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 5 of 10)

[Page 58]


How far Hitler was a demoniac has been illustrated by Goethe's words already quoted from Dichtung and Wahrheit by my colleague Dr. Dix:

" ... he (the demoniac) radiates an enormous force ... all united ethnic forces cannot defeat it ... it attracts the masses ... and it is from such remarks that the strange yet dynamic slogan may have arisen: Nemo contra deum, nisi deus ipse (No one can do anything against God except God himself)."
The effect of demonocracy in the wide world has become clear to you in some of the cases of the individual defendants. The case of the Gestapo will demonstrate to you how an institution of the State was repeatedly misused by the demoniac leaders of that State. Here, during the discussion of this preliminary question, yet another interest arises, the interest of the legal significance of demonocracy for this trial. In order to satisfy that interest I shall give another short quotation from Goethe:
"Demonocracy is a power which, though it does not oppose the moral world order, nullifies it."
According to this verdict the crucial point is that two powers determine the history of the world, "the conflict of which," as Mr. Justice Jackson said agreement with Goethe, "forms much of the history of humanity: the moral world order and the demoniac." The juridical value of this judgment for our set of circumstances becomes clear from the following considerations:

The moral world order was represented by the traditional order. Opposed to this, Hitler represented the power which, while it did not oppose it, nevertheless rendered it ineffective. In this trial the aim must be to exterminate the remains of this demoniac power. Can this and should this be done in accordance with the traditional principle of the victorious moral world order, or should it be done by other methods?

Here we have the first juridical alternative of this trial clearly before us, deriving from the greatest of possible perspectives, i.e., consideration of the differences between the moral world order and the demoniac.

[Page 59]

Controversial points of view dominate the present attitude toward these matters. The Charter on one hand has chosen the traditional specific principles of the moral world order. It wishes to see judgment passed against the representatives of demonocracy, the individual defendants and organizations, by means of an orderly trial, a proper indictment, with appointed defense counsel and resulting in a sound verdict. On the other hand, the "law of the Charter" itself, according to the words of Mr. Jackson, is "a new law" with principles which contradict the age-old traditional legal conception. As examples I quote the assumption of collective guilt and the introduction of laws with retroactive effects.

In this way it becomes apparent that the leading ideas directing this trial are in opposition to each other. It is our common task to recognize this fact and also, through joint efforts on the part of the prosecution, the defense, and the Tribunal, to arrive at a concordantia discordantium, a balance of conflicting opinions.

My leading argument as defense counsel for the Gestapo will have to be devoted, therefore, to the question of how the rules of the Charter are to be understood, according to which the Tribunal can declare, from the trial of Goering, Kaltenbrunner or Frick, that the Gestapo was a criminal organization.

Once again I must come back to the principal consideration. If two powers of historic importance to this world decide the moral world order and the demoniac, then, if this world is to be cleansed, moral order must be victorious. But is the moral world order empowered to conduct the fight against its opponent with exceptional rules which differ, themselves, from the basic principles of the moral order? For the sake of the purity of its character and of its victory, the moral world order must only fight with the weapon of its own categoric imperative, without any compromise. Because it is thus that the opponents of Hitler fought during six years of war, starting with the principles of the Atlantic Charter. But is it right that they, the declared representatives of the moral order, should now, with the battle of arms at an end, conduct the final struggle against demonism with such exceptional rules? Surely that is impossible! Would it not create the impression that the victorious powers, particularly in the realm of ethics, do not have sufficient confidence in their inmost being?

As a result, for coming generations this maxim would develop: "That which is useful to the victor is right." The pitiless vae victis would have been enthroned, although the victors had especially emphasized that they entered the lists for justice, and because of justice. With the word "Justice" the signatory powers have called the Tribunal into existence by stating in Article 1 of the Charter that an International Military Tribunal shall be established for a just trial ....

They gave the word "Justice" emphasis by having Article 16 of the Charter headed "Fair Trial for Defendants," and then they took the precaution of specifying that the regulations contained in Articles 9 and 10 are such as may be applied.

That the victors should wish to have organizations with such a reputation as the Gestapo declared criminal - who would not understand that? But they guarded against making Articles 9 and 10 compulsory regulations. In that way justice became the first remise of the Tribunal. Within its limits, therefore, the regulations that may be applied under Articles 9 and 10 are to be handled as if the entire stipulation had the following wording: "If the Court considers it just, it may declare the organizations criminal." In this way the entire decision rests on the concept of justice.

Justice in its truest form is an attribute of God - "God is just." This sentence has penetrated our consciousness in the sense that God will call to account only him who is really guilty according to the word of Josiah: "I have called you by name."

This confirms the principle which should guide all the deliberations according to which the organizations and their members must be dealt with. In the main, two elements are involved: the members of the organizations and their families,

[Page 60]

who comprise at least fifteen million people; now we have to see that the remarkable but terrible proverb - "No one can do anything against the moral order of the world except that moral order itself" - does not prove itself true because of the judgment.

From this, the following conclusion arises for my final pleas regarding the question put by the Charter to the prosecution, to the defense, and to the Tribunal, whether rules of exception are admissible, whether, above all, the organizations are to be considered collectively capable of guilt, whether laws with retroactive power may be applied - that these questions must be answered in the negative.

The counter-question, whether the world in the future can, on the basis of the system of individuality, be protected from demoniac catastrophes, and whether the Hitler catastrophe did not prove the opposite, I should like to answer to this effect: The protection of the world against such catastrophes is not a question of a system, but rather a question of determined men who rest secure in the moral order of the world.

The significance and the consequences of the demand voiced by the prosecution to have the organizations declared criminal are of tremendous scope. That is reason enough for the defense counsel to examine with the utmost conscientiousness and thoroughness, and in every possible direction, whether the foundations are present which can carry an indictment of such consequence in terms of justice, under the moral world order.

First of all, I should like to establish with all emphasis the first and most important result of my examination: A group (Gemeinschaft) cannot be declared guilty. For criminal guilt means the embodiment of conditions which are punishable not only in an objective but also in a subjective form. In other words, a crime can only be committed in terms of guilt, that is, only intentionally. According to natural concepts, we can speak of intent only in the case of a single individual but not in the case of a group, and if foreign laws are referred to in this connection, this, in the final analysis, is a case of confusing the coinciding will of numerous individual persons directed toward a fixed aim.

However, the problem of collective guilt lies in a sense much deeper. The thought of rejecting collective guilt goes back to the most ancient times. It originated in the Old Testament and through Hellenic culture and Christianity it spread over the entire world. In this way it has become the guiding legal principle of the entire moral order of the world. In Roman law this sentence was expressed clearly Societas delequere non potest. In modern times we have retained the thought of individual guilt.

On 20th February, 1946, the Pope said in his radio speech that it was a mistake to assert that one could treat a person as guilty and responsible merely because he had belonged to a certain organization, without taking the trouble to investigate in the individual case whether the person in question had made himself personally guilty through his actions or his failure to act. That would be an infringement on the Rights of God.

In the same sense the Hague Rules on Land Warfare of 1907 in Article 50 expressly prohibit the infliction of punitive fines because of the actions of individuals for which the population cannot be considered co-responsible.

Finally, the former State Secretary K. H. Frank was condemned to death and executed because he had, among other things, wiped out the village of Lidice because of the conduct of individual inhabitants thereof. That is to say, the fact that he had assumed the collective guilt of the community and inflicted a collective punishment on the village was counted as a crime. Thus, in our case, it cannot be proper to punish an organization as a whole, collectively, because of the crimes of individuals.

With these brief references I believe I have made clear that the basis of the accusation against the organizations is not firmly established. I agree with the legal statements of Mr. Jackson only in so far as he concludes his observations

[Page 61]

the statement that: "It is quite intolerable to let such a legalism become the basis of personal immunity." The personal immunity of the individual members of an organization in connection with the punishable actions committed within the organization cannot be derived from the denial of collective guilt; rather, the culpability of the individual for the punishable actions committed by him can be emphasized more strongly.

The legal basis of the whole trial against the individuals and organizations here accused is the Charter created by the United Nations.

The defense has already taken the opportunity to express its misgivings about the Charter. To this I make reference.

I want to bring out only one point of view once more. If, in case an organization is declared criminal, the former members are to be punished because of their mere membership, then they must do penance for something which was legally permitted at the time of the action. Thus the Charter establishes standards with retroactive force. The legal principle, however, which prohibits laws with retroactive force is firmly established in the law of all civilized States.

Thus the French Constitutional Assembly on 14th March, 1946, decided to give the Constitution of the French Republic, as a preamble, a new formulation of the "Declaration of Human Rights." Article 10 reads:

"No one can be condemned or punished unless on the strength of a law passed and published before the deed."
In accordance with this general international legal concept, the American Military Government in Germany ordered, through. Law No. 1, in Article 4:
"A charge can only be pressed, sentence passed, and punishment executed if the act at the time of its commission was expressly legally declared punishable."
The same law prohibits the use of analogy or so-called sound public opinion as a legal basis. Yes, the American Military Government considers the principle mentioned so important that it punishes its violation with the death penalty.

Finally, may I be permitted in this connection to mention Article 43 of the Hague Convention of the year 1899, according to which the United States of America, as well as England and France, undertook the obligation toward the other States, including Germany, in occupying a foreign country, to observe the laws of this country unless a compelling obstacle existed.

The United Nations have proclaimed that the goal of this trial is to restore justice and respect for International Law, and thus to promote world peace. They have acknowledged fundamental human rights and the recognized principles of International Law. Stamping as criminal formerly held legal political convictions, however, could be considered a limitation of this acknowledgment and could shake confidence in fundamental human rights. As a precedent, such a judgment could have disastrous consequences for the idea of justice and personal freedom.

My previous statements concerned the admissibility of the charge against all organizations. For the Gestapo there are two further factors.

The Gestapo was a State institution, an aggregation of State agencies. An agency, in contrast to a society or other private organization, pursues not self-chosen but State- ordered aims, not with its own but with State means. It fulfils its function in the framework of the total activity of the State. Its actions and measures are State administrative acts. In the case of a State agency one cannot speak of submission to a common will of the agency nor of an association, more or less by agreement, for a common purpose. Thus there is lacking here the prerequisite for the concept of an organization or group and of membership in the sense of the Charter. If private organizations cannot be considered responsible and subject to punishment, then State agencies and administrative offices certainly cannot. Only the State itself could be held responsible for its institutions if that were at all possible, never the institution itself.

[Page 62]

The institution of the police - the political police too - belongs to the internal affairs of a State. A recognized international legal maxim, however, prohibits the interference of a State in the internal legal affairs of a foreign country. And so from this viewpoint as well, there are objections to the charge against the Gestapo, which I consider it my duty, as defense counsel, to point out.

Finally, there is a further question to be examined: If the Gestapo is to be declared criminal one of the principal defendants should have been an official of the Gestapo. But was any one of the principal defendants ever an official and thus a member of the Gestapo? That this prerequisite for trial exists seems very doubtful, for Goering, as Prussian Prime Minister, was Chairman of the Prussian Secret State Police and could give orders to it, but he did not belong to it. His position as Chief of the Secret State Police was, moreover, eliminated with the appointment of the Chief of the German Police and with the Nationalization (Verreichlichung) of the Prussian Secret State Police in the years 1936 and 1937. Frick, as Reich Minister of the Interior, was the competent minister for the police, but he was never an official of any particular branch of the police. Kaltenbrunner, finally, testified that with his appointment as Chief of the Security Police and the SD he was not made Chief of the Gestapo, and in fact he was not - as Heydrich had been since 1934 - the head of the Secret State Police Office. Nor was the Chief of the Security Police and the SD on the budget of the Secret State Police but was carried on the budget of the Reich Ministry of the Interior.

In case indictment and condemnation of the Gestapo should nevertheless be judged admissible, I now turn to the question of whether the substantive legal prerequisites are given for declaring it criminal. In other words, it must be examined whether the Gestapo as a whole was a criminal organization or group in the sense of the Charter. In the examination of this question I shall follow the conditions laid down and designated as relevant in the decision of the Tribunal of 13th March, 1946.

But before I go into this question I must point out a general error regarding the type and extent of the activity of the Gestapo. Among the German people, and perhaps even more so abroad, it was customary to ascribe to the Gestapo all police measures, terror acts, deprivations of freedom, and killings, as long as they had any police tinge at all. It became the scapegoat for all misdeeds in Germany and in the occupied territories, and today it is to bear the responsibility for all evil. Yet nothing is more mistaken than that. The error arises from the fact that the whole police system, whether Criminal Police, Wehrmacht Police, Political Police, or SD, without distinction of the branches, were considered Gestapo. When Heydrich said at the German Police Rally in 1941: "Secret State Police, Criminal Police and Security Service are enveloped in the mysterious aura of the political detective story," this characterized the almost legendary atmosphere by which the Gestapo in particular is surrounded, even up to the present day. It was apparently in keeping with Heydrich's tactics to let the Gestapo appear in the opinion of people at home and abroad as an instrument of terror, to spread fear and horror of it, in order to create fear of engaging in activity hostile to the State.

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