Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-181.04 Last-Modified: 2000/10/08 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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