Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-177.08 Last-Modified: 2000/09/19 By DR. SAUTER, Continued: [Page 350] This was certainly particularly difficult for Funk, in view of his tolerant attitude. At that time he had already been a State official of the Reich Propaganda Ministry and the Ministry of Economics for eight years, and yet, during all that time, the prosecution could not cite a single instance of any display of anti-Semitism on Funk's part or any evidence of his having urged or approved of the use of force, terrorists or injustice against the Jews. On the contrary, we know from the statements of various witnesses that Funk repeatedly interceded for his Jewish fellow- citizens in the course of these years; that he looked after them and tried in their interest to alleviate hardships, to prevent encroachments on their rights and to save the lives and careers of human beings, even if they were Jews or political opponents of his own. It is, therefore, not surprising that this man, with his wide experience in the economic field, this man of far- reaching knowledge, with his frankly tolerant views, was most painfully affected when, on 10th November, 1938, he had to witness the destruction of Jewish homes and shops in Berlin and when he received one report after another confirming the fact that Goebbels and his clique, exploiting the fury of the populace over the assassination of a German by a Jew, were organising such pogroms throughout Germany, and that these outrages were leading not only to the destruction of Jewish property but also to the murder of many Jews and to the persecution of many thousands of innocent citizens. The affidavit of his assistant, Ministerialrat Kallus (Document Book Funk No. 3), of 9th December, 1945, and that of Frau Luise Funk of 5th November, 1945 (Document Book Funk No. 3), prove clearly that Funk condemned such excesses most severely, that he was disgusted to the extent of calling them filthy outrages, even when addressing Dr. Goebbels himself, and that he threatened to resign in the event of a repetition. Even at that time he told the almighty Goebbels to his face that one should be ashamed of being a German. All this, gentlemen, expressed the just indignation of a man who for years had put forth every effort to secure moderation towards Jews and political opponents and had received many a letter of gratitude for so doing - a man who had fought for years to prevent terrorism, to secure for all his fellow-citizens the rights to which they were entitled and to raise the standard of German economic life; and who now saw all his efforts frustrated in a single night by the brutal fanaticism of a Dr. Goebbels. Funk himself, during his interrogation, gave us a vivid description of how, ever since he entered office as Minister of Economics in February, 1938, he had been subjected to continuous pressure by Goebbels and Dr. Ley to eliminate the Jews from the economic life of the country in the same way that they had been eliminated in 1933 from its cultural life. The witness Dr. Hayler stated here that Himmler also found fault with Funk for this. Funk himself testified to the difficulties which again and again arose during those years with workers stirred up by propaganda, who were sometimes no longer willing to work under Jewish managers, or did not dare to do so, and how, in these oppressive conditions, numerous Jewish owners sold their businesses - frequently at ruinous prices - to people who seemed to the Minister of Economics Funk entirely unfit to acquire or manage such businesses. Funk tried again and again to oppose this irresistible development. He made continual efforts to put a brake on this process of aryanization, to provide for a reasonable and just settlement for Jewish owners of businesses; and to allow them to emigrate from Germany with their property. But Funk realised more and more clearly every day that he was too weak to stop this movement and that the radical elements around Dr. Goebbels and Dr. Ley were gaining the upper hand, whereby they were unfortunately able to rely on Hitler's authority. The latter - Hitler - had allowed himself in the course of time to be won over, more and more to the policy of radical treatment of the Jewish question by a few irresponsible advisers who are not sitting in the dock today. [Page 351] The events of 9th November, 1938, burst like a bombshell into this fight between Funk and other considerate people on the one side, and Goebbels and Ley on the other. As Dr. Goebbels himself admitted later to Fritzsche, they were aimed directly at the person of the defendant Funk who was thus to be confronted with a fait accompli. As the witness Landfried testified, Dr. Goebbels did, in fact, attain his ends through this operation of November, 1938. Goebbels was able to refer later on to Hitler's own order for the Jews to be completely excluded from the economic life of Germany, although Funk, as the minister concerned, repeatedly made allusion to the relations with foreign countries upon which the German Reich and its economy depended. The orders necessary to carry out this programme were given by Goering in his capacity of Plenipotentiary for the Four- Year Plan, on the direct orders of Hitler. Funk never had any doubt that in this particular affair Goering also was to a certain degree only a puppet, because he had always known Goering to be a man who condemned extreme radicalism in this particular question of the Jews. Funk's views on this point were shared by wide circles of the German people and the fateful Goering meeting of 12th November, 1938 (Document 1816-PS), proved it to be correct. This document has been mentioned here repeatedly. At a meeting which preceded that of 12th November, 1938, Goering sharply condemned the acts of terrorism which had occurred and declared to the Gauleiter present that he would make every Gauleiter personally responsible for acts of violence committed in his district. But what was the good of that? In the course of the second meeting, the minutes of which were submitted to the Tribunal under No. 1816-PS, Goebbels ultimately succeeded in carrying through his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed, for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting and violence and if they were to get any reasonable compensation. During the Goering meeting of 12th November, 1938, Funk repeatedly expressed his views again as is shown by the records. It was due to the efforts made by the defendant Funk, with the support of Goering, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the local agencies and put on a legal basis throughout Germany and, finally, that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Goering meeting of 12th November, 1938, will, in spite of their incorrect and incomplete, formulation, be able to find definite and repeated indications of Funk's moderating influence; namely, his insistence - repeatedly mentioned in the minutes - on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities and, finally, his attitude to Heydrich's demand that the Jews be placed in ghettoes. The minutes of 12th November, 1938, prove beyond doubt that it was Funk who opposed Heydrich's proposal by saying: "We do not need ghettoes. Surely the Jews could move rather more closely together. The lives of three million Jewish people out of at least seventy million Germans can be regulated without ghettoes." Funk therefore wanted to save the Jews at least from being interned in ghettoes. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that his proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out - as the minutes show - that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of half a billion and would, therefore, have serious consequences for the German stock market. The decisive question in judging the defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an [Page 352] official who merely gave the order to execute a command which Goering, as Trustee of the Four-Year Plan, had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Finance Minister Graf Schwerin-Krosigk, who at that time had to order the punitive levy of 1 billion Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar orders for execution in their respective spheres. The Tribunal must decide the difficult legal question of whether a State official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law - and I emphasize: a law - passed in accordance with the legislative system of this State. This legal problem is entirely different from the other question of whether or not the fact that an official order given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the defence. I shall only discuss whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter. Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act and especially a crime and if in the existing circumstances and in due consideration of all the accompanying facts the subordinate realizes, or should realize, that the official order is contrary to the law. If the latter condition exists, in other words, if the official order obviously , constitutes a breach of the law, it may, in general, be fully approved that the subordinate is not permitted to refer to his superior's official order as an excuse;, and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are, recognized to a varying extent in the penal codes of most civilised nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior is and must in future remain the foundation of every government in all nations if the orderly functioning of the State administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance. But, gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at the time, to the law of the State which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this juridical question, which, hitherto, has not been dealt with, it will be pertinent to disregard entirely conditions in Germany and ask ourselves what decision would be given in a case where a civil servant of a different country - not Germany - carried out a law. Let us assume, for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the State the property of such inhabitants, or turning over to the State or partitioning among other citizens the large agricultural estates; of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the j law concerned was a crime against humanity, or has he even the right to do so? In such case, gentlemen, would any State today grant its civil servants the authority to examine whether the law proclaimed is contrary to the principles of humanity [Page 353] or to the fluctuating norms of International Law? What State would tolerate the refusal of its civil servants for this reason to execute a law already proclaimed? I shall pass over the passage on Page 53 and I continue with the 3rd paragraph on this page. The Tribunal will have to decide these legal problems. But Funk may point out in his own defence the fact that by reason of his entire ideology and background it was especially difficult for him, to issue these decrees for execution, although he believed he was only doing his duty as a civil servant. In this connection I wish to remind you of Funk's circular of 6th February, 1939 (3498-PS, Trial Brief Funk, Page 19), where he emphasises to his officials that it was their duty to "ensure that it was carried out in a correct manner in every respect" and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: "How far and how rapidly the powers given by the Four-Year Plan are to be exercised will depend on the decisions made by me in accordance with the directives of the Trustee for the Four-Year Plan." This special reference made by the defendant Funk to the legal decrees of the Four-Year Plan, which was authorized to promulgate laws, originated in the defendant's desire to express formally and solemnly, and to establish for times to come the fact that in issuing the decrees for the execution in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance. Funk's circular of 6th February, 1939, already mentioned on Page 19 of the Trial Brief, clearly expresses the qualms of conscience which had gripped Funk in these days - but without incriminating him - these qualms which, during his interrogation by an American officer on 22nd October, 1945, led to his complete nervous breakdown, so that Funk was unable to restrain his tears and told the interrogating officer: "Yes, most certainly. That is when I should have left, in 1938. Of that I am guilty; I am guilty; I admit that I am a guilty party here." These same qualms of conscience gripped the defendant throughout the entire trial and are still haunting him; and we remember that in the session of 6th May, 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue to talk and finally declared, before you, gentlemen, that at that moment he fully realised that this - i.e. the atrocities of November, 1938 - was the starting- point of the disaster of those horrible and frightful things of which the have learned here, some of which he had already heard during his imprisonment, which culminated in Auschwitz. He felt, as he said during his interrogation on 22nd October, 1945, "deep shame and heavy guilt," and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was bound by duty to the State. He felt these bonds all the more strongly, as legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely and suffering further despotism and violence. These are the very words of the defendant Funk; and they represent his actual feelings. Even today Funk feels that it was a terrible tragedy that he of all people was charged with these things; he who never during his entire life said a spiteful word against a Jew but had, wherever he could, always worked for tolerance and equality for the Jews as well. If during his interrogation on 22nd October, 1945, Funk said: "I am guilty," it need not be investigated here whether the defendant intended these words to apply to his criminal guilt or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged State can be punished at all if he only carries out laws passed in accordance with the legal constitution of that State. For the defendant Funk his "guilt" did not [Page 354] lie in the fact that he had signed the executive regulations in November, 1938, since this had been his duty as an official, but he rather considered himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable and abhorred them; he was not involved in the "conflict of conscience" of which he spoke when he was interrogated because he acted according to the laws which he considered necessary under the conditions prevailing at the time; this conflict with his conscience was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would have enabled him easily to find another suitable position. Much is to be said for the opinion that the defendant was held in office above all by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable, fanatical successor, while he might hope by staying in office to alleviate much distress. These considerations, which may have guided the defendant Funk in the first place, were certainly correct up to a point. His under secretary, Dr. Landfried, at least has testified that later on, too, Funk often expressed serious misgivings concerning the action taken against the Jews in November, 1938, and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landfried: We of the Ministry of Economics should take particular care that no one profits unduly by the aryanization - i.e. the transfer to non-Jewish ownership - of business firms. And Ministerialrat Kallus described in his deposition of 19th April, 1946, the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to ensure that his orders were carried out by his subordinates in a proper manner. Gentlemen, accordingly a sense of duty on the one hand and human feeling on the other were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action. Mr. President, I am now coming to a new subject and I have altogether about fifteen more pages. Does the Tribunal wish to adjourn now? It is six minutes to four. THE PRESIDENT: Can you finish it by that time, Dr. Sauter? DR. SAUTER: There are fifteen more pages; I should say about 8 to 9 minutes. On further thought, Mr. President, it will take about half an hour. THE PRESIDENT: We will adjourn at this time. (The Tribunal adjourned until 15th July, 1946, at 1000 hours.)
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