Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-175.01
Last-Modified: 2000/09/19

                                                  [Page 254]

HUNDRED AND SEVENTY-FIFTH DAY

WEDNESDAY, 10th JULY, 1946

THE PRESIDENT: The Tribunal will sit in closed session this
afternoon and will not sit in open session after one
o'clock.

DR. THOMA (defence counsel for Rosenberg): Mr. President,
may it please the Tribunal, with regard to the question of
the justification of the decree concerning the compulsory
labour service of the inhabitants of the Eastern
territories, I should like to continue on Page 33.

The following principle which is recognized by International
Law is indicated:

Measures undertaken by an occupying power in an occupied
territory are legal as long as they are not in opposition to
an authenticated stipulation of the International Rules of
Warfare. The supposition, therefore, would indicate that the
occupying power is entitled to the full exercise of all
powers deriving from territorial sovereignty over an
occupied territory. According to the uniform opinion of
experts on International Law, the occupying power acts by
virtue of an original law of its own, which is only
guaranteed and defined as to contents by International Law,
in the interest of its own conduct of the war as well as for
the protection of the civil administration in the occupied
territory. (I quote Heyland in the "Handbook on
International Law.")

  "The inhabitants of the occupied territory no longer have
  a duty of allegiance to the enemy sovereign, but only to
  the occupying power; the will of the occupying power
  rules and decides in the occupied territory; the
  occupying power is the executor of its own will; its own
  interests alone are decisive for the exercise of its
  sovereign rights and, therefore, it is at liberty to act
  against the interests of the enemy State." (Heyland, as
  above.)

In view of Article 52 of the Hague Rules of Land Warfare,
the right to conscript labour in the occupied territory is
acknowledged. It is stipulated here that labour services may
be demanded from the inhabitants of the occupied territory;
the demand must be limited to the requirements of the
occupation forces; it must be in proportion to the resources
of the country, and must be of such a nature as not to
compel the population to participate in military operations
against their own country. In these stipulations I cannot
discern any prohibition of labour conscription in occupied
territories; on the contrary, I consider that an approval of
compulsory labour service can clearly be deduced from them.
The employment of such labour in war industry is undoubtedly
in accordance with the requirement of the occupation forces,
and, in my opinion, it is equally beyond doubt that this
constitutes no commitment to military operations. The rules
of land warfare contain no stipulations as to whether labour
service may be demanded only in the home country or whether
the conscript may be transported into the native land of the
occupying power for the purpose of rendering labour services
there. Thus, the general principle holds good, that the
right is presumed for the occupying power to exercise to its
full extent all powers deriving from territorial
sovereignty.

If one takes the correct view that the International Rules
of Warfare should tend to humanise war by limiting the
rights of the belligerents, and that the trend in this
direction should be continued, one must consider, on the
other hand, that the stern reality of war tends toward the
opposite direction.

                                                  [Page 255]

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know
whether it is your contention that the Hague Rules authorize
the deportation of men, women or children to another country
for the purpose of labour service.

DR. THOMA: Mr. President, I would like to speak about the
interpretation of the Hague Rules of Land Warfare, and I am
dealing here with the question as to whether it is
permissible to transport inhabitants of the country in order
to meet the requirements of the occupying forces. I have
stated the position here that labourers can also be
transported into the country of the occupying power. About
children, of course, I have said nothing. I did not say
anything about Jews either. I only spoke about persons able
to work, who were required to work in accordance with the
necessities of the occupying power, and I said it was
admissible for them to be transported into the native
country of the occupying power. I leave this problem to the
judgement of the Tribunal.

THE PRESIDENT: The Tribunal would like to have any
authorities in International Law which you have to cite for
that proposition.

DR. THOMA: Mr. President, I shall mention some more
quotations, more detailed scientific quotations concerning
this problem. I have already quoted in that regard. I have
repeatedly quoted Heyland's "Handbook on International Law,"
published by Stier-Somlo, and I shall give more quotations.
Today's war is in no way the war which in 1907 -

THE PRESIDENT: Will you tell me what language that book is
in?

DR. THOMA: In German, Mr. President, it is the "Handbook on
International Law," published by Stier-Somlo, 1923.

  "Present-day warfare is no longer what it was in 1907.
  War has developed into total war, a life-and-death
  struggle of annihilation, in which the very last physical
  and moral forces of the nation are mobilised and the loss
  of which, as is shown by the example of Germany, means
  unconditional surrender and the total destruction of her
  existence as a State.
  
  Can one maintain, in view of this fact, that Germany, in
  this struggle of life and death, should not have been
  granted the basic right of self-preservation recognized
  by International Law?"

I refer to S. Strupp, "Handbook on International Law,"
published by Stier-Somlo 1920, Part III, "Violations of
International Law," Pages 128 and following.

  "There is no doubt that the very existence of the State
  was at stake; that is, it was an emergency which
  justified the compulsory employment of labour, even if it
  had not been permissible according to International Law.
  It is inherent in that great anomaly called war that, as
  soon as the state of war has been proclaimed,
  International Law is in a large measure set aside in the
  interest of the objective of the war, the overpowering of
  the enemy."

(See Strupp as above, Page 172.)

  "The development of civilisation has seen a progressive
  moderation of the conception according to which
  everything is permissible in war until the enemy is
  destroyed; nevertheless, the rules of warfare constitute
  even today a compromise between the demands of military
  necessity with their fundamental boundlessness and
  refined humanitarian and civilised views.
  
  One thing, at any rate, is certain: namely, that the
  existence of a genuine emergency may be pleaded, even
  under the stipulations of the Hague Rules of Land
  Warfare. During the negotiations preceding the
  formulation of Article 46 of the Hague Rules, the
  following was stated literally and without opposition.
  The restrictions might affect the liberty of action of
  the belligerents in certain extreme emergencies.
  
  In cases of extreme need, therefore, a state of emergency
  may be pleaded. It is recognized International Law that
  even an aggressor must not be denied the right of
  pleading a state of emergency in case his existence is
  directly threatened."

(Strupp, Page 170.)

                                                  [Page 256]

In connection with the chapter concerning the Eastern
administration, I should like to point out all the defendant
said in his testimony concerning accusations of the Soviet
prosecution, in particular the reports of the Extraordinary
State Commission and the Molotov Reports (Documents USSR 39,
41, 751, 89, Part 12, pp. 23 et seq., 16th April, 1946). I
hope that the factual corrections made by the defendant will
be evaluated accordingly by the Tribunal.

Now I come to a new subject

Contrary to the assumption of the prosecution, Rosenberg was
by no means the instigator of a persecution of Jews any more
than he was one of the leaders and originators of the policy
adopted by the Party and the German Reich, as the
prosecution claims. (Major Walsh, Part 2, pp. 388 et seq.,
13th December, 1945.) Rosenberg was certainly a convinced
anti-Semite, and expressed, his conviction and the reasons
for it both verbally and in writing. However, in his case,
anti-Semitism was not the most outstanding of his
activities. In his book, Blood and Honour, speeches and
essays, 1919-1933, out of 64 speeches, for example, only one
had a title referring to Jewry. The same applies to the
other two volumes 4 his speeches. He felt his spiritual
ancestors to be the mystic master Eckehart, Goethe, Lagarde,
and Houston Stewart Chamberlain.

Anti-Semitism was for him a negative element. His chief and
most positive efforts were directed toward the proclamation
of a new German intellectual attitude and a new German
culture. Because he found this endangered after 1918, he
became an opponent of Jewry. Even such different
personalities as von Papen, von Neurath, and Raeder now
confess their belief that the penetration of the Jewish
element into the whole of public life was so great that a
change had to be brought about. It strikes me as very
important, however, that the nature of Rosenberg's anti-
Semitism was intellectual above all. For example, at the
Party Rally of 1933, he explicitly mentioned a "chivalrous
solution" of the Jewish question. We never heard Rosenberg
use expressions like, "We must annihilate the Jews wherever
we find them; we shall take measures that will lead to a
sure success. We must abandon all feelings of sympathy." The
prosecution itself quotes the following as an expression of
the programme Rosenberg set up for himself:

  "After the customary removal of Jews from all public
  offices, the Jewish question will have to have a decisive
  solution through the institution of ghettoes " (Page 387,
  Part 2).

GENERAL RUDENKO: Mr. President, rather reluctantly I
interrupt counsel for the defence. I do not like to take the
time of the Tribunal, but whet I just heard is going beyond
any permissible limits. When the defendants sitting in the
dock tried to express their fascist views, this was deemed
inappropriate and cut short by the Tribunal.

I think that it is absolutely inadmissible that the defence
counsel should use this place to promote anti-human
propaganda; I cannot understand the contention of the lawyer
who alleges the existence of a noble, spiritual anti-
Semitism which Rosenberg advocates and that Rosenberg's
belief in gathering all Jews in ghettoes was chivalrous.
Please note that the lawyer is not quoting any Nazi leader,
but expresses his own opinion, and I protest against the use
of the International Military Tribunal for the spreading of
fascist propaganda. I ask the Tribunal to consider this
objection of mine and to take appropriate action.

DR. THOMA: May it please the Tribunal - may I make an answer
to that?

THE PRESIDENT: Dr. Thoma, we do not think it is necessary to
trouble you. The Tribunal thinks - there may be, of course,
differences of opinion as to the use of words in the course
of your argument, but they see no reason for stopping you in
the argument that you are presenting to the Tribunal.

DR. THOMA: Thank you, my Lord.

                                                  [Page 257]

May it please the Tribunal, after what General Rudenko has
said, I should like to make one statement. In my speech I
have tried to argue upon the statements of the prosecution
and nothing else.

I would like to say something else. The words "chivalrous
solution of the Jewish question" were not my expression; I
just quoted that as a statement made by Rosenberg a long
time before he came into this Court.

The prosecution quotes the following as Rosenberg's
statement of a programme:

"The Jewish question - " and so on; I have already read
that.

It was not a mere question of chance that Rosenberg did not
take part in the boycotting of Jews in 1933, that he was not
called upon to work out the laws against the Jews in 1933,
1934 1935 and so on (expatriation, prohibition of marriages,
withdrawal of the right to vote, expulsion from all
important positions and offices). Above all, he never took
part in the action of 1938 against the Jews, nor in the
destruction of synagogues, nor in anti-Semitic
demonstrations. Neither was he the instigator in the
background, who sent out or ordered lesser people to commit
certain actions. To be sure, Rosenberg was a true follower
of Hitler, who took up Hitler's slogans and passed them on.
For example, the words "The Jewish question will be solved
only when the last Jew has left Germany and the European
Continent," and once the slogan of "Extermination of Jewry."

Exaggerated expressions were always part of the National
Socialist weapons of propaganda. A Hitler speech was hardly
imaginable without insults to his internal or external
political opponents, or without threats of extermination.
Every one of Hitler's speeches was echoed a million times by
Goebbels down to the last speaker of the Party in a small
country inn. The same sentences and words which Hitler had
used were repeated, and not only in all the political
speeches, but in the German Press as well, in all the
editorials and essays, until, weeks or months later, a new
speech was given which brought about a new echo of a similar
kind.

Rosenberg was no exception. He repeated, as everyone did,
all of Hitler's slogans, including that of the "solution of
the Jewish question," and once also that of the
"extermination of Jewry." Apparently, like Hitler's other
supporters, he gave as much or as little thought to the fact
that in reality none of those words were clear but that they
had a sinister double meaning and, though they may have
meant real expulsion, they may also have meant the physical.
Annihilation and murder of the Jews.

May I remind the Tribunal at this point that Rosenberg,
during his testimony, made a reference to a speech of the
British Prime Minister in the House of Commons in 1943, in
which speech it was stated that Prussian militarism and
National Socialism had to be exterminated root and branch.
No German interpreted that literally, and I believe no one
interpreted it to mean that German soldiers and the National
Socialists had to be exterminated physically.

Quite apart from the knowledge and will of the German
people, and quite apart from the knowledge and will of the
majority of the leadership of the Party - that is, known
only to Bormann, Himmler and Eichmann - there was hatched
and carried out, from 1941 onwards, a mass crime which
surpassed all human conception of reason and morality. The
"Jewish question" was developed even further and brought to
a so-called "final solution".

The Tribunal will have to decide the question whether
Rosenberg, the specially characteristic exponent of the
Party, the Reich Minister for the Occupied Territories, is
also responsible for the murder of the Jews, and
particularly for the murder of Jews in the East; that is, is
he a murderer of Jews? Or must it be recognized and admitted
that though he stands a hair's breadth from the abyss, it
was, after all, external, circumstances which led up to it
all, and that these circumstances were outside his sphere of
responsibility and guilt?

I believe I can say that Rosenberg never aimed, either
openly or in secret, at the physical extermination of the
Jews. His reserve and moderation were certainly no mere
tactics. The gradual slipping of anti-Semitism into crime
took place without his knowledge or his will. The fact in
itself that he preached anti-

                                                  [Page 258]

Semitism justifies his punishment as the murderer of Jews as
little as one could hold Rousseau and Mirabeau responsible
for the subsequent horrors of the French Revolution.

Furthermore, no matter how much the first impression might
lead to it, criminal guilt on his part cannot be deduced
from his position as Reich Minister for the Occupied Eastern
Territories. As already stated, the "responsible Minister"
cannot ipso facto be held responsible for criminal acts
committed in his sphere or his territory. Criminal
responsibility, according to the German Penal Code,
paragraph 35'7, exists only if an official knowingly assents
to the criminal actions of his subordinates, and if - the
commentary furnishes the details - the superior is in a
position to prevent the action.

I should like to take up the question of his responsibility
on the grounds of the documents submitted for this purpose.

(1) The action taken against the Jews at Sluzk (Document
1104-OS).

On 27th October, 1941, a horrible slaughter of Jews took
place in Sluzk, committed by the four companies of a police
battalion, because the commander received an order from his
superior to clear the city of all Jews without exception.
The Regional Commissioner immediately made vigorous
protests, demanded that the action be stopped at once, and
with drawn revolver he kept the police officers in check as
far as he was able.

He reported to Commissioner-General Kube of White Ruthenia
at Minsk, and the latter suggested to Reich Commissioner
"Ostland", Lohse, that the officers implicated be punished
for the "unheard-of beastliness". He, in turn, reported to
the Reich Minister for the East, with the request that
immediate measures be taken at higher levels. The Reich
Minister for the Occupied Eastern Territories sent the
entire report to Heydrich, the Chief of the Security Police
and of the SD, requesting further instructions. Due to an
ingenious system according to which the police were not
responsible to the competent administrative chief, and were
not even obliged to report, Rosenberg could not take any
further steps either in this or in similar cases. He was not
head of the police and could only hope that the transmission
of the report to Heydrich would be sufficient to stop what
he considered to be regional excesses of the police.

It can be seen from the indignation of all the
administrative offices over the reported incidents that none
of them knew that it was no question of excesses, but of an
action ordered by Heydrich and Himmler. Even though
Rosenberg violently disliked Heydrich and Himmler, not even
he could suspect anything of this kind.

(2) Also from October, 1941, comes Document 3663-PS, in
which the Reich Minister for the Occupied Territories -

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