about 140,000 persons are concerned who were employed in an honorary capacity.
23 Aug M LJG Meehan 6-1
THE PRESIDENT: What is the basis for that statement that 140,000 persons were employed in an honorary capacity?
DR. SERVATIUS: These are the members in the technical departments, who worked on the various staffs of the Kries, Gau and Ortsgruppen. In the case of the Ortsgruppen, the prosecution has left these people out and excluded them. I am trying to establish that the other people also were honorary employees and were exports, working in that capacity. They had no part in the war crimes or any crimes mentioned. They did not come under the Gauleiter, but had instructions from their direct technical superiors.
THE PRESIDENT: Dr. Servatius, you have not answered my question. What is the basis for the statement and I want to ask a second question, what do you mean by honorary capacity?
DR. SERVATIUS: By honorary capacity, I mean people who were not paid for their work. They were honorary appointees and an honorary appointment means no payment.
THE PRESIDENT: You said they were technical exports?
DR. SERVATIUS: Yes, they came from their units, the legal expert, the medical expert and the teaching expert all were represented, there were also welfare men and men from the labor front. Each one of these was an export in his own work, who was consulted in an honorary capacity.
THE PRESIDENT: Again I ask you Dr. Servatius, what is the evidence that there were 140,000?
DR. SERVATIUS: That figure is carefully figured on the basis of the organizations book. I can supply more complete details later, but I am not at the moment in a position to do so, but I will later and I can produce a more accurate figure. I have stated with respect to each subject how many people were employed in each phase in order to give a clear picture.
THE PRESIDENT: Go on.
DR. SERVATIUS: We still have to examine the group of the real Hoheitsteager, the functionaries, who make up the neucleus of the Party. Their special position and their political author
August 29, Afternoon
ity distinguished them, and set them apart from the other political 23 Aug M LJG Meehan 6-2 leaders, but their position was varied.
rights to the circle of the Party, membership in his Ortsgruppe, the authority of the Higher Party Leaders, (Hoeheren Parteifuehrer) goes beyond Party limits concerning themselves with the rights of those who do not belong to the Party. political judgment toward outsiders and in that way determines the fate of those outsiders. At the same time and in this way, they are exerting great influence on the life of all. This fact is the sign of carrying full responsibility themselves. The Ortsgruppenleiter will only be asked to furnish proof for the judgment. He is only an executive organ and devoid of any independence. Ortsgruppenleiter acts only on an honorary basis without pay. Through his work, he is prevented from concerning himself in a comprehensive answer with all that is happening as this profession prevents him. It was especially the case during the war when need directed all thoughts and powers towards your own problems. middle class, who had not previously been politically active and who lacked experience in this dangerous matter. work preceeded alongside the activity, which had been brought in. The testimony given by witness Wegscheider before this Tribunal gave a true picture of the situation. clear when we compare his responsibility with that of the higher Party leader, who was appointed by Hitler directly. probability of a greater knowledge is greater with the higher Party leader.
23 Aug M LJG Meehan 6-3 This trial has shown that the separation of the "ressorts" and the artificial tearing apart of administration and police has played an important role.
But, because of the merging of many functions, and because many strings were gathered in one hand, at least the highest Party leaders could see when everything was not as it should be on critical points.
The question is: Whether a Gau or Kreisleiter could set his mind at rest, because everything was as it should be in his sector and that the suspicious incident was taking place outside his domain, or his ressorts?
We have to answer this question in the negative. He had to supply himself with the knowledge, taking his own sovereign rights into account, for he was the only who had deprived another of any possibility whatsoever of concerning himself with these things. He had the right, and therewith also the obligation to be active because of his office. concerned himself with public matters. here did concern themselves with events as they occurred. They investigated the transporting of the Jews. They endeavored to get into concentration camps and investigate the conditions of foreign workers. They voiced their misgivings and they protested.
Were they doing their duty that way? In this connection, we had to examine the question of the sharing of responsibility. It is not possible that all concerned themselves with everything. At the lowest levels, there are practical concerns of a local nature, and they could not be concerned with the problems found at the top level. Not every shock can be transmitted to the entire machine. to the Gauleiter, particularly In a dictatorial state, must be credited with this separation, but he must concern himself with the result of his reports, and draw his own conclusions.
23 Aug M LJG Meehan 6-4 superior position. There exists a limit where the daily routine is no longer concerned and moral principles are being touched upon. When one was in Himmler's sphere of influence, did one really have to drive on, regardless of that which would happen? An answer to this question has been attempted several times. Must are really demand an action immediately and without compromise. Is it really "All or nothing?" Can one afford to let things take their course, or is it "Now or never?" Must one define guilt and merit and can one hope for reformation? Is it sufficient to remain at one's post when one disapproved, or hopes to prevent worse by remaining, or does one become guilty too by remaining and keeping up appearances? Has he who always anxiously makes an effort share any justification? Must he take up the struggle against adversed circumstances, even if his own life seems needlessly jeopardised, or should he submit to it an d bow to fate?
"To be or not to be," that is the question. the legal basis of the guilt, the knowledge and sanction and criminal negligence. these questions must first be decided upon. only. It is practically possible in the case of a group of two thousand Kreisleiters and Gauleiters. These persons are I known, their actions took place in public and are not difficult to clear up.
There remains the group of the Reichsleiter. The same views are applicable to them as to the Gauleiters. counted with this group. (Document PL 59A.) That position, however, is of great legal importance to all political leaders. They include the principle defendants. According to Article IX of the Statute, the conviction of the group can only be announced in connection with the actions of the principle defendants.
The trial brief only mentions Rosenberg and Bormann. Only annex B of the supplement to the trial brief added four more Reichsleiters, thus including the Gauleiters Sauckel and Streicher. with the direct inclusion of his actions. whether they committed the acts with which they have been incriminated in their capacity as political leaders, or in another capacity. tinction by referring in the summary of the trial brief only to those deeds of Rosenberg and Bormann, with which they are charged in their capacity as political leaders. That is page 75 of the Trial Brief.
One must not depart from this distinction. The ruling of Article IX of the Statute is not merely a purely formal rule of procedure for the trial. It is a pertinent limitation of the criminal groups. cution, but there must be some connection between it and the act of one of the principle defendants. This is only possible if one of the principle defendants acted within the corps of political leaders. The connection does not exist where the effect of the action of one of the principle defendants does not effect all levels of the political leaders; this is to be considered in passing judgment on the lower grades.
connection with the political leaders was established only later, with the exception of Hess. essentially in the state sector, where he was active as Reichs Minister for the occupied territories. are decisive for the judgment of political lenders. As a result of the absence of this principle defendant, however, it is precarious to base the condemnation of the group on either, since there was no close investigation of the occurrances. For the most important charges, it would have to be cleared up whether Bormann acted as chief of the party chancellery, or as secretary of the Fuehrer outside of the party machine, or whether he acted independantly contrary to all instructions. That is Document 53.
It is noteworthy that Hess, Bormann's superior, is not included in the original trial brief, although until 1941 he was deputy of the Fuehrer and the party. could not be charged with any action in connection with the Corp of Political Leaders, which would indicate a criminal character. This is a significant point of view for the judgment of the group, as far as time is concerned. standard for the Political Leaders as a whole. As Gauleiters they can only act in their district. The actions with which they are charged in this trial they undertook outside of their function as Political Leaders -- as plenipotentiary general for labor commitment or as a newspaper publisher. the judgment. One idea is the retroactiveness of the verdict. I do not want to attack it as legally inadmissible since the Charter has ordered it, but since the verdict is at the discretion of the Tribunal, fairness con be onserved here.
that perpetrator was warned and had to realize. It is different with the great number of little Political Leaders, who are made responsible for a conspiracy only indirectly through their leaders.
The second point of view is the lack of legal hearing. In these proceedings before the Tribunal, the preliminary decision is reached, which is decisive for every member of the organization. Therefore, everyone was given the right to request a legal hearing. Only comparatively few have made use of this right. opportunity to submit their applications to the Court. There are applications from only about one-third of the camps of the English and American Zones; from the French Zone from only two camps; but particular reference should be made to some areas from which no applications at all have been received. be visited. The permission of the Military Authorities was given, but the approval of the Control Counsel was not received. This is noteworthy since there are special circumstances in this case which might possibly exonerate the members; special treatment and judgment, especially in regard to time is advisable. official announcement is said to have been made. I myself only recently had an opportunity to visit two camps. Those interned there declared that they know nothing of their right to a hearing; not all wanted to submit applications. state as regards evidence. For these zones a few Political Leaders were heard who could be reached in British or American camps. Although one obtains a certain picture in this way, the talking of evidence before the Commission has shown that there may be testimony of significance for the defense. of the West Wall had convinced people there of Hitler's defensive intentions. A Kreisleiter of the North referred to the Fleet Treaty with Britain, which the coastal population considered a sign of the will for peace. Other witnesses have brought forward noteworthy reasons from the church membership of the Political Leaders in their district.
hearing, so that a judgment on this subject is not yet admissible. The charter has guaranteed the opportunity of a hearing. Every provision of form has its deeper sense and it is basicly significant. Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceablc rejection, which I hereby expressly assert.
THE PRESIDENT: Mr. Biddle would like to know exactly what you mean by the last two sentences.
DR. SERVATIUS: I did not hear what you have said.
THE PRESIDENT: Mr. Biddle would like to know, Dr. Servatius, what you mean by your last two sentences, "Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceable rejection, which I hereby expressly assert." Does that mean anything?
DR. SERVATIUS: Mr. President, I wanted to see that I cannot forfeit the right to raise the objection that the hearings in entire territories have not been made possible. The entire Soviet zone is an objection and an argument, which I cannot forego and which should be taken into further consideration later.
THE PRESIDENT: Go on.
DR. SERVATIUS: The divergent practice in the interpretation of Article 9 of the Statute must be noted from another point of view also. against the organizations. is essential also that the degree of guilt or innocence of any one group, or individual therein be adjudicated separately, in the interests of any subsequent proceedings.
The scope of the penalties fixed in Law No. 10 of the Control Council, which ranges up to the death penalty, offers no legal protection if their interpretation is left to the free decision of the various national tribunals, which may subsequently sit in judgment. The judgment of the Tribunal might engender new mischief. be attained. The punishment must not become a revenge. The measure of punishment must not be based on the theory that millions of victims necessarily implies the guilt of millions, which would be brought to punishment. borne in mind: crimes which are the fundament of this trial. or that a war of aggression was a goal worth striving for, or that the persecution of the Church and the concentration camp atrocities were official.
Only if this had been the case would this be a trial involving an ideology which should be eliminated. have said "I have millions behind me, or I cannot do otherwise, God help me." The millions were set in motion by another goal for which they fought. This goal was not the world of crime, but the shining radiance of socialism. The masses saw the miracle of the rise to power succeed a period of misery and were strengthened in their belief. They are ready to believe once more. the organizations by which the entire population will be affected. punish those who are responsible for the war. It is only just that the old jurisdiction should disappear from the stage of world history, which punished the entire people by imposing territorial annexations and economic contributions in the peace treaties without regard to guilt. by the peace treaty, by law No. 10 of the Control Council, and by the law for de-Nazification. continuation of the war effort.
But there must be peace and "Should war not end with war, whence that shall come the peace?"
THE PRESIDENT: Dr. Servatius, the Tribunal observes with appreciation that you have kept within the limit of time which the Tribunal hoped would be kept to by all Counsel on behalf of the organizations. You have made your speech within half a day, but some of the other speeches which have been deposited for translation appear to be very much longer than yours, and the Tribunal wishes me to point out to those Counsel that they will have to make their speeches also within half a day.
(A recess was taken.)
THE PRESIDENT: We call on Dr. Merkel.
DR. MERKEL (Defense Counsel for the Gestapo): Mr. President, Your Honors, in the case of the proceedings against the individual defendants, the perpetrations of individuals were examined. During the proceedings against the Organizations, the question we are concerned with is whether into the leg life of this world a new basic principle is to be introduced. The trial of the Gestapo is given its significance by the conception of the Prosecution that the Gestapo had been the most important instrument of power of the Hitler regime. reputation is associated with that name; alas, even that horror and fear are radiated by it, and that the waves of hatred close over this name. opinions of the day because I hope to be able to present factual and legal evidence which will place this High Tribunal in a position :
1. To examine, whether by sentencing the organizations, a legal development will be introduced which will serve humanity.
2. To establish the truth regarding the Gestapo and by this :
3. To liberate innocent amongst the former members of the Gestapo from an unfortunate fate. represents a preliminary problem connected with the problem of the Gestapo as a whole.
No allegation made by the prosecution has shaken me more than the ass*---* tion of the British Chief Prosecutor that the Germans, after six years of Nazi domination and through replacing the Christian ethical teachings, by a Godlike admiration for the Fuehrer, and by the cult of the blood, had become a degenerate nation. If this judgment is just, then the facts of its existence, apart from the circumstances just mentioned, is due to yet another extraordinary factor -- a factor of a character so unusual that history hardly known it: The symptoms of the demon, the demon in Hitler, and the infiltration of the demon's spirit into his regime and into the institutions which he created and employed.
How far Hitler was a demon has been illustrated by Goethe's words already quoted from "Dichtung und Wahrheit" by my colleague Dr. Dix :
" ......he (The demon-man) radiates an enormous force ... all ethical forces, united, cannot defeat it ... it attracts the masses... and it is from such remarks that the queer, yet dynamic slogan may have arisen : Nemo contra deum, nisi deus ipse." in some of the cases of the individual defendants. The case of the Gestapo sused by the demonic leaders of that State. And here during the discussion of this preliminary question, yet another interest must arise, the interest of the legal significance of the demonic for this trial. In order to satisfy that interest I shall give another short quotation from Goethe:
"Demonism furnishes one of the moral orders of the world where power interferes although it does not oppose." According to these words, the cruic* point is that two powers, parts of the history of this world, are decisive. "The conflict of which", as Mr. Justice Jackson said in agreement with the poet Goethe, "Forms much of the history of humanity: the world order and the demonism". The juridical of this judgment for our constellation will become clear from the following considerations :
The moral world order was represented by the traditional orders. Opposed to this, Hitler represented the power which was directly opposed to them, and nevertheless incapacitated them. In this trial the aim must be to exterminate the remains of this demonic power. Can this and should this be done in accordance with the agreed principal of the victorious model world order, or can it be done by other methods ? us and this from two of the greatest of the possible perspectives, i.e., in considering the differences between the moral world order and the demonic. to view these matters. The Charter on one hand relies upon the agreed own principals of the moral world order. It wishes to see judgment passed against the representatives of the demonism the individual defendants, and the organizations, by means of an orderly trial, a proper indictment, with appoint defense counsel and resulting in appropriate findings.
On the other hand, "law of the Charter" itself, according to the words of Mr. Jackson, is "a new law" with principals which contradict the age-old traditional legal concepti*--* As examples, I quote the assumption of collective guilt and the introduction of laws with retroactive effects. this trial are in opposition to each other. It is a common task for all of us to recognize this fact and also through joint efforts on the part of the prosecution, the defense, and the Tribunal to arrive at a "concordantia discordantium." devoted, therefore, to the question of how the rules of the Charter are to be understood, according to which the Tribunal can declare during the trial against Goering, Kaltenbrunner or Frick that the Gestapo was a criminal organization.
Once again I must come back to the principal consideration. If two powers of historic importance to this world decide the moral world order and the demonic, then if this world is to be cleansed, the moral world order must be victorious. But is the moral world order empowered to conduct the fight against its opponent with exceptional rules which differ, themselves, from the basic principles of moral world order ? For the sake of the purity of its character and its victory, moral world order must only fight with weapon of its won categoric imperative, and that without any compromise. Because it is thus that the opponents of Hitler fought during the six years of war, relying on the principles of the Atlantic Charter. But is it right that they the declared representatives of the moral order, should now, with the battle of arms at an end, conduct the final struggle against demonism with such exceptional rules ? That would be an impossibility. Would it not create the impression that the victorious powers, particularly in the realm of e did not have sufficient confidence in the center of their own being ?
As a result, for coming generations this maxim would develop "That which is useful to the victor is right." The relentless "Vee victis" would have been raised to a dais, whereas the victors had especially emphasized that they entered the lists for justice, and because of justice. With the word "Justice" the signatory powers have called the Tribunal into existence by stating in paragraph one of the Charter "An International Military Tribunal shallbe set up in order to pass a just judgment."
They gave the word "Justice" emphasis by having Part IV of the Charter headed "Regulations for a Just Proceeding", and then they used precautions in that regulations contained in paragraphs 9 and 10 are regulations that may be applied.
The victors had the wish to ***e organizations with a reputation such as the Gestpo who would not understand that, declared criminal, but they took care to make paragraphs nine and ten a regulation which had to be applied. In that way justice became the first premise of the Tribunal. Within its limits, therefore, the regulations that may be applied under paragraphs nine end ten are to be handled as if the entire stipulation had the following wording; "If the Court consider it just, it may declare the organizations criminal." In this way the entire decision rests on the concept of justice.
Justice in its truest formis an attribute of God -- "God is Just." This sentence has penetrated our consciousness in the sense that God will callto account only him who is really guilty according to the word of Jesaya "I have called you by name." plation according to which organizations and their members must be dealt with In the main, two things are involved, the members of the organizations and their families, who make up at least fifteen million people. Now we have to see that this remarkable but terrible proverbproves itself true because of the judgment: "No one can do anything against the moral world order without the moral world order itself."
From this, the following conclusion arises for my final plea: That the question put by the Charter to the prosecution, to the defense, and to the Court, whether rules of exception are admissible, whether above all the organizations are to be considered collectively capable of guilt, whether laws with retroactive power may be applied -- a question that must be answered in the negative.
on the basis of the individual system from demon catastrophes, and whether the Hitler catastrophe did not prove the opposite, I should like to answer to this effect: The protection of the world against such catastrophes is not a question of a system, but rather a question for determined men who rest secure in the moral world order. prosecution to have the organizations declared criminal are of tremendous scope Reason enough, that defense counsel must examine with the utmost thoroughness, and in every direction possible, whether the bases are present which can carry an indictment of such consequence in the sense of justice under the moral world order. Important result of my examination. A group (Gemeinschaft) can not be declared guilty. For criminal guilt means the realization of conditions which are punishable not only according to objective but also according to subjective aspects. In other words, a crime can be punishable only, and must have been committed deliberately; according to natural concepts. We can speak of intent only with the single individual but not in the case of a group, and if in this connection foreign laws are referred to, this, in the final analysis, is a confusion with the coinciding will of numerous individual persons directed toward a fixed aim. The thought to reject collective guilt goes back into the most ancient time. It originated in the Old Testament and through the Greeks and Christianity, it spread over the entire world. In this way it has become the penal guiding principle of the entire moral world order. In Roman days this sentence was expressed clearly "Societas delinquere non-potest." In modern times we have retained the thought of individual guilt. a mistake to assert that one could treat a person as guilty and responsible merely because he had belonged to a certain organization, without taking the trouble to investigate in the individual case whether the person in question had made himself personally guilty through his actions or his failure to act.
That was on infringement on the Rights of God. expressly prohibit the infliction of fines because of the actions of individuals for which the population cannot be considered co-responsible.
Finally, the former State Secretary, K.H. Frank, was condemned to death and executed, because he had among other things, had the village of Lidice wiped out because of the conduct of individual inhabitants of the village. That is to say, the fact that he had assumed collective guilt of the village community and inflicted a collective punishment on the village, was counted as a crime. Thus, in our case, it cannot be proper to punish an organization as a whole collectively, because of the crimes of individuals. the accusation against the Organizations is not firmly established. I agree with the legal statements of Mr. Jackson only insofar as he concludes his legal observations with the statement that: "It is completely unbearable from such thinking according to the letter of the law to reject personal impunity." The personal impunity of the individual members of an organizat in connection with the punishable actions committed within the organization cannot be derived from the rejection of collective guilt; rather, the culpability of the individual for the punishable actions committed by him can be emphasized. organizations here accused is the Charter created by the United Nations. The defense has already taken an opportunity to express doubts about the Charter. I refer to that.
I want to bring out one point of view once more. If, in case an organization is declared criminal, the former members are to be punished because of their mere membership, then they must pay for something which was legally permitted at the time of the action. Thus the Charter establis norms with retroactive force. The legal principle, however, which prohibit laws with retroactive force, is firmly established in the law of all civili states.
give the Constitution of the French Republic, as a preamble, a now formulation of the "Declaration of Human Rights." This Declaration reads in Article 10:
"No one can condemned or punished unless on the strength of a law paused and published before the deed." Military Government in Germany ordered through Law No. 1 in Article 4:
"A charge can only be pressed, sentence passed, and punishment executed if the act at the time of its commission was expressly legally declared punishable." feeling. Yes, the American Military Government considers the principle mentioned so important that it punishes its violation with the death penalty. of the Hague Agreement of the year 1899, according to which the United States of America as well as England and France, undertook the obligation toward the other States, including Germany,in occupying a foreign country, to observe the laws of this country unless there was any compelling obstacle. restore justice and respect for International Law,and thus to serve World Peace. They have acknowledged fundamental human rights and recognized principles of International Law. Stamping as a criminal for formerly legal political convictions, however, could be considered a limitation of this acknowledgment and could shake confidence in fundamental human rights. As a precedent, such a judgment could have disastrous consequences for the idea of Justice and Personal Freedom. all organizations. For the Gestapo there are two further factors.
The Gestapo was a State Institution, a number of State Agencies. An agency, in contrast to a society or other private organization,pursues not self-chosen but State-ordered aims,not with its own but with State means. It fulfils its function in the framework of the total State activity. Its actions and measures are State administrative acts. In the case of a State agency one cannot speak of submission to a common willof the agency nor of a union, more or less, by agreement for a common purpose.
Thus there is lacking here the prerequisite of the concept of an organization or group and of membership in the sense of the Charter. If private organizations cannot be considered responsible and subject to punishment, then State Agencies and Administrative Offices certainly cannot. Only the State itself could be held responsible for its institutions if that were at all possible never the Institution itself. the internal affairs of a State. A recognized international legal maxim, however, prohibits the interferenceof a State in the internal negal affairs of a foreign country. And so there are objections to the charge against the Gestapo in this connection as well, which I consider it my duty as defense counsel to point out.
Finally, there is a further question to be examined: If the Gestapo is to be declared criminal one of the principal defendants must have been an official of the Gestapo. But was any one of the principal defendants e vern an official and thus a member of the Gestapo? That this prerequisite for trial exists, seems very doubtful for Goering as Prussian Prime Minister was Chairman of the Prussian Secret State Police and could give orders to it but he did not belong to it.