Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-210.10
Last-Modified: 2001/01/10

[DR. SERVATIUS, CONTINUED]

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 ending at all costs, and by
using means which were criminal in themselves and 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 ourselves. It
may have happened that some thinking individuals, who had
not entirely lost their soundness of judgment, had 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 as the opposite case is the more
likely, it is impossible

                                                   [Page 81]

to establish the existence of this suspicion or certainty to
any great degree in the minds of all the members of the
Gestapo.

The prosecution assumes, and quite unjustly, in my opinion,
that every activity of the Party, but, 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. The National Socialist struggle
against Jewry sprang from the doctrine of anti-Semitism
which had become part of the Party programme 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 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; in any case, that was the way in which
the German people-and therefore the Gestapo officials-
regarded the measures taken. It did not occur to anyone to
see in them evidence of a conspiracy against world peace.

One last point, however - perhaps the most profound - must
not be overlooked in this connection. The German soldier,
the German official, the German working man, and indeed
every German knew that the war had placed us in a situation
which meant a struggle to the death. In the course of the
war it gradually became terrifyingly 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 behaviour of the German
people and its political police we must take these factors
into consideration in order to be fair and just.

The prosecution has stated that the Tribunal is in a
position to restrict its decision with regard to the
collective guilt of the organizations - whether in regard to
certain sub-groups or 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, in fact,
they did not have such knowledge.

(1) Administrative officials. They did not receive their
instructions from the office of the Secret State Police or
from Amt IV of the RSHA, but from Amter I and II of the RSHA
whose members are not covered 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 the designations of duties, 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.

When the prosecution argues that the activities of the
executive constituted the pre-condition for the activities
of the administrative officials, this argument is as
ineffective as my arguing that the activities of the
officials of the Reich Finance

                                                   [Page 82]

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. Chief Justice Jackson, in
his speech of 1st March, 1946, excepted two groups of
persons from the Indictment against the organizations,
firstly, the SA Reserve and, secondly, the office employees,
stenographers, and general labourers of the Gestapo. A part
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 officials,
teletypists, telephonists, draftsmen and interpreters, are
to be included in this excepted group, no matter whether
their membership of the Gestapo was based on a free labour
contract, or whether the labour 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 who dealt with technical
communications. This statement makes 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 were not bound to realize that they belonged
to an organization whose activities might be criminal. This
group of persons; too, may 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
fifty-one groups of the Secret Field Police and the Military
Counter-Intelligence Service, including Foreign Censorship
and Telegraph Censorship Offices, who 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
fifty-one groups? Can you tell the Tribunal where those
fifty-one groups are specified? In what document?

DR. MERKEL: The testimony of Krichbaum, who was examined
before the Commission. Even with reference to these groups
there 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 when he was collectively transferred on
the basis of an order emanating from the highest office 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 constituted by the
executive officials. The executive officials originated in
the political department staffs of the police commissioners'
offices prior to 1933. These 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 these
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 from other police
departments to the Gestapo without consulting them
beforehand. In the same way municipal police officials with
a long record of efficiency, who wished to remain in the
police service, were transferred after

                                                   [Page 83]

nine years' service to the Criminal or State Police. They
had no control as to which department they were to be
employed in.

With reference to the Counter-Intelligence and Frontier
Police, I can demonstrate that the members of these bodies,
who were included as officials of the Secret State Police
executive, could have nothing whatsoever to do with the
crimes of which the prosecution accuses 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 Gestapo Affidavits 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 were 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.

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 interrogation, 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 participate in any other crime with which the
Gestapo is charged.

These two groups of the Gestapo numbered five to six
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 per
cent of the total strength. If we deduct from that the five
to six thousand men belonging to the Counter-Intelligence
and Frontier Police, there remain nine to ten thousand
executives, or 12 to 13 per cent 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 common State law of all
countries. But even if those legal objections did not exist,
no sentence could be pronounced, as the characteristics of
criminality as defined by Chief Justice Jackson, on 28th
February, 1946, do not appear in the case of the Gestapo.
And even if this argument is not valid, I ask: Is it
possible that - simply because some of its members may
perhaps 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 and which aimed
at sabotaging certain evil orders issued by the head of the
State.

I turn now by way of precaution to an argument dealing with
the question of time limitations. I may 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.

In Prussia, Ministerialrat Diels had acted with one short
interruption as deputy head of the Secret State Police under
Goering. It is impossible to connect Diels with the illegal
tendencies which became apparent after the outbreak of the
National Socialist Revolution. I may refrain - and owing to
pressure of time I must refrain

                                                   [Page 84]

- from pointing to those who were really guilty of those
excesses; compare Affidavit Number 41.

As a State institution, the Gestapo had no part in the
events of 30th June, 1934. In the following period up to 9th
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 witness Best testified, a matter outside the competence
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, at least up to the beginning of the
war, 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
sentenced considerable time limitations must be made. I have
indicated briefly the insurmountable nature of the
difficulties in the way of a time limitation.

CONCLUSION

And with this, gentlemen of the High Tribunal, I end my
remarks on the Indictment of the Gestapo. I did not consider
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 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 only concluded 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 narrative
of revolutions among the nations, of economic need and of
unspeakable sorrow. The last pages, however, are written in
blood - the blood of millions of innocent people. They speak
of unimaginable cruelties, of utter disregard of the sacred
laws of humanity and of mass murders which brought suffering
to the peoples of Europe.

With your judgment, gentlemen of the High Tribunal, you will
write the last chapter of this narrative - 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 liberty and justice.

This justice, I hope, will inspire the judgment which is
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 also 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 unsure basis, and would
thereby mutatis mutandis repeat Hitler's idea of punishing a
people - the Jewish people - collectively and of
exterminating them.

                                                   [Page 85]

Out of this injustice against the laws of God and of Nature
was born the indignation of the creatures 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 if
even one just man had 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 test of History and the
Court of the World: Place your signatures 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 Monday, 26th August, 1946, at
1000 hours.)

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