The Nizkor Project: Remembering the Holocaust (Shoah)

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[DR. SERVATIUS, CONTINUED]

I have already referred to this legal position without
meeting with any contra diction. In order to support this
opinion, I should like to refer to the Supplementary Berlin
Agreement to the Charter of 6th November, 1945. This
concerns an agreement of the four signatory powers to the
Charter, the sole point of the agreement being the changing
of a semi-colon to a comma. Through this agreement, we have
the correction of the text of Article 6 (c), which had been
separated into two parts by the semicolon in the English and
French texts. The result had been that Crimes Against
Humanity could have been prosecuted without being connected
with Crimes Against Peace or War Crimes, which are under the
jurisdiction of the Tribunal.

This possibility of interference with the internal matters
of a State without any connection with a war does not now
apply after Article 6 (c) has been drawn up in accordance
with the Russian text.

Any interference for humanitarian reasons alone is,
therefore, denied the Tribunal.

In all of their basic statements the prosecution has
continually tried to establish the connection of all its
charges with Crimes Against Peace and War Crimes by proving
a conspiracy.

Who is included in the motion directed against the Corps of
Political Leaders?

According to the Charter, it is for the prosecution to
determine that circle of individuals which is to be declared
criminal as an organisation or as a group. Here the motion
is directed against the Corps of Political Leaders,
according to National Socialist terminology.

Despite the designation which refers to an organisation,
such an organisation did not exist. The designation
"Political Organisation," which had been chosen for the same
group of persons, was even expressly prohibited by a decree
of the Fuehrer's Deputy in the Party, Hess, on 27th July,
1935. The reason given for this was that there could not
exist any special organisation within the Party.


                                                   [Page 28]

Actually, this group of persons consisted only of
functionaries such as exist within every party as executive
and administrative agents.

But there is no doubt that there are a great number of
people who, because their titles, must be defined as
political leaders. It is not a group which unite together,
for one could not enter the circle of political leaders
merely by joining, but only through an appointment which
took place without any effort on the part of the appointee
by an act of sovereignty. The legal position is comparable
to that of any official who enters the circle of his
colleagues through his appointment. How is it that this
circle comprises a special group?

Besides the appointment, only through the right to wear a
uniform which was connected with it. In addition, there is
the oath, but this did not represent anything special,
inasmuch as all officials arid soldiers had to take it in
the same way.

The duties and activities of the members of the Corps of
Political Leader, however, are completely varied according
to their nature and importance. There were political leaders
who worked in associations, such as the German Labour Front
and the National Socialist People's Welfare Association, and
who wore uniforms during their practical administrative work
only for decorative reasons. These are the members of the
various affiliated associations who have deliberately not
been included in the charges of the prosecution.

Besides these, there are political leaders who directed the
actual political machinery; these were the Hoheitstrager and
the members of the political staffs who are characterised by
the prosecution as top leaders or main leaders.

From the reasons given by the prosecution to support its
motion it appears that under the Corps of Political Leaders
it means only the latter individuals, who are enumerated
from Reich Leaders to the Block Leaders. From the affiliated
organisations, Political Leaders were included only in so
far as they were active on the political staffs which
grouped themselves around the Hoheitstrager.

This circle of persons can be comprised in a special,
definable group, in so far as a connection exists between
them through the relationship of subordination, disciplinary
power and business routine.

The number of persons so affected has been estimated by the
prosecution as about 600,000 according to the number of
offices existing in the year 1939. As the document used as a
basis for this shows, the offices on the staffs are not
included. The figures show that in addition to the
Hoheitstrager, including the Cell and Block Leaders, there
were about another 475,000 such offices which were filled by
Political Leaders. The number of Political Leaders on the
political staffs for the year 1939 is thereby increased to
about one million.

As can be estimated from Party statistics, the figure is
increased one and a half times because of the heavy turnover
of personnel over twelve years, that is, to about two and a
half million. In this connection, the fact is taken into
account that in the beginning the number of offices was only
half that.

If the members of the Ortsgruppenstabe are deducted, a
figure of about one and one half million remains.

Not included in these figures are the office holders from
the staffs who were not appointed Political Leaders and
those who were ordered to serve on an honorary basis as
Political Leaders during the war in subordinate positions;
during the war the latter were primarily Cell and Block
Leaders. According to the testimony given by witnesses,
their number may be estimated at 600,000. If, like the
prosecution, one includes these individuals in the circle of
Political Leaders, then the entire figure of the individuals
involved rises to 2,100,000. This figure is still further
increased because there were also other office holders on
the political staffs who were not appointed Political
Leaders.

Through the circumstances that the charges raised by the
prosecution are restricted to Political Leaders, a part of
the persons on the staffs are not included.

                                                   [Page 29]

They are the ones who were not appointed Political Leaders
even though they held office.

An extension of the charges to these persons cannot now take
place subsequently without legal prejudice to those
affected, since they were not given an opportunity to apply
for a legal hearing in the first proclamation by the
Tribunal.

Before dealing with the question as to whether this specific
group is to be declared criminal, we must discuss the
question of whether the charges are admissible under
International Law.

According to Article 50 of the Hague Rules of Land Warfare,
a collective punishment of the population is only admissible
if all of the population are considered jointly guilty for
individual actions. This is an exceptional regulation which
serves solely for the protection of the occupying power.

In the same way a similar measure arising out of general
political considerations is prohibited. You may not punish a
group because the guilt for a war is imputed to its members,
or because you hold them responsible for moral resistance.
You cannot arrest all "political commissars" or Jews and
condemn them because of their political attitude. This
prohibition of the Hague Rules of Land Warfare is based on
the individual principle of democratic criminal law, which
has not lost its prestige.

Whether the charges of the prosecution are legal or whether
the Charter has invalidated Article 50 of the Hague Rules on
Land Warfare, must be examined officially.

If you consider the proceedings admissible, then we have to
examine whether the group's complicity in guilt can be
considered proved. How such a proof is to be produced
neither the Hague Rules of Land Warfare nor the Charter
indicate.

We can follow one of two principles: Either that of justice
or that of expediency.

The principle of justice demands proof of individual guilt,
and the condemnation of a group is to be rejected, "if there
is even only one just man among them." The principle of
expediency admits the possibility of outvoting the innocent
ones, and thus shows a preference to punish the innocent
rather than to let the guilty ones go unprosecuted.

The prosecution has stated repeatedly that the object of the
Indictment is to punish only the guilty ones and not to set
a trap for the innocent, or catch them, too, in one net.

These words are in accordance with the principle of justice,
but the motion to characterise the group as criminal in
itself rests on considerations of expediency. This apparent
contradiction can be resolved only by requesting the
Tribunal's decision as a procedural means in order to meet
an emergency.

Accordingly, it is true that a number of innocent persons
were included in the preliminary proceedings here before the
Tribunal, but in subsequent proceedings they are to "have
the right to raise any objections," as Justice Jackson has
stated.

In its decision of 13th March, 1946, regarding the
regulation of the procedure for taking evidence, the
Tribunal expressed itself in a sense which makes a majority
rule appear possible; a clear basis for the decision itself,
or its ultimate influence on the subsequent individual
trials was not created. The decision of the Tribunal in this
regard must depend essentially on the results which its
verdict will have.

Therefore Law No. 10 of the Control Council of 20th
December, 1945, is of the utmost importance. From the text
of this law it appears as if mere membership in an
organisation or a group which has been declared criminal
will be punishable. If that were the case the inclusion of
innocent persons in the present proceedings would constitute
a serious inroad into the principle of guilt which forms the
basis of modern criminal law.

Such an interpretation would not be compatible with the text
of the Charter. There, indeed, Article 10 declares the
objection that an organisation was not criminal as
inadmissible, but anybody may still raise the objection that
he did not know about its criminal character.

                                                   [Page 30]


It follows also from Article 11 of the Charter that a
conviction is contemplated. only because of participation in
the criminal activity. The informed Press and the radio have
also expressed themselves in the same vein.

The question arises, as to how the criminal character of the
group is to be established, a condition which is decisive
for its conviction. The attitude of the Tribunal can be
learned from its ruling of 13th March, 1946. The essential
factor is participation in the conspiracy. This presupposes
the formation of the group for the commitment of a specific
act which has been declared criminal by Article 6 of the
Charter. Such a formation, however, in the case of every
conspirator, is based among other things on a concrete
knowledge of the crime contemplated.

As proof of this knowledge the prosecution alleges the
notoriety of the crimes or the comprehensive information
available to the political leaders.

The persecution of the Jews and the conflict with the Church
were publicly known as general tendencies. The criminal
excesses proceeding from them were not known.

In this connection the following is also important: The
thing that matters is not the general knowledge of the facts
but the general knowledge of the motives behind them. As far
as we are concerned with genuine war crimes, the motive for
the aggressive war must be known; the actions must have been
recognisable as the first stage of a war of aggression. Only
in this way could participation in the criminal conspiracy
result.

The prosecution concludes that these motives would have been
self-evident to the persons affected from the doctrine of
National Socialism. There, it is claimed, aims were stated
which of necessity had to lead to a war of aggression. In
this way even the building up of the Party and the
recruiting of members for it, as well as the seizure of
power, become criminal, proceeding, as they did from the
motive of a war of aggression.

It is claimed that an alliance existed for waging of an
aggressive war or for the commission of war crimes.

Is this claim correct?

As manuals, the political leaders had the Party Programme
and the book Mein Kampf.

The Party Programme had been attacked vigorously by domestic
opponents, but no official foreign agencies had objected to
it. In 1925 the High Inter-Allied Rhineland Commission in
Koblenz had approved the Party Programme for the Rhineland
and later the League of Nations had done likewise for
Danzig. The Party was permitted, including its philosophy as
expressed in the book Mein Kampf. Besides, it was known that
Hitler had declared that his book was out of date in many
points.

It is true that the goals to which the Party aspired could
lead to a war, and it is also true that a war which aims at
something which infringes on the property of someone else
must include an attack on such property.

But the slogans "Lebensraum" (Living Space) and "Los von
Versailles" (Away from Versailles) did not necessarily have
to lead to aggressive war. There is the way of negotiation
through an appeal to reason. Just as strikes, uprisings, and
revolutions in the interior of a State can be justified for
workers in their struggle for existence, so it may happen
that war will occur in the life of nations. But the normal
way is that of negotiation. Otherwise any member of an
opposition party could be prosecuted for high treason.

Whether an aggressive war actually existed, which apparently
went beyond the technical concept of the opening of
hostilities, has been contested with cogent arguments in the
proceedings before the Tribunal by many of the major
defendants.

If Hitler demanded living space, the result of the war
forces one to believe that other nations are taking it
without condemning the principle which as a "law of

                                                   [Page 31]

life," is supposed to be the cause of this war. The archives
of the world remain closed.

For the defence it is not so important to determine whether
an aggressive war existed, but rather to determine whether
the Political Leaders knew about it and whether it became
generally obvious to them.

The facts themselves speak forcefully against the general
knowledge of aggressive intentions. To every political
leader Hitler's offer to disarm down to the last machine gun
must have been impressive, and also his repeated declaration
that the misfortune of other peoples could not bring any
advantages to his own people, but rather that the welfare of
all should be the basis of international life. Equally
impressive must have been the naval agreement with Great
Britain, his declaration to France that he did not intend to
make further territorial claims, the Munich Pact, and
finally the Treaty of Friendship with the Soviet Union. The
latter in particular caused a wave of rejoicing because it
seemed to bring about peace with the very adversary who had
had hitherto been designated as our worst enemy. Precisely
this treaty proves at the same time how impossible it is to
derive any directives for actual practice from the book Mein
Kampf.

Of primary importance for judging the rearmament of Germany
as far as the political leaders are concerned is Hitler's
repeated declaration that "Bundnisfahigkeit" (the ability to
conclude agreements) must be established by an equality of
armaments. The extent of rearmament was not perceptible in
relation to the strength of our opponents and Hitler himself
had declared it to be folly for such a small nation to want
to challenge the whole world.

However, the cornerstone of the conviction of all the
Political Leaders that no war was being planned was the
fact, emphasised again and again, that Hitler himself had
served as a front-line soldier in the First World War; one
could not, therefore, expect him to bring about the miseries
of a new war.

Thus at the 1936 Party rally in Nuremberg, on the occasion
of an appeal directed exclusively to the Political Leaders,
Hitler's actual words were:

  "During these long years we had no other prayer than
  'Lord, give our people domestic peace and grant and
  preserve for them peace with other nations.' In our
  generation we experienced so much of fighting that it is
  understandable if we long for peace .... We wish to care
  for the future of our nation's children, and to work for
  the future, not only in order to safeguard their lives
  but also to make them easier. So much misfortune lies
  behind us that we have only one request to address to a
  merciful and benevolent Providence: Spare our children
  what we had to suffer! We desire nothing but peace and
  tranquillity for our work."

These words were directed to the very same men who as
Political Leaders are today affected by the Indictment.


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