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MARSHAL: May it please the Tribunal, the Defendants Hess and Von Papen are absent.
DR. SERVATIUS: Mr. President, may it please -the Tribunal, yesterday I had spoken about the individual war crimes and now I shall turn to the activities of the Einsatzstab Rosenberg, and this begins on Page 39 of the written script.
The activity of the Einsatzstab Rosenberg was no official Party matter. As the counsel for the Defendant Rosenberg has already explained, this has to do with an order by Hitler giving personal instructions to Rosenberg, not to a Party agency. This is shown in Document 136-PS, which is a letter of Hitler's of 29 January 1940, and in the Fuehrer Decree of 1 March 1942, Document 149-PS. It is confirmed by testimony given before the Commission by the witness Dr. Muller and by Count von Roedern. An affidavit by the witness Kunzler (Number 58-A) is to the same effect, stating that the offices of the Reich Treasurer knew that this order was intended for Rosenberg personally.
As a matter of fact, the Einsatzstab Rosenberg was not a Party organization. The members were scientists and specialists who had nothing to do with the Party and who in some cases were foreigners. All had been recruited on the basis of the compulsory emergency service law. The leader of the Einsatzstab in Paris was not a Political Leader. This special section was distinguishable outside the Party by a uniform of its own.
From the financing of the Einsatzstab Rosenberg through the Reich Treasurer of the Party, the Prosecution concluded that Political Leaders were involved. But Document 145-PS shows that it was only an advance of funds and that the Rosenberg Ministry, as a State office, had to bear the costs. This was corroborated by the witness Kunzler, a leading official in the Party finance administration, in Affidavit 58-A. The witness Dr. Miffier, consultant for matters of private property, testified to the same effect before the Commission.
To prove direct participation of the Political Leaders, the Prosecution referred to Document 071-PS, according to which the final
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settlement of the confiscations which had been carried out by the Einsatzstab Rosenberg should be made by the Gauleiter. The preface of the document, however, shows that it applies only to the confiscations within German territory of property belonging to "ideological opponents." It is connected with Document 072-PS which merely contains a proposition in connection with the Church question. This proposition does not suggest that the Gauleiter should confiscate things, but that they should look after them until they were taken into custody by a more competent authority, in order to prevent destruction. These documents cannot refer to lootings abroad, since no Gau offices existed there to which any such instructions could be given.
Finally, may I point out that no orders had been given as to the ultimate destination of these cultural objects. The witnesses Muller and Kunzler stated before the Commission that these objects were to be dealt with in the peace negotiations. There remains the program concerning furniture mentioned by the Prosecution, whereby the furniture of 70,000 households in France was removed. This was a program of the Eastern Ministry carried out by its own personnel (Document L-188). With reference to prisoners of war, other counsel have already made the juridical situation clear, and have shown that the Political Leaders were not concerned with them. But the Prosecution have confronted the Political Leaders with Document Number 656-PS, USA-339, which is a directive of the OKW from the year 1944. It gives the guards the right of self-defense in view of the incitement by enemy propaganda to prisoners of war to, use force. In cases of extreme emergency use of arms is deemed permissible. The Political Leaders are in no way connected with this directive and its execution.
I have defined in detail my attitude with reference to foreign workers in my capacity as counsel for Sauckel. The witness Hupfauer has testified before the Commission and before the Tribunal regarding actual conditions. I further refer to Affidavits 55a to 55d, and to Affidavit 55 which summarizes 15,000 statements under oath. They give a reliable picture of the general living and working conditions of these foreign laborers. Everything belles a systematic program of negligence and ill-treatment or general approval of the conditions which have been alleged to exist.
It is necessary to make a special statement with reference to Document EC-68. This is a directive of the State Farmers' Association of Baden of 6 March 1941 regarding treatment of Polish agricultural workers. It is an individual measure and. it originates from a time prior to the unified regulations for the employment of labor. It does not originate with a Party office, the State Farmers' Association being an independent professional organization outside
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the Party's formations. The directive itself was rescinded by the subsequent regulations applying to all foreign workers.
It has been firmly established on the basis of the evidence, however, that this directive in practice was not carried through with the approval of the Political Leaders. Here reference is made to the testimony of a number of Political Leaders from the Gau Baden, which has been collected in Affidavit 68. 1 further refer you to the testimony of the witness Mohr (State Farmers' Association, Bavaria) who was heard before the Commission on 3 July 1946, to the testimony of Gauleiter Wahl for the Gau of Schwaben on 15 July 1946, and to the testimony of Ortsgruppenleiter Wegscheider for the Allgau before the Commission on July 16 and before the Tribunal on July 31.
With reference to the interruption of pregnancy in foreign female workers, it is shown from the, "Confidential Information of the Party Chancellery" of 9 December 1943 that such interference was only carried through at the express wish of the person concerned. The list annexed to the document also shows that interference was the exception (Affidavit Haller 56a).
The accusation of the lynching of fliers who made emergency landings is the last war crime which particularly incriminates the Political Leaders. We are not concerned here with whether the attacks of fliers against the civilian population were admissible, or whether the rage of the population was justified, but only with the fact that the killing of such fliers by the population was permitted without previous judgment. It remains now to clear up the question...
THE PRESIDENT: Dr. Servatius, you are passing from the treatment of foreign workers to another part of your speech. The Tribunal would like to know what your case is with reference to the treatment of foreign workers by the Political Leaders, and whether you contend that they did not assist in placing and controlling the laborers who were brought to Germany under the forced labor program.
DR. SERVATIUS: I deny that they participated in the rounding up and bringing in of these laborers. They only had the duty of supervising the welfare of these workers, and I assert that they carried out this duty of caring for the workers.
-THE PRESIDENT: You agree then that they undertook the duty of supervision of the laborers?
DR. SERVATIUS: Yes. After all, for the case of Sauckel a number of Gauleiter were heard on the subject, all of whom have confirmed the fact that they were authorized to employ workers and that they took care of their welfare. That was dealt with in detail in the case of Sauckel.
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I am just given to understand that I did not understand your question. It is a question of guarding. Mr. President, should I have commented on the guarding of foreign laborers?
THE PRESIDENT: The words I used were whether you contended that they had not assisted in placing and controlling the laborers who were brought to Germany under the forced labor program.
DR.SERVATIUS: Then I understood you correctly, Mr. President, and my answer can stand as I gave it.
THE PRESIDENT: You do agree that, although you say they did not assist in the rounding up, I think that was the word you used, or the bringing in of the laborers to Germany, they did assist in the supervision and controlling of the laborers when they had been brought to Germany?
DR. SERVATIUS: Yes, and as the persons authorized for the employment of labor they had the duty of supervising. They had to check whether the Labor Front and the factory leaders were caring for the workers properly. They had no direct responsibility, only an additional duty as Sauckel's agencies. In this way Sauckel wanted to check whether his instructions were being carried out.
THE PRESIDENT: Are you contending that they did not know the laborers had come there involuntarily?
DR. SERVATIUS: I do not deny that they came because they were obliged to. I admit that the Gauleiter had to know and did know that the majority of the workers came on the basis of a compulsory service law.
THE PRESIDENT: Thank you. I think you got to the bottom of Page 44 or near it.
DR. SERVATIUS: I was dealing with the question of lynch justice.
THE PRESIDENT: Top of Page 44, in the English.
DR. SERVATIUS: I was on Page 44. 1 said that we must still clear up the question of whether such war crimes were generally tolerated and approved of by the Political Leaders.
The Prosecution has submitted 5 documents in this connection. Firstly, a directive of 13 March 1940, from the Deputy of the Fuehrer in the Party, Hess, Document 062-PS, USA-646. It concerns a secret directive regarding the behavior of the population towards shotdown aircraft and towards parachutists, and with reference to the latter it contains a directive that they are to be either arrested or "rendered harmless."
In order to understand these words which are dubious today, one has first to consider that we are here concerned with enemy soldiers
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who have been set down for combat action. It is hardly possible for the civilian population to arrest them and- we therefore have to understand the expression to mean that other security measures have to be taken in order to avoid damage. For the purpose of explanation it is essential to note that during the year 1940, in view of the then prevailing air situation, one could only theoretically count on such things happening; it was a preventive measure which, according to the document itself, followed the French directives.
The passage in the document asking for special secrecy can perhaps be explained by the fact that the civilian population had received a directive which might cause them to be combatants. Actually no events have become known from that time where a violation of international law was committed against fliers. Furthermore, the "Confidential Information of the Party Chancellery", of 4 December 1942 (PI-94), speaks clearly against such a measure. It specifically rejects a measure against fliers which was taken in Japan.
The later documents, however, openly approving of and inciting war crimes, have to be judged differently. In this case an examination of the documents has to determine to what extent the Political Leaders had knowledge in general or were participants.
Himmler's order, dated 10 August 1943, Document R-110 (USA-333), is addressed to the Higher SS and Police Leaders. According to this, the "competent Gauleiter" had to be. informed, but only those were competent who held official functions, that is, Reich Defense Commissioners and Reich Governors (Reichsstatthalter). Therefore this had nothing to do with activity in the political sector. The Party Chancellery would have been competent for such an incitement. Thus the conclusion is to be drawn that not all Gauleiter were informed and certainly no Kreisleiter nor subordinate Party offices. I draw your attention to the evidence of the witness Hoffmann during his interrogation on 2 July 1946. The other Gauleiter too have confirmed in this connection that they were informed of Himmler's directives to the police officers only in their capacity as Reich Defense Commissioners.
Bormann's circular of 30 May 1944 (Document Number 057-PS) was intended to inform all Political Leaders that they should tolerate the lynching of fliers; it is the result- of Goebbels' press article of the previous day.
THE PRESIDENT: I am not quite sure that I understand what your argument is there. Is your argument that in Document 110 the "competent Gauleiter" does not include all the Gauleiter?
DR. SERVATIUS: Yes. Only those who were Reich Defense Commissioners. They received the information from the police
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agencies in their capacity as agents of the State, while the other Gauleiter who did not have State positions-and there were a number of them-were not informed. And another result is that a Gauleiter in his capacity as Reich Defense Commissioner did not inform his political subordinate, so that the Kreisleiter did not receive any information about this.
THE PRESIDENT: Do you say that the Gauleiter ceased to have control over their Gaue unless they were appointed Reich Commissioners and Reichsstatthalter?
DR. SERVATIUS: The offices were separated, and instructions only reached the Kreisleiter if they were Party instructions, so that in the prescribed official channels in any case, no ...
THE PRESIDENT: That is not the answer to my question. What I asked you was, are you saying that the Gauleiter who were not Reich Defense Commissioners or Reichsstatthalter had ceased to hold any authority in the Gaue of which they were Gauleiter?
DR. SERVATIUS: No, I do not mean to say that. I only want to say that these instructions did not pass through the usual channels. I have cited witnesses who testified that the Kreisleiter actually did not receive any knowledge of these instructions. It was different with the subsequent instructions. Later they could and should have received knowledge of these instructions, but not in the case of this directive of Himmler's.
THE PRESIDENT: Go on.
DR. SERVATIUS: That is the next letter, Bormann's circular of 30 May 1944 (Document 057-PS) was intended to instruct all Political Leaders to tolerate the lynching of fliers. This is the result of Goebbels' newspaper article of the day before, in which he addressed the population directly.
For the Defense it is essential to determine in which way the Political Leaders co-operated, and whether these war crimes were committed everywhere with the consent and general approval of the Political Leaders. The contrary seems to be the case. The three Gauleiter who testified before the Commission concurred in stating that they realized the effects which the circular might have, and that they did not forward it to the Kreisleiter, contrary to the orders given them. That is by the witness Hoffmann, the witness Kaufmann, and the witness Wahl, the three Gauleiter. The same was testified to by the Gauleiter of Mecklenburg, Weser-Ems, and Tyrol (Affidavits 61-E, 61-H, and 61-G).
The fact that most of the Kreisleiter had no knowledge of the Bormann decree indicates that the same was done in other Gaue. So far as they received the decree, they did not put it into practice in their Kreis and did not-pass it on because of its dangerous nature.
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I cite the following witnesses in this connection: Meyer-Wendeborn for Kreis Oldenburg; KUM, Kreisleiter of Ost-Hannover; Biedermann for Gau Thuringen; Bruckmann, Kreisleiter of Hessen-Nassau; Naumann, Kreisleiter of Saxony; Eber, of Gau Westmark; Haus, Kreisleiter in Wetzlar.
The above-mentioned witness Hoffmann belongs to those witnesses who confirmed that they did not forward the decree. An announcement concerning the admissibility of lynching was made in his Gau on 25 February 1945, that is, 9 months later. In connection with this matter it is worthy of note for the Political Leaders that this witness hesitated such a long time before acting according to the desires of Bormann and Hitler. During his testimony before the Commission the witness declared that he had withdrawn his draft, and that the announcement was made without his knowledge. In fact, in his Gau the order was never carried out (proved by affidavit of Scholtis).
As to the testimony of the Gauleiter and Kreisleiter as a whole, it is to be remarked that only a few witnesses have been examined, and that only a few affidavits could be taken out of the mass of material available. However, it is established beyond doubt that in general the Political Leaders did not follow the criminal suggestion. In spite of bitterness, despair, and misery at the destruction of many human lives, violation of the rules of warfare was prevented.
Affidavit 61 summarizes approximately 11,000 individual statements. These statements not only bear witness to a passive rejection of this dangerous method, but in many cases confirm positive steps taken to protect fliers against the excited population.
Finally, the Political Leadership Corps has been accused by the Prosecution of having acted, through the Auslands-Organisation of the NSDAP, as a fifth column abroad. Evidence for this has been produced neither during the hearing before this Tribunal when the case of Hess was dealt with, nor during the hearing of evidence before the Commission. The Auslands-Organisation merely served to draw together the Party members of German citizenship abroad, and it was meant to keep alive in them an appreciation for Germanism. It was expressly prohibited for members of the Auslands-Organisation to make propaganda for the National Socialist ideology among the inhabitants of foreign countries, or to co-operate with political groups abroad even if those represented National Socialist or Fascist ideas (Documents PL-57, 58, 59). For that reason, it was also. forbidden for them to collaborate with the German-American -Bund; this prohibition was also strictly observed. (Proof: examination of the witness Von Roedern).
On the strength of the experience the Germans living abroad had had during the first World War they were, as testified by
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witness Von Roedern, against every policy of expansion. They had no other goal but that of maintaining peace by all means, and for that reason it was out of the question that they could be used for fifth column purposes. Members of the Auslands-Organisation were prohibited - from any collaboration with the German Intelligence Service by order of their Chief, Bohle. If individual members of the Auslands-Organisation infringed on this order, then they did not do so on behalf of the Auslands-Organisation, but against its explicit instructions. This becomes apparent from the fact that the foreign states concerned, for instance England, never prohibited the Auslands-Organisation in spite of such instances; on the contrary, the legal character of the Auslands-Organisation was repeatedly and expressly recognized by foreign states. Finally, that the Auslands-Organisation never acted as a fifth column becomes apparent from the fact that it remained operative in neutral countries until the end, even at a time when no difficulties of a diplomatic nature could have arisen for these states had they prohibited it.
I have commented on the individual points of the charges, and the question now is: what over-all picture results? We must still examine whether the cases investigated were individual occurrences, or whether they were held together by a mutual bond, and thus indicate the criminal character of the Political Leaders.
The Prosecution has pointed out that it has presented particularly extensive evidence. It must be conceded that on the basis of the occupation of all of Germany and by the activity of the authorities the last nook and cranny has been searched and the evidence brought here, but for that very reason the material surprises one, on closer examination, because of its scantiness; it is shown that the scope of the Prosecution's charge is not substantiated. Not fragmentary evidence, only systematic evidence can bring conviction that occurrences which happened once at one place necessarily happened constantly everywhere else. The individual occurrences might be summarized into a system only by the "conspiracy" which would demonstrate their criminal character, but it is exactly that conspiracy which ought first to be proved by the disassociated facts.
The documents of the Prosecution are contradicted by the testimony of the Defense witnesses. The Prosecution has questioned the credibility of the witnesses on the grounds that they are all witnessed on their own behalf. They were reproached for having remained in office until the end.
If one were to follow this line of thought, the possibility of legal hearing of the members as guaranteed by the Charter would be void of meaning. The witnesses are not appearing on their own behalf, but as witnesses with a general knowledge of occurrences
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and conditions which can only be cleared up through the members of the organization themselves. Their credibility must be shown by the uniformity of many testimonies.
One cannot in general reject testimony when the express purpose of the proceedings is to eliminate~ evidence on these points in subsequent proceedings. There every individual would be able to bring witnesses for the correctness of his testimony, but too late. If specific testimony is said to be untrustworthy, this must be proved in each case; such evidence cannot, however, be produced by making a witness draw conclusions which he is unable to draw correctly due to lack of insight and knowledge. Only a few witnesses were heard before the Commission and the Tribunal.
The testimony of individual witnesses is no criterion to establish the criminal character of an organization. The witness can generally give little testimony about conditions as a whole which are under examination. Even if he has an -extensive knowledge of things his testimony remains only fragmentary.
Only a comprehensive inquiry can bring clarification. The Prosecution had a good opportunity for this in the camps. That all internees were examined is shown by the individual trials which were carried out as a result of this examination, but crime as a general phenomenon could not be established.
The Defense for its part gathered together all available evidence by means of a sort of enquetes. In the proceedings before the Tribunal, enqu9tes were admitted on principle in the form of government reports. To prove general occurrences they in fact appear indispensable.
The weaknesses of the enquetes are well known; their main danger lies in the choice of witnesses. In the present case, however, the circle of witnesses is limited to camp inmates. The submitted affidavits of approximately 58,000 persons are not a selection from the camps, but a digest.
The second difficulty of the enquetes is the impossibility for outsiders to check the statements, because of their extent. Under the prevailing circumstances, however, this very checking is assured; the circumstances of all witnesses from the camps are known and confirmed by investigations. The statements of the witnesses can be checked at any time. That such an examination is possible is shown by the establishment of Denazification Courts. If one denies the evidentiary value of the testimony of witnesses and the affidavits in their totality, without having examined their real value, this Trial cannot lead to any real result. If the testimony of witnesses is given even a little evidential value, then the uniform picture is destroyed on which the Prosecution has based its plea.
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Another question is whether, through the responsibility of all Political Leaders based on their position or based on their knowledge and approval, a joint responsibility can arise. The practical question is whether a Kreisleiter in the country is jointly affected through occurrences in an Ortsgruppe in the city, and whether someone who was a Political Leader in 1930 is affected by events which have occurred during the war. The question is whether a Blockleiter is affected by the circumstance that, on the basis of secret instructions, human beings were removed by mercy killing.
It appears obvious that differences must be considered here. First of all, a difference with regard to time. The conspiracy which connects individual actions, according to the statement of the Prosecutor of the Soviet Union, cannot be proved with certainty before the year 1935. According to Appendix A of the Indictment of the Organization, the Reich Government is held responsible for a conspiracy only after 1934. Only one of the documents used against the Political Leaders refers to the year 1933; it is 374-PS, and deals with a local Jewish boycott. All other documents concern events after 1938. The majority of documents only deal with wartime conditions.
When establishing the incriminating period, an isolated case must not be decisive, but only happenings which at the time bore a general character. If the Prosecution maintain their Indictment as covering the entire period of the existence of the Party, I believe this position to be untenable.
It is furthermore impossible to follow a train of thought according to which the honorary Blockleiter is supposed to be responsible on a par with a Reichsleiter or Gauleiter. A difference must be made according to the position held. A Gauleiter has other possibilities of gaining insight, and his knowledge and experience is greater than that of an Ortsgruppenleiter. The professional Political Leader must be judged differently from one who is acting in an honorary capacity. Only if proof of a joint conspiracy is furnished, could they be put on the same level. But that conspiracy in particular has yet to. be established.
When examining the incriminating documents, the difference in this responsibility becomes evident. There are instructions given at the higher level, of which merely the smallest circle gained knowledge; there are instructions meant to be communicated generally to Political Leaders, which, however: did not pass through the entire chain of command; there are instructions which, issued independently in a certain part of the Reich, did not become known in other Gaue. There are measures, carried out by supreme Political Leaders, which were entrusted to them only because of special
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State positions, and which therefore had no connection with the apparatus of the Party.
The difference in position has in fact been recognized by the Prosecution in its Indictment of the Political Leaders, and accordingly the members of the Ortsgruppen staffs and the auxiliaries of the Zellen- and Blockleiter have been omitted from the proceedings. It is in accordance with this principle that in addition the degree of responsibility on the part of the remaining groups must be examined.
That Zellen- and Blockleiter are still included in the proceedings, whereas members of the staffs of the Ortsgruppen who held a similar or even higher rank are not included, is due to the fact that in the organization manual they have. been described as "Hoheitstrager."
The significance of the organization manual is misunderstood by the Prosecution. The book was a theoretical work which was described as such by the personal adviser of the Reich Organization Leader, Ley. The designation "Hoheitstr5ger" was given to Zellen and Blockleiter for merely constructive reasons, because in that way they could be included in the territorial organization. This interpretation leads to the conclusion that a Blockleiter appears as an important functionary whereas a Reichsleiter lacks this same characteristic; on the other hand, the Blockleiter, as a Hoheitstrager, falls into the same category as the Fuehrer himself, as a functionary of the Reich. I call your attention to Affidavit Hederich, Number 27, Affidavit Schmidt, Number 25, and Affidavit Fortsch, Number 26. These are witnesses who were active in the organization as organizational leaders.
Accordingly, in the book by Oberbereichsleiter Dr. Lingg, entitled Administration of the NSDAP, which appeared in 1940, Zellen- and Blockleiter are not listed as Hoheitstrager. The designation Hoheitstrager only goes down as far as the Ortsgruppenleiter (Document PL-1). In the same manner a decree of the Party Chancellery, dated 8 October 1637, does not include the Zellen- and Blockleiter among the Hoheitstr5ger (Document Number 2). There only four spheres of official jurisdiction are mentioned, and they end with the Ortsgruppe.
In addition there is an announcement by Hitler dated 23 April 1941 (Document PL-4) regarding authority to enter damaged property after air raids. There again Zellen- and Blockleiter are not listed amongst the Hoheitstrager. - Similarly, the periodical Der Hoheitstrager, submitted by the Prosecution, as Document 2660-PS, for the purpose of proving the special character of the Zellen- and Blockleiter, shows that the periodical was only delivered down to the Ortsgruppenleiter (Document PL-25).
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THE PRESIDENT: Dr. Servatius, are your pages in the German the same as the English pages or not?
DR. SERVATIUS: I have not been able to check them; they ought to be the same. I am now on Page 54.
THE PRESIDENT: Yes. I want you to go back to Page 53 for a moment. I did not understand your argument at the bottom of Page 53. This is what it says in the English: "The designation 'Hoheitstr5ger' was given to Zellen- and Blockleiter for merely constructive reasons..." I do not know what the word "constructive" means there; and it goes on: "...because in that way they could be included in the territorial organization. This interpretation leads to the conclusion that a Blockleiter appears as an important functionary, whereas a Reichsleiter lacks this same characteristic."
Then on the next page, Page 54, you go on to say in the third paragraph: "In the same manner a decree of the Party Chancellery, dated 8 October 1937, does not include the Zellen- and Blockleiter among the Hoheitstrager (Document PL-2). There only four spheres of official jurisdiction are mentioned, and they end with !he Ortsgruppe." Well, that is equivalent to saying, is it not, that the Reichsleiter are Hoheitstr5ger?
DR. SERVATIUS: No. On the Reich level there is only one Hoheitstrager and that is Adolf Hitler himself as the Fuehrer, whereas Reichsleiter are not Hoheitstr5ger since they themselves have no allotted territories. The Fuehrer, Hitler, requested that and that is how it was constructed-the Reich, the Fuehrer, and then come the Gauleiter, Kreisleiter, and Ortsgruppenleiter, and there it ends. There is no "Reich" for Block- and Zellenleiter.
I continue with the last paragraph.
Further instructions of the Party Chancellery were issued on 7 December 1943, in which the Block- and Zellenleiter were not counted among the Hoheitstrager (Document PL-24). But not only from the point of view of form, also from the point of view of their activity, the Zellen- and Blockleiter were not persons to whom special privileges and authority were granted; their activities have been described by witnesses examined before this Tribunal; it consisted of practical assistance. These Political Leaders were active in the administration of the Party or, during the war, to an ever-increasing degree, in carrying on social work to alleviate distress after air attacks, to which was added practical assistance in resettlement and the prevention of damage during air raid alerts. Self-sacrifice and strenuous work was demanded of these people.
These Political Leaders did not occupy a particularly predominant position. Of interest in this connection is Document PL-9, the appendix to the announcement by the Deputy of the Fuehrer, dated
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12 July 1940. It appears from this that, in contrast to the actual Hoheitstrager, the political reliability of Zellen- and Blockleiter had still to be established if they applied for a marriage loan or any other type of assistance. That such people could not be regarded as generally suitable for the duties of a spy is a certainty.
It also becomes clear that they had no tasks of political leadership; they were mostly common people who lacked the time and the knowledge for such work. The fact that from certain more highly educated circles individual persons were appointed as Blockleiter also shows that it was not their political ability which was to be used.
Particularly important in this connection is Document PL-24, regarding "Pointers on Leadership from the Party Chancellery." These "Pointers on Leadership" are issued, as is stated in the document, "for the immediate political -enlightenment of the Hoheitstrager (that is, the Gau-, Kreis-, and Ortsgruppenleiter) and for the support of their leadership work." In order to inform the junior leaders of the formations and affiliated organizations, the Hoheitstrager are, each in his own sphere, (Gau, Kreis, and Ortsgruppe) to acquaint the corresponding leaders of formations and affiliated organizations with these pointers on leadership.
Block- and Zellenleiter, therefore, were neither the regular recipients of leadership instructions, nor were Ortsgruppenleiter allowed to acquaint them therewith. This proves that Zellen- and Blockleiter were excepted from the political instruction which was meant to be achieved by these leadership pointers, and that they had no tasks, or only very small ones, of a leadership nature, and that it was not considered essential to aid them by means of these pointers on leadership. The fact that, particularly during wartime, Zellen- and Blockleiter were simply appointed to. their offices also speaks against the political significance of their positions. The refusal, repeatedly made during the war, to accept such an office, also shows considerable pressure on the part of the Party to force acceptance of such a position. It has become clear, on the other hand, that the refusal did not take place because the. tasks which had to be fulfilled were considered criminal; it was the effort and the work involved, in addition to strenuous professional activity in wartime which were the cause for such refusal.
It is an error of the Prosecution, arising from the Organization Book, if it is assumed that a Zellen- or Blockleiter had the power to issue orders or institute disciplinary action, or that he had powers similar to those of the Police. (See Official Party Information, Document Number 29.) It is furthermore not correct that he had the right to can upon the SA, SS, or the Hitler Youth to aid him. The evidence taken before the Commission has established
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this fact. I draw your attention to the examination of the witnesses Hirt, Engelbert, Schneider, and Kuhm. Additional affidavits confirm this fact. Everything corresponds to the official Party instructions, Documents Number 26 and 27.
A Zellen- or Blockleiter, on the basis of his actual position, could have no knowledge of events which are criminal according to the Indictment; furthermore, general activity of that type cannot be proved. The knowledge of an ordinary Political Leader was no greater than that of ' every Party member. I draw your attention to Document PL-47. His duty to support the Party and the State was no greater than that of any civil servant (see Document PL-37). That there have been individual actions by Political Leaders which are very incriminating is something which everyone knows who has lived in Germany, but it is equally well known that this did not represent the typical attitude of the majority of Blockleiter. From the point of view of time, too, this group requires special examination.
Until I December 1933, every Party member was under an obligation to the Party alone to comply with a request to take over an office in the Party. With the introduction of the Law for the Safeguarding of the Unity of Party and State on I December 1933 (1395-PS), this duty to co-operate, until then in the nature of a private contract, became a legal obligation toward the State. In Article 5 of this law, detention and arrest are threatened in the event of failure to comply with this duty, that is, penalties which according to German law could only be imposed in the event of violation of legal regulations.
By Article I, Paragraph 1 of the Enactment Decree of the Law for Safeguarding the Unity of the Party and the State, the Statute of the NSDAP was given an official character. Thereby Article IV, Paragraph 2-b of the Statute was also given official character, which formed the basis for the obligation, previously based on private contract, to take over a function in the Party. That the law dated 1 December 1933 went into effect shows that the acceptance of an office in the Party became a lawful duty. The argumentum e contrario is demonstrated by a specific statement contained in Article 20 of the Reich Labor Law dated 26 June 1935 (1398-PS) where it is expressly stated that members of the Reich Labor Service are entitled to refuse the acceptance of an honorary function in the Party. No special legislation would have been necessary regarding the exception of Reich Labor Service members from the duty of taking over a function in the Party, had not the duty of co-operating in the Party been compulsory.
In practice the duty to co-operate amounted to coercion. Anyone refusing to comply with instructions to take over an office would
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without a doubt have been ejected from the Party by the Party Court (see Documents PL-63, 64 and Number 8). Exclusion from the Party would have been equivalent to the loss of one's means of livelihood with all its consequences (Document PL-65). Apart from this, a Party member who refused to accept such a function could reckon with the loss of his liberty (Document PL-63). Therefore, the coercion to accept a function in the Party was simultaneously physical coercion.
Anyone working in the Party before the seizure of power was probably doing so for idealistic reasons. Anyone who was given a function after the seizure of power probably accepted it in most cases without enthusiasm, particularly since he, as shown by the evidence, was taking upon himself a distasteful burden without reaping advantages in the process. Without doubt, however, almost without exception all who became Party officials after the beginning of the war accepted a Party function only on account of existing legal regulations. Those men not called up for the Armed Forces were either physically unfit or professionally so overburdened that they neither had the time nor the inclination to take over a function in the Party. This explains the fact that instructions from the Fuehrer and the Party Chancellery, in which the Party offices were instructed to call upon Party members for their co-operation, became more and more rigorous and even urged that Party Court proceedings be instituted against anyone refusing to collaborate in the Party (Documents 61 and 62). During the war the legal and physical coercion regarding co-operation in the Party existed not only on paper; indeed that this possibility was resorted to as far as possible is proved by Document Number 8.
It can therefore be justly assumed that if anyone became a functionary and Political Leader during the war it was as a rule the result of legal prescriptions and the threat of being prosecuted by the Party Court. This applies in practice to all the Block- and Zellenleiter and members of the Ortsgruppen staffs appointed during the war.
The Prosecution has asserted that, on the contrary, this compulsion to work in the Party was merely the result of a voluntary entry into the Party. This would lead to the conclusion that membership in the Party would in itself be punished; on the other hand, one cannot argue, as has been done, that the Party members concerned could have avoided the compulsion to collaborate in the Party, had they accepted a position in one of the affiliated organizations, for instance the NSV, in good time. The incorrectness of this conception becomes apparent once it is realized that in this way collaboration in the Party is being recommended, though in a different capacity.
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In the case of civil servants the further coercion existed of pressure exercised by the superior departments and ministries (compare Documents Numbers 67 to, 70). These decrees were the means by which civil servants could also be forced to work with the Party. If a civil servant refused to comply with this request, then he would have to reckon with dire consequences for himself; he would have had to fear that disciplinary action would be started against him by his superior department, which would lead to the loss of his livelihood and which could lead to starvation for his entire family. If, on the other hand, he wanted to escape this risk by first of al.1 leaving the Party, he would likewise suffer the loss of his livelihood (see Document Number PL-71). Civil servants therefore found themselves in a particularly difficult situation. In view of these circumstances, we cannot consider this group of people as a freely constituted body. The tasks of the Zellenleiter and Blockleiter, and therefore the importance of their positions, also varied according to the times.
Whoever was a Zellenleiter and Blockleiter before the seizure of power in 1933 must certainly have been more active politically than the person who accepted these positions at a time when only practical tasks could be performed. During the war persons were employed in these offices as auxiliaries, who by reason of their age or their occupation had not been drafted for military service. It is obvious that these persons were not elite troops of the Party, destined to spread fear and dread, and who played at being little Caesars. If, in addition, one considers the difference between town and country, one cannot conclude that these 1,200,000 persons included in this group were essentially criminal.
The Prosecution has excluded the members of the Ortsgruppen staff from the proceedings. The point of view is presumably that they, as honorary helpers of the Ortsgruppe, held a position of less importance. It would be well to examine whether the members of the Kreis and Gau staffs could be excluded on the same grounds. Their connection with the influential Hoheitstrager puts them under more serious suspicion. The nature of this connection must be examined more closely.
The leading political offices of the staffs were the Staff Office, the Propaganda Office, the Training Office, the Organization Office, and the Personnel Office. Their personnel consisted of paid officials. The treasurer was another member of the staff. He was not responsible, however, to the Hoheitstr5ger but to the Reich Treasurer (Document PL-73). The Party financ6 administration had created an independent control and accounting system which functioned in a purely bureaucratic manner and was of a nonpolitical nature. It comprised about 70,000 Political Leaders.
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Besides the political offices, there were consultant Political Leaders. There were the four following categories: A representative of the different sections of the NS Women's Association, NS University Teachers' Association, and the NS Student Association, a representation of the Welfare Associations, NSV and NSKOV, the leaders of the professional organizations for teachers, civil servants, physicians, and members of the legal profession, and the representatives of the technical offices: DAF, industry and commerce, agrarian policy, et cetera.
In order to gain an over-all impression of the dimensions of these offices, it must be pointed out that they generally had no staff of their own and very often no office space. Sometimes they were not even in the same building as the staff, but some distance away.
There was little practical co-operation with the Gauleitung and Kreisleitung. A number of affidavits corroborate that these agencies were hardly ever visited by the Hoheitstr5ger (see Affidavit PL-39) and that they did not work with them (see Affidavits 48 to 50). During the war, some of these agencies -were dissolved because they had become superfluous, such as the Legal Office in 1942, and the Office for Civil Servants in 1943. The task of these offices was mainly technical, and their officials therefore received instructions not from the Hoheitstrager, but from the competent superior agencies (Document PL-72).' No direct accusations have been made by the Prosecution against the activity of these staff members.
Physicians have been accused in connection with mercy killing and concentration camp atrocities, but these are not physicians of the Public Health Office. Agreements between the Reich Minister of Justice and Himmler and Goebbels regarding a special criminal law and extermination through labor have been mentioned. The Kreis and Gau legal offices for justice are in no way connected with this.
These offices certainly represented~ the National Socialist ideology within the staff, for this was their task, but here it is important to establish how far the Political Leaders were concerned, outside their official activity, in a conspiracy aimed at a war of aggression or the commission of war crimes. One cannot declare them to be criminal on the grounds of a general supposition that they might have had some knowledge of these facts. First of all there exists for us the important task of verification, and it must not be passed on to a court sitting at a later date.
The verdict of the Tribunal will aggravate threefold the sentence of any future court. It is to be feared that during the subsequent trials individual guilt may be too easily presupposed upon the assumption of their general guilt. In judging the technical offices, it must not be forgotten that about 140,000 persons are concerned who were employed in an honorary capacity.
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THE PRESIDENT: What is the evidence for that statement that 140,000 persons were employed in an honorary capacity?
DR. SERVATIUS: These are the members in the technical departments, who worked on the various staffs of the Kreis, Gau, and Ortsgruppen. In the case of the Ortsgruppen, the Prosecution has left these people out of the proceedings. I want to establish that these people in the higher staffs were also honorary specialists who had no part in the crimes against peace or in the war crimes. They did not come under the Gauleiter, but received instructions directly from their respective technical representatives who were their superiors. Their activities appear rather intense in the field ...
THE PRESIDENT: Dr. Servatius, you have not answered my question. What is the evidence for the statement, and I want to ask a second question, what do you mean by honorary capacity?
DR. SERVATIUS: By honorary capacity, I mean people who were not paid for their work. "Honorary" means without payment.
THE PRESIDENT: You said they were technical experts?
DR. SERVATIUS: Yes, they came from their organizations: jurists, doctors, and teachers, all were represented; or else they were the representatives of the welfare organizations or the Labor Front. Each one of these was an expert in his own field, who was consulted on a honorary basis.
THE PRESIDENT: Again I ask you, Dr. Servatius, what is the evidence that there were 140,000?
DR. SERVATIUS: That figure is carefully calculated on the basis of the Organization Book. I can supply more complete details later; it would take too long now and, besides, I am not at the moment in a position to present the figures. I have stated with respect to each subject how many people were concerned in order to give a general picture.
THE PRESIDENT: Go on.
DR. SERVATIUS: We still have to examine the group of the real Hoheitstrager, who made up the nucleus of the Party. Their special position and their political authority set them apart from the other Political Leaders, but their positions vary considerably. Whereas the Ortsgruppenleiter is restricted in his sovereignty to the circle of his Ortsgruppe, the authority of the "Higher Party Leaders' ("Hohere Parteifuehrer") goes beyond Party limits, affecting the rights of those who do not belong to the Party. Only the Kreis- and Gauleiter have the right to pass political judgment upon outsiders and in that way determine the fate of those outsiders. At the same time they exert great influence on the life of all the people in this way. The decisions which they make are based on their own judgment. This
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fact is indicative of their personal responsibility. The Ortsgruppenleiter is only asked to furnish evidence for the judgment. He is only an organ of execution and a man without any independence. Externally the difference is indicated by the fact that the Ortsgruppenleiter acts only on an honorary basis, that is, without pay. His profession prevents him from concerning himself in a, comprehensive manner with all that is happening. This was especially the case during the war, when necessity directed all one's thoughts and powers towards one's own problems.
The 70,000 Ortsgruppenleiter were members of the lower middle class who had not previously been active in politics and who lacked experience in this dangerous sphere. Most of the Ortsgruppen were in the country, where agricultural work and life went on as usual. The testimony given by witness Wegscheider before this Tribunal gave a true picture of the situation.
The position of the Ortsgruppenleiter becomes particularly clear when we compare his responsibility with that of the Higher Party Leader, who was appointed by Hitler directly. Because of his connection with the highest leadership, the probability of wider knowledge is greater in the case of the Higher Party Leaders.
This Trial has shown that the separation of departments and the artificial severance of administration and Police have played an important role. But,- because of the merging of many functions, and because many strings were gathered in one hand, at least the Higher Party Leaders could see when something was not as it should be on critical points. The question is whether a Gau- or Kreisleiter could set his mind at rest because everything was as it should be in his sector and the questionable incident was taking place outside his domain or his department.
We shall have to answer this question in the negative. He had the duty to obtain such knowledge in view of his own sovereign rights, for he had-deprived others of the possibility of concerning themselves with these things. He had the right, entailing the obligation, to be active because of his office. He had become the sole politician and was therefore bound to concern himself with politics.
Actually, those Gau- and Kreisleiter who were examined here did concern themselves with current happenings. They investigated the transporting of the Jews. They endeavored to get into concentration camps and they investigated the conditions of foreign workers. They voiced their misgivings and they made protests.- Did they fulfill their obligations in that way? In this connection we will have to examine the question of the sharing of responsibility. It is not possible for all to concern themselves with everything. The lowest offices have practical concern of a local nature, and they cannot be concerned with the problems found at the top level. Not every
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shock can be transmitted to the entire machine. The Kreisleiter who in a dictatorial state passes on reports upon individual incidents to .the Gauleiter must be credited with this distinction, but he must also concern himself with the results of his reports, and draw his own conclusions.
This is all the more true of the Gauleiter, in view of-his superior position. There exists a limit where moral principles become involved and daily routine no longer matters. When one came up against Himmler's barriers, was one to be expected to proceed, regardless of what would happen? An answer to this question has already been attempted several times. Must one really demand action, immediately and without compromise? Is it really "all or nothing"? Can one afford to let things take their course, or is it "now or never"? Must one weigh guilt and merit, and can one hope for improvement? Is it sufficient to remain at one's post when one disapproves, or hopes to prevent worse by remaining, or does one become guilty even by remaining and keeping up appearances? Has he who "always takes pains to make an effort" any justification? Must he take up the struggle against adverse circumstances, even though his own life be uselessly jeopardized, or should he endure and bow to fate? "To be or not to be: that is the question." An answer cannot be found without thorough examination of the legal basis of guilt: knowledge, sanction, and criminal negligence. If the criminal nature of this group is to be established, these questions must first be decided upon. Such an examination can be carried out for individual cases only. It is practically possible in the case of a group of 2,000 Kreisleiter and Gauleiter. These persons are known, their actions took place in public and are not difficult to clear up. There remains the group of the Reichsleiter. The same views are applicable to them as to the Gauleiter.
Himmler, who had only the rank of Reichsleiter, does not belong ,to this group (Document PL-59a). That position of the Reichsleiter, however, is of great legal importance to all Political Leaders. They include the principal defendants, in connection with whose actions, according to Article 9 of the Charter, the conviction of the group only can take place. The trial brief only mentions Rosenberg and Bormann. Only Annex B of the supplement to the trial brief added four more Reichsleiter, thus including the Gauleiter Sauckel and Streicher. Frick, too, held only the rank of Reichsleiter, which is in contradiction to the direct inclusion of his actions. Where the other principal defendants are concerned, one Must examine whether they committed the acts with which they have been charged in their capacity as Political Leaders, or in another capacity. The Prosecution has recognized the legal significance of this distinction by referring in the summary of the trial brief only to those deeds of
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Rosenberg and Bormann- with which they are charged in their capacity as Political Leaders (Page 75 of the trial brief).
One must not depart from this distinction. The ruling of Article 9 of the Charter is no purely formal prerequisite for the Trial. It is a material limitation of the extent of the criminal group. The group must not be formed arbitrarily and without limitation by the Prosecution; there must be some connection between it and the act of one of the principal defendants. This is only possible if one of the principal defendants acted within the Corps of Political Leaders. Nor does the connection exist where the effect of the action of one of the principal defendants fails to affect all levels of the Political Leadership Corps; this must be considered in passing judgment on the lower grades.
The connection is also lacking in the case of those principal defendants whose connection with the Corps of Political Leaders was established only later, with the exception of Hess. In the case of Rosenberg, the actions with which he is charged were essentially in the State sector, where he was active as Reich Minister for the Occupied Eastern' Territories. The actions of Bormann as Chief of the Party Chancellery from,1941 on are primarily decisive for the judgment of the Political Leaders. As a result of the absence of this principal defendant, however, it is of doubtful wisdom to base the condemnation of the group on his deeds, since there was no close investigation of the occurrences. For the most important charges it would have to be cleared up whether Bormann acted as Chief of the Party Chancellery, or as Secretary of the Fuehrer outside of the Party machine, or whether he a7cted independently contrary to all instructions (Document 53).
1 It is noteworthy that Hess, Bormann's superior, is not included in the original trial brief, although until 1941 he was Deputy of the Fuehrer in the Party. Presumably, the Prosecution was at the time of the opinion that he could not be charged with any action in connection with the Corps of Political Leaders which would indicate a criminal character. This is a significant point of view for the judgment of the group as regards time.
The actions of Gauleiter Sauckel and Streicher cannot be taken as a standard for the Political Leaders as a whole. As Gauleiter they could only act in their own districts. The actions with which they are charged in this Trial they undertook outside of their function as Political Leaders, namely, as Plenipotentiary General for the Allocation of Labor or as a newspaper publisher.
I want to present two additional legal viewpoints which can be of significance for the judgment. One idea is the retroactiveness of the verdict. I do not want to attack it as being legally inadmissible, since the Charter has ordered it, but since the verdict is at the
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discretion of the Tribunal, the matter of fairness can be considered here.
Retroactiveness: in an individual trial can be justified by the fact that the perpetrator was warned and had to realize the fact. It is different with the bulk of little Political Leaders, who are made responsible for a conspiracy only indirectly through their leaders.
The second point of view is the lack of legal hearing. In these proceedings before the Tribunal the preliminary decision is reached, which is decisive for every member of -the organization. Therefore, everyone was given the right to request a legal hearing. Only comparatively few have made use of this right. One must assume that many have not been informed of their right or have had no opportunity to submit their applications to the Court. There are applications from only about one-third of the camps of the British and American Zones; from the French Zone, from only two camps; but particular reference should be made to some areas from which no applications at all have been received. There are no applications from Austria, and the camps there could not be visited. The permission of the military authorities was given, but the approval of the Control Council was not received. This is noteworthy since there are special circumstances in this case which might possibly exonerate the members; special treatment and judgment, especially in regard to time, is advisable. Nor are there any applications from the Soviet Zone, although the official announcement is said to have been made. I myself only recently had an opportunity to visit two camps. Those interned there declared that they knew nothing of their right to a hearing; not all wanted to submit applications.
For these districts, therefore, the Defense was in a difficult position as regards evidence. For these zones a few Political Leaders were heard who could be reached in British or American camps. Although one obtains a certain picture in this way, the taking of evidence before the Commission has shown that there may be testimony of significance for the Defense.
Thus a Kreisleiter of the West was able to testify that the construction of the West Wall had convinced people there of Hitler's defensive intentions. A Kreisleiter of the North referred to the Naval Treaty with Britain, which the coastal population particularly considered a sign of the will for peace. Other witnesses have brought forward noteworthy arguments from the Church membership of the Political Leaders in their district. The real significance of the limitation could be judged only after a hearing, so that a judgment on this subject is not yet admissible.
The following question is also of considerable significance for the procedure. The Charter has guaranteed the opportunity of a hearing. Every provision of form has its deeper sense and its basic significance. Here legal hearing is held up as a democratic principle
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in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceable objection which I hereby expressly assert.
THE PRESIDENT: Mr. Biddle would like to know exactly what you mean by those last two sentences.
DR. SERVATIUS: I did not hear what you said.
THE PRESIDENT: Mr. -Biddle would like to know what YOU mean by your last two sentences, "Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceable objection, which I hereby ' expressly assert." Does that mean anything?
DR. SERVATIUS: It means that I cannot forfeit the right to raise the objection that in entire territories hearings have not been made possible, that is, in Austria and the Soviet Zone. And it is an objection which I cannot renounce but which must officially be taken into consideration.
THE PRESIDENT: Go on.
DR. SERVAT1TJS: The observation regarding divergent practice in the interpretation of Article 9 of the Charter must be made from another point of view also. It has to do with the danger of divergent interpretation and, application of the Tribunal's verdict with regard to the organizations. Therefore, in addition to a specification of the group of persons affected by the verdict, a clarification of the elements of guilt to be proved should be laid down in the interest of subsequent separate trials.
Also the degree of punishment is uncertain. The scope of the penalties fixed in Law Number 10 of the Control Council, which includes ' the death penalty, offers no legal protection if their interpretation is left to the free decision of the various national tribunals which may subsequently sit in judgment. The judgment of the Tribunal might cause new harm. Particularly in this regard the Tribunal must see to it that the goal which it seeks to attain will be attained. The punishment must not become a revenge. The measure of punishment must not be based on the theory that millions of victims necessarily imply the guilt of millions to be brought to punishment. If the basic aim of judgment is to deter, the following must be borne in mind:
No one who appeared before this Tribunal has attempted to justify the crimes which are the subject matter of this Trial.
All who appeared, here disassociated themselves from these crimes.
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No one has declared that the extermination of the Jews had been necessary, or that a war of aggression was a goal worth striving for, or that the persecution of the Church and the concentration camp atrocities could not have been dispensed with. Only if this had been the case would this be a trial involving an ideology which was to be eliminated.
That is why we see here no typical advocate of this ideology to say "I have millions behind me," or, "I cannot do otherwise, so help me God!" The millions were set in motion by another goal, for which they fought. This goal was not the world of crime, but the shining radiance of Socialism. The masses believed that a miracle of progress would succeed the period of misery, and were strengthened in their belief. They are ready to believe once more. The foundation of this belief - is the justice of the verdict in the case of the organizations, by which the entire population will be affected. This verdict must inaugurate an era of new international law and punish those who are responsible for the war. It is only just that the old legal concept should disappear from the stage of world history, which punishes an entire people by means of peace treaties involving annexations and contributions without regard to guilt. Today we face the threat of twofold and threefold punishment, by the peace treaty, by Law Number 10 of the Control Council, and by the Law for Denazification.
We are still in a state of war and this Trial has been called the continuation of the war effort.
But there must be peace, and "Should war not end with war, whence then shall come the peace?'?
THE PRESIDENT: Dr. Servatius, the Tribunal observes with appreciation that you have kept within the limit of time which the Tribunal hoped would be kept to by all counsel on behalf of the organizations. You have made your speech within half a day, but some of the other speeches which have been deposited for translation appear to be very much longer than yours, and the Tribunal wishes me to point out to those counsel that they will have to make their speeches also within half a day.
The Tribunal will now adjourn.
[A recess was taken.]
THE PRESIDENT: We call on Dr. Merkel.
DR. MERKEL: Mr. President: May it please the Tribunal, in the proceedings against the individual defendants, the deeds of individuals were examined. During the proceedings against the organizations, the question we are concerned with is whether a new basic
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principle is to be introduced into the legal structure of this world. The trial of the Gestapo is given its significance by the conception the Prosecution that the Gestapo had been the most important instrument of power of the Hitler regime.
As I defend the Gestapo, it is with the knowledge that a terrible reputation is associated with that name, that it conjures up horror and fear, and that waves of hatred radiate from the very name. The words I am about to speak will be spoken without regard for the opinions of the day, because I hope to be able to present factual and legal evidence which will place this High Tribunal in a position:
(1) To examine whether, by sentencing the organizations, a legal development will be introduced which will serve humanity;
(2) To establish the truth, regarding the Gestapo; and by this
(3) To save the innocent amongst the former members of the Gestapo from a tragic fate.
The first two tasks necessitate the answering of a question which represents a preliminary problem connected with the problem of the Gestapo as a whole.
No allegation made by the Prosecution has shaken me more than the assertion of the British Chief Prosecutor that the Germans, after 6 years of Nazi domination, by replacing the Christian ethical teachings by idolatry of the Fuehrer and the cult of blood, had become a depraved nation. If this judgment is true, then the fact of its existence, apart from the circumstances just mentioned, is due to yet another extraordinary factor-a factor of a character so unusual that history hardly knows it: The symptoms of the demon, the demon in Hitler, and the infiltration of the demon's spirit into his regime and into the institutions which he created and employed.
How far Hitler was demonic has been illustrated by Goethe's words already quoted from Dichtung und Wahrheit by my colleague Dr. Dix:
they (the demon-men) radiate an enormous force.... All ethical forces united cannot defeat them.... They attract the masses ... and it is from such sayings that the strange, yet dynamic phrase may have arisen: Nemo contra deum, nisi deus ipse."
The effect of demonocracy, the wide world has become clear to you in some of the capes of the individual defendants. The case of the Gestapo will demonstrate to you how an institution of the State was repeatedly misused by the demonic leaders of that State. Here, during the discussion of this preliminary question, yet another interest arises, the interest of the legal significance of demonocracy, for this Trial. In order to satisfy that interest I shall give another short quotation from Goethe:
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"Demonocracy is a power which, though it does not oppose the moral world order, nullifies it."
According to this verdict the crucial point is that two powers determine the history of this world, "the conflict of which," as Mr. Justice Jackson said hi agreement with Goethe, "forms much of the history of humanity: The moral world order and the demonic." The juridical value of this judgment for our set of circumstances becomes clear from the following considerations:
The moral world order was represented by the traditional order. Opposed to this, Hitler represented the power which, while it did not oppose it, nevertheless rendered it ineffective. In this Trial the aim must be to exterminate the remains of this demonic power. Can this and should this be done in accordance with the traditional principle of the victorious moral world order, or should it be done by other methods?
Here we have the first juridical alternative of this Trial clearly before us, deriving from the greatest of possible perspectives, that is, consideration of the differences between the moral world order and the demonic.
Controversial points of view dominate the present attitude toward these matters. The Charter on the one hand has chosen the traditional specific principles of the moral world order. It wishes to see judgment passed against the representatives of demonocracy, the individual defendants and organizations, by means of an orderly trial, a proper indictment, with appointed defense counsel, and resulting in a sound verdict. On the other hand, the "law of the Charter" itself, according to the words of Mr. Jackson, is "a new law" with principles which contradict the age-old traditional legal conception. As examples I quote the assumption of collective guilt and the introduction of laws with retroactive effects.
In this way it becomes apparent that the leading thoughts directing this Trial are in opposition to each other. It is our common task to recognize this fact and also, through joint efforts on the part of the Prosecution, the Defense, and the Tribunal, to arrive at a concordia discordantium, a balance of conflicting opinions.
My leading argument as defense, counsel for the Gestapo will have to be devoted, therefore, to the question of how the rules of the Charter are to be understood, according to which the Tribunal can declare, from the trial of G15ring, Kaltenbrunner, or Frick, that the Gestapo was a criminal -organization.
Once again I must come back to the principal consideration. If two powers of historic importance for this world decide the moral world order and the demonic, then, if this world is to be cleansed, moral order must be victorious. But is the moral world order
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empowered to conduct the fight against its opponent with exceptional rules which differ, themselves, from the basic principles of the moral order? For the sake of the purity of its character and of its victory, the moral world order must only light with the weapon of its own categorical imperative, without any compromise. Because it is thus that the opponents of Hitler fought during 6 years of war, starting with the principles of the Atlantic Charter. But is it right that they, the declared representatives of the moral order, should now, with the battle of arms at an end, conduct the final struggle against demonism, with such exceptional rules? Surely that is impossible! Would it not create the impression that the victorious powers, particularly in the realm of ethics, do not have sufficient confidence in their innermost essence?
As a result, for coming generations this maxim would develop: "That which benefits the victor is right." The pitiless vae victis would have been enthroned, whereas the victors had especially emphasized that they were entering the lists for justice, and because of justice. With the word "Justice" the signatory powers have called the Tribunal into existence by stating in Article I of the Charter that "an International Military Tribunal shall be established for a just trial. . .
They gave the word "Justice" emphasis by having Part IV of the Charter headed "Fair Trial for Defendants"; and then they took the precaution of specifying that the regulations contained in Articles 9 and 10 are such as may be applied.
That the victors should wish to have organizations with such a reputation as the Gestapo declared criminal-who would not understand that? But they guarded against making Articles 9 and 10 compulsory regulations. In that way "Justice" became the first premise of the Tribunal. Within its limits, therefore, the regulations that may be applied under Articles 9 and 10 are to be handled as if the entire stipulation had the following wording: "If the Court considers it just, it may declare the organizations criminal." In this way the entire decision rests on the concept of "Justice." -
"Justice" in its truest form is an attribute of God --- "God is just."
This sentence has penetrated our consciousness in the sense that God will call to account only him who is really guilty according to the word of Josiah, "I have called you by name."
This confirms the principle which should guide all the deliberations according to which the organizations and their members must be dealt with. In the main, two points are involved: The members of the organizations, who with their families make up at least 15 million people; then also we have to see that "this remarkable but terrible saying" does not prove true because of the judgment,
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"No one can do anything against the moral. order of the world except that moral order itself."
From this, the following conclusion arises for my final plea: The question put by the Charter to the Prosecution, to the Defense and to the Tribunal, whether rules of exception are admissible, whether, above all, the organizations are to be considered collectively capable of guilt, whether laws with retroactive force may be applied-that question must be answered in the negative.
The counterquestion as to whether the world in the future can, on the basis of the system of individuality, be protected from demonic catastrophes, and whether the Hitler catastrophe did not prove the opposite, I should like to answer to this effect: The protection of the world against such catastrophes is not a question of a system, but rather a question of determined men who rest secure in Me moral order of the world.
The significance and the consequences of the demand voiced by the Prosecution to have the organizations declared criminal are of tremendous scope. That is reason enough for defense counsel to examine with the utmost conscientiousness and thoroughness, and from every point of view, whether the foundations are present which can carry an indictment of such proportions in terms of justice under the moral world order.
First of all, I should like to establish with all emphasis the first and most important result of my examination: A group cannot be declared guilty. For criminal guilt means the embodiment of conditions which are punishable not only in an objective, but also in a subjective form. In other words, a crime can only be committed in terms of guilt, that is, only intentionally. According to natural concepts, we can speak of intent only in the case of an individual, but not in the case~ of a group, and if foreign laws are referred to in this connection, this, in the final analysis, amounts to confusing the coinciding will of numerous individual persons directed toward a fixed aim.
However, the problem of collective guilt lies, in a sense, much deeper. The thought of rejecting collective guilt goes back to the most ancient times. It originated in the Old Testament, and through Hellenic culture and Christianity it spread over the entire world. In this way it has become the guiding legal principle of the entire moral order of the world. In Roman law this sentence was expressed clearly: Societas delinquere non potest. In modem times we have retained the thought of individual guilt.
On 20 February 1946, the Pope said in his radio speech that it was a mistake to assert that one could treat a person as guilty and responsible merely because he had belonged to a certain organization, without taking the trouble to investigate in each case
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whether the person in question had made himself personally guilty through his actions or his failure to act. That was an encroachment on the rights of God. In the same sense the Hague Rules on Land Warfare of 1907 in Article 50 expressly prohibit the infliction of punitive fines because of the actions of individuals. for which the population cannot be considered co-responsible.
Finally, the former State Secretary, K. H. Frank, was condemned to death and executed because he had, among other things, wiped out the village of Lidice because of the conduct of individual inhabitants of the village. That is to say, the fact that he had assumed the collective guilt of the village community and inflicted a collective punishment on the village was counted as a crime. Thus, in our case it cannot be proper to punish an organization as a whole, collectively, because of the crimes of individuals.
With these brief references I believe I have made clear that the basis of the accusation against the organizations is not firmly established. I agree with the legal statements of Mr. Jackson only insofar as he concludes his legal observations with the statement that "it is completely intolerable from such thinking according to the letter of the law to deny personal immunity." The personal immunity of the individual members of an organization in connection w1th the punishable actions committed within the organization cannot be derived from the denial of collective guilt; rather can the culpability of the individual for the punishable actions committed by him be emphasized more strongly.
The legal basis of the whole Trial against the individuals and organizations here accused is the Charter created by the United Nations. The Defense has already taken the opportunity to' express its misgivings about the Charter, to which I make reference.
I want to bring out only one point of view once more. If, in case an organization is declared criminal, the former members are to be punished because of their mere membership, then they must do penance for something which was legally permitted at the time of the action. Thus the Charter establishes norms with retroactive force. The legal principle, however, which prohibits laws with retroactive force, is firmly established in the law of all civilized states.
Thus the French, Constitutional Assembly, on 14 March 1946, decided to give the Constitution of the French Republic, as a preamble, a new formulation of the "Declaration of Human Rights." This declaration reads, in Article 10:
"No one can be condemned or punished save on the strength of a law passed and published before the deed."
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According to this general international legal concept, the American Military Government in Germany ordered through Law Number 1, in Article 4:
"A charge can only be pressed, sentence passed, and punishment executed, if the act at the time of its commission was expressly legally declared punishable."
The same law prohibits the use of analogy or so-called sound national instinct. The American Military Government even considers the principle mentioned to be so important that it punishes its violation with the death penalty.
Finally, may I be permitted in this connection to mention Article 43 of the Hague Convention of the year 1899, according to which the United States of America, as well as England and France, undertook the obligation toward the other states, in occupying a foreign country to observe the laws of that country unless a compelling obstacle existed.
The United Nations have proclaimed that the goal of this Trial is to restore justice and respect for international law, and thus to promote world peace. They have acknowledged fundamental human rights and the recognized principles of international law. Stamping as criminal formerly legal political convictions, however, might be considered a limitation of this acknowledgment and shake confidence in fundamental human rights. As a precedent, such a judgment might well have disastrous consequences for the idea of justice and personal freedom.
My previous statements concerned the admissibility of the charge against all organizations. For the Gestapo there are two further factors. The Gestapo was a State institution, an aggregation of State agencies. An agency, in contrast to a society or other private organization, pursues not self-chosen, but State-ordered aims; not with its own but with State means. It fulfills its function in the framework of the total activity of the State. Its actions and measures are State administrative acts. In the case of a State agency one cannot speak of submission to a common will of the agency nor of an association, more or less by agreement, for a common purpose. Thus there is lacking here the prerequisite for the concept of an organization or group, and of membership in the sense of the Charter. If private organizations cannot be considered responsible and subject to punishment, then State agencies and administrative offices certainly cannot. Only the State itself could be held responsible for its institutions, if that were at all possible, but never the institution itself.
The institution of the police-including the political police belongs to the internal affairs of a state. A recognized international
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legal maxim, however, prohibits the interference of a state in the internal legal affairs of a foreign country. And so from this view point as well there are objections to the charge against the Gestapo which I consider my duty as counsel to point out.
Finally, there is a further question to be examined: If the Gestapo is to be declared criminal one of the principal defendants should have been an official of the Gestapo. But was any one of the principal defendants ever an official, and thus a member, of the Gestapo? That this prerequisite for trial exists seems very doubtful for Goering, as Prussian Prime Minister, was Chief of the Prussian Secret State Police and could give orders to it, but he did not belong to it. His position as "Chief of the Secret State Police" was, moreover, eliminated with the appointment of the Chief of the German Police and with the incorporation of the Prussian Secret State Police in a Reich institution in the years 1936 and 1937. Frick, as Reich Minister of the Interior, was the competent minister for ' the Police but he was never an official of any particular branch of the Police. Kaltenbrunner, finally, testified that with his appointment as Chief of the Security Police and the SD he was not made Chief of the Gestapo, and in fact he was not-as Heydrich had been since 1934-the head of the Secret State Police Office. Nor was the Chief of the Security Police and the SD on the budget of the Secret State Police, but was carried on the budget of the Reich Ministry of the Interior.
In the event, however, that the indictment and condemnation of the Gestapo should nevertheless be judged admissible, I now turn to the question of whether the substantive legal prerequisites exist for declaring it criminal. In other words, it must be examined whether the Gestapo as a whole was a criminal organization or group in the sense of the Charter. In the examination of this question I shall follow the conditions laid down and designated as relevant in the ruling of the Court of 13 March 1946.
But before I go into this question I must point out a general error regarding the type and extent of the activity of the Gestapo. Among the German people, and perhaps even more abroad, it was customary to ascribe to the Gestapo all police measures, terror acts, deprivations of freedom, and killings, as long as they had any police connection at all. It became the scapegoat for all misdeeds in Germany and the occupied territories, and today it is made to bear responsibility for all evil. Yet nothing is more mistaken than that. The error arises from the fact that the whole police system, whether Criminal Police, Wehrmacht Police, Political Police, or SD, without distinction of the, branches, were considered Gestapo. When Heydrich said at the German Police Rally in 1941: "Secret State Police, Criminal Police and Security Service are enveloped in the
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mysterious aura of the political detective story," this characterized the almost legendary atmosphere by which the Gestapo in particular is surrounded to the present day. It was apparently in keeping with Heydrich's tactics to let the Gestapo appear in the opinion of people at home and abroad as an instrument of terror, to spread fear and horror of it, in order to create fear of engaging in activity hostile to the State.
That the Gestapo was unjustly accused of many crimes may be shown by a few examples. One of the most disgraceful individual crimes during the wax was the murder of the French General Deboisse, at the end of 1944 or the beginning of 1945. The French Prosecution charges it to the Gestapo on the basis of Documents 4048 to 4052-PS. According to 4050-PS, however, Panzinger, who was entrusted with the execution of the plan, was at the time head of Amt V of the RSHAI, that is head of the Reich Criminal Police Office. Schulze, who is mentioned in 4052-PS, also belonged to the Reich Criminal Police Office. 4b48-PS, according to the file reference "V," was also drawn up ~y the Reich Criminal Police Office as Amt V of the RSHA. Amt IV of the RSHA-the Gestapo Office was thus not involved, but only the Reich Criminal Police Office which included the section charged with searching for prisoners of war. Himmler, who as Chief of the Replacement Army was also in charge of the Prisoners-of-War Organization, contacted Panzinger directly in this matter; Amt IV did not have knowledge of t1lis occurrence at any stage. Whether Kaltenbrunner knew anything, he will have to state himself.
These facts are proved by Gestapo Affidavit Number 88.
In the report on the condemnation of participants in German war crimes in the Russian city of Krasnodar (USSR-55), which was submitted by the Russian Prosecution, the commission of these terrible crimes is charged again to the Gestapo without further proof. In reality, this was the activity of an Einsatzkommando, not of the Gestapo. (See Gestapo, Affidavit Number 45).
I would like to refer to the testimony of the witnesses Dr. Knochen and Franz Straub. It proves that in Belgium and France, as every~ where, the Gestapo was frequently unjustly accused of crimes. Through several witnesses (Dr. Knochen, Straub, Kaltenbrunner), it has been established, besides, that frequently in the occupied territories and in the home area swindlers and other shady characters appeared who, passed themselves off as Gestapo officials. Himmler himself demanded that such false Gestapo officials should be placed in concentration camps (see Exhibit Gestapo Number 34 and Gestapo Affidavit Number 68).
As indicated, the Chief of the Security Police, Heydrich, was not entirely without responsibility for the wrong opinion concerning the
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Gestapo. Thus he deliberately furthered the rumor that the Gestapo knew everything politically suspicious because it spied on the population. This could not be true, as is proved by the fact that the approximately 15,000 to 16,000 Gestapo officials in question, even if they had watched and spied on the people, would have been far from adequate for this purpose (see statement of Dr. Best).
The crimes which Gestapo members actually committed shall not be excused in- any way. But it is equally certain that many things occurred for which the Gestapo officials are not responsible, and that usually no effort was made to examine and differentiate whether certain deeds or misdeeds were carried out by members of the Gestapo* or the Kripo, the SS or the SD, or even by native criminals. If, in the interest of combating crimes, it is judged proper, in passing sentence at a trial, to establish a form of option as regards the deed, in the sense that punishment will be inflicted regardless of whether the established deed comes under this or that penal law, such an option can never be taken as regards the person of the perpetrator. In other words, it would not be just to ascribe a deed to the Gestapo as long as the guilt of its members is not absolutely established.
As already stated, the Gestapo is no union of persons in the technical sense of the word, and probably also not in the sense of the Charter. Its constitution, its aims and tasks, and the methods employed by it cannot fundamentally be designated as criminal. The position of the Political Police, its special tasks, and the measures to be taken by it of course demanded the form of organization especially adapted to these purposes. In this connection I consider a terse but still comprehensive presentation of the organizational and personnel structure of the Gestapo to be all the more important, since the Court by its rulings of 14 *January and 13 March 1946 showed that it might be inclined to ascribe decisive importance to the clarification of this question.
Your Lordship, in order not to tire the Court with the presentation of the organizational structure and the personnel setup, I shall not read the next nine pages, but shall ask the Court to take judicial notice of them.
I draw the special attention of the Court to Pages 20 to 24. They deal with the fundamental difference between administrative and executive civil servants, the technical personnel, the employees, the emergency draftees, and the groups of persons who were taken over as units into the Gestapo-the Secret Field Police, the Customs Border Guards, the Military Counter-Intelligence, and affiliated units.
In the development of the, German Political Police from 1933 until the end of the war, three periods can be noted from the organizational point of view:
(1) The time from the so-called seizure of power until Himmler's appointment as Chief of the German Police, that is, until June 1936. In this Connection I refer
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to Document 2073-PS, Exhibit Number Gestapo-12. The characteristic aspect of this developmental period, which was not entirely alike everywhere, was the police sovereignty of the individual Linder of the German Reich resulting from their political independence. This decentralization was, however, limited when
Himmler gradually, in 1933 and the beginning of 1934, became Police Commander in all Linder of the German Reich with the exception of Prussia.
In the spring of 1934 Himmler was also appointed Deputy Chief of the Prussian Secret State Police, which meant that Himmler had obtained influence over the Secret State Police of all Linder of the German Reich. Until June 1936 the Secret State Police was on the budget of the Linder.
(2) The second period is introduced by the appointment of Himmler as Chief of the German Police on 17 June 1936. A few days later SS Gruppenfuehrer Heydrich was appointed Chief of the Security Police, which included the Secret State Police and the Criminal Police; while Police General Daluege was appointed Chief of the Regular Police, which included Municipal Police, Gendarmerie, and Communal Police. Thus, the German Police had been made uniform throughout the Reich.
The central office of the Secret State Police for the whole Reich was the Secret State Police office, Berlin, to which all agencies of the Secret State Police In the Reich were subordinate. These subordinate agencies were Secret State Police main agencies at the seats of the Provincial Governments, and Secret State Police agencies with almost all Regierungspr5sidenten or parallel administrative offices in Prussia and the Linder.
(3) With the creation of the RSHA, announced on 27 September 1939, the third and last period was introduced. Chief of the Security Police Heydrich, by a merger of Party organizations and State Police agencies-that is to say, heterogeneous elements-in the RSHA realized a plan of long standing, and it is true that for an outsider it was completely impossible to distinguish whether Heydrich in any given case was acting as chief of a State agency or as chief of a Party office.
The RSHA in its most extensive development included the following offices:
Amt I Personnel (State agency)
Amt II Administration (State agency)
Amt III SD Domestic (Party organization)
Amt IV Secret State Police (Gestapo; State agency)
Amt V Reich Criminal Police Office (State agency)
Amt VI SD Foreign (Party organization)
In 1944 the Military Intelligence Service was added.
Amt VII: SD Scientific Exploitation (Party organization)
Amt N : Technical Communications (State agency).
Thus the RSHA was not a unified agency but only the collective agency of the various offices which did not change as to their legal structure. The individual parts of the RSHA remained what they had been before, that is:
a) as far as the individual offices sprang from the Reich Ministry of the Interior, such as Amt I, Personnel, and Amt II, Administration, they remained branches of that Ministry;
b) Amter IV and V, that is, the Secret State Police Office and the Reich Criminal Police Office, remained as such;
c) the parts coming from the former SD Main Office, Amter III, VI, VII remained an organization of the SS and the Party.
Nor did the tasks change their State or Party character. Not the RSHA as such was a Main Office of the SS, but only the parts of it formed from the former SD Main Office.
Amt IV of the RSHA-the Secret State Police Office, the chief of which was SS-Gruppenfuehrer Heinrich Himmler-was changed several times in its organizational structure during the time from 1939 to 1945, and at the end of 1944 included the following special departments:
IV A 1 Leftist and Rightist opposition
IV A 2 Anti-Sabotage operations
JV A 3 Counter-Intelligence
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IV A 4 Jews, Churches
IV A 5 Special assignments
IV A 6 Protective Custody IV B 1 Occupied Western Territories
IV B 2 Occupied Eastern Territories
IV E 3 Occupied Southeastern Territories IV B 4 Passes and Identification IV Ba A Basic questions of the employment of foreign workers
IV G Customs Border Protection (Zollgrenzschutz), Border Inspections.
On the whole nothing was changed from the state of affairs before 1939 in the organizational structure of the subordinate agencies, that is, of the Gestapo Leitstellen with the Governments of the Lander and the most important provinces of Prussia as well as the local Gestapo offices.
A distinction must be made between the organization of the Gestapo presented here and the Einsatzgruppen and Einsatzkommandos established for Security Police purposes in case of war. In them the term "Security Police," which in peacetime had appeared only in the titles of the Chief of the Security Police and the inspectors of the Security Police, had assumed a character which differed in its nature from the branches of the Gestapo and the Kripo from which part of the personnel was taken. In the employment of the Security Police and the SD in the occupied territories, a distinction must be made between
a) the employment of the Sipo and the SD in troop formation, that is, in Einsatzgruppen and Einsatzkommandos under the orders of the Wehrmacht, and
b) employment after the establishment of a military or civil administration The stationary agencies were subordinate to the Higher SS and Police Leaders who were in a position to give the most extensive orders to their subordinate commanders of the Sipo and the SD. In many cases the Reich Commissioner took an important part in the giving of orders, for example Terboven in Norway and Burckel in Lorraine. It must also be pointed out that the Higher SS and Police Leaders frequently reported directly to Himmler and received 'orders from him directly instead of through the Chief of the Sipo and the SD.
The agencies of the Sipo and the SD in the occupied territories were organized with reference to Amter Ila or VI (SD), IV (Gestapo), and V (Criminal Police), but the appointment of personnel as well as the activity of the individual sections of a local office was subject to difficulties brought about by war conditions. Thus members of the Criminal Police, which is not charged, were given Gestapo tasks, and vice versa members of the Gestapo were given purely Criminal Police tasks. The necessity, arising since 1942 from the lack of trained personnel, of taking more and more members of the Secret Field Police of the Wehrmacht into the Security Police as emergency draftees, although they had practically no specialized police knowledge-in addition to emergency draftees from the Reich and employees from the country in question-must be mentioned here in order to be able to judge correctly the activity of the Security Police in the occupied territories.
This condensed survey of the structure of the organization offers a basis for the judgment only in connection with the survey of the organization of personnel. The following are the groups of persons composing the staff of the Gestapo according to their training and assignments:
They were not police officials under the German Police Officials' Law. Paragraph 1 of this law, Document Number Gestapo-9, states that the law applies to executive officials of the Municipal Police, Criminal Police, Gendarmerie, and the Gestapo. The administrative officials of these police branches had neither a criminal nor a municipal police training, and they were never-not even exceptionally-used for executive duties. Neither were they auxiliary employees of the public prosecutor's office. Their training and activities were the same as those of all other branches of the administration. The activities of administrative officials consisted of personnel matters; economic matters, such as setting up budgets, housing, clothing, cashiers' office duties, et cetera. The administrative officials h4d the same duties abroad. They were what would be called in the Armed Forces, on the front as well as in task forces, quartermasters and paymasters. Towards the end of 1944 the number of administrative officials amounted to approximately 3,000, which was roughly 10 percent of the total regular personnel
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of the Gestapo. To prove the above-mentioned facts I refer to the affidavits introduced as Numbers Gestapo 17, 18, 19, 20, 31, 34, and to the testimony of the witnesses Oldach, Albath, Tesmer, Hoffmann, and Best before the Commission or the Tribunal.
(2) officials of the Executive formed the second group of persons, which amounted towards the end of 1944 to 40-45 percent of the total regular personnel of the Gestapo.
They were subdivided as follows:
Civil servants of the senior grade: Regierungs- and Kriminalrat.
Civil servants of the higher service beginning with Criminal Inspector.
Civil servants of the medium grade beginning with Criminal Assistant.
At the beginning the employment of executive officials took place in the actual
Political Police departments, as I have introduced them with my description of the organization of Amt IV of the RSHA.
The so-called Counter-Intelligence Police also figured among the executive organizations of the Gestapo. This, formerly Amt III of the Secret State Police Department, later IVA 3 of Department IV of the RSHA, had the task of discovering and clearing up all crimes of high treason from the Criminal Police point of view.
In Affidavit Number Gestapo-89 the number of the members of the Counter-Intelligence Police is estimated at 2 or 3,000.
(3) The Border Police also belongs to the executive organizations of the Gestapo. The tasks and personnel conditions of the Border Police have been made clear through testimony and affidavits of the witnesses Best and Goppelt (Affidavit Number 22) and Document Number Gestapo-18. The approximate strength can be estimated at having reached the figure of 3,000, which includes the total figure of executive officials.
(4) A further part of the Gestapo are the employees and persons on the payroll who-including those persons allocated for work in the Gestapo by the Labor Offices and the emergency draftees-numbered approximately 13,500, thus reaching almost the same figure as the executive officials.
(5) Furthermore, the Gestapo operated a special service in which technical personnel, numbering approximately 500, were working who were responsible for the installment, maintenance, and servicing of the telephone and telegraph installations.
(6) If I have spoken above of the "regular" personnel of the Gestapo, then
the group of persons of which I am about to speak, though formerly belonging to the Gestapo, was nevertheless incorporated in the Gestapo during the second
half of the war under circumstances which cannot leave the least possible doubt as to the nonvoluntary character of their membership in the Gestapo, about which I shall have to speak further at the proper time.
a) With regard to the chronological sequence I shall, first of all, have to deal with the above-mentioned emergency draftees. As the witness Krichbaum has explained, the Secret Field Police of the Armed Forces released, beginning in 1942, In France, 23 groups; then in Belgium, 8; in Denmark and Serbia, I each;, and in the East, 18 groups; that is to say, altogether 51 groups with a total strength of at least 5,500 men by order of the OKW. All were released simultaneously from the Armed Forces and thereafter used as so-called emergency draftees by the Security Police in occupied territories. The emergency draftees were used by the Security Police in all spheres, as well as by the Gestapo, the SD, and the Criminal Police, who are not included in the Indictment.
b) The Military Counter-Intelligence organization of the OKW was transferred by Hitler's orders to the Security Police or the SD, respectively, in the spring of 1944, and the Defensive Counter-Intelligence to Department IV, that is, the Gestapo. The other remaining parts were then formed into a department of their own which was given the designation "Amt Mil.11 in the RSHA. The total number of transferred personnel amounted to approximately 4 or 5,000. It has not been possible to -establish clearly how many of them were used within the framework of Counter-Intelligence, that is, in Department TV, but this would hardly be of any decisive importance.
Simultaneously, the Foreign Letter Censorship Department and the Foreign Telegram Censorship Department, until then under the jurisdiction of Military
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Counter-Intelligence, were transferred to the Security Police. This concerned approximately 7500 persons who, on the basis of an order, became subject to the jurisdiction of the Security Police (Affidavit Number Gestapo-36 and Document Number Gestapo-19).
As a last group of persons, part of the Customs Police were transferred to the Secret State Police in the autumn of 1944, in the last phase of the war, having until then been part of the Reich Finance Administration. Neither in the organization nor in the tasks of the Customs Police were there any changes after this transfer. According to Affidavit Number Gestapo-31 the strength of these two organizations upon transfer to the Gestapo amounted to approximately 45,OQO men.
The above-mentioned State organism of the Political Police with its character as a branch of the State administration was outside the structure of the NSDAP and its organizations. The Gestapo was not dominated by the Party; on the contrary, its independence within the State and outside the structure of the Party was in particular intended to enable it to combat misdeeds of Party members with governmental measures. If Himmler, as Reichsfuehrer SS, became Chief of the Political Police in all states in 1933, and later in the Reich, then the State Police agencies were without influence in that connection. Nothing important changed at first with regard to their activities. The Political Police offices in the German Under, when they were reconstituted in 1933, were mostly staffed with officials from existing Police agencies; not even the directing officials were in every case Party members. Even, later these officials who had been taken over were not replaced by Party members. Only to a small extent, and only as employees and workers for technical duties, such as drivers, teletype operators, and office help, were persons from the Party, the SS, and the SA taken on.
This independence of the Party and its affiliated organizations appears to be contradicted by the so-called assimilation of the Gestapo into the SS. This assimilation merely meant a nominal affiliation with the SS. The reason for this assimilation was the following:
The system of professional civil servants had been introduced and maintained in the Gestapo. But civil servants were, in part, not particularly respected by the Party because of their political or nonpolitical past. In order to strengthen their authority in the discharge of their duties, in particular when acting against National Socialists, they were to appear in uniform, as the witness Dr. Best has testified-who has described himself as the "motor" of , this assimilation. With this assimilation the Gestapo officials-as, incidentally, also Criminal Police officials, who were equally to be assimilated-were formally listed among the SD formations of the SS, though they remained solely under the jurisdiction of their own superiors without doing any SS or SD service. Besides, the assimilation was only carried out slowly and to a negligible~ degree. At the outbreak of war in 1939 only approximately 3,000 members of the Gestapo and the Criminal Police out of a total of 20, 000 had been
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assimilated. It is significant that Himmler by no means liked to see the Gestapo appear publicly wearing SS uniforms, as becomes evident from Document USA-447.
During the war even nonassimilated persons had to wear the SS uniform on certain assignments, even without being members of the SS. Apart from that the SS did not control the Police or exert any type of influence upon its activities; it was only in Himmler's person that there was personal union in the leadership of the two. With reference to this statement I refer you to the testimony of Dr. Best.
The Gestapo as a whole had nothing to do with the SD, which, as is known, was purely an organization of the Party. Personal union only existed in the person of the Chief of the Sipo and the SD (Heydrich, later Kaltenbrunner), which was accidental, however, and did not signify an organizational or functional interconnection. Certainly the SD were never combined with the Gestapo in order to form a police system. The SD did not have to support the Gestapo in its tasks; it had no police tasks whatever.
The officials of the Gestapo by no means considered themselves members of a uniform organization with the SS and the SD. Everyone in each of the three organizations knew that he belonged to an independent institution serving independent purposes.
Although the Gestapo was, therefore, in no way organizationally or from the point of view of functions connected with the Party, it was, nevertheless, not altogether detached from the administrative tasks of the State, being a State authority. On the contrary, on every level interconnections existed with the general and interior administration. The higher administrative organizations, the Ministers of the Interior of the states, the provincial presidents and district presidents were entitled to receive reports and issue instructions. Evidence has, indeed, shown that the majority of all Gestapo actions were carried out by the district and local police organizations and the Gendarmerie. This fact in particular furnishes an indication of how serious and questionable it is to indict the Gestapo as an institution of the State. Because, if this concept were followed through, the officials of the aforementioned administrative organizations, to the extent that they worked in a State Police capacity, would have to be indicted together with the Gestapo.
If it is impossible for these reasons to speak of a union of persons in the case of the Gestapo, that is, of membership in the sense of the Indictment, the requirement of voluntary membership was even less complied with. Not one of the witnesses examined was able to uphold the Prosecution's allegation in any way; on the contrary, all witnesses had to testify that, as a matter of principle, member-. ship of the Gestapo was generally not on a voluntary basis.
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The assignment of officials to the Gestapo took place, to a large extent, by having them transferred to an agency of the Gestapo from a previous organization. The order for transfer had to be obeyed on the strength of the civil service law. Severe disadvantages in one's career would without a doubt have resulted from a refusal, and very probably the loss of the position held; and had such a refusal been based on the statement that for reasons of conscience the official did not sanction the activities of the Gestapo, then he, like any civil servant in a similar case, would have become subject to disciplinary proceedings or even regular penal proceedings, resulting in the loss of his position and hard-earned privileges and, apart from that, he would have gone to a concentration camp.
Replacements of civil servants in the Gestapo were regulated in such a way that, in accordance with the police civil service law, 90 percent were drawn from former Regular Police officials who wished to become Criminal Police officials, whereas a maximum of 10 percent could be taken, from other professions.
Aspirants from the Regular Police could not, however, freely decide whether to join the Gestapo or Kripo; they were allotted by the Personnel Office of the Police at Potsdam to the Gestapo or the Kripo, according to requirements, and even against their will. Incidentally, we are here concerned with Regular Police officials with 8 to 12 years' service, that is, old police officials who had been in the police service already before 1933.
It was almost impossible for an official to break loose from the Gestapo, except for general reasons such as death, sickness, and dismissal because of malfeasance. During the war the Gestapo, just like the entire Police, was considered as being on active service and was subject to military discipline, so that resignation was totally impossible. It was even prohibited to volunteer for military service at the front.
The same principles of assignment and retirement also applied to the institutions under the jurisdiction of the Gestapo, such as Border Police, Military Counter-Intelligence, and Customs Police, not to mention the numerous emergency draftees in wartime, who at times represented nearly one-half of the total personnel strength.
From these statements mostly based on the testimony and affidavits particularly of the witnesses Best, Knochen, and Hoffmann, the following becomes apparent: the Gestapo consisted of a multitude of State agencies. But in the case of an agency one cannot speak of members of that agency in the same way as of members of a private organization. For that reason there was no "membership" in the~ Gestapo, much less a voluntary one; there was only the official position of a civil servant.
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The question, also, as to whether the aim and task of the Gestapo was criminal, must be answered in the negative. The aim of the Gestapo-just like that of any political police-was the protection of the people and the State against attacks of hostile elements upon their existence and unhampered development. Accordingly, the task of the Gestapo is defined in Article I of the Law of 10 February 1936 (Document Number Gestapo-7) as follows; I quote:
"The Secret State Police has the task of investigating all tendencies dangerous to the State and of combating them, of collecting and exploiting the result of such investigations, of informing the Reich Government and other authorities of findings important to them, of keeping them informed and supplying them with suggestions."
These tasks of the Gestapo had the same character as those of the Political Police before 1933, and as those of any other political police force in foreign countries. What is to be understood by "tendencies hostile to the State" depends upon the respective political structure of a state. A change in the political leadership cannot retroactively render illegal the activities of a political police force which had been directed against other forces regarded as hostile to the State. The activities of the Gestapo had been regulated by legal instructions issued by the State. Its tasks consisted, in the first place and mainly, of the investigation of politically illegal activity in accordance with the general penal code, in which connection the officials of the Gestapo became active as auxiliary officials of the public prosecutor's department; and it further consisted in warding off such activity through preventive measures.
Now, of course, the methods of the Gestapo are made the basis of serious accusations against it in three ways, and even held against it as crimes. One method is the protective custody and transfer of persons to concentration camps. I realize that the mere mention of the name sends a cold shudder down one's spine. Nevertheless, even the imposition of protective' custody was governed by exact regulations. Protective custody, which in addition is not a specifically German or specifically National Socialist invention, was recognized as legal in several findings of the Supreme Reich Court and the Prussian Supreme Administrative Court, that is, fully constitutional courts.
A second method-that of the so-called third-degree interrogation-must, to put it mildly, give rise to serious misgivings. On the other hand, this method was only rarely used (see particularly witness Dr. Best), and then only by order from the highest authorities, and never to extort a confession. This method, too, which we shall consider further in connection with the discussion of the
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individual crimes, was regulated by law, even during the time of the war (compare Document Number Gestapo-60).
Finally the Prosecution accuses the Gestapo in particular of the fact that it was not bound by law but rather that it acted purely arbitrarily. In reply to this I should like to say that if it was established in two laws (dealing with the Anschluss of Austria and the annexation of the Sudetenland) that the Chief of the German Police could take measures exceeding the existing laws, this was not done to sanction arbitrary police action; rather do we find ourselves confronted with a typical legal investiture with authority to establish police law. Measures in the meaning of this law did not refer to individual action, but to orders of a general sort to be issued even though in the countries annexed no law existed as yet in this regard, but which were, nevertheless, binding on the population and the executive organs of the Police, because the necessary authority had been granted by the head of the State.
The principle that individual action must not be taken arbitrarily, but rather that detailed regulations were to be applied and observed in all executive actions, was strictly maintained (witness Dr. Best).
It never even occurred to Gestapo officials, at least not before the war, that they might be accused from abroad of acting arbitrarily. The tasks and methods, which were well-known and legally defined-not only for the members of the Gestapo but for all the world-cannot be considered criminal by the world, a world which not only formally recognized the German Reich Government, which bore the sole responsibility in this matter, but also repeatedly gave visible evidence of its recognition to the German people.
If foreign countries had objected to the aims pursued by the Gestapo, it would not have been conceivable for numerous foreign police systems to have worked in close collaboration with the German Gestapo, a collaboration which was not negotiated through diplomatic circles, but obviously with the intention of learning from it (compare Gestapo Affidavits Numbers 26 and 89). In any event, because of this the individual Gestapo official must have considered his activity internationally recognized.
The aims, tasks, and methods of the Gestapo remained basically constant even during the war. Insofar as acts other than the.- ones described were intended for it, they must be considered as acts foreign to the Police and outside the organization. Later we shall deal particularly with the Einsatzgruppen, their composition, their activity, and their ' relation to the Gestapo.
Following the structure of the Indictment, I shall now turn to the question of whether the Gestapo participated in a joint plan for the commission of crimes and whether it participated as a deliberate part in the whole so-called Nazi conspiracy in the sense of the
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Indictment. In order to deal with this question, however, it appears necessary to examine, first of all, just which crimes can be proved to have been committed by the Gestapo.
In order to characterize an organization as criminal, just as in characterizing an individual, only typical aspects may be considered, that is, only such actions and characteristics as are in accord with the peculiar nature of the respective organization.
Therefore no incidents can be used which, though they took place within the organization, must be considered to, be foreign to the organization, in this case foreign to the Police; and furthermore no actions may be cited which were committed by individual members.
In order to determine whether these actions must be considered criminal, German law should be consulted, which does not deviate from the views held by other civilized countries in the definition of general criminality.
In line with the method followed in the Indictment, I shall subdivide the crimes of which the Gestapo is accused into Crimes against Peace, War Crimes, and Crimes against Humanity.
(a) Crimes against Peace.
In this connection the Indictment makes the charge that the Gestapo, together with the SD, had artificially created border incidents in order to. give Hitler a pretext for a war with Poland. Two border incidents are cited, the attack on the radio station at Gleiwitz and a feigned attack by a Polish group at Hohenlinden.
The attack on the radio station at Gleiwitz was not carried out with the participation of Gestapo officials. The witness Naujocks,
who was the leader of this undertaking but did not belong to the Gestapo, has confirmed unequivocally that no member of the Gestapo participated in this action. Instructions for this undertaking emanated directly from Heydrich and were transmitted orally by him directly to Naujocks.
Instructions concerning the feigned attack at Hohenlinden were transmitted by Muller, the chief of Amt IV of the RSHA, to Naujocks; however, Naujocks, who directed this action, has. expressly denied any participation by Amt IV.
THE PRESIDENT: Dr. Merkel, would that be a convenient time to break off?
[A recess was taken until 1400 hours.]
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DR. MERKEL: Mr. President, I have heard that the French translation of my final plea is not yet available to the interpreters. For that reason I shall have to speak more slowly for the benefit of the interpreters.
I have already deleted another 16 pages from my plea in order to comply with the ruling that I adhere to a time limit.
THE PRESIDENT: No doubt your speech will subsequently be translated and we shall have those pages before us.
DR. MERKEL: I had gone as far as the testimony of the witness Naujocks regarding the attack on the radio station at Gleiwitz and the attack of that group near Hohenlinden. He stated that, quite naturally, it was not one of the tasks of Amt IV of the RSHA to engineer border incidents. Nor did Muller select members of Amt IV for the purpose of staging the above-mentioned border incident, but only individuals who were in his confidence; for Heydrich did not trust the Gestapo with respect to secrecy and reliability.
Naujocks stated literally: "I cannot identify Muller with the organization of the Gestapo."
These border incidents were therefore no concern of the Gestapo, but rather a personal concern of Heydrich, even to the extent to which Muller participated in them.
The Gestapo has not been accused of other crimes against peace.
(b) War Crimes.
One of the gravest accusations raised against the Gestapo deals with the mass murder of the civilian population of the occupied countries through the so-called "Einsatzgruppen." Not only the Defense but the entire German people condemn the inhuman cruelties committed by the Einsatzgruppen. Those who committed atrocities of that kind and thereby defiled the name of Germany must be called to account. Members of the Gestapo also participated in the actions of the Einsatzgruppen. However, I should like to examine the extent to which the organization of the Gestapo in toto can be held responsible for the criminal deeds of the Einsatzgruppen.
The Einsatzgruppen had to fulfill the tasks of the Chief of the Sipo and of the SD in rear echelon areas, which meant that they had to maintain law and order along the rear of the fighting units. They were subordinate to the armies, to whom liaison officers were detailed.
The Einsatzgruppen were units which had been established for certain purposes. They were composed of members of the SD, the
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SS, the Kripo, the Gestapo, the Order Police, of emergency draftees, and of indigenous forces. The members of the SD, of the Kripo, and of the Gestapo were used without consideration of their former membership in their own branch.
Purely from the point of view of personnel, we are concerned here with the employment of the entire Police and the SD, not with that of the Gestapo. ' The actual participation of the Gestapo in the Einsatzgruppen amounted to approximately 10 percent. This, of course, was a very small number in comparison with the total figure of Gestapo officials. Their selection for the Einsatzgruppen took place without any application on their part, very frequently against their will and on the strength of orders from the RSFIA. Upon being detailed to the Einsatzgruppen, they were eliminated from the organization of the Gestapo. They were exclusively subordinate to the leadership of the Einsatzgruppe, which received its orders in part from the Higher SS and Police Leader, in part from the High Command of the Army, and in part from the RSHA directly. Connections with their home office and the organization of the Gestapo -were almost completely severed by their being employed in the Einsatzgruppe. They could not receive orders of any kind from the Gestapo, and they were removed from the sphere of influence of the Gestapo.
These principles governing the Einsatzgruppen applied particularly to the Einsatzgruppen in the East, which are the ones that have been accused of the largest number of crimes and the most serious ones. To them also applies the fact that service in the East was no Gestapo service either in personnel or in the tasks assigned, but service with a special group drafted from various units specifically for this purpose. The witness Ohlendorf testified to the same effect.
The fact that the Gestapo also supplied men for this does not justify the conclusion that it was responsible for deeds committed by the Einsatzgruppen.. Nor is this changed by the fact that the Chief of Amt IV, that is, Miller, the Director of the Gestapo within the RSHA, had an important part in passing on all orders. He was acting here directly on behalf of Himmler and Heydrich. The activity of Miller cannot be decisive in view of the fact that the overwhelming majority of the agents under him had no knowledge of the events. Had that been the case, the Kripo or the Order Police as units would have to be held equally responsible for the events. But the Gestapo cannot be declared criminal because of Miller's position with regard to the Einsatzgruppen, any more than the Kripo-whose chief, Nebe, by the way, was himself the leader of an Einsatzgruppe in the East-can be held responsible, on the basis of the participation of its chief and individual members, for
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the mass executions undertaken by the Einsatzgruppen. Therefore mass murders of the civilian population and all other atrocities committed by the Einsatzgruppen cannot be charged against the Gestapo as such.
The next charge refers to the execution of politically and racially undesirable prisoners in camps.
I beg the Tribunal to take judicial knowledge of this as well as of the third charge, according to which the Gestapo, together with the SD, sent prisoners of war who had escaped and had been recaptured to concentration camps.
Decisive is , the agreement between the Chief of the Sipo and the SD on the one hand, and the OKW on the other, of 16 July 1941, the so-called Commissar Order, USSR-14. The directives issued by Muller, the Chief of Amt IV, on 17 July 1941 show in what numbers and in what way the Gestapo participated in the details to be assigned to the prison camps.
In the last few weeks the Prosecution produced the correspondence concerning the activity of the Gestapo offices in Munich, Regensburg, and Nurnberg on the subject of the selection of Soviet Russian prisoners of war (Document USA-910). This shows that the selection through*special units (Sonderkommandos) of the Sipo was carried out according to the directives of the Chief of the Sipo and the SD, but their execution in the concentration camps to which those selected were sent was not the affair of the Gestapo.
The testimony of the witnesses Warlimont (2884-PS) and Lahousen shows clearly that these measures were planned by the High Command of the Army on Hitler's orders, without participation of the Security Police. I refer to the instructions of the OKH dated 12 May 1941 regarding the treatment of Soviet Russian political dignitaries, which was based on an order of 31 March 1941 (RF-351). Opposition to this order, as the statement of the witness Lahousen shows, was useless even for the highest military authorities. In consideration of the explanations included in the order and particularly in the directives for the selection of Soviet Russian prisoners of war (USSR-14), the individual Gestapo agent was entitled to assume the legality of the orders.
The further charge is made against the Gestapo that together with the SD it sent prisoners of war who had escaped and had been recaptured to concentration camps. It is a question here of the notorious "Kugel-Erlass," according to which all recaptured escaped prisoners-officers and nonworking noncommissioned officers, with the exception of British and American prisoners of war-were to be turned over to the Chief of the Sipo and the SD with the code word "Grade 111" (Stufe III). The Kripo was in charge of searching for escaped prisoners and bringing back recaptured prisoners.
The central office was the group "War Search" (Kriegsfahndung) in the Reich Criminal Police Office.
According to Document USA-246, RF-1449, the monstrous order mentioned was proclaimed in an order of the OKW. In which cases the Gestapo was used for such tasks, particularly for the execution of the recaptured prisoners, cannot be ascertained. The witness Straub and Affidavit Number 75 proved that Muller stated at a conference that the term "Kugel-Erlass" had nothing to do with
shooting. Rather, in order to prevent further attempts at escape, the prisoners were to have an iron ball fastened to one foot. Even if this description of Muller's is not true, it must nevertheless be held to the credit of the agents who had no reason for not believing their superior.
One serious case must be mentioned in this connection: the shooting of the Royal Air Force officers who escaped from Sagan Camp in March 1944. This event can be traced back to a special order of Hitler and must no doubt be considered a special case. An agency of the Gestapo was misused to execute this order. Gestapo agents of the Breslau Stapo office were to take the recaptured officers from Sagan to the camp where they were shot. Whether this was done by the Stapo agents is not clear, however, nor is it clear whether they knew at all that the officers were to be shot.
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This special order and the ,Kugel-Erlass" which I have mentioned are among the most regrettable and dishonorable things that happened during the war in Nazi Germany, and they will make every decent German, and particularly every former front-line soldier, blush with shame. As counsel for the Gestapo I nevertheless feel it to be my duty, in spite of my personal horror of such occurrences, to point out that only a few Gestapo men were connected with such misdeeds; that they acted on orders, the reasons and legality of which they could not investigate; that the order, and its execution were kept strictly secret; and that for these reasons the crimes which occurred here cannot be ascribed to the Gestapo as a whole as a typical expression of criminal activities.
I continue on Page 38 of the original. I shall now deal with the concentration camps.
The American Prosecution says that the Gestapo and the SD bear the responsibility for establishing and setting up concentration camps and for the assignment of racially and politically undesirable persons to concentration and extermination camps for forced labor and mass murder; that the Gestapo was legally entrusted with the responsibility of administering the concentration camps; that it alone had the power to take persons into protective custody and to execute the protective custody orders in the State concentration camps, and that the Gestapo issued the orders to establish concentration camps, to convert prisoner-of-war camps to concentration camps, and to establish corrective labor camps. In the treatment of this point of the Indictment the widespread error must be corrected that the concentration camps were an institution of the Gestapo.
In reality the concentration camps were at no time established and administered by the Gestapo. It is true that Paragraph 2 of the order for the execution of the law concerning the Secret State Police of 10 February 1936, Document Number Gestapo-8, says that the Secret State Police Office will administer the State concentration camps, but this regulation only existed on paper and was never carried out in practice. Rather was it the Reichsfuehrung SS which was responsible for the concentration camps, and they appointed an Inspector of Concentration Camps whose duties were later transferred to Amtsgruppe D of the VFJHA of the SS. This is clearly confirmed, among other facts, by the witnesses Ohlendorf and Best and a large number of documents (compare among other material Documents Number Gestapo-40 to 45).
After Hitler's seizure of power in 1933 the SA and SS had independently established numerous camps for political prisoners. The Gestapo on its own initiative took steps against these unauthorized concentration camps, eliminated them, and released the inmates. The Gestapo Chief, Dr. Diels, even brought upon himself the accusation that he was supporting the Communists and sabotaging the Revolution (Affidavit Number 41, testimony of the witnesses Vitzdamm and Grauert).
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Thus the concentration camps were never under the Gestapo The Inspectorate, of Concentration Camps and the Economic and Administrative Department of the VF111A remained independent agencies and their chiefs were directly subordinate to Himmler
The order contained in Document USA-492 does not affect the administration of concentration camps, but regulates the assignment of prisoners to the various camps, so that political prisoners would not be sent to camps which, according to their structure and their form of work, were meant for hardened criminals.
Of the large number of documents which prove the nonparticipation of the Gestapo in the administration of the concentration camps, I should like to mention only one more: Document Number Gestapo-38. This shows that persons not mentioned therein-thus all Gestapo officials regardless of their rank or position-would require written permission by the Inspector of Concentration Camps to enter any camp. If the concentration camps had been subordinate to the Gestapo, there would have been no need to obtain this written permission to enter.
In each concentration camp there existed a so-called political department, whose position and connection with the Gestapo is a matter of conflicting views. In this political department were employed one to three criminal officials of the Gestapo or of the Kripo. These officials did not form an office of the Gestapo or of the Kripo; rather were they attached to the commandant of the camp as political experts to fill police tasks in regard to individual prisoners. Above all, they had to conduct the interrogations of those prisoners against whom a case before an ordinary court was pending. This was done upon the request of the ordinary courts, the Gestapo, or the Criminal Police. With regard to the power to issue orders they were exclusively subordinate to the commandant of the concentration camp. They had no influence whatsoever on the administration and conduct of the camp or on the transfer, discharge, punishment, or execution of the prisoners.
Thus the concentration camps were not an independent institution of the Gestapo, but rather institutions which served their purpose in the discharge of their police duties. For the Gestapo they were what the regular prisons were for the courts or for the public prosecutor, namely, executive institutions to carry out the protective custody ordered by the Gestapo. Likewise in my plea I shall not deal with the matter of protective custody and beg the Tribunal to take judicial notice of it.
The opinion prevails that a member of the Gestapo was in a position to send people to concentration camps just as he pleased. This is incorrect. A person could be put into a concentration camp only following proper protective custody proceedings. The legal basis of protective custody was given in the decree of the Reich President of 28 February 1933. It formed the basis for the orders published
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concerning protective custody as issued by the Reich Minister of the Interior, which contained minute directives for taking people into custody, its duration, and the formal proceedings. In that order which has been submitted to the Tribunal as Document Number Gestapo-36, as to whether protective custody is permissible, Article 1 says:
"Protective custody can be ordered as a compulsory measure by the Gestapo in defense against all acts hostile to the people or the State; protective custody may not be ordered for purposes of penalizing or as a substitute for penal arrests."
-Article 2 says:
"The ordering of protective custody is exclusively, the right of the Secret State Police. Applications for such orders are to be directed through the offices of the State Police to the Gestapo. Detailed reasons must be given with each application."
Finally, Article 5 expressly determines that the order for protective custody must be issued in writing by the Gestapo.
In accordance with the decree, protective custody was ordered by the RSHA, Amt IV, in Berlin. The individual member of the Gestapo was concerned only with the investigation. After the completion of the investigation, it was determined whether the files were to be submitted to the public prosecutor, or whether an application should be made for an order for protective custody. As proved by various witnesses-such as the witness Albath-there existed hardly any State office which instructed its officials so thoroughly at regular intervals upon the duty of an objective investigation as the Gestapo. In the case of serious guilt which could not be taken care of by mere instruction, warning, or security payment, the investigating official never knew whether the Gestapo Main Office would order the transfer of the files to the authorities of justice, or rather inflict protective custody. The mere necessity of referring the files to the Gestapo Main Office necessitated most careful investigations; for no official desired to be called to account for an inadequate study of the case or for an incorrect treatment of the indicted person.
At the same time the protective custody proceedings legally required reexamination of custody as such. At certain short intervals, an official study had to be made as to whether the prerequisites for protective custody still applied. The final decision for this also had to be made by the Gestapo Main Office.
Only towards the end of the war were the offices of the Gestapo authorized to take persons into protective custody without such orders by the Gestapo Main Office. This action, which was to last a maximum of 21, later 56, days, was also legally regulated in many details. The subsequent mass transfers of arrestees to concentration camps was ordered, not by the Chief of Amt W, Muller, but directly by Himmler. Document USA-248 states that "upon order of the RFSS and the Chief of German Police," all people transferred to a concentration camp during wartime were transferred to a special penal department. Equally the transfer of 35,000 employable Jews, as ordered by Document USA-219, to concentration camps was ordered by the Reichsfuehrer SS and Chief of the German Police, not by Amt IV of the RSHA. Equally incorrect is the claim of the Prosecution that the transfer of Poles and Jews, who were dismissed from penal institutions of the justice administration, to concentration camps for life had been ordered by Document USA-497. This is a letter of the Reich Minister of Justice of 21 April 1943. In it he refers to an order of the RSHA of 11 March 1943. This order did not originate with Amt IV either, but as its file number "IX A 2 Nr. 100/43" shows, with Amt II of the RSHA.
Finally, one should take into consideration that at least half of the protective custody sentences were pronounced, not for political crimes, nor on the basis of race politics, but concerned professional and habitual criminals. Such persons however were referred to the concentration camps by the Reich Criminal Police Amt (compare Affidavits 49, 50, and 86).
It is possible to blame the Gestapo for assignment to concentration camps only if the Gestapo looked upon the institution of protective custody and of the concentration camps as unlawful and as violating international law, and if it knew of maltreatment, tortures, and killings in the concentration camps.
Certainly protective custody was attended by shortcomings. Above all it could not be examined by the regular courts. Nevertheless, the many orders
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issued in this field by the RSHA demonstrate that there was an endeavor to establish a well-ordered and legally-fixed Procedure for cases of protective custody and that arbitrary acts were to be excluded. The strict enforcement of the protective custody procedure certainly could not create the impression on the Gestapo officers that they were confronted with illegal measures of an arbitrary nature.
Besides, the application of the protective custody procedure was a relatively infrequent one.
If one takes the trouble to examine the question of the proportion of cases where from among the various measures available to the Gestapo such as instructions, warning, security payment, and protective custody, the latter was actually chosen, one will find that assignment to a concentration camp was the least resorted to measure. At the beginning of the war approximately 20,000 people were held in protective custody in the concentration camps; half of them approximately were professional criminals, the other half political prisoners. At the same time about 300,000 prisoners were kept in the regular prisons, of whom approximately one-tenth had been sentenced for political crimes.
THE PRESIDENT: What evidence is there of those figures or the proportions?
DR.MERKEL: Dr. Best made this statement before the Commission on 6 July 1946. Wider use of the concentration camps was made by transferring to them the professional criminals and the antisocial elements, particularly those who had been sentenced by the courts to protective custody, a measure which was not ordered and executed by the Gestapo (compare the witness Hoffmann).
On the basis of Gestapo Affidavit Number 86 the maximum numbers of prisoners sent to the concentration camps by the Gestapo by the beginning of 1945 were about 30,000 Germans, 60,000 Poles, and 50,000 subjects of other states. All other prisoners-on 19 December 1945 the Prosecution claimed that there~ were in the concentration camps on I August 1944, 524,277 prisoners-had been sent there not by the Gestapo but by the Criminal Police, the courts, and various authorities in the occupied territories.
The following parts of my brief, which deal in detail with the question of concentration camps,- I shall omit; and I again beg the Tribunal to take judicial notice of them.
The existence of concentration camps could not be considered by the Gestapo as illegal, nor as being in conflict with international law. The concentration camp is not a National Socialist invention, but has been known before 1933. For instance, Austria introduced in 1933 protective custody as so-called "Anhaltehaft" and used it widely against Communists, National Socialists,. and Social Democrats (compare the evidence of Kaltenbrunner). In Germany, too, protective custody existed prior to 1933. At that time both Communists and National Socialists were arrested by the Police. In the Third Reich the concentration camps were established on the basis of a legal decree which was in accordance with the constitution. Under these circumstances, the officials of the Gestapo could not consider the concentration camps illegal or as being in contradiction with international law.
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As far as detainees were ill-treated or executed in concentration camps, the Gestapo can only be held responsible if they had knowledge of such regrettable conditions and crimes. But, as will be seen from Document Number Gestapo-39, the Gestapo officials were not even allowed to enter a concentration camp.
Moreover, it is not incredible that Gestapo officials had no knowledge of the happenings within the concentration camps. In this connection, I would draw attention to the fundamental Hitler Order (Document Number Gestapo-26), according to which no office should know of any secret matter more than was strictly necessary for the discharge of its duty. Gestapo offices had nothing to do with the administration of the concentration camps, so that they were not informed about the happenings inside concentration camps. The detainees, moreover, were bound to the strictest silence, and, in fact, released detainees seem never to have told anything about happenings inside the concentration camps, least of all to the Gestapo. The revelations about the concentration camps which were made after the collapse of Germany, and especially in the course of this Trial, constituted an enormous surprise for most Germans. It was stated before the Tribunal: "We did not know anything about it. I got to know that only after the collapse." It is thus not at all incredible, but may even be considered as proved by the affidavits presented and by witnesses' testimonies that the individual Gestapo officials, especially the bulk of the executive officials, had really no knowledge of the happenings in the concentration camps. On the contrary, the Gestapo had been against inhuman treatment in the concentration camps during the years 1933 and 1934. This is proved by the above-mentioned actions against the "unofficial concentration camps," which were closed by force.
How could Gestapo officials know what was going on behind the barbed wire of the concentration camps, how could they know of the executions, asphyxiations, and ill-treatment of detainees since no official had access to a concentration camp, and the Gestapo had nothing to do with the administration of the concentration camps. But if the Gestapo had no knowledge of the actual deficiencies of the concentration camps, then they cannot be held responsible for all cruelties committed there. The Gestapo sent the detainees to the concentration camps under legal provisions, and were under the impression that it was merely a justified and temporary deprivation of freedom within the framework of the law.
The following might be said concerning the deportation of citizens of occupied territories for slave labor and the supervision of slave laborers: the Prosecution itself makes a distinction between the deportation of foreign workers from their countries and the supervision of the workers inside the German Reich territory. Sauckel was appointed Plenipotentiary General for the Allocation of Labor by the Fuehrer Decree of 30 September 1942 (Document Number Gestapo-51). This decree gave him sole responsibility to take steps in all matters of Arbeitseinsatz inside the Reich as well as in the countries occupied by Germany. Thus in the course of time a number of offices were created in occupied countries which were all dependent upon the Plenipotentiary General or the German military administration. These offices had nothing to do with the organization of the Gestapo, since the hiring and transport of workers was not a police routine matter. The Arbeltseinsatz offices also had to organize the transports of laborers to the station from which they went to the Reich. The Security Police had merely to screen the workers who had already. been gathered, that is, the offices of the Security Police had to check the lists submitted to them by the labor offices to see that among the workers gathered there were none whose transfer to the Reich was not considered suitable for security reasons. The staffs of the Gestapo were so small in the occupied countries that they did not even suffice for the carrying out of routine police jobs. With a weak organization like that which was already overburdened because of its own tasks, it would have been impossible to carry out the hiring of foreign labor. Kaltenbrunner went on record to this effect at a conference of chiefs on 11 July 1944, and Sauckel did the same in a letter to Hitler of 17 March 1944 (Document Number Gestapo-53).
The witness Dr. Knochen, who was Commander-in-Chief of the Sipo and of the SD in France, has fully verified this for France. If on occasion members of the Schutzpolizel, that is, not members of the Gestapo, accompanied the transports of foreign workers simply to maintain order, this does not affect the fact that the responsibility for the entire action did not rest with the German Police, least of all with the Gestapo. There is not a single case known in which members of the Gestapo accompanied these transports.
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If in his letter to the presidents of the regional labor offices of 26 November, 1942 (USA-177) Sauckel says that the evacuation of Jews from the Reich and their replacement by Poles from the Government General had taken place "in agreement with the Chief of the Security Police and the SD," this does not in any way establish a participation by the organization of the Gestapo. The approval of the Chief of the SIPO and the SD was necessary for reasons of security only (compare Affidavit Number Gestapo-83).
To this subject witness Dr. Ehlich before the Commission, and witness Fromm in Affidavit Number SD-56, have stated that the responsibility for -these measures rested exclusively with the Higher SS and Police Leader in the Government General, and that the Security Police and the SD in the Government General in no way collaborated.
For the employment of labor at home, the Gestapo offices equally had no competence; this was up to the Gauleiter as plenipotentiaries I for manpower. However, the Police had a right to supervision and control in defense against espionage, and also to keep secret the establishments (compare evidence Sauckel). This means that the only task of the Police in connection with manpower imported into the Reich consisted of security measures.
As Sauckel has explained, the original task of the Gestapo in the field of the employment of foreign labor in the Reich was to counteract acts of sabotage by the foreign laborers. The offices of the Gestapo very soon could establish that acts of sabotage during work and in the plants were definitely only exceptions, in spite of the huge employment of foreign labor. These cases of sabotage which were submitted for action to the Gestapo as a rule were of a nonpolitical character. The local offices of the Gestapo, in addition to the executive treatment of the foreign laborers, could limit themselves to preventive measures. For the same purpose they were used to look after them, in which case they co-operated with the labor offices and the German Labor Front.
The offices of the Gestapo cared for the accommodation of the foreign, laborers, which was regulated by certain stipulations. They controlled the adequate provision of lodging in the plants. This control extended to the feeding, treatment in the plants, etcetera. Upon request by the Gestapo offices, the plants were enabled to acquire additional foodstuffs for the foreign laborers. The offices of the German Labor Front were kept informed by those of the Gestapo on the treatment of the foreign laborers, and particularly on the prohibition of maltreatment and similar excesses. In case of transgressions measures by the Gestapo against the employer or prosecution by the regular courts were threatened. In this connection I refer to the evidence given by Straub and Dr. Hoffmann.
It must be stressed that these measures were taken by the Gestapo on the basis of sober deliberations of the Police, because in this field as in any other the Gestapo as the political police was vitally interested in creating and maintaining conditions which would render unnecessary executive action against a large group of people, in this case, foreign laborers. This statement does not mean to describe the Gestapo as a "welfare association," but rather as a competent political police with foresight which desired the fewest possible number of repressive or punitive measures, and whenever possible desired to confine their scope to the very minimum.
For this reason the Gestapo was also concerned with the personal protection of the foreign laborers. It was in the habit of taking care of justified complaints. Court procedures were initiated against camp commandants, employers, and supervisors who maltreated foreign laborers or who exploited them unduly, or in accordance with the importance of the case, measures were taken by the Gestapo. Disloyal camp leaders of the German Labor Front and plant camps were given very severe court procedures (compare Affidavits Number Gestapo-65, 66, and 67).
By such police measures of a preventive character it was possible to limit to a minimum breaches of contract, shirking, and sabotage of work. if such measures yet had to be taken in consideration of the' increasing employment of foreign laborers, the following steps could be taken:
(3) Short term arrests up to 3 days, executed by the local police authority
(4) Corrective labor camp
(5) Concentration camp.
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The assignment to a concentration camp was applied for with the RSHA only in incurable cases and was the exception. In the case of recurring absence from work the laborer was sent to a corrective labor camp.
I shall continue on Page 50, approximately in the middle of the page.
It is correct that the Gestapo established and maintained corrective labor camps and that it was responsible for any commitment to them.
The purpose of a corrective labor camp is described in the periodical Die Deutsche Polizei (Document Number Gestapo-59):
"The purpose of the corrective labor camps is to educate in a spirit of labor discipline those who have broken their work contracts and those who shirk their duty, and to restore to them their old jobs after that aim has been accomplished. Any commitment is handled exclusively by offices of the Gestapo. To be there is not to be considered a punishment, but an educational measure."
It is incorrect to say, as the Prosecution has done, that only foreign laborers were sent to corrective labor camps. They had been established in the same manner both for Germans and for foreign laborers, and also for employers who had transgressed their rights towards their employees.
As the maximum length of stay-which was established after thorough investigation in each case-originally 21 days, later 56 days, was stipulated, in distinction to the verdicts of courts for breach of contract, which ranged from 3 months up to 1 year of imprisonment. Those who broke a contract and were committed to a corrective labor camp in every respect found themselves in better conditions than those who were sent to be sentenced by the courts. The commitment was not entered on the individual's court register of penalties, and, in general, shelter, feeding, and treatment in the corrective labor camps were also better than in the prisons. The food consisted of the regular prisoners' rations supplemented by the additional rations for heavy work; these rations were continuously submitted to inspection as far as quantity, quality, and taste were concerned, as is shown by Document Number Gestapo-58.
The daily number of calories amounted to 3,500 or 4,000, which is many times that of the ration which the German civilian population is allotted at present. The labor earnings were, after the costs of the camp had been deducted, sent to the, relatives. Maltreatment of the camp inmates was most strictly prohibited. (Document Number Gestapo-55, further Affidavits Number Gestapo-11 and 60.)
On the basis of these facts, it is not possible to characterize the supervision of the foreign laborers and particularly the establishment of and commitment to corrective labor camps by the Gestapo as a crime, much less a typical crime.
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Excesses by individual Gestapo members might have occurred in this field. But as little as one can blame all farmers if individual farmers should have maltreated their laborers, as little is it possible to hold responsible all of the Gestapo for the excesses of a few individuals.
The next link in the chain of major crimes of which the Gestapo is accused is the charge that the Gestapo and the SD executed Commandos and parachutists who had been captured, and protected civilians who had lynched Allied airmen. What can be said in this connection?
In Document USA-500-it is a secret order of the OKW of 4 August 1942 concerning countermeasures against parachutists the subduing of paratroopers is characterized as the exclusive concern of the Armed Forces, while the subduing of "individual parachutists" was transferred to the Chief of the Security Police and the SD. The latter's task did not consist in the execution of the parachutists. The transfer was to serve only the purpose of discovering possible sabotage orders on these parachutists and obtaining information about the intentions of the enemy.
On 18 October 1942 Hitler ordered the extermination of an Commando groups (USA-501). This order was directed not to the German Police but to the German Armed Forces. Article 4 of that order stated that all members of such Commandos falling into the hands of the Armed Forces should be transferred to the SD. Nothing can be learned about any part played by the Gestapo in these measures against the sabotage Commandos. If, however, the Gestapo did play a part in it, a task not in the character of a police task would have been transferred to it, and its execution cannot be attributed to the Gestapo as such since doubtless under any circumstances only a small number of individuals participated in it.
Besides, the following should be pointed out: as Rudolf Mildner stated in his affidavit of 16 November 1945-2374-PS-an order was issued in the summer of 1944 to the commanders and inspectors of the Sipo and the SD to the effect that all members of American and British Commandos should be turned over to the Sipo for interrogation and execution by shooting. This may be taken as a proof that, at least up to that moment, the Sipo had not shot any Commando groups, otherwise no need for this order would have existed. Mildner continues to say that that order had to be destroyed immediately, which means that only the commanders and inspectors of the Sipo could gain knowledge of it. On account of the invasion, which had started some time before, and on account of the relentless advance of the Allies into the interior of France, it was practically impossible to execute these orders, because there were no longer any officers of the Sipo left in the field of operations, which was being pushed back continuously. It is
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likewise improbable that that order, which presumably was issued by Himmler, ever became known to the bulk of Gestapo members.
Above all, the Prosecution rests its case on an order of Himmler of 10 August 1943 (Document USA-333), stating that it was not the task of the Police to interfere in controversies between Germans and bailed-out British and American terror fliers, and from this the Prosecution concludes that the Gestapo approved of lynch action. However, it is of significance that Himmler's order was addressed to all of the German Police, above all to the uniformed Order Police. For in the case of the bailing-out of Allied air crews, as a rule it was not Gestapo officials who made an appearance, but members of the uniformed Order Police, the Military Police, or the local Police. Only those branches of the Police were in charge of road patrols, not the Gestapo. As proved by the numerous affidavits, none of the Gestapo members were informed of this order, but rather learned of it only through the statements Goebbels made over the radio.
The evidence given by the witness Bernd von Brauchitsell, first adjutant to the Commander-in-Chief of the Luftwaffe, shows in a characteristic manner that that order was generally sabotaged. He stated:
"In the spring of 1944 the civilian losses through air attacks rapidly increased. Apparently this made Hitler issue orders not only for defense but for measures against the aviators themselves. As far as I know, Hitler advocated the most severe measures. Lynchings were to be permitted more liberally. The Commander-in-Chief and the Chief of the General Staff did, it is true, condemn the attacks on the civilian population in the sharpest terms, but yet they did 13,pt desire special measures to be taken against the aviators; lynching and the refusal to give shelter to the crews who had bailed out were to be rejected."
And his further statement is of particular importance; I quote:
"The measures ordered by Hitler were not carried out by the Luftwaffe. The Luftwaffe did not receive any orders to shoot enemy aviators or to transfer them to the SD."
Actually the Gestapo officials, in the few cases when members of the Gestapo were accidentally present after Allied fliers had bailed out, not only did not kill them but protected them against the population-compare Affidavit Number Gestapo-81-and if they were wounded they saw to it that the airmen were given medical care. The few cases in which higher Gestapo officials ordered and executed the shootings of crews who had bailed out have already found their just penalty before the courts of the
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occupying powers. To hold all members of the Gestapo responsible for them is not justifiable.
The next point of the Indictment states that the Gestapo and the-SEL brought civilians from occupied countries into Germany in order to place them before secret courts and sentence them there.
On 7 December 1941 Hitler issued the so-called "Nacht und Nebel" Decree. According to this decree persons who had transgressed against the Reich or against the occupying power in the occupied areas would, as a measure of intimidation, be taken to the Reich to be put before a' special court. If, for any reason whatsoever, this was not possible, the transgressors were to be placed in protective custody in a concentration camp for the duration of the war.
As may be seen from the distribution on Document 833-PS, this order was sent only to the offices of the Wehrmacht, not to those of the Gestapo-with the exception of Amt IV of the RSHA itself.
The execution , of this decree was a task of the Wehrmacht, not of the Gestapo. According to directives contained in Document 833-PS, it -was for the counter-intelligence offices to determine the time of arrests of individuals suspected of espionage and sabotage.
In the Western areas, for they were the only ones concerned here, this order was to be carried out therefore by the Wehrmacht, which exercised police power through its own men or those of the Security Police who were directly subordinated to the military commanders.
Only to that extent did the Security Police participate in the execution of this order. The Gestapo, which was numerically very weak in the occupied Western areas, was only involved to the extent that the RSHA established a Stapo office, which had to take charge of the arrestees. Through the Stapo offices, in agreement with the. competent counter-intelligence offices, the details of the deportation to Germany were determined, particularly whether transport was to be conducted by the Secret Field Police, the Field Gendarmerie, or the Gestapo. The Gestapo had no other tasks assigned to it by the "Nacht und. Nebel" Decree.
Just how active Gestapo officials or Gestapo offices actually were in the execution of this decree has not been determined in these proceedings: On the contrary, according to the testimony of' witness Hoffmann, it has been established that Amt IV rejected this decree and that it was not applied at all in Denmark, for instance.
As this decree was to be kept strictly secret, and as it emanated from the highest Wehrmacht office, we may assume with assurance~
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that only the most intimate circle of individuals, those charged with its actual handling, knew the contents of this decree and its significance. The officials of the Stapo offices charged with the transport received instructions to see that the arrestees were brought to a certain place in Germany without being told for what purpose or on the strength of what decrees the arrest had taken place.
If this were the case-other details have not been established you cannot hold the entire Gestapo responsible for the practice of turning over prisoners to some offices in occupied territory in order to take them under orders to Germany.
I shall omit the part dealing With the deportation of members of foreign states to Germany' for the purpose of convicting them under summary proceedings, and the arrest of next of kin, but' I beg the Tribunal to take judicial notice of it.
Another point of the Indictment concerns the arrest and punishment-which, as a rule, meant the execution-of the citizens of the occupied countries in summary proceedings.
We are only familiar with-the agreements which were reached in September 1942 between the Reichsff1hrer SS, the Reich Ministry of Justice, and the deputy of the RSHA (USA-218). They concern exclusively the peoples in the East. The last paragraph, Number 14, is the essential one in this agreement:
"We are agreed that in the future, in consideration of the aims pursued by the Government for the solution of the Eastern question, Jews, Poles, Gypsies, Russians, and Ukrainians shall no longer be sentenced by the regular courts.... These matters will be handled by the Reichsfuehrer SS.
This, of course, meant that the Reichsfuehrer SS had the last word, and that the final decision was his. The Police, foremost probably the Kreis and local Police and the Gendarmerie, carried on the investigation and then turned the matter over to the Gestapo. Individual Gestapo officials had to carry through investigations and to give their reports to the RSHA. They had nothing whatever to do with the decision itself. You can hardly expect individual Gestapo officials to check the legality and effect of measures agreed to and decided upon by the competent Reich authority, to pass judgment upon them and, finally, to refuse to carry them out. You cannot seriously expect the former of them, but neither could they oppose the carrying out of these orders without risking their own heads. I shall deal later with the question as to how far the vast majority of Gestapo officials had any knowledge at all of the incidents. Taking all circumstances into account I have reached the conclusion that the whole Gestapo cannot be incriminated under this point of the Indictment.
In addition, the Prosecution is making the Gestapo and the SD criminally responsible for the inclusion of next of kin. Two documents have been quoted as proof: A letter of 19 July 1944, written by the commandant of the Sipo and the SD in Radom (USA-506), and the files on the deportation of Luxembourg citizens to the concentration camp at Sachsenhausen in 1944 (USA-243).
The latter incident does not apply in the case of liability of kin. It deals with a directive issued by an Einsatzkommando in Luxembourg to retain certain individuals in the concentration camp at Sachsenhausen giving the reason that they were relatives of deserters and that it was to be expected therefore that they would "harm the interests of the German Reich if they were permitted to remain free." From this we can see very clearly that in this case relatives were not to be affected because they were to be held jointly liable and because they were to atone jointly for the misdeeds of certain among their relatives, but solely and alone because the relatives themselves were a threat to the security of the Reich.
However, a case of true liability of kin clearly appears in the first-mentioned Document USA-506. The directive contained therein can be traced back to a decree of the Reichsfuehrer SS, who bad ordered, in all cases where attempts had been made on the life of a German, or where saboteurs had destroyed vital installations,
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that not only was the perpetrator himself to be apprehended, but, over and beyond this, that all male members of his kin were to be executed as well as himself, and that the female members of his kin over 16 years of age were to be put into a concentration camp. In addition, the document contains a reference to certain practices which already existed in the new Eastern territories at the end of 1939, especially in the Warthegau, practices which "had shown the best results". Whether such practices actually did exist was never made known. In line with the custom of the rulers of the Nazi System which we have learned about in other ways, it -is quite possible that this was devised for purely propagandistic purposes.
I shall not concern myself with matters of penal-political significance and admissibility of the liability of kin, its history, and its application by the various nations. I would not dream of defending the theory of the liability of kin, which I consider immoral. It is possible for me to refer to this matter in two different ways.
Innumerable German families have to suffer most severely because the head of the family had been a member of the Hitler party. Their living quarters are requisitioned, household equipment is confiscated, arrests and similar measures are carried through without regard for the innocent members of the families, and they concern in particular the women and children, regardless of whether they had been most hostile to the Nazi regime. Is that not liability of kin?
And one more point: if it is expressed in the introduction of an order by the Higher SS and Police Leader of 28 June 1944 (US-506) that
"The situation with regard to security in the Government General during the last few months has deteriorated to the extent that hereafter the most radical means and most severe measures must be applied against assassins and saboteurs of foreign nationality,"
and if at the end of the same order mention is made of the preventive influence of such proceedings, then this shows that the measure under consideration is intended as the last resort to protect the security of the Reich against a serious menace.
It is not necessary to examine here to what extent the measures ordered because of a Reich state of emergency lose their criminal character; for how can a little executive official be in a position to recognize the illegal character of such action %#hen his superiors described it as a state necessity, and when he daily was threatened by terrorist attacks from ambush, and thus continuously endangered. How might and how could the individual oppose the execution of an order given by the highest authorities who would not take any "buts" or "nos"? Finally, we have to state that the above order of 28 June 1944 is the only case where in occupied territory the liability of kin was ordered as a means of defense against assassinations.
As far as the Gestapo is concerned, one should add that the execution of the orders about the liability of kin rested not so much in the hands of the Gestapo as of the Kripo, and of the outposts of the Armed Forces stationed in all major localities.
As far as the competencies of the Gestapo were concerned, there does not exist any general regulation which would have provided the basis for the use of relatives as a measure of atonement, and actually the order of the commander of the Sipo and of the SD at Radom of 19 July 1944 (USA-506), which has been quoted here repeatedly, does not mention the Gestapo at all.
As one learned from news and radio reports, relatives are supposed to have been arrested in conjunction with the happenings of 20 July 1944, and in accordance with an order of Hitler. However, it is known that Himmler in each case reserved for himself the right to issue orders for next-of-kin liability.
From these statements, you may conclude that for the crime called liability of kin, not all of the Gestapo can be held responsible.
The next point of the Indictment concerns the killing of prisoners upon the approach of Allied troops.
As a basis for this charge, Document USA-291 of 21 July 1944 has been submitted. It is an order by the commander of the Sipo
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and the SD for the Radom district through which he informs his subordinates of the order of the Chief of the Sipo and the SD in the Government General, that in the case of unforeseen developments, which would make the transfer of prisoners impossible, they should be liquidated.
The questions to what extent these or similar orders have existed or were known elsewhere, and to what extent such orders were carried out and the essential question for me to consider, namely, the participation of the Gestapo in them, have not been clarified. On the basis of the affidavits before me, and the statements by the witnesses Straub and Knochen, the Gestapo only in a few places had prisons of its own. As a rule, there existed only one police prison to be used by all local police branches. The administration and supervision of these police prisons were always the tasks of the local police administrator; in the occupied territories it was partly the task of the Armed Forces. At any rate, the Gestapo had no right to interfere with the conditions in which the prisoners found themselves. Therefore, it is unlikely that the Gestapo would have carried out the killing of prisoners upon the approach of the enemy. On the other hand, it has been established with certainty that in many places the prisoners were either dismissed or handed over to the Allied troops when they occupied the locality (compare Affidavits Gestapo-12, 63, and 64).
May I be permitted to dwell on two cases which came up during the proceedings: the witness Hartmann Lauterbacher has given evidence concerning an order in accordance with which the inmates of the prison at Hamelin in Westphalia were to be killed upon the approach of the enemy. The person who issued the order behind the back of the Gauleiter, however, was not a Gestapo official, but the Kreisleiter of Hamelin who, for doing so, was sentenced to 7 years' imprisonment by the 5th British Division, and those who were to execute that order were not Gestapo officials, but prison employees who, however, refused to carry it out.
The second case concerns the camps Muhldorf, Landsberg, and Dachau in Bavaria. I refer to the evidence given by Bertus Gerdes, the former Gaustabsamtsleiter under Gauleiter Giesler of Munich (USA-291). It states that in April 1945, the inmates of the Dachau Concentration Camp and of the Jewish labor camps Muhldorf and Landsberg were to be liquidated; that means to be killed by order of Hitler. It is certain that the order was not given to the Gestapo and, above all, that neither of those actions was carried out owing to the refusal on the part of the Luftwaffe and the witness Gerdes-for their exoneration this must be stated here. Thus, at least in this case crimes did not take place, which by their frightful planning alone shock our deepest feelings. What is of importance for the
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organization of the, Gestapo, which I represent, is something to which it is my duty as its counsel to draw your attention: the order was given to the competent Gauleiter in Munich, who was to discuss it with the head of the Gau Staff and the competent Kreisleiter. 'Never was there any mention that the Gestapo should be used far its execution.
I beg the Tribunal to take judicial notice of the next point, the confiscation and dividing up of public and private property.
The Prosecution furthermore allege that the Gestapo and the SD participated in the confiscation by force and distribution of public and private property.
Two facts particularly are quoted in this connection: the confiscation of all personal property, even the clothing of those persons executed in the process of the extermination program for Jews and Communist functionaries, and further, the confiscation of scientific, religious, and art objects of high value.
If, in the document submitted by counsel for the Sp, Number SD-58, the confiscation of some articles by the Gestapo on behalf of the Reich is mentioned, then this was done on the basis of legal regulations which not only empowered the Gestapo to carry out such action, but, in fact, made it their duty.
The confiscation of personal property was carried out in connection with the execution of the persons in question by the Einsatzkommandos. An argument favorable for the total structure of the Gestapo, which must be quoted in this connection, must be what I have already said regarding the activity of these Einsatzkommandos.
As is known, the Einsatzstab Reichsleiter Rosenberg was responsible for the rounding-up of cultural property, scientific material, scientific establishments, e t c e t e r a, in the occupied territories.
I refer you to Documents Number Gestapo-58 and 59.
As becomes apparent from a document presented by the Prosecution, USA-371, a letter from Rosenberg to Bormann dated 23 April 1941, confiscations were to be carried out by the SD or the Police. The letter expresses the wish that the Police are to deal only with such matters as are of importance for the task of the Police, but that scientific work and certain articles are to be surrendered to the Einsatzstab Rosenberg. The Gestapo is never mentioned at all. It is not by any means certain, therefore, whether members of the Gestapo did participate in those actions. It is for that reason that any implication of the Gestapo as a body must be denied, apart from the fact that it can hardly be proved against any Gestapo officials who may have participated that they acted in full realization that they were committing a criminal deed. For the sake of completeness I only wish to point out at this point that for the carrying out of the instructions for the confiscation of furniture and art treasures in France and other Western territories, to be applied in the case of persons who had not returned to their houses, Gestapo officials were not employed at all, which becomes clear from the testimony of witnesses Dr. Knochen and Straub.
The Prosecution accuse the Gestapo of having employed third-degree methods of interrogation. I-have already spoken about this when I discussed the question whether the methods employed by the Gestapo were criminal. At this point I have the following to say with reference to this accusation:
The documents submitted by the Prosecution made it perfectly clear that it was only permissible to employ third-degree methods of interrogation in exceptional cases, only with the observance of certain protective guarantees and only by order of higher authorities. Furthermore, it was not permissible to use these methods in order to extort a confession; they could only be
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-employed in the case of a refusal to give information vital to the interests of the State, and finally, only in the event of certain factual evidence.
Entire sections of the Gestapo, such as the Counter-Intelligence Police and Border Police, have never carried out third-degree interrogations. In the occupied territories where occupation personnel were daily threatened by attempts on their lives, more severe methods of interrogations Were permitted if it was thought that in this manner the life of German soldiers and officials might be protected against such threatened attempts. Torture of any kind was never officially condoned. It can be gathered from the affidavits submitted, for instance, Numbers 2, 3, 4, 61, and 63, and from the testimonies of the witnesses Knochen, Hoffmann, Straub, Albath, and Best, that the officials of the Gestapo were continuously instructed during training courses and at regular intervals to the effect that any ill-treatment during interrogations, in fact any ill-treatment of detainees in general, was prohibited. Violations of these instructions were in fact severely punished by the ordinary ,courts, and later by the SS and Police Courts (see Affidavit Number Gestapo-76).
Then I beg that official notice be taken of the subsequent pages.
Implicating testimony in this respect from the witness Rudolf Hoess, USA-819, the Camp Commandant at Auschwitz, has been credibly rectified by witness Rudolf Mildner, the former Chief of the Gestapo Main Office Kattowitz. He has stated under oath (see Affidavit Number Gestapo-28) that a Stapo or Kripo criminal official had been posted with every main concentration camp, who had clearly defined orders, none of which included third-degree methods of interrogation.
The witness Rudolf Bilfinger, too, until the end a higher official in the services of the RSHA, has stated under oath that he had no knowledge whatever of an order according to which ill-treatment during' interrogations had been permitted, let alone carried out; and that also during his stay in France, in 1943, he had gained no knowledge of any ill-treatment carried out by the German Ponce. He only heard of ill-treatment by groups of Frenchmen who acted on behalf of some German agency in carrying out some task. On the other hand, other witnesses and affidavits have stated that 111-treatment had been carried out by the Gestapo. Dr. Gessler, the former German Reichswehrminister, has spoken of tortures which he suffered during his detention at the' hands of the Gestapo, and which are supposed to have taken place on explicit orders of Hitler. Freiherr von Weizsacker, the former German Ambassador at the Vatican in Rome, has generally answered in the affirmative the question put to him by the prosecutor whether he knew that the German Police had left behind in Italy a record of terror and brutality.
I believe that I may draw the following conclusion from the contradictory testimonies of witnesses:
Apart from certain legally admitted types of more severe interrogations which were subject to the strictest rules and regulations, ill-treatment, torture, and the inflicting of pain were not only not permitted, but expressly prohibited under the threat of the severest penalties. If they have nevertheless occurred, and even in comparatively large numbers, then we are here concerned with excesses on the part of individuals, in which connection it must be taken into consideration that towards the end of the war there were more nonpolicemen serving in the German Police than policemen. Numerous sentences passed by SS and Police Courts, which have been confirmed by witnesses, prove that strictest proceedings were instituted against any such excesses. Even if such , excesses may have taken place in numerous individual instances, the murmurs and whispers around the Gestapo, of which Heydrich has spoken, must have increased their number too.
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Furthermore, knowledge of such excesses was not widespread, as asserted in the evidence to the contrary given by witness Dr. Gisevius who, according to his own admission, has worked for a whole 4 months for the Gestapo, one of several reasons why his testimony cannot be regarded as valuable.
(c) Crimes against Humanity.
The Prosecution alleges that the Gestapo, together with the SD, had been the foremost instrument for the persecution of the Jews. The Nazi regime was said to have considered the Jews the chief obstacle to the "Police State" by means of which it had intended to pursue its aim of aggressive war. The persecution and extermination of Jews is supposed to have served this aim too. The National Socialist leaders had regarded anti-Semitism as the psychological spark to inflame the populace. The anti-Jewish actions had led to the murder of an estimated 6 million human beings.
Truly a shattering accusation! What has been unveiled during this Trial, and confirmed by the witnesses Hoess and Ohlendorf, forms the basis of a guilt which, unfortunately, will forever adhere to Germany's name. Yet what must still be examined after these sad facts have been ascertained is the question as to the extent to which the Gestapo participated in the persecution and extermination of the Jews. An appreciation which will lead to correct results is only possible if a differentiation as regards time is made concerning the activity of the Gestapo.
After the seizure of power, the Hitler Government published a number of penal laws concerning the Jews. As far as these legal regulations contained penal clauses possibly necessitating the employment of force by the Police, the Gestapo may, under certain circumstances, have been connected with them. Infringements of such penal laws by Jews were comparatively few, and only the Nuremberg Laws announced in 1935 caused increasing police activity, in which however, during the first period, every case was handed to the proper courts for the passing of proper sentences. A change only occurred in the last years of the war. That the Gestapo began to act in these cases cannot be held against it; because it, too, had to comply with the existing laws of the State, that is to say, it had to obey the orders of the State just as the soldier must obey his orders.
Apart from that, other administrations, such as the Administration of the Interior of the Reiel-4 the Finance Administration, and the Municipal Administration, to a much larger degree than the Gestapo, became active against the Jews, that is to say, regarding their personal legal status as well as their property, houses, and so forth-yet those administrations are not being accused here.
-Through the excesses of November 1938, the Jewish -problem became considerably more acute. It has been ascertained beyond doubt that this revolting action did not originate with the Gestapo.
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In fact, the Prosecution implicates the Gestapo only to the extent that it did not intervene. Information on this point is contained in, the testimony of the witness Vitzdamm, according to which during the conference on the evening of 9 November 1938 in Munich, with Gestapo chiefs present, Heydrich declared quite openly that this action did not have its origin in the Gestapo. Over and above this, he explicitly forbade the Gestapo to participate in the action, and gave instructions to the Gestapo chiefs present to return *0 their departments at once and take all steps to stop the action. The contradiction contained in this testimony and the contents of Heydrich's teletype letter sent to all Gestapo departments during that night (Document USA-240), can be explained by the fact that between this conference of Heydrich's with the Gestapo chiefs and the issuing of the order, a development had taken place which could only be restrained but no longer stopped. When the Gestapo offices received Heydrich's circular, the holocaust of senseless destruction had already swept over Germany. Nothing remained to be done but the prevention of further excesses; and that was done.
In this connection I refer also to Affidavit Number 5 which has also been submitted by counsel for the SS, stating that Himmler himself had dictated the order to the Gestapo offices and revealed his conversation with Hitler, from which one learned that Hitler had ordered the safekeeping of Jewish property and the protection of the Jews by the Gestapo. As shown by the evidence given by the witness Vitzdamm and as proved by numerous other affidavits, this order was carried out everywhere. I refer to Affidavits Number Gestapo-5, 6, 7, and 8.
The arrest of 20,000 Jews which followed the excesses was caused by Himmler (Document USA-240), and was as a rule carried out by the Kreis and local police authorities. The overwhelming majority of the Jews, however, were not transferred to concentration camps and were gradually released. This is proved by Affidavit Number Gestapo-8.
For the first time, the Gestapo was burdened with a task foreign to its nature by the arrest of the Jews in November 1938. The Gestapo-as shown by the evidence given by the witnesses Best and Hoffmann-would never have carried out or suggested these arrests, which were considered unnecessary from a police point of view. The fact that the arrested Jews were soon discharged justified the assumption of the Gestapo officials that it was but an isolated operation and not the symbol of worse things to, come.
The Jewish question, which the National Socialist administration had made a point of its program, was originally to have been solved by the emigration of the Jews. For this reason, in 1938, there had been founded in Vienna the Central Office for Jewish
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Emigration which succeeded in facilitating the emigration of a large' number of Jews. During the war, too, emigration continued according to plan, as shown by Documents USA-304 and 410. , In addition to that, evacuations of Jews carried out in accordance with a detailed decree of the Chief of the German Police were undertaken. On the basis of that decree the, local Stapo offices had to prepare the evacuation and to co-operate with the Jewish communities. Their tasks included in particular the equipment of these evacuees with clothing, shoes, tools, et cetera. In most cases the transports were not accompanied by Gestapo officials, the personnel being composed of members of the Security Police, the Criminal Police,- and Gendarmerie. The destination was not announced in most cases. The evacuations were carried out without friction and unnecessary harshness.
From a humanitarian point of view one might well regret those evacuations of Jews most profoundly; yet the part played by the Gestapo in them consisted in carrying out the decrees and orders 4originating from higher authorities. Actually, the competency of the Gestapo in regard to the Jewish question by no means had the importance generally attributed to it. In the Jewish department of the Gestapo, both in the RSHA and in -the individual Gestapo -offices, only a very few officials were employed.
In 1941 Himmler decreed that the Jews in Germany should be isolated in ghettos in Poland. This resettlement of the Jews was the task of the Higher SS and Police Leaders and was carried out by the Order Police.
if Hitler's policy regarding Jewry up to 1941 aimed only at the elimination of the Jews from Germany by emigration, and later by evacuation, it became increasingly harsh after America's entry into the war. In April 1942 Hitler ordered the "final solution of the Jewish question," that is, the physical extermination, the murder, of the Jews. The proceedings have shown in how terrible a manner this order was carried out. The tool which was used by Hitler and Himmler -for the carrying out of that order was SS Obersturmbannfuehrer Adolf Eichmann who with his department was attached to the organization of Amt IV of the RSHA; however, he actually had an entirely independent and autonomous position,' which above all was wholly independent of the Gestapo. The preparation and carrying out of the order for the murder of the Jews was kept strictly secret. Only a few persons knew the order to its full extent. Even the members of Eichmann's office were left ignorant of the order and learned' of it only gradually. The evacuation and transfer to the extermination camps was carried through by Eichmann's Sonderkommandos. They were composed of indigenous police and of almost exclusively Order Police. The Police
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were not permitted to enter the camps but were relieved- immediately -upon arrival at the station of their destination. In the camps the circle 'of persons carrying out the murder orders was kept small. Everything was done to ' conceal the crimes., This description, based essentially on the evidence of the witnesses Knochen, Wisliceny, and Dr. Hoffmann, is supplemented in a surprising fashion by the evidence of Dr. Morgen. He declared that three persons were charged with the extermination of the Jews: Wirth, Hoess, and Eichmann.
Wirth, the former Criminal Commissioner of the Criminal Police in Stuttgart, known as "the murder commissioner with unscrupulous investigation methods," had, for his special task, his headquarters together with his staff in Hitler's Chancellery. His task W4s. at first the., mass extermination of insane persons in Germany, then, secondly, the extermination of Jews in the Eastern countries. The Kommando which was set up by Wirth himself for the purpose of exterminating Jews was known as "Aktion Reinhard," and was extremely small. Before the beginning of the action Himmler personally took the oath from the members and declared explicitly that anyone who should say anything about the action would be put to death. This Kommando Reinhard was independent of any police office. It did not belong to the Gestapo, and it wore the uniform and carried the credentials of the Security Police only in order to allow its members free circulation in the rear of the Armed Forces. The Kommando started its activities with the extermination of Jews in Poland and later extended its diabolical work over the other Eastern territories, by setting up special extermination camps in inconspicuous places. By a hitherto unknown. system of deception it allowed these camps to be run by the Jews themselves. The fact must be stressed that it was the Security Police of Lublin which reported Wirth!s misdeeds to the Reich Criminal Police Office and thus brought these hideous crimes to light. This fact corrects the testimony of Hoess, who declared that the extermination camps of Maidanek and Treblinka had been operating under the orders of the Security Police. In fact, they had been operating under Wirth.
According to Dr. Morgeri's testimony, Auschwitz was made a center of mass extermination of Jews by Hoess at a later date. Because of his methods, he is said to have been called an untalented pupil by Wirth.
According to Dr. Morger3!s testimony, the organization, Eichmann was separate from these two Kommandos. Its task consisted in deporting the other European Jews to the concentration camps. According to witness Wisliceny, Eichmann, by reason of the full powers accorded to him personally, was also personally responsible
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for the carrying out of the extermination order. He established special Kommandos in the occupied countries. Though economically under the Chief of the Security Police, they could not take any instruction or orders from him.
Both organizations, 'Eichmann's and Wirth's, were then amalgamated, but this was done in such a way that only very few people in Eichmann's immediate circle knew about it. In this way, and furthermore by the use of Jewish collaborators, the knowledge of these killings was restricted to a very few Germans and thus the secret was kept.
The declarations of witnesses and affidavits might diverge as to the details in the organization of the extermination program, but one thing is clear beyond any doubt: the Gestapo as a whole did not participate in this horrible mass murder and, with very few exceptions, could and did not know anything about it. The few leading persons who knew about it, such as Eichmann, Miller, Himmler, kept strictest silence about their tasks and intentions and they took their secret with them to the grave. This is confirmed most clearly by Dr. Morgen's testimony. For how could the limitation of knowledge to the above-mentioned group of persons be made more evident than by the fact that the Criminal Police itself started investigations and discovered the crimes, and that even the Chief of the Security Police and Nebe were greatly surprised, while Muller seemed to have known, as indicated by his behavior. This being the case how can it be assumed that the minor Gestapo official knew about the secret?
With regard to* the persecution of the Church and the shooting of hostages by the Gestapo, I ask you to take note of the statements in the plea.
Finally the Gestapo is accused together with the SD of having been leading bodies in the persecution of the Churches.
Here it must be said, first of all, that the Gestapo was not entitled to take the initiative in any discussions on matters of internal policy. It was confined exclusively to the carrying-out of existing legal provisions. These legal provisions do not proclaim that the Churches should be persecuted because of their religious undertakings, but that the abuse of the pulpit for attacks against the State should be stopped and that action should be taken against individuals.
These legal provisions were the so-called "Pulpit Paragraph", Number 130a of the Reich Criminal Code, which goes back to Bismarck, and a police decree of the Prussian Prime minister, dated 1934, which forbids the Churches any political activity.
To enforce existing laws has hitherto never been made a reproach to police authorities of any country. The question is whether the average official of the Gestapo could realize that the policy of his government against the Church's pursued criminal aims.
I beg to refer to Affidavits Number Gestapo-43, 44, 57, 58, and 59 to show how far the charge against the Gestapo concerning the attacks on the Churches was unjustified. I refer also to Affidavits Number Gestapo-42, and 91 which describe how the so-called Crucifix Decree, that is a decree issued by a Provincial Government, was not only not supported by the Gestapo but on the contrary almost prevented by it.
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In the procession of gloomy instances we saw also shooting of hostages. The whole of the Security Police, Gestapo included, had nothing to do with shooting of hostages. They were ordered by the Higher SS and Police Leader and executed by the Order Police.
Furthermore, it must be pointed out that here we are almost exclusively concerned with people who had already been sentenced to death by court-martial; I refer to Affidavits Number Gestapo-9, 71, and 90, and the testimonies of Dr. Knochen, Straub, Dr. Hoffmann, and the Defendant Seyss-Inquart. It is a matter of course that, with reference to all executions undertaken on the basis of a court judgment the Gestapo indictment does not apply.
I have now dealt broadly with the individual crimes of which the Gestapo as a collective organization has been accused by the Prosecution. As to the question whether the crimes, as far as they were committed by men of the Gestapo, have to be imputed to the Gestapo as a whole, I finally come to the following conclusion, so far as it has not been arrived at before when dealing with the individual crimes:
The Gestapo was a public Reich authority bound in its aims and activity to the existing laws. The fact that the Gestapo officials, during the 12 years of the existence of that institution, essentially carried out quite normal police work is not sufficiently taken into consideration. The working day of most of the Gestapo officials was occupied with official business which had no connection with the crimes alleged here. Third-degree interrogations were only carried out by a small fraction of the officials; the decree concerning that was in the safe of the office chief and marked "Top Secret." However, sections of the Gestapo officials, by the exploitation of the traditional duty of obedience, were used by the highest government offices for measures which went beyond the actual aims of the Gestapo. And here it is of decisive importance that only a small part of the Gestapo officials participated in these tasks, which were alien to their police duties. As the most serious charges against the Gestapo are in connection with its activity in the occupied territories, it follows that only a comparatively small percentage, at most 15 percent, of the executive officials can be accused, but not the Gestapo as a whole.
Regarding this question, according to the general consensus of opinion it is of special importance to know whether the aims, tasks, and methods of the organization or group were public knowledge. Publicity, or in other words, general knowledge, must include two things: knowledge of the objective facts of the criminal action and knowledge of the illegal and criminal character. Judgment as to whether this dual knowledge existed must be based on common sense. What can be assumed if the individual members of the organization were told nothing of the criminal incidents?
I wish to make a few fundamental additions to what I have already said about the individual crimes. The reason why the
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Gestapo as a whole had no knowledge of the capital crimes committed lies in the following: Hitler from the beginning knew how to surround himself with a veil of secrecy, to conceal his true intentions, to see to it that no minister and no department and no official learned too much from any other. The well-known Fuehrer Order Number 1, which was submitted as Document Number Gestapo-25, is only the actual confirmation of a long-established practice.
Taking into consideration the demonic influence which emanated from Hitler, the feeling of inviolability of all his orders explainable only by the demonic aspect of his character-and the fear of the serious consequences to life and limb in the event of failure to carry out a so-called Fuehrer Order, is there any wonder that this secrecy order was scrupulously observed?
Thus, it is really not incredible that almost all defendants and witnesses examined here have actually only now learned of all these heinous crimes. It is significant that, for example, the driver of a special vehicle was condemned to death by the SS and Police Court in Minsk because in an intoxicated condition he had spoken about the purpose of the vehicle against his orders (Affidavit Gestapo-47). Even Dr. Gisevius had to admit that Heydrich endeavored to keep his actions secret, and the Defendant Jodl characterized the system of secrecy in the most striking manner when he said that secrecy was a masterpiece of Hitler's art of concealment and a masterpiece of deception by Himmler.
It is a recognized legal principle that ignorance through negligence is not sufficient in case of crime; therefore, in order to declare an organization criminal, it is necessary for the members of the organization actually to have known of and approved the criminal aims and methods. That, however, is not proved in our case, and cannot be assumed from all the facts established during the Trial, no matter how strange an assumption to the contrary may seem in retrospect today to one who cannot appreciate conditions in Germany. With regard to the question of whether the terrible crimes which actually were committed are to be imputed to the Gestapo as a whole, the further fact must not be disregarded that the members of this organization did not - act on their own initiative but on orders.
Those, concerned contend, and can prove by witnesses, that if they had refused to carry out orders received, they would have been threatened not only with disciplinary proceedings, loss of civil service rights, and so forth, but also with concentration camps, and, in case of war assignments, with court-martial and execution. Do they thereby invoke a reason for exemption from guilt?
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This question must be examined with regard to the so-called "duress induced by official duties," which is -not recognized in written law. On the other hand, it represents a concept which cannot be dispensed with in legal life. Where the written law is not adequate, as when a state of emergency exists, sensible and practical considerations must fill the gaps. Public opinion approves this, and legal administration and jurisprudence have recognized the so-called extra-legal -state of emergency as a reason for exemption from guilt. It is true that cowardice is not a virtue; but it is equally true that heroism and martyrdom in the world of human beings are the exception. Should the Gestapo members form this exception? Could one, from a purely human point of view, really expect them to take upon themselves loss of livelihood, finally suffering, concentration camp, and perhaps even a shameful death? Besides, the members of the resistance movement in the occupied territories, in their killing of members of the German occupation forces, again and again referred to orders from their superiors and to the duress imposed on the terrorists who came under these orders.
Therefore in our case, too, I would consider without hesitation that there was actual danger to life and limb for the perpetrator within the meaning of Article 54 of the German Criminal Code. Here there existed what Mr. Justice Jackson called "physical compulsion."
Moreover, in Germany every civil servant was and is trained in the conception of the strictest obedience to orders and instructions from higher authority. Perhaps more than anywhere else in the world the civil servant in Germany is imbued with the spirit of authority. He was trained in the attitude, correct in itself, that a state will break down if the orders issued by it are no longer obeyed, and that the denial of governmental authority has its logical result in anarchy.
Added to this deep-rooted attitude was the devilish atmosphere which by hypnotic power turned particularly the small officials into tools without a will of their own. All of these motives were added to the threat emanating from the very nature of the occupation and they all combined to create a duress so oppressive that the Gestapo official no longer retained the freedom of will to examine a criminal order as to its legal and moral value and to refuse obedience. Taking these considerations into account these proved crimes cannot be charged to the whole of the Gestapo in such a manner as to declare the Gestapo criminal.
The prosecutors state-and this is the very basis and aim of the Indictment-that the crimes were not isolated acts committed independently of each other, but rather parts or aspects of a criminal policy, either as part of a common plan or as a means
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of carrying out that ' common plan. The contention is that this very plan was directed towards the unleashing and waging of -an aggressive war which in its beginning had no definite aim, whereas later the aim of that war became the enslavement of Europe and the peoples of Europe in order to gain living space. Everything important that was carried on within that conspiracy, characterized as such by the Indictment, is described as having had only one aim and purpose, to secure for the Nazi State a place in the sun and to push all internal and external adversaries into the outer darkness. The essential point of the individual crimes was the intentional participation in the planning and carrying out of the plan. The crime of the individual consisted in his having joined the common plan of the conspiracy. It was claimed that plan and purpose of the conspiracy were generally known. Therefore, no one could claim that he acted without knowledge of the conspiracy.
These contentions of the Indictment aim above all at the individual- defendants, but presumably they are also valid for the indicted organizations. It is claimed that the role played by the Gestapo within the conspiracy consisted in' aiding the Nazi conspirators to create a police state set up to break all resistance and to exterminate Jews and faithful Christians, as well as politically undesirable persons, as the main elements of the resistance movement; furthermore, to enslave the employable inhabitants of foreign countries and to eliminate and suppress by cruelty and horror all those who might resist the German lust of conquest within the Reich or in the conquered territories.
If we examine again the individual crimes as to whether they are to be considered as having assisted the crime of conspiracy against world peace, it is desirable that the activity of the Gestapo before the war and during the war be studied concerning the characteristics mentioned. Without repeating myself unnecessarily, I believe I can state that the duties and methods of the Gestapo before the war were a manifestation of a State institution existing in all civilized countries which cannot be imagined apart from the State; its existence, therefore, in no way infers the planning of an aggressive war or any other conspiracy against world peace. The individual Gestapo official fulfilled his duty as he had learned to do as a civil servant. Equally,- in the upper strata of the political police it is unlikely that any other thought would have prevailed than to guarantee peace and security within the State. One must not identify the Gestapo with such superiors as Himmler and Heydrich, whose knowledge and actions were alien to the Police. If these men acted only from the political point of view their subordinates cannot be blamed for it. Taking into account the
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well-known system of secrecy, the individual Gestapo official and the overwhelming majority of all Gestapo members could not have had the least idea that their work was aimed at preparing a war of aggression and helping to create the basis for it. I believe that no Gestapo official hearing that contention or asked whether he had knowledge of the attack on world peace would even understand the question.
The Gestapo as a whole can only be charged with responsibility for the crimes committed by members of the Gestapo during the war when those crimes-apart from the general knowledge of them-were committed with the knowledge that they formed part of a plan to bring the war of aggression to a victorious end at all costs, and by using means which were criminal in themselves and which conflicted with international law. That cannot be proved either. The preliminary condition would again be that the Gestapo officials who participated in the crimes knew that the war which we waged was a war of aggression. Now, we all know that a perfectly-organized propaganda which reached even the remotest hamlets never spoke of the war except as something forced upon us criminally, and that Hitler himself always spoke of the war which others wanted and not we ourselves. It may have happened that some intelligent individuals who, had not entirely lost their soundness of judgment did have their doubts and may have thought vaguely that our Government was not altogether blameless in regard to this war which had been forced upon us; but since the opposite is more likely, it is impossible to assume the existence of this suspicion or certainty to any appreciable degree in the minds of all the members of the Gestapo.
The Prosecution assumes-quite unjustly, in my opinion-that every activity of the Party, above all its fight against the Jews, against its political opponents, and against the Churches, arose out of the intention and plan to eliminate all tendencies standing in the way of the war of aggression it proposed to wage. The National Socialist struggle against Jewry sprang from the doctrine of anti-Semitism which had become part of the Party program and which saw in all Jews an element destructive to the State. Because this fight was an immoral one .. the Christian Churches rightly protested against it. This again explains to a great extent the fight between Party and Church. The steps taken by the Party against its political opponents-especially against the Communists-were, in all probability, taken in the first place for the purpose of maintaining and protecting the State; mi any case, that was the way in which the German people-and therefore the Gestapo officials-regarded the state of tension which existed. It did not occur to anyone to see in this the influence of a conspiracy against world peace.
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One last point, however-perhaps the most profound-must not be overlooked in this connection. The German soldier, the, German civil servant, the German working man, and every German man knew that the world had placed us in a situation which meant a life-and-death struggle. In the course of the war it gradually became appallingly clear that it was a question of existence or extermination. Indeed, you would be misjudging the soul of the German people if you overlooked the fact that every decent German, when he realized this horrible truth, felt himself under an obligation to do everything which was expected of him in order to save his country. And when we judge the behavior of the German people and its political police we must take these factors into consideration in order to do them justice.
The Prosecution have stated that the Court is in a position to restrict its decision with regard to the collective guilt of the organizations-both in regard to certain subgroups and in regard to time. The organizational structure, the variety of the groups of individuals active within the Gestapo, and the results of the evidence presented in reply to the Prosecution's assertions concerning the criminal activities of the Gestapo, form the basis for a possible limitation in regard either to persons or to time-which I should like to have taken into account, should the High Tribunal arrive at a verdict of "guilty." Criminal participation in the crimes listed under Article 6 of the Charter can certainly not be imputed to the following groups of persons, for they neither committed crimes themselves nor did they plan to commit them, much less. actually commit them collectively, nor could they have had knowledge of criminal plans and activities-and they certainly never did have such knowledge.
(1) Administrative Officials. They did not receive their practical instructions from the office of the Secret State Police or from. Amt IV of the RS11A, but from Amter I and II of the RSH& whose members are not affected by the charges raised against the Gestapo. The rooms occupied by the administrative offices were never in the same place as those of the executive officials. Administrative. officials had no insight into the activities of executive officials partly because of the secrecy obligation which has been mentioned many times and which was observed particularly strictly in the Gestapo, partly because the administrative officials were looked upon by the executive officials as merely nominal members of the, Gestapo and were treated with marked reserve.
The difference in designation, such as Police Inspector for police administrative officials and Criminal Inspector in the case of the executive service, must be pointed out in order to stress the fundamental difference between these two categories of officials.
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When the Prosecution argues that the activities of the administrative officials constituted the prerequisite for the activities of the executive, this argument is as ineffective as though I were to argue that the activities of the officials of the Reich Finance Ministry, which secured funds for the salaries and other expenses of the Gestapo, was the cause of the activities of the executive officials.
(2) Employees and wage earners. Mr. Justice Jackson, in his speech of I March 1946 ' excepted two groups of persons from the Indictment against the organizations; firstly, the SA Reserve and, secondly, the office employees, stenographers and servants of the Gestapo. A section of the groups of persons which I have dealt. with are thereby already excepted from the Indictment, but I deem it nevertheless my duty to point out that this group of persons, both on account of their subordinate positions and the consequent impossibility of their acquiring detailed knowledge of the Gestapo's activities, has been very justly excepted in its entirety from the Indictment. It is my opinion that all employees and wage-earners, including, for instance, drivers, as far as they were not civil servants, teletypists, telephone operators, draftsmen, and interpreters, should be included in this excepted group, no matter whether their membership in the Gestapo was based on a free labor contract, or whether the labor office directives allowed them the choice of a different place of work.
(3) The witness Hedel has made a detailed statement on the activities of the staff which dealt with technical communications. These statements make it clear that they had nothing at all to do with executive work; that they were not in a position to have any knowledge of the activities of the executive staff, and that on the basis of their own activities, they did not necessarily realize that they belonged to an organization whose activities might be criminal. This group of persons, too, might justly be treated as exceptions.
(4) The same applies to groups of persons who in the years 1942 to 1945 were collectively transferred to the Secret State Police on orders from higher quarters. They are the 51 groups of the Secret Field Police and the Military Counter-Intelligence Service, including Foreign Censorship and Telegraph Censorship Offices, which were subordinated to the Gestapo by the Wehrmacht, and the Customs Frontier Service, which was subordinated to the Gestapo by the Reich Ministry of Finance.
THE PRESIDENT: Dr. Merkel, were you referring just now to 51 groups? Can you tell the Tribunal where those 51 groups are specified? In what document?
DR. MERKEL: The testimony of Krichbaum, who was examined, before the Commission. With reference to these groups there
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cannot be the slightest doubt that neither the fact of voluntary membership,, nor the knowledge of criminal aims as alleged by the Prosecution, nor the fact of an alliance applies. The individual, no matter what rank or office he held, was powerless against collective transfer on the basis of an order emanating from the highest offices of the Wehrmacht and the State. Disobedience to this order would have been punished by death on the charge of desertion or military disobedience.
(5) There still remains the group consisting of the executive officials. The executive officials originated in the political department staffs of the police commissioners' offices prior to 1933. Those officials, who had been employed in part even before 1914 and currently up to the year 1933 in combating the various political opponents of the various governmental systems, and the governments which came into power through them, were almost without exception absorbed by the political police of the new regime. The only exceptions were those officials who had been particularly active as opponents of National Socialism. But even those were only dismissed in rare cases. For the most part they were transferred to the Criminal Police.
The staff of the Secret State Police was filled up by transferring officials and candidates to the Gestapo from other police departments without consulting them beforehand, except, of course, when they themselves made an application to that effect. In the same way municipal police officials with a long record of efficiency and who wished to remain in the police service, were transferred after 9 years' service to the Criminal or State Police. They had no influence as to which department they were employed in.
With reference to the Counter-Intelligence and Frontier Police, I can demonstrate that the members of these groups of persons who were included as officials of the Secret State Police executive could have had no part whatever in the crimes of which the Prosecution accuse the Gestapo. The Counter-Intelligence Police exercised their police activities in a manner common to every civilized state, as one of the most noble tasks of -the Police or their affiliated institutions. It is clearly established through the testimony of Best and through Affidavits Number Gestapo-39, 56, and 89 that the staff of the Counter-Intelligence Police did not change very much; and in view of the special obligation to secrecy, and for the sake of the defense of the country, a transfer to other Gestapo or police departments was not permissible as a rule. The Counter-Intelligence Police was mostly isolated within the Gestapo offices and had no official contact with other departments. The cases handled by the Counter-Intelligence Police were always submitted to the regular courts for decision.
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The functions of the Frontier Police from- 1933 to 1945 were the same as in the preceding period, and the same as those carried out today by the officers of the new Frontier Police. The officers of the Frontier Police did not carry out third-degree interrogations, nor did they submit applications for commitment to a concentration camp, nor did they-and most of them had served for a long period in the Frontier Police-participate in any persecution of the Jews; nor could they on account of the nature of their employment have participated in any other crime with which the Gestapo is charged.
These two groups of the Gestapo numbered 5 or 6 thousand individuals. On the basis of the figures which I have previously submitted for the strength of the separate groups of the Gestapo, I estimate the number of its staff, during the period when it was numerically strongest, at approximately 75,000. The executive officials, numbering approximately 15,000 men, therefore constituted only 20 percent of the total strength. If we deduct from that the 5 or 6 thousand men belonging to the Counter-Intelligence and Frontier Police, there remain 9 or 10 thousand executives, or 12 to 13 percent of the total strength.
I believe I have already advanced sufficient reasons as to why the Gestapo, as a subordinate part of the State organism, cannot be sentenced at all, for reasons which are based both on natural law and on the general national law of all peoples. But even if those legal objections did not exist, no sentence could be pronounced, as the characteristics of criminality as defined by Mr. Justice Jackson on 28 February,1946 do not appear in the case of the Gestapo. And even if this argument were not valid, I ask: Is it possible that, simply because some of its members may possibly be held responsible for the commission of crimes, an organization as such can be declared criminal, including also those members who certainly did not act in a criminal manner and had no knowledge of the criminal acts of others?
I am referring to the summary of affidavits given by a large number of former members of the Gestapo who are at present in internment camps. I must also draw your attention to the numerous acts, sworn to in those affidavits, which aimed at sabotaging certain evil orders issued by the head of the State.
If I turn now, in anticipation of an argument, to the question of a limited period of time, I can be more brief. The Gestapo cannot be described as being under unified leadership throughout the Reich; and hence of having a unified will-at least up to the time of Himmler's appointment as Deputy Chief of the Prussian Secret State Police, that is, up to the spring of 1934.
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In Prussia Ministerialrat Diels had acted, with one short interruption, as substitute head of the Secret State Police under G6ring. It is impossible to connect Diels with the illegal tendencies which became apparent after the outbreak of the National Socialist Revolution. I can refrain-and owing to pressure of time I must refrain-from pointing to those wh`6 were really guilty of those excesses; compare Affidavit Number 41.
As a State institution the Gestapo had no part in the events of June 1934. In the following period up to 9 November 1938, the Gestapo did not play any role which could justify the charge of criminality. The arrest of 20,000 Jews which the Gestapo was ordered to carry out was, as-the witness Best testified, a matter outside the competency of the Police. It is therefore impossible to fix that date -as the beginning of the criminal activity of the Gestapo. It must be stated that up to the beginning of the war at least the criminal character of the Gestapo cannot be proven.
Does the basis of judgment change for the period covered by the war? I have already stated that the activities of the Einsatzgruppen and Sipo offices in the occupied territories cannot be charged to the Gestapo, since leadership, organization,, personnel, and order of command of those offices do not permit discrimination against the Gestapo.
There is not the slightest doubt that if the Gestapo is found guilty, considerable restrictions as to period of time must be taken into account. I have indicated briefly the almost insurmountable nature of the difficulties in the way of a time limitation.
And with this, Gentlemen of the High Tribunal, I end my remarks on the Indictment of the Gestapo. I have not considered it my duty to excuse crimes and evil deeds or to whitewash those who disregarded the laws of humanity. But I desire to save those who are innocent; I desire to clear the way for a sentence which will dethrone the powers of darkness and reconstitute the moral order of the world. If we glance through the annals of European history in recent decades and centuries, we read again and again how might conquered right among the nations, -and how the spirit of revenge beclouded the perceptions of mankind.
Peace was concluded only on paper; it was not accepted by the human heart. Solemn pacts were made-only to, be broken. Promises were given and not kept. We read, in this book of revolutions among the nations, of economic need and of unspeakable sorrow. The last pages of this book, however, are written in blood the blood of millions of innocent people. They portray unimaginable cruelties, utter disregard of the sacred laws of humanity, and mass murders which brought suffering to the peoples of Europe. With your judgment, Gentlemen of the High Tribunal, you will write
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the last chapter of this book-a chapter which must be the end and the beginning; the end because it closes the gruesome battle fought by the powers of darkness against the moral order of the world the beginning because it is to lead us to a new world of freedom and justice.
This justice, I hope, will inspire the judgment with the spirit of the words engraved in golden letters on the floor of the Palace of Peace in The Hague: Sol justitiae illustra nos! Do not, therefore, make your judgment merely with the cold logic of your keen mind, but also with the warm love of a seeing heart. This applies especially to the judgment against the organizations; for a condemnation must be unjust, since among the millions whom it affects there are millions who are guiltless. They would all become victims of desperation; they would all be despised and damned, and would perhaps even deem those happy who now rest in their graves as victims of National Socialism.
The present world needs peace-nothing but peace. To extend the consequences of a judgment to a large guiltless section of the German people would be to work against world peace, which, in any event, rests on an unstable basis, and would thereby mutatis mutandis repeat Hitler's idea of punishing a people-the Jewish people-collectively, and of exterminating them.
Out of this injustice against the laws of God and of Nature was born the indignation of the creature thus tortured, and the right to have the evildoers called to account. Hitler and his regime proved the truth of the words: Hodie mihi, cras tibi. From the history of the Jews in the Old Testament we know that God would not have destroyed the city of Sodom, had but one just man lived there. Is not God's truth contained in these words-that a group may not be punished if even one member of the group is not deserving of punishment?
Then, Gentlemen of the High Tribunal, place your signatures under a judgment which will bear the scrutiny of history and mankind; place your signature under a verdict which will be praised as the beginning of a new era of Justice and of Peace-and which will form a golden bridge leading to a better and a happier future!
[The Tribunal adjourned until 26 August 1946 at 1000 hours.]