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 23, 1946

Two Hundred and Tenth Day: Friday, 23rd August, 1946
(Part 1 of 10)

[Page41 ]

THE MARSHAL: May it please the Tribunal, the defendants Hess and von Papen are absent.

DR. SERVATIUS (counsel for the NSDAP): Mr. President, may it please the Tribunal, yesterday I had spoken about the individual war crimes and now I shall turn to the activities of Einsatzstab Rosenberg, beginning on Page 39 of the written script.

The activity of Einsatzstab Rosenberg was no official Party matter. As the defense counsel of the defendant Rosenberg has already explained, this has to do with an order of Hitler's giving personal instructions to Rosenberg and not to a Party agency. This is shown in Document 136-PS, which is a letter of Hitler's of 29th January, 1940, and in the Fuehrer decree of 1st March, 1942, Document 149-PS. It is confirmed by testimony given before the Commission by the witness Dr. Miller and by Graf von Roedern. An affidavit of the witness Kuenzler (No. 58-A) is to the same effect, stating that the offices of the Reich Treasurer knew that this order was intended for Rosenberg personally.

And indeed the Einsatzstab Rosenberg was not a Party organization. The members were scientists and specialists who had nothing to do with the Party and who in some cases were foreigners. All had been recruited on the basis of the compulsory emergency service law.

The leader of the Einsatz in Paris was not a "Political Leader." This special section was distinguishable by a uniform of its own.

From the financing of the Einsatzstab Rosenberg through the Reich Treasurer of the Party, the prosecution concluded that Political Leaders were involved. But Document 145-PS shows that it was only an advance of money and that the Rosenberg Ministry, as a State office, had to bear the costs. This was corroborated by the witness Kuenzler, a leading official in the Party finance administration, in Affidavit 58-A. The witness Dr. Muller, consultant for matters of private property, testified to the same effect before the Commission.

To prove direct participation of the Political Leaders, the prosecution referred to Document 071-PS, according to which the final settlement of the confiscations which had been carried out by Einsatzstab Rosenberg should be made by the Gauleiter. The preface of this document, however, shows that it applies only to the confiscations within German territory of property belonging to "ideological opponents." It is connected with Document 072-PS, which merely contains a proposition in connection with the Church question. This proposition does not suggest that the Gauleiter should confiscate things, but that they should look after them until they were taken into custody by a more competent authority, in order to prevent destruction.

These documents cannot refer to lootings abroad since no Gau offices existed there to which any such instructions could be given.

Finally, may I point out that no orders had been given as to the ultimate destination of these items. The witnesses Muller and Kuenzler stated before the Commission that they were to be dealt with in the peace negotiations. There remains the programme concerning furniture (Mobelaktion) mentioned by the

[Page 42]

prosecution, whereby the furniture of 70,000 households in France was away. This was a programme of the Eastern Ministry, and was carried out its own personnel.

In reference to prisoners of war, other defense counsel have already made the juridical situation clear, and have shown that the Political Leaders were not concerned with them.

But the prosecution has confronted the Political Leaders with Document 656, which is a directive of the OKW from the year 1944. It gives men of the guard the right of self- defense, in view of the incitement by enemy propaganda to prisoners of war to use force. In cases of extreme emergency, use of arms is permissible. The Political Leaders are in no way connected with this directive and its execution.

I have defined in detail my attitude with reference to foreign workers, in my capacity as defense counsel for Sauckel.

The witness Hupfauer has testified before the Commission and before the Tribunal regarding actual conditions. I further refer to Affidavits 55, 55a and 55d, which summarize 15,000 statements under oath. They give a reliable picture of the general living and working conditions of these foreign labourers. Everything contradicts a systematic programme of negligence and ill-treatment or a general approval of the conditions which have been alleged to exist.

It is necessary to make a special statement with reference to Document 68-EC. This is a directive of the State Farm Association of Baden, of 6th March, 1941, regarding treatment of Polish agricultural workers. It is an individual measure and it originates from a time prior to the unified regulations for the employment of labour. It does not originate from a Party office, the State Farm Association being an independent professional organization outside the Party's formations. The directive itself was rescinded by the subsequent regulations for all foreign workers.

It has been firmly established on the basis of the evidence, however, that this directive in practice was not carried through with the approval of the Political Leaders. Here reference is made to the testimony of a number of Political Leaders from the Gau Baden, which has been collected in Affidavit 68. I further refer you to the testimony of the witness Mohr (State Farm Association - Bavaria) who was heard before the Commission, to the testimony of Gauleiter Wahl for the Gau of Schwaben, and to the testimony of Ortsgruppenleiter Wegscheider for the Allgau.

With reference to the interruption of pregnancy in foreign female workers it is shown from the "Confidential Information of the Party Chancellery" of 9th December, 1943, that such interference was only carried through at the express wish of the person concerned. The list annexed to the document also shows that interference was the exception.

The accusations of the lynching of airmen who made emergency landings is the last war crime which particularly incriminates the Political Leaders.

We are not concerned here as to whether the attacks of airmen against the civilian population were admissible, or whether the rage of the population was justified, but only with the fact that a killing of these airmen by the population was permitted. It remains now to clear up the question -

THE PRESIDENT: Dr. Servatius, you are passing from the treatment of foreign workers to another part of your speech. The Tribunal would like to know what your case is with reference to the treatment of foreign workers by the Political Leaders, and whether you contend that they did not assist in placing and controlling the labourers who were brought to Germany under the forced labour program.

DR. SERVATIUS: I deny that they participated in the rounding up and bringing in of these labourers. They only had the duty of supervising the welfare of these workers, and I assert that they carried out this duty.

[Page 43]

THE PRESIDENT: You agree then that they undertook the duty of supervision of the labourers?

DR. SERVATIUS: Yes. After all, in the case of Sauckel, a number of Gauleiter were heard on the subject, all of whom have confirmed the fact that they were authorized to act in the employment of workers and that they took care of their welfare. That was dealt with m detail in the case of Sauckel.

I am just given to understand that I did not understand your question. It is a question of guarding. Mr. President, should I have commented on the guarding of the foreign labourers?

THE PRESIDENT: The words I used were whether you contended that they had not assisted in placing and controlling the labourers who were brought to Germany under the forced labour programme.

DR. SERVATIUS: Then I understood you correctly, Mr. President, and my answer can stand as I gave it.

THE PRESIDENT: You do agree that although you say they did not assist in the rounding up, I think that was the word you used, or the bringing in of the labourers to Germany, they did assist in the supervision and controlling of the labourers when they had been brought to Germany?

DR. SERVATIUS: Yes. As the persons authorized for the employment of labour they had the duty of supervising. They had to check whether the Labour Front and the factory leaders were caring for the workers properly. They had no direct responsibility, only an additional duty as Sauckel's agencies. In this way Sauckel wanted to check whether his instructions were being carried out.

THE PRESIDENT: Are you contending that they did not know the labourers had come there involuntarily?

DR. SERVATIUS: I do not deny that they came because they were obliged to. I admit that the Gauleiter had to know and did know that the majority of the workers came on the basis of a compulsory service law.

THE PRESIDENT: Thank you. I think you got to the bottom of Page 44 or near it.

DR. SERVATIUS: I was dealing with the question of lynch justice.

THE PRESIDENT: Top of Page 44, in the English.

DR. SERVATIUS: I was on Page 44. I said it remains now to clear up the question of whether such war crimes were generally tolerated and approved of by the Political Leaders.

The prosecution has submitted five documents in this connection.

Firstly, a directive of 13th March, 1940, from the Party Deputy of the Fuehrer Hess, Document 062-PS. It concerns a secret directive regarding the behaviour of the population towards shot-down aircraft and towards parachutists, and with reference to the latter it contains a directive that they are to be either arrested or "made harmless."

In order to understand these words which are dubious today, one has first to consider that we are here concerned with enemy soldiers who have been set down in order to carry out a combat action. It is hardly possible for the civilian population to arrest them and we therefore have to understand the expression to mean that other methods for safety have to be taken in order to avoid their being injured.

For the purpose of explanation it is essential to note that during the year of 1940, in view of the then prevailing air situation, one could only theoretically count on such happenings; it was a preventive measure which, according to the document itself, followed the French directives.

[Page 44]

The passage in the document asking for special secrecy can perhaps be explain by the fact that the civilian population had received a directive which might have caused them to be combatants. Actually no events have come to light since then showing that a violation of International Law was committed against airmen. Furthermore, the "Confidential Information of the Party Chancellery" of 4th December, 1942, speaks clearly against such a measure. It specifically rejects a measure against airmen which was taken in Japan.

The later documents, however, openly approving of and giving incitement to war crimes, have to be judged differently. In this case examination of the documents has to determine to what extent the Political Leaders had knowledge in general or were participants.

Himmler's order, dated 10th August, 1943, Document R-110, is addressed to the Higher SS and Police Chiefs. According to this, the "competent Gauleiter" had to be informed; but only those were competent who held official position, that is, Reich Defense Commissioners and Reich Governors (Reichstatthalter). Therefore this had nothing to do with activity in the political sector.

The Party Chancellery would have been competent for such an incitement. Thus the conclusion is to be drawn that not all Gauleiter were informed and in any case no Kreisleiter nor the subordinate Party offices. I draw your attention to the evidence of the witness Hoffman during his interrogation of 2nd July, 1946.

The other Gauleiter too have confirmed in this connection that they were informed of Himmler's directives to the police officers only in their capacity as Reich Defense Commissioners.

Bormann's circular of 30th May, 1944 (Document 057-PS) was intended to inform all Political Leaders that they should tolerate the lynching of airmen; it was the result of Goebbels's Press article of the previous day.

THE PRESIDENT: I am not quite sure that I understand what your argument is there. Is your argument that in the Document 110, the competent Gauleiter does not include all the Gauleiter?

DR. SERVATIUS: Yes. Only those who were Reich Commissioners. They received the information from the police agencies in their capacity as agents of the State, while the other Gauleiter who did not have State positions - and there a number of them - were not informed. And another result is that a Gauleiter in his capacity as Reich Defense Commissioner did not inform his political subordinate, so that the Kreisleiter did not receive any information about this.

THE PRESIDENT: Do you say that the Gauleiter ceased to have control over their Gaue unless they were appointed Reich Commissioners and Reichstatthalter?

DR. SERVATIUS: The offices were separated, and instructions only reached the Kreisleiter if they were Party instructions, so that in the prescribed official channels in any case, no -

THE PRESIDENT: That is not the answer to my question. What I asked you was, are you saying that the Gauleiter who were not Reich Defense Commissioners or Reichstatthalter had ceased to hold any authority in the Gaue of which they were Gauleiter?

DR. SERVATIUS: No, I do not mean to say that. I only want to say that these instructions did not pass through the usual channels. I have cited witnesses who testified that the Kreisleiter actually did not receive any knowledge of these instructions. It was different with the next instructions. Later they could and should have received knowledge of these instructions but not in the case of this directive of Himmler's.


[Page 45]

DR. SERVATIUS: The next is a letter. Bormann's circular of 30th May, 1944 (Document 057-PS) was intended to instruct all political leaders to tolerate the lynching of airmen. This is the result of Goebbels's newspaper article of the preceding day, in which he addressed the population directly.

For the defense it is essential to determine in which way the Political Leaders co-operated, and whether these war crimes were committed everywhere with their consent and general approval. The contrary seems to be the case. The three Gauleiter who testified before the Commission concurred in stating that they realized the effects which the circular might have, and that they did not forward it to the Kreisleiter, contrary to the orders given them. These are the witnesses Hoffman, Kauffmann and Wahl. The same was testified to by the Gauleiter of Mecklenburg, Weser-Ems, and Tyrol (Affidavits 61-E, 61-H and 61-G).

The fact that most of the Kreisleiter had no knowledge of the Bormann decree indicates that the same was done in other Gaue. So far as they received the decree, they did not translate it into practice in their Kreis and did not forward it because of its dangerous nature. I cite the following witnesses in this connection: Meyer-Wendeborn for Kreis Oldenburg; Kuehl, Kreisleiter of Ost-Hannover; Biedermann for Gau Thueringen; Brueckmann, Kreisleiter of Hessen-Nassau; Naumann, Kreisleiter of Saxony; Eber, of Gau Westmark; Haus, Kreisleiter in Wetzlar.

The above-mentioned witness Hoffman belongs to those witnesses who confirmed that they did not forward the decree. An announcement concerning the admissibility of lynching was made in his Gau on 25th February, 1945, that is, nine months later. In connection with this matter it is worthy of note for the Political Leaders that this witness hesitated such a long time to act according to the desires of Bormann and Hitler. During his testimony before the Commission, the witness declared that he had withdrawn his draft, and that the announcement was made without his knowledge. In fact, in his Gau, the order was never carried out (proved by affidavit of Scholtis).

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