Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-177.08
Last-Modified: 2000/09/19

By DR. SAUTER, Continued:

                                                  [Page 350]

This was certainly particularly difficult for Funk, in view
of his tolerant attitude. At that time he had already been a
State official of the Reich Propaganda Ministry and the
Ministry of Economics for eight years, and yet, during all
that time, the prosecution could not cite a single instance
of any display of anti-Semitism on Funk's part or any
evidence of his having urged or approved of the use of
force, terrorists or injustice against the Jews. On the
contrary, we know from the statements of various witnesses
that Funk repeatedly interceded for his Jewish fellow-
citizens in the course of these years; that he looked after
them and tried in their interest to alleviate hardships, to
prevent encroachments on their rights and to save the lives
and careers of human beings, even if they were Jews or
political opponents of his own.

It is, therefore, not surprising that this man, with his
wide experience in the economic field, this man of far-
reaching knowledge, with his frankly tolerant views, was
most painfully affected when, on 10th November, 1938, he had
to witness the destruction of Jewish homes and shops in
Berlin and when he received one report after another
confirming the fact that Goebbels and his clique, exploiting
the fury of the populace over the assassination of a German
by a Jew, were organising such pogroms throughout Germany,
and that these outrages were leading not only to the
destruction of Jewish property but also to the murder of
many Jews and to the persecution of many thousands of
innocent citizens.

The affidavit of his assistant, Ministerialrat Kallus
(Document Book Funk No. 3), of 9th December, 1945, and that
of Frau Luise Funk of 5th November, 1945 (Document Book Funk
No. 3), prove clearly that Funk condemned such excesses most
severely, that he was disgusted to the extent of calling
them filthy outrages, even when addressing Dr. Goebbels
himself, and that he threatened to resign in the event of a
repetition. Even at that time he told the almighty Goebbels
to his face that one should be ashamed of being a German.

All this, gentlemen, expressed the just indignation of a man
who for years had put forth every effort to secure
moderation towards Jews and political opponents and had
received many a letter of gratitude for so doing - a man who
had fought for years to prevent terrorism, to secure for all
his fellow-citizens the rights to which they were entitled
and to raise the standard of German economic life; and who
now saw all his efforts frustrated in a single night by the
brutal fanaticism of a Dr. Goebbels.

Funk himself, during his interrogation, gave us a vivid
description of how, ever since he entered office as Minister
of Economics in February, 1938, he had been subjected to
continuous pressure by Goebbels and Dr. Ley to eliminate the
Jews from the economic life of the country in the same way
that they had been eliminated in 1933 from its cultural
life.

The witness Dr. Hayler stated here that Himmler also found
fault with Funk for this. Funk himself testified to the
difficulties which again and again arose during those years
with workers stirred up by propaganda, who were sometimes no
longer willing to work under Jewish managers, or did not
dare to do so, and how, in these oppressive conditions,
numerous Jewish owners sold their businesses - frequently at
ruinous prices - to people who seemed to the Minister of
Economics Funk entirely unfit to acquire or manage such
businesses. Funk tried again and again to oppose this
irresistible development. He made continual efforts to put a
brake on this process of aryanization, to provide for a
reasonable and just settlement for Jewish owners of
businesses; and to allow them to emigrate from Germany with
their property. But Funk realised more and more clearly
every day that he was too weak to stop this movement and
that the radical elements around Dr. Goebbels and Dr. Ley
were gaining the upper hand, whereby they were unfortunately
able to rely on Hitler's authority. The latter - Hitler -
had allowed himself in the course of time to be won over,
more and more to the policy of radical treatment of the
Jewish question by a few irresponsible advisers who are not
sitting in the dock today.

                                                  [Page 351]

The events of 9th November, 1938, burst like a bombshell
into this fight between Funk and other considerate people on
the one side, and Goebbels and Ley on the other. As Dr.
Goebbels himself admitted later to Fritzsche, they were
aimed directly at the person of the defendant Funk who was
thus to be confronted with a fait accompli. As the witness
Landfried testified, Dr. Goebbels did, in fact, attain his
ends through this operation of November, 1938. Goebbels was
able to refer later on to Hitler's own order for the Jews to
be completely excluded from the economic life of Germany,
although Funk, as the minister concerned, repeatedly made
allusion to the relations with foreign countries upon which
the German Reich and its economy depended.

The orders necessary to carry out this programme were given
by Goering in his capacity of Plenipotentiary for the Four-
Year Plan, on the direct orders of Hitler. Funk never had
any doubt that in this particular affair Goering also was to
a certain degree only a puppet, because he had always known
Goering to be a man who condemned extreme radicalism in this
particular question of the Jews. Funk's views on this point
were shared by wide circles of the German people and the
fateful Goering meeting of 12th November, 1938 (Document
1816-PS), proved it to be correct. This document has been
mentioned here repeatedly.

At a meeting which preceded that of 12th November, 1938,
Goering sharply condemned the acts of terrorism which had
occurred and declared to the Gauleiter present that he would
make every Gauleiter personally responsible for acts of
violence committed in his district. But what was the good of
that?

In the course of the second meeting, the minutes of which
were submitted to the Tribunal under No. 1816-PS, Goebbels
ultimately succeeded in carrying through his radical
demands; and the course taken by this meeting forced Funk to
admit that the complete elimination of the Jews from German
economic life could no longer be delayed, for the simple
reason that the circles in power had become far too
fanatical. It became evident to Funk that legislative
measures were necessary if the Jews were to be protected
from further acts of terrorism, looting and violence and if
they were to get any reasonable compensation. During the
Goering meeting of 12th November, 1938, Funk repeatedly
expressed his views again as is shown by the records. It was
due to the efforts made by the defendant Funk, with the
support of Goering, that Jewish businesses were reopened for
the time being, that the whole procedure was taken out of
the hands of the local agencies and put on a legal basis
throughout Germany and, finally, that in order to gain time
in which to carry out this action a definite date was set
for its completion. Anyone who reads carefully the minutes
of the Goering meeting of 12th November, 1938, will, in
spite of their incorrect and incomplete, formulation, be
able to find definite and repeated indications of Funk's
moderating influence; namely, his insistence - repeatedly
mentioned in the minutes - on the reopening of Jewish
stores, his proposal that the Jews be allowed to retain at
least their securities and, finally, his attitude to
Heydrich's demand that the Jews be placed in ghettoes. The
minutes of 12th November, 1938, prove beyond doubt that it
was Funk who opposed Heydrich's proposal by saying: "We do
not need ghettoes. Surely the Jews could move rather more
closely together. The lives of three million Jewish people
out of at least seventy million Germans can be regulated
without ghettoes."

Funk therefore wanted to save the Jews at least from being
interned in ghettoes. It must be admitted that at that time
Funk did not entirely succeed in securing recognition for
his point of view, so that his proposal that the Jews should
be allowed to retain their securities, for instance, was
turned down, although Funk pointed out - as the minutes show
- that to realize the Jewish securities would suddenly flood
the German stock market with securities to the value of half
a billion and would, therefore, have serious consequences
for the German stock market. The decisive question in
judging the defendant Funk is not so much his success as the
fact that he made an obvious effort to save for the Jews all
that could be saved in the circumstances; and we must not
lose sight of the fact that in all those measures Funk acted
only in his capacity as Minister of Economics, that is, as
an

                                                  [Page 352]

official who merely gave the order to execute a command
which Goering, as Trustee of the Four-Year Plan, had issued
on the orders of Hitler. Funk found himself in exactly the
same position of constraint, as, for example, the Reich
Finance Minister Graf Schwerin-Krosigk, who at that time had
to order the punitive levy of 1 billion Reichsmark to be
paid by the Jews, or the Reich Minister of Justice and the
Reich Minister of the Interior, both of whom issued similar
orders for execution in their respective spheres. The
Tribunal must decide the difficult legal question of whether
a State official whose government has been legally
recognized by all the governments of the world is liable to
legal punishment for putting into effect a law - and I
emphasize: a law - passed in accordance with the legislative
system of this State. This legal problem is entirely
different from the other question of whether or not the fact
that an official order given by a superior can serve as an
excuse. I might add here that I shall not discuss this legal
question because I shall leave it to the other members of
the defence. I shall only discuss whether an official who
puts into effect a law passed by the internationally
recognized government of his country thereby becomes liable
to punishment. That is an entirely different problem from
the one dealt with by the Charter.

Gentlemen, since this has not been dealt with before, I have
to state the following; I read at the bottom of Page 50:

Our natural sense of justice fully approves that a citizen,
an official, or even a soldier, cannot defend himself by
reference to the official order given him by his superior if
this order obviously implies an illegal act and especially a
crime and if in the existing circumstances and in due
consideration of all the accompanying facts the subordinate
realizes, or should realize, that the official order is
contrary to the law.

If the latter condition exists, in other words, if the
official order obviously , constitutes a breach of the law,
it may, in general, be fully approved that the subordinate
is not permitted to refer to his superior's official order
as an excuse;, and to maintain that he was only carrying out
that order. In that respect this stipulation of the Charter
contains nothing essentially new, but only the confirmation
and further development of legal principles which are,
recognized to a varying extent in the penal codes of most
civilised nations today. A certain amount of precaution,
however, seems to be indicated in this matter, for it should
not be forgotten, on the other hand, that obedience to the
orders of a superior is and must in future remain the
foundation of every government in all nations if the orderly
functioning of the State administrative apparatus is to be
secured; and that it would be dangerous for the civil
servant to decide for himself whether to keep his oath of
allegiance.

But, gentlemen, in our case something different is involved:
We are dealing here with the obedience of the citizen and
especially of the civil servant, such as Funk was at the
time, to the law of the State which was legally promulgated
in accordance with the constitutional rules of this State.
If we wish to find a just and correct answer to this
juridical question, which, hitherto, has not been dealt
with, it will be pertinent to disregard entirely conditions
in Germany and ask ourselves what decision would be given in
a case where a civil servant of a different country - not
Germany - carried out a law. Let us assume, for instance,
that some foreign country embracing a minority promulgated,
in accordance with its constitution, a law exiling from its
territory all members of this minority, or confiscating for
the benefit of the State the property of such inhabitants,
or turning over to the State or partitioning among other
citizens the large agricultural estates; of such
inhabitants. Let us assume that such a case exists and let
us ask ourselves: Does the civil servant in this nation
really commit a crime if he carries out this lawful order?
Is it really the duty of the official charged with the
execution of this law to refuse to obey the law and to
declare that in his personal opinion the j law concerned was
a crime against humanity, or has he even the right to do so?
In such case, gentlemen, would any State today grant its
civil servants the authority to examine whether the law
proclaimed is contrary to the principles of humanity

                                                  [Page 353]

or to the fluctuating norms of International Law? What State
would tolerate the refusal of its civil servants for this
reason to execute a law already proclaimed?

I shall pass over the passage on Page 53 and I continue with
the 3rd paragraph on this page.

The Tribunal will have to decide these legal problems. But
Funk may point out in his own defence the fact that by
reason of his entire ideology and background it was
especially difficult for him, to issue these decrees for
execution, although he believed he was only doing his duty
as a civil servant.

In this connection I wish to remind you of Funk's circular
of 6th February, 1939 (3498-PS, Trial Brief Funk, Page 19),
where he emphasises to his officials that it was their duty
to "ensure that it was carried out in a correct manner in
every respect" and where he already feels impelled to
disclaim personal responsibility for these measures by
expressly emphasizing: "How far and how rapidly the powers
given by the Four-Year Plan are to be exercised will depend
on the decisions made by me in accordance with the
directives of the Trustee for the Four-Year Plan." This
special reference made by the defendant Funk to the legal
decrees of the Four-Year Plan, which was authorized to
promulgate laws, originated in the defendant's desire to
express formally and solemnly, and to establish for times to
come the fact that in issuing the decrees for the execution
in 1938 he was a victim of his obedience to the State, a
victim of his loyalty to the laws of the State to which he
had sworn allegiance.

Funk's circular of 6th February, 1939, already mentioned on
Page 19 of the Trial Brief, clearly expresses the qualms of
conscience which had gripped Funk in these days - but
without incriminating him - these qualms which, during his
interrogation by an American officer on 22nd October, 1945,
led to his complete nervous breakdown, so that Funk was
unable to restrain his tears and told the interrogating
officer:

  "Yes, most certainly. That is when I should have left, in
  1938. Of that I am guilty; I am guilty; I admit that I am
  a guilty party here."

These same qualms of conscience gripped the defendant
throughout the entire trial and are still haunting him; and
we remember that in the session of 6th May, 1946, when this
point was discussed, Funk was so deeply shaken that he could
hardly continue to talk and finally declared, before you,
gentlemen, that at that moment he fully realised that this -
i.e. the atrocities of November, 1938 - was the starting-
point of the disaster of those horrible and frightful things
of which the have learned here, some of which he had already
heard during his imprisonment, which culminated in
Auschwitz. He felt, as he said during his interrogation on
22nd October, 1945, "deep shame and heavy guilt," and he
still feels it today; but he had put the will of the State
and the laws of the State above his own feelings and above
the voice of conscience since he, as a civil servant, was
bound by duty to the State. He felt these bonds all the more
strongly, as legal measures were particularly necessary for
the protection of the Jews in order to save them from losing
their rights completely and suffering further despotism and
violence. These are the very words of the defendant Funk;
and they represent his actual feelings.

Even today Funk feels that it was a terrible tragedy that he
of all people was charged with these things; he who never
during his entire life said a spiteful word against a Jew
but had, wherever he could, always worked for tolerance and
equality for the Jews as well.

If during his interrogation on 22nd October, 1945, Funk
said: "I am guilty," it need not be investigated here
whether the defendant intended these words to apply to his
criminal guilt or only to a moral guilt which he saw in the
fact that he had remained in an office which compelled him
to carry out laws incompatible with his own philosophy of
life. Funk was not in a position to decide for himself the
complicated legal question of whether an official of an
internationally acknowledged State can be punished at all if
he only carries out laws passed in accordance with the legal
constitution of that State. For the defendant Funk his
"guilt" did not

                                                  [Page 354]

lie in the fact that he had signed the executive regulations
in November, 1938, since this had been his duty as an
official, but he rather considered himself guilty because he
had remained a member of the Government although he found
the acts of terror which had occurred intolerable and
abhorred them; he was not involved in the "conflict of
conscience" of which he spoke when he was interrogated
because he acted according to the laws which he considered
necessary under the conditions prevailing at the time; this
conflict with his conscience was a result of the fact that
he had not, in this difficult situation, listened to the
voice of his conscience and had not resigned his ministerial
office. But the decisive reasons for his attitude and his
final decision to remain in office in spite of his feelings
about the matter were certainly not material considerations.
His reputation as a journalist and his abilities as such
would have enabled him easily to find another suitable
position. Much is to be said for the opinion that the
defendant was held in office above all by the thought that
his resignation would in no way improve matters, but that on
the contrary the administration would become still more
radical under an unsuitable, fanatical successor, while he
might hope by staying in office to alleviate much distress.

These considerations, which may have guided the defendant
Funk in the first place, were certainly correct up to a
point.

His under secretary, Dr. Landfried, at least has testified
that later on, too, Funk often expressed serious misgivings
concerning the action taken against the Jews in November,
1938, and showed very strong disapproval of all excesses and
infringements of the law committed by various Government
agencies in carrying out the action. Funk could talk openly
to his confidant Landfried, and he often complained to him
that he had no power to prevent such excesses. But, as he
said to Landfried: We of the Ministry of Economics should
take particular care that no one profits unduly by the
aryanization - i.e. the transfer to non-Jewish ownership -
of business firms. And Ministerialrat Kallus described in
his deposition of 19th April, 1946, the various measures
taken at that time by Funk to protect the interests of
Jewish owners. Kallus also told us that Funk even made
personal efforts to ensure that his orders were carried out
by his subordinates in a proper manner.

Gentlemen, accordingly a sense of duty on the one hand and
human feeling on the other were the motives which kept the
defendant in office and thus brought him into a situation
where he is today charged with criminal action.

Mr. President, I am now coming to a new subject and I have
altogether about fifteen more pages. Does the Tribunal wish
to adjourn now? It is six minutes to four.

THE PRESIDENT: Can you finish it by that time, Dr. Sauter?

DR. SAUTER: There are fifteen more pages; I should say about
8 to 9 minutes. On further thought, Mr. President, it will
take about half an hour.

THE PRESIDENT: We will adjourn at this time.

(The Tribunal adjourned until 15th July, 1946, at 1000 hours.)

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