Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-210.08
Last-Modified: 2001/01/10

[DR. SERVATIUS, CONTINUED]

6. Execution of Commandos and Paratroopers.

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 airmen. What can be
said in this connection?

In Exhibit USA 500 - it is a secret order of the OKW of 4th
August, 1942, concerning countermeasures against
parachutists - the treatment of captured paratroopers is
characterized as the exclusive concern of the Army, while
that of single parachutists was transferred to the Chief of
the Security Police and the SD. The latter task did not
include their execution, but was to serve only the purpose
of discovering possible sabotage orders on these
parachutists and obtaining news about the intentions of the
enemy.

On 18th October, 1942, Hitler ordered the destruction of all
commando groups (Exhibit USA 501). This order was directed
not to the German Police but to the German Army. Article 4
of that order stated that all members of such commandos
falling into the hands of the Army 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 had played a part in it, a task not
in the character of a police task would have been
transferred to it, for the execution of which the Gestapo as
an organization cannot be accounted responsible 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 16th November, 1945 -
Document PS-2374 - an order was issued

                                                   [Page 72]

in the summer of 1944 to the Commanders and Inspectors of
the Sipo and the SD to the effect that all members of the
American and English commando troops should be surrendered
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
a need for this order would not 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 at that time 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. Equally it is unlikely that that
order, which presumably was issued by Himmler, ever became
known to the mass of Gestapo members.

Above all, the prosecution rests its case on an order of
Himmler of 10th August, 1943 (Document USA 333), stating
that it was not the task of the police to interfere in
controversies between Germans and bailed-out English and
American terror flyers, and from this the prosecution
concludes that the Gestapo approved of lynch law. However,
it is of significance that this order of Himmler's was
addressed to all the German Police, above all to the
uniformed regular police. For in case of the bailing out of
Allied airmen, as a rule it was not Gestapo officials who
made an appearance, but members of the uniformed regular
police, the military police, or the local police. Only those
branches of the police were in charge of street patrols, and
not the Gestapo.

As proved by the numerous affidavits, all the Gestapo
members were not informed of this order, but rather learned
of it only through the statement Goebbels made over the
radio.

The evidence given by the witness Bernd von Brauchitsch,
first assistant to the Supreme Commander of the Luftwaffe,
shows distinctly 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 airmen themselves. As far as I know, Hitler advocated
the most severe measures. Lynchings were to be permitted
more liberally. The Supreme Commander and the Chief of the
General Staff did, it is true, condemn the attacks on the
civilian population in the sharpest terms, yet they did not
desire special measures to be taken against the airmen;
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 airmen 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 airmen had bailed out, not only did not kill them but
protected them against the population - see Gestapo
Affidavit 81 - and if they were wounded they saw to it that
they were given medical care. As to the few cases in which
higher Gestapo officials ordered and executed the shooting
of crews who had bailed out, these men have already been
justly punished by the courts of the occupying powers. To
hold all members of the Gestapo responsible for them is not
justifiable.

7. The next point of the Indictment states: The Gestapo and
the SD brought civilians from occupied countries into
Germany in order to place them before secret courts and
sentence them there.

On 7th December, 1941, Hitler issued the so-called "Nacht
and 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 where they were to be
put before a special court. If, for any reason whatsoever,
this was not possible, the transgressors were

                                                   [Page 73]

to be placed in protective custody in a concentration camp
for the duration of the war.

As may be seen from the distribution list in Document 833-
PS, this order went only to the offices of the Wehrmacht and
not to the offices 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 Wehrmacht commanders-in-chief.

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 those arrested.
Through the Stapo offices, in agreement with the competent
Counter-Intelligence offices, the details of the deportation
to Germany were determined, particularly in cases where it
still remained to be decided whether transport was to be
conducted by the Secret Field Police, the Field Gendarmerie,
or by the Gestapo. The Gestapo had no other tasks assigned
to it by the "Nacht and 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 Hoffman, 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 offices, we may assume
with assurance 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 - 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.

The portion of my speech dealing with the deportation of
members of foreign States to Germany for the purpose of
condemning them under summary proceedings and the arrest of
kindred will also not be read by me, but I beg the Tribunal
to take judicial notice of it.

I should now like to continue on Page 60, section 10.

The next point of the Indictment concerns the killing of
prisoners upon the approach of Allied troops.

As a basis for this charge Exhibit USA 291 of 21st July,
1944, has been submitted. It is an order by the Commander of
the Sipo 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
the prisoners impossible, they should be liquidated.

The question to what extent these or similar orders have
existed or were known elsewhere, and to what extent such
orders were carried out, is not a matter for consideration.
The essential question for me to consider, namely, the
participation of the Gestapo, has not been fully determined.
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

                                                   [Page 74]

of these police prisons were always the tasks of the local
police administrator; in the occupied territories it was
partly the task of the Army. 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 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
either were dismissed or were handed over to the Allied
troops when they occupied the locality.  (Gestapo Affidavits
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 Hameln in Westphalia were
to be killed upon the approach of the enemy. The person who
issued the order however, was not a Gestapo official, but
the Kreisleiter of Hameln who, for doing so, was sentenced
to seven years' imprisonment by the Fifth 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 Gaustabamtsaleiter under Gauleiter
Giessler of Munich (Exhibit USA 291). It states t April,
1944, [N.B. sic? 1945.] the inmates of the Dachau
concentration camp and of the Jewish work camps Muhldorf and
Landsberg were to be liquidated; i.e., 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 these 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 the frightful planning of which
alone severely shocks our deepest feelings. What is of
importance for the organization of the Gestapo, which I
represent, is something which it is my duty as its defense
counsel to draw to 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 for its execution.

Regarding the next point, the confiscation and dividing up
of public and private property, I beg the Tribunal to take
judicial notice of 1t and I shall continue on Page 63 of the
original, section 12.

The prosecution accuses the Gestapo of having employed the
third degree method of interrogation. I had 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 force a
confession; they could only be 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 frontier 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 interrogation were permitted, if it was thought that in
this manner the lives 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 witnesses
Knochen, Hermann, 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

                                                   [Page 75]

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 Gestapo Affidavit
76.)

Then I beg official notice be taken of the subsequent pages
and I shall continue on Page 65. Discussion of the crimes of
which the Gestapo is accused leads me now to the third and
last group - 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 as 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 six 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 for ever 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 has
participated in the persecution and extermination of Jews.

An examination 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 had
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 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 orders.

Apart from that, other administrations, such as the
Administration of the Interior of the Reich, the Finance
Administration, and the Municipal Administration had, to a
much greater extent than the Gestapo, become active against
the Jews, that is to say, regarding their personal legal
status as well as their property, houses, etc., 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
from the Gestapo. 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 9th November, 1938, in the evening, 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 to their departments
at once and take all steps to stop the action. The
contradiction contained in this testimony and the contents
of Heydrich's teleprint letter, sent to all Gestapo
departments during that night (Exhibit 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
limited 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; that was
done.

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