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-Fifth Day: Wednesday, 10th July, 1946
(Part 1 of 5)

[Page 254]

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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