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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
August 22, 1946

Two Hundred and Ninth Day: Thursday, 22nd August, 1946
(Part 7 of 9)

[Page 27]


I have already referred to this legal position without meeting with any contra diction. In order to support this opinion, I should like to refer to the Supplementary Berlin Agreement to the Charter of 6th November, 1945. This concerns an agreement of the four signatory powers to the Charter, the sole point of the agreement being the changing of a semi-colon to a comma. Through this agreement, we have the correction of the text of Article 6 (c), which had been separated into two parts by the semicolon in the English and French texts. The result had been that Crimes Against Humanity could have been prosecuted without being connected with Crimes Against Peace or War Crimes, which are under the jurisdiction of the Tribunal.

This possibility of interference with the internal matters of a State without any connection with a war does not now apply after Article 6 (c) has been drawn up in accordance with the Russian text.

Any interference for humanitarian reasons alone is, therefore, denied the Tribunal.

In all of their basic statements the prosecution has continually tried to establish the connection of all its charges with Crimes Against Peace and War Crimes by proving a conspiracy.

Who is included in the motion directed against the Corps of Political Leaders?

According to the Charter, it is for the prosecution to determine that circle of individuals which is to be declared criminal as an organisation or as a group. Here the motion is directed against the Corps of Political Leaders, according to National Socialist terminology.

Despite the designation which refers to an organisation, such an organisation did not exist. The designation "Political Organisation," which had been chosen for the same group of persons, was even expressly prohibited by a decree of the Fuehrer's Deputy in the Party, Hess, on 27th July, 1935. The reason given for this was that there could not exist any special organisation within the Party.

[Page 28]

Actually, this group of persons consisted only of functionaries such as exist within every party as executive and administrative agents.

But there is no doubt that there are a great number of people who, because their titles, must be defined as political leaders. It is not a group which unite together, for one could not enter the circle of political leaders merely by joining, but only through an appointment which took place without any effort on the part of the appointee by an act of sovereignty. The legal position is comparable to that of any official who enters the circle of his colleagues through his appointment. How is it that this circle comprises a special group?

Besides the appointment, only through the right to wear a uniform which was connected with it. In addition, there is the oath, but this did not represent anything special, inasmuch as all officials arid soldiers had to take it in the same way.

The duties and activities of the members of the Corps of Political Leader, however, are completely varied according to their nature and importance. There were political leaders who worked in associations, such as the German Labour Front and the National Socialist People's Welfare Association, and who wore uniforms during their practical administrative work only for decorative reasons. These are the members of the various affiliated associations who have deliberately not been included in the charges of the prosecution.

Besides these, there are political leaders who directed the actual political machinery; these were the Hoheitstrager and the members of the political staffs who are characterised by the prosecution as top leaders or main leaders.

From the reasons given by the prosecution to support its motion it appears that under the Corps of Political Leaders it means only the latter individuals, who are enumerated from Reich Leaders to the Block Leaders. From the affiliated organisations, Political Leaders were included only in so far as they were active on the political staffs which grouped themselves around the Hoheitstrager.

This circle of persons can be comprised in a special, definable group, in so far as a connection exists between them through the relationship of subordination, disciplinary power and business routine.

The number of persons so affected has been estimated by the prosecution as about 600,000 according to the number of offices existing in the year 1939. As the document used as a basis for this shows, the offices on the staffs are not included. The figures show that in addition to the Hoheitstrager, including the Cell and Block Leaders, there were about another 475,000 such offices which were filled by Political Leaders. The number of Political Leaders on the political staffs for the year 1939 is thereby increased to about one million.

As can be estimated from Party statistics, the figure is increased one and a half times because of the heavy turnover of personnel over twelve years, that is, to about two and a half million. In this connection, the fact is taken into account that in the beginning the number of offices was only half that.

If the members of the Ortsgruppenstabe are deducted, a figure of about one and one half million remains.

Not included in these figures are the office holders from the staffs who were not appointed Political Leaders and those who were ordered to serve on an honorary basis as Political Leaders during the war in subordinate positions; during the war the latter were primarily Cell and Block Leaders. According to the testimony given by witnesses, their number may be estimated at 600,000. If, like the prosecution, one includes these individuals in the circle of Political Leaders, then the entire figure of the individuals involved rises to 2,100,000. This figure is still further increased because there were also other office holders on the political staffs who were not appointed Political Leaders.

Through the circumstances that the charges raised by the prosecution are restricted to Political Leaders, a part of the persons on the staffs are not included.

[Page 29]

They are the ones who were not appointed Political Leaders even though they held office.

An extension of the charges to these persons cannot now take place subsequently without legal prejudice to those affected, since they were not given an opportunity to apply for a legal hearing in the first proclamation by the Tribunal.

Before dealing with the question as to whether this specific group is to be declared criminal, we must discuss the question of whether the charges are admissible under International Law.

According to Article 50 of the Hague Rules of Land Warfare, a collective punishment of the population is only admissible if all of the population are considered jointly guilty for individual actions. This is an exceptional regulation which serves solely for the protection of the occupying power.

In the same way a similar measure arising out of general political considerations is prohibited. You may not punish a group because the guilt for a war is imputed to its members, or because you hold them responsible for moral resistance. You cannot arrest all "political commissars" or Jews and condemn them because of their political attitude. This prohibition of the Hague Rules of Land Warfare is based on the individual principle of democratic criminal law, which has not lost its prestige.

Whether the charges of the prosecution are legal or whether the Charter has invalidated Article 50 of the Hague Rules on Land Warfare, must be examined officially.

If you consider the proceedings admissible, then we have to examine whether the group's complicity in guilt can be considered proved. How such a proof is to be produced neither the Hague Rules of Land Warfare nor the Charter indicate.

We can follow one of two principles: Either that of justice or that of expediency.

The principle of justice demands proof of individual guilt, and the condemnation of a group is to be rejected, "if there is even only one just man among them." The principle of expediency admits the possibility of outvoting the innocent ones, and thus shows a preference to punish the innocent rather than to let the guilty ones go unprosecuted.

The prosecution has stated repeatedly that the object of the Indictment is to punish only the guilty ones and not to set a trap for the innocent, or catch them, too, in one net.

These words are in accordance with the principle of justice, but the motion to characterise the group as criminal in itself rests on considerations of expediency. This apparent contradiction can be resolved only by requesting the Tribunal's decision as a procedural means in order to meet an emergency.

Accordingly, it is true that a number of innocent persons were included in the preliminary proceedings here before the Tribunal, but in subsequent proceedings they are to "have the right to raise any objections," as Justice Jackson has stated.

In its decision of 13th March, 1946, regarding the regulation of the procedure for taking evidence, the Tribunal expressed itself in a sense which makes a majority rule appear possible; a clear basis for the decision itself, or its ultimate influence on the subsequent individual trials was not created. The decision of the Tribunal in this regard must depend essentially on the results which its verdict will have.

Therefore Law No. 10 of the Control Council of 20th December, 1945, is of the utmost importance. From the text of this law it appears as if mere membership in an organisation or a group which has been declared criminal will be punishable. If that were the case the inclusion of innocent persons in the present proceedings would constitute a serious inroad into the principle of guilt which forms the basis of modern criminal law.

Such an interpretation would not be compatible with the text of the Charter. There, indeed, Article 10 declares the objection that an organisation was not criminal as inadmissible, but anybody may still raise the objection that he did not know about its criminal character.

[Page 30]

It follows also from Article 11 of the Charter that a conviction is contemplated. only because of participation in the criminal activity. The informed Press and the radio have also expressed themselves in the same vein.

The question arises, as to how the criminal character of the group is to be established, a condition which is decisive for its conviction. The attitude of the Tribunal can be learned from its ruling of 13th March, 1946. The essential factor is participation in the conspiracy. This presupposes the formation of the group for the commitment of a specific act which has been declared criminal by Article 6 of the Charter. Such a formation, however, in the case of every conspirator, is based among other things on a concrete knowledge of the crime contemplated.

As proof of this knowledge the prosecution alleges the notoriety of the crimes or the comprehensive information available to the political leaders.

The persecution of the Jews and the conflict with the Church were publicly known as general tendencies. The criminal excesses proceeding from them were not known.

In this connection the following is also important: The thing that matters is not the general knowledge of the facts but the general knowledge of the motives behind them. As far as we are concerned with genuine war crimes, the motive for the aggressive war must be known; the actions must have been recognisable as the first stage of a war of aggression. Only in this way could participation in the criminal conspiracy result.

The prosecution concludes that these motives would have been self-evident to the persons affected from the doctrine of National Socialism. There, it is claimed, aims were stated which of necessity had to lead to a war of aggression. In this way even the building up of the Party and the recruiting of members for it, as well as the seizure of power, become criminal, proceeding, as they did from the motive of a war of aggression.

It is claimed that an alliance existed for waging of an aggressive war or for the commission of war crimes.

Is this claim correct?

As manuals, the political leaders had the Party Programme and the book Mein Kampf.

The Party Programme had been attacked vigorously by domestic opponents, but no official foreign agencies had objected to it. In 1925 the High Inter-Allied Rhineland Commission in Koblenz had approved the Party Programme for the Rhineland and later the League of Nations had done likewise for Danzig. The Party was permitted, including its philosophy as expressed in the book Mein Kampf. Besides, it was known that Hitler had declared that his book was out of date in many points.

It is true that the goals to which the Party aspired could lead to a war, and it is also true that a war which aims at something which infringes on the property of someone else must include an attack on such property.

But the slogans "Lebensraum" (Living Space) and "Los von Versailles" (Away from Versailles) did not necessarily have to lead to aggressive war. There is the way of negotiation through an appeal to reason. Just as strikes, uprisings, and revolutions in the interior of a State can be justified for workers in their struggle for existence, so it may happen that war will occur in the life of nations. But the normal way is that of negotiation. Otherwise any member of an opposition party could be prosecuted for high treason.

Whether an aggressive war actually existed, which apparently went beyond the technical concept of the opening of hostilities, has been contested with cogent arguments in the proceedings before the Tribunal by many of the major defendants.

If Hitler demanded living space, the result of the war forces one to believe that other nations are taking it without condemning the principle which as a "law of

[Page 31]

life," is supposed to be the cause of this war. The archives of the world remain closed.

For the defence it is not so important to determine whether an aggressive war existed, but rather to determine whether the Political Leaders knew about it and whether it became generally obvious to them.

The facts themselves speak forcefully against the general knowledge of aggressive intentions. To every political leader Hitler's offer to disarm down to the last machine gun must have been impressive, and also his repeated declaration that the misfortune of other peoples could not bring any advantages to his own people, but rather that the welfare of all should be the basis of international life. Equally impressive must have been the naval agreement with Great Britain, his declaration to France that he did not intend to make further territorial claims, the Munich Pact, and finally the Treaty of Friendship with the Soviet Union. The latter in particular caused a wave of rejoicing because it seemed to bring about peace with the very adversary who had had hitherto been designated as our worst enemy. Precisely this treaty proves at the same time how impossible it is to derive any directives for actual practice from the book Mein Kampf.

Of primary importance for judging the rearmament of Germany as far as the political leaders are concerned is Hitler's repeated declaration that "Bundnisfahigkeit" (the ability to conclude agreements) must be established by an equality of armaments. The extent of rearmament was not perceptible in relation to the strength of our opponents and Hitler himself had declared it to be folly for such a small nation to want to challenge the whole world.

However, the cornerstone of the conviction of all the Political Leaders that no war was being planned was the fact, emphasised again and again, that Hitler himself had served as a front-line soldier in the First World War; one could not, therefore, expect him to bring about the miseries of a new war.

Thus at the 1936 Party rally in Nuremberg, on the occasion of an appeal directed exclusively to the Political Leaders, Hitler's actual words were:

"During these long years we had no other prayer than 'Lord, give our people domestic peace and grant and preserve for them peace with other nations.' In our generation we experienced so much of fighting that it is understandable if we long for peace .... We wish to care for the future of our nation's children, and to work for the future, not only in order to safeguard their lives but also to make them easier. So much misfortune lies behind us that we have only one request to address to a merciful and benevolent Providence: Spare our children what we had to suffer! We desire nothing but peace and tranquillity for our work."
These words were directed to the very same men who as Political Leaders are today affected by the Indictment.

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