The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/02/21

[DR. KUBUSCHOK, Continued]

I do not deny that the Tribunal faces a very difficult
task on account of this legal argumentation. In my
deduction I started from the prosecution's concept that
the proposed declaration comprises also the question of
guilt of the individual member, and that in later
proceedings this member must restrict himself merely to
objections which refer to the fact of the membership
itself. An absolutely necessary consequence of this
concept is that the Tribunal has to restrict its
decision to the number of cases of the individual
members in order to avoid that the decision issued now
embodies also the verdict of guilt of all members
without an examination of the question of guilt of each
individual member having been made, and that the
innocent in fact are not declared accomplices
indiscriminately without having been heard. 

The only way to avoid this would be a modified verdict which
would merely establish objective historic events
without thereby at the same time taking a decision as
to the individual member and his subjective guilt. It
is clear to me that such a modification would give rise
to legal scruples with regard to the law of the Control
Commission. We can approve of such a solution only if
the Tribunal can eliminate these scruples and actually
secure thereby that in later proceedings the case of
the individual member is examined to the extent which I
have mentioned. If one starts from the presumption that
the organization finally represents the bulk of the
individual members, it leads to the conclusion that the
shaping of its purpose presupposes a general training
of the will of all members. Without the unanimity of
the members, a change in the purpose of an existing
organization cannot be realized. All members must at
least know the new aim and must be determined to
sponsor it. Otherwise, if this new aim be a criminal
one, the previous legal organization would be split
into two, one with a legal tendency and another with a
criminal one. It would then be impossible to declare
the entire organization to be a criminal one.

Furthermore the question is to be examined as to
whether it is sufficient for the definition of a
criminal character of an organization that a further
criminal purpose is added to a hitherto legal one. Here
also the previous conclusion should be considered that
the definition "criminal" must comprise the unanimous
aim of the organization as a body. Should the criminal
purpose be only a part of the

                                             [Page 193]

aim and should it be sufficient for the purpose of
declaring the whole of the organization a criminal one,
the legal aim would be at the same time discredited by
this general definition. Must not these acts then,
which were committed for the purpose of the fulfillment
of the legal aims, be illegal ones as acts of an
entirely criminal association? In respect to the case
of the Reich Cabinet it seems impossible to me to
declare this institution as indubitably criminal, if at
the same time there can be no doubt that at least the
legal acts were legal in their effect. The legislation
of the Reich Cabinet since 30th January, 1933, which
comprises all State administrations, has still today
its predominant legal force. It would be an absurdity
to consider these legislative acts as valid, if the aim
of the Cabinet was an unrestricted criminal one.
Another presupposition for the declaration proposed by
the prosecution which we must consider is the freedom
to join the organization. A freedom which must not only
be present at the time of joining the organization but
particularly at the changing of the original aim, and
during membership of the organization. It must
therefore be actually examined whether the right to
remain in the Cabinet voluntarily was always conceded
or whether the legal and actual conditions abolished
that right, at least from a certain date onwards.

Finally the question must be examined as to whether
there existed throughout a cohesive connection between
the persons who are indicted as members of the Reich
Cabinet. Only such a connection would justify any acts,
the Reich Cabinet is charged with being considered as
having been committed by the Cabinet as a whole. This
problem is already evident, because the prosecution,
which for its part also generally considers a cohesive
co-operation of the members of the organization to be
necessary, has legally established the unity of persons
(Personeneinheit), which it designates as
"Reichsregierung," by the criterion of the right to
participate in the sittings of the Cabinet. As these
Cabinet sessions were discontinued in the course of
time, it remains to be examined whether afterwards, in
their stead, there was any other tie which bound the
members in the same way in the performance of the
activity under consideration by the prosecution.
Starting from these general considerations dealing with
the organizational problem as such, and the special
problem of the case of the Reich Cabinet, the result of
the evidence must now be examined in order to establish
whether, as argued, the requirements for a sentence
exist.

First, I wish to turn to the personal limitation of the
majority of the defendants. The prosecution starts from
the right to participate in the Cabinet sessions. It
thereby supposes that the criminal activity assumed by
them took place within the framework of the personal
connection afforded by the sessions. It thereby
overlooks, however, that a number of persons mentioned
in Appendices A and B of the Trial Brief were merely
entitled to participate in those deliberations of the
Cabinet sessions which concerned their administrative
sphere. If the prosecution obviously fixes upon the
resolution of all the participants, particularly in
questions of general politics, those members who had
the right to attend the consultations only occasionally
and in part must, as a matter of course, be excepted
from the organization in question. I, therefore, refer
to Appendices A and B where the prosecution stated the
extent of the right of participation for each of the
persons mentioned.

With reference to Appendix B, I should like to state
that the Commanders-in-Chief of the Wehrmacht branches,
that is, Fritsch, Brauchitsch, Raeder and Donitz, were
only entitled to participate in Cabinet meetings on the
basis of the Fuehrer directive of 25th November, 1938,
that is to say, not generally. With reference to the
legal point in the case of Keitel, I refer to Doctor
Nelte's final speech. Also Schirach had the right to
participate only when his sphere of activities was
involved. In the case of Axmann this is shown correctly
in Appendix B but in the case of Schirach it has been
overlooked. In this respect, therefore, we have to
supplement the list in Appendix B with reference to
Fritsch, Brauchitsch, Raeder, Donitz,

                                             [Page 194]

Keitel and Schirach. In addition to the above
conclusion, I believe that Reich Commissioner Gerecke's
right of participation was also restricted. Moreover,
this case seems equally worthy of mention because
Gerecke had already resigned in April, 1933.

In this connection, those who, while they had the right
of participation in the Cabinet sessions, had no voting
right and were only present for information, should
also be mentioned. In this category were Chief of the
Press Dietrich and State Minister Meissner.

The question of the voluntary status of membership in
the Reich Cabinet cannot be answered uniformly. In
dealing with the question of voluntary entry into the
Cabinet, particularly those cases will have to be
considered in which State Secretaries, who previously
did not belong to the circle of the persons included by
the prosecution, were, through the resignations of the
ministers over them, immediately entrusted with the
conduct of ministerial affairs and thus entitled to
participation in the Cabinet sessions. To a certain
extent their entry into their new post must be
considered as part of their civil service career.

The question of a member remaining in the Cabinet must
be judged differently according to the time. Legally,
the following must be borne in mind in this respect:
According to Article II of the Reich Minister Act of
27th March, 1930 the Reichsministers could ask for
their release at any time. An alteration of the legal
position could already have occurred by virtue of the
Ministers Allegiance Act, of 17th October, 1934, which
is Document No. 22. According to this, the ministers
had to swear allegiance and obedience to Hitler. A
letter of resignation could be construed as a breach of
allegiance and obedience and therefore be considered
legally inadmissible. The question can, however, really
be left at that. The legal consequences deriving from
the ministers' oath are in any case expressly and
legally established by the German Civil Service Act of
26th January, 1937 (2340-PS), which was put into effect
on the 1st July, 1937. By this law the Reich Minister
Act of 27th March, 1930, was cancelled. Article 161
stipulated that the Reich Ministers can now be
discharged by Hitler alone.

Legally, therefore, it was no longer possible for a
Cabinet member to resign after the 1st July, 1937. It
will be objected that nevertheless cases exist where
Cabinet members have obtained their release. The cases
of Gerecke, Hugenberg, Papen, Schmitt and Eltz von
Ruebenach are prior to this time and must therefore be
excluded.

In the subsequent period, various Cabinet members
endeavoured to resign. They mostly failed, as we have
heard on many occasions during the hearings of the
individual defendants. Many only succeeded in being
discharged from their department but they were provided
with a new title or a new office, so that they came
again within the category of persons implicated by the
prosecution. Darre was relieved of his official
functions and even expelled, but could not obtain his
official dismissal as minister. Schacht had for this
reason been preparing to break with Hitler for a long
time - that brought him to a concentration camp; State
Minister Popitz was executed as a participant in the
plot of 20th July, 1944.

So we see that in spite of the legal position it was
actually not possible for a member of the Cabinet to
resign against Hitler's will. Even the prosecution
admits that apart from the voluntary status of
membership, a cohesive co-operation of the members must
be established in order to consider the Reich Cabinet
as an organization or group within the meaning of the
Charter. It holds that this cohesive association can be
seen in the Cabinet meetings and the circulating
procedure. I shall show by the following that there was
no such collective co-operation among the members of
the Cabinet; that, as time went on, there was even a
definitive split in the Cabinet. The evidence shows
that three interlocking factors brought about a split
in any internal cohesion of the Cabinet. These three
factors are as follows:

                                             [Page 195]

  (1) The development of Hitler's absolute domination
  which increased until it became an absolute
  dictatorship.
  
  (2) The establishment of upper and lower ranks among
  the Cabinet Ministers having equal rights within the
  Cabinet itself, through the authority to give orders
  of the General Plenipotentiaries, Special Delegates,
  etc.
  
  (3) A carefully guarded secrecy, which precluded the
  individual Minister from any knowledge outside his
  Department, and thus made any super-departmental co-
  ordination impossible.

In this connection it is necessary to consider
historically the ensuing state of affairs and to find
the reasons. Until 1932 one might be inclined to assume
that the Reich Cabinets displayed a "Cabinet
solidarity." At that time Cabinet meetings were
continuously taking place, during which all Bills as
well as differences of opinion on questions which
affected the sphere of several ministers were submitted
for consideration and decision. Resolutions were passed
on the majority of votes. Even at that time, and at
that stage of practice and knowledge, the idea of a
collective responsibility of ministers was rejected. In
the authoritative Manual of German Constitutional Law
(Handbuch des deutschen Staatsrechts) by Anschuetz and
Thoma, the well-known lecturer on Constitutional Law,
Freiherr Marschall von Biberstein, wrote in 1930, vide
Page 529:

  "General principles throw a most doubtful light upon
  the affirmation of collective responsibility for
  majority decisions, because, especially in
  jurisprudence, one can only talk of responsibility
  in regard to rational beings. An established State
  practice in the sense of such an affirmation cannot
  be proved for the Reich; on the contrary, the
  competent ministers make themselves personally
  responsible ... Above all, German political practice
  does not accept the principle of 'Cabinet
  Solidarity' as it is accepted abroad, especially in
  England, which involves a collective liability for
  all individual actions .... "

This denial of a collective liability holds good not
only for the responsibility of the ministers to the
Reichstag, but also in the proceedings before the State
Tribunal, before which the ministers could be indicted
and sentenced for their activity - much in the same
form as the English "impeachment."

Moreover, at that time a restriction was placed on the
passing of resolutions by the Cabinet, and thus on the
free decisions of the ministers, by the right of the
Reich Chancellor to determine policy, for which he then
bore the sole responsibility.

There were no discussions and consultations about these
directives of the Reich Chancellor; they were binding
for the ministers. Biberstein wrote about this in his
thesis, Page 528 -

THE PRESIDENT: The Russian translation is not coming
through. Go on.

DR. KUBUSCHOK: "Otherwise, by the encroachments which
... his (the Minister's) free decision suffered through
the binding force of the Chancellor's directives. As it
was his duty to conform therewith, his position was
similar to that of a subordinate in the hierarchy of
authorities in regard to the orders of a superior: thus
he himself was not able to examine whether in his
conduct he was complying with duty, and the result was
that he could only show that he had acted in accordance
with orders, and not whether he had acted rightly. Thus
the responsibility is shifted to the person giving the
orders."

Thus we have to admit that, in a period of a purely
democratic German form of government and State
procedure, "Cabinet solidarity" did not exist, in spite
of regular Cabinet meetings, and that the ministers
certainly did not work in cohesive co-operation when at
the Cabinet meeting the Reich Chancellor used his right
to determine a policy.

For the period prior to the establishment of the Hitler
Government, it will further have to be considered that
the government authority had slowly devolved upon the
person of the Reich President by the application of the
emergency powers

                                             [Page 196]



law (Notverordnungsrecht). Already at that time the
normal legislative body, the Reichstag, was enacting
laws only to a diminishing extent; the decisive laws
were being issued by the Reich President on the
strength of the emergency powers law. The ministers,
therefore, were no more than advisers of the Reich
President. It is a symptom of this development that the
Papen Cabinet had already been established purposely by
Hindenburg as a Reich President Cabinet (Praesidial-
kabinett), that this Cabinet was composed of people in
whom Hindenburg had confidence, whom the latter had
appointed as special ministers (Fachminister). The
position of the Reich Chancellor, therefore, gained
considerably in importance, because neither the
ministers nor the Reich Chancellor had been appointed
as exponents of the parties, with the result that their
position vis-a-vis the parties was more independent
than was the case previously. The Reich Chancellor was
the liaison man between the Cabinet and the Reich
President. It was this position in particular which
gave him a distinct superiority over the other
ministers.

That was the situation when Hitler became Reich
Chancellor.

In its early stages his Cabinet was also a Reich
President Cabinet, which depended on the confidence of
the Reich President and his emergency powers law. Up to
the time of the passing of the Enabling Act
(Ermachtigungsgesetz) of 24th March, 1933, all laws
were issued on the strength of the emergency powers and
therefore were under the responsibility of the Reich
President.

The Enabling Act was the decisive factor in the further
development. The legislative powers were now
transferred to the Reich Cabinet. These were not
directed to Hitler personally but to the Reich Cabinet.
I do not claim that the Reichstag of that time already
regarded Hitler as the Reich Cabinet. But it is certain
that the Reichstag was influenced by the system of
emergency decrees which had been the Government policy
for a long time. Therefore by its nature this new
emergency legislation of the Reichstag had no other
purpose than to legalize this state of things for a
future emergency. Thus did the Reich Cabinet, whose
inner structure and working methods had been shaped
during the time of the Reich President Cabinet, come to
hold sole legislative powers. It is true that the sole
responsibility, such as was assumed by the Reich
President when passing the emergency decrees, was not
transferred to Hitler. But to a certain extent he
filled the gap caused by the elimination of the Reich
President. This became apparent to those outside when
the Reich President's right to frame laws was
transferred to him. To this was added his right as
Chancellor to determine the basic guiding principles of
policy. Both factors together resulted doubtlessly in a
considerable strengthening of Hitler's power in the
Cabinet over and against his ministers. The seeds for
his later autocracy had been sown.


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