Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-210.09 Last-Modified: 2001/01/10 [DR. SERVATIUS, CONTINUED] [Page 76] In this connection I refer also to Affidavit 5, which has been submitted by the defense counsel for the SS, stating that Himmler himself had dictated the order to the Gestapo offices and revealed his conversation with Hitler, from which one learned that Hitler had ordered the safe keeping of Jewish property and the protection of the Jews. As shown by the evidence given by the witness Vitzdamm and as proved by numerous other affidavits, this order was carried out generally. I refer to the Gestapo Affidavits 6, 7 and 8. The arrest of 20,000 Jews which followed the excesses was caused by Himmler (Exhibit USA 240) and was carried out by the Kreis and local police authorities. The overwhelming majority of the Jews, however, were not transferred into concentration camps and were released gradually. This is proved by Gestapo Affidavit 8. For the first time, the Gestapo was burdened with a task foreign to its nature by the arrest of the Jews in November, 1938. The Gestapo - as shown by the evidence given by the witnesses Best and Hoffmann - would never have carried out or suggested these arrests, which were considered unnecessary from a police point of view. The fact that the arrested Jews were soon discharged justified the assumption of the Gestapo officials that it was but a solitary gesture and not the forerunner of worse things to come. The Jewish question, which the National Socialist administration had raised to a major feature of its programme, was originally to have been solved by the emigration of the Jews. For this reason, in 1938, there had been founded in Vienna the Central Office for Jewish Emigration which resulted in the emigration of a large number of Jews. During the war, too, the emigration was continued according to plan as shown by Exhibits USA 304 and 410. In addition to that, evacuations of Jews started which were carried out in accordance with a detailed decree of the Chief of the German Police. On the basis of that decree, the local Gestapo offices had to prepare the evacuation and to co-operate with the Jewish communities. To their task belonged particularly the equipment of these evacuees with clothing, shoes, tools, etc. In most cases the transports were not accompanied by Gestapo officials; the personnel was composed of members of the Security Police, the Criminal Police, and the Gendarmerie. The destination was not announced in most cases. The evacuations were carried out without friction or unnecessary harshness. From a humanitarian point of view one might well regret those evacuations of Jews most profoundly; yet the part played by the Gestapo in them consisted in the carrying out of the decrees and orders originating from higher authorities. Actually, the competency of the Gestapo in regard to the Jewish question had not at all the importance generally attributed to it. In the Jewish department of the Gestapo, both in the RSHA and in the individual Gestapo offices, only a very few officials were employed. In 1941 Himmler decreed that the Jews in Germany should be isolated in ghettoes in Poland. This resettlement of the Jews was the task of the Higher SS and Police Leaders and was carried out by the regular police. Hitler's policy regarding Jewry up to 1941 aimed only at the elimination of the Jews from Germany by emigration and later by evacuation, but became increasingly harsh after America's entering the war. In April, 1942, Hitler ordered the final solution of the Jewish question, i.e., the physical extermination, the murder of the Jews. The proceedings have shown in how terrible a manner this order was carried out. The tool which was used by Hitler and Himmler for the carrying out of that order was SS Obersturmbannfuehrer Adolf Eichmann, who, however, though his department was attached to the organization of Amt IV of the RSHA, had actually an entirely independent and autonomous position, which above all was wholly independent of the Gestapo. The preparation and carrying out of the order for the murder of the Jews was kept strictly secret. Only a few persons knew the order to its full extent. Even the members of Eichmann's office were [Page 77] left ignorant of the order and learned of it only gradually. The evacuation and the transfer into the extermination camps were carried through by Eichmann's Sonderkommandos. They were composed of local police, almost exclusively regular police. The police were not permitted to enter the camps but were replaced immediately upon arrival at the station of their destination. In the camps themselves the circle of persons carrying out the murder orders was kept small. Everything was done to conceal the crimes. This description, based essentially on the evidence of the witnesses Knochen, Wisliceny and Dr. Hoffmann, is supplemented in a surprising fashion by the evidence of Dr. Morgen. He declared that three persons were charged with the extermination of the Jews, Wirth, Hoess and Eichmann. Wirth, the former Criminal Commissioner of the Criminal Police in Stuttgart, known as "Murder Commissioner for terroristic investigation methods," had, for his special task, his headquarters with his staff in Hitler's Chancellery. His task was at first the mass extermination of insane persons in Germany, then, secondly, the extermination of Jews in the Eastern countries. The Kommando which was set up by Wirth himself for the purpose of exterminating Jews was known as "Action Reinhard," and was extremely small. Before the beginning of the action Himmler personally received the oath of the members and declared explicitly that anyone who said anything about the action would be put to death. This Kommando Reinhard was independent of any police office. It did not belong to the Gestapo and it wore the uniform and carried the credentials of the Security Police only in order to allow its members free circulation in the rear of the armed forces. The Kommando started its activities with the extermination of Jews in Poland and later extended its diabolical work over the further Eastern territories, by setting up special extermination camps in inconspicuous places, and by a hitherto unknown system of deception allowed these camps to be run by the Jews themselves. The fact must be stressed that it was the Security Police of Lublin who reported Wirth's misdeeds to the RKPA and thus brought these hideous crimes to light. This fact corrects the testimony of Hoess, who declared that the extermination camps of Maidanek and Treblinka had been operating under the orders of the Security Police. In fact, they had been operating under Wirth. According to Dr. Morgen's testimony, Auschwitz was made a centre of mass extermination of Jews by Hoess at a later date. Because of his methods, he is said to have been called by Wirth "an untalented pupil." According to Dr. Morgen's testimony, the Organization Eichmann was separated from these two Kommandos. Its task consisted of deporting the other European Jews to the concentration camps. According to witness Wisliceny, Eichmann, by reason of the full powers accorded to him, was also personally responsible for the carrying out of the extermination order. He established special Kommandos in the occupied countries. Though economically under the Chief of the Security Police, they could not receive any instruction or orders from them. The organizations of Eichmann and Wirth were now amalgamated, but this was done in such a way that only very few people in Eichmann's circle knew about it. In this way, and by the use of Jewish collaborators, the knowledge of these killings was restricted to very few Germans and thus the secret was maintained. The declarations of witnesses and affidavits might differ as to the details in the organization of the extermination programme, but one thing is clear beyond any doubt, the Gestapo as a whole did not participate in this horrible mass murder and, with very few exceptions, could and did not know anything about it. The few leading persons who knew about it, such as Eichmann, Muller, Himmler, kept strictest silence about their tasks and intentions and in death they took their secret with them. This is confirmed most clearly by Dr. Morgen's testimony. For how could the limitation of knowledge to the above-mentioned group of persons be made more evident than by the fact that the Criminal Police itself started investigations and discovered the crimes, and that even the Chief of the Security [Page 78] Police and Nebe were astonished, while Muller seemed to have known, as his behaviour indicated. This being the case, how can it be assumed that the minor Gestapo official knew about the secret? With regard to the persecution of the Church and the shooting of hostages by the Gestapo, I ask you to take note of the statements in the pleading. I continue on Page 73, Number IV of the original. I have now dealt broadly with the individual crimes of which the Gestapo as a collective organization has been accused by the prosecution. As to the question whether the crimes, as far as they were committed by members of the Gestapo, have to be imputed to the Gestapo as a whole, I finally come to the following conclusion so far as it has not been arrived at before when dealing with the individual crimes: The Gestapo was a public Reich authority bound in its aims and activity to the existing laws. The fact that the Gestapo officials, during the twelve years of the existence of that institution, essentially carried out quite normal police work is not sufficiently taken into consideration. The working day of most of the Gestapo officials was occupied with official business which had no connection with the crimes alleged here. Third degree interrogations were only carried out by a small fraction of the officials; the decree concerning that was in the safe of the departmental chief marked "Secret." However, sections of the Gestapo officials, by the exploitation of the traditional duty of obedience, were used by the highest government offices for measures which went beyond the actual duties of the Gestapo. And here it is of decisive importance that only a small part of the Gestapo officials participated in these tasks which were alien to their police duties. As the most serious charges against the Gestapo are in connection with its activity in the occupied territories, it follows that only a comparatively small percentage, at most 15 per cent, of the executive officials can be accused, and not the Gestapo as a whole. Regarding this question, it is of special importance to know whether the aims, tasks and methods of the organization or group were generally known. Publicity, or, in other words, general knowledge: must include two things: knowledge of the objective facts of the criminal action and knowledge of the illegal, criminal character. Judgment as to whether this dual knowledge existed must be based on common sense. What can be assumed, if the individual members of the organization were told nothing of the criminal incidents? May I make a few fundamental additions to what I have already said about the individual crimes? The reason why the Gestapo as a whole had no knowledge of the capital crimes committed lies in the following: Hitler from the beginning knew how to surround himself with a veil of secrecy, to conceal his true intentions, to see to it that no minister and no department and no official learned too much from any other. The well-known Fuehrer Order No. 1, which was submitted as Gestapo Exhibit 25, is only the actual confirmation of a long-established practice. Taking into consideration the demoniacal influence which emanated from Hitler, the feeling of inviolability of all his orders (explainable only through the demoniacal aspect of his character) and the fear of the serious consequences to life and limb in the event of failure to carry out a so- called Fuehrer Order, is there any wonder that this secrecy order was scrupulously observed? So, it is really not incredible that almost all defendants and witnesses examined here have actually only now learnt of all these heinous crimes. It is significant that, for example, the driver of a special vehicle was condemned to death by the SS and Police Court in Minsk because, in an intoxicated condition, he had spoken, contrary to orders, about the purpose of the vehicle. (Gestapo Affidavit 47.) Even Dr. Gisevius had to admit that Heydrich endeavoured to keep his actions secret, and the defendant Jodl characterized the system of secrecy in the most striking manner [Page 79] when he said that secrecy was a masterpiece of Hitler's art of concealment and a masterpiece of deception by Himmler. It is a recognized legal principle that ignorance through negligence is not sufficient in case of crime; therefore, in order to declare an organization criminal, it is necessary for the members of the organization actually to have known of and approved of the criminal aims and methods. That, however, is not proved in our case, and cannot be assumed from all the facts established during the trial, no matter how strange the contrary assumption may seem in retrospect today to one who cannot appreciate conditions in Germany. With regard to the question of whether the terrible crimes which actually were committed are to be imputed to the Gestapo as a whole, the further fact must not be disregarded that the members of this organization did not act on their own initiative but on orders. Those concerned contend, and can prove by witnesses, that if they had refused to carry out orders received, they would have been threatened not only with disciplinary proceedings, loss of civil service rights, and so forth, but also with concentration camps, and, in case of war assignments, with court martial and execution. Do they thereby invoke a reason for exemption from guilt? This question must be examined with regard to the so-called "duress induced by official duties" (beruflicher Notstand) which is not recognized in written law. It represents far more a concept which cannot be dispensed with in legal life. Where the written law is not adequate, as when a state of emergency exists, sensible and practical considerations must fill up the gaps. Public opinion approves this, and legal administration and jurisprudence have recognized the so- called extra legal state of emergency as a reason for exemption from guilt. It is true cowardice is not a virtue; but it is equally true that heroism and martyrdom in the world of human beings are the exception. Should the Gestapo members form this exception? Could one, from a purely human point of view, really expect them to take upon themselves loss of livelihood, family suffering, concentration camp, and perhaps even a shameful death? Besides, the members of the resistance movement in the occupied territories, in their killing of members of the German occupation forces, again and again referred to orders from their superiors and to the duress imposed on the terrorists who came under these orders. Therefore, in our case as well, I would consider without hesitation that there was actual danger to life and limb for the perpetrator in the sense of Paragraph 54 of the German Penal Code. Here there existed what Judge Jackson called "physical compulsion." Moreover, in Germany every official was and is trained in the conception of the strictest obedience to orders and instructions from higher authority. Perhaps as nowhere else in the world the official in Germany is dominated by the thought of authority. He was trained in the attitude, correct in itself, that a State breaks down if the orders issued by it are no longer obeyed and that the denial of governmental authority has its logical result in anarchy. Added to this deep-rooted attitude was the devilish atmosphere which, with hypnotic power, made the small officials particularly tools without a will of their own. All of these motives were added to the threat emanating from the very nature of the occupation and they all together created a duress so oppressive that the Gestapo official no longer retained the freedom of will to examine a criminal order as to its legal and moral value, and to refuse obedience. Taking all these considerations into account, these proved crimes cannot be charged to the whole of the Gestapo so as to declare the Gestapo criminal. The Prosecutors state - and this is just the very basis and aim of the Indictment - that the crimes were not isolated acts committed independently of each other, but rather parts or aspects of a criminal policy, either as part of a common plan or as a means of carrying out that common plan. The contention is that this very plan was directed towards the unloosing and waging of an aggressive war which, [Page 80] in its beginning, had no definite aim, but that later the aim of that war became the enslavement of Europe and the peoples of Europe in order to gain living-space. Everything important that was carried on within that conspiracy, characterized as such by the Indictment, is described as having had only one aim and purpose, to secure for the Nazi State a place in the sun and to push all internal and external adversaries into the darkness. The essential point of the individual crimes was the intentional participation in the planning and carrying out of the plan. The crime of the individual consisted in his having joined the common plan of the conspiracy. It is claimed that the purpose of the conspiracy was generally known and that, therefore, no one can claim that he acted without knowledge of it. These contentions of the Indictment aim above all at the individual defendants, but presumably they are also valid for the indicted organizations. It is claimed that the role played by the Gestapo within the conspiracy consisted in aiding the Nazi conspirators to create a police State, set up to break every resistance, to exterminate Jews and faithful Christians, as well as politically undesirable persons, as the main elements of the resistance movement; furthermore, to enslave the employable inhabitants of foreign countries and to eliminate and suppress by cruelty and horror all of those who might resist the German lust of conquest within the Reich or in the conquered territories. If we examine again the individual crimes, as to whether they are to be considered as of assistance to the crime of conspiracy against world peace, it is recommendable that the activity of the Gestapo before the war and during the war be studied concerning the characteristics mentioned. Without repeating myself unnecessarily, I believe I can state that the duties and methods of the Gestapo before war were a manifestation of a State institution existing in all civilized countries, which cannot be imagined apart from the State; its existence, therefore, in no way infers the planning of an aggressive war or any other conspiracy against world peace. The individual Gestapo official fulfilled his duty as he as an official had learned it. Equally, in the upper strata of the Political Police it is unlikely that any other thought would have prevailed than to guarantee peace and security within the State. One must not identify the Gestapo with such superiors as Himmler and Heydrich, whose knowledge and action were alien to the police. If these men acted only from the political point of view their subordinates cannot be blamed for it. Taking into account the well-known system of secrecy, the individual Gestapo official and the overwhelming majority of all Gestapo members could not have bad the least idea that their work was aimed at preparing a war of aggression and helping to create the basis for it. I believe that no Gestapo official, hearing that contention, or asked whether he had knowledge of the attack on world peace, would have even understood the question.
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