The Nizkor Project: Remembering the Holocaust (Shoah)

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[DR. KUBUSCHOK, Continued]

Everything which in a democratic government is
considered a matter concerning everybody, which
affected the entire Cabinet, is here shifted to one
department and considered as its exclusive task. What
really should be an affair of the Government is simply
labeled an administrative task, and then dealt with by
simple administrative instructions. It was dealt with
behind the closed doors of the department, into which
no other minister had the right or opportunity to
inquire. As an example of this I refer to the handling
of the concentration camps and the later so-called
"final solution of the Jewish question." By virtue of a
special mandate issued by Hitler, Himmler handled this
question as a purely administrative matter for which
his department alone was competent. Also this
departmental matter came under the ban of secrecy. This
development must be considered over and against the
line taken by the prosecution that the entire Cabinet,
from the very beginning, had worked in the closest
secrecy with Hitler in planning and carrying out the
illegal war. The confidential collaboration necessary
for the execution of a common conspiracy can in no way
be reconciled with the development as described.
Hitler's endeavour to curtail and control in every way
the ministers' field of responsibility, his endeavour
to replace the total joint responsibility of the
Cabinet by a single department, the establishment of
super-departmental central offices outside the Cabinet,
his endeavour to prevent even personal contact between
the ministers, are in no way compatible with the thesis
of the prosecution.

Notwithstanding this, if I am to fulfil my duty as a
defence counsel, I must examine whether the group of
persons outlined by the prosecution did conceive the
idea of planning and executing the crimes mentioned in
the Charter, and if so, when.

Various statements by the prosecution seem to indicate
that the date on which the prosecution assumes this to
have started was as early as 30th January, 1933, the
day the Cabinet was formed. Consequently it would be
only logical to assert that the purpose for which the
Cabinet was formed was in itself criminal. In this
connection I need say little, and merely refer to the
statement which I made in defence of the defendant von
Papen. I wish to supplement the reasons I gave then by
adding the statement which Bruening made in 1932 to the
Minister Count Schwerin-Krosigk. I refer to my
affidavits Nos. 1 and 3. Bruening, who at that time was
the responsible Chancellor of the Reich, admitted the
impossibility, if the economic and political crisis
persisted, of continuing to govern almost exclusively
with the emergency powers of the Reich President. He
declared that the agitation of the National Socialists
could be effectively combated only by obliging them to
take responsibility. It is interesting to hear this
statesman, who had such a sense of responsibility,
confirm at such an early date that which six months
later became a fact.

This political development arising from the needs of
the moment; further the constitutional necessity of
forming a cabinet and the unhomogeneous composition of
this group in any case give the lie to any criminal
intention by the formation of the Cabinet. In addition
I would like to say that negotiations with individual
members of the Cabinet took place only on a very small
scale, that a large number

                                             [Page 202]

of members were taken into the new Cabinet because of
their former membership in the Government, only because
the Reich President, von Hindenburg, had requested it.
If the forming of the Cabinet is assumed to be a
criminal act then this cannot be reconciled with the
fact that Hindenburg, who was responsible
constitutionally for the formation of the Cabinet, and
indeed was very active in that direction, is not
mentioned in the list of persons set out by the
prosecution in Appendices A and B. As deceased members
were also mentioned by name, and the group of Cabinet
members was not outlined according to formal
constitutional law, but drawn up from the practical
standpoint, I believe I can deduce from this fact that
the prosecution does not consider the formation of the
Reich Cabinet on the 30th of January, 1933, to be a
criminal act. At least the prosecution assumes the
existence of a common plan for the commission of crimes
mentioned in the Charter even before the Cabinet
started its activity, and sees in the development of
the legislative work of the Cabinet a reason to assume
a common aim to plan and carry out an unlawful war. I
will now leave the discussion of these alleged
indications and consider a date which is of particular
moment for this question.

It is the 5th November, 1937, the day of the conference
between Hitler and his War Minister, the three
commanders-in-chief of the services and the Foreign
Minister, at which he expounded his future plans. I
need not open again the discussions started by counsel
for the various defendants as to whether Hitler gave a
true and complete account of his plans to those
present. His statement discloses at least one thing:
that he first informed only a very limited circle of
his plans. If he here admitted that he was revealing
his most secret plans to those present, and that he had
purposely refrained from informing the Cabinet - as is
customary in other countries - of such far-reaching
decisions, it is clear that he mentioned these things
for the first time to his chosen circle, and that he
was particularly anxious that the remaining Cabinet
members should continue to be kept in the dark about
his plans.

Hitler expounded the view that it was necessary for war
to come soon. He asserted that he had come to this
conclusion in the course of his four years of rule, and
that this conclusion was the result of the experiences
gained during this time, that economic measures would
not ensure for the nation the means to live. Even if we
should be skeptical about the truth of this declaration
of Hitler, one thing is certain: There cannot have been
a common plan between Hitler and all the members of the
Cabinet for a criminal war since 30th January, 1933, as
stated by the prosecution, if on the 5th of November,
1937, he announced to a number of these Cabinet members
that he had arrived at this decision, which involved
planning for war, at that very hour as a result of his
observation of developments during the past four years.
If Hitler, when making this statement, goes out of his
way to say that the remaining Cabinet members are
excluded from this knowledge, it clearly shows that he
does not consider the Cabinet, as such, to be the right
body to receive information about plans of this kind.
Thus it is clearly proved that, at least up to this
date, no such common plan existed in the Cabinet, a
plan which could only have come into being under the
leadership of Hitler.

At what date after the 5th November, 1937, could such a
common plan have been decided on?

In the period after the 5th of November, 1937, only one
more Cabinet meeting took place, on 4th February, 1938,
at which Hitler merely informed those present of the
changes in personnel without making known the reasons
for them. The question of war plans was not touched
upon in any way whatsoever. If the prosecution
construes the right to take part in the Cabinet
meetings as proof of a mutual bond between the Cabinet
members, it must admit the contention of the other side
that such a bond no longer existed in the ensuing
period. To a certain extent the circulation procedure
now generally adopted did take the place of the Cabinet
meetings. It should, however, be borne in mind that the

                                             [Page 203]

procedure was perhaps a suitable method for pursuing a
previously existing collective purpose by means of
separate acts in the legislation. Nevertheless, it is
unthinkable that this written circulation procedure
could be the vehicle for such common planning for so
comprehensive a crime. In the case of such a decision,
which because of its very nature had to be secret,
there must be some sort of connection in point of
locality. Within the confines of a Cabinet meeting this
would be possible. In a discussion of documents by
means of a circulation procedure, this appears to be
impossible. Over and above all these considerations it
must also be affirmed that according to the whole of
the evidence such a plan to start a forbidden war was
never communicated to the Cabinet, let alone discussed
or even commonly conceived.

Now I have still to deal with the supposition of the
prosecution that the legislative activity of the
Cabinet was wholly directed towards the planning of a
war of aggression. The prosecution believes that the
purpose of the legislation was to give Hitler complete
control, to consolidate that control, and thus prepare
and carry through the war of aggression.

The prosecution is aware that neither the establishment
of totalitarian control nor the individual decrees
issued by the Cabinet constitute a crime under the
Charter. It believes, however, that it is able to
establish a relation between this totalitarian control
or the individual decrees and crimes defined in the
Charter because of the plan purposely designed from the
first to commit the crimes covered by the Charter. To
attain this aim and to avoid any opposition to the
planning, the totalitarian control of Germany was
necessary. A number of decrees issued by the Cabinet
would bring about its establishment.

Some of these pointed directly to the aim pursued.
Others, by their terroristic and inhuman nature, showed
that they were directed towards this goal. The
prosecution goes on the assumption that dictatorship
was a prerequisite for the subsequent crimes mentioned
in the Charter, and that the establishment of the
dictatorship was a part of the plan for the committing
of these crimes.

In rebuttal it must be stated that it is impossible to
conclude a cause from an effect in order to prove that
the cause had of necessity to lead to the effect. This
view would be correct only if the establishment of the
dictatorship could find its compelling motive in the
planning of the crimes. The view breaks down if it
could appear that the establishment of the dictatorship
was necessary for other reasons or even expedient. Such
reasons did exist. The call for unified power is a
natural phenomenon in times of special crises. A
unified power is more quickly able to take measures
which are necessary to put an end to the critical
conditions. At all times and in all countries,
therefore, there has been a tendency towards
unification in times of crisis. This is provided for in
the constitutional law of every country. Emergency
measures then shift the power from a large body, such
as Parliament, to a smaller circle. We had this
development in Germany at a time when we could still be
regarded as a country with a democratic government.
This is proved by the emergency law which in Bruening's
time was extensively applied. I have already pointed
out at an earlier stage that the idea of unification
was further promoted by the Fuehrer concept held by the
Party. The people believed that the deeper cause for
the economic crisis could be found in the lack of
unified leadership. It is true the German people had
received the gift of purest democracy with the Weimar
Constitution, but in its whole past it had not been
educated for it. Lacking was the gradual, organic
development towards free democratic thinking, the
education for critical judgment. Thus can it be
psychologically explained why, when the democratic
republic was in great economic difficulties, the cause
was not seen in the actual conditions themselves, but
was sought in the lack of unified leadership.
Consequently, the idea of the Fuehrer principle and of
placing the direction of the people's destinies in the
hand of one person was popular. It was reflected in the
elections, which in any case had to be taken as a
recognition of the principles of the NSDAP, and

                                             [Page 204]

of the Fuehrer idea. Nor can it be denied that the
rigid concentration and orientation of all spheres
towards the direction by a single supreme authority did
in many ways help to carry through the certainly
comprehensive and daring economic measures.

THE PRESIDENT: Shall we break off now?

DR. KUBUSCHOK: Very well, sir.

(A recess was taken.)

DR. KUBUSCHOK: Before the recess I was saying that
considerations of expediency could justify the
establishment of a dictatorship. I continue.

The recognition of this alone would furnish the
justification, necessary within the framework of
considerations based on criminal law, for a co-
operation of the Cabinet members in the development
leading to the dictatorship. In any case, this would
exclude the unqualified conclusion drawn by the
prosecution, namely that the establishment of a
dictatorship necessarily means the setting of the aim
towards an aggressive war.

The prosecution also considers the legislation of the
Reich Cabinet, which it views as terroristic and
repressive, to have been directed towards the
establishment and consolidation of a dictatorship
having as its aim an aggressive war. In so doing it has
particularly in mind also the anti-Jewish legislation.
This too must be examined here only from the viewpoint
of whether in purpose and substance it can actually be
regarded as being part of the planning for waging an
aggressive war. The prosecution pointed out that
Himmler, in his Posen speech in 1942, stated he was
happy to see in this advanced phase of the war that it
was no longer possible for the Jews to constitute an
internal danger.

Such a statement may, if considered superficially,
justify the conclusion that actually all legislative
and administrative measures taken against the Jews, to
a gradually increasing extent, were directed to
achieving the result welcomed by Himmler. Here,
however, one will have to differentiate between the
restrictions imposed upon the Jews by legislation and
what was done to the Jews under Himmler's
administration by shutting them up in concentration
camps and exterminating them. Only the last-mentioned
measures, the segregation of the Jews from the rest of
the population, their complete isolation in Polish
ghettoes and concentration camps, and finally, their
physical annihilation, constituted what Himmler could
consider making the conduct of the war easier. As
compared with this, not one of the laws issued by the
Reich Cabinet, even the Nuremberg Laws passed by the
Reichstag, while undoubtedly unqualified measures of
repression, provided for the hermetical sealing off of
the Jews from any association with the rest of the
population. The laws finally led to the Jews being
excluded from public positions in the economic life of
the country and to a restriction of their personal
freedom which violates even the most elementary rights
of the individual. From their effects it must be
recognized that they were aimed at rendering life for
the Jews in Germany difficult in every respect. This
was coupled with the generally propagated aim of
getting Jews to emigrate.

I believe it is precisely this point which goes to
prove that the persecution of the Jews, in so far as it
was carried out by legislation, did not have an
aggressive war as its goal, not even indirectly through
the consolidated dictatorship. One cannot set
aggressive war as one's goal on the one hand, and on
the other hand create, by legislative measures, a
situation which forces emigration on people robbed of
the foundation for their very existence. If one wants
an aggressive war, it would be the height of folly to
expel members from the body of one's own people,
thereby making them enemies, and drive them into
foreign countries, into countries which one must
consider as the future enemies within the framework of
war planning. Thus, I believe that the entire anti-
Jewish legislation can be

                                             [Page 205]

dismissed as not constituting a necessary factor for
the commission of the crimes within the meaning of the
Charter. I would like to supplement this by saying that
a great many of these laws were not passed, as may be
thought, with the full agreement of all Cabinet
members; the laws clearly show traces of compromise,
and some of the ministers knew how to moderate the
general purpose of the laws and to limit their effect,
as I have already pointed out during the defence of the
defendant von Papen. The fact that a minister
participated in such legislation in no way means that
he agreed with its purpose and approved of it. In this
connection I should like to refer to the statement made
during cross-examination by the witness Schlegelberger
concerning the letter addressed by him to Lammers.
Schlegelberger states that some Party agency, probably
the Race Office of the SS, intended to remove all
partly Jewish persons to the East. In this instance the
Ministry of justice had an opportunity of stating its
point of view in connection with a divorce question.
The stand Schlegelberger first took, as outlined in the
letter addressed to Lammers, and which merely consisted
in rejecting the contemplated measure, was of no avail.
He, therefore, felt obliged to moderate the measure by
some practical proposal. Hence his proposal, with
reference to the prevention of any issue of mixed race,
as desired by the Race Office, for exempting all those
persons of mixed race from whom no further offspring
can be expected. In this connection, he also proposed
that a person of mixed race should be exempted from
being sent to the East if he agreed to be sterilized.
In considering such a proposal, it is difficult to
disregard human sentiments, and to judge it with the
objectivity necessary in a trial. But, in this
instance, one can only come to the conclusion that here
an attempt was made, admittedly barbaric, to avoid even
worse and inescapable measures. Certainly it is a
problem to determine how far one may participate in an
evil in order to prevent a still greater evil. In any
case the motives must be considered here too. When
dealing with the case in point, the main thing is that
even the Schlegelberger proposal wished to avoid at
least geographical elimination of persons of mixed race
from the German population. Bearing in mind the points
of view expressed by Himmler in his speech at Posen,
this alone is a determining factor when considering the
war of aggression.

Turning now to the further legislation, there is no
need to deal with this if it was introduced before the
30th June, 1934. I refer here to my statements in the
Papen case.

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