Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-210.07 Last-Modified: 2001/01/10 [DR. SERVATIUS, CONTINUED] Following the structure of the Indictment, I shall now turn to the question of whether the Gestapo participated in a joint plan for the commission of crimes and whether it participated as a deliberate part of the whole so-called Nazi conspiracy in the sense of the Indictment. In order to deal with this question, however, it appears necessary to examine, first of all, just which crimes can be proved to have been committed by the Gestapo. In order to characterize an organization as criminal, just as in characterizing an individual, only typical aspects may be considered, that is, only such actions and characteristics as are in accord with the peculiar nature of the respective organization. Therefore, incidents cannot be used which, even though they took place within the organization, must be considered as foreign to the organization, in this case foreign to the police; and furthermore, actions may not be cited which were committed by individual members. In order to determine whether these actions are to be considered criminal, German law, which does not deviate from the views held by other civilized countries in the designation of general criminality, should be consulted. In line with the method followed in the Indictment, I shall subdivide the crimes of which the Gestapo is accused, into Crimes Against Peace, War Crimes and Crimes Against Humanity. (a) CRIMES AGAINST PEACE. In this connection the Indictment makes the charge that the Gestapo, together with the SD, had artificially created frontier incidents in order to give Hitler a pretext for a war with Poland. Two frontier incidents are cited, the attack on the radio station Gleiwitz and a feigned attack by a Polish group at Hohenlinden. The attack on the radio station at Gleiwitz was not carried out with the participation of Gestapo officials. The witness Naujocks, who was the leader of this undertaking but who did not belong to the Gestapo, has confirmed unequivocally that no member of the Gestapo participated in this action. Instructions for this undertaking emanated directly from Heydrich and were transmitted orally by him directly to Naujocks. Instructions concerning the feigned attack at Holienlinden were transmitted by Muller, the Chief of Amt IV of the RSHA, to Naujocks; however, Naujocks, who directed this action, has expressly denied any participation by Amt IV. THE PRESIDENT: Dr. Merkel, would that be a convenient time to break off? (A recess was taken until 1400 hours.) DR. MERKEL: Mr. President, I have heard that the French translation of my final plea is not yet available to the interpreters. For that reason I shall have to speak more slowly in the interest of the interpreters. I have already deleted another sixteen pages from my plea in order to comply with the rule that I should finish in a certain period of time. [Page 68] THE PRESIDENT: No doubt your speech will subsequently be translated and we shall have those pages before us. DR. MERKEL: I had gone as far as the testimony of the witness Naujocks, regarding the attack on the radio station at Gleiwitz and the attack of that group near Hohenlinden. He stated that, quite naturally, it was not one of the tasks of Amt IV of the RSHA to engineer frontier incidents. Nor did Muller select members of Amt IV for the purpose of staging the last-named frontier incident but only individuals who were in his confidence; for Heydrich did not trust the Gestapo with respect to secrecy and reliability. Naujocks stated literally: "I cannot identify Muller with the organization of the Gestapo." These frontier incidents were therefore not a concern of the Gestapo, but rather a personal concern of Heydrich, even to the extent to which Muller participated in them. The Gestapo has not been accused of other Crimes Against Peace. (b) WAR CRIMES. One of the gravest accusations raised against the Gestapo deals with the mass murder of the civilian population of the occupied countries through the so-called "Einsatzgruppen." Not only the defense but the entire German people condemn the inhuman cruelties committed by the Einsatzgruppen. Those who committed cruelties like that and thereby defiled the name of Germany must be called to account. Members of the Gestapo participated in the actions of the Einsatzgruppen. However, I should like to examine the extent to which the organization of the Gestapo in toto can be held responsible for the criminal deeds of the Einsatzgruppen. The Einsatzgruppen had to fulfil the tasks of the Chief of the Sipo and of the SD in rear echelon areas, which meant that they had to maintain law and order along the rear of the fighting units. They were subordinate to the armies, to whom liaison officers were detailed. The Einsatzgruppen were units which had been established for certain purposes. They were composed of members of the SD, of the SS, of the Kripo, of the Gestapo, the Public Order Police, of those who had to render emergency service, and of indigenous forces. The members of the SD, of the Kripo, and of the Gestapo were used without consideration for their former membership in their own branch. Looking at it from the point of view of personnel, we are concerned here with the duties of the entire police and of the SD, not with the duties of the Gestapo alone. The actual participation of the Gestapo in the Einsatzgruppen amounted to approximately ten per cent. This, of course, was a very small number in comparison with the total figure of Gestapo officials. Their selection for the Einsatzgruppen took place without any application on their part, very frequently against their will, but on the strength of orders from the RSHA. Upon being detailed to the Einsatzgruppen, they were eliminated from the organization of the Gestapo. They were exclusively subordinate to the leadership of the Einsatzgruppe which received its orders in part from the Higher SS and Police Leader, in part from the High Command of the Army and in part from the RSHA directly. Any connection to their home office and thereby to the organization of the Gestapo was almost completely severed through their being used by the Einsatzgruppe. They could not receive orders of any kind from the Gestapo, and they were removed from the sphere of influence of the Gestapo. These principles governing the Einsatzgruppen applied particularly to the Einsatzgruppen in the East, which are the ones that have been accused of the most crimes and the most serious crimes. To them also applies the fact that the [Page 69] Osteinsatz was not a Gestapo Einsatz either in personnel or in the tasks given, but an Einsatz of various units which had been set up especially for this purpose. The witness Ohlendorf testified to the same effect. The fact that the Gestapo also supplied men for this does not justify the conclusion that it was responsible for deeds committed by the Einsatzgruppen. Nor is this changed by the fact that the Chief of Amt IV, i.e., Muller, the Director of the Gestapo within the RSHA, had an important part in passing on all orders. He was acting here directly on behalf of Himmler and Heydrich. The activity of Muller cannot be decisive in view of the fact that the overwhelming majority of the agents under him had no knowledge of the events. If that had been the case, the Kripo or the Public Order Police (Ordnungspolizei) would have had to be held equally responsible for the events as a unit. But the Gestapo cannot be declared criminal because of Muller's position with regard to the Einsatzgruppen any more than the Kripo - whose chief, Nebe, by the way, was himself the leader of an Einsatzgruppe in the East - can be held responsible, on the basis of the participation of its chief and individual members, for the mass executions undertaken by the Einsatzgruppen. Therefore, mass murders of the civilian population, like all other atrocities committed by the Einsatzgruppen, cannot be charged against the Gestapo as such. The next charge refers to the execution of politically and racially undesirable prisoners in camps. I beg the Tribunal to take judicial notice of it, as well as of the third charge, according to which the Gestapo together with the SD sent prisoners of war who had escaped, and who had been recaptured, to concentration camps. I continue on Page 38 of the original, in order to deal further with the concentration camps. The American prosecution says that the Gestapo and the SD bear the responsibility for the establishment and distribution of the concentration camps and for the assignment of racially and politically undesirable persons to these and to extermination camps for forced labour and mass murder; that the Gestapo was legally entrusted with the responsibility of administering the concentration camps; that it alone had the power to take persons into protective custody and to execute the protective custody orders in the State concentration camps and that the Gestapo issued the orders to establish such camps, to convert prisoner-of-war camps to concentration camps, and to establish labour training camps. In the treatment of this point of the Indictment the widespread error must be corrected that the concentration camps were an institution of the Gestapo. In reality the concentration camps were at no time established and administered by the Gestapo. It is true that Paragraph 2 of the order for the execution of the law concerning the Secret State Police of 10th February, 1936 - Gestapo Exhibit 8 - that the Secret State Police Office administers the State concentration camps, but this regulation was only on paper and was never carried out in practice. It was rather the Reichsfuhrung SS which was responsible for the concentration camps, and appointed an inspector of concentration camps whose duties were later transferred to Amtsgruppe inspector (Dept. D) of the WVHA of the SS. This is clearly confirmed among other facts by the witnesses Ohlendorf and Best and a large number of documents. (Compare among other material Gestapo Exhibits 40 and up to and including 45.) After Hitler's seizure of power in 1933 the SA and SS had independently established numerous camps for political prisoners. The Gestapo on its own initiative took steps against these unauthorized concentration camps, eliminated them, and released the inmates. Gestapo Chief Dr. Diels even brought upon himself the accusation that he was supporting the Communists and sabotaging the Revolution. (See davit 41, testimony of the witnesses Vitzdamm and Grauert.) Thus the concentration camps were never under the Gestapo. The Inspectorate of Concentration Camps and the Economic and Administrative Departments of [Page 70] the WVHA remained independent agencies and their chiefs were directly subordinate to Himmler. The order contained in Document USA 492 does not affect the administration of concentration camps, but it regulates the assignment of prisoners to the various camps, so that political prisoners would not be sent to camps which, according to their structure and their form of work, were meant for hardened criminals. Of the large number of documents which prove the non- participation of the Gestapo in the administration of the concentration camps, I should like to mention only one more: Gestapo Exhibit 38. This shows that all persons not mentioned there - and thus all Gestapo officials regardless of their rank or position - needed the written permission of the Inspector of Concentration Camps to enter a camp. If the concentration camps had been subordinate to the Gestapo, there would not have existed a necessity to obtain this written permission to enter. In each concentration camp there existed a so-called political department, the position of which in the camp and its relationship to the Gestapo is a matter of conflicting views. In this political department were employed one to three officials of the criminal department of the Gestapo. These officials did not form an office of the Gestapo or of the Kripo; rather they were attached to the commandant of the camp as experts to fulfil police tasks in regard to individual prisoners. Above all, they had to conduct the interrogations of those prisoners against whom a case before the ordinary court was pending. This was done upon the request of the ordinary courts or of the Secret State Police, or Criminal Police. With regard to the power to issue orders they were exclusively subordinate to the commandant of the concentration camp. They had no influence whatsoever on the administration and conduct of the camp or on the transfer, discharge, punishment and/or execution of the prisoners. As it can be seen, the concentration camps were not institutions of the Gestapo, but rather institutions which served the Gestapo requirements in the transaction of its police tasks. For the Gestapo they were the same as the regular prisons were for the courts or for the Public Prosecutor, namely, executive institutions to carry out the protective custody ordered by the Gestapo. In my plea I shall not deal with the matter of protective custody and beg the Tribunal to take judicial notice of it. I pass to Page 43, the second sentence of the last paragraph. If one takes the trouble to analyse the numerical relationship of the cases to the various measures available to the Gestapo, such as instructions, warning, security fee and protective custody, one will find that when the latter was chosen the transfer to a concentration camp was the least practised measure. At the beginning of the war approximately 20,000 people were kept in protective custody in the concentration approximately half of them were professional criminals, the other half political prisoners. At the same time there were kept in the regular prisons about 300,000 prisoners, of whom approximately one-tenth were sentenced for political crimes. THE PRESIDENT: What evidence is there of those figures, of the proportions? DR. MERKEL: Dr. Best made this statement before the Commission on 6th July, 1946. Larger use of the concentration camps was made by transferring to them the professional criminals and the anti-social elements, particularly those who had been sentenced by the court to protective custody, a measure which was not ordered and executed by the Gestapo (compare witness Hoffmann). On the basis of Gestapo Affidavit 86 the maximum numbers of prisoners sent to the concentration camps by the Gestapo at the beginning of 1945 were about 30,000 Germans, 60,000 Poles, and 50,000 subjects of other States. All other prisoners - on 19th December, 1945, the prosecution claimed that there were in the concentration camps on 1st August, 1944, 524,277 prisoners - had been sent there not by the Gestapo but by the criminal police, the courts, and various authorities in the occupied territories. [Page 71] The following parts of my brief which deal in detail with the question of concentration camps will also be omitted by me; and I again beg the Tribunal to take judicial notice of them. I shall continue on Page 50, approximately in the middle of the page. It is correct that the Gestapo established and maintained labour training camps and that it was responsible for any commitment to them. The purpose of a labour training camp is described by the periodical The German Police (Gestapo Exhibit 59): "The purpose of the labour training camps is to educate in a spirit of workers' discipline those who have broken their work contracts and those who shirk their duty, and to bring them back to their old jobs after that aim has been accomplished. Any commitment is handled exclusively by offices of the State Police. To stay there is not to be considered a penalty, but an educational measure." It is incorrect to say, as the prosecution has done, that only foreign labourers were sent to the training camps. They had been established equally for Germans and for foreign labourers, and also for employers who had abused the rights of their employees. The maximum length of stay stipulated (which was established after thorough investigation in each individual case) was originally twenty-one days, later fifty-six days, in contrast to the sentences of courts for breach of contract which ran from three months up to one year of imprisonment. Those who broke a contract and were committed to a labour training camp in every respect found themselves in better conditions than those who were sent to prison. The commitment was not included in the individual's court register of penalties, and in general, shelter, feeding and treatment in the labour training camps were better than in the prisons. The food consisted of the regular prisoners' rations supplemented by the additional rations for heavy work; these rations were continuously submitted to inspection as to quantity, quality, and taste, as is shown by Gestapo Exhibit 58. On the basis of these facts, it is not possible to characterize the supervision of the foreign labourers and particularly the establishment of and commitment to labour training camps by the Gestapo as a crime.
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