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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Second Day: Friday, 19th July, 1946
(Part 12 of 12)

[DR. STEINBAUER continues.]

[Page 174]

Even today we find the individual Occupying Powers using this procedure in a much severer form in exceptional cases.

In July, 1944, as a result of a Fuehrer order, the regular courts were abolished and saboteurs and members of the resistance were otherwise dealt with, in spite of the protests of the defendant.

One of the main points of the prosecution is the question of hostages, and I must therefore discuss this in detail. Dr. Nelte has already generally discussed its legal aspect and I refer to his statements.

In RF 879 the prosecution has singled out two particular cases. The so-called hostage shootings at Rotterdam and the shootings after the attempt against the Higher SS and Police Leader Rauter. Already in the course of his first interrogation by the Prosecutor, the defendant, in connection with the first case, spoke of the Wehrmacht's demand for 25 to 50 hostages. The witness confirmed that these hostages had been demanded bay the Wehrmacht, that through the defendant's influence this number was finally reduced to five, and that the Higher SS and Police Leader was entrusted with the shootings.

The relations between the Wehrmacht and the Reich Commissioner, as well as the relations between the Wehrmacht and the police, were regulated by the decree dated 18th May, 1940 (Reich Law Gazette No. 1, page 778, 1376-PS, paragraphs 2-3)

In order to prove the defendant's guilt the prosecution submitted the accusation but not the testimony of General Christiansen. In the course of the interrogation the witness did not take the oath.

The record proves that:

(a) The order was issued by the Wehrmacht on account of serious cases of sabotage and was analogous with the so- called "Law Governing Hostages" promulgated in Belgium and France.

(b) The hostages were then arrested by the German Police on the order of the Commander-in-Chief of the Wehrmacht in Holland. "An order is an order."

(c) The German High Command or Command West insists on the execution of the orders in spite of all representations.

(d) Execution by the police.

(e) Proclamation I made in the Juridical Department of the Headquarters of the Wehrmacht in Holland. Proclamation II drafted by the Higher SS and Police Leader.

Would the Tribunal consider the argument for the justification of the defendant to be sound in the event of his using the arguments of General Christiansen for his justification?

As to the second so-called hostage case, it concerns the consequences of an attempt directed in March, 1945, against the Higher SS and Police Leader, SS Obergruppenfuehrer Rauter, the highest police officer in the Netherlands, who was directly subordinated to Himmler. If we recall the consequences when in 1942 the tyrant Heydrich was murdered by the Czech Patriots, we can well imagine how Himmler in 1945, at the height of his power, clamoured for the avenging of the plot against one of his nearest and most important officials. It is likewise understandable that the defendant too, as head of the administration, ordered deterrent measures to be taken, under the heading of "general prevention" after an attack had been made on one of his general commissioners: But he did not demand any hostages; he merely asked for the execution of sentences passed in legally conducted criminal cases. No. RF 879 proves the truth of these assertions inasmuch as the witnesses Schongarth, Lages, Kolitz and Gerbig unanimously confirm that only men already sentenced to death were shot, and not 200 but 117, some of them possibly before the date originally fixed for the execution. This also is confirmed by the Criminal Commissioner Munt in D II of the report of the Dutch Government, and likewise by Dr. Friedrich Wimmer, who was heard as a witness before the Court. In this case it was not at all a question of hostages in the real sense, but

[Page 175]

the justifiable execution of saboteurs, plunderers, etc., from the point of view of the occupation, and which was called the shooting of hostages in order to intimidate the population. The fact that the defendant succeeded in getting the number of 500 real hostages as originally demanded by Himmler reduced to 117 orders of execution can certainly not be a reason for making him responsible for Himmler's cruelties.

The prosecution furthermore asserts that the defendant, in his capacity of Reich Commissioner, had agreed to, directed and supported the deportation of an enormous number of Dutchmen to Germany: The principle which the question of the use of foreign workers involves has already been thoroughly discussed by other defence counsel. May I be allowed to add a few remarks on this point of the Indictment. According to information which I received from the Office of Statistics, the pre-war unemployment figure of between 300,000 and 500,000 men out of a population of 9 millions was a chronic situation in the economic life of the Netherlands, which was more or less rightly considered to be one of the richest countries of Europe. When the country was occupied and the Reich Commissioner took over the governmental power, he considered it his duty to deal with unemployment in the interests of order and peace.

It was evident that this could not be achieved according to liberal principles, because even in countries adhering to the liberal economic order, the whole economy was directed to meeting the requirements of war conditions. Until 1943 the employment of labour was based on the voluntary principle. The defendant himself stated that a certain amount of economic pressure was used. He had found Minister Speer in particular very much in favour of his plan to transfer German undertakings from the Reich to Holland, thus enabling the workers to be used in their home country.

In 1943, three age groups of young unmarried men were called up by the Labour Offices, but not by compulsion. When in 1944 the Reich demanded 250,000 workers, the Reich Commissioner refused, and this has been confirmed by Lammers. The witnesses Hirschfeld, Schwebel and Wimmer have confirmed that the "manhunt action" of the autumn of 1944, in the course of which all men of military age among the population were rounded up, was a drive by the Wehrmacht, for which the defendant cannot be made responsible. On the contrary, and this fact must be recorded here, the Reich Commissioner lessened the harshness of these measures by the issue of 1,000,000 certificates of deferment and by pressing for ordered transport, as well as by mobilising the workers. And in this connection it should not be forgotten that the steady growth of the resistance movement rightly caused the Wehrmacht to fear lest the massing of people in the south- west provinces might represent a grave danger to the Occupying Power.

Seen from the legal aspect, it must be pointed out that the defendant was bound by the orders of the central offices within the framework of the Four-Year Plan - that but for these orders and demands he would never have sent workers to the Reich, also that where the execution of these orders represented a violation of the laws of humanity, he raised protest. In his actions the defendant upheld the laws of humanity.

As to the prosecution's next point, the so-called economic looting of the country, I likewise refer to the general principles I gave at the beginning. Raw materials were requisitioned from the very start of the occupation in accordance with the Four-Year Plan with the help of the Dutch authorities, who thus were able to prevent unnecessary hardship. The defendant would naturally have preferred to keep the stocks within the territory of his own administration. When requisitioning had to be carried out, the defendant insisted on fair compensation being given and he also prevented the transfer of Dutch concerns, as for instance the margarine factory in Dortrecht or the Leyden Cold Storage Works. At the insistence of the Reich Commissioner, Goering promised that the Dutch people should not be in a worse position than German citizens, and, therefore, as far as the defendant is

[Page 176]

concerned, it would appear that Article 53 of the Hague Rules of Land Warfare, if not too narrowly interpreted, had been adhered to.

The report of the Field Economy Officer with the Wehrmacht Commander in the Netherlands, dated 9th October, 1944 (RF 132), and of Lieutenant Haupt (603-PS, 196 US) prove that the requisitions were in the first instance carried out by the Wehrmacht. The latter points out that the whole position is made more difficult by the fact that Reich Commissioner Seyss-Inquart was still in the country, although to all intents and purposes he had resigned. This certainly shows that as far as it lay within his power, the defendant always tried to oppose or reduce hardship in this sphere of his activity. In a total war, the removal by the Wehrmacht of stocks of war material and rolling stock after the invasion, and when the enemy was approaching, is likewise in keeping with International Law.

The state of emergency created by the war called for the redirection of Dutch economy in Europe. Before the war, according to official statistics, 39 per cent of the employed population were engaged in trade and industry, 23 per cent in commerce and transport, and 20 per cent in agriculture. Cut off from the rest of the world, navigation was at a complete standstill. To give an example - 60 per cent of the trade passing through the port of Rotterdam consisted of German goods. The highly developed agricultural industry was based on improved and intensive cultivation, dependent on artificial fertilizers from South America and concentrated fodder from Canada. We have learnt from the testimony of Dr. Hirschfeld how relatively well Dutch agriculture and particularly the world-famed cattle breeding industry survived the war. This was only made possible by the understanding and collaboration of the Reich Commissioner with the Dutch administration offices, and the support the defendant gave them.

The spreading out of economy over the Continent of Europe, practically the whole of which during the war was controlled by Germany and her allies, no doubt offered good markets for Dutch trade and industry. It was, therefore, natural that also as regards finance the economy had to be brought in line with conditions in the German Reich, or rather in the European economic area. It was necessary to regulate the financial economy if only for reasons of price policy. It would exceed the limits of this trial to state more details here.

May I only point out to the prosecution that the defendant had no part in fixing the amount of the occupation costs, and was not even able to examine them. Only the civilian budget of the Reich Commissariat was settled by the Reich Commissioner and had to be approved by the Reich and audited by the Reich Treasury. In agreement with the Dutch agencies, civilian requirements were set at 3 million guilders per month, which was not exceeded. On the contrary, at the end of 1943, a saving of 60 million guilders had been effected, and this remained in the Netherlands.

The lifting of the customs barriers in inter-State traffic was justified by the joint price policy and could only benefit the Netherlands. Likewise the ratio of the mark to the guilder was also fixed by mutual agreement. A difference arose for the first time when the blocking of foreign exchange was lifted. Here the views of the former Dutch General Secretary Trip and those of General Commandant Fishbock differed. The defendant, who after all was not a financial expert, submitted this important question to the central Reich authorities for their decision, and the defendant Goering has expressly stated during the hearing of the evidence that he decided in favour of Dr. Fishbock's opinion against the opinion of the Reich Minister of Economics, Funk. The defendant therefore cannot be charged with criminal responsibility, not even that of a culpa in eligendo, if in the place of General Secretary Trip, who had resigned, he now appointed Rost van Tonningen, who was a former Commissioner of the League of Nations and therefore a first-class financial expert.

The defendant Funk has also testified here that he always considered the clearing debts as real debts. In the Netherlands Government Report it is pointed but that

[Page 177]

the financial demands of the Reich amounted to approximately the same in all the occupied Western territories and that only the methods differed. If Germany had won the war, the method employed in the Netherlands would have produced the result that the Netherlands would have had a real claim amounting to 41 billion guilders against the Reich. The whole question therefore is not a matter for a criminal trial, but rather is one that should be dealt with in the peace negotiations. Furthermore, an exact account was kept of everything. It even went so far that every time a member of the Wehrmacht boarded a tram with a pass, the conductor of the Netherlands Tramway Company always made a careful note of it.

As far as the alleged looting of museums and libraries is concerned, as well as the looting of the Royal property, to save time let us refer to the evidence which proved beyond doubt that the defendant was particularly mindful of the need to safeguard the world-famous public art treasures and that he reduced any arbitrary demands of the Reich Offices, if there were such, to a minimum.

In so far as any objects not essential for the conduct of the war, such as, for instance, art treasures, libraries, etc., were taken away, the defendant had no part in this. The few pictures which he bought for Vienna he acquired in the open market. As for the Royal property, the instructions he issued were such that the confiscation of this property was no more than a demonstration. That this is true is shown in the Dutch Government Report. The Rosenthaliana library which has been mentioned so often did not reach the Reich, as the defendant had it stopped at Groningen after it had been removed against his will. The case Arnhem would likewise appear to have been cleared up by the witnesses Dr. Hirschfeld and Wimmer, and the report of the Field Economic Detachment. (Doc. 81.)

The Jewish question has also a certain connection with the economic problems. Before I deal with this main point I must make the position of the police in the Netherlands clear. The Prosecution seeks to establish that the police, and by that is meant also the German Police, particularly the Security Police, was under the defendant. This attempt falls short when it is remembered that all the signatories with the exception of the Soviets hold that the police is actually a part of the civilian, particularly the domestic, administration. The situation in Germany was this: de facto, and not de jure, Himmler was independent, more powerful even than any other Minister, although he was nominally State secretary of the Ministry of the Interior. The strictly disciplined and centrally directed SS was subordinate to him in his capacity as Reichsfuehrer. The defendant Keitel testified on the 5th April, 1946, that from the outbreak of war the SS became more and more an independent power factor in the Reich. He and those who worked with him had no full knowledge of the extent of Himmler's powers, and Himmler and Heydrich had usurped the jurisdiction over life and death in the occupied countries by the frequently mentioned Fuehrer Order.

What was the situation in the Netherlands?

1. The Fuehrer decree of 18th May, 1940, already shows that the German Police was not part of the Reich Commissioner's organization, nor was it subordinated to it. For it says in the decree:

"The police is at the Reich Commissioner's disposal", which would not have been necessary if it had been a part of the Reich Commissioner's office.
Thus even though the Reich Commissioner is the supreme governing power in the civil sphere, the police is not a part of it.

2. In Decree No. 4 the Reich Commissioner nominated the administrative agencies, and in such a way that the Dutch could clearly see how it concerned them, without being affected by the splitting up of the Reich authorities. As regards the police, that is, the German and Dutch Police, a second General Commissioner was appointed for security affairs (Higher SS and Police Leader). According to Article 5 of this decree the Higher SS and Police Leader has under his command:

(a) The German Police and Waffen SS (for the Dutch this order of things was declarative, for the Higher SS and Police Leader was appointed by the

[Page 178]

Fuehrer on Himmler's recommendation, without the Reich Commissioner being consulted). Rauter presented himself to the Reich Commissioner as having been already appointed, and the Reich Commissioner would never have been able to appoint the Commander of the Waffen SS, which opinion is also shared by the prosecution.

(b) The Dutch Police (this order of things was constitutive, because the Reich Commissioner was responsible for the Dutch Police).

The Dutch witness, Dr. Hirschfeld, who was General Secretary throughout the occupation, definitely confirmed that Rauter was directly subordinate to Himmler, and that the apparent unity of the police and administration, according to the decree, did not exist in reality.

On Page 21 of his book Axis Rule in Occupied Europe, Raphael Lemkin defines the task of the police as being the liquidation of politically undesirable persons and Jews, just as the main responsibility for the seizure and deportation of the workers in the occupied countries was borne by the police.

THE PRESIDENT: Would that be a convenient time to break off?

(The Tribunal adjourned until 22nd July, 1946, 1000 hours.)

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