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 10 of 10)

[Page 80]


The Gestapo as a whole can only be charged with responsibility for the crimes committed by members of the Gestapo during the war when those crimes - apart from the general knowledge of them - were committed with the knowledge that they formed part of a plan to bring the war of aggression to a victorious ending at all costs, and by using means which were criminal in themselves and conflicted with International Law. That cannot be proved either. The preliminary condition would again be that the Gestapo officials who participated in the crimes knew that the war which we waged was a war of aggression. Now we all know that a perfectly organized propaganda, which reached even the remotest hamlets, never spoke of the war except as something forced upon us criminally and that Hitler himself always spoke of the war which others wanted and not ourselves. It may have happened that some thinking individuals, who had not entirely lost their soundness of judgment, had their doubts and may have thought vaguely that our Government was not altogether blameless in regard to this war which had been forced upon us; but as the opposite case is the more likely, it is impossible

[Page 81]

to establish the existence of this suspicion or certainty to any great degree in the minds of all the members of the Gestapo.

The prosecution assumes, and quite unjustly, in my opinion, that every activity of the Party, but, above all, its fight against the Jews, against its political opponents and against the Churches, arose out of the intention and plan to eliminate all tendencies standing in the way of the war of aggression it proposed. The National Socialist struggle against Jewry sprang from the doctrine of anti-Semitism which had become part of the Party programme and which saw in all Jews an element destructive to the State. Because this fight was an immoral one, the Christian Churches rightly protested against it. This explains to a great extent the fight between Party and Church. The steps taken by the Party against its political opponents - especially against the Communists - were, in all probability, taken in the first place for the purpose of maintaining and protecting the State; in any case, that was the way in which the German people-and therefore the Gestapo officials- regarded the measures taken. It did not occur to anyone to see in them evidence of a conspiracy against world peace.

One last point, however - perhaps the most profound - must not be overlooked in this connection. The German soldier, the German official, the German working man, and indeed every German knew that the war had placed us in a situation which meant a struggle to the death. In the course of the war it gradually became terrifyingly clear that it was a question of existence or extermination. Indeed, you would be misjudging the soul of the German people if you overlooked the fact that every decent German, when he realized this horrible truth, felt himself under an obligation to do everything which was expected of him in order to save his country. And when we judge the behaviour of the German people and its political police we must take these factors into consideration in order to be fair and just.

The prosecution has stated that the Tribunal is in a position to restrict its decision with regard to the collective guilt of the organizations - whether in regard to certain sub-groups or in regard to time. The organizational structure, the variety of the groups of individuals active within the Gestapo, and the results of the evidence presented in reply to the prosecution's assertions concerning the criminal activities of the Gestapo, form the basis for a possible limitation in regard either to persons or to time - which I should like to have taken into account should the High Tribunal arrive at a verdict of guilty. Criminal participation in the crimes listed under Article 6 of the Charter can certainly not be imputed to the following groups of persons, for they neither committed crimes themselves nor did they plan to commit them, much less actually commit them collectively; nor could they have had knowledge of criminal plans and activities; and, in fact, they did not have such knowledge.

(1) Administrative officials. They did not receive their instructions from the office of the Secret State Police or from Amt IV of the RSHA, but from Amter I and II of the RSHA whose members are not covered by the charges raised against the Gestapo. The rooms occupied by the administrative offices were never in the same place as those of the executive officials. Administrative officials had no insight into the activities of executive officials, partly because of the secrecy obligation which has been mentioned many times and which was observed particularly strictly in the Gestapo, partly because the administrative officials were looked upon by the executive officials as merely nominal members of the Gestapo, and were treated with marked reserve.

The difference in the designations of duties, such as Police Inspector for police administrative officials and Criminal Inspector in the case of the executive service, must be pointed out in order to stress the fundamental difference between these two categories of officials.

When the prosecution argues that the activities of the executive constituted the pre-condition for the activities of the administrative officials, this argument is as ineffective as my arguing that the activities of the officials of the Reich Finance

[Page 82]

Ministry, which secured funds for the salaries and other expenses of the Gestapo, was the cause of the activities of the executive officials.

(2) Employees and wage-earners. Chief Justice Jackson, in his speech of 1st March, 1946, excepted two groups of persons from the Indictment against the organizations, firstly, the SA Reserve and, secondly, the office employees, stenographers, and general labourers of the Gestapo. A part of the groups of persons which I have dealt with are thereby already excepted from the Indictment, but I deem it nevertheless my duty to point out that this group of persons, both on account of their subordinate positions and the consequent impossibility of their acquiring detailed knowledge of the Gestapo's activities, has been very justly excepted in its entirety from the Indictment. It is my opinion that all employees and wage-earners, including, for instance, drivers, as far as they were not officials, teletypists, telephonists, draftsmen and interpreters, are to be included in this excepted group, no matter whether their membership of the Gestapo was based on a free labour contract, or whether the labour office directives allowed them the choice of a different place of work.

(3) The witness Hedel has made a detailed statement on the activities of the staff who dealt with technical communications. This statement makes it clear that they had nothing at all to do with executive work; that they were not in a position to have any knowledge of the activities of the executive staff, and that on the basis of their own activities they were not bound to realize that they belonged to an organization whose activities might be criminal. This group of persons; too, may justly be treated as exceptions.

(4) The same applies to groups of persons who in the years 1942 to 1945 were collectively transferred to the Secret State Police on orders from higher quarters; They are the fifty-one groups of the Secret Field Police and the Military Counter-Intelligence Service, including Foreign Censorship and Telegraph Censorship Offices, who were subordinated to the Gestapo by the Wehrmacht, and the Customs Frontier Service, which was subordinated to the Gestapo by the Reich Ministry of Finance.

THE PRESIDENT: Dr. Merkel, were you referring just now to fifty-one groups? Can you tell the Tribunal where those fifty-one groups are specified? In what document?

DR. MERKEL: The testimony of Krichbaum, who was examined before the Commission. Even with reference to these groups there cannot be the slightest doubt that neither the fact of voluntary membership nor the knowledge of criminal aims, as alleged by the prosecution, nor the fact of an alliance applies. The individual, no matter what rank or office he held, was powerless when he was collectively transferred on the basis of an order emanating from the highest office of the Wehrmacht and the State. Disobedience to this order would have been punished by death, on the charge of desertion or military disobedience.

(5) There still remains the group constituted by the executive officials. The executive officials originated in the political department staffs of the police commissioners' offices prior to 1933. These officials, who had been employed in part even before 1914 and currently up to the year 1933 in combating the various political opponents of the various governmental systems and the governments which came into power through them, were almost without exception absorbed by the political police of the new regime. The only exceptions were those officials who had been particularly active as opponents of National Socialism. But even these were only dismissed in rare cases. For the most part they were transferred to the Criminal Police.

The staff of the Secret State Police was filled up by transferring officials and candidates from other police departments to the Gestapo without consulting them beforehand. In the same way municipal police officials with a long record of efficiency, who wished to remain in the police service, were transferred after

[Page 83]

nine years' service to the Criminal or State Police. They had no control as to which department they were to be employed in.

With reference to the Counter-Intelligence and Frontier Police, I can demonstrate that the members of these bodies, who were included as officials of the Secret State Police executive, could have nothing whatsoever to do with the crimes of which the prosecution accuses the Gestapo. The Counter-Intelligence Police exercised their police activities in a manner common to every civilized State, as one of the most noble tasks of the police or their affiliated institutions. It is clearly established through the testimony of Best and through Gestapo Affidavits 39, 56. and 89, that the staff of the Counter-Intelligence Police did not change very much; and in view of the special obligation to secrecy and for the sake of the defense of the country, a transfer to other Gestapo or police departments was not permissible as a rule. The Counter-Intelligence Police were mostly isolated within the Gestapo offices and had no official contact with other departments. The cases handled by the Counter-Intelligence Police were always submitted to the regular courts for decision.

The functions of the Frontier Police from 1933 to 1945 were the same as in the preceding period and the same as those carried out today by the officers of the new Frontier Police. The officers of the Frontier Police did not carry out third degree interrogation, nor did they submit applications for commitment to a concentration camp, nor did they - and most of them had served for a long period in the Frontier Police - participate in any persecution of the Jews, nor could they on account of the nature of their employment participate in any other crime with which the Gestapo is charged.

These two groups of the Gestapo numbered five to six thousand individuals. On the basis of the figures which I have previously submitted for the strength of the separate groups of the Gestapo, I estimate the number of its staff, during the period when it was numerically strongest, at approximately 75,000. The executive officials, numbering approximately 15,000 men, therefore constituted only 20 per cent of the total strength. If we deduct from that the five to six thousand men belonging to the Counter-Intelligence and Frontier Police, there remain nine to ten thousand executives, or 12 to 13 per cent of the total strength.

I believe I have already advanced sufficient reasons as to why the Gestapo, as a subordinate part of the State organism, cannot be sentenced at all, for reasons which are based both on natural law and on the common State law of all countries. But even if those legal objections did not exist, no sentence could be pronounced, as the characteristics of criminality as defined by Chief Justice Jackson, on 28th February, 1946, do not appear in the case of the Gestapo. And even if this argument is not valid, I ask: Is it possible that - simply because some of its members may perhaps be held responsible for the commission of crimes - an organization as such can be declared criminal, including also those members who certainly did not act in a criminal manner and had no knowledge of the criminal acts of others?

I am referring to the summary of affidavits given by a large number of former members of the Gestapo who are at present in internment camps. I must also draw your attention to the numerous acts sworn to in those affidavits and which aimed at sabotaging certain evil orders issued by the head of the State.

I turn now by way of precaution to an argument dealing with the question of time limitations. I may be more brief. The Gestapo cannot be described as being under unified leadership throughout the Reich, and hence of having a unified will - at least up to the time of Himmler's appointment as deputy chief of the Prussian Secret State Police, that is up to the spring of 1934.

In Prussia, Ministerialrat Diels had acted with one short interruption as deputy head of the Secret State Police under Goering. It is impossible to connect Diels with the illegal tendencies which became apparent after the outbreak of the National Socialist Revolution. I may refrain - and owing to pressure of time I must refrain

[Page 84]

- from pointing to those who were really guilty of those excesses; compare Affidavit Number 41.

As a State institution, the Gestapo had no part in the events of 30th June, 1934. In the following period up to 9th November, 1938, the Gestapo did not play any role which could justify the charge of criminality. The arrest of 20,000 Jews which the Gestapo was ordered to carry out was, as witness Best testified, a matter outside the competence of the police. It is therefore impossible to fix that date as the beginning of the criminal activity of the Gestapo. It must be stated that, at least up to the beginning of the war, the criminal character of the Gestapo cannot be proven.

Does the basis of judgment change for the period covered by the war? I have already stated that the activities of the Einsatzgruppen and Sipo offices in the occupied territories cannot be charged to the Gestapo, since leadership, organization, personnel and order of command of those offices do not permit discrimination against the Gestapo.

There is not the slightest doubt that if the Gestapo is sentenced considerable time limitations must be made. I have indicated briefly the insurmountable nature of the difficulties in the way of a time limitation.


And with this, gentlemen of the High Tribunal, I end my remarks on the Indictment of the Gestapo. I did not consider it my duty to excuse crimes and evil deeds or to whitewash those who disregarded the laws of humanity. But I desire to save those who are innocent, I desire to clear the way for a sentence which will dethrone the powers of darkness and reconstitute the moral order the world.

If we glance through the annals of European history in recent decades and centuries, we read again and again how might conquered right among the nations and how the spirit of revenge beclouded the perceptions of mankind.

Peace was only concluded on paper; it was not accepted by the human heart. Solemn pacts were made - only to be broken. Promises were given and not kept. We read in this narrative of revolutions among the nations, of economic need and of unspeakable sorrow. The last pages, however, are written in blood - the blood of millions of innocent people. They speak of unimaginable cruelties, of utter disregard of the sacred laws of humanity and of mass murders which brought suffering to the peoples of Europe.

With your judgment, gentlemen of the High Tribunal, you will write the last chapter of this narrative - a chapter which must be the end and the beginning - the end because it closes the gruesome battle fought by the powers of darkness against the moral order of the world - the beginning because it is to lead us to a new world of liberty and justice.

This justice, I hope, will inspire the judgment which is engraved in golden letters on the floor of the Palace of Peace in The Hague: Sol justitiae illustra nos. Do not, therefore, make your judgment merely with the cold logic of your keen mind, but also with the warm love of a seeing heart. This applies especially to the judgment against the organizations; for a condemnation must be unjust, since among the millions whom it affects there are also millions who are guiltless. They would all become victims of desperation; they would all be despised and damned, and would perhaps even deem those happy who now rest in their graves as victims of National Socialism.

The present world needs peace, nothing but peace. To extend the consequences of a judgment to a large, guiltless section of the German people would be to work against world peace, which, in any event, rests on an unsure basis, and would thereby mutatis mutandis repeat Hitler's idea of punishing a people - the Jewish people - collectively and of exterminating them.

[Page 85]

Out of this injustice against the laws of God and of Nature was born the indignation of the creatures tortured - and the right to have the evildoers called to account. Hitler and his regime proved the truth of the words: "Hodie mihi, cras tibi." From the history of the Jews in the Old Testament we know that God would not have destroyed the City of Sodom if even one just man had lived there. Is not God's truth contained in these words - that a group may not be punished if even one member of the group is not deserving of punishment?

Then, gentlemen of the High Tribunal, place your signatures under a judgment which will bear the test of History and the Court of the World: Place your signatures under a verdict which will be praised as the beginning of a new Era of Justice and of Peace, and which will form a golden bridge leading to a better and a happier future.

(The Tribunal adjourned until Monday, 26th August, 1946, at 1000 hours.)

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