The Nizkor Project: Remembering the Holocaust (Shoah)

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One of the chief reasons the defendants say why there was no
conspiracy is the argument that conspiracy was impossible
with a dictator. (138.) The argument runs that they all had
to obey Hitler's orders, which had the force of law m the
German State, and hence obedience could not be made the
basis of a criminal charge. In this way it is explained that
while there have been wholesale killings, there have been no

This argument is an effort to evade Article 8 of the
Charter, which provides that the order of the Government or
of a superior shall not free a defendant from responsibility
but can only be considered in mitigation. This provision of
the Charter corresponds with the justice and with the
realities of the situation, as indicated in defendant
Speer's description of what he considered to be the common
responsibility of the leaders of the German nation; he said
that ... with reference to decisive matters, there was a
joint responsibility. There must be a joint responsibility
among the leaders, because who else could take the
responsibility for the development of events, if not the
close associates who work with and around the head of the
State? (i39.)

And again he told the Tribunal that ... it was impossible
after the catastrophe to evade this joint responsibility,
and that if the war had been won, the leaders would also
have laid claim to joint responsibility. (140.)

Like much of defence counsel's abstract arguments, the
contention that the absolute power of Hitler precluded a
conspiracy crumbles in the face of the facts of record. The
Fuehrerprinzip of absolutism was itself a part of the common
plan, as Goering has pointed out. (141.) The defendants may
have become the slaves of a dictator, but he was their
dictator. To make him such was, as Goering has testified,
the object of the Nazi movement from the beginning. Every
Nazi took this oath:

  "I pledge eternal allegiance to Adolf Hitler. I pledge
  unconditional obedience to him and the Fuehrers appointed
  by him." (142.)

Moreover, they forced everybody else in their power to take
it. This oath was illegal under German law, which made it
criminal to become a member of an organization in which
obedience to "unknown superiors or unconditional obedience
to known superiors is pledged". (143.) These men destroyed
free government in Germany and now plead to be excused from
responsibility because they became slaves. They are in the
position of the boy of fiction who murdered his father and
mother and then pleaded for leniency because he was an

What these men have overlooked is that Adolf Hitler's acts
are their acts. It was these men among millions of others,
and it was these men leading millions of others, who built
up Adolf Hitler and vested in his psychopathic personality
not only innumerable lesser decisions but the supreme issue
of war or peace. They intoxicated him with power and
adulation. They fed his hates and aroused his fears. They
put a loaded gun in his eager hands. It was left to Hitler
to pull the trigger, and when he did they all at that time
approved. His guilt stands admitted, by some defendants
reluctantly, by some vindictively. But his guilt is the
guilt of the whole dock, and of every man in it.

                                                  [Page 401]

But it is urged that these defendants could not be in
agreement on a common plan or conspiracy because they were
fighting among themselves or belonged to different factions
or cliques. Of course, it is not necessary that men should
agree on everything in order to agree on enough things to
make them liable for a criminal conspiracy. Unquestionably
there were conspiracies within the conspiracy, and intrigues
and rivalries and battles for power. Schacht and Goering
disagreed, but over which of them should control the
economy, not over whether the economy should be regimented
for war. (144.) Goering claims to have departed from the
plan because, through Dahlerus, he conducted some
negotiations with men of influence in England just before
the Polish war. But it is perfectly clear that this was not
an effort to prevent aggression against Poland but to make
that aggression successful and safe by obtaining English
neutrality. (145.) Rosenberg and Goering may have had some
differences as to how stolen art should be distributed, but
they had none about how it should be stolen. Jodl and
Goering may have disagreed about whether to denounce the
Geneva Convention, but they never disagreed about violating
it. And so it goes through the whole long and sordid story.
Nowhere do we find a single instance where any one of the
defendants stood up against the rest and said: "This thing
is wrong and I will not take part in it." Wherever they
differed, their differences were as to method or
jurisdiction, but always within the framework of the common

Some of the defendants also contend that in any event there
was no conspiracy to commit war crimes or crimes against
humanity because Cabinet members never met with the military
commanders to plan these acts. But these crimes were only
the inevitable and incidental results of the plan to commit
the aggression for purposes of Lebensraum. Hitler stated, at
a conference with his commanders, that:

  "The main objective in Poland is the destruction of the
  enemy and not the reaching of a certain geographical
  line." (146.)

Frank picked up the tune and suggested that when their
usefulness was exhausted,

  "... then, for all I care, mincemeat can be made of the
  Poles and Ukrainians and all the others who run around
  here - it does not matter what happens". (147.)

Reichskommissar Koch in the Ukraine echoed the refrain:

  "I will draw the very last out of this country. I did not
  come to spread bliss ...." (148.)

This was Lebensraum in its seamy side. Could men of their
practical intelligence expect to get neighbouring lands free
from the claims of their tenants without committing crimes
against humanity?

The last stand of each defendant is that even if there was a
conspiracy, he was not in it. It is therefore important in
examining their attempts at avoidance of responsibility to
know, first of all, just what it is that a conspiracy charge
comprehends and punishes.

In conspiracy we do not punish one man for another man's
crime. We seek to punish each for his own crime of joining a
common criminal plan in which others also participated. The
measure of the criminality of the plan and therefore of the
guilt of each participant is, of course, the sum total of
crimes committed by all in executing the plan. But the gist
of the offence is participation in the formulation or
execution of the plan. These are rules which every society
has found necessary in order to reach men, like these
defendants, who never get blood on their own hands but who
lay plans that result in the shedding of blood. All over
Germany today, in every zone of occupation, little men who
carried out these criminal policies under orders are being
convicted and punished. It would present a vast and
unforgivable caricature of justice if the men who planned
these policies and directed these little men should escape
all penalty. (149.)

These men in this dock, on the face of this record, were not
strangers to this programme of crime, nor was their
connection with it remote or obscure. We find them in the
very heart of it. The positions they held show that we have

                                                  [Page 402]

defendants of self-evident responsibility. They are the very
highest surviving authorities in their respective fields and
in the Nazi State. No one lives who, at least until the very
last moments of the war, outranked Goering in position,
power, and influence. No soldier stood above Keitel and
Jodl, and no sailor above Raeder and Donitz. Who can be
responsible for the double-faced diplomacy if not the
Foreign Ministers, von Neurath and Ribbentrop, and the
diplomatic handyman, von Papen? Who should be answerable for
the oppressive administration of occupied countries if
Gauleiter, Protectors, Governors and Commissars such as
Frank, Seyss-Inquart, Frick, von Schirach, von Neurath, and
Rosenberg are not? Where shall we look for those who
mobilised the economy for total war if we overlook Schacht
and Speer and Funk? Who was the master of the great slaving
enterprise if it was not Sauckel? Where shall we find the
hand that ran the concentration camps if it was not the hand
of Kaltenbrunner? Who whipped up the hates and fears of the
public, and manipulated the Party organizations to incite
these crimes, if not Hess, von Schirach, Fritzsche, Bormann
and the unspeakable Julius Streicher? The list of defendants
is made up of men who played indispensable and reciprocal
parts in this tragedy. The photographs and the films show
them again and again together on important occasions. The
documents show them agreed on policies and on methods, and
all working aggressively for the expansion of Germany by
force of arms.

Each of these men made a real contribution to the Nazi plan.
Each man had a key part. Deprive the Nazi regime of the
functions performed by a Schacht, a Sauckel, a von Papen, or
a Goering, and you have a different regime. Look down the
rows of fallen men and picture them as the photographic and
documentary evidence shows them to have been in their days
of power. Is there one who did not substantially advance the
conspiracy along its bloody path towards its bloody goal?
Can we assume that the great effort of these men's lives was
directed towards ends they never suspected?

To escape the implications of their positions and the
inference of guilt from their activities, the defendants are
almost unanimous in one defence. The refrain is heard time
and again: these men were without authority, without
knowledge, without influence, without importance. Funk
summed up the general self-abasement of the dock in his
plaintive lament that:

  "I always, so to speak, came up to the door. But I was
  not permitted to enter." (150.)

In the testimony of each defendant, at some point there was
reached the familiar blank wall: nobody knew anything about
what was going on. Time after time we have heard the chorus
from the dock:

   "I only heard about these things here for the first
   time." (151.)

These men saw no evil, spoke none, and none was uttered in
their presence. This claim might sound very plausible if
made by one defendant. But when we put all their stories
together, the impression which emerges of the Third Reich,
which was to last a thousand years, is ludicrous. If we
combine only the stories of the front bench, this is the
ridiculous composite picture of Hitler's Government that
emerges. It was composed of:

A No. 2 man who knew nothing of the excesses of the Gestapo
which he created, and never suspected the Jewish
extermination programme although he was the signer of over a
score of decrees which instituted the persecution of that

A No. 3 man who was merely an innocent middleman
transmitting Hitler's orders without even reading them, like
a postman or delivery boy;

A Foreign Minister who knew little of foreign affairs and
nothing of foreign policy;

A Field-Marshal who issued orders to the armed forces but
had no idea of the results they would have in practice;

A Security Chief who was of the impression that the policing
functions of his Gestapo and SD were somewhat on the lines
of directing traffic;

                                                  [Page 403]

A Party philosopher who was interested in historical
research, and had no idea of the violence which his
philosophy was inciting in the twentieth century;

A Governor-General of Poland who reigned but did not rule;

A Gauleiter of Franconia whose occupation was to pour forth
filthy writings about the Jews, but who had no idea that
anybody would read them;

A Minister of the Interior who knew not even what went on in
the interior of his own office, much less the interior of
his own department, and nothing at all about the interior of

A Reichsbank President who was totally ignorant of what went
in and out of the vaults of his bank;

A Plenipotentiary for the War Economy who secretly
marshalled the entire economy for armament, but had no idea
it had anything to do with war.

This may seem like a fantastic exaggeration, but this is
what you would actually be obliged to conclude if you were
to acquit these defendants.

They do protest too much. 'They deny knowing what was common
knowledge. They deny knowing plans and programmes that were
as public as Mein Kampf and the Party programme. They deny
even knowing the contents of documents which they received
and acted upon.

Nearly all the defendants take two or more conflicting
positions. Let us illustrate the inconsistencies of their
positions by the record of one defendant - who, if pressed,
would himself concede that he is the most intelligent,
honourable and innocent man in the dock. That is Schacht.
And this is the effect of his own testimony - but let us not
forget that I recite it not against him alone, but because
most of its self-contradictions are found in the testimony
of several defendants.

Schacht did not openly join the Nazi movement until it had
won, nor openly desert it until it had lost. He admits that
he never gave it public opposition, but asserts that he
never gave it private loyalty. When we demand of him why he
did not stop the criminal course of the regime in which he
was a Minister, he says he had not a bit of influence. When
we ask why he remained a member of the criminal regime, he
tells us that by sticking on he expected to moderate its
programme. Like a Brahmin among Untouchables, he could not
bear to mingle with the Nazis socially, but never could he
afford to separate from them politically. Of all the Nazi
aggressions by which he now claims to have been shocked
(152), there is not one that he did not support before the
world with the weight of his name and prestige. Having armed
Hitler to blackmail a continent, his answer now is to blame
England and France for yielding.

Schacht always fought for his position in a regime he now
affects to despise. He sometimes disagreed with his Nazi
confederates about what was expedient in reaching their
goal, but he never dissented from the goal itself. When he
did break with them in the twilight of the regime, it was
over tactics, not principles. From then on he never ceased
to urge others to risk their positions and their necks to
forward his plots, but never on any occasion did he hazard
either of his own. He now boasts that he personally would
have shot Hitler if he had had the opportunity, but the
German newsreel shows that even after the fall of France,
when he faced the living Hitler, he stepped out of line to
grasp the hand he now claims to loathe and hung upon the
words of the man he now says he thought unworthy of belief.
Schacht says he steadily "sabotaged" the Hitler Government.
(153.) Yet the most relentless secret service in the world
never detected him doing the regime any harm until long
after, he knew the war to be lost and the Nazis doomed.
Schacht, who dealt in "hedges" all his life, always kept
himself in a position to claim that he was in either camp.
The plea for him is as specious on analysis as it is
persuasive on first sight. Schacht represents the most
dangerous and reprehensible type of opportunism - that of
the man of influential position who is ready to join a
movement that he knows to be wrong because he thinks it is

                                                  [Page 404]

These defendants, unable to deny that they were the men in
the very highest ranks of power, and unable to deny that the
crimes I have outlined actually happened, know that their
own denials are incredible unless they can suggest someone
who is guilty.

The defendants have been unanimous, when pressed, in
shifting the blame on other men, sometimes on one and
sometimes on another. But the names they have repeatedly
picked are Hitler, Himmler, Heydrich, Goebbels and Bormann.
All of these are dead or missing. No matter how hard we have
pressed the defendants on the stand, they have never pointed
the finger at a living man as guilty. It is a temptation to
ponder the wondrous workings of a fate which has left only
the guilty dead and only the innocent alive. It is almost
too remarkable.

The chief villain on whom blame is placed - some of the
defendants vie with each other in producing appropriate
epithets - is Hitler. He is the man at whom nearly every
defendant has pointed an accusing finger.

I shall not dissent from this consensus, nor do I deny that
all these dead and missing men shared the guilt. In crimes
so reprehensible that degrees of guilt have lost their
significance they may have played the most evil parts. But
their guilt cannot exculpate the defendants. Hitler did not
carry all responsibility to the grave with him. All the
guilt is not wrapped in Himmler's shroud. It was these dead
men whom these living chose to be their partners in this
great conspiratorial brotherhood, and the crimes that they
did together they must pay for one by one.

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