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 4 of 10)

[Page 54]


He had become the sole political head and therefore had to concern himself with public affairs.

Actually, those Gau- and Kreisleiter who were examined here did concern themselves with current happenings. They investigated the transporting of the Jews. They endeavoured to get into concentration camps and investigated the conditions of foreign workers. They voiced their misgivings and they made protests.

Did they fulfil their obligations that way? In this connection we have to examine the question of the sharing of responsibility. It is not possible for all to concern themselves with everything. The lowest offices have practical concerns of a local nature, and they cannot be concerned with the problems found at the top level.

The Kreisleiter, who passes on reports upon individual incidents to the Gauleiter, must be credited with this distinction, particularly in a dictator State, but he must concern himself with the result of his reports, and draw his own conclusions.

This is still more imperative with the Gauleiter, in view of his superior position. There exists a limit where moral principles are concerned and daily routine no longer matters. When one was in Himmler's sphere of influence, did one really have to drive on, regardless of what would happen? An answer to this question has already been attempted several times. Must one really demand action immediately and without compromise? Is it really "All or nothing"? Can one afford to let things take their course, or is it "Now or never"? Must one define guilt and merit and can one hope for improvement? Is it sufficient to remain at one's post when one disapproves, or hopes to prevent worse by remaining, or does one become guilty too by remaining and keeping up appearances? Has he who "always takes pains to make an effort" any justification? Must he take up the struggle against adverse circumstances, even if his own life seems uselessly cast in the balance, or should he endure and bow to fate?

"To be or not to be," that is the question.

An answer cannot be found without thorough examination of the legal basis of guilt: knowledge, sanction and criminal negligence.

If the criminal nature of this group is to be established, these questions must first be decided upon.

Such an examination can be carried out for individual cases only. It is practically possible in the case of a group of two thousand Kreisleiter and Gauleiters. These persons are known, their actions took place in public and are not difficult to bring to light.

There remains the group of the Reichsleiter. The same views are applicable to them as to the Gauleiter.

Himmler, who only had the rank of Reichsleiter, does not belong to this group (Document 59A-PL). That position of Reichsleiter, however, is of great legal

[Page 55]

importance to all Political Leaders. They include the principal defendants, only in connection with whose actions, according to Article IX of the Charter, the conviction of the group can take place.

The Trial Brief only mentions Rosenberg and Bormann. Only Annex B of the supplement to the Trial Brief added four more Reichsleiter, thus including the Gauleiter Sauckel and Streicher.

Frick, too, held only the rank of Reichsleiter, which is in contradiction to the direct inclusion of his actions.

Where the other principal defendants are concerned, one must examine whether they committed the acts with which they have been charged in their capacity as political Leaders, or in another capacity.

The prosecution has recognized the legal significance of this distinction by referring in the summary of the Trial Brief only to those deeds of Rosenberg and Bormann with which they are charged in their capacity as Political Leaders.

One must not depart from this distinction. The ruling of Article IX of the Charter is no purely formal prerequisite for the trial. It is a material limitation of the extent of the criminal group.

The group is not to be formed arbitrarily and without limitation by the prosecution, but there must be some connection between it and the act of one of the principal defendants. This is only possible if one of the principal defendants acted within the Corps of Political Leaders. The connection also does not exist where the effect of the action of one of the principal defendants does not affect all levels of the Political Leadership Corps; this is to be considered in passing judgment on the lower grades.

The connection is lacking in the case of those principal defendants whose connection with the Corps of Political Leaders was established only later, with the exception of Hess.

In the case of Rosenberg, the actions with which he is charged were essentially in the sector of the State where he was active as Reich Minister for the Occupied Territories.

The actions of Bormann as Chief of the Party Chancellery from 1941 on are of the first importance in judging the Political Leaders. As a result of the absence of this principal defendant, however, it is of doubtful wisdom to base the condemnation of the group on his deeds, since there was no close investigation of the occurrences. For the most important charges, it would have to be cleared up whether Bormann acted as Chief of the Party Chancellery, or as secretary of the Fuehrer outside of the Party machine, or whether he acted independently contrary to all instructions (Document 53).

It is noteworthy that Hess, Bormann's superior, is not included in the original Trial Brief, although until 1941 he was deputy of the Fuehrer in the Party.

Presumably, the prosecution was at that time of the opinion that he could not be charged with any action, in connection with the Corps of Political Leaders, which would indicate a criminal character. This is a significant point of view for the judgment of the group as regards time.

The actions of Gauleiter Sauckel and Streicher cannot be taken as a standard for the Political Leaders as a whole. As Gauleiter they could only act in their own districts. The actions with which they are charged in this trial they undertook outside their function as Political Leaders, namely as Plenipotentiary General for Labour Mobilization or as newspaper publisher.

I want to present two additional legal viewpoints which can be of significance for the judgment. One idea is retroactivity of the possible verdict. I do not want to attack it as legally inadmissible since the Charter has ordered it, but since the verdict is at the discretion of the Tribunal, the matter of fairness can be considered here.

Retroactivity in an individual trial can be justified by the fact that the perpetrator was warned and must have realized the position. It is different with the great

[Page 56]

number of little Political Leaders, who are made responsible for a conspiracy only indirectly through their leaders.

The second point of view is the lack of legal hearing. In these proceedings before the Tribunal, a preliminary decision was reached which was decisive for every member of the organization. Therefore, everyone was given the right to request a legal hearing. Only comparatively few have made use of this right.

One must assume that many have not been informed of their right or have had no opportunity to submit their applications to the Tribunal. There are applications from only about one-third of the camps of the English and American zones; in the French zone, from only two camps; but particular reference should be made to some areas from which no applications at all have been received.

There are no applications from Austria, and the camps there could not be visited. The permission of the military authorities was given, but the approval of the Control Council was not received. This is noteworthy since there are special circumstances in this case which might possibly exonerate the members; special treatment and judgment, especially in regard to time, is advisable.

Nor are there any applications from the Soviet zone, although the official announcement is said to have been made. I myself only recently had an opportunity to visit two camps. Those interned there declared that they knew nothing of their right to a hearing; not all wanted to submit applications.

For these districts, therefore, the defense was in a rather critical state as regards evidence. For these zones a few Political Leaders were heard who could be reached in British or American camps. Although one obtains a certain picture in this way, the taking of evidence before the Commission has shown that there may be other testimony of significance for the defense.

Thus a Kreisleiter of the West was able to testify that the construction of the West Wall had convinced people there of Hitler's defensive intentions. A Kreisleiter of the North referred to the Naval Treaty with Britain, which the coastal population particularly considered a sign of the will for peace. Other witnesses have brought forward noteworthy arguments from the Church membership of the Political Leaders in their district.

The real significance of the limitation could be judged only after a hearing, so that a judgment on this subject is not yet admissible.

The following question is also of considerable significance for the trial: The Charter has guaranteed the opportunity of a hearing. Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unequivocal rejection, and I assert it emphatically.

THE PRESIDENT: Mr. Biddle would like to know exactly what you mean by those last two sentences.

DR. SERVATIUS: I did not hear what you have said.

THE PRESIDENT: Mr. Biddle would like to know what you mean by your last two sentences, "Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unequivocal rejection, and I assert it emphatically." Does that mean anything?

DR. SERVATIUS: It means that I cannot forfeit the right to raise the objection that in entire territories hearings have not been made possible, that is, in Austria and the Soviet zone. And it is an objection which I cannot forgo but which must be officially taken into consideration.


DR. SERVATIUS: The observation regarding divergent practices in the interpretation of Article 9 of the Charter must be made from another point of view also. It has to do with the danger of divergent interpretations and applications of the

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Tribunal's verdict with regard to the organizations. Therefore, in addition to a specification of the group of persons affected by the verdict, a clarification of the elements of guilt to be proved should be laid down in the interest of subsequent separate trials.

Also the degree of punishment is uncertain. The scope of the penalties fixed in Law 10 of the Control Council, which ranges up to the death penalty, offers no legal protection if their interpretation is left to the free decision of the various national tribunals which may subsequently sit in judgment. The judgment of the Tribunal might cause new harm. Particularly in this regard the Tribunal must see to it that the goal which it seeks to attain will be attained. The punishment must not become a revenge. The measure of punishment must not be based on the theory that millions of victims necessarily implies the guilt of millions, who must be brought to punishment.

If the basic aim of the judgment is to deter, the following must be borne in mind:

None who appeared before this Tribunal has attempted to justify the crimes which are the subject matter of this trial.

All who appeared here divorced themselves from these crimes.

No one has declared that the extermination of the Jews had been necessary, or that a war of aggression was a goal worth striving for, or that the persecution of the Church and the concentration camp atrocities could not have been dispensed with.

Only if this had been the case would this be a trial involving an ideology which was to be eliminated.

That is why there is no typical advocate of this ideology, who would have said, "I have millions behind me," or "I cannot do otherwise, God help me!" The millions were set in motion by another goal for which they fought. This goal was not the world of crime, but the shining radiance of socialism. The masses believed that a miracle of progress would succeed the period of misery and were strengthened in their belief. They are ready to believe once more.

The foundation of this belief is the justice of the verdict against the organizations, by which the entire population will be affected.

This verdict must inaugurate an era of new International Law and punish those who are responsible for the war. It is only just that the old legal concept should disappear from the stage of world history which punishes an entire people by means of peace treaties with annexations and contributions, without regard to guilt.

Today we face the threat of twofold and threefold punishment, by the peace treaty, by Law 10 of the Control Council, and by the law for denazification.

We are still in a state of war and this trial has been called the continuation of the war effort.

But there must be peace and "Should war not end with the war, whence then shall come the peace?"

THE PRESIDENT: Dr. Servatius, the Tribunal observes with appreciation that you have kept within the limit of time which the Tribunal hoped would be kept to by all counsel on behalf of the organizations. You have made your speech within half a day, but some of the other speeches which have been deposited for translation appear to be very much longer than yours, and the Tribunal wishes me to point out to those counsel that they will have to make their speeches also within half a day.

The Tribunal will now adjourn.

(A recess was taken.)

THE PRESIDENT: We call on Dr. Merkel.

DR. MERKEL (defense counsel for the Gestapo): Mr. President, may it please the Tribunal, in the proceedings against the individual defendants the

[Page 58]

deeds of individuals were examined. During the proceedings against the organizations the question we are concerned with is whether a new basic principle is to be introduced into the legal structure of this world. The trial of the Gestapo is given its significance by the conception of the prosecution that the Gestapo had been the most important instrument of power of the Hitler regime.

If I am to defend the Gestapo, it is with the knowledge that a terrible reputation is associated with that name, yes, even that horror and fear are radiated by it, and that waves of hatred beat against this name.

The words I am about to speak will be spoken without regard for the opinions of the day because I hope to be able to present factual and legal evidence which will place this High Tribunal in a position:

1. To examine whether by sentencing the organizations a legal development will be introduced which will serve humanity;

2. To establish the truth regarding the Gestapo and by this:

3. To spare the innocent amongst the former members of the Gestapo from an unfortunate fate.

The first two tasks necessitate the answering of a question which represents a preliminary problem connected with the problem of the Gestapo as a whole.

No allegation made by the prosecution has shaken me more than the assertion of the British Chief Prosecutor that the Germans, after six years of Nazi domination and through replacing the Christian ethical teachings by idolatry of the Fuehrer, and by the cult of blood, had become a degenerate nation. If this assertion is just, then, apart from the circumstances just mentioned, this is due to yet another extraordinary factor - a factor of a character so unusual that history hardly knows it: the symptoms of the demon, the demon in Hitler, and the infiltration of the demon's spirit into his regime and into the institutions which he created and employed.

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