The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Fourth Day: Tuesday, 9th July, 1946
(Part 8 of 11)

[Page 236]

DR. KAUFFMANN, Continued:

I should like to draw your attention to a few words stated by the defendant Seyss-Inquart on two points. He mentioned that Kaltenbrunner advocated the complete autonomy of the Polish State as well as the re-introduction of the independence of both Christian Churches, and I might add that Dr. Hoettl testified that Kaltenbrunner defended his activity very energetically and met with most bitter resistance by Bormann. It was not only in this field that Kaltenbrunner tried to realize his humane intentions. Therefore, it seems to me to be of significance also to point out his efforts to make Austrian Gauleiter understand that any resistance against the troops of the Western powers would be senseless, and that in view of this, irresponsible orders for resistance were not to be issued. This was confirmed by the witness Waneck. The prosecution held Kaltenbrunner responsible for the evacuation and planned destruction of certain concentration camps. I believe the attempt to prove this may not only be considered as unsuccessful, but that the contrary has been proved. Upon the question addressed to Dr. Hoettl, whether Kaltenbrunner had instructed the commandant of the concentration camp Mauthausen to surrender the camp to the advancing troops, Dr. Hoettl answered:

"It is correct that Kaltenbrunner issued such an order. He dictated it in my presence for transmission to the camp commandant."
As a supplement Kaltenbrunner, during his personal examination, declared very logically: If camp Mauthausen, filled with criminals, was not evacuated, an order to evacuate Dachau would have been devoid of any basis by reason of its - compared with Mauthausen - harmless inmates. According to the testimony of Freiherr von Eberstein, the destruction of the concentration camp Dachau with its two secondary camps was the heartfelt wish of the then Gauleiter of Munich, Giessler.

Finally the witness Waneck confirmed the fact that such an order of Kaltenbrunner had not become known to him; whereas, owing to his position with Kaltenbrunner he would certainly have known, had such an order been issued or even contemplated.

Who actually issued these orders can no longer be established with certainty. The witness Hoess, in his examination, mentioned an order of evacuation by Himmler as well as directly by Hitler.

In this connection it seems appropriate to me to refer to Kaltenbrunner's participation in the sad case of Sagan as charged by the prosecution. With reference to his statement, confirmed by the examination of the witness Wielen, it appears to

[Page 237]

me to be a proven fact that this matter came to Kaltenbrunner's attention for the first time only several weeks later, after the conclusion of this tragedy.

It also appears doubtful to me whether the so-called Einsatzgruppen introduced on the basis of Hitler's "Commissar Order" of 1941 were still in existence and functioning after the appointment of Kaltenbrunner. Some facts speak for it, others against it. Kaltenbrunner denied the existence of these groups during his term as chief of the Reich Security Office. I do not want to lose myself in details but I should like to draw the attention of the Tribunal to these doubts. The same applies, for example, to the so-called "Kugel" decree. Document 1650-PS confirms that it was not Kaltenbrunner but Muller, the infamous Chief of Amt IV, who issued the instructions involved, while Document 3844-PS mentions personal signatures of the defendant. It appears to me that the first document deserves preference. May I finally draw your attention to those documents which are of less value as evidence because they are based upon indirect observation. I believe that the Tribunal possesses sufficient experience in evaluating evidence so that I need not argue about this any further.

I have thus far voluntarily conceded the negative so that I may be the more, justified in emphasizing the positive in Kaltenbrunner's personality. How far, however, shall I be justified in stating that Kaltenbrunner had actually insufficient knowledge of many war crimes and crimes against humanity which were committed with some kind of participation of Section IV in the course of the last two, years of the war? Would such a defence offer the prospect of essentially exculpating the Chief of the Reich Security Office?

Dr. Kaltenbrunner admitted during his examination that it was only very late, in some cases as late as 1944 or 1945, that he obtained knowledge of orders, instructions and directives, despite their much earlier origin - in some instances even several years before he took office.

And here I add that I wish to emphasize particularly at this point that these orders, which are contrary to international morals and humanity, all go back to a time during which Dr. Kaltenbrunner was still in Austria.

I will not at this moment try to prove in detail all these statements of Kaltenbrunner's. The prosecution is interested exclusively in whether such orders, decrees, directives, etc., were also executed during the period of time in which the defendant was in office as head of the Reich Security Office. It is also often very difficult for the defence counsel to follow the defendant in the secret channels of his knowledge or his ignorance. Perhaps the defence counsel also sometimes lacks, the necessary scope for a free and just judgement, in view of the hecatombs of victims spread out across a whole continent, and he is unfair to his client. Thus he leaves the nature of the defendant's character to the later judgement of history, for a defence counsel is not infallible when it comes to drawing a picture of the soul of his own client.

During his examination before the Tribunal Kaltenbrunner once explained the difficult position he was in when he took over his office on 1st February, 1943, and I hope that nobody will misjudge this situation. The Reich was still fighting and even in 1943 was still dangerous for any adversary colliding with it. But it was already a fight for a goal obviously far away and out of reach. Whoever tries to hold back the spokes of the wheels of a vehicle rolling into an abyss at top speed will perish all too easily. Coupled with these conditions, from which there was no way of escaping, there was a state of stagnation, caused by nervous insecurity in all areas of private and public life. Kaltenbrunner said with regard to this situation:

"I beg you to put yourself into my situation. I came to Berlin in the beginning of February, 1943. I began my work in May, 1943, except for a few visits of instruction. In the fourth year of the war the orders and decrees of the Reich in the executive sector had piled up by the thousand on the tables and in the filing cabinets of the civil service. It was quite impossible for a human being to read through them all, even in the course of a year, Even if

[Page 238]

I had felt it to be my duty, I could never possibly have made myself acquainted with all these orders."
In connection with this I remind you respectfully that according to the evidence given by the witness Dr. Hoettl and others, the RSHA in Berlin had 3,000 employees of all categories when Kaltenbrunner was in office, and that according to the statement of the same witness, Kaltenbrunner never dominated this office completely.

Nobody will be able to deny the justification of the question whether it was not Kaltenbrunner's duty to have himself informed in the shortest possible time at least about the most essential proceedings in all the departments of the Reich Security Office and whether he would not then very soon, anyway, have obtained knowledge of, for example, Himmler's and Eichmann's Jewish operation and many other serious terrorist measures. I may remind you that Kaltenbrunner declared repeatedly and emphatically, in answering my questions before this Tribunal, that he protested regularly every time he heard of such occurrences, addressing himself to Himmler and even to Hitler, but that he had but little success and that only after a long while. The defendant, for example, traces back the cessation of the extermination of Jews, by an order of Hitler in October, 1944, to his personal initiative. However difficult it may be to judge whether the power and influence of a single person would have been sufficient to bring about the suspension of a programme of the extermination of a race, already in its final phase, I believe I may say without being incorrect that many tens of thousands of Jews owe it to this man that they escaped the hell of Auschwitz and still see the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer of the International Red Cross, it appears that Kaltenbrunner asked the International Red Cross to organize relief-shipments to a large Jewish non-political camp at Unskirchen near Wels.

Wanek has characterised Kaltenbrunner's attitude towards the question of Himmler's Jewish policy as follows. He says:

"In the daily haste of our joint work and discussions on foreign policy, we did not touch the problem of Jewish policy any more. At the time Kaltenbrunner came into office this question was already so far advanced that Kaltenbrunner could not have had any influence on it. If Kaltenbrunner expressed himself at all on the subject, it was to the effect that mistakes had been made here that could never be made good."
This witness then finally confirmed the fact that this operation was conducted independently through a direct channel of command from Himmler to Eichmann, and said that the position of Eichmann, which already had been a dominating one when Heydrich was still alive, had strengthened steadily, so that eventually he would have acted completely independently in the entire Jewish sphere.

And here I add that, according to the statement of Hoess, the only man left alive who is familiar with this question, it is a proven fact that only about two to three hundred people knew of that dreadful order of Himmler's which was given during a conference which lasted for ten or fifteen minutes, on the basis of which more than four million people were exterminated. And I add that a large nation of eighty million had learned little or probably nothing about these things, which happened in the south-east of the Reich during the war. Professor Burckhardt states that Kaltenbrunner, when discussing the Jewish question, declared:

"It is the greatest nonsense; all the Jews should be released, that is my personal opinion."
But in spite of all this, the fundamental question is raised on the question of guilt: May a high official, the head of an influential office, whose subordinates in a far-reaching hierarchy continuously commit crimes against humanity and against the rules of International Law, assume such an office at all or remain in such an office, although he condemns these crimes? Or is it perhaps a different case if this man has the intention of doing all that is humanly possible to break the chain of crimes and thereby finally to become a benefactor of humanity? The last question is generally to be answered in the affirmative. It is to be appraised solely from the standpoint of the highest ethical principles.

[Page 239]

My further thought in this connection is the following: He who invokes such an intention is free of guilt if, from the first day of his taking over such an office, he not only refuses all active participation in the direct commission of injustice, but even searches for and uses every conceivable possibility of eliminating unjust orders and their execution, by his continual resistance and astuteness.

The defendant himself has also sensed and clearly recognized all these things. On account of the importance of the question I should like to refer to his interrogation:

"Question: I ask you whether there was a possibility that you might have brought about a change after having gradually learned the conditions in the Secret State Police and in the concentration camps, etc. If this possibility existed, will you then say that an alleviation, i.e. an improvement, was brought about in the conditions in these fields due to your remaining in office?
Kaltenbrunner says:
"I repeatedly applied for service at the front. But the most burning question which I had to decide for myself was whether the conditions would be thereby improved, alleviated or changed. Or whether it was my duty to do everything possible in my office to change all the conditions that had here been so severely criticized? As my repeated demands to be sent to the front were refused, all I could do, therefor, was to make a personal attempt to change a system, the ideological and legal foundations of which I could no longer change, a system which has been portrayed by all the orders presented here from the period before I was in office; I could only try to moderate these methods at first, with the hope of one day eliminating them for good. "Question: And so, did you consider it consistent with your conscience to remain in spite of this?

"Answer: In view of the possibility of constantly using my influence on Hitler, Himmler and other people, I could not in my opinion reconcile it with my conscience to give up this position. I considered it my duty to take a personal stand against injustice."

As you see the defendant refers to his conscience and you have to decide whether this conscience, taking into consideration duty towards one's own country but also towards the community of mankind, has failed or not. The duty which I have just mentioned, to resist the orders of evil, exists in itself for every human being, regardless of his position. This duty is expressly affirmed by Kaltenbrunner also. He who holds a State office must, if he is not to be held guilty, in the first place be able to prove that, as soon as he knew of it, he contributed toward abolishing the gigantic injustice which occurred in Europe. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to this question I leave to your judgement. But one thing I should like to express as my opinion: This man was no conspirator; rather he was exclusively a person acting under orders and under compulsion. Himmler's order was, despite all argument, for the Reich Security Office to be taken over by Kaltenbrunner whether he was agreeable or not. Is it right that an order should change the fundamental aspect of the problem? This question is of the highest importance. According to the Charter of this Tribunal one cannot plead higher orders for the purpose of avoiding punishment. The reason given for this by the American Chief Prosecutor is the presumed knowledge, on the part of the higher leaders, of the crimes or their background. Like a red thread the fact runs through this trial that hardly one high official, in whatever position of public life he may have been, was put into office without the order of the highest representative of official authority; for in the last three years of the war the inevitable destiny of the Reich, already clearly to be seen, meant for the holder of a high office the renunciation of that part of life which many people say makes life worth living. Even for the duration of the war, orders held the office-holder fast in his position as with iron fetters. There is also no doubt that he who refused to obey an order, especially in the last years of the war, had to fear his own death, and possibly also the extinction of his family.

[Page 240]

From whatever side we approach the problem of orders in Germany after 1943, the appeal to the above-mentioned state of compulsion ought not to be denied to a defendant, because that principle of compulsion which exists also in the German criminal code, and which no doubt exists in the criminal codes of all civilised nations, is based on the freedom of the individual being necessary for the affirmation of any guilt.

If the perpetrator is no longer free to act, because another person deprives him of this liberty through direct immediate danger to his life, then, on principle, he is not guilty. I do not want at this instant to examine whether in the German world of reality of the last years such a direct immediate danger for one's own life always existed; an encroachment upon the freedom of the man receiving orders existed to a smaller or larger extent without any doubt. It seems certain to me that Himmler would have interpreted a refusal of Kaltenbrunner to take over the ,direction of the Reich Security Office as sabotage and would, as a necessary conclusion, have eliminated him.

Hitler, according to the revelations at this trial, was one of the greatest lawbreakers that world history has ever known. Many even admit it a duty to kill such a monster, so as to guarantee to millions of human beings the right of freedom and life. At this trial the most different points of view with regard to the "Putsch", especially the killing of the tyrant, have been proffered by witnesses and defendants. I cannot recognize the duty, but the right is certainly not contestable. If the oppression of human freedom occurs by means of an order which is clearly unjust, because misanthropic, the scales in the now ensuing conflict between obedience and freedom of conscience will be weighted on the side of the latter. Also the so-called oath of allegiance could not justify a different point of view because, as everybody feels, the obligation to allegiance presupposes duties of both partners so that he who treads under foot the obligation to respect human conscience in the person of his subordinates loses, at the same moment, the right to expect obedience. The tortured conscience is freed and breaks the ties which the oath had created. Perhaps some persons will not agree with my point of view on this problem and will point out the necessity of a state of order in the community and the wholesomeness of obedience especially in the interest of this orderly state, or they will point at the prudence of those in command and at the impossibility of understanding and evaluating all such orders as well as the person in command can; they will point to patriotism and many other points of view. And although all that may be correct, it remains an absolute duty to resist an order, the purpose of which, clearly recognizable by a subordinate, is the realization of evil and which obviously violates the sound sentiments which aim at humanity and peace among people and individuals. The phrase "In the fight of a nation with life or death in the balance there is no question of legality" is an incorrect thesis not thought out to the end, no matter who expresses it.

Even immediate danger to the life of the person receiving the order could not induce me to change my conviction. Dr. Kaltenbrunner would not deny that he who stands, at the head of an office of great importance to the community is obliged to sacrifice even his life under the above-mentioned conditions.

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