The Nizkor Project: Remembering the Holocaust (Shoah)

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May it please the Tribunal, any man may err, he may even
make mistakes that he later may not understand himself.
Schirach has also erred; he brought up the younger
generation for a man whom he for many years held to be
impeccable and whom he must now brand as a diabolical
criminal. In his idealism and out of loyalty he remained
faithful, and true to his oath to a man who deceived and
cheated him and the youth of Germany and who, as we learned
here from Speer, up to his last breath placed his own
interests higher than the existence and the happiness of
eighty million people.

Schirach is perhaps the only defendant who not only clearly
realised his mistakes -which you may judge whichever way you
like - but who confessed them most honestly and who through
his plain speaking prevented the creation of a Hitler legend
in the future. Such a defendant must be given consideration
for trying to repair as far as he can the damage which he
caused in good faith.

Schirach has tried to do that; he took pains to open the
eyes of our people about the "Fuehrer", in whom, together
with millions of Germans, he had seen for many years the
deliverer of the Fatherland and the guarantor of its future.
He publicly rendered an account which the German people is
entitled to ask of every sub-leader since Hitler committed
suicide. He did this so that foreign countries could see how
the conditions of the last six years had come about in
Germany and just who was responsible for them.

But above all, the former Youth Leader, in making his
statement on 24th May, 1946, wanted to tell the youth of
Germany openly that so far, quite unknowingly and with the
best of intentions, he had led them astray and that now they
must take another direction if the German people and German
culture were not to perish. In doing this Schirach did not
think of himself, nor of his life's work which had been
destroyed; he was thinking of the youth of today, which not
only is facing the ruins of our cities and homes, but is
also wandering about among the wreckage of its former
ideals; he teas thinking of German youth, which is in dire
need of new direction and which must base its future
existence on another foundation.

                                                   [Page 93]

Schirach hopes that the entire youth of Germany has heard
his words. What was particularly valuable in his confession
of 24th May, 1946, was his assurance that he alone takes the
guilt for misleading the youth, just as he formerly took
command over them. If this point of view is acknowledged as
being right, and if the necessary conclusions are drawn
therefrom, this would be a valuable result of these trials
for our German youth.

May it please the Tribunal, I am now coming to the end of my
survey of the case of von Schirach. In the treatment of this
case I desisted from making general statements, and
especially those of a political nature. Rather, I confined
myself to the assessment of the personality of the
defendant, his actions and his motives.

In this connection I should like to add, to complete the
picture, that these considerations and this assessment by
the defence have shown that the defendant von Schirach is
not guilty in the sense of the Indictment and cannot be
punished, for he did not commit a punishable act, since you
as judges will not judge political guilt but rather criminal
guilt in the sense of the penal code.

At the end of my remarks in the case of von Schirach I
should like to have the privilege of making a few general
statements, going beyond the personality of yon Schirach,
which suggest themselves to the German defence counsel at
the end of this trial.

May it please the Tribunal, you are the highest tribunal of
our times; the power of the whole world stands behind you;
you represent the four mightiest nations on earth; hundreds
of millions of men, not only in the defeated countries, but
also in the victorious nations, listen to your opinions and
anxiously await your judgement, ready to be taught by you
and to follow your advice.

This high authority gives you, gentlemen, the possibility of
doing much good through your verdict, and particularly
through the statement of the basis for the judgement,
indicating how out of today's disaster the way to a better
future may be found for the benefit of your own people and
for the good of the German people.

Today, gentlemen of the Tribunal, Germany lies on the
ground, her people a poor people, the poorest of all. The
German cities are destroyed; German industry is smashed to
pieces; on the shoulders of the German people rests a
national debt representing many times the whole national
wealth and which means want and poverty, hunger and slavery
for many generations for the German people, if your people
do not help us. The findings supporting your verdict trill
in many respects point the way and give the help needed to
emerge from this desperate plight.

To be sure, for reasons of sentiment it may be hard for you
to consider this point of view and to take it into account
when you think of the misfortune which the past six years
also brought to your own countries. It becomes doubly hard
because for months this trial has revealed nothing but
crimes, crimes committed over a great number of years by a
German tyrant misusing Germans and in the name of this same
German people, of whose future you, as judges, are now asked
to think benevolently and whom you are now asked to help.

May it please the Tribunal, Hitler is dead and also many of
his tools who in these years committed crimes without
number, tyrannising Germany and nearly all of Europe and
disgracing the German name for generations to come. The
German people on the other hand live and must be allowed to
live if half a universe is not to fall into ruins.

With this trial and during this epoch, the German people are
undergoing a very serious operation; it must not bring
death; it must bring recovery. Your verdict can and must
make a contribution in that direction, so that in the future
the world may not see in every German a criminal, but revert
again to the concept of Professor Arnold Nash of the
University of Chicago, who a few days ago, when questioned
about the purpose of his present trip to Europe, replied:
"Every scientist has two fatherlands, his own and Germany".
These words ought to

                                                   [Page 94]

be a warning also for all of those irresponsible critics who
even today see it as their task, with propaganda means of
every sort, to stir up feeling against everything German and
to tell the world that at least every second person in
Germany is a criminal.

You as impartial judges will not wish to forget one thing:
There always was and there still is today another Germany, a
Germany that knows industriousness and economy; a Germany of
Goethe and Beethoven; a Germany that knows loyalty and
honesty and other good qualities which in past centuries
were proverbial of the German character. Believe me,
gentlemen of the Tribunal, in this epoch, as Germany
recovers consciousness as after a severe illness, as she
proceeds to rebuild a better future from the ruins of an
evil past, a future for her youth which has no part in the
crimes committed, at this time seventy to eighty million
German people are gazing anxiously towards you and are
awaiting from you a verdict which will open the way for a
reconstruction of German economy, of the German heart and
true freedom.

You are, gentlemen, truly sovereign judges, not bound by any
written law, not bound to any paragraph, pledged to serve
your conscience only, and called by destiny to give to the
world a legal order which will preserve for future
generations that peace which the past was unable to preserve
for them. A well-known democrat of the old Germany, the
former Minister Dr. Kulz, said in a recent article on the
Nuremberg Trial: In a monarchist State justice would be
administered in the name of the king; in republics, courts
would pronounce their rulings in the name of the people, but
you, the Nuremberg Tribunal, you should administer justice
in the name of humanity.

It is, indeed, a wonderful thought for the Tribunal, an
ideal aim, if it could believe that its verdict could in
fact make real the precepts of humanity and that it could
prevent crimes against humanity for all time. But, in
certain respects this would still remain an unsteady
foundation for a verdict of the magnitude which confronts
you. Because ideas on what humanity demands or prohibits in
individual cases may vary, depending upon the epoch, the
people, the attitude of the party according to which one
judges.

I believe you may find a reliable foundation for your
verdict when you revert to the phrase which has endured
throughout the centuries and which certainly will still
remain valid in ages to come:

Justitia est fundamentum regnorum (Justice is the basis of
all government).

Thus the German people, and with them the entire world,
await from you a judgement which will not be hailed just
today by the victor nations as the last victory over
Germany, but which history will recognize as correct; a
verdict in the name of justice.

THE PRESIDENT: I call on Dr. Servatius for the defendant
Sauckel.

DR. SERVATIUS (counsel for the defendant Sauckel): Mr.
President, may it please the Tribunal:

The defence of the defendant Sauckel has, in the first
place, to deal with the charge of "slave labour".

What is slave labour?

One cannot accept this as an established concept comprising
all the occurrences which, in bewildering abundance, are
charged against the defendant Sauckel under the heading
"slave labour".

Particularly, those actions ought first to be examined from
a legal point of view.

The legal basis for this examination is the Charter.

However, this Charter does not say what is to be understood
by "slave labour" and what by "deportation". Therefore,
these concepts should be clarified by interpretation.

Article 6 of the Charter deals in two passages and from two
different points of view with deportation and with slave
labour.

                                                   [Page 95]

Deportation is called both a war crime and a crime against
humanity, and forced labour appears as "slave labour" under
the heading of war crimes and as "enslavement" under the
heading of crimes against humanity.

The question under what heading the mobilization of labour
by the defendant Sauckel should fall is of decisive
importance; if it is a war crime, then it should be judged
exclusively under martial law. If it is a crime against
humanity then it presupposes the commission of a war crime
or of a crime against peace.

It follows therefrom that the deportation mentioned in
Article 6 (b) cannot be the same thing as deportation
according to Article 6 (c), nor can forced labour according
to Article 6 (b) be identical with forced labour of Article
6 (c). The difference between the two kinds must be found in
-

THE PRESIDENT: That paragraph of your speech which is in
English on Page 2, the second paragraph:

"It follows therefore that deportation mentioned in Article
6 (b) cannot be the same as deportation according to Article
6 (c) ..."

is not altogether clear to the Tribunal. Could you make it
clearer?

DR. SERVATIUS: In Article 6 (c) we deal with crimes against
humanity, whereas in Article 6 (b) we deal with war crimes.
In both articles the expressions deportation and forced
labour are used but they have to be differentiated, and my
examination is directed at establishing this difference more
exactly. I believe, Mr. President, that my further
statements will make this clearer than it has heretofore
been.

I turn now to the terminology used in the Charter. I was
talking of the difference between the two kinds of slave
labour and deportation. The difference between the two kinds
is to be found in the fact that something has to be added to
the war crimes which violates the rules of humanity.

The correctness of this interpretation may also be
recognized in the terminology of the Charter, however
varying it may be. For instance, the Russian text for
deportation as a war crime chooses the word "uvod", which
only means removal from a place, whereas, on the other hand,
it uses for crimes against humanity of the same nature the
technical expression "ssylka", by which deportation under
the rule of the tsars was understood as identical in sense
with penal deportation.

THE PRESIDENT: The French is not coming through. Will you
just wait a minute, there is some difficulty with the French
translation, Dr. Servatius. The Tribunal must adjourn.

THE MARSHAL: The Court will remain adjourned until a quarter
to two.

(A recess was taken until 1345 hours.)

DR. SERVATIUS: I was speaking of the terminology of
"deportation", in the Russian text. I pointed out the
distinction, the word "uvod", meaning only transportation,
and "ssylka", meaning a deportation as a form of punishment.
From that one may conclude that the deportation from the
occupied territories for the purpose of work can only be
regarded as a war crime, but deportation becomes a crime
against humanity when it assumes the penal character of a
transportation of prisoners. Yet the question arises
whether, beyond this, according to the Charter, any removal
of the population is punishable as a war crime, without
considering whether it occurs for employment of labour or
for other reasons.

According to the text of the Charter, the latter seems at
first sight to be the case, as it renders punishable
"deportation to slave labour, or for any other purpose".

Upon closer examination, however, it becomes evident that
this rule does not seem to be meant in such a sense, as
there are cases in which a removal is not only consistent
with International Law, but even becomes imperative.

                                                   [Page 96]

Accordingly, the Charter could only be understood to mean
that the prerequisite of the punishability is not just plain
"deportation", but the composite concept, "deportation to
slave labour" and "deportation for any other purpose".

The clause, "or for any other purpose", should be understood
so as to mean only that an illegal purpose corresponding to
slave labour exists. If deportation of any kind was to be
made punishable, then the qualifying addition "to slave
labour or for any other purpose" would be contradictory to
common sense.

This identification is important for the defendant Sauckel,
as otherwise the proof of deportation classified as a war
crime would be evident from the acts admitted by him.

Just as for the various kinds of deportation, the difference
between the kinds of slave labour according to the Charter
should be clarified. Here, too, a clue for the
interpretation is given by the terminology of the different
linguistic versions of the text, however, not because of
their clarity and consistency, but by the very opposite:

The English version speaks of "slave labour" as a war crime
and of "enslavement" as a crime against humanity; the French
version states "travaux forces" and "reduction en
esclavage", the Russian version accordingly "rabstvo"
(slavery) and "poraboschtschenie" (enslavement). It is not
discernible how the chosen terms differentiate in re.

Starting from the fact that labour inconsistent with laws of
humanity must be carried out under more severe conditions
than other labour, and considering that "slave labour"
appears to be the severest form of labour, one sees that no
definition can be derived from this terminology of the
Charter, rather that an ethical evaluation and
stigmatisation is intended.

Accordingly, an objective division of the kinds of labour
should be carried out, independent of the terminology, by
considering exclusively the degree of severity of labour
conditions. If one tries to analyse the terminology used,
one finds the designation "enslavement", "esclavage" and
"poraboschtschenie" for the inhuman form of labour, whereas
the labour not inconsistent with laws of humanity is called
"forced labour", "travaux forces", and "prinudidjenaja
rabota". Slave labour ("slave labour", "travaux forces", and
"rabstvo") consequently is the general term comprehending
both kinds.

What does this verification mean for the defence of the
defendant Sauckel?

The defendant Sauckel admits having negotiated "forced
labour" in the form of compulsory labour which, as stated
before, is being termed as "slave labour" in general.

He denies, however, having demanded slave labour, which
could have been considered as inhuman labour, i.e.,
enslavement.

A different standard applies here, just as for deportation,
to these two categories; "compulsory labour" is but a war
crime and is to be judged according to rules of war; the
crime against humanity has got, as already stated above in
connection with deportation as a crime against humanity, the
additional characteristics of being connected with war
crimes or crimes against peace.

If, it can be proven that the mobilization of manpower, as
ordered by the defendant Sauckel, was permitted by the rules
of war, then the same act cannot be held to be a crime
against humanity.

The Indictment, too, has made a difference as to the kinds
of labour. It has treated, under Count 3, Chapter VIII, H,
as a separate war crime under the heading of "Conscription
of Civilian Labour" the mobilization of manpower directed by
the defendant Sauckel, which I shall call "regulated labour
conscription" ("geordneten Arbeitseinsatz") and speaks here
only of "forced labour". The French version speaks here of
"travaux forces" and uses terms such as "les obligerent a
travailler" and "mis en obligation"; the Russian version
follows this and also speaks only of "enforced labour" as
"prinuditjelonaja rabota", but not of this being slave
labour.


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