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-Fifth Day: Wednesday, 10th July, 1946
(Part 3 of 5)

[Page 262]

DR. THOMA, Continued:

In the West (I refer to the testimony of the witness Robert Scholz of 19th June, 1946, Document Ro- 41), the case was different, but, in my opinion, here also the defendant cannot be charged with looting and stealing works of art. When in the summer of 1940 the inhabitants of Paris, with the exception of the Jews, had once more returned, somebody conceived the idea of searching the now ownerless apartments, houses, and castles for books and libraries, and of taking to Germany whatever of this scientific material was of interest. From various branches of the Wehrmacht came the report that especially in Jewish castles there were collections of works of art which one could not guarantee would remain intact in case of a long occupation. Thereupon, Rosenberg made the proposal that his Einsatzstab be allowed to direct its attention to works of art and to take them into its custody, which was then ordered by Hitler. What did the Einsatzstab do with these works of art? It set up an accurate card index containing

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the name of the particular owner of each of the pictures, photographed them, scientifically appraised them, repaired them expertly in so far as was necessary, packed them carefully and shipped them to the Bavarian castles of Neuschwanstein and Chiemsee. Because of the danger of air raids, they were then stored in an old Austrian mine. Rosenberg attached great importance to keeping separate the objects cared for by the Einsatzstab, and not to have them mixed with the large scale purchases which Hitler made for the proposed gallery in Linz.

Was that looting, robbery, theft? Looting is the indiscriminate and wanton carrying off of objects in situations of general distress and danger. Robbery is carrying off by force. Theft is the carrying off without force. In all cases the intent must exist to appropriate the object illegally for oneself or somebody else. What intent did Rosenberg have? He never denied that he and his co- workers had hopes of the pictures remaining in Germany. Perhaps as compensation or as security for the peace negotiations, but his intent was only directed at confiscating and safeguarding the objects and it has been proved that the question of what should be done with the confiscated items was left open until the end and no decision was made on it. It is absolutely certain that Rosenberg did not have the intention of appropriating the things for himself or anybody else. If Rosenberg had been a plunderer of works of art, he certainly would not have had exact notations made concerning dates and place of confiscation and names of the owners.

In addition, however, I should like also to point out that because of the flight of their owners, the objects were ownerless and that this as well as the question of the legality of their acquisition by Rosenberg cannot be judged by normal circumstances, but must be judged according to the extraordinary circumstances of the war. If the prosecution claims that public and private works of art were stolen at random, I should like to reply to the statement that only Jewish possessions, and indeed, the specified ownerless objects were confiscated. Above all, it is not true that State-owned property was also taken. Finally, he did not act on his own responsibility, but acted in carrying out a governmental order, and I want to ask that the fact be not ignored that Rosenberg acted without any egotistical motive. Not a single picture passed into his private possession; he did not gain a single mark from this transaction involving millions, and after all, all the artistic and cultural property has been found again. I would like to thank the French prosecution for having acknowledged this fact here publicly.

Goering supported the work of the Einsatzstab, and, as he admits, "diverted" some objects for his own use with the Fuehrer's approval. This disturbed Rosenberg, because the Einsatzstab was in his name, and he declared that as a matter of principle, he did not want to give anything even to the museums, that his task was purely one of registration and safeguarding. The Fuehrer should have the final decision on these works of art. Rosenberg could not undertake anything against Goering but he ordered his deputy Robert Scholz at least to make an accurate inventory of what was given to Goering, and to have the latter sign a receipt, which he did. Thus, most certainly it cannot be proved that Rosenberg had the intention of illegally appropriating the works of art for himself or for somebody else. Furthermore, Robert Scholz confirmed that Rosenberg also forbade all his assistants to acquire any works of art or culture, even by virtue of an official appraisal. (Document Ro. 41.)

The prosecution says that with the Rosenberg Einsatzstab, a gang of vandals broke into the European House of Art in order to plunder in a barbarous way. If one contemplates the tremendous work of drawing up an inventory, of cataloguing, of restoration, and of scientific appraisal, and if one finally bears in mind that all these treasures were most carefully stored away, and certainly came through the war better than would have been the case if the German authorities had not taken care of them, then I believe that, objectively speaking, one can use any term but' that of "vandalism".

THE PRESIDENT: I think this would be a good time to break off.

(A recess was taken.)

[Page 264]

DR. THOMA: Rosenberg is also especially charged with looting furniture. He allegedly ransacked the contents of 79,000 Jewish-owned homes, among them 38,000 in Paris, and took the loot to Germany. Unquestionably, these measures were taken for the benefit of air-raid victims; in the cities which had been destroyed by air warfare, new homes were set up for the homeless. It was in line with National Socialist mentality, and must certainly be morally condemned, that the confiscation was limited to Jewish property. The essential question, however, is whether the confiscation was at all legal. In all my statements I have avoided trying to excuse a weak legal position with a state of military emergency, and I do not wish to do it at this point either, for as an expert on International Law states, "the state of emergency is the lever by means of which the entire body of martial law can be torn off its hinges." But in this case, does not the justification of national and military necessity exist, did not air warfare bring intense and general distress to Germany?

One might object: The distress could have been ended by unconditional surrender. In my opinion, however, this justification cannot be taken from the defendant by this reference to unconditional surrender, the Reich's abandonment of its own existence and independence and its own vital interests. The appropriation of enemy private property took place in application of a right of requisitioning which was extended beyond the legal terms of martial law and justified by the state of emergency. I venture to assert that his procedure of confiscating furniture, in view of the devastating effects of air warfare against Germany, was not contradictory to "the customs among civilised peoples," "the laws of humanity," and "the demands of the public conscience" (Marten's clause in the preamble of the agreement concerning the laws and customs of land warfare; see Scholz in the aforementioned book, Page 173).

May it please the High Tribunal, I shall now pass on to the Norway operation.

The prosecution characterises Rosenberg and Raeder as the most energetic conspirators of the Norway operation, and later in the same matter calls Rosenberg a "dealer in high treason". The opinion of the prosecution and also the supposition of the present Norwegian Government (Norwegian report of 13th October, 1945, Document TC-56) are obviously to the effect that the Party's Foreign Office, of which Rosenberg was the head, and Quisling, had plotted the war against Norway in a mutual conspiracy. I believe that of all the charges against Rosenberg hitherto dealt with, none has less foundation than this one. On the basis of the few documents which have been submitted to the Tribunal, in my opinion, the case could doubtlessly be cleared up in favour of the defendant.

There was a "Party Foreign Office" (APA) which had the task of informing foreign visitors about the National Socialist movement, of referring any suggestions to the official offices, and otherwise of functioning as a central office of the Party for questions of foreign policy. The special interest, and I may say the special sympathy, of the leading men of the Party and the State was directed toward the nordic countries. It was specifically in this direction that the APA placed the main emphasis on the field of cultural policy. The already existing "Nordic Society" was expanded, the birthdays of great nordic scientists and artists were observed in Germany, a great nordic music festival was held, etc. The relations first took on a really political note with the appearance of Quisling, whom Rosenberg had seen for the first time in 1933, and who then, in 1939, that is, six years later, looked up Rosenberg again after the convention of the Nordic Society in Lubeck; the former spoke of the danger of European entanglements, and expressed the fear that Norway was in danger of being drawn into them. He then feared above all a partitioning of his country in such a manner that the Soviet Union would occupy the northern part and England the southern part of Norway.

Quisling again came to Rosenberg in Berlin, in December, 1939. The latter arranged for a conference with the Fuehrer. Hitler declared that he would by far prefer Norway to remain completely neutral, and that he did not intend to extend the theatre of war and involve more nations in the conflict, but he would

[Page 265]

know how to defend himself against a further isolation of Germany and further threats against her. In order to counteract the increasing activity of enemy propaganda, Quisling was promised financial support of his movement, which was based on the Pan-Germanic idea. The military treatment of the questions now taken up was assigned to a special military staff; Rosenberg was to deal with the political aspect, and he appointed his assistant Scheidt to maintain liaison. Hagelin, a Norwegian confidential agent of Quisling's, in January, 1940, gave Rosenberg some more disturbing reports on the feared violation of neutrality by the Norwegian Government, and Rosenberg passed them on to Hitler. After the Altmark incident, Hagelin, who moved in Norwegian Government circles, intensified his warnings. The Allies had already begun to study the Norwegian seaports for disembarkation and transportation possibilities; in any case, the Norwegian Government would be satisfied with protests on paper, and Quisling sent the message that any delay in undertaking a counteraction would mean an exceptional risk. Rosenberg again handed the reports immediately to Hitler. If he had not done so, that would have been downright treason to his country. The German counter-blow followed on 9th April, 1940, and Rosenberg learned about it from the radio and the newspapers like any ordinary citizen. After his above-mentioned report, which he made in the line of duty, Rosenberg did not participate in either diplomatic or military preparations.

Should there still be any doubt that in the Norwegian case, Rosenberg was only an agent who forwarded information to Hitler, and not an instigator, conspirator or traitor, I should like to refer to two documents. First, to Document C- 65, Rosenberg's file note concerning Quisling's visit. Obviously, it is the information on Quisling which Hitler had requested from Rosenberg. If Rosenberg had been on closer terms with Quisling, he certainly would have wanted to inform Hitler about it. Rosenberg had only heard of a fantastic and impracticable plan of Quisling's for a coup d'etat (occupation of important central offices in Oslo by sudden action, supported by specially selected Norwegians who had been trained in Germany, then having the German fleet called in by a newly formed Norwegian government). However, an earlier report of Quisling appeared less fantastic to Rosenberg; according to which - names being given - officers of the Western powers travelled through Norway as consular officials, ascertained the depth of the water in ports of disembarkation, and made inquiries into the cross-sections and heights of railway tunnels.

This was the true and only reason for everything Rosenberg did in the Norwegian matter. The second document is the report concerning "The Political Preparation of the Norway Operation" (Document 004-PS, GB 140), a report from Rosenberg to Hess of 17th June, 1940. In this inter- departmental report there is also nothing which deviates from Rosenberg's own trustworthy statement, and which would let him appear as an instigator of war and of high treason. Rosenberg was not called into any political or military discussion concerning Norway. Thus, what criminal act did Rosenberg commit? Was it criminal that he tried "to gain influence in Norway" - (TC-56), or that with his knowledge the Foreign Office gave subsidies to Quisling? Finally, I should also like to point out that later on, after the operation had succeeded, Rosenberg was in no way entrusted with an office or function with regard to Norway; that even the appointment of a Reich Commissioner for Norway was carried out without consulting him.

I shall not mention the case of the Minister Goga, which I have brought up at length before, but I ask the High Tribunal to consider it as having been reported on.

Now I turn to the subject: Persecution of the Church.

The prosecution maintains that Rosenberg together with Bormann issued the orders for religious persecutions and induced others to participate in these persecutions. However, not a single order of that kind is known. There were presented only writings of Bormann, partly to Rosenberg, partly to others, from which no charges against Rosenberg can be drawn. On the contrary, Rosenberg was repeatedly reproached, as on one occasion when in the presence of Hitler he

[Page 266]

praised a book by Reich Bishop Muller (Document 100-PS); another time when Rosenberg gave Reich Bishop Muller instructions to work out directives for thoughts regarding religious instruction in schools (Document 098-PS); once again when Rosenberg sponsored a strictly Christian work by General von Rabenau.

As a witness, Rosenberg himself declared that he opposed propaganda advocating withdrawal from the Church and never called for State and police measures against his clerical and scientific opponents, and particularly that he never used the police for suppressing those who were opponents of his book, Myth of the 20th Century. In December, 1941, as Reich Minister for the Occupied Eastern Territories, he issued an edict for Church toleration (Documents No. 1517-PS and 294-PS). Rosenberg had nothing to do with arrests, the deportation of priests, and persecution of the Church. He had no part either in the negotiations with the Vatican over the Concordat or in the assignment of the Protestant Reich Bishop; neither did he take any part in measures which were hostile to the Church, and which were later carried out by the police. He never participated in any other administrative or legislative anti-clerical measures.

In my opinion, it is quite impossible, for lack of documentary evidence, to construe from what Rosenberg thought and said about religious and philosophical matters - which I will quote presently - that he conspired towards a political suppression of religion by force. The only Document (130-PS) pointing in this direction was withdrawn by the American prosecution itself before I was obliged to draw attention to its being a pamphlet drawn up against Rosenberg.

His book Myth of the 20th Century, which is allegedly written for the reshaping of creeds in the spirit of a German Christianity, is, moreover, chiefly addressed to those who have already broken with the Church. "No consciously responsible German," says Rosenberg on one occasion in it, "should suggest withdrawal from the Churches to those who are still believing members of them" (Document Ro. 7, Document Book I, Page 122), and once again: "Science would never have the power to dethrone true religion" (see the same, Page 125). His writings are not addressed to the faithful church-goers of today in order to hinder them in the course of their chosen spiritual life, but to those who have already discarded their religious faith. (Document Ro. 7, Document Book I, Page 125.) In his speeches he upheld the view that the Party is not entitled to establish norms in metaphysical matters which deny immortality, etc. Having been assigned to supervise ideological education, he said explicitly in his Berlin speech of 22nd February, 1934:

"No National Socialist is allowed to engage in religious discussions while wearing the uniform of his movement,"
and he declared at the same time:
"That all well-disposed persons should strive for the pacification of the entire political and spiritual life in Germany " (Ro. 7a, Document Book I, Page 130).
That in this respect, too, things developed on different lines is not due to the desire or influence of Rosenberg.

Moreover, I need only make a brief elusion to the fact that it is a question of the 1,000-year-old problem of relations between the clerical and so-called temporal powers. The struggle of emperors, kings and popes in the Middle Ages, the French Revolution with the shooting of priests, Bismarck's clerical controversies, the secular legislation of the French Republic under Combes, all those were things, which, from the standpoint of the Church

Mr. President, may I make a brief statement by way of explanation? I wanted to say that I have concluded this subject, that I do not wish to concern myself with the problem of Church persecutions any further. I have finished with it. I am coming to the subject of ideology and general politics.

Ideology and education have been nothing but a means of obtaining power and consolidating that power; uniformity of thinking has played an important part

[Page 267]

in the programme of the conspiracy; the formation of the Wehrmacht has only been possible in conjunction with the ideological education of the nation and Party; so says the prosecution (Mr. Brudno, on 9th January, 1946). And continuing its attacks against Rosenberg, the prosecution proceeds: Rosenberg's ideas formed the foundation of the National Socialist movement. Rosenberg's contribution in formulating and spreading the National Socialist ideology gave foundation to the conspiracy by shaping its "philosophical technique".

I think that one will have to take care, in judging Rosenberg's case, not to yield to certain primitive ways of thinking and become a victim of them. First of all, an exaggeration of the conception of ideology and the inexact use of that concept. At best it was a political philosophy, which went hand in hand with Hitler's political measures, and which Hitler preached in his book Mein Kampf, but it was not an ideology in an all-embracing sense. It is true that National Socialism endeavoured to create a spiritual philosophy and an ideology of its own, but it had by no means reached that stage yet. Rosenberg's book Myth of the 20th Century is an attempt in that direction, being a personal confession, without any suggestion of political measures. Therefore, his philosophy cannot have formed the ideological basis of National Socialism. Besides, it is entirely unsuccessful. In addition, there is a total lack of proof that a straight spiritual line, a clear spiritual causal connection exists between the conceptions of Rosenberg and the alleged and actual crimes.

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