I do not in is to bear the responsibility for such guilt.
Neither ment in this respect.
However, we Germans, are entitled proclaimed by the Allied and assumed by us.
Therefore Thus it becomes the task of every individual.
In this case "Therefore this deprives the Control Council of the right to decree laws.
Likewise Control Council Law No. 10 law lose their compentence to judge.
At the time, when "you, Your Honors, opened the present case for the first conceivable panta rel.
Everything changes, even the law.
sentence is passed. I think, that to-day, after the on Control Council Law No. 10, is no longer valie, unless the claim of force is put forward."
THE PRESIDENT: Dr. Bergold, I am sorry to inter your argument in any way you desire, but I can't help but be struck by the use of the words, "fiasco of the Lon don conference."
Tell me in one word why you call the London conference a "fiasco," That is a rather strong
DR. BERGOLD: I consider the London conference has administration for the entire Germany.
We Germans have
THE PRESIDENT: Oh, I thought you were referring
DR. BERGOLD: No, no. It can be seen from my final
THE PRESIDENT: Proceed.
DR. BERGOLD: Thus in my opinion a formal jurisduction has to be determined. However, a person who searches for justice is aware of the fact, that there exists an actual jurisdiction for a court, apart from a formal one.
"A court may not be competent to judge a case if the law to be applied, by its very nature, lacks the inner justification and possibility to judge a certain case. Actual jurisdiction is lacking where the case has happened in an atmosphere which has a wholly different concept of law than that upon which the law is based by which the court is to pass sentence.
"I would like to give an example, which is purposely exaggerated, in order to clarify what I mean. Assuming that an American court would undertake to sentence a national of an Oriental state for bigamy, who with several of his wives has somehow been brought before the court. If in such a case the Court would not consider the fact, that according to the law of an Oriental State, polygamy is permissible, but would only judge in conformity with American laws, one would have every reason to speak about an abuse of the law.
"I believe that our trial presents a similar case. This trial consists actually of two trials, firstly the trial concerning the so-called Fuehrer order, which supposedly demanded the extermination of a certain group of people without trial and only because they belonged to a certain race or had a certain political opinion. And secondly the trial concerning the execution of persons only on the strength of police measures, persons, who had committed unlawful acts, which were permitted under certain circumstances, such as sabotage, espionage, being in "possession of arms, and ambushing military personnel; that during the occupation of Germany.
As far as dealing with Fuehrer order.
I shall leave the questions with regard to "With reference to the trial concerning executions pened solely in the war between Germany and Russia.
We "In the case at hand a just sentence can only be "Firstly it must be pointed out, that no international agreement with regard to treatment of the civilian population existed between Russia and Germany.
I have submitted to the Tribunal document No. 1 Exhibit No. 1 the interrogation of the former Reich Foreign Minister Freiherr von Neurath, which shows that in 1918 respectively 1919 the the present Russian Government expressly cancelled all agreements which had bean made by the former Russian Czarist Government, which also included the Hague convention on land warfare I have already pointed out several times, particularly in the Milch Trial, the significance of such a cancellation of a codification of international law. It means, that between such states International Law does no longer exist at all. I would like to remind the Tribunal of my former arguments, which you as Judges in the Milch case will undoubtedly still remember, "Thus Germany was actually free to carry out criminal proceedings for violation of prescribed military laws and to choose any type of procedure she thought proper under the circumstances.
She was therefore fully entitled to put the prosecution of these crimes into the hands of the police, as long as the most primitive right of a defendant, namely the right to be heard and the examination of evidence was preserved.
"Even if one wishes to put forward, that without the existence of international law, Germany should have respected the national customs of the civilian population by analogous application of Article 43 of the provisions of the Hague convention on land warfare, i.e. by carrying out criminal proceedings in the same manner as was customary in Russia, then the police procedure, as adopted and prescribed by Germany, would still have been lawful, "Of importance here are legal usage and concepts which were valid in both Russia and Germany and which differ so decisively from these of Your country, that from Your concept of law an actual understanding of the legal situation seems impossible.
Your country, Your Honors, stands outside of Europe. Although it is an offspring of Europe it has developed completely independently in a way of its own, The case at hand however deals with Germany and Asiatic Russia, two worlds, which attract each other and which sometimes influence one another in an inexplicable manner, even if they subscribe to utterly different ideologies. Russia has very little in common with Europe proper, far less so with America; it always leaned more towards Asia. From Russia the Asiatic mode of living flows into Europe, just as much as the European mode of living infiltrates into Asia.
"If we examine in particular the legal manner in which criminal procedure is carried out in Russia:, we must recognize that she has two methods. The one is the form which is used in lesser important criminal cases and in great public trials, which are similar to Western procedure, i.e. the public trial, with judges, prosecutors and Counsel for the Defense. The other one is the secret procedure, where the prosecution of crimes is in the hands of the police alone, where the police alone passes sentence, Without a regular Court, a procedure which admits only documentary evidence. The defendant and the witnesses are heard, evidence is submitted, but there is no specially appointed Defense Counsel, no special prosecutor and no special Judge. In short it is a procedure which arrives at its sentences by way of documents.
"This procedure is evidently somehow in keeping with the Russian ideology In Russia this procedure has been developed and elaborated on in great detail and was the normal political procedure even under Czarism. Already at that time there were political cases, where the Secret Police, the Ochrana, played the part of prosecution and judge. Soviet Russia has developed and promoted the procedure of the Secret Police on a large scale. The literature of all countries contains many references to it and it also contains frequent passionate protests against such a development of legal measures. But all this does not really belong here. The sole issue here is to determine what was customary in Russia and what is also valid there to-day. In this connection I would like to refer the Tribunal to the statements by witness Mae concerning the methods of the NKWD, formerly famed as the GPU. I am much obligated to the prosecution for submitting document 5855, Document Book 5 3, Exhibit No. 241. This report dated 31 August 1931 and written by Dr. Mahnke, concerning the fate of a certain Walter Vetter, shows that the latter had been arrested and sentenced to death by the NKWD because of his German origin and his correspondence with his brothers and sisters. This document proves beyond doubt the post and present methods of the NKWD in Russia. adopted methods frequently similar to those of the GPUNKWD. When I recall that in Germany there is a rumor, that prior to 1941 Senior Gestapo Officers had absolved training courses in Russia, when I consider that a procedure like the ill-famed Nacht-und-Nebel (Night and Fob) decree has been in use in Russia for many years, a "procedure under which men were arrested and vanished into it seems almost justified to conclude that the Supreme Gestapo Command was imitating Russian methods, when introducing police proceedings.
One thing is certain, that is, that the Gestapo had developed a procedure which in all formal aspects was the exact replica of the usual Russian police procedure. countries developed a police procedure, which thus became customary and the application of which does not constitute a violation of International Law, because this procedure is a valid form of law in both countries. basis of the prevalent views of Your country. Am I not justified in adapting the word of Pilatus, thus asking: "What is right?" Your Honors, in Your country a book has been published, which gives a valuable answer to this question, which has been given by one of Your highest and best known judges, and which deserves deep reflection. I am referring here to the book "A free man's life" which is the biography of Judge Brandeis, judge at the Supreme Court. This book has been reviewed in the "Amerikanische Rundschau" of October 1907, 15th volume, 3rd edition in a report by a certain Mr. Alphons Mason. This article has appeared under the heading "Holmes and Brandeis stimmen dagegen" (Holmes and Brandeis objected et it. This article quotes two statements by Judge Holmes, Judge at the Supreme Court. The first one reads as follows: I sincerely doubt that we know what constitutes good and bad laws. Thus I have only one practical criterion. What does the majority demand? Butt I take any bet, that the majority, would not demand what it does, if it nevi better; but that is irrelevant here."
The second quotation reads as follows: "The characteristic of a good government is that it expresses the will of the greatest concentration of power, whether the will of the majority be unreasonable or reasonable". Thus this high Judge of Your country, Your Honors, takes the point of view that there is no absolute law which rises above public opinion, but that law in only that which conforms to the opinion of the majority of a people.
Germany and Russia is largely to be regarded as a genuine law, the application of which renders no one punishable. Socialism certainly enjoyed the support of the majority of the German people We do not want to dispute here whether this was intelligent and sensible whether the majority knew enough to judge correctly. Holmes too declared that this is unimportant, that what matters chiefly is the fact that the majority decided in favour of a certain ideology. It is thus unimportant whether and how large a minority suffers from and opposes such an ideology At any rate, by the fact that the majority of the German people decided in favour of the totalitarian regime, its laws and methods of police procedures became legally valid. mentioned, that similar procedures were in use by the secret political police during the regime of the Czar. When the Czarist regime ceased to exist after the majority of the Russian people rejected it in 1917. the majority of the Russian people decided at first in favour of the Bolshevist regime which is likewise totalitarian This system again established a secret police which is even more powerful and far reaching than that of the Czarist regime had been, and a special police procedure was again perfected. In Russia too, the will of the majority supports this system and its inherent laws and these are undoubtedly also a justification of the Hitler regime.
THE PRESIDENT: Dr. Bergold, before we get into the discussion of evidence, may I ask you one question, please. You say here that the majority of the German people approved of the German Police measures, that is to say, the National Socialist Police Measures, because the German people approved of the Hitler Regime.
DR. BERGOLD: Yes.
THE PRESIDENT: Am I correct.
DR. BERGOLD: Yes, that is the conclusion.
THE PRESIDENT: Yes.
DR. BERGOLD: Because Hitler's Regime was approved of.
THE PRESIDENT: Yes. Would you say then that the German people approved of the war in all its phases.
DR. BERGOLD: Well, this is a two-fold question. I can decide in favor of a certain regime, a Totalitarian regime, and therefore accept the laws which are made by this regime. But this does not mean that I approve and that it is a different matter -- if such regime suddenly ask a war and thus commits crimes. What is concerned here is the form of the legal procedure, Your Honor, and it is only legal procedure that Mr. Holmes talks about. The question you raise here is a different matter, namely, certain kind of deeds done by this regime; the totalitarian form was approved of and a totalitarian government will permit such acts. But that you can see in Russia; war and carrying out of crime is not concerned here. Even a totalitarian regime can be handled in a decent manner. May I remind you that in ancient days tyrants appeared who were benefactors of their race. My legal procedure, I can approve of and use it to a good purpose or to a bad purpose. I can even abuse Democracy.
THE PRESIDENT: But Dr. Bergold, all of this results because of a war. If there had been no war there would have been no occupation of Germany, there would have been no trial such as the one in which we are participating. You have stated that the Tribunal cannot inquire into Police Procedure, because the German people approved of the Government, and, therefore, the Police Procedure, but since we would not have bean here if there had not been a war, then it is interesting to know, because of your arguments whether the German people approved of the ware If the German people approved of the war, and all the consequences which flowed from the initiation of a war, then certainly the German people cannot complain, because of the procedure which followed.
As you have indicated, there was an unconditional surrender; and, therefore, they would have been amenable to whatever followed justly. If the German people didn't approve of the war, then it is in their interest that an impartial Tribunal inquires into the abuses which were committed by their rulers.
DR. BERGOLD: Your Honors, the manner in which you have discussed this with me now proves that you look at everything from a point of view of war, and that you would like to look at it from the point of view of the German people. Perhaps due to the translation or to the speed you didn't quite understand what I was trying to say. I say, this trial contains two trials. I won't talk about the Fuehrer Decree now. We are now concerned with procedure against saboteurs. This procedure was decided by police jurisdiction. This manner of procedure only then constituted crime, if it were crime, according to the German law, or according to the Russian law. According to the German law police procedure existed even against Germans, and according to the Russian law this police procedure could also prosecute these people, and you cannot decide this charge according to your law, but only according to the laws which existed in Germany and Russia, or, else, you would arrive at a situation which I gave in my crude example: an Oriental man who had married several wives would in your country be accused of bigamy according to your law, although the law of his country permitted him to do so In such case you have to consider the law of the Oriental State as well in passing a judgment and not your. American law, because according to his law this man conducted himself properly, and, Police Procedure according to the Hague Convention of Land Warfare are legal if they were legal when applicable in Germany and Russia.
When speaking of Police Procedure, I am not talking about the Fuehrer Decree. Now, that is quite a different matter, and I maintain that Biberstein has nothing to do with this. Therefore, the point is not whether or not we approve of war; even if we disapprove of it -- which of course, we do -- even then, this does not constitute crime, because they conformed with the Hague Convention of Land Warfare, namely, the occupied powers have to consider the legal uses and the law of the occupied country, and I have proved to you that this procedure was customary in Russia.
THE PRESIDENT: Very well. I got your point of view. I cannot help but to reflect on what you regard as an appropriate, if a grotesque comparison between polygamy and murder. Certainly a Tribunal would accept the customs of another nation which didn't conflict with the fundamental rights to live, and if a man thinks we can live well with ten wifes, I won'd dispute with him how wrong he may be, but certainly the law with regard to the sanctity of human life is something which is universal. The other is more or less a domestic matter, Whereas the sanctity of human life is something which demands and receives universal protection, and we are more or less proceeding -- not more or less -- but actually proceeding under an International aspect which guarantees the sanctity of human life. However, Dr. Bergold, I don't wish to interrupt you any more. I am sorry that I broke in. You may continue.
DR. BERGOLD: Your Honor, I. am only glad you interrupted me, and the discussion was very instructive for me, and I am very grateful to you for it. I would like just to add one thing, namely, that of course, I hold certainly the same point as you did, that human life is sacred, but the matter under discussion here is whether the life of a human being may be taken, as a result of a trial or whether this is a criminal act. After all, this is all the same, whether I am condemned to death according to a public charge, or a secret charge, but in the results of both, the rights of the defense has been kept.
May I continue.
THE PRESIDENT: Please do.
DR. BERGOLD: Your Honor, in this connection, may I ask you, to give your attention to BIBERSTEIN's testimony as given on the afternoon of 21 November 1947. BIBERSTEIN testified at that time that, in Russia, he never found support for the theory, that the police procedure resorted to by the Germans was considered inhuman by the Russians. He based this on the fact that the Russians frequently gave information themselves, knowing of course What kind of procedure would be applied; secondly that Russians themselves carried out individual investigations and, -- this however is the most important part of the testimony -that, from the viewpoint of his own ideology, a Russian had said at that time with regard to the activity of Einsatzkommando 6: "The Germans will lose the war because they are not severe enough." This shows that the criminal procedure resorted to by the police was not perceived by the Russian people as something inhumane, but as normal. was in Russia. You will now understand me when I tell you that your law lacks the actual jurisdiction to pass judgment here. If you were to judge here solely from the point of view of your ideology, you would judge legal events and happenings, which would in no point conform with your concept of law, and for which perhaps the people of your country would not have the slightest understanding. This would not be a defect, rather it would be a good sign. For we may only preserve the purity of our inherent character, if we lack the ability to fully understand to the uttermost, that which is absolutely alien and heterogeneous to us. If however we would pass judgment in such a case, proceeding from our concept and upholding only cur legal maxims, our verdict would constitute an abuse of justice. This, it should never be.
situation which existed in the foreign country amongst foreign peoples. Therefore, by taking into consideration such reflections, I summarize my statements to the effect that the prosecution of Russian citizens for sabotage, espionage, possession of arms and attacks on persons military etc. purely by methods of police procedures and the pronouncement of death sentences in these procedures do not constitute a war crime or crimes against humanity. acts of the defendant BIBERSTEIN and thus to himself personally, I must discuss one special pica. This concerns the fact that BIBERSTEIN may claim one special reason for exoneration which is derived from his person, namely the reason of compulsion. Military Tribunal in accordance with Control Council Law No. 10 are precedence cases for other courts. Tribunal IV, in the case against FLICK, set forth in its arguments to Count I of the indictment, that with regard to the provision of Par. 2, Article II of Control Council Law No. 10, the claim to compulsion was admissible for all persons indicted by the Military Tribunals and it based its findings by referring in detail to Whartons Criminal Law Vol. I, Article VII, par. 126 and Article XIII, Par. 384, foot note. It carefully illustrated, that every act in Germany during the war, which might be interpreted as an attempt to delay or prevent prescribed regulations, constituted sabotage and was subject to most severe and harsh punishment and was sometimes even punishable by death;furthermore that many decrees and announcements kept the population aware of these threats of punishment and that from many cases, the population know of the severe punishment being meted out for violations. The Tribunal climaxed its presentations with the statement that where irresistible physical compulsion rules, the will of the perpetrator is lacking and his guilt is therefore non-existent officials in the Reich.
This has been shown beyond doubt in his interrogation. During the war he was drafted into the Reich-Security Fain Office without having volunteered his services, he was compulsorily appointed chief of Einsatzkommando 6 even against his will, and had to fulfill his duties there in spite of the fact that he did so unwillingly and on his own initiative did everything possible to be relieved of his tasks. procedure and the execution of convicted criminals resulting therefrom was carried out under orders and that they had been established by his predecessors in accordance with orders prior to his time, i.e. prior to the beginning of October 1942 when he himself was assigned to EK 6. As a man who was ordered to assume office on the basis of a war order he could not resist these orders and instructions. He wasconstantly aware, that resistance to these orders was threatened with severe punishment. I shall remind you, that alone the fact, that because in the opinion of his superior, he had started his Kommando on the march to a prescribed operational area too late, this resulted in court martial proceedings against him. One therefore cannot compare him with a civilian official, who defends himself somewhere because of certain happenings. Likewise, one cannot compare him with a person liable to emergency service, although, remarked aside; the arguments of the prosecution in this point are incorrect. Assis proven by the court martial proceedings brought against him, he was subject to a much more stringent and severe law, i.e. Military law. As a military person, it was impossible for him to resist an order without endangering his life. 6, police proceedings were carried out, in which, aside from imprisonment for certain specific crimes which were announced to the population on public pastors and by radio as being punishable by death, there was nothing he could do to prevent this.
He was forced to permit these proceedings if he did not want to lose his own life. He acted under compulsion.
And it was not as if this procedure was particularly cruel. The defendant BIBERSTEIN explained to you in detail how such proceedings were conducted. Punishable by death were: pillage, possession of arms, attacks on military installations and signal equipment, attacks on military persons, espionage, sabotage, terror acts etc. Such crimes are punishable throughout the world. The defendant has already described to you how horrible and cruel were the crimes upon which judgement had to be passed. I shall only remind you of the terrible incident where a live, hungry rat was tied to the body of a German soldier who had been buried, and how this rat devoured, him. Such and similar cases were reported, persons under suspicion were arrested, witnesses and evidence were examined and the culprit interrogated Then sentence was passed Thus, a verdict was pronounced only if the officials who judged the case had convinced themselves that the charges were true. Your Honors, you have heard from BIBERSTEIN that the perpetrators almost always confessed. This corresponds to the psychological makeup of the Russian. With such a state of affairs the proper verdict, i.e. a death sentence, would have immediately been clear even to a regular court. did not want to endanger his own person, need not even have worried about it whether the procedure was cruel. It was a customary one. It was ordered by the superior authorities. No guilt could be ascribed to him if he permitted it. With such a state of affairs, he may, without doubt, fully claim a state of compulsion.
has been followed, then it and it alone must prove the contrary. I refer to the verdict of Tribunal IV in the Flick case, which, in the beginning, under Par. 4 of its general legal principles ruled that the prosecution carries the burden of proof. Thus, it is insufficient if the prosecution merely proves that executions were carried out. It must prove beyond that that these executions were carried cut arbitrarily, without examination and without a hearing of the convicted person. The prosecution has not even made an attempt to offer such proof. The defendant on the other hand testified as witness, that such examinations took place. A number of other defendants have testified the some. The witness HARTL, whom the prosecution chose as their witness against one of the defendants confirmed this too. He too know, that in all cases of executions which could not be traced to the actual so-called Fuehrer decree, a definite police procedure was followed. The prosecution had nothing, with which it could have opposed this testimony. One could now say, that the fact that defendant BIBERSTEIN tolerated executions by gas, should be ascribed to his guilt. But this type of execution too was ordered by the superior authorities and BIBERSTEIN therefore, in this point also, may claim compulsion. beyond a doubt, shows that the defendant is not guilty in this point, Document No. 2, Exhibit No. 2, Document book BIBERSTEIN shows that the large German dictionary, called Meyers Konversations Lexikon, already illustrated in 1926, that in several states of the United States of America, executions were carried out in gas chambers even at that time.
This is not an invention of National Socialist propaganda. In 1926, when this book was printed, National Socialism had little significance in Germany. Defendant BIBERSTEIN testified that he recalled from former times that the United States also used gas in executions.
Consequently he need not have had any special scruples whether such types of executions were cruel. On the contrary however, he was of the opinion, as was stated by him in the morning session of 21 November 1947 (German minutes, 2832), that execution by gas originates from a humane desire. This consideration is quite correct. Modern methods of execution are invented nowadays only guarantee a more gentle execution of sentence and not to act more cruel then before. The defendant convinced himself of the nature of the execution and, in his opinion, assumed, that the method of execution was actually a more gentle one. The executed persons impressed him as being peaceful and calm. This at least, was the impression he had gathered. This impression alone is of decisive importance in judging him. From everyday experience be know that fatal accidents frequently occur when persons worked in a closed garage with the motor running and that such accidents happened so easily because the victim knew nothing about the impending death by gas, Taking all these things into consideration, BIBERSTEIN need not have had any particular scruples about such a method execution, The prosecution attempts to present this type of death as a special guilt. Your Honor's may I again refer to the Flick verdict, where, under Par. 5 the following is stated: "whereever authentic evidence permits two sensible final conclusions, that of guilt and that of innocence, the second possibility must be chosen. The defendant presented to you a number of sensible reasons which caused him to assume that execution by gas was more humane and more gentle than by shooting.
Since my arguments and my train of thought are not nonsensical, you must assume that no guilt can be ascribed to him for tolerating this type of execution, of which he could have personally assumed that it was humane. Therefore, aside from the fact that even with regard to executions by gas, the defendant may claim compulsion, not guilt can be ascribed to him in this point since he never saw anything cruel in it.
I shall now turn to Biberstein's person. His case is a special case. He comes from a world entirely different from that of the usual defendant. For many years he had been a priest. He had fought hard battles with his conscience for his belief and for his concept of God. By adhering to an established tradition he did not make it easy for himself. He has struggled and fought. But he was never a fanatic. It is because of his spirit of toleration that he came into conflict with his minister at the Ministry for Ecclesiastical Affairs and his proposals for a peaceful compromise with the church remained without effect. I need not revert in detail to his pre-war career, no charges arise from it against Biberstein. do.
Then war came and Biberstein became a soldier. His career as a soldier ended abruptly. Without having had any previous knowledge of the fact and without having in any way aspired to it, he was suddenly discharged from the army and assigned to the Reich Security Main Office by a war order. Biberstein described to you how an intrigue had been responsible for putting him into the ranks of the Gestapo. He testified that realizing his unsuitableness and acknowledging his different ideology he was unwilling to take over the Gestapo Office in Opeln. Lastly he described to you how, fearing the consequences and hoping to regain his freedom he had finally complied with the order in view of the fact that it was a war measure.