justified in emphasizing the positive in Kaltenbrunner’s personality.
How far, however, shall I be justified in stating that Kaltenbrunner had
actually insufficient knowledge of many War Crimes and Crimes against
Humanity which were committed with some kind of participation of Amt IV
in the course of the last 2 years of the war? Would such a defense offer
the prospect of essentially exculpating the Chief of the Reich Security
Main Office?
Dr. Kaltenbrunner admitted during his examination that it was only very
late, in some cases as late as 1944 or 1945, that he obtained knowledge
of orders, instructions, and directives, despite the fact that they
originated much earlier—in some instances several years before he took
office. And here I add—and I wish to emphasize this particularly at
this point—that these orders, which are contrary to international
ethics and humanity, all go back to a time during which Dr.
Kaltenbrunner was still in Austria.
I will not at this moment try to prove in detail all these statements of
Kaltenbrunner’s. The Prosecution is interested exclusively in whether
such orders, decrees, directives, and so forth, were also executed
during the period of time in which the defendant was in office as Chief
of the Reich Security Main Office. It is also often very difficult for a
defense counsel to follow a defendant along the secret channels of his
knowledge or his ignorance. Perhaps the defense counsel also sometimes
lacks the necessary distance for a free and just judgment, in view of
the hecatombs of victims spread out across a whole continent, and he is
unfair to his client. Thus he leaves the nature of the defendant’s
character to the later judgment of history, for even the defense counsel
is not infallible when it comes to drawing a picture of the soul of his
own client.
During his examination before the Tribunal Kaltenbrunner once explained
the difficult position he was in when he took over his office on 1
February 1943, and I hope that nobody will misjudge this situation. The
Reich was still fighting, and even in 1943 was still dangerous for any
adversary colliding with it. But it was already a fight for a goal
obviously remote and out of reach. Whoever tries to hold back the spokes
of the wheels on a vehicle rolling into an abyss at top speed will
perish all too easily. Coupled with these conditions, from which there
was no way of escaping, there was an uncreative officiousness, caused by
nervous insecurity, in all areas of private and public life.
Kaltenbrunner said with regard to this situation:
“I beg you to put yourself into my situation. I came to Berlin
in the beginning of February 1943. I began my work in May 1943,
except for a few complimentary calls. In the fourth year of the
war the orders and decrees of the Reich also in the execution
sector had piled up by the thousands on the tables and in the
filing cabinets of the civil service. It was quite impossible
for a human being to read through all that, even in the course
of a year. Even if I had felt it to be my duty, I could never
possibly have made myself acquainted with all these orders.”
In connection with this I remind you respectfully that, according to the
evidence given by the witness Dr. Hoettl and others, the Reich Security
Main Office in Berlin had 3,000 employees of all categories when
Kaltenbrunner was in office and that according to the statement of the
same witness Kaltenbrunner never controlled this office completely.
Nobody will be able to deny that the question is justified whether it
was not Kaltenbrunner’s duty to have himself informed in the shortest
possible time at least about the most essential proceedings in all the
departments of the Reich Security Main Office and whether he would not
then very soon have obtained knowledge of, for example, Himmler’s and
Eichmann’s anti-Jewish operation and many other serious terrorist
measures. I may remind you that Kaltenbrunner declared repeatedly and
emphatically, in answering my questions before this Tribunal, that he
protested regularly every time he heard of such occurrences, addressing
himself to Himmler and even to Hitler, but that he had but little
success, and this only after a long while. The defendant, for example,
traces back the cessation of the extermination of Jews, by an order of
Hitler in October 1944, to his personal initiative. However difficult it
may be to judge whether the power and influence of a single person would
have been sufficient to bring about the suspension of a program of the
extermination of a race, already in its final phase, I believe I may say
without being open to correction that many tens of thousands of Jews owe
it to this man that they escaped the hell of Auschwitz and can still see
the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer
of the International Red Cross it appears that Kaltenbrunner asked the
International Red Cross to organize relief shipments to a large Jewish
nonpolitical camp at Unskirchen near Wels.
Wanneck has characterized Kaltenbrunner’s attitude toward the question
of Himmler’s Jewish policy as follows. He says:
“In the daily haste of our joint labors and discussions on
foreign policy, we no longer dwelt upon the problem of Jewish
policy. At the time Kaltenbrunner came into office this question
was already so far advanced that Kaltenbrunner could not have
had any more influence on it. If Kaltenbrunner expressed himself
at all on the subject, it was to the effect that mistakes had
been made here that could never be made good.”
This witness then finally confirmed the fact that this operation was
conducted independently through a direct channel of command from Himmler
to Eichmann and said that the position of Eichmann, which already had
been a dominating one when Heydrich was still alive, had increased
steadily, so that eventually he had acted completely independently in
the entire Jewish sphere.
And here I add that, according to the statement of Hoess, the only man
left alive who is familiar with this question, it is established that
only about 200 or 300 people knew of that dreadful order of Himmler’s
which was given during a conference which lasted for 10 or 15 minutes,
on the basis of which more than four million people were exterminated.
And I add that a large nation of 80 million had learned little or
probably nothing about these things which happened in the Southeast of
the Reich during the war. Professor Burckhardt states that
Kaltenbrunner, when discussing the Jewish question, declared:
“It is the greatest nonsense; all the Jews should be released,
that is my personal opinion.”
But in spite of all this, the fundamental question is raised for the
problem of guilt: May a high official and the director of an influential
office, whose subordinates in a far-reaching hierarchy continually
commit crimes against humanity and against the rules of international
law, assume such an office at all or remain in such an office, although
he condemns these crimes? Or is it perhaps a different case if this man
has the intention of doing all that is humanly possible to break the
chain of crimes and thereby finally to become a benefactor of humanity?
The last question is generally to be answered in the affirmative. It is
to be appraised solely from the standpoint of the highest ethical
principles.
My further thought in this connection is the following: He who invokes
such a philanthropic intention is free of guilt if from the first day of
his taking over such an office he refuses to take any active part in the
actual commitment of the crime, and, beyond this, avails himself of
every conceivable possibility, even seeks it out, to achieve the
elimination of evil orders and their execution through his never-ending
resistance and every form of human cunning.
The defendant himself has also sensed and clearly recognized all these
things. On account of the importance of the question I should like to
refer to his interrogation:
“Question: ‘I ask you whether there was a possibility that you
might have brought about a change after having gradually learned
the conditions in the Secret State Police and in the
concentration camps, _et cetera_. If this possibility existed,
will you then say that an alleviation, that is, an improvement,
was brought about in the conditions in these fields due to your
remaining in office?’”
Kaltenbrunner says:
“I repeatedly applied for service at the front. But the most
burning question which I had to decide for myself was whether
the conditions would be thereby improved, alleviated, or
changed. Or was it my duty to do everything possible in this
position to change all the conditions that have been so severely
criticized here? Since my repeated demands to be sent to the
front were refused, all I could do was to make a personal
attempt to change a system, the ideological and legal
foundations of which I could no longer change, as has been
illustrated by all the orders presented here from the period
before I was in office; I could only try to moderate these
methods in order to help eliminate them for good.
“Question: ‘And so, did you consider it consistent with your
conscience to remain in spite of this?’
“Answer: ‘In view of the possibility of constantly using my
influence on Hitler, Himmler, and other people, I could not in
my opinion reconcile it with my conscience to give up this
position. I considered it my duty to take a personal stand
against injustice.’”
As you see, the defendant refers to his conscience and you have to
decide whether this conscience, taking into consideration duty toward
one’s own country but also toward the community of mankind, has failed
or not. The duty which I have just mentioned, to resist the orders of
evil, exists in itself for every human being, regardless of his
position. This duty is expressly affirmed by Kaltenbrunner also. He who
holds a state office must in the first place be able to prove that he
contributed toward abolishing the gigantic injustice which occurred in
Europe as soon as he learned of it, if he does not want to become
guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to
this question I leave to your judgment. But one thing I should like to
express as my opinion: This man was no conspirator; rather was he
exclusively a person acting under orders and under compulsion. Himmler’s
order was, despite all previous agreement, for him to take over the
Reich Security Main Office. Is it right that an order should change the
fundamental aspect of the problem? This question is of the highest
importance. According to the Charter of this Tribunal one cannot plead
higher orders for the purposes of avoiding punishment. The reasons given
for this by the American chief prosecutor proceeded from the presumed
knowledge of the crimes or their background in the minds of the higher
leaders which, therefore, precluded them from pleading the existence of
orders. Like a red thread the fact runs through this Trial that hardly
one high official, in whatever position of public life he may have been,
was put into office without the order of the highest representative of
official authority; for in the last 3 years of the war the already
clearly discernible inevitable destiny of the Reich meant for the holder
of a high office the renunciation of that part of life which many people
say makes life worth living. For the duration of the war, orders tied
the office holder to his position. Also there is no doubt that he who
refused to obey an order, especially in the last years of the war,
risked his own death, and possibly the extinction of his family.
From whatever side we approach the problem of orders in Germany after
1933, the invocation of the above-mentioned state of duress ought not to
be denied to a defendant, because that principle of duress which exists
in the German criminal code, as no doubt it does in the criminal codes
of all civilized nations, is based on that freedom of the individual
being which is necessary for the affirmation of any guilt.
If the perpetrator is no longer free to act, because another person
deprives him of this liberty through direct immediate danger to his
life, then, on principle, he is not guilty. I do not want at this
instant to examine whether in the German world of reality of the last
years such a direct immediate danger for one’s own life always existed;
but an encroachment upon the freedom of the man receiving orders did
exist to a smaller or larger extent without any doubt. It seems certain
to me that Himmler would have interpreted a refusal of Kaltenbrunner to
take over the direction of the Reich Security Main Office as sabotage
and would, as a necessary conclusion, have eliminated him.
Hitler, according to the revelations at this Trial, was one of the
greatest lawbreakers that world history has ever known. Many even admit
it to be a duty to kill such a monster, so as to guarantee to millions
of human beings the right of freedom and life. At this Trial the most
varied points of view with regard to the “Putsch,” especially the
killing of the tyrant, have been proffered by witnesses and defendants.
I cannot recognize the duty, but the right is certainly not contestable.
If the oppression of human freedom occurs by means of a clearly unjust
order based on misanthropy, the scales in the now ensuing conflict
between obedience and freedom of conscience will be weighted on the side
of the latter. Even the so-called oath of allegiance could not justify a
different point of view because, as everybody feels, the obligation to
allegiance presupposes duties of both partners, so that he who treads
under foot the obligation to respect human conscience in the person of
his subordinates loses at the same moment the right to expect obedience.
The tortured conscience is freed and breaks the ties which the oath had
created. Perhaps some people will not agree with my point of view on
this problem and will point out the necessity of orderliness in the
community, and the salutary effects of obedience in the very interest of
this orderly state, or they will point to the wisdom of those in command
and at the impossibility of understanding and evaluating all such orders
as well as the person in command does; they will point to patriotism and
other aspects. And though all that may be correct, there yet remains an
absolute obligation to resist an order the purport of which, clearly
recognizable to a subordinate, amounts to the materialization of evil
and obviously violates the healthy sentiments which aim at humanity and
peace among people and individuals. The phrase “in a life-and-death
struggle of a nation there can be no legality” is an untrue thesis not
thought out to the end, no matter who expresses it. Even immediate
danger to the life of the person receiving the order could not induce me
to change my conviction. Dr. Kaltenbrunner would not deny that he who
stands at the head of an office of great importance to the community is
obliged to sacrifice his life under the above-mentioned conditions.
Whereas even direct and imminent danger to his own life and that of his
family cannot excuse him, it does diminish his guilt, and Kaltenbrunner
only means to point to this moral and legal evaluation of his position.
Thus he emphasizes a fact, historically proven, which was one of the
deeper reasons for the collapse of the Reich; for no living man can
bring to a community liberty, peace, and welfare, who himself bears his
chains reluctantly and has lost that freedom which is the decisive
characteristic of all human beings.
I believe Kaltenbrunner would like to be reborn, and I know that he
would fight for that freedom with his life’s blood. Kaltenbrunner is
guilty; but he is less guilty than he appears in the eyes of the
Prosecution. As the last representative of an ominous power of the
darkest and most anguish-laden period of the Reich’s history he will
await your judgment, and yet he was a man whom one could not meet
without a feeling of tragedy.
THE PRESIDENT: The Tribunal will adjourn now.
[_A recess was taken._]
THE PRESIDENT: Yes, Dr. Thoma.
DR. ALFRED THOMA (Counsel for the Defendant Rosenberg): May it please
the Tribunal, Mr. President, the documentary film which was shown in
this room and which was to illustrate the “Rise and Fall of National
Socialism,” begins with a speech delivered by Rosenberg concerning the
development of the Party up to the assumption of power. He also
describes the Munich insurrection and says that on the morning of 9
November 1923 he saw police cars with machine-guns assembling in the
Ludwigstrasse in Munich and he knew what the march to the Feldherrnhalle
implied. Nevertheless he marched in the first lines. Today also, my
client takes the same position in face of the Indictment formulated by
the prosecutors of the United Nations. He does not want to be pictured
as though nobody paid any attention to his books, his speeches, and his
publications. Even today he does not want to appear as a person other
than what he was once before, a fighter for Germany’s strong position in
the world, namely, a German Reich in which national freedom should be
linked to social justice.
Rosenberg is a German, born in the Baltic provinces, who learned to
speak Russian as a young boy, passed his examination in Moscow after the
Technical College in Riga moved to Moscow during the first World War,
took an interest in Russian literature and art, had Russian friends, and
was puzzled by the fact that the Russian nation, defined by Dostoievsky
as “the nation with God in its heart,” was overcome by the spirit of
materialistic Marxism. He considered it inconceivable and unjust that
the right of self-determination had indeed often been promised but never
voluntarily granted to many nations of Eastern Europe which had been
conquered by Czarism even in the nineteenth century.
Rosenberg became convinced that the Bolshevik revolution was not
directed against certain temporary political phenomena only but against
the whole national tradition, against the religious faith, against the
old rural foundations of the Eastern European nations, and generally
against the idea of personal property. At the end of 1918 he came to
Germany and saw the danger of a Bolshevistic revolution in Germany too;
he saw the whole spiritual and material civilization of the Occident
endangered and believed to have found his lifework in the struggle
against this danger as a follower of Hitler.
It was a political struggle against fanatical and well-organized
opponents who had at their disposal international resources and
international backing and who acted according to the principle: “Strike
the Fascists wherever you can.” But as little as one can deduce from
that slogan that the Soviets entertained intentions of military
aggression against Fascist Italy, just as little can one say that the
struggle of the National Socialists against Bolshevism meant a
preparation for a war of aggression against the U.S.S.R.
To the Defendant Rosenberg a military conflict with the Soviet Union,
especially a war of aggression against the latter, seemed as likely or
as unlikely as to any German or foreign politician who had read the book
_Mein Kampf_. It is not correct to maintain that he was initiated in any
way into plans of aggression against the Soviet Union; on the contrary,
he publicly advocated proper relations with Moscow (Document
Rosenberg-7b, Page 147). Rosenberg never spoke in favor of military
intervention against the Soviet Union. However, he did fear the entry of
the Red Army into the border states and then into Germany.
When, in August 1939, Rosenberg learned about the conclusion of the
Non-Aggression Pact between the Reich and the Soviet Union—he was as
little informed about the preliminary discussions as he was about the
other foreign political measures taken by the Führer—he might have gone
to see the Führer and protested against it. He did not do it, and he did
not object to it with a single word, which the witness Göring confirmed
as being a statement of Hitler’s.
In the witness box Rosenberg himself described (session of 16 April
1946) how he was then suddenly called to Hitler, at the beginning of
April 1941, who told him that he considered a military clash with the
Soviet Union inevitable. Hitler offered two reasons for it:
(1) The military occupation of Romanian territory, namely, Bessarabia
and North Bukovina.
(2) The tremendous increase of the Red Army, along the line of
demarcation and on Soviet Russian territory in general, which had been
going on for a long time.
These facts were so striking, he said, that he had already issued the
appropriate military and other orders, and he said that he would appoint
Rosenberg in some form as a political adviser. As he further stated in
the witness box, he thus found himself confronted with an accomplished
fact, and the very attempt to discuss it was cut short by the Führer
with the remark that the orders had been issued and that hardly anything
could be changed in this matter. Thereupon Rosenberg called some of his
closest collaborators together, because he did not know whether the
military events would take place very soon or later on; and he made, or
had made, some plans concerning the treatment of political problems. On
20 April 1941 Rosenberg received from Hitler a preliminary order to
establish a central office to deal with questions concerning the East
and to contact the competent highest Reich authorities with respect to
these matters (Document Number 865-PS, USA-143).
If this statement made by Rosenberg is not in itself sufficient to
refute the assertion made by the Prosecution, according to which
Rosenberg is “personally responsible for the planning and execution of
the war of aggression against Russia” (Brudno, in the session of 9
January 1946) and was aware of the “aggressive predatory character of
the imminent war” (Rudenko, in the session of 17 April 1946)—if, above
all, it is not accepted that Rosenberg was convinced of an imminent
aggressive war to be waged by the Soviet Union against Germany, then I
would like to bring up four more points in order to prove the
correctness of the statements made by the defendant.
(1) Rosenberg was not called to the well-known conference at the Reich
Chancellery on 5 November 1937 (“Hossbach Document,” Document Number
386-PS, USA-25), when Hitler disclosed for the first time his intentions
of waging war. This was at the time when Rosenberg still had political
influence, or at least seemed to have it. If ever, he should have played
the part of the intimate political “inspirator” then.
(2) Lammers, as a witness, stated before this Tribunal that Hitler made
all important decisions quite alone; thus also the decision concerning
war against Russia.
(3) To my question about Rosenberg’s influence on Hitler’s decisions
concerning foreign policy, Göring replied before this Tribunal on 16
March 1946:
“I think that after the accession to power, the Führer did not
consult the Party Office of Foreign Affairs a single time about
questions concerning foreign policy and that it was created only
as a center for dealing with certain questions concerning
foreign policy which came up within the Party. As far as I know,
Rosenberg was certainly not consulted about political decisions
after the accession to power.”
This was also confirmed by the witness Von Neurath on 26 June 1946 in
this courtroom.
(4) Finally, I would further like to refer to the “brief report
concerning the activity of the Office of Foreign Affairs of the NSDAP”
(Document Number 003-PS, USA-603). Brief mention is made in it of the
“Near East” in such a harmless manner that no word need be said about
it. In the confidential reports 004-PS and 007-PS nothing is said either
about any preparations against the Soviet Union.
Administration in the East.
It would be an easy, too superficial, and therefore, unjust procedure if
one were to say that firstly the Eastern Territories were occupied in a
war of aggression, and therefore anything the German administration did
there was criminal; and secondly, that as Reich Minister for the
Occupied Eastern Territories, Rosenberg was the responsible minister,
and therefore he must be punished for all crimes which have occurred
there, at least for what happened within the scope of the jurisdiction
and authority of the administrative bodies. I will have to demonstrate
that this conception is not correct for legal and factual reasons.
Rosenberg was the organizer and the highest authority of the
administration in the East. On 17 July 1941 he was appointed Reich
Minister for the Occupied Eastern Territories. Acting on instructions,
he had performed preparatory work before that time on questions
concerning Eastern Europe by contacting the Reich agencies concerned
(Document Number 1039-PS; US-146). He planned and set up his office for
dealing centrally with questions concerning Eastern Europe (Document
Number 1024-PS; US-278). He had provisional instructions for the Reich
Commissioners drawn up (Document Number 1030-PS; US-144); he delivered
the programmatical speech of 20 June 1941 (Document Number 1068-PS;
US-143); above all, he took part in the Führer conference of 16 July
1941 (Document Number L-221; US-317).
In the presence of Rosenberg, Lammers, Keitel, and Bormann, Hitler said
at that time that the real aims of the war against Russia should not be
made known to the whole world, that those present should understand
clearly that “we will never withdraw from the new Eastern Territories;
whatever opposition appears will be exterminated; never again must a
military power develop west of the Urals; nobody but a German shall ever
bear a weapon.” Hitler proclaimed the subjection and the exploitation of
the Eastern Territories, and in making these statements he placed
himself in opposition to what Rosenberg had told him before—without
being contradicted by Hitler—concerning his own plans for the East.
Thus Hitler probably had a program of enslavement and exploitation.
Nothing is so natural, and nothing easier than to say: Even before
Rosenberg took over his ministry he knew Hitler’s aims for the East;
namely, to rule it, to administer it, to exploit it. Therefore he is not
only an accomplice in a crime of conspiracy against peace; he is also
jointly responsible for the Crimes against Humanity perpetrated in the
Eastern Territories, since Rosenberg held the complete power, the
highest authority in the East.
I shall deal later, _de jure_ and _de facto_, with the question of
Rosenberg’s automatic responsibility in his capacity as supreme chief of
the Eastern Territories. First I would like to consider the question of
his individual responsibility. One might deduce it from two reasons:
First, because he allegedly participated in the preparation of the war
of aggression against the Soviet Union; I have already stated that this
assertion is not correct; Rosenberg has neither ideologically nor
actually participated in the preparations of the war of aggression.
Secondly, because he supported Hitler’s plan of conquest by making
plans, delivering speeches, and organizing the administration. When a
minister or general, following the instructions of the head of the
State, elaborates plans or takes preparatory measures of an
organizational nature, for later eventualities, this activity cannot be
considered as criminal even when the interests of other countries are
affected thereby and even when the plans, preparations, and measures are
intended for war. Only when the minister or general in question directs
his activity toward things which have to be considered as criminal
according to sound common sense and an international sense of decency
and justice can he be held individually responsible. Rosenberg has
consistently proved by word and deed that the traditional conceptions of
right are his conceptions also and that he desired to enforce them. But
his position was particularly difficult since his supreme chief finally
exceeded all limits in his ideas, aims, and intentions and since other
strong forces like Bormann, Himmler, and Gauleiter Erich Koch were also
involved, who frustrated and sabotaged Rosenberg’s good and fair
intentions.
Thus we witness the strange spectacle of a minister in office who partly
cannot understand or approve, partly is totally unaware of the
intentions of the head of the State; and on the other hand that of the
head of a state who appoints a minister to take office, who is certainly
an old and loyal political fellow combatant, but with whom he has no
longer any spiritual contact whatsoever. It would be wrong to judge such
a situation simply according to democratic conceptions of the
responsibility of a minister. Rosenberg could not simply resign, yet he
felt inwardly the duty of fighting for the point of view which appeared
to him right and decent.
In his speech of 20 June 1941 Rosenberg said that it was the duty of the
Germans to consider that Germany should not have to fight every 25 years
for her existence in the East. He by no means, however, desired the
extermination of the Slavs, but the advancement of all the nations of
Eastern Europe and the advancement, not the annihilation, of their
national independence. He demanded (Document Number 1058-PS; Exhibit
USA-147) “friendly sentiments” toward the Ukrainians, a guarantee of
“national and cultural existence” for the Caucasians; he emphasized
that, even with a war on, we were “not enemies of the Russian people,
whose great achievements we fully recognize.” He advocated “the right of
self-determination of people”—one of the first points of the whole
Soviet revolution. This was his idea, tenaciously defended till the end.
The speech in question also contains the passage which the Prosecution
holds against him in particular, that the feeding of the German people
during these years will be placed at the top of German demands in the
East and that the southern territories and the North Caucasus would have
to make up the balance in feeding the German people. Then, Rosenberg
continues literally:
“We do not see at all why we should be compelled to feed the
Russian people also from these regions of surplus. We know that
this is a bitter necessity which lies beyond any sentiment.
Without a doubt extensive evacuation will be necessary, and
there are very hard years ahead for the Russians. To what extent
industries are to be kept up there is a question reserved for
future decision.”
This passage comes quite suddenly and all by itself in the long speech.
One feels distinctly that it has been squeezed in; it is not Rosenberg’s
voice; Rosenberg does not proclaim here a program of his own but only
states facts which lie beyond his will. In the directives of the eastern
ministry (Document Number 1056-PS) the feeding of the population, as
well as supplying it with medical necessities, is described as being
especially urgent.
On the contrary, the true Rosenberg emerges in the conference of 16 July
1941 when, regarding Hitler’s plans, he called attention to the
University of Kiev and to the independence and cultural advancement of
the Ukraine and when he took a stand against the intended full power of
the Police and above all against the appointment of Gauleiter Erich Koch
in the Ukraine (Document Number L-221).
One will contend: What is the use of opposition and protests, what is
the use of secret reservations and of feigned agreement with Hitler’s
intentions—Rosenberg did co-operate all the same. Therefore he is
responsible too. Later on I will outline in detail how and to what
extent Rosenberg took part in the policy in the East, what things he did
not do and how he opposed them, what he planned and desired himself in
order to defend himself against the grave charge of being responsible
for the alleged exploitation and enslavement of the East. Here I would
only like to point out the following: It was in no way a hopeless task
to begin by accepting even Hitler’s most passionate statements without
contradiction in the hope and with the intention of nevertheless
attaining a different result later on. In opposition to Hitler’s
statement: “No other than a German may ever bear weapons in the East,”
it was not long, for example, before, on Rosenberg’s recommendation,
legions of volunteers were formed from the peoples of the East; and in
opposition to Hitler’s wish, an edict of tolerance was issued at the end
of 1941 for the churches of the East (Document Number 1517-PS).
If, at first, Rosenberg could achieve nothing for the autonomy of the
eastern nations, he still adhered to his plans for the future in this
respect too. First he took care of the urgent agrarian question. An
agrarian program was drawn up, which it was possible to present to the
Führer on 15 February 1942, and which was authorized by him in unchanged
form. It was not an instrument of exploitation, but an act of liberal
formation of the agrarian constitution in the midst of the most terrible
of wars. Right in the middle of the war the eastern countries not only
received a new agrarian constitution but also agricultural machinery.
The witness Professor Dencker, in his affidavit, has borne witness to
the following deliveries to the occupied Soviet territories, including
the former border states:
Tractors, 40-50 HP about 7,000
Threshing machines about 5,000
Agricultural implements about 200,000
Gas generators for German
and Russian tractors about 24,000
Harvesters about 35,000
Total Cost: about 180,000,000 marks.
I do not think one can say that these deliveries were made with a view
to exploitation. So in this, too, Rosenberg accomplished a piece of
constructive work that was really a blessing. In the following I will
first treat the question of Rosenberg’s automatic responsibility as
minister for the Eastern Territories; that is, the question of his
criminal liability on the grounds of his official position.
On 17 July 1941, Rosenberg was appointed Reich Minister for the Occupied
Eastern Territories. Two Reich Commissariats were set up as supreme
territorial authorities: “Ostland” (Esthonia, Latvia, Lithuania, and
White Ruthenia) under Reich Commissioner Lohse, and “Ukraine” under
Reich Commissioner Koch. The Reich Commissariats were divided into
general districts and regions. Right from the beginning the eastern
ministry was not conceived as an administrative authority built on a
large scale but as a central office, a supreme authority which was to
confine itself to over-all instructions and fundamental directives and
in addition was to insure the supply of material and personnel. The
actual governing was the duty of the Reich Commissioner; he was the
sovereign in his territory.
Moreover, it is of special importance that Rosenberg, as minister for
the East, was not at the head of the whole eastern administration, but
that several supreme authorities existed at the same time. Göring, as
Delegate for the Four Year Plan, was responsible for the control of the
economy in all occupied territories and in this respect had authority
over the minister for the East, for Rosenberg could only issue economic
decrees with Göring’s agreement. The Chief of the German Police,
Himmler, was solely and exclusively competent for police security in the
Occupied Eastern Territories; there was no police division at all in the
ministry for the East, nor in the Reich Commissariats. Rosenberg’s
competence was furthermore undermined by Himmler as Reich Commissioner
for the Preservation of German Nationality and by Speer, on behalf of
whom a Führer decree detached all technical matters from the eastern
administration. It was further weakened by Goebbels who claimed for
himself the control of propaganda in the Occupied Eastern Territories as
well. Later on I shall come to the important question of labor
mobilization, which was put under the authority of Sauckel.
Nevertheless, Rosenberg was the minister responsible for the Occupied
Eastern Territories. In view of this, the following must be emphasized:
In this Trial Rosenberg is not made responsible from the political
standpoint, since the High Tribunal is no parliament; neither is he made
responsible from the point of view of constitutional law, for the High
Tribunal is not a supreme court of judicature. The liability of the
defendant with respect to civil law is not in question either, but only
his criminal liability, his responsibility for his own alleged crimes
and for the crimes of others. I do not need to outline in more detail
the fact that in order to establish criminal liability and to condemn
it, it must be proved that the defendant illegally committed acts
punishable by law and that he may only be punished for failure to act,
that is, for an omission, if he had the legal duty to act and if it was
due to his inactivity that the crime occurred, always assuming that the
actual possibility existed of his preventing the crime.
The fact seems to me of decisive importance that Rosenberg although
Minister for the Occupied Eastern Territories, was not a supreme ruler.
Supreme rulers were the Reich Commissioners of the gigantic territories
“Ostland” and “Ukraine.” The lines along which these territories were to
be constitutionally remodeled were not yet visible, but one thing was
certain: The Reich Commissioner was the highest authority. For instance,
it was he who, on the most important measures—like shooting of
inhabitants of a region for acts of sabotage—had the right to make the
ultimate decision. I should like to insert that in practice in these
cases the Police had exclusive competence. The Reich, that is, other
authorities, had the right to fundamental legislation and over-all
supervision. By a slight change in the well-known remark of Benjamin
Constant, the French professor of constitutional law, “_Le roi règne,
mais il ne gouverne pas_,” one may define in the following way
Rosenberg’s position as Minister for the Occupied Eastern Territories:
“_Le ministre gouverne, mais il ne règne pas._” As in certain dominions
of the British Empire, there existed a sovereignty of the Reich
Commissioner with a central over-all supervision by the minister for the
East. Today nobody would think of summoning the competent British
minister before a tribunal because a governor in India had allowed a
native village to be bombed and burned down.
And so I come to my conclusion that in Rosenberg’s case there exists no
automatic criminal responsibility for the nonprevention of crimes in the
East, if only because, although he had authority of supervision, he was
not sovereign; the two Reich Commissioners had the supreme authority.
The question must furthermore be asked and briefly examined whether the
defendant is individually guilty of the criminal exploitation and
enslavement of the nations of the East and perhaps of further crimes.
What was his attitude, what were the general lines and general trends of
his policy, what did he do positively, and what did he prevent or at
least try to prevent?
In the Baltic countries, national administrations or directorates were
installed under German supervision. The German administration was
compelled by the Reich Minister for the Occupied Eastern Territories to
show great understanding for all desires which could be fulfilled and
strive for good relations with the Baltic countries; the Baltic
countries had a free legal, educational, and cultural system and were
only limited with respect to questions concerning politics, economy, and
the police. After the war of 1914-18 agrarian reform in the Baltic
states was carried out almost exclusively at the expense of the
700-year-old German holdings. Nevertheless Rosenberg, as minister for
the East, made a law returning to private ownership the farms which had
been made collective by the Soviet Union since 1940 and, by this
restitution of soil which had originally been taken away from German
proprietors, showed the greatest possible good will of the German Reich.
This, as well as the already-mentioned agrarian program, has been
expressly confirmed by the witness Riecke.
In the General District of White Ruthenia independent administration was
initiated under Reich Commissioner Kube. The White Ruthenia Central
Committee was founded, as well as a White Ruthenian relief system and a
White Ruthenian youth organization. When a White Ruthenian youth
delegation returned from a visit to Germany, Kube said that he would
continue to act as a father to White Ruthenian youth; the following
night he was murdered, yet this policy was not changed.
I should like to observe here in passing that the actual Russian
territories between Narva and Leningrad and around Smolensk remained all
the time under military administration; likewise the districts around
Kharkov and the Crimea.
As far as the Ukraine is concerned, Rosenberg intended to give it
extensive central self-administrative sovereignty, as soon as possible,
similar to the directorates in the Baltic states and combined with a
pronounced advancement of the cultural and educational needs of the
people. After Rosenberg had originally considered himself entitled to
assume that Hitler agreed with this idea, another conception later came
to prevail, namely, that all forces should be directed toward the war
economy. Rosenberg managed to achieve and carry through one thing only:
The new agrarian program of 15 February 1942, which provided for a
transition from the collective economy of the Soviet Union to private
enterprise and then to ownership by the farmers. On 23 June 1943 the
property decree was issued as a complement to this. At first it was not
possible to carry this out because of Reich Commissioner Koch’s
opposition, and then military events brought everything to an end. A
further fundamental decree was based on a general adjustment of the
school system, which Rosenberg had ordered to be worked out because the
Reich Commissioner of the Ukraine declined to do it himself. Rosenberg
provided for elementary schools and higher technical schools; the Reich
Commissioner protested against this. On account of the conflict, which
became more and more acute, between Rosenberg and Reich Commissioner
Koch, Hitler in June 1943 issued the following written instruction: The
Reich Commissioner had no right to make any obstructions, but the Reich
Minister for the Occupied Eastern Territories should confine himself to
essential questions, and when issuing any orders should make it possible
for the Reich Commissioner of the Ukraine to express his opinion
beforehand, which practically meant Koch’s co-operation beside
Rosenberg.
During his examination of 8 April 1946 the witness Lammers described
Rosenberg’s peculiar constitutional position as Reich Minister for the
Occupied Eastern Territories and his political position, which became
constantly weaker. I would like to emphasize the following striking and
especially important declarations made by the witness: The authority of
the Reich Minister for the Occupied Eastern Territories was detracted
from by the Armed Forces, by Göring as the Delegate for the Four Year
Plan, by Himmler as Chief of the German Police, by Himmler as Reich
Commissioner for the Preservation of Germandom (resettlement measures),
by Sauckel as Plenipotentiary General for the Allocation of Labor, by
Speer in the field of armaments and engineering, and finally, through
differences of opinion, by Propaganda Minister Goebbels.
Furthermore, Rosenberg was limited by the fact that two Reich
Commissioners, Lohse and Koch, were appointed for the Occupied Eastern
Territories. The Higher SS and Police Leader was “personally and
directly” subordinated to the Reich Commissioner; but, as Lammers has
declared, in technical respects he could not take any orders from
Rosenberg or from the Reich Commissioner but only from Himmler.
Lammers said furthermore: Rosenberg always wished to pursue a moderate
policy in the East; he was without any doubt against a policy of
extermination and against a policy of deportation, which were widely
advocated in other quarters. He made efforts to rebuild agriculture
through the agrarian program, to put the educational system, church
affairs, the universities and schools in order. Rosenberg had great
difficulty in asserting himself, for especially the Reich Commissioner
for the Ukraine simply did not follow Rosenberg’s orders. Rosenberg
favored instituting a certain degree of independence in the eastern
nations; he particularly had at heart the cultural interests of the
latter. The differences of opinion between Koch and Rosenberg, says
Lammers, could have filled volumes of files. Hitler called Rosenberg and
Koch to him and decided that they should meet each month in order to
consult each other.
The witness Lammers said, quite rightly, that of Rosenberg as the
superior minister it was asking too much to have to come to an agreement
in each case with his subordinate, the Reich Commissioner. Subsequently
it was shown that in spite of the meetings they came to no agreement,
and finally it was Herr Koch who was right in the eyes of the Führer. As
Lammers says it was about the end of 1943 that Rosenberg was received
for the last time by the Führer, and even before that time he had always
had great difficulties in reaching the Führer. There had been no more
Reich Cabinet sessions since 1937.
Hitler’s ideas tended more and more in the direction of Bormann-Himmler.
The East became the ground for experiments.
To this group—as it is quite clear today, for the first time—it seemed
hopeless to look for understanding on the part of Rosenberg as to the
development of the Reich as they wished it. Rosenberg had no idea of the
extent of the fight waged against him. His quarrel with Reich
Commissioner Koch, the exponent of Himmler and Bormann, is proof of this
ignorance; but it is also complete proof of Rosenberg’s integrity.
On 14 December 1942 Rosenberg issued a set of instructions to the Reich
Commissioner of the Ukraine (Document Number 19-PS); his other
instructions have unfortunately not been found. In this, Rosenberg
requested the administrative chiefs to preserve decent attitudes and
views; he demanded justice and human understanding for the population,
which had always seen in Germany the supporter of legal order (Document
Number 194-PS); the war had brought terrible hardships, but every
offense should be fairly examined and judged, and should not be punished
to excess. It is also inadmissible that German authorities meet the
population with expressions of contempt. One can only show one is the
master through correct manner and actions, not by ostentatious behavior;
our own attitude must bring others to respect the Germans; those
administrative chiefs who have shown themselves unworthy of their tasks,
who have misused the authority they were given, and who by their
obnoxious behavior have shown themselves to be unworthy of our uniform,
must be treated accordingly and summoned before a court or removed to
Germany.
The echo which such decrees called forth in Koch is shown in his
memorandum of 16 March 1943 (Document Number 192-PS). Koch writes that
“it is a strange thought that not only must a correct attitude be
displayed toward the Ukrainians, but that we must even be amiable to
them and always ready to help.” Furthermore Rosenberg demanded esteem
for the highly-developed consciousness of the Ukrainian people and,
according to Rosenberg, a high degree of cultural self-administration
was desirable for the Ukraine; nations as big as the Ukraine could not
be kept in permanent dependence, and the eastern campaign was a
political campaign and not an economic raid. Here Koch, addressing
Rosenberg, refers in a cynical manner to the climax reached in the
relations of his organization with Ukrainian emigration. There are other
decrees of Rosenberg’s which are criticized by Koch. One of these is the
decree of 18 June 1942 concerning the acquisition by Rosenberg of
Ukrainian schoolbooks for a total of 2.3 million Reichsmark to be
charged to the budget of the Reich Commissariat without his previously
even getting in touch with Koch. One million primers, one million
spelling charts, 200,000 schoolbooks, 300,000 language books, and
200,000 arithmetic books were to be provided at a time when there was
hardly even the most necessary paper for German school children.
Koch goes on to say:
“It is not necessary to point out repeatedly in the decrees
issued by your ministry and in telephone communications that no
coercion may be used in recruiting laborers and that the eastern
ministry even demands to be informed of every instance in which
compulsion has been used.”
In a subsequent decree Koch says he is blamed for having caused the
closing of vocational schools; and he also says that Rosenberg ordered
the General Commissioners to adopt a different school policy, thereby
overstepping his authority as Reich Commissioner. Koch then concludes
with a veiled threat that to him, as a veteran Gauleiter, the way to the
Führer could not be barred. So much challenging criticism of Rosenberg,
so much unintentional praise, and so much proof of the absolute decency
of his behavior and the far-sighted and statesmanlike direction of his
office as chief of the eastern administration!
One last document in the fight of Rosenberg against Koch is the report
regarding Reich Commissioner Koch and the timber region of Zuman of 2
April 1943 (Document Number 032-PS), regarding which Rosenberg gave
exhaustive information as a witness. In this very matter Rosenberg
displayed his conscientiousness particularly clearly.
And now we have again to unroll another scene before our eyes, because
the Prosecution attached specific importance to it: In July 1942,
Bormann wrote a letter to Rosenberg; Rosenberg replied, and a third
party, Dr. Markull, an associate of Rosenberg in his ministry, wrote a
commentary regarding it. According to Dr. Markull’s representation the
contents of Bormann’s letter, the original of which is not extant, was
the following: the Slavs should work for us; if of no use to us, they
ought to die; health provisions were superfluous; the fertility of the
Slavs was undesirable, their education dangerous; it would do if they
could count up to one hundred. Every educated person is a potential
enemy. We could leave them their religion as an outlet. As sustenance
they should receive only the barest necessities; we are the masters and
we come first.
To that letter by the closest collaborator of Hitler there could be only
one reply by Rosenberg: feigned consent and feigned compliance. In the
inner circle of the eastern ministry there arose considerable
apprehensions regarding this significant change in the attitude of its
chief, apprehensions which were expressed in Dr. Markull’s memorandum of
5 September 1942. Rosenberg as a witness has stated that there cannot
exist any doubt, when that document is read impartially, that he agreed
only for the sake of pacifying Hitler and Bormann. Rosenberg wanted to
insure himself against an attack from the Führer’s headquarters, which
he anticipated with certainty because he allegedly did more for the
eastern population than for the German people, because he required more
physicians than there were available for sick Germans, _et cetera_.
The Markull memorandum is the truest possible bona fide reflection of
Rosenberg’s personality and influence, since it shows the anxious
subordinate trying to conjure up the spirit of his minister as he had
come to know and to love him in his work, and to dispel an alien phantom
who seemed to have taken his place. It is stated there that such a train
of thought conformed with the policy of Reich Commissioner Koch, but not
with the decrees of the Reich Minister and the conception of at least 80
percent of the District Commissioners and specialists who were counting
on their minister and who considered that the eastern population should
be treated decently and with understanding, for it evinced a
surprisingly high capacity for culture, its efficiency in work was good,
and we were about to waste a precious stock of gratitude, love, and
confidence. The controversy between the minister and the Reich
Commissioner was well known among the high authorities of the Reich, and
it was no secret that the ministry was unable to carry out its policies
in opposition to the Reich Commissioners, who considered the eastern
ministry as entirely superfluous; the writings of Bormann would disavow
the entire policy of the eastern minister up to now, and one was given
the impression that Koch had been backed by Hitler in his opposition to
the minister. Since its foundation the ministry had had to register an
ever-increasing loss of power. The Higher SS and Police Leaders refused
to render to the General Commissioners the normal honors such as
reports, et cetera. One jurisdiction of the eastern minister after
another was being taken away by other highest Reich offices; in the
offices in Berlin it was openly said that the remodeling of the ministry
into a mere operations staff was to be expected. On the other hand, the
Reich Ministry for the Occupied Eastern Territories, due to the
personality of its leader, enjoyed the exceptional esteem of the public.
Dr. Markull implores the minister to stand by his original ideas, saying
that the unfortunate master complex should be as much avoided as the
opinion that the intelligentsia were alien to the masses. The influence
of spiritual forces should be taken into consideration. Germany should
prove a “righteous judge,” acknowledging the national and cultural
rights of nations. Such had been the ideas of the minister before, and
such they should remain.
Rosenberg’s attitude did not in fact change, since at that very time he
was working on the great School Program (Schulverordnung). Later on he
effected the reopening primarily of the medical faculties in colleges.
And then came the conflict with the Führer in May 1943.
On 12 October 1944 Rosenberg tendered his resignation through Lammers to
the Führer (Document Number Ro-14), because German eastern policy in
general and the political psychological treatment of eastern nations in
particular, were still contrary to the point of view which he had had
from the very beginning, namely, his plan of autonomy for the eastern
nations and the cultural development of their capacities as part of an
all-European conception of a family of nations on the continent. He now
inwardly broke down at seeing a great statesmanlike program destroyed.
All he could do in regard to the policy of enslavement and looting which
was going on in his country was merely to accept memoranda from his
colleagues in the ministry, or at best indulge in a futile paper war
with people like Koch. He had not been strong enough against the plans
which benighted forces wanted to carry out in the East; and he was
powerless against their influence, being in addition totally unaware at
that time of all the police and military orders which were presented
here to the Tribunal.
When Rosenberg once reminded Hitler of the creation of a university in
Kiev, Hitler apparently agreed; after Rosenberg had left and he was
alone with Göring, Hitler said, “This fellow has too many worries. We
have more important matters on our minds than universities in Kiev.” No
episode can illustrate better than all the documents the one theme:
Rosenberg and the reality in the East, and the other theme: Rosenberg as
the alleged inspirer of Hitler.
As Rosenberg did not receive any reply to his request for resignation,
he tried many times to talk to Hitler personally. It was all in vain.
On 11 December 1945 Mr. Dodd said:
“The system of hatred, barbarism, and denial of personal rights
which the conspirators had elevated to the national philosophy
of Germany followed the National Socialist masters when they
overran Europe. Foreign workers became the slaves of the master
race, being deported and enslaved in millions.”
And on 8 February 1946 General Rudenko said:
“In the long line of ruthless crimes committed by the
German-Fascist troops of occupation, the forcible deportation of
peaceful citizens into slavery and bondage in Germany takes a
particularly important place.”
He said that Göring, Keitel, Rosenberg, and Sauckel were particularly
responsible for the inhuman and barbaric instructions, directives and
orders of the Hitler Government, whose purpose was the carrying out of
the deportation of Soviet people into German slavery.
I have already spoken of the formal and individual responsibility of
Rosenberg as Reich Minister for the Occupied Eastern Territories. I have
already explained, too, that in the field of labor employment it was not
Rosenberg but Sauckel who, as Plenipotentiary General for the Allocation
of Labor, was the highest authority and the responsible person, by
virtue of the Führer’s decree of 21 March 1942 (Document Number 580-PS).
Thus Sauckel in this field was Rosenberg’s superior.
He wrote to Rosenberg on 3 October 1942 (Document Number 017-PS):
“The Führer has drawn up new and most urgent armament programs
which require the speediest employment of two million additional
foreign workers. For the execution of his decree of 21 March
1942 the Führer has given me more authority for my further
tasks, particularly empowering me to use my own judgment in
taking all measures in the Reich and in the Occupied Eastern
Territories in order to insure the organized employment of labor
for the German armament industry under all circumstances.”
In his Program for the Allocation of Labor of 24 April 1942 (Document
Number 016-PS), he emphasized that the state and local labor offices are
in charge of all technical and administrative matters in connection with
labor employment which come under the exclusive competence and
responsibility of the Plenipotentiary General for the Allocation of
Labor. The defense of Sauckel is not my task. But may I point out that
he also did not take over his great and difficult task with a feeling of
hatred and intentions of enslavement. In his Program for the Allocation
of Labor just mentioned he says, for instance:
“Everything has to be avoided which, beyond the shortages and
hardships caused by war conditions, would aggravate and even
cause unnecessary suffering to foreign male and female workers
during their stay in Germany. It stands to reason that we should
make their presence and their work in Germany, without any loss
for ourselves, as bearable as possible.”
On that point Sauckel and Rosenberg shared the same opinion.
Neither is it my task to state and to prove that many hundreds of
thousands of foreign workers found good conditions in Germany, that in
fact numberless persons were better off here than in their fatherland. I
am only concerned with the bad conditions which have been charged to the
Defendant Rosenberg.
I come now to the “Central Agency for Nationals of the Eastern
Territories.”
Gentlemen of the Tribunal, several days ago I read the affidavit of Dr.
Albert Beil. Essentially it contains an authoritative statement of
whatever can be said about that subject. Therefore, I should like to
omit this subject, “Central Agency for Nationals of the Eastern
Territories,” and ask the Tribunal to consider it as having been
presented.
[sm type begins]2. Central Office for Nationals of the Eastern
Territories.[sm type ends]
[sm type begins]As the war became more and more intensified in regard to
totality and brutality, the German workers, and the Germans altogether,
did anything but live in a grand style; they too, as far as they had not
been drafted for the Army, were assigned to labor duties, had to do
heavy work for long hours, were separated from their families, had
frequently to be content with second-rate billets—especially because of
the increasing number of houses damaged by air attacks—and they, too,
were severely punished for refusal to work or defaulting.[sm type ends]
[sm type begins]The fact that the foreign workers were likewise victims
of this totality and brutality of the war and, admittedly, in some
respects even more so, does not incriminate Rosenberg either legally or
morally. He established, within his ministry, the Central Office for
Nationals of the Eastern Territories, which had neither police tasks nor
any other competencies of an administrative nature but was concerned
solely with the welfare of nationals of the Eastern Territories and
which employed trustees taken from among the eastern nations. In the
report of 30 September 1942 (Document Number 084-PS, US-199) this office
points out several inadequacies: That the accommodation, treatment,
food, and pay of the Eastern Workers called forth strong criticism;
that, though actually the situation was much better now (deadline 1
October 1942), the conditions for Eastern Workers were on the whole
still far from being satisfactory. Rosenberg is therefore asked to
discuss the matter with Hitler in order to have Hitler himself take
energetic measures; Himmler was to be made to rescind his general
regulations concerning the treatment of Eastern Workers; the Party
Chancellery and the Party to be reminded of their historical
responsibility for the millions of former Soviet citizens now guided by
Germany and instructed to co-operate in all matters concerning Eastern
Workers in the Reich with the Reich Minister; finally it was suggested
to extend the scope of the Central Office for Nationals of the Eastern
Territories as quickly as possible, so as to enable it efficiently to
look after the interests of the aliens from the occupied territories
living in the Reich, being, so to speak, the projected arm of the East
ministry and the representative of these people. In this sense, namely,
in the sense of social care and humane welfare, the eastern ministry was
active for the Eastern Workers.[sm type ends]
To refute the charge that Rosenberg was active as protagonist of the
system of hatred and barbarism, of denying human rights, and of
enslavement, I must add the following. Rosenberg received further
unfavorable reports, one being the report of 7 October 1942 about the
bad treatment of Ukrainian skilled workers (Document Number 054-PS,
US-198). Abuses in recruiting and during transportation were pointed
out; the workers were frequently dragged out of their beds at night and
locked up in cellars until the time of their departure; threats and
blows by the rural militia were a matter of course; food brought from
home was often taken by the militia; during transportation to Germany
neglect and transgressions on the part of the escorting units occurred,
_et cetera_.
Rosenberg had no authority whatsoever to intervene in those matters, yet
he tried to do so in a letter of 21 December 1942 to Sauckel; Rosenberg
first emphasized his fundamental accord with Sauckel; but after a few
tactical and polite _clichés_, he complained seriously and urgently
about the methods used in the employment of labor. I quote:
“I must emphatically request, in view of my responsibility for
the Occupied Eastern Territories, that in supplying the required
quotas methods should be avoided which might one day cause me or
my associates to be charged with connivance and with being
responsible for the consequences.”
Rosenberg further states that he empowered the Reich Commissioner for
the Ukraine to make use, so far as required, of his sovereign rights and
to give attention to the elimination of recruiting methods which were
running counter to the interests of warfare and war economy in the
occupied territories. He, Rosenberg, and the Reich Commissioners could
not help being surprised that in numerous instances measures, which
should have been previously agreed upon with the civilian authorities,
were first learned of through the police or other offices. Without
co-ordination of their mutual wishes Rosenberg was unfortunately unable
to accept the joint responsibility for consequences resulting from these
reported conditions. In conclusion Rosenberg expressed the wish to put
an early end to such conditions for the sake of their common interest.
Rosenberg also tried personal consultations with Sauckel and got Sauckel
to promise that he would do everything to bring about a fair solution of
all these questions (conference of 14 April 1942). It was beyond
Rosenberg’s power and authority to do more. His secret opponent,
supported by higher authorities, was Reich Commissioner Koch, who was
indeed one of the chief culprits responsible for the cruel methods of
recruiting and employment of Eastern Workers, and whose influence
Rosenberg was unable to counteract.
When the prosecutor (Brudno, on 9 January 1946) charges the defendant
with protesting against these methods not for humanitarian reasons but
out of political expediency, I can only say that in my opinion one
cannot, without some sound reasons, simply maintain that the Defendant
Rosenberg is devoid of any human qualities.
As an example of the defendant’s particular bestiality, the so-called
“Hay Action” has been repeatedly pointed out by the Prosecution
(Document Number 031-PS). It concerned the intention of Army Group
Center to evacuate 40,000 to 50,000 juveniles from the area of
operations, as they represented a considerable burden to the area of
operations and were besides, for the most part, without any parental
supervision. Villages for children were to be established behind the
front lines under native supervision; one of these villages had already
proven its value. It was hoped that through the Organization Todt, being
a particularly appropriate organization due to its technical and other
possibilities, the juveniles might, in the main, be placed at the
disposal of German handicraft as apprentices, in order to employ them as
skilled workers after 2 years’ training. At first Rosenberg, as Reich
Minister for the Occupied Eastern Territories, was against this because
he feared that the action might be considered as a deportation of
children, while on the other hand, the juveniles did not represent a
considerable increase of military strength. The chief of the political
operations staff approached Rosenberg again, stating that Army Group
Center attached particular importance to the fact that the children
should enter the Reich, not by authority of the Plenipotentiary General
for the Allocation of Labor, but through the agency of the Reich
Minister for the East, as it was felt that only then could they be
assured of correct treatment. The Army Group wanted the action to be
carried out under the most correct conditions and asked for special
regulations to be issued with regard to mail facilities between them and
their parents, _et cetera_. In the event of a possible reoccupation of
the territory the eastern ministry could then let the children go back.
Together with their parents they would certainly form a positive
political element during the subsequent reconstruction of the territory.
Finally, as reason for the second request addressed to the minister, it
was stated in addition that the children, to be sure, would not
essentially contribute to strengthening the military power of the enemy
but that the important factor in this case was the long-range weakening
of his biological strength; not only the Reichsführer SS but also the
Führer had expressed themselves to this effect. Rosenberg finally gave
his consent to this action.
With regard to this it may be said: This concerned a field which was not
at all within the jurisdiction of Rosenberg’s administration; he did not
want to destroy a foreign element, even if biological weakening was
given him as a reason—a reason which he himself did not recognize.
Instead he wanted to have the children educated and trained and bring
them and their parents back to their homes later on. That is virtually
contrary to the crime with which the defendant is charged. Later on, in
the late summer of 1944, Rosenberg visited the Junkers plant in Dessau
where approximately 4,700 young White Ruthenian craftsmen were employed
and also visited a White Ruthenian children’s camp. The clothing of the
workmen was irreproachable; they were industrious, enjoyed the best
treatment, and got along very well with the German workers. As Rosenberg
was able to see for himself, the young people were taught languages and
mathematics by Russian teachers. The children were cared for in their
forest camp by White Ruthenian mothers and women teachers. The figure of
40,000 moreover, was never attained, in fact, barely half of it.
The attempt of the Prosecution in this instance to appeal especially to
considerations of humanity in order to discredit the defendant cannot be
successful in my estimation. For this very example compels me to point
out the following in particular: We were in the midst of a war which was
being conducted with terrible intensity on both sides. Is not war in
itself “monstrous bestiality”? The “weakening of the biological strength
of nations” is truly a fitting expression for the goal and purpose of
the whole war, for that is what the thoughts and efforts of both
belligerent parties are aimed at. It would surely be unthinkable that
one should forget this in judging the actions of the defendants and that
one should wish to hold the defendants responsible not only for
unleashing the war, but in addition, for the fact that war in its very
essence constitutes a great crime on the part of mankind, both against
itself and against the laws of life.
The Prosecution contends that Rosenberg is guilty also insofar as it was
he who issued the inhuman and barbaric decrees which aimed at carrying
out the deportation of Soviet people into German slavery. This causes me
to discuss the question as to whether the compulsory labor decree of 19
December 1941 and Rosenberg’s other decrees concerning compulsory labor
for the inhabitants of the Eastern Territories, were contrary to
international law.
The Eastern Territories administered by Rosenberg were militarily
occupied during the war. Through this occupatio bellica Germany realized
complete domination and had the same sovereignty as over her own
territory. While according to previous conceptions of international law
the occupying power could act arbitrarily without consideration of
rights and laws, the recent evolution of international law eliminated
the principle of force and brought victory to the principles of humanity
and culture. Therefore the formerly unlimited might of the occupying
power was altered to limited rights. The Hague Rules of Land Warfare
stipulated in particular the legal obligations of the occupying power.
On the other hand, it is not true to say that the Rules of Land Warfare
specify only certain privileges for the occupying power. They merely set
a limit to the basically unlimited right of the occupying power to
exercise all powers deriving from territorial sovereignty over an
occupied territory.
THE PRESIDENT: Would that be a convenient time to break off?
[_The Tribunal adjourned until 10 July 1946 at 1000 hours._]
ONE HUNDRED
AND SEVENTY-FIFTH DAY
Wednesday, 10 July 1946
_Morning Session_
THE PRESIDENT: The Tribunal will sit in closed session this afternoon
and will not sit in open session after 1 o’clock.
DR. THOMA: Mr. President, may it please the Tribunal, with regard to the
question of the justification of the decree concerning the compulsory
labor service of the inhabitants of the Eastern Territories, I should
like to continue on Page 33.
Thus the following principle recognized by international law is
indicated:
Measures undertaken by an occupying power in occupied territory are
legal as long as they are not in opposition to a proven stipulation of
the international rules of warfare. The occupying power is therefore
assumed to be entitled to the full exercise of all powers derived from
territorial sovereignty over an occupied territory. According to the
uniform opinion of experts on international law the occupying power acts
by virtue of an original law of its own, guaranteed and defined as to
content solely by international law, in the interest of its own conduct
of the war as well as for the protection of the civil population in the
occupied territory. I quote Heyland from _Handbuch des Völkerrechts_.
“The inhabitants of the occupied territory no longer have a duty
of allegiance to the enemy sovereign but only to the occupying
power; the will of the occupying power rules and decides in the
occupied territory; the occupying power is the executor of its
own will; its own interests alone are decisive for the exercise
of its sovereign rights and, therefore, it is at liberty to act
against the interest of the enemy state.”
In view of Article 52 of the Hague Rules of Land Warfare the right to
conscript labor in the occupied territory is acknowledged. It is
stipulated here that labor services may be demanded from the inhabitants
of the occupied territory; the demand must be limited to the
requirements of the occupation forces; it must be in proportion to the
resources of the country and must be of such a nature as not to compel
the population to participate in military operations against their own
country. In these stipulations I cannot discern any prohibition of labor
conscription in occupied territories; on the contrary, I consider that
an approval of compulsory labor service can be clearly deduced from
them. The employment of such labor in war industry is undoubtedly in
accordance with the requirements of the occupation forces and, in my
estimation, it is equally beyond doubt that this constitutes no
commitment to military operations. The Rules of Land Warfare contain no
stipulations as to whether labor service may be demanded only in the
home country or whether the conscript may be transported into the native
land of the occupying power for the purpose of rendering labor services
there. Thus, the general principle holds good that the occupying power
is assumed to be entitled to exercise to the utmost extent all powers
deriving from territorial sovereignty.
If one takes the correct view that the international rules of warfare
should tend to humanize war by limiting the rights of the belligerents
and that the trend in this direction should be continued, one must
consider on the other hand that the stern reality of war tends toward
the opposite direction.
THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is
your contention that the Hague Rules authorize the deportation of men,
women, or children to another country for the purpose of labor service.
DR. THOMA: Mr. President, I propose to speak about the interpretation of
the Hague Rules of Land Warfare and I am dealing here with the question
as to whether it is permissible to transport inhabitants of the country
in order to meet the requirements of the occupying forces. I have stated
my position here that laborers can also be transported into the country
of the occupying power. About children, of course, I have said nothing.
I did not say anything about Jews either. I only spoke about persons
able to work, who were required to work in accordance with the
necessities of the occupying power, and I said it was admissible for
them to be transported into the home country of the occupying power. I
leave this problem to the discernment of the Tribunal.
THE PRESIDENT: The Tribunal would like to have any authorities in
international law which you have to cite for that proposition.
DR. THOMA: Mr. President, I shall mention some more quotations, more
detailed scientific quotations concerning this problem. I have already
quoted in that regard. I have repeatedly quoted Heyland’s _Handbuch des
Völkerrechts_, published by Stier-Somlo, and I shall give more
quotations.
THE PRESIDENT: Will you tell me what language that book is in?
DR. THOMA: In German, Mr. President; it is the _Handbuch des
Völkerrechts_, published by Stier-Somlo, 1923.
Present-day warfare is no longer what it was in 1907. War has developed
into total war, a life-and-death struggle of annihilation, in which the
very last physical and moral forces of the nation are mobilized, and the
loss of which, as is shown by the example of Germany, means
unconditional surrender and the total destruction of her existence as a
State.
Can one maintain, in view of this fact, that Germany, in this struggle
of life and death, should not have been granted the basic right of
self-preservation recognized by international law?
I refer to Strupp, _Handbuch des Völkerrechts_, published by
Stier-Somlo, Stuttgart 1920, Part III, “Violations of International
Law,” Page 128 _et sequentes_.
There is no doubt that the very existence of the State was at stake;
that is, it was an emergency which justified the compulsory employment
of labor, even if it had not been permissible according to international
law. It is inherent in that great anomaly called war that, as soon as
the state of war has been proclaimed, international law is in a large
measure set aside in the interest of the objective of the war, the
overpowering of the enemy.