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 26, 1946

Two Hundred and Eleventh Day: Monday, 26th August, 1946
(Part 4 of 12)

[Page 98]


I am most thoroughly convinced that by such black and white painting the High Tribunal would have been betrayed in its search for the real truth. I did not see my task in doing so, although the principles of the Charter would have given me the right to do so. In such a trial, concerned with the very basis of humanity, with the fate of the German people and the future of the world, it cannot be left to the cleverness of methods in the contradicting use of prosecution and defence to decide whether the Tribunal considers the truth to lie half-way between. It is not the task of the defence to gain tactical successes by emphasizing the one and suppressing the other argument - nay, incorruptibly we have to find clarity - "Clarte" as demanded by the fanatic seeker for truth, Henry Barbusse. That is the rule in accordance with which I selected my witnesses. I particularly remind you of Reinecke and Morgen, the evidence of whom I shall evaluate later.

It was my endeavour to assist the Tribunal in ascertaining the historic truth.

In doing so I was guided by the simple and therefore beautiful German medieval proverb, "What is done cannot be undone."

Those words do not only imply all the tragedy of what is done because there is no undoing. Those words have a deeper meaning:

Past events do not bear nor tolerate a retrospective study; that means no deed can correctly be grasped and understood if speculated upon ex post. No, one has to look at it as it offered itself to the contemporaries at the time of its performance, from the beginning to the end.

One has to examine all the circumstances surrounding the deed and the person who performed it as well as his psychological situation at the time of its performance. The judges must familiarize themselves most thoroughly with the personality of the perpetrator to measure the extent of his guilt.

This is equally true for this trial. Nations judge another nation; the family of peoples judges one people which has brought deep suffering to the world, a State which has committed Crimes Against Humanity. In the organizations there have been indicted huge formations, large sectors of the German people have been put in the dock, and, therefore, it seems necessary that the judges of these millions of people acquaint themselves most thoroughly with the lives, the knowledge, the hopes and beliefs of these masses at the moment when the ideas and accomplishments of National Socialism were becoming effective and its criminal excesses were beginning. Hence, the judges of the four largest, and for the decision of this world war, most important nations of all the world, will have to make the attempt to decide just as in a case before any normal jury - "How did the deed come about?" In what situation did the defendant find himself at that time? Which speculations and sentiments drove him to commit the act? Did he have any intention of doing anything illegal? Is it possible that he himself was deceived? Was he at all able to recognize the illegal nature of his doing - and if he learned of it only gradually - was he in a position to adjust his action in accordance with that insight? It is extremely difficult for the judge even in normal criminal proceedings to free himself from the ex post reflection and to evaluate correctly the circumstances of the deed, the milieu of the deed, and the personality of the one who performed it. How exorbitant are the demands for justice for the judge when he has to pass sentence on a man who has transgressed against a member of his, the judge's, family. Every one of the four nations sitting in this Court has suffered tremendous damages by the crimes of the Nazi regime, for which millions of members of the organizations have to account now. But in accordance with the statements made by Justice Jackson in his opening speech,

[Page 99]

I venture to hope that you, High Tribunal, will succeed in this titanic undertaking to be free of feelings of revenge and seek justice and nothing but justice. Will you, as non- Germans, who have not yourselves lived through the unique historic phenomenon of a mass psychosis and a tyranny of continental proportions - will you be able to grasp and to explain to yourselves how such things could happen? Can you conceive that crimes were not committed by the mass of the members, that they were not consciously organized by them - that they were not even known to them?

The Charter rightly states, and the Tribunal has acted accordingly, that it is not the task of this Court to ascertain which inner causes - whether justified or not - led to this war. The decisive question is only: Was it an aggressive war? Nevertheless, in the cases of the individual defendants, evidence was allowed to be admitted as to how the historical development psychologically led them since the First World War to this new murder of nations. How infinitely more is one justified, when endeavouring to establish the guilt and the crime of the organizations in their very incipiency, in examining the historical background, the political situation as a whole in and around Germany. The masses have no clear thoughts or sentiments. They are moved by vague emotions, emanations of a phenomenon which the scientists have called "mass-soul." They are moulded by the pictures and promises offered by their leaders.

One of the Prosecutors in his final speech against the individual defendants stressed how enormous was their guilt and how disastrous the consequences of their acts, because of the clever use of the masses, the seducing of the soul of the people by the glittering magic of slogans and the promise of a Utopian development. Do not these very words give the best proof that the mass of the members desired only the good and the non-criminal?

Already in its very beginnings, even before 1933, the principles of the SS were identical with the programme of the NSDAP. Not only before this Tribunal has the question been discussed whether that programme and the means and methods of its realization were criminal. This question stirred the public, the authorities of the German Republic, and the best heads and hearts of our people for many years before 1933. Were the motives criminal if the masses followed a politician, who did not promise them easy predatory incursions at home and abroad, but rather work and bread, when he rallied them to national unity as contrasted to the pell-mell of a parliamentary system turned to ridicule by forty-one parties and a democracy which brought about its own death by weakness and half-measures?

It is the German people's deep tragedy that it could not sublimate its consciousness, that it came too late when the riches of the world were distributed by strengthening and improving its recognized position in the world of intellect and applied sciences. The German is a romantic - particularly in the field of politics. This romanticism circles around vague concepts of fate and doom and the dream of power once held in the "Holy Roman Empire of Germans" of a thousand years ago. This belief in destiny has been fostered by an absolutely incorrect presentation of German history for more than a hundred years, so that it needed only a skilful sorcerer to send once more millions of German youth to death and destruction by suppressing the real facts.

But the great seducer, Hitler, had not gone so far yet.

At first, the protestations of peaceful intentions towards his own people were more important than those towards foreign countries, which did not yet enter into the picture. As is the fault of all large political parties and their armies, and because of the weakness of the republican government, the inner political life had changed to an ever- increasing degree into a real state of war in the streets. Nevertheless, the secret parliamentary elections were carried through without terror or deceit. Through these elections the citizen could observe a steady increase of strength of the extreme parties of the Right and of the Left. He could

[Page 100]

not consider it a crime to join the extreme party of the Right, the NSDAP, or its SS, which in contrast to the SA, which ruled the streets, was mainly concerned with the protection of the speakers during the partisan warfare among the political adversaries of those days.

Every German who lived through those days knows with what tension the question was discussed, whether the NSDAP and its formations were planning undertakings which signified high treason, or which aimed at overthrowing the Government by force. In 1923, in the early days of the Party, Hitler had attempted a coup d'etat which had failed. Now, for many years, he had been advocating "legality." When in September, 1930, three young officers of the army of 100,000 were indicted before the German Supreme Court for high treason for having attempted to found National Socialist cells in the Army, Hitler as a witness testified under oath that his revolution was one of the spirit and that his aim was to come to power by legal means. This appeared in all the papers in huge headlines and impressed itself on the enemies and the followers of Hitler alike. Dr. Kempner, then Oberregierungsrat in the Prussian Ministry of the Interior, now a member of the American prosecution, was one of the few who considered that oath perjury. He submitted to his Ministry a detailed report, which ended with the conclusion that the NSDAP was guilty of high treason. But even that seeker after truth had to admit in his description of the situation as it existed then (Volume XIII, No. 2, June, 1945, "Research Studies of the State College of Washington," Page 120) that even ministerial officials of the German Republic did not consider Hitler a liar at that time, 1930. That was how Hitler's clever propaganda influenced such critical, hostile circles. Should one be surprised that the masses of the SS put their trust in him. Incidentally, at that time they numbered only a few thousand. Well, matters went even farther. When Dr. Kempner denounced the Nazi Party in 1930, after a thorough investigation before the Supreme Court, the Chief Public Prosecutor ruled in August, 1932, that there existed no reason to prosecute or dissolve it. (Compare Kempner's study, Page 133.) What other effect could such statements, voiced by the highest authorities of the Republic, have had on the masses? The effects were reflected in ever-increasing election returns for the Nazis.

But the most striking feature is - and that is of decisive importance for the inner attitude of those thousands who joined the SS just after 30th January, 1933 - that Hitler actually did not break his oath. Although it is quite true that Dr. Kempner's prophecies in regard to the further development were correct in general - this was not recognized until much later - he was mistaken in his early predictions. The Nazi Party in fact remained a legal one; it did not seize power by a coup d'etat, but Hitler was asked by Hindenburg to form a cabinet in accordance with parliamentary rules.

What is it that those ministerial officials who had refused to believe the pessimist, Dr. Kempner, were able to say? Is it not likely that they would be triumphant because they had been right? Was their conscience not set at rest? After all, that man Hitler was not as bad as people had said. Now that he had entered the Government he would become a moderate - as opposition after gaining power always did. And was it not true, too, that the great mass of Hitler's followers were proud that they had succeeded in, coming to power by peaceful means after an election fight whose propaganda machine was almost of American proportions?

In viewing that period of time, one question inevitably arises: were the mass of Hitler's followers, the mass of SS men, at that time able to recognize that that point of the Party Programme which probably was the most clear cut, namely anti-Semitism, contained a criminal element?

Anti-Semitism is not a new phenomenon; neither is it, if one studies its spiritual basis, something typically German. In my opinion it is based on the inferiority complex of the average man, on his mistrust of the Jews' superiority

[Page 101]

in certain intellectual fields. Neither is the refutation of anti-Semitism by all civilized nations and individuals anything new either. It culminates in the pope's statement, "He who discriminates between Jews and other human beings does not believe in God and is in conflict with the Divine commands." But the enigma which we cannot pass by when discussing the question of criminality is that there should exist at all a Jewish problem which is not based on religious differences, but on race. The enigma is that there still exists a race problem which leads continuously to conflicts in our modern world which has grown so small. Is it not puzzling that the Polish Cardinal Hlond, who went through all the horrors of the Nazi regime, only a few weeks ago tried to justify to some extent Polish anti-Semitism by referring to the leading role played by Jews in the Polish Government? Is it not puzzling that even today, after the horrible experiences of the Hitler regime, the Arabs act against the Jews in their traditional homeland, Palestine, and particularly against their influx, and that mutual acts of violence are committed? The situation is similar in Europe. Race problems, not only anti-Semitism, still exist in all other corners of the globe.

All of them cry out for a just solution and it can be found only in the granting of equal rights to all races. Some progressive nations have made anti-Semitism a criminal offence. But was it criminal when the State, under the influence of those false ideas, sought the solution by prohibiting the races to mix and to influence public life? Here again much is to be explained by what was happening in those days. The bad example of a few Jewish immigrants from Eastern European countries, such as the notorious swindlers Barmat and Kutisker, was in sharp contrast to that of the great German Jew and unforgettable statesman, Walter Rathenau, who long ago had issued to his brethren a call to their moral consciousness. This situation offered the basis for a collective mood, for a mass psychosis against the Jews, aided by the external economic distress which always occurs in the course of great political and social upheavals, and just as in this present trial it is about to happen again by creating collective injustice against certain categories of people. The demand to put this anti- Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and personal revenge. In a way it was merely another version and anachronistic aggravation of the American legal principle of -

THE PRESIDENT: Dr. Pelckmann, I do not want to interrupt you, but you will not lose sight of the fact that you are only going to be allowed half a day for the speech, and I observe that it is said to occupy 100 pages, and I only interrupt you at the present stage to point out to you that the matters which you are dealing with now are matters of a general nature and to which our attention has been drawn throughout the course of this Trial, and it may be in your interest to shorten this part of your speech rather than other parts of it. That is the only reason why I interrupt you now.

DR. PELCKMANN: Yes, your Lordship, I have already considered abbreviating the speech.

The demand to put this anti-Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and revenge. That in all this Hitler was inwardly moved by hatred - as revealed by his most trusted mouthpiece, Rauschnigg, in his book, Hitler Speaks - Page 91 - was not known to the masses. That hatred, which sprang from the feeling of inferiority of one who recognized the superiority of the penetrating intellect over dark impulses, remained concealed; for anti-Semitism was preached to the SS men merely as the other side of race eugenics on which emphasis was laid. By a skilful use of those race emotions which spring from a country's history, so difficult for the non-European to understand, and which were bound up with such conceptions as "Ordens-

[Page 102]

prinzip," "Mannerbunde," and "Sippengemeinschaft" - I refer to Documents SS Nos. 1, 2, and 3, with all their twisted romanticism dressed up in modern clothes - Hitler endeavoured to create in the SS a breed of men who by their bearing and self-discipline would represent an "elite" for purposes of raising his own people to a high level. This tendency, though very alien to modern Europeans, or cosmopolitans, can hardly be called criminal - I am referring to the pertinent questions asked by the High Tribunal - and it did exclude automatically an anti-Semitic tendency of the nature of the Sturmer or even of the brand of the less vulgar SA. It is also significant that the prosecution has not charged the SS with one single case of brutality towards Jews before 1933. The so-called "Leithefte," the monthly publication of the SS, and the evidence given before the Commission by the witness Schwalm concerning the training of the SS, testify to the restrained attitude of the SS to the Jewish question. Later it was reaffirmed by the non-participation by the SS in the anti- Jewish pogroms of 1938, which I shall describe in another connection. I shall also demonstrate how the atrocities committed during the war against Jews and the mass killings were in conflict with the original tendency of the SS, and how they were made possible by direct secret orders from Hitler and Himmler through criminal individuals and groups, and how they were kept secret from the masses of SS members.

From the wealth of points of the Party Programme which the SS accepted as a matter of course, I would like to pick out only the elimination of the Versailles Treaty and the demand for living-space, because those two things might be important factors for the alleged preparation of an aggressive war. Nowhere has the prosecution said how, at that stage, the mass of SS members could assume that those demands were criminal, that is, that they should be accomplished by an aggressive war.

I have shown how Hitler by his legal assumption of power strengthened the confidence not only of his SS men but how he gained the trust of new men who never would have trod with him the road to crime. May I respectfully request the High Tribunal to read the testimony of State Secretary Grauert before the Commission and learn how a man with the best intentions entered the Hitler administration and the SS, and did not leave it until 1936, when he, an experienced legal administrator, realized that the suspension of the historic principle of the separation of powers -

THE PRESIDENT: Will you spell the name?

DR. PELCKMANN: G-R-A-U-E-R-T, Grauert.


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