The Nizkor Project: Remembering the Holocaust (Shoah)

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[DR. SERVATIUS, CONTINUED]

How far Hitler was a demoniac has been illustrated by
Goethe's words already quoted from Dichtung and Wahrheit by
my colleague Dr. Dix:

  " ... he (the demoniac) radiates an enormous force ...
  all united ethnic forces cannot defeat it ... it attracts
  the masses ... and it is from such remarks that the
  strange yet dynamic slogan may have arisen: Nemo contra
  deum, nisi deus ipse (No one can do anything against God
  except God himself)."

The effect of demonocracy in the wide world has become clear
to you in some of the cases of the individual defendants.
The case of the Gestapo will demonstrate to you how an
institution of the State was repeatedly misused by the
demoniac leaders of that State. Here, during the discussion
of this preliminary question, yet another interest arises,
the interest of the legal significance of demonocracy for
this trial. In order to satisfy that interest I shall give
another short quotation from Goethe:

  "Demonocracy is a power which, though it does not oppose
  the moral world order, nullifies it."

According to this verdict the crucial point is that two
powers determine the history of the world, "the conflict of
which," as Mr. Justice Jackson said agreement with Goethe,
"forms much of the history of humanity: the moral world
order and the demoniac." The juridical value of this
judgment for our set of circumstances becomes clear from the
following considerations:

The moral world order was represented by the traditional
order. Opposed to this, Hitler represented the power which,
while it did not oppose it, nevertheless rendered it
ineffective. In this trial the aim must be to exterminate
the remains of this demoniac power. Can this and should this
be done in accordance with the traditional principle of the
victorious moral world order, or should it be done by other
methods?

Here we have the first juridical alternative of this trial
clearly before us, deriving from the greatest of possible
perspectives, i.e., consideration of the differences between
the moral world order and the demoniac.

                                                   [Page 59]

Controversial points of view dominate the present attitude
toward these matters. The Charter on one hand has chosen the
traditional specific principles of the moral world order. It
wishes to see judgment passed against the representatives of
demonocracy, the individual defendants and organizations, by
means of an orderly trial, a proper indictment, with
appointed defense counsel and resulting in a sound verdict.
On the other hand, the "law of the Charter" itself,
according to the words of Mr. Jackson, is "a new law" with
principles which contradict the age-old traditional legal
conception. As examples I quote the assumption of collective
guilt and the introduction of laws with retroactive effects.

In this way it becomes apparent that the leading ideas
directing this trial are in opposition to each other. It is
our common task to recognize this fact and also, through
joint efforts on the part of the prosecution, the defense,
and the Tribunal, to arrive at a concordantia discordantium,
a balance of conflicting opinions.

My leading argument as defense counsel for the Gestapo will
have to be devoted, therefore, to the question of how the
rules of the Charter are to be understood, according to
which the Tribunal can declare, from the trial of Goering,
Kaltenbrunner or Frick, that the Gestapo was a criminal
organization.

Once again I must come back to the principal consideration.
If two powers of historic importance to this world decide
the moral world order and the demoniac, then, if this world
is to be cleansed, moral order must be victorious. But is
the moral world order empowered to conduct the fight against
its opponent with exceptional rules which differ,
themselves, from the basic principles of the moral order?
For the sake of the purity of its character and of its
victory, the moral world order must only fight with the
weapon of its own categoric imperative, without any
compromise. Because it is thus that the opponents of Hitler
fought during six years of war, starting with the principles
of the Atlantic Charter. But is it right that they, the
declared representatives of the moral order, should now,
with the battle of arms at an end, conduct the final
struggle against demonism with such exceptional rules?
Surely that is impossible! Would it not create the
impression that the victorious powers, particularly in the
realm of ethics, do not have sufficient confidence in their
inmost being?

As a result, for coming generations this maxim would
develop: "That which is useful to the victor is right." The
pitiless vae victis would have been enthroned, although the
victors had especially emphasized that they entered the
lists for justice, and because of justice. With the word
"Justice" the signatory powers have called the Tribunal into
existence by stating in Article 1 of the Charter that an
International Military Tribunal shall be established for a
just trial ....

They gave the word "Justice" emphasis by having Article 16
of the Charter headed "Fair Trial for Defendants," and then
they took the precaution of specifying that the regulations
contained in Articles 9 and 10 are such as may be applied.

That the victors should wish to have organizations with such
a reputation as the Gestapo declared criminal - who would
not understand that? But they guarded against making
Articles 9 and 10 compulsory regulations. In that way
justice became the first remise of the Tribunal. Within its
limits, therefore, the regulations that may be applied under
Articles 9 and 10 are to be handled as if the entire
stipulation had the following wording: "If the Court
considers it just, it may declare the organizations
criminal." In this way the entire decision rests on the
concept of justice.

Justice in its truest form is an attribute of God - "God is
just." This sentence has penetrated our consciousness in the
sense that God will call to account only him who is really
guilty according to the word of Josiah: "I have called you
by name."

This confirms the principle which should guide all the
deliberations according to which the organizations and their
members must be dealt with. In the main, two elements are
involved: the members of the organizations and their
families,

                                                   [Page 60]

who comprise at least fifteen million people; now we have to
see that the remarkable but terrible proverb - "No one can
do anything against the moral order of the world except that
moral order itself" - does not prove itself true because of
the judgment.

From this, the following conclusion arises for my final
pleas regarding the question put by the Charter to the
prosecution, to the defense, and to the Tribunal, whether
rules of exception are admissible, whether, above all, the
organizations are to be considered collectively capable of
guilt, whether laws with retroactive power may be applied -
that these questions must be answered in the negative.

The counter-question, whether the world in the future can,
on the basis of the system of individuality, be protected
from demoniac catastrophes, and whether the Hitler
catastrophe did not prove the opposite, I should like to
answer to this effect: The protection of the world against
such catastrophes is not a question of a system, but rather
a question of determined men who rest secure in the moral
order of the world.

The significance and the consequences of the demand voiced
by the prosecution to have the organizations declared
criminal are of tremendous scope. That is reason enough for
the defense counsel to examine with the utmost
conscientiousness and thoroughness, and in every possible
direction, whether the foundations are present which can
carry an indictment of such consequence in terms of justice,
under the moral world order.

First of all, I should like to establish with all emphasis
the first and most important result of my examination: A
group (Gemeinschaft) cannot be declared guilty. For criminal
guilt means the embodiment of conditions which are
punishable not only in an objective but also in a subjective
form. In other words, a crime can only be committed in terms
of guilt, that is, only intentionally. According  to natural
concepts, we can speak of intent only in the case of a
single individual but not in the case of a group, and if
foreign laws are referred to in this connection, this, in
the final analysis, is a case of confusing the coinciding
will of numerous individual persons directed toward a fixed
aim.

However, the problem of collective guilt lies in a sense
much deeper. The thought of rejecting collective guilt goes
back to the most ancient times. It originated in the Old
Testament and through Hellenic culture and Christianity it
spread over the entire world. In this way it has become the
guiding legal principle of the entire moral order of the
world. In Roman law this sentence was expressed clearly
Societas delequere non potest. In modern times we have
retained the thought of individual guilt.

On 20th February, 1946, the Pope said in his radio speech
that it was a mistake to assert that one could treat a
person as guilty and responsible merely because he had
belonged to a certain organization, without taking the
trouble to investigate in the individual case whether the
person in question had made himself personally guilty
through his actions or his failure to act. That would be an
infringement on the Rights of God.

In the same sense the Hague Rules on Land Warfare of 1907 in
Article 50 expressly prohibit the infliction of punitive
fines because of the actions of individuals for which the
population cannot be considered co-responsible.

Finally, the former State Secretary K. H. Frank was
condemned to death and executed because he had, among other
things, wiped out the village of Lidice because of the
conduct of individual inhabitants thereof. That is to say,
the fact that he had assumed the collective guilt of the
community and inflicted a collective punishment on the
village was counted as a crime. Thus, in our case, it cannot
be proper to punish an organization as a whole,
collectively, because of the crimes of individuals.

With these brief references I believe I have made clear that
the basis of the accusation against the organizations is not
firmly established. I agree with the legal statements of Mr.
Jackson only in so far as he concludes his observations

                                                   [Page 61]

the statement that: "It is quite intolerable to let such a
legalism become the basis of personal immunity." The
personal immunity of the individual members of an
organization in connection with the punishable actions
committed within the organization cannot be derived from the
denial of collective guilt; rather, the culpability of the
individual for the punishable actions committed by him can
be emphasized more strongly.

The legal basis of the whole trial against the individuals
and organizations here accused is the Charter created by the
United Nations.

The defense has already taken the opportunity to express its
misgivings about the Charter. To this I make reference.

I want to bring out only one point of view once more. If, in
case an organization is declared criminal, the former
members are to be punished because of their mere membership,
then they must do penance for something which was legally
permitted at the time of the action. Thus the Charter
establishes standards with retroactive force. The legal
principle, however, which prohibits laws with retroactive
force is firmly established in the law of all civilized
States.

Thus the French Constitutional Assembly on 14th March, 1946,
decided to give the Constitution of the French Republic, as
a preamble, a new formulation of the "Declaration of Human
Rights." Article 10 reads:

   "No one can be condemned or punished unless on the
   strength of a law passed and published before the deed."

In accordance with this general international legal concept,
the American Military Government in Germany ordered,
through. Law No. 1, in Article 4:

  "A charge can only be pressed, sentence passed, and
  punishment executed if the act at the time of its
  commission was expressly legally declared punishable."

The same law prohibits the use of analogy or so-called sound
public opinion as a legal basis. Yes, the American Military
Government considers the principle mentioned so important
that it punishes its violation with the death penalty.

Finally, may I be permitted in this connection to mention
Article 43 of the Hague Convention of the year 1899,
according to which the United States of America, as well as
England and France, undertook the obligation toward the
other States, including Germany, in occupying a foreign
country, to observe the laws of this country unless a
compelling obstacle existed.

The United Nations have proclaimed that the goal of this
trial is to restore justice and respect for International
Law, and thus to promote world peace. They have acknowledged
fundamental human rights and the recognized principles of
International Law. Stamping as criminal formerly held legal
political convictions, however, could be considered a
limitation of this acknowledgment and could shake confidence
in fundamental human rights. As a precedent, such a judgment
could have disastrous consequences for the idea of justice
and personal freedom.

My previous statements concerned the admissibility of the
charge against all organizations. For the Gestapo there are
two further factors.

The Gestapo was a State institution, an aggregation of State
agencies. An agency, in contrast to a society or other
private organization, pursues not self-chosen but State-
ordered aims, not with its own but with State means. It
fulfils its function in the framework of the total activity
of the State. Its actions and measures are State
administrative acts. In the case of a State agency one
cannot speak of submission to a common will of the agency
nor of an association, more or less by agreement, for a
common purpose. Thus there is lacking here the prerequisite
for the concept of an organization or group and of
membership in the sense of the Charter. If private
organizations cannot be considered responsible and subject
to punishment, then State agencies and administrative
offices certainly cannot. Only the State itself could be
held responsible for its institutions if that were at all
possible, never the institution itself.

                                                   [Page 62]

The institution of the police - the political police too -
belongs to the internal affairs of a State. A recognized
international legal maxim, however, prohibits the
interference of a State in the internal legal affairs of a
foreign country. And so from this viewpoint as well, there
are objections to the charge against the Gestapo, which I
consider it my duty, as defense counsel, to point out.

Finally, there is a further question to be examined: If the
Gestapo is to be declared criminal one of the principal
defendants should have been an official of the Gestapo. But
was any one of the principal defendants ever an official and
thus a member of the Gestapo? That this prerequisite for
trial exists seems very doubtful, for Goering, as Prussian
Prime Minister, was Chairman of the Prussian Secret State
Police and could give orders to it, but he did not belong to
it. His position as Chief of the Secret State Police was,
moreover, eliminated with the appointment of the Chief of
the German Police and with the Nationalization
(Verreichlichung) of the Prussian Secret State Police in the
years 1936 and 1937. Frick, as Reich Minister of the
Interior, was the competent minister for the police, but he
was never an official of any particular branch of the
police. Kaltenbrunner, finally, testified that with his
appointment as Chief of the Security Police and the SD he
was not made Chief of the Gestapo, and in fact he was not -
as Heydrich had been since 1934 - the head of the Secret
State Police Office. Nor was the Chief of the Security
Police and the SD on the budget of the Secret State Police
but was carried on the budget of the Reich Ministry of the
Interior.

In case indictment and condemnation of the Gestapo should
nevertheless be judged admissible, I now turn to the
question of whether the substantive legal prerequisites are
given for declaring it criminal. In other words, it must be
examined whether the Gestapo as a whole was a criminal
organization or group in the sense of the Charter. In the
examination of this question I shall follow the conditions
laid down and designated as relevant in the decision of the
Tribunal of 13th March, 1946.

But before I go into this question I must point out a
general error regarding the type and extent of the activity
of the Gestapo. Among the German people, and perhaps even
more so abroad, it was customary to ascribe to the Gestapo
all police measures, terror acts, deprivations of freedom,
and killings, as long as they had any police tinge at all.
It became the scapegoat for all misdeeds in Germany and in
the occupied territories, and today it is to bear the
responsibility for all evil. Yet nothing is more mistaken
than that. The error arises from the fact that the whole
police system, whether Criminal Police, Wehrmacht Police,
Political Police, or SD, without distinction of the
branches, were considered Gestapo. When Heydrich said at the
German Police Rally in 1941: "Secret State Police, Criminal
Police and Security Service are enveloped in the mysterious
aura of the political detective story," this characterized
the almost legendary atmosphere by which the Gestapo in
particular is surrounded, even up to the present day. It was
apparently in keeping with Heydrich's tactics to let the
Gestapo appear in the opinion of people at home and abroad
as an instrument of terror, to spread fear and horror of it,
in order to create fear of engaging in activity hostile to
the State.


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