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[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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