Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-210.09
Last-Modified: 2001/01/10

[DR. SERVATIUS, CONTINUED]

                                                   [Page 76]

In this connection I refer also to Affidavit 5, which has
been submitted by the defense 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 safe keeping
of Jewish property and the protection of the Jews. As shown
by the evidence given by the witness Vitzdamm and as proved
by numerous other affidavits, this order was carried out
generally. I refer to the Gestapo Affidavits 6, 7 and 8.

The arrest of 20,000 Jews which followed the excesses was
caused by Himmler (Exhibit USA 240) and was carried out by
the Kreis and local police authorities. The overwhelming
majority of the Jews, however, were not transferred into
concentration camps and were released gradually. This is
proved by Gestapo Affidavit 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 a solitary gesture
and not the forerunner of worse things to come.

The Jewish question, which the National Socialist
administration had raised to a major feature of its
programme, 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
Emigration which resulted in the emigration of a large
number of Jews. During the war, too, the emigration was
continued according to plan as shown by Exhibits USA 304 and
410. In addition to that, evacuations of Jews started which
were carried out in accordance with a detailed decree of the
Chief of the German Police. On the basis of that decree, the
local Gestapo offices had to prepare the evacuation and to
co-operate with the Jewish communities. To their task
belonged particularly the equipment of these evacuees with
clothing, shoes, tools, etc. In most cases the transports
were not accompanied by Gestapo officials; the personnel was
composed of members of the Security Police, the Criminal
Police, and the Gendarmerie. The destination was not
announced in most cases. The evacuations were carried out
without friction or 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 the carrying out
of the decrees and orders originating from higher
authorities. Actually, the competency of the Gestapo in
regard to the Jewish question had not at all 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 ghettoes in Poland. This resettlement of the
Jews was the task of the Higher SS and Police Leaders and
was carried out by the regular police.

Hitler's policy regarding Jewry up to 1941 aimed only at the
elimination of the Jews from Germany by emigration and later
by evacuation, but became increasingly harsh after America's
entering the war. In April, 1942, Hitler ordered the final
solution of the Jewish question, i.e., 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, however, though his department was attached
to the organization of Amt IV of the RSHA, had actually 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

                                                   [Page 77]

left ignorant of the order and learned of it only gradually.
The evacuation and the transfer into the extermination camps
were carried through by Eichmann's Sonderkommandos. They
were composed of local police, almost exclusively regular
police. The police were not permitted to enter the camps but
were replaced immediately upon arrival at the station of
their destination. In the camps themselves 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 "Murder Commissioner for
terroristic investigation methods," had, for his special
task, his headquarters with his staff in Hitler's
Chancellery. His task was 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 "Action Reinhard," and was extremely small.
Before the beginning of the action Himmler personally
received the oath of the members and declared explicitly
that anyone who said 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 further Eastern
territories, by setting up special extermination camps in
inconspicuous places, and by a hitherto unknown system of
deception allowed these camps to be run by the Jews
themselves. The fact must be stressed that it was the
Security Police of Lublin who reported Wirth's misdeeds to
the RKPA 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. Morgen's testimony, Auschwitz was made a
centre of mass extermination of Jews by Hoess at a later
date. Because of his methods, he is said to have been called
by Wirth "an untalented pupil."

According to Dr. Morgen's testimony, the Organization
Eichmann was separated from these two Kommandos. Its task
consisted of deporting the other European Jews to the
concentration camps. According to witness Wisliceny,
Eichmann, by reason of the full powers accorded to him, was
also personally responsible 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 receive any instruction
or orders from them.

The organizations of Eichmann and Wirth were now
amalgamated, but this was done in such a way that only very
few people in Eichmann's circle knew about it. In this way,
and by the use of Jewish collaborators, the knowledge of
these killings was restricted to very few Germans and thus
the secret was maintained.

The declarations of witnesses and affidavits might differ as
to the details in the organization of the extermination
programme, 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, Muller, Himmler, kept strictest
silence about their tasks and intentions and in death they
took their secret with them. 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

                                                   [Page 78]

Police and Nebe were astonished, while Muller seemed to have
known, as his behaviour indicated. 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 pleading. I continue on Page 73,
Number IV of the original.

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 members 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 twelve 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 departmental chief
marked "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 duties 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 per cent, of the
executive officials can be accused, and not the Gestapo as a
whole.

Regarding this question, it is of special importance to know
whether the aims, tasks and methods of the organization or
group were generally known. 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, 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?

May I make a few fundamental additions to what I have
already said about the individual crimes?

The reason why the 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 No. 1,
which was submitted as Gestapo Exhibit 25, is only the
actual confirmation of a long-established practice.

Taking into consideration the demoniacal influence which
emanated from Hitler, the feeling of inviolability of all
his orders (explainable only through the demoniacal 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? So, it is really not
incredible that almost all defendants and witnesses examined
here have actually only now learnt 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, contrary to orders, about the purpose of the
vehicle. (Gestapo Affidavit 47.) Even Dr. Gisevius had to
admit that Heydrich endeavoured to keep his actions secret,
and the defendant Jodl characterized the system of secrecy
in the most striking manner

                                                   [Page 79]

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 of 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 the contrary assumption 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?

This question must be examined with regard to the so-called
"duress induced by official duties" (beruflicher Notstand)
which is not recognized in written law. It represents far
more 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 up 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 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, family 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 as well, I would consider without
hesitation that there was actual danger to life and limb for
the perpetrator in the sense of Paragraph 54 of the German
Penal Code. Here there existed what Judge Jackson called
"physical compulsion."

Moreover, in Germany every official was and is trained in
the conception of the strictest obedience to orders and
instructions from higher authority. Perhaps as nowhere else
in the world the official in Germany is dominated by the
thought of authority. He was trained in the attitude,
correct in itself, that a State breaks 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, with hypnotic power, made the small
officials particularly 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 together
created 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 all these considerations into account,
these proved crimes cannot be charged to the whole of the
Gestapo so as to declare the Gestapo criminal.

The Prosecutors state - and this is just 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 of carrying out that common plan. The
contention is that this very plan was directed towards the
unloosing and waging of an aggressive war which,

                                                   [Page 80]

in its beginning, had no definite aim, but that 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 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 is claimed that the purpose of
the conspiracy was generally known and that, therefore, no
one can claim that he acted without knowledge of it.

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 every resistance, 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 of 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 of assistance to the crime of
conspiracy against world peace, it is recommendable 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 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 as an official had learned it.
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 action 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 well-known system of secrecy, the individual
Gestapo official and the overwhelming majority of all
Gestapo members could not have bad 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 have even
understood the question.

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