forces and ideas would prevail over these other human imperfections. During the war he was at the service of the Reich in accordance with his duty.
For 25 years, throughout the revolution and the events of the war, he maintained his personal integrity and untainted character. He had to witness with deep sorrow that a great idea, in the hands
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of those possessed with the lust for power, was gradually abused, and in 1944, at Party meetings, he protested against this abuse of power entrusted to its holders. During this Trial he had to his dismay and horror to look upon the evidence of the degeneration of his life's ideal; but he knows that his aspirations and the aspirations of many millions of other Germans have been honorable and decent. Today he still adheres to his honorable, honest, and humanly irreproachable conduct and, full of sorrow for the wounds inflicted upon all nations and for the downfall of the Reich, he awaits the sentence of a just Tribunal.
The Tribunal adjourned until 11 July 1946 at 1000 hours.7