The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/10

[DR. SERVATIUS, CONTINUED]

He had become the sole political head and therefore had to
concern himself with public affairs.

Actually, those Gau- and Kreisleiter who were examined here
did concern themselves with current happenings. They
investigated the transporting of the Jews. They endeavoured
to get into concentration camps and investigated the
conditions of foreign workers. They voiced their misgivings
and they made protests.

Did they fulfil their obligations that way? In this
connection we have to examine the question of the sharing of
responsibility. It is not possible for all to concern
themselves with everything. The lowest offices have
practical concerns of a local nature, and they cannot be
concerned with the problems found at the top level.

The Kreisleiter, who passes on reports upon individual
incidents to the Gauleiter, must be credited with this
distinction, particularly in a dictator State, but he must
concern himself with the result of his reports, and draw his
own conclusions.

This is still more imperative with the Gauleiter, in view of
his superior position. There exists a limit where moral
principles are concerned and daily routine no longer
matters. When one was in Himmler's sphere of influence, did
one really have to drive on, regardless of what would
happen? An answer to this question has already been
attempted several times. Must one really demand action
immediately and without compromise? Is it really "All or
nothing"? Can one afford to let things take their course, or
is it "Now or never"? Must one define guilt and merit and
can one hope for improvement? Is it sufficient to remain at
one's post when one disapproves, or hopes to prevent worse
by remaining, or does one become guilty too by remaining and
keeping up appearances? Has he who "always takes pains to
make an effort" any justification? Must he take up the
struggle against adverse circumstances, even if his own life
seems uselessly cast in the balance, or should he endure and
bow to fate?

"To be or not to be," that is the question.

An answer cannot be found without thorough examination of
the legal basis of guilt: knowledge, sanction and criminal
negligence.

If the criminal nature of this group is to be established,
these questions must first be decided upon.

Such an examination can be carried out for individual cases
only. It is practically possible in the case of a group of
two thousand Kreisleiter and Gauleiters. These persons are
known, their actions took place in public and are not
difficult to bring to light.

There remains the group of the Reichsleiter. The same views
are applicable to them as to the Gauleiter.

Himmler, who only had the rank of Reichsleiter, does not
belong to this group (Document 59A-PL). That position of
Reichsleiter, however, is of great legal

                                                   [Page 55]

importance to all Political Leaders. They include the
principal defendants, only in connection with whose actions,
according to Article IX of the Charter, the conviction of
the group can take place.

The Trial Brief only mentions Rosenberg and Bormann. Only
Annex B of the supplement to the Trial Brief added four more
Reichsleiter, thus including the Gauleiter Sauckel and
Streicher.

Frick, too, held only the rank of Reichsleiter, which is in
contradiction to the direct inclusion of his actions.

Where the other principal defendants are concerned, one must
examine whether they committed the acts with which they have
been charged in their capacity as political Leaders, or in
another capacity.

The prosecution has recognized the legal significance of
this distinction by referring in the summary of the Trial
Brief only to those deeds of Rosenberg and Bormann with
which they are charged in their capacity as Political
Leaders.

One must not depart from this distinction. The ruling of
Article IX of the Charter is no purely formal prerequisite
for the trial. It is a material limitation of the extent of
the criminal group.

The group is not to be formed arbitrarily and without
limitation by the prosecution, but there must be some
connection between it and the act of one of the principal
defendants. This is only possible if one of the principal
defendants acted within the Corps of Political Leaders. The
connection also does not exist where the effect of the
action of one of the principal defendants does not affect
all levels of the Political Leadership Corps; this is to be
considered in passing judgment on the lower grades.

The connection is lacking in the case of those principal
defendants whose connection with the Corps of Political
Leaders was established only later, with the exception of
Hess.

In the case of Rosenberg, the actions with which he is
charged were essentially in the sector of the State where he
was active as Reich Minister for the Occupied Territories.

The actions of Bormann as Chief of the Party Chancellery
from 1941 on are of the first importance in judging the
Political Leaders. As a result of the absence of this
principal defendant, however, it is of doubtful wisdom to
base the condemnation of the group on his deeds, since there
was no close investigation of the occurrences. For the most
important charges, it would have to be cleared up whether
Bormann acted as Chief of the Party Chancellery, or as
secretary of the Fuehrer outside of the Party machine, or
whether he acted independently contrary to all instructions
(Document 53).

It is noteworthy that Hess, Bormann's superior, is not
included in the original Trial Brief, although until 1941 he
was deputy of the Fuehrer in the Party.

Presumably, the prosecution was at that time of the opinion
that he could not be charged with any action, in connection
with the Corps of Political Leaders, which would indicate a
criminal character. This is a significant point of view for
the judgment of the group as regards time.

The actions of Gauleiter Sauckel and Streicher cannot be
taken as a standard for the Political Leaders as a whole. As
Gauleiter they could only act in their own districts. The
actions with which they are charged in this trial they
undertook outside their function as Political Leaders,
namely as Plenipotentiary General for Labour Mobilization or
as newspaper publisher.

I want to present two additional legal viewpoints which can
be of significance for the judgment. One idea is
retroactivity of the possible verdict. I do not want to
attack it as legally inadmissible since the Charter has
ordered it, but since the verdict is at the discretion of
the Tribunal, the matter of fairness can be considered here.

Retroactivity in an individual trial can be justified by the
fact that the perpetrator was warned and must have realized
the position. It is different with the great

                                                   [Page 56]

number of little Political Leaders, who are made responsible
for a conspiracy only indirectly through their leaders.

The second point of view is the lack of legal hearing. In
these proceedings
 before the Tribunal, a preliminary decision was reached
which was decisive for every member of the organization.
Therefore, everyone was given the right to request a legal
hearing. Only comparatively few have made use of this right.

One must assume that many have not been informed of their
right or have had no opportunity to submit their
applications to the Tribunal. There are applications   from
only about one-third of the camps of the English and
American zones; in the French zone, from only two camps; but
particular reference should be made to some areas from which
no applications at all have been received.

There are no applications from Austria, and the camps there
could not be
 visited. The permission of the military authorities was
given, but the approval of the Control Council was not
received. This is noteworthy since there are special
circumstances in this case which might possibly exonerate
the members; special treatment and judgment, especially in
regard to time, is advisable.

Nor are there any applications from the Soviet zone,
although the official announcement is said to have been
made. I myself only recently had an opportunity to visit two
camps. Those interned there declared that they knew nothing
of their right to a hearing; not all wanted to submit
applications.

For these districts, therefore, the defense was in a rather
critical state as regards
 evidence. For these zones a few Political Leaders were
heard who could be reached in British or American camps.
Although one obtains a certain picture in this way, the
taking of evidence before the Commission has shown that
there may be other testimony of significance for the
defense.

Thus a Kreisleiter of the West was able to testify that the
construction of the West Wall had convinced people there of
Hitler's defensive intentions. A Kreisleiter of the North
referred to the Naval Treaty with Britain, which the
coastal population particularly considered a sign of the
will for peace. Other
 witnesses have brought forward noteworthy arguments from
the Church membership of the Political Leaders in their
district.

The real significance of the limitation could be judged only
after a hearing, so that a judgment on this subject is not
yet admissible.

The following question is also of considerable significance
for the trial: The Charter has guaranteed the opportunity of
a hearing. Here legal hearing is held up as a democratic
principle in contrast to rejected police methods. This
principle was put forth jointly by the signatory powers and
the Tribunal must see to it that it is observed. This is an
unequivocal rejection, and I assert it emphatically.

THE PRESIDENT: Mr. Biddle would like to know exactly what
you mean by those last two sentences.

DR. SERVATIUS: I did not hear what you have said.

THE PRESIDENT: Mr. Biddle would like to know what you mean
by your last two sentences, "Here legal hearing is held up
as a democratic principle in contrast to rejected police
methods. This principle was put forth jointly by the
signatory powers and the Tribunal must see to it that it is
observed. This is an unequivocal rejection, and I assert it
emphatically." Does that mean anything?

DR. SERVATIUS: It means that I cannot forfeit the right to
raise the objection that in entire territories hearings have
not been made possible, that is, in Austria and the Soviet
zone. And it is an objection which I cannot forgo but which
must be officially taken into consideration.

THE PRESIDENT: Go on.

DR. SERVATIUS: The observation regarding divergent practices
in the interpretation of Article 9 of the Charter must be
made from another point of view also. It has to do with the
danger of divergent interpretations and applications of the

                                                   [Page 57]

Tribunal's verdict with regard to the organizations.
Therefore, in addition to a specification of the group of
persons affected by the verdict, a clarification of the
elements of guilt to be proved should be laid down in the
interest of subsequent separate trials.

Also the degree of punishment is uncertain. The scope of the
penalties fixed in Law 10 of the Control Council, which
ranges up to the death penalty, offers no legal protection
if their interpretation is left to the free decision of the
various national tribunals which may subsequently sit in
judgment. The judgment of the Tribunal might cause new harm.
Particularly in this regard the Tribunal must see to it that
the goal which it seeks to attain will be attained. The
punishment must not become a revenge. The measure of
punishment must not be based on the theory that millions of
victims necessarily implies the guilt of millions, who must
be brought to punishment.

If the basic aim of the judgment is to deter, the following
must be borne in mind:

None who appeared before this Tribunal has attempted to
justify the crimes which are the subject matter of this
trial.

All who appeared here divorced themselves from these crimes.

No one has declared that the extermination of the Jews had
been necessary, or that a war of aggression was a goal worth
striving for, or that the persecution of the Church and the
concentration camp atrocities could not have been dispensed
with.

Only if this had been the case would this be a trial
involving an ideology which was to be eliminated.

That is why there is no typical advocate of this ideology,
who would have said, "I have millions behind me," or "I
cannot do otherwise, God help me!" The millions were set in
motion by another goal for which they fought. This goal was
not the world of crime, but the shining radiance of
socialism. The masses believed that a miracle of progress
would succeed the period of misery and were strengthened in
their belief. They are ready to believe once more.

The foundation of this belief is the justice of the verdict
against the organizations, by which the entire population
will be affected.

This verdict must inaugurate an era of new International Law
and punish those who are responsible for the war. It is only
just that the old legal concept should disappear from the
stage of world history which punishes an entire people by
means of peace treaties with annexations and contributions,
without regard to guilt.

Today we face the threat of twofold and threefold
punishment, by the peace treaty, by Law 10 of the Control
Council, and by the law for denazification.

We are still in a state of war and this trial has been
called the continuation of the war effort.

But there must be peace and "Should war not end with the
war, whence then shall come the peace?"

THE PRESIDENT: Dr. Servatius, the Tribunal observes with
appreciation that you have kept within the limit of time
which the Tribunal hoped would be kept to by all counsel on
behalf of the organizations. You have made your speech
within half a day, but some of the other speeches which have
been deposited for translation appear to be very much longer
than yours, and the Tribunal wishes me to point out to those
counsel that they will have to make their speeches also
within half a day.

The Tribunal will now adjourn.

(A recess was taken.)

THE PRESIDENT: We call on Dr. Merkel.

DR. MERKEL (defense counsel for the Gestapo): Mr. President,
may it please the Tribunal, in the proceedings against the
individual defendants the

                                                   [Page 58]

deeds of individuals were examined. During the proceedings
against the organizations the question we are concerned with
is whether a new basic principle is to be introduced into
the legal structure of this world. The trial of the Gestapo
is given its significance by the conception of the
prosecution that the Gestapo had been the most important
instrument of power of the Hitler regime.

If I am to defend the Gestapo, it is with the knowledge that
a terrible reputation is associated with that name, yes,
even that horror and fear are radiated by it, and that waves
of hatred beat against this name.

The words I am about to speak will be spoken without regard
for the opinions of the day because I hope to be able to
present factual and legal evidence which will place this
High Tribunal in a position:

  1. To examine whether by sentencing the organizations a
  legal development will be introduced which will serve
  humanity;
  
  2. To establish the truth regarding the Gestapo and by
  this:
  
  3. To spare the innocent amongst the former members of
  the Gestapo from an unfortunate fate.

The first two tasks necessitate the answering of a question
which represents a preliminary problem connected with the
problem of the Gestapo as a whole.

No allegation made by the prosecution has shaken me more
than the assertion of the British Chief Prosecutor that the
Germans, after six years of Nazi domination and through
replacing the Christian ethical teachings by idolatry of the
Fuehrer, and by the cult of blood, had become a degenerate
nation. If this assertion is just, then, apart from the
circumstances just mentioned, this is due to yet another
extraordinary factor - a factor of a character so unusual
that history hardly knows it: the symptoms of the demon, the
demon in Hitler, and the infiltration of the demon's spirit
into his regime and into the institutions which he created
and employed.


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