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

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 4 of 13)

[Page 201]

[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 circulation

[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 therefore

[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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