The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Fourth Day: Tuesday, 9th July, 1946
(Part 5 of 11)

[Page 223]

DR. NELTE, Continued:

As the present State power, which in this case was represented by the Chief of State, who was identical with the Supreme Commander of the Wehrmacht, does not come into the question, we merely have to decide whether an authority which could "bind or absolve" exists above or beyond the authority of the particular State. Since the struggle for power between Pope and Emperor which dominated the Middle Ages has no longer any significance in regard to constitutional law, this power can only be impersonal and moral. The German poet Schiller expresses the highest commandment of the unwritten, eternal law in the words: "The power of tyranny has a limit .... " That is only one of the manifold poetic revelations in world literature which express the deep yearning for freedom felt by all peoples.

If there is an unwritten law which indisputably expresses the conviction of all men, it is this, that with due consideration for the necessity of maintaining order in the State, there is a limit to the restriction of freedom. Should this be transgressed, a state of war will arise between the national order and the international power of world conscience.

It is important to state that no such statute of International Law has hitherto existed. This is understandable, as freedom is a relative conception and the different conceptions existing in various States and the anxiety of all for their sovereignty are irreconcilable with recognition of an international authority.

The authority which "binds and absolves" - which absolves us of guilt before God and the people - is the universal conscience which becomes alive in every individual.

He must act accordingly. The defendant Keitel did not hear the warning voice of the universal conscience. The principles of his soldierly life were so, deeply rooted and governed his thoughts and actions so exclusively that he was deaf to all considerations which might turn him away from the path of obedience and faithfulness, as he understood them. This is the really tragic role played by the defendant Keitel in this most terrible drama of all times.

THE PRESIDENT: Dr. Kauffman - yes, go on, Dr. Kauffmann.

DR. KAUFFMANN (counsel for defendant Kaltenbrunner): Mr. President, may I first say that I have a few changes which I will announce when I come to them. I shall take about two hours altogether, Mr. President.

May it please the Tribunal; the present trial is world history - world history full of revolutionary tensions. The spirits conjured up by mankind are stronger than the cries of the tortured peoples for justice and peace. Since man was deified and God humiliated, chaos, as an inevitable consequence and punishment, has, afflicted mankind with wars, revolutions, famine and despair.

However great my country's guilt may be, it is now enduring - and permanently enduring - the greatest penance ever endured by any people.

The means adopted to restore the longed-for prosperity are wrong, because they are second-rate. And none of my listeners can question the truth of my assertion that the present trial does not begin, at the end of a period of wrong, to end that wrong, but is surrounded by the surging waves of a furious torrent bearing on its surface the hopeless wreckage of a civilisation guarded through the centuries, and

[Page 224]

in the demoniacal depths of which lurk those who hate the true God, who are the enemies of the Christian religion and are, therefore, opposed to all forms of justice.

The European commonwealth of peoples, of which my country, if only because .of its geographical position, was the very heart, is seriously ill. It suffers from the spirit of negation and humiliation of human dignity. Rousseau would have cursed his own maxims had he lived to see the radical refutation of his theories in this 20th century. The peoples proclaimed the "liberty" of the Great Revolution, but in the course of a mere 150 years they have in the name of that same liberty created a monster of bondage, cruel slavery and ungodliness, which contrived to elude earthly justice, but did not escape the living God.

This Tribunal, conscious of its task and mission, will some day have to pass before the searching eye of history. I do not doubt that the selected judges are striving to serve justice as they see it. But is not this task indeed an impossible one? The American Chief Prosecutor stated that in his country important trials seldom begin until one or two years have elapsed. I do not need to elucidate the profound core of truth contained in this practice. Could human beings, torn between love and hate, justice and revenge, conduct a trial immediately after the greatest catastrophe humanity has ever known - and constantly harassed by the statutory demands for rapid and time-saving proceedings - in such a way as to earn the thanks of mankind when the waters of this second deluge have withdrawn into their old bed?

Would it not have been better to preserve the above- mentioned distance between crime and atonement with regard to the present proceedings?

Law can be shaped only when the Court possesses that inner liberty and independence which owes allegiance only to conscience and to God himself. Such a sanctified activity had largely been forgotten in my country, above all, by the governing class of the nation; Hitler had prostituted the law. But this Tribunal intends to prove to the world that the good of the peoples is based on law alone. And no conception could arouse more joy and hope within the heart of people of good will than that of unselfish justice.

I am not criticising the provisions of the Charter; but I do ask whether any justice has been, or could be, found on earth if Might acknowledged Reason even so far as to grant its enemies some kind of regular trial, but could not make up its mind to crown this tribute to Reason by appointing a genuinely international tribunal; for even if nineteen nations have approved of the legal basis of the Charter it is far more difficult to apply it in legal form.

The American Chief Prosecutor has emphatically declared that he did not hold the entire German nation guilty; but the records of this Tribunal, which history will some day scrutinize attentively, nevertheless contain many things which, to us Germans, appear to be false and, therefore, painful. Unfortunately they also contain numerous explicit questions on the part of the French prosecution as to what extent, for instance, certain crimes against humanity committed both inside and outside Germany were known to the German people. Indeed, the French prosecution has asked explicitly: "Could these atrocities remain, on the whole, unknown to the entire German nation, or were they aware of them?" These and similar questions are not appropriate for the solution of such a difficult and tragic problem with even the slightest regard for the truth. To the extent that evil, which always grows and manifests itself organically, remains supreme in a nation, so to the same extent every individual who has reached the age of reason bears some guilt for his country's disasters. But even this guilt, which is on the metaphysical plane, could never become the collective guilt of a nation unless every individual member of this nation had incurred a separate guilt. But who would be entitled to establish the existence of such a guilt without examining thousands of individual circumstances?

The problem, however, becomes even more difficult if one tries - and this is the end aimed at - to establish the so- called national guilt for any past crimes against peace, humanity, etc., on the part of the omnipotent State, no matter in what

[Page 225]

form they may have been committed. One must bear in mind most carefully the conditions of the Reich before 1933.

This has been done sufficiently here and I shall not discuss it. Hitler claimed for himself alone such far-reaching concepts as the proverbial German diligence, homeliness, family affection, willingness to make sacrifices, aristocracy of labour and a hundred more. Millions believed in this: millions more did not. The best of them did not lose hope of being able to avert the tragedy which they foresaw. They flung themselves into the stream of events, assembled the good and fought, visibly or invisibly, against the bad. Can the man in the street be blamed for not immediately refusing to believe in Hitler, considering the latter's ability to pass as a seeker after the truth, and the fact that he constantly raised a highly extolled palm of peace before the peace-lovers? Who knows that he himself was not convinced at the start that he could strengthen the Reich without going to war? After the assumption of power large sectors of the German people probably felt themselves to be at unison with many other peoples on earth. Therefore, it is not astonishing that gradually, and with the approval or tolerance of other countries, Hitler acquired the halo of a man unique in his century. Only a German who lived in Germany during the past few years and did not view Germany through a telescope from abroad is competent to report on the historical facts of an almost impenetrable method of secrecy, the psychosis of fear and the actual impossibility of changing the regime, and thus to comply with Ranke's demand to historians to establish "how it was".

Let me say a few words about that secrecy. This trial has shown clearly that the State itself was able to suppress such facts as would lower its prestige and betray its real intentions. Even the men indicted here, most of whom, at any rate, have been termed conspirators, have been the victims of that carefully devised system of secrecy.

A special place in that system of secrecy is reserved for the plan ordered by Hitler and executed by Himmler, Eichmann and a circle of initiated persons for the biological destruction of the Jewish people, the ghastly aim of which was for years concealed by the designation of "final solution" - a term not immediately recognizable in itself. The problem of the Jewish question -

THE PRESIDENT: Dr. Kauffmann, it seems to the Tribunal a very long preamble to the defence of the defendant Kaltenbrunner, who has not been named at all yet in what you have said. Is it not time that you came to the case of the defendant whom you represent? We are not trying a charge against the German people. We are trying the charges against the defendant. That is all we are trying.

DR. KAUFFMANN: Mr. President, in the next few sentences I would have concluded, but I would like you to understand that the important word "humanity" forms the core of my case; I believe that I am the only defence counsel who intends to go more deeply into that subject; and I request permission to make these few statements. I shall come to the case of Kaltenbrunner very soon.

THE PRESIDENT: On Page 8 you have a headline which is, "The Development of the History of the Intellectual Pursuit in Europe." That seems rather far from the matters which the Tribunal has got to consider.

DR. KAUFFMANN: Mr. President, may I remind you that this question was discussed by the prosecution and especially by M. de Menthon. I do not believe that I can carry out my task if I take these tremendous crimes only as facts. A German must have an opportunity of giving a short description of the development - and it is very short. At the end of a few pages I come to the case of Kaltenbrunner; and my plea will in any case be the shortest one presented here.

THE PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far as it can, to decide the cases which it has got to decide in accordance with law and not with the sort of very general, very vague and misty philosophical doctrine with which you appear to be dealing in the first twelve pages of your speech, and, therefore, they would very much prefer that you should not read these passages. If you insist

[Page 226]

upon doing so - there it is, but the Tribunal, as I say, do not think that they are relevant to the case of the defendant Kaltenbrunner. They would much prefer that you would begin at Page 13, where you really come to the defendant's case.

DR. KAUFFMANN: Mr. President, it is, of course, extremely difficult for me to present a plea now which is already very much condensed and to condense it even more. It is really difficult. I hope that the Tribunal will appreciate that.

THE PRESIDENT: Well, Dr. Kauffmann, there has been nothing condensed in what you have read up to the present. It has been all of the most general type.

DR. KAUFFMANN: In that case may I at least read a few sentences below the headline with regard to the defence? It starts -

THE PRESIDENT: Cannot you summarize the general nature of what you wish to say before you come to the defendant Kaltenbrunner?

DR. KAUFFMANN: Yes, I shall try. I shall read only a few sentences for the sake of better understanding, from the short charter dealing with the task of the defence. I say that the defence has been established by the Charter and ask how it can still identify its task.

In this trial, error and truth are mysteriously mixed, probably more so than ever before in a great trial of law. To try to find the truth raises the defence counsel to the dignity of an assistant of the Court. Not only does it entitle the defence to doubt the credibility of the witnesses but also that of the documents. It entitles the defence counsel to state that such reports, although they may be admitted by the Charter in evidence, can only be accepted under protest, because none of the defendants' counsel or neutral observers could have any influence on the way in which they originated.

These testimonies were made, certainly, within the framework of the law, but also within the framework of power.

The people, or a large part of the people, in their aspirations towards peace and happiness, elevated the representative of an heretical doctrine to the position of their Fuehrer and this Fuehrer abused the faith of his followers so that the people, no longer possessing the strength to make a timely and open resistance, tumbled into the gigantic abyss of the annihilation of its entire racial, political, spiritual and economic existence. All of this is tragic in the truest sense of the word. Had the individual man in the street, the mother at home and her sons and daughters been asked to choose between peace and war, they would never voluntarily have chosen war. The unsatisfactory element in this trial is the absence of the man -

THE PRESIDENT: Are you reading now from some part of your document?

DR. KAUFFMANN: I am reading a few sentences, Mr. President. This is at Page 7 of the German text.

THE PRESIDENT: Cannot you summarize the argument you are presenting?

DR. KAUFFMANN: Mr. President, I would appreciate it if I could be told once more whether the Tribunal does not wish me to throw any light at all on the ideological background in the interests of an understanding of these crimes against humanity and peace. If the Tribunal states that it does not desire me to make any such statements, then of course I shall follow the wishes of the Tribunal. But such a phenomenon -

THE PRESIDENT: Well, Dr. Kauffmann, if you think it is necessary for you to read this passage you can do so; but, as I have indicated to you, the Tribunal think it is very remote indeed from any question which they have to consider.

DR. KAUFFMANN: Thank you very much. Then I shall omit a few pages and shall only present four or five pages which will be very condensed, on the subject which I have just mentioned.

The rise and the ... that begins with the heading -

"Outline of Intellectual Development."

[Page 227]

The rise of Hitler and his downfall, unique in its extent and consequences, may be viewed from any side - from the historical perspective -

THE PRESIDENT (interposing): What page are you on?

DR. KAUFFMANN: Mr. President, according to my German copy, on Page 8 "Outline of Intellectual Development in Europe."


DR. KAUFFMANN: - from the perspective of the historical spectacle afforded by the course of German history, the course of economic forces supposedly governed by irresistible laws the sociological divisions of its people, the peculiarities of race and character of the German people, or the mistakes committed in the political sphere by the other brothers and sisters of the family of nations living in the same house.

All this is certainly completes the picture of the analysis but it brings to light only partial knowledge and partial truth. The deepest and at the same time most fatal reason for the Hitler phenomenon lies in the metaphysical domain. In the final analysis the Second World War was unavoidable.

Anyone, however, who regards the world and its phenomena only from the standpoint of economics, may arrive at the conclusion that both World Wars could have been avoided if the world resources had been reasonably distributed.

Economic factors alone can never change the face of the earth; and therefore, the change in the German people's standard of living, the demoralisation of the national soul by the Treaty of Versailles, inflation, serious unemployment and other factors formed a pretext for Hitler. It is possible that catastrophes may be delayed by years or decades if certain external living conditions make the relationship between different nations and peoples appear happier. At no time, however, can a false idea be destroyed through economic measures alone, and deprived of its power to injure the individual and the nation, unless the people overcome these ideas and replace them by better ones.

"In the way in which the name of God is used by the people and nations," says the famous Donoso Cortes, "lies the solution of the most feared problem."
Here we have the explanation of the providential mission of the separate nations and races, the great changes in history, the rise and fall of empires, conquests and wars, the different characteristics of the nations and even their changing fortunes.

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