at Yale Law SchoolMARSHAL: May it please the Tribunal, the Defendants Hess, Von Ribbentrop, and Fritzsche are absent.
DR. SAUCER: May it please the Tribunal, yesterday at the end of my statement I dealt with the charge of the Prosecution that the Defendant Von Schirach had trained and educated the youth of the, Third Reich in a military sense, that he had prepared them for the waging of aggressive wars and had participated in a conspiracy against peace. Now I turn to a further accusation which has been made by the Prosecution against Defendant Von Schirach.
Since the Prosecution could not prove that the Defendant Von Schirach had ever promoted Hitler's war policy before the war, he is being charged with having had various connections with the SS and SA, and especially with the fact that the SS, the SA, and the Leadership Corps of the Party obtained their recruits-from the Hitler Youth. This last fact is quite correct, but it proves nothing as to Schirach's attitude toward Hitler's war policy and is equally pointless as regards the question of his participation in Hitler's war conspiracy. For since 90 or 95 percent or more of German youth belonged to the Hitler Youth movement it was only natural that the Party and its formations as the years went by should receive their young recruits in an ever-increasing measure from the Hitler Youth. Practically no other youth was available.
The Prosecution has referred to the agreement between the Reich Youth Leadership and the Reichsfuehrer SS, dated October 1938, concerning the patrol service of the Hitler Youth, which was submitted to Your Honors as Document 2396-PS; however, no inference can be drawn therefrom, for patrol service in the Hitler Youth was merely an institution designed to check up on and supervise the discipline of Hitler Youth members when they appeared in public. It was, therefore, a kind of organization police which was employed by the Hitler Youth movement entirely within its own ranks. In order, however, to guard against difficulties with the regular Police, an arrangement with the Reichsfuehrer SS Himmler was necessary because as chief of the whole police organization in Germany he might have made trouble for the institution of the HJ patrol service
442
18 July 46
This was the only object of the agreement of October 1938, which in reality had just as little to do with providing recruits for the SS as with the conduct and preparation of war. Moreover, it can clearly be seen how resolutely Schirach strove against any influence on the part of the Party over the Hitler Youth from the fact that in 1938 he protested very sharply against having the education of the Hitler Youth during their last 2 years from 16 to 18 taken over by the SA. He emphatically opposed this plan and through personal intervention with Hitler prevented the Fuehrer decree in question from being applied in practice.
As for his attitude toward the SS, we know from the testimony of the witness Gustav Hoepken, who was heard here on 28 May 1946, and from the affidavit of the witness Maria Hoepken, Schirach Document Book Number 3, that Schirach always feared he was being shadowed and spied upon by the SS in Vienna. He always had an uncomfortable feeling because at the beginning of his activity in Vienna a permanent deputy had been appointed for him in his capacity as Reich Governor (Reichsstatthalter) and Reich Defense Commissioner in the person, of all things, of a higher SS leader, a certain Dr. Delbruegge; he was, as Schirach knew, closely associated with the Reichsfuehrer SS who, as has been proved, proposed to Hitler in 1943 that Schirach should be imprisoned for defeatism and brought before the Peoples' Court, which meant in practice that Himmler would have had Schirach hanged. These facts alone are already proof of the real relationship between the Defendant Von Schirach and the SS, and it will be understood why Schirach finally refused even the police protection squad assigned to him and preferred to entrust his personal protection to a unit of the Wehrmacht which was not subordinate to the order of Himmler. (See affidavit of Maria Hoepken in Schirach Document Book Number 3.)
Another accusation which has been made against the Defendant Von Schirach concerns his attitude in the Church question. This attitude corresponds to the impression given by the present proceedings, and while this issue is not given any prominence in the Indictment, it is nevertheless of considerable importance as far as the appreciation of Schirach's personality is concerned.
Schirach himself, as well as his wife, always remained members of the Church. To the foreign critic this circumstance may perhaps appear an unimportant detail, but we Germans know what pressure was exerted upon high-ranking Party officials in these very matters, and how few in his position ventured to resist such pressure. Schirach was one of those few. He was the one high-ranking Party Leader who constantly and invariably punished with extreme severity any hostile interference and outrages against the Church on the part of the Hitler Youth. He has also been reproached for the
443
18 July 46
fact that various songs were sung by the Hitler Youth which contained offensive remarks about religious institutions, but in this respect Schirach could with a clear conscience confirm on his oath that partly he was unaware of those songs, which is quite conceivable where an organization of 7 or 8 million members is involved; on the other hand, certain songs now considered objectionable date back to the Middle Ages and figured in the song book of the Wandervogel, a former youth organization which the Prosecution surely does not propose to condemn. Schirach has however especially pointed out that during the years 1933 to 1936 several million youths from an entirely different spiritual environment joined the Hitler Youth and that during the first revolutionary years, that is, in the period of storm and stress of the Movement, it was quite impossible to hear of and prevent all lapses of this sort. Whenever Schirach did hear of such things he intervened and remedied abuses of that kind, which after all represented offenses on the part of isolated elements incapable of compromising the youth organization as a whole.
It is Schirach's conviction that the examination of evidence leaves no doubt as to his conciliatory behavior in the matter of the Church, and that he strove to establish proper relations of mutual respect between the Church on the one hand and the Third Reich, and more especially the Reich Youth Leadership, on the other hand, and to observe their respective rights and competences. At his own request Schirach was permitted by the Reich Minister of the Interior to take part in conducting the Concordat negotiations with the Catholic Church in 1934, because he hoped to achieve an agreement with the Catholic Church more easily by his personal co-operation. He honestly endeavored to find a formula for the settlement of the youth question by which agreement with the Catholic Church could be possible. His moderation and good will in this respect were frankly acknowledged by the representative of the Catholic Church at that time. But everything was ultimately frustrated by Hitler's opposition and the complications created for these negotiations by the events of 30 June 1934, the so-called Rohm Putsch.
With the Protestant Church, on the other hand, Schirach achieved an agreement with the Reich Bishop, Dr. Muller, so that the incorporation of the Protestant youth groups into the Hitler Youth was not attained by constraint but by mutual agreement, not by breaking up these associations by the State or the Party, as the Prosecution assumes, but upon the initiative of the Protestant ecclesiastical head and in complete agreement with him. It must be pointed out here that it was always Schirach's policy that no restrictions were to be imposed on church services by the Youth Leadership, neither then nor later. On the contrary, as he himself has testified and as was confirmed by the witness Lauterbacher, Schirach emphatically
444
18 July 46
stated in 1937 that he would leave it to the churches to educate the younger generation according to the spirit of their faith, and at the same time he ordered that, as a principle, no Hitler Youth service was to be scheduled on Sundays during the time of church services. He gave strict orders to the unit leaders of the Hitler Youth not to schedule duties which might disturb church services. If, however, in individual cases such interference did occur and some religious authorities lodged complaints as the cross-examination revealed, then the Defendant Schirach cannot be blamed for this, nor does it alter the fact that he had every good intention.
During the Trial not a single case could be proved in which he stirred up feeling against the Church Or made antireligious statements; on the contrary, at numerous rallies as submitted- to the Tribunal in the Schirach document book, he not only repeatedly opposed the allegation that the Hitler Youth were enemies of the Church or atheists, but he always positively impressed upon the leaders and members of the Hitler Youth the necessity of fulfilling their obligation toward God; he would not tolerate anyone in the Hitler Youth who did not believe in God; every true teacher, he told them, must imbue youth with religious feeling, since it was the basis of all educational activities; Hitler Mouth service and religious convictions could very well be associated with each other and exist side by side; no Hitler Youth leader was to engender conflicts of conscience whatsoever in his boys. Leave of absence was to be granted to Hitler Youth members for religious services, rites, et cetera. Such was Von Schirach's point of view
Whoever gives such instructions to his subleaders, and continues to do so over and over again, can demand that he should not be judged an enemy of the Church and an enemy of religious life. Incidentally, it is interesting in this connection to note what such a reliable judge as Neville Henderson wrote in his oft-quoted book Failure of a Mission about a speech which he heard Schirach deliver at the 1937 Reich Party Rally, parts of which have been submitted in Schirach's document book. Henderson, who as Ambassador in Berlin knew German conditions intimately, evidently expected that Baldur Schirach would speak against the Church at the Reich Party Rally and would influence the young people in the spirit of enmity to the Church, as was often done by other leaders of the Party. Henderson writes, and I quote two sentences:
"That day, however, it was Von Schirach's speech which... impressed me most, although it was quite short.... One part of this speech surprised me when, addressing the boys, he said, 'I do not know if you are Protestants or Catholics, but that you believe in God, that I do know.'"
445
18 July 46
And Henderson added:
"I had been under the impression that all references to religion were discouraged among the Hitler Youth, and this seemed to me to refute that imputation."
What Schirach thought with regard to religion, and in what sense he influenced youth, is indicated not only by a statement he made on the occasion of a speech before the teachers of the Adolf Hitler Schools at Sonthofen, to the effect that Christ was the greatest leader in the history of the world, but likewise by the small book, submitted to you in evidence, entitled, Christmas Gift of the War Welfare Service. This book, which was sent out in large numbers, was dedicated by Schirach to the front-line soldiers who joined from the ranks of the Hitler Youth movement in 1944, at a time when radicalism in all spheres of German life could hardly become more pronounced.
Here also Schirach was an exception: You will find no swastika, no picture of Hitler, no SA song in the book of Reichsleiter Von Schirach, but among other things a distinctly Christian poem from Schirach's own pen, then a picture of a Madonna, and next to it a reproduction of a painting by Van Gogh who, as is generally known, was strictly banned in the Third Reich. Instead of inflammatory words, we find an exhortation to a Christian way of thinking and the "Wessobrunner Gebet," familiar as the earliest Christian prayer in the German language. Bormann stormed when he saw the pamphlet, but Schirach remained firm and refused to withdraw the little book or alter it in any way.
The Defendant Von Schirach has been charged with having once undertaken a hostile act against the Church, and with having thereby taken part in the persecution of the Church. From a letter by Minister Lammers of 14 March 1941 (Document R-146), it appears that Schirach had proposed to keep confiscated property at the disposal of the Gaue, and not to hand it over to the Reich, but this case is no justification at all for connecting the Defendant Von Schirach in some way or other with the persecution of the Church. The case mentioned by the Prosecution does not concern church property at all, but confiscated property of a Prince Schwarzenberg in his Vienna palace. This affair therefore never had anything to do with the Church. This is also confirmed unequivocally by Minister Lammers' letter of 14 March 1941 (R-146), which mentions only, I quote, "a confiscation of the property (of persons) hostile to the people and the State," whereas Bormann's far-reaching personal intention becomes apparent and betrays his hostile attitude toward the Church when he writes about "church properties (monastic possessions, and so forth)" in his accompanying letter of 20 March 1941 referring to this case. Moreover, the confiscation of Prince
446
18 July 46
Schwarzenberg's property was not caused, pronounced, or carried out by Schirach. Schirach had nothing to do with the confiscation as such; Schirach, however, in agreement with the other Gauleiter of the Austrian NSDAP, and at their request, personally applied to Hitler and asked that such confiscated property should not be taken to the Reich and not be used on behalf of the Reich, but that it should remain in Vienna. This suggestion met with approval. Hitler complied with his request, the result of Schirach's efforts being that, when the confiscation was rescinded later on, the property could be returned to the legitimate owner, whereas it would otherwise have been lost by him. By acting thus, Schirach no doubt rendered a service to the Gau of Vienna and to the owner of the property seized. This instance surely cannot be construed as a charge against the Defendant Von Schirach; on the contrary, it speaks in his favor just as the other case where, disregarding Bormann, he intervened on behalf of Austrian nuns and as a result brought about, by a direct order from Hitler, the discontinuance from one day to the other of the whole project of confiscating church and monastic property in the whole Reich.
If the Prosecution further undertakes to charge the Defendant Von Schirach with the fact that the Vienna authorities subordinate to him proposed to establish an Adolf Hitler School in the monastery of Klosterneuburg in 1941, I must point out that even prior to the requisitioning of this monastery, and entirely independently of Schirach, the Vienna police and several Vienna courts had uncovered a considerable number of criminal offenses in this monastery, furthermore that the confiscation of part of the monastery seemed entirely justified to the Defendant Von Schirach, since the very spacious rooms of this religious establishment were not required for monastery purposes.
It should also be noted that the monastery, as can be seen from documents submitted, did not file any protest with the Reich Minister of the Interior against the decision to confiscate, and thereby recognized the confiscation as legal, although it had been expressly informed in the confiscation decree of the possibility of lodging a complaint. Moreover, the confiscated quarters were afterward not used for the establishment of an Adolf Hitler School, but for the Museum of Historical Art (thus not for a Party establishment), which again testifies to the fact that the confiscation decree had in no way been issued because of a hostile attitude on the part of Schirach toward the Church. Had it been Schirach's object to attack the monastery because it was an ecclesiastical institution, he would have included in the confiscation the rooms used for religious ceremonies. These, however, he strictly excluded.
447
18 July 4$
Moreover, when appraising this case, attention should be paid to the fact that the justification of the confiscation decree of 22 February 1941 displays remarkable reticence. The decree restricts itself to justifying the confiscation by the fact that on the one hand Henna badly needed room and that on the other hand the premises confiscated were not required for the purposes of the monastery. Tot a single word mentions or even suggests that criminal offenses had taken place in the monastery, as recorded in a police report of 23 January 1941,~ which is submitted to the Court. If this confiscation had been the result of a hostile attitude of Schirach toward the Church, we could have been sure that somehow or other reference would have been made to these criminal offenses to justify the confiscation. At Schirach's wish a monthly indemnification was paid to the clergy who had occupied some of the confiscated rooms, for which payment there existed no official obligation whatever.
Defendant Von Schirach's further behavior does not reveal any hostile attitude toward the Church, particularly if one considers, when judging this behavior, that during these years even a Reichsleiter was under strong pressure by the Reich Chancellery and by Bormann, and that at that time a considerable amount of courage was necessary to resist this pressure and carry on a policy in opposition to the official Berlin policy.
The witness Wieshofer of Vienna, who had the opportunity of watching Schirach's activities, confirmed before the Court that in Henna Schirach likewise strove to establish correct relations with the Church, that he was always willing to listen to any complaints of the Cardinal of Vienna and took severe measures against the excesses of individual members of the Hitler Youth or Hitler Youth leaders. In Vienna he thus displayed a policy toward the Church quite different from that which his radical predecessor Burokel had favored, and it is beyond doubt that ecclesiastical circles in Vienna and the whole of the Viennese population appreciated Schirach's attitude toward the Church. This is also confirmed by the witness Gustav Hoepken who was examined here and who, by order of Schirach, held regular conferences with a Vienna theologian, Professor Ens, in order to be able to inform the Defendant Schirach of the wishes of the Church and the differences which had arisen with ecclesiastical authorities. Unless he wished to expose himself to the most serious danger, Schirach could do no more under the prevailing political circumstances, which are described in the affidavit of Maria Hoepken, Document Book Schirach Number 3.
I now turn to another point of the Indictment, to the question of the concentration camps. The Prosecution has connected the defendant with concentration camps, although not in the Indictment but during the presentation of evidence; and the witness Alois Hollriegel,
448
18 July 46
who was questioned here, was asked in the witness box Whether Schirach had ever been inside the Mauthausen Concentration Camp. To this I should like to remark that the Defendant Von Schirach mentioned his visit to Mauthausen at his interrogation by the American Prosecution before the beginning of the Trial; it would, therefore, not have been necessary to have this visit confirmed again by the witness Hollriegel. He visited the Mauthausen Concentration Camp in the year 1942, not in 1944, as the witness Marsalek erroneously stated; the correct year, 1942, has been confirmed by the witness Hollriegel and also by the witnesses Hoepken and Wieshofer, from whom we heard that neither after 1942 nor at any other time did Schirach visit other concentration camps. The visit to Mauthausen in 1942 cannot implicate the defendant Schirach in the sense of his having known, approved, and supported all the conditions and atrocities in concentration camps. In, 1942 he saw nothing in Mauthausen which might have indicated such crimes. There were no gas chambers and the like in 1942. At that time mass executions did not take place at Mauthausen. The statements of the Defendant Von Schirach concerning his impression of this camp appear quite plausible, because the testimony of numerous witnesses who have been heard during the course of this Trial has confirmed again and again that on the occasion of such official visits, which had been announced previously, everything was carefully prepared in order to show to the visitors only that which need not fear the light of day. Maltreatment and torture were concealed during such official visits in the same manner as arbitrary executions or cruel experiments. This was the case at Mauthausen in 1942 and certainly also at Dachau in 1935, where Schirach and the other visitors were shown only orderly conditions, which at a superficial glance appeared to be better than in some ordinary prisons.
As a result, Schirach only knew that since 1933 there were several concentration camps in Germany where, as far as he knew, incorrigible habitual criminals and political prisoners were confined. However, even today Schirach is unable to believe that the mere knowledge of the existence of concentration camps is in itself a punishable crime, since he at no time did anything whatsoever to promote concentration camps, never expressed his approval of this institution, never sent anybody to a concentration camp, and would in any case never have been able to make any changes in this institution or to prevent the existence of concentration camps. Schirach's influence was always too small for that. As Reich Youth Leader, of course, he had nothing to do with concentration camps in the first place, and it was lucky for Schirach that in his entire Vienna Gau district there was not a single concentration camp. His relations with concentration camps were therefore limited to repeated attempts to have people released from them, and it is after
449
18 July 46
all significant that his sole visit to the Concentration Camp Mauthausen resulted in his exerting his influence to obtain the ultimate release of inhabitants of Vienna who were imprisoned there.
May it please the Tribunal, I do not want to go again into many details which have played a larger or smaller part in the presentation of evidence for the case of Schirach. In the interest of saving time I shall not deal more specifically with his alleged connection with Rosenberg or Streicher, nor with his alleged collaboration in the slave labor program, in which connection not even the slightest participation of the Defendant Schirach could be proved, nor with a telephone conversation which has been used by the Prosecution and which allegedly took place between one of the Viennese officials and an SS Standartenfuehrer regarding the compulsory labor of the Jews, about which Von Schirach knew nothing at all.
But I should like to insert a short remark about one subject which arose particularly in connection with the case of Rosenberg, that is, a brief explanation concerning the Hay Action by which thousands of children in the Eastern combat zone were collected and brought partly to Poland and partly to Germany. The apparent aim of this operation, as far as Schirach could see from the documents presented here, was to collect children who were in the zone of operations, that is, immediately behind the front and wandering around without their parents, with a view to giving them professional training and work so that they should be saved from physical and moral neglect.
The Defendant Von Schirach doubts whether this can be looked upon as a crime against humanity, or as a war crime; but one thing is certain, that the Defendant Von Schirach did not know anything of that affair at the time. He was not the competent authority. That entire affair was handled by Army Group Center in collaboration with the Ministry for the Eastern Occupied Territories, and, of course, it is quite plausible that neither the Eastern Ministry nor the Army Group Center saw fit to approach the Gauleiter of Vienna in order to get his approval of that action, or even to notify him about it.
The only thing which, a considerable time later, came to the attention of the Defendant Von Schirach and may have some bearing on that, the Hay Action, was an incidental report by Reich Youth Leader Axmann that so and so many thousand youths had been brought to the Junkers works at Dessau as apprentices.
The Defendant Von Schirach was anxious to clear up this matter in view of his former office as Reich Youth Leader, and he wishes to make it quite clear that even after leaving that office he would of course never have undertaken anything against the interests of youth.
450
18 July 16
May I add another remark here concerning the letter which the Defendant Von Schirach sent to Reichsleiter Bormann after the murder of Heydrich, in which he suggested reprisal measures to Bormann in the form of a terror attack upon an English center of culture? That letter was actually sent by the defendant to Bormann. He acknowledges it. I have to point out at the very beginning that fortunately the suggestion remained a suggestion, and it was never carried out. The defendant, however, has told us that at that time he was very upset by the assassination of Heydrich, and it was clear to him that a revolt of the population in Bohemia would necessarily lead to a catastrophe for the German armies in Russia, and in his capacity as Gauleiter of Vienna he had considered it his duty to undertake something to protect the rear of the German army fighting in Russia. And that explains that teletype to Bormann in 1942 (Document 3877) which, as I have already pointed out, fortunately was not acted upon.
May it please the Tribunal, I shall proceed with my statement, the middle of Page 26.
I shall not deal in detail with the Adolf Hitler Schools which were founded by Schirach, nor with the Fifth Column which was somehow, quite wrongly, connected with the Hitler Youth, although nothing definite could be charged to the defendant. I shall not go into either the repeated efforts on behalf of peace undertaken by the Defendant Schirach and his friend Dr. Colin Ross, nor shall I discuss the merits of the defendant with reference to the evacuation of children to the rural areas, which took millions of children from bomb-endangered districts during the war into more quiet Zones and thus saved their lives and health.
The Defendant Von Schirach has already talked about all these affairs in detail himself, and I should therefore like to refer to his own statements, which you will consider in your judgment.
As counsel for the Defendant Von Schirach, I shall discuss only one more problem here, namely Schirach's opinion and attitude concerning the Jewish question. Schirach has admitted here on the witness stand that he has been a convinced National Socialist, and thus also an anti-Semite from his earliest youth. He has also made clear to us what he understood by anti-Semitism during those years. He thought of the exclusion of the Jews from civil service and of the limitation of Jewish influence in cultural life and perhaps also in economic life, to a certain extent. But that was all which in his opinion should be undertaken against the Jews, and this was in accordance with the suggestion which he had already made as leader of the students' organization for the introduction of a quota system for students. The defendant's decree concerning the treatment of Jewish youth is, for example, also important in establishing his
451
18 July 46
attitude (Schirach Document Number 136). This is a decree in which he expressly orders that Jewish youth organizations should have the right and the opportunity to practice freely within the limitations imposed upon them. It says that they were not to be disturbed in their own life.
"In its youth the Jewish community shall already today take up that secluded but internally unrestrained special position which at some future time the entire Jewish community will be given in the German State and in German economy."
Those are the very words of that decree. Obviously Schirach was not at all thinking about pogroms, bloody persecutions of the Jews, and the like; rather did he believe at that time that the anti-Semitic movement had already achieved its aim by the antiJewish legislative measures of the years 1933-34, thereby eliminating Jewish influence as far as it seemed unhealthy to him. He was therefore surprised and very alarmed when the Nuremberg Laws were promulgated in 1935, which formulated a policy of complete exclusion of the Jewish population and carried it out with barbaric severity. Schirach in no way took part in the planning of these laws; he has nothing whatsoever to do with their content and their formulation. That has been proved here.
When on 10 November 1938 he heard about the pogrom against the Jews and about the brutal excesses which were staged by Goebbels and his fanatic clique his indignation became known throughout the entire youth movement. The evidence proved this also. We have heard from the witness Lauterbacher how Schirach reacted to the report of these excesses: He immediately called his assistants together and gave them the strictest orders that the Hitler Youth must be kept out of such actions under all circumstances. He at once had the leaders of the Hitler Youth in all German cities notified by telephone to the same effect and warned every subordinate that he would hold him personally responsible if any excesses should occur in the Hitler Youth.
But even after November 1938 Schirach never considered the possibility that Hitler was contemplating the extermination of the Jews. On the contrary, he only heard it mentioned that the Jews were to be evacuated from Germany into other states, that they should be transported to Poland and settled there, at worst in ghettos, but more probably in a closed settlement area. When Schirach in July 1940 received Hitler's order to take over the Gau of Vienna, Hitler himself also talked to him along the same lines, namely, that he, Hitler, would have the Jews brought from Vienna into the Government General; and even today Schirach has no doubt that Hitler himself was not thinking about the so-called
452
18 July 46
"final solution" of the Jewish question at that time, 1940, in terms of the extermination of the Jews. We learn from the Hossbach minutes and other evidence of this Trial that Hitler was planning the evacuation of Poland already in 1937, but that he decided on the extermination of the Jewish people only in 1941 or 1942.
Schirach had nothing at all to do with the evacuation of the Jews from Vienna, as is alleged by the Prosecution; the execution of this measure was exclusively in the hands of the Reich Security Main Office and the Vienna branch of that office, and, it is known that SS Gruppenfuehrer Brunner of Vienna has in the meantime been sentenced to death for that very reason. · The only order which Schirach received and carried out concerning the Viennese Jews was to report to Hitler in 1940 how many Jews there were still left in Vienna, and he made this report in a letter of December 1940 where he gave the figure of the Viennese Jews for 1940 as 60,000. It will be remembered that Minister Lammers answered this letter from the Defendant Schirach by a letter dated 3 December 1940 (1950-PS), which shows with all clarity that it was not Schirach who ordered the evacuation of the Viennese Jews to the Government General but Hitler himself, and that again it was not Schirach who carried out this measure but the Reichsfuehrer SS Himmler, who delegated this task to his Vienna office. It must therefore be stated here categorically that Schirach is in no way responsible for the deportation of the Jews from Vienna; he did not carry out this program and he did not initiate it; when he came to Vienna in the summer of 1940 as Gauleiter, the majority of the Viennese Jews had already voluntarily emigrated or had been forcibly evacuated from Vienna, a fact which was confirmed by the Defendant Seyss-Inquart. The remaining 60,000 Jews who were still there at the beginning of Schirach's time in Vienna were deported from there by the SS without his participation and without his responsibility.
Schirach did make the well-known speech in Vienna in September 1942, where he stated that every Jew working in Europe was a danger to European culture. Schirach furthermore said in this speech that if it was desired to reproach him with the fact that he had deported tens of thousands of Jews into the Eastern ghetto from this city, which had once been the metropolis of Judaism, he would but answer that he considered this an active contribution to European culture. That is how this passage reads. Schirach has openly and courageously admitted that he actually expressed himself in this manner at that time, and expressed his regret by stating:
"I cannot take back this wicked statement; I must take the responsibility for it. I spoke these words, which I sincerely regret."
453
18 July 46
Should the Tribunal see in these words a legally punishable crime against humanity, Schirach will have to make atonement for this single anti-Semitic remark which can be attributed to him, though it was merely a spoken word and did not have any harmful result. Schirach's attitude in this respect does not exempt the Tribunal from its duty to verify carefully what Schirach actually did; furthermore, under what circumstances he made this isolated remark, and finally whether Schirach also made any other spiteful remarks against the Jews or committed any malicious acts against the Jewish race as a whole.
The foremost question is: What did Schirach really do? The reply to this, emerging from the revelations of this Trial, can only be: Apart from the fact that he made this isolated anti-Semitic remark in his speech in Vienna in September 1942, he has not committed any crime against the Jews. He had no competence in the question of the deportation of the Vienna Jews, he did not participate in it at all, and having too little power he could not have prevented it in any case. It is just as the Prosecution incidentally stated: He boastfully attributed to himself an action which in reality he had never committed and, in view of his entire attitude, he never could have committed.
What, however prompted Schirach to make this remark in his Henna speech? How did he come to attribute to himself a deed and charge himself with an action which he had obviously never committed? Here too the answer is given by the results of the evidence in the Trial: It demonstrates what a very difficult position Schirach had in Vienna. Without giving any reason, Hitler dismissed him as Reich Youth Leader, presumably because he no longer trusted him. From year to year Hitler's fear was growing lest the young people might stand behind Schirach and become alienated from him, Hitler, to the same degree that the black wall of his SS was isolating him from the people. Hitler possibly saw in his Youth Leader the personification of the coming generation which thought in world-wide terms, whose feelings were human and who felt themselves more and more bound to those precepts of true morality which Hitler had long ago jettisoned for himself and his national leadership, because they had long since ceased to be concepts of true morality for him but mere slogans of a meaningless propaganda. This feeling of Hitler's may have been the deeper reason why he dismissed Schirach as Youth Leader suddenly in the summer of 1940, without word of explanation, and put him in the especially difficult position of Gauleiter in Vienna, the city which he, Hitler, hated from the bottom of his heart, even while he spoke of his "Austrian fatherland."
454
18 July 46
In Vienna Schirach's position was extremely complicated. Wherever he went he was shadowed and spied upon, his administrative activity there was sharply criticized, he was reproached for neglecting the interests of the Party in Vienna, for almost never being seen at Party meetings, and for not making any political speeches. I refer in this connection to the affidavit of Maria Hoepken, Schirach Document Book Number 3. The Berlin Party Chancellery accepted any complaints the Vienna Party members made about their new Gauleiter with satisfaction, and this fact alone can explain the unfortunate speech Schirach made in September 1942, which was diametrically opposed to the attitude he had always maintained concerning the Jewish question. After the interrogation of the witness Gustav Hoepken here in this courtroom there can be no doubt as to how the Vienna speech came about, for it reveals that Schirach had expressly charged his press officer Gunther Kaufmann to emphasize this particular point when telephoning his report of the Vienna speech to the German News Agency in Berlin, because he, Schirach-I quote-"had to make a concession to Bormann in this respect." Schirach himself stressed this point in the course of his interrogation with the statement that out of false loyalty he had morally identified himself with these acts of Hitler and Himmler. This ugly speech which Schirach made in September 1942 is, however, in another sense a very valuable point in favor of Schirach: He speaks of a "transfer of the Jews to the ghettos of the East." Had Schirach known at that time that the Viennese Jews were to be sent away in order to be murdered in an extermination camp, he would in view of the purpose of this speech doubtless not have spoken of an Eastern ghetto to which the Jews had been sent, and would have reported the extermination of the Viennese Jews; but even at this time, in the autumn of 1942, he never had the slightest suspicion that Hitler proposed to murder the Jews. That he would never have- approved and never accepted; his anti-Semitism at no time went so far.
Schirach also frankly stated here that at that time he approved of Hitler's plan to settle the Jews in Poland, not because he was inspired by anti-Semitism or hatred of the Jews, but by the reasonable consideration that in view of existing conditions it was in the Jews' own interest to leave Vienna and be taken to Poland, because the Jews would not in the long run have been able to stay in Vienna under the Hitler regime without being exposed to increasingly serious persecution. As Schirach declared on 24 May 1946, considering Goebbel's temperament it always seemed possible that incidents like those of November 1938 might be repeated from one day to the other, and under such conditions of legal insecurity he could not visualize the existence of the Jewish population in Germany.
455
18 July 46
He thought that the Jews would be safer in a restricted settlement area of the Government General than in Germany and Austria, where they were exposed to the whims of the Propaganda Minister who, indeed, had been the main supporter of radical anti-Semitism in Germany. Schirach was well aware of this fact. He could not shut his eyes to the realization that the drive against the Jews in Germany obviously became more drastic, more fanatic, and more violent every day. This conception of the Vienna speech of September 1942 and the true cause of its genesis coincide with the statements of the Defendant Schirach at the meeting of the city councillors of Vienna on 6 June 1942 (Document Number 3886-PS), to the effect that in the late summer and autumn of that year all Jews would be expelled from the city, and likewise with the file note of Reichsleiter Bormann of 2 October 1940 (USSR-142), according to which, at a social meeting at Hitler's home, Schirach had remarked that he still had more than 50,000 Jews left in Vienna which the Governor General of Poland must take over from him. This remark was caused by Schirach's embarrassing situation at that time. Hitler, on the one hand, kept insisting on the expulsion of the Jews from Vienna, while on. the other hand Governor General Frank was reluctant to receive them in the Government General. This disagreement was evidently the reason for Schirach's discussing this fact at the above-mentioned meeting on 2 October 1940, in order to avoid renewed reproaches by Hitler. Personally he was in no way interested in the removal of the Viennese Jews, as was proved by the testimony of the witness Gustav Hoepken regarding the conference between Schirach and Himmler in November 1943.
I should like to add a word here concerning that discussion. During that conference with Himmler, Schirach presented the point of view that the Jews might be left in Vienna, especially since they were wearing the Star of David anyway. That has been testified to by the witness Hoepken as being a statement made by Schirach during the conversation. However, Hitler demanded the expulsion of the Jews from Vienna and Himmler insisted on having it carried out.
The Prosecution thought it possible to charge Schirach with having made another malicious anti-Semitic remark in connection with a speech which he supposedly made in late December 1938, certainly before the spring of 1939, at a students' meeting at Heidelberg. Across the Neckar River he pointed to the old university town of Heidelberg where several burned-out synagogues were the silent witnesses to the anti-Semitic activities of the students of Heidelberg. I refer to the affidavit of Ziemer, in which "the stout little Reich Student Leader"-as it is stated literally-is said to have approved and commended the pogroms of 9 November 1938 as a
456
18 July 46
heroic act. This charge, as already mentioned, is supported by the declaration under oath of a certain Gregor Ziemer. However, there can be no doubt that this statement of Ziemer's is false. Ziemer never belonged to the German student movement or the Hitler Youth, and obviously was not personally present at the student assembly in question. The affidavit does not state from what source he is supposed to have obtained his knowledge. However, that his claim is false is already proved by his description of physical appearance when he speaks of a "stout little student leader"; for this does not at all resemble Schirach. Perhaps it would to some extent apply to his successor, who was Reich Student Leader at the end of 1938, but it certainly was not Schirach. As is known, he had already in 1934 given the office of Reich Student Leader back into the hands of the Fuehrer's deputy, after he himself had in the meantime been appointed Reich Youth Leader. Schirach did not make a speech at the end of 1938 or at any other time before Heidelberg students, and by the affidavit of the witness Maria Hoepken (Schirach Document Book Number 3) it has been clearly proved that at the time stated Schirach was not in Heidelberg at all. Schirach has also confirmed this under oath and his own statement can lay claim to credibility because he has not whitewashed anything for which he was responsible, and he has not falsely denied anything, but on the contrary has accounted for all his actions with courage and truthfulness during his entire examination.
Still another fact decisively confirms the claim that the Ziemer affidavit is untrue, at any rate in regard to the person of Schirach. In the presentation of evidence it happened to be stated by chance how Schirach reacted to the November pogroms of the year 1938. The witness Lauterbacher has informed us here, as already mentioned at another point, that Schirach on 10 November 1938 condemned most vehemently the events of 9 November 1938 in the presence of his co-workers, and declared that he felt ashamed for the others and for the whole Party. The 9th of November 1938, Schirach said, would go down in Germany history as a unique disgrace of German culture of which we would never be able to cleanse ourselves. Such a thing might have happened among an uncivilized people, but it should never have occurred among us Germans who consider ourselves to be a highly civilized people. The youth leaders, Schirach explained at that time, had to prevent such excesses under all circumstances. He did not wish to hear anything like this about his own organization, either now or in the future. The Hitler Youth must be kept outside such things under all circumstances. These are sworn statements by the witness Hoepken. By a telephone message from Berlin, Schirach had all the offices of the Hitler Youth informed in the same terms. If Schirach in November 1938 condemned and criticized in such an extremely sharp manner the
457
18 July 46
events of 9 November 1938, it is impossible for him to have praised at about the same time the bloody acts which had been committed and thus to have incited the Heidelberg students, and the question therefore arises as to why not a single participant at that student meeting in Heidelberg was brought here as a witness instead of one who could only testify from hearsay. Incidentally, the Prosecution did not revert to this alleged Heidelberg speech during cross-examination, thereby acknowledging Schirach's own presentation of the facts to be correct.
It is also a very significant fact that the Hitler Youth did not participate in the excesses of 9 November 1938, nor did they commit any excesses of this sort either before or afterward. The Hitler Youth at that time was the strongest Party organization. It comprised some seven or eight million members, and in spite of that not one single case has been proved where the Hitler Youth participated in such crimes against humanity, although its members were mainly of an age which, according to~ experience, is only too easily tempted to participate in excesses and acts of brutality. The only exception which has been claimed so far concerns the testimony of the French woman Ida Vasseau, who is said to be the manager of an Old People's Home in Lemberg and is supposed to have claimed, according to the report of the Commission, Document Number USSR-6, that the Hitler Youth had been given children from the ghetto in Lemberg whom they used as living targets for their shooting practice. This single exception, however, which so far has been claimed but not proved, could not be cleared up in any way, particularly not in respect of whether members of the Hitler Youth had really been involved. But even if there had been such a single case among the eight million members during 10 or 15 long years, this could not in any way prove that Baldur van Schirach had exercised an inciting influence, and that, if I may add this here, at a time when he was no longer Reich Youth Leader.
THI PRESIDENT: We will adjourn now.
LA recess was taken.1
DR. SAUTER: If the Tribunal please, I shall proceed from Page 36 of my statement. Let us just examine all the speeches and articles which Von Schirach wrote as Reich Youth Leader, and which are in the possession of the Tribunal in the Schirach document book. They extend over a long period of years, yet they do not contain a single word inciting to race hatred, preaching hatred of Jews, exhorting youth to commit acts of violence, or defending such acts. If it has
468
18 July 46
been possible to keep the members of the Hitler Youth, who numbered millions, clear of such excesses, this fact also goes to prove that the leaders endeavored to imbue the younger generation with a spirit of tolerance, love of one's neighbors, and respect of human dignity.
Just what Von Schirach thought about the treatment of the Jewish question is clearly evident from the scene with occurred in the spring of 1943 at Obersalzberg, which is also described in the affidavit of the witness Maria Hoepken (Document Book Schirach Number 3). In this case I refer to the scene where Schirach had an eyewitness describe to Hitler at his home at Obersalzberg how he had witnessed with his 'own eyes at night from a hotel window in Amsterdam the manner in which the Gestapo deported hundreds of Dutch Jewesses. Schirach himself could not dare at the time to bring such matters to Hitler's attention; a decree by Bormann had expressly prohibited the Gauleiter from doing this. Schirach therefore tried through the mediation of a third person, who had been a witness himself, to gain Hitler's approval of a mitigation in the treatment of the Jewish question. No success was achieved; Hitler dismissed it all bluntly with the remark that this was all sentimentality. Because of this intervention on behalf of the Dutch Jews the situation of the Defendant Von Schirach had become so critical that he preferred to leave Obersalzberg immediately, early in the morning of the following day, and from that time on, Hitler was in principle no longer accessible to Schirach.
This intervention of Schirach for a milder treatment of the Jewish question perhaps also contributed to the fact that Hitler, a few months later, in the summer of 1943, seriously considered having Schirach arrested and brought before the Peoples' Court, for the sole reason that Schirach had dared, in a letter to Reichsleiter Bormann, to describe the war as a national disaster for Germany.
In any case all this shows that Schirach, as much as he was able, advocated moderation in the Jewish question in a manner which endangered his own position and existence. In spite of the fact that he was an anti-Semite-and just because of this it deserves attention-he withstood all pressure from Berlin and refused to have an anti-Semitic special edition published in the official journal of the Hitler Youth, while he had published his own special editions for an understanding with England and France and for a more humane treatment of the Eastern nations. It is no less worthy of consideration that Schirach, in conjunction with his friend Dr. Colin Ross, endeavored to attain the emigration of the Jews into neutral foreign countries in order to save them from being deported to a Polish ghetto.
459
13 July 46
The Prosecution has endeavored to substantiate its allegation that the Defendant Von Schirach bears a certain share of the responsibility for the pogroms against Jews which occurred in Poland and Russia, by trying to use against him the so-called "Reports on Experiences and Situation," which were regularly sent by the SS to the Commissioner for Defense of the Reich in the Military Administrative District XVII. In fact it must be said that if-and I emphasize, if-Schirach had at that time had cognizance of these regular "Reports on Experiences and Situation by the Operational Groups (Einsatzgruppen) of the Security Police and the Security Service in the East," then this fact would indeed constitute for him a grave moral and political charge. Then he could not be spared the accusation that he must have been aware of the fact that, apart from the military operations in the East, extremely horrible mass murders of Communists and Jews had also taken place. The picture of Von Schirach's character which we have so far, who was described even by the Prosecution as a "cultured man," would be tainted very materially if Von Schirach had actually seen and read these reports. For then he would have known that in Latvia and Lithuania, in White Ruthenia an* in Kiev, mass murders had taken place, quite obviously without any legal proceedings of any kind and without sentence having been passed.
What has, however, actually been proved by the evidence? The reports referred to were sent, among dozens of other offices, also to that of the "Reich Commissioner for Defense in Military Administrative District XVII" and, moreover, with the specific address "attention of Government Councillor Dr. Hoffmann" or "attention of Government Councillor Dr. Fischer." From this style of address and from the way in which these reports were initialed at the office of the "Commissioner for Defense of the Reich," it can be established beyond question that Schirach did not have an opportunity of seeing these reports and that he obtained no knowledge of them in any other way either.
Schirach, it will be remembered, held three extensive offices in Vienna: as Reich Governor (Reichsstatthalter) and Reich Defense Commissioner he was the chief of the whole State administration; as Lord Mayor he was the head of the municipal administration; and as Gauleiter of Vienna he was the head of the local Party machinery. It is only natural that Schirach could not fulfill all these three tasks by himself, especially since in 1940 he had come from a completely different set of tasks, and first had to make himself acquainted with the scope of work in State administration and in municipal administration. He therefore had a permanent deputy for each of his three tasks, and for the affairs of the State administration, which interests us here, this was the Regierungsprasident
460
18 July 46
of Vienna. This official, Dr.Delbrugge, was to handle the current affairs of the State administration completely on his own initiative. Schirach occupied himself only with such matters of State administration as were forwarded to him by his permanent deputy, the Regierungsprasident, in written form, or about which his deputy reported to him orally.
Now, if this had been the case with regard to the aforementioned "Experience and Situation Reports," then this would have somehow been noted on the documents in question. However, on the "Experience and Situation Reports of the SS" submitted here there is not a single note which indicates that these reports were shown to the Defendant Von Schirach or that he was informed about them. This will readily be understood without further explanation because, after all, the experiences which the Police and the SD had accumulated in the partisan struggles in Poland and Russia were completely inconsequential for the Vienna administration; therefore there was not the least cause to inform the Defendant Baldur von Schirach of these reports in any way, since he was very much overburdened anyhow with administrative matters of all kinds.
This conclusion, Gentlemen, rests primarily not only on the testimony under oath of the defendant here in Court, but also on that of the two witnesses Hoepken and Wieshofer, who, one as chief of the Central Office and the other as adjutant of the defendant, were able to give the most exact information about conditions in Vienna. It is certain that these "Experience and Situation Reports" never came into the distribution center of the Central Office in Vienna, but only into the distribution center of the Regierugsprasident, and that Hoepken, as chief of the Central Office, as well as Wieshofer, as adjutant of the defendant, likewise had no previous knowledge of these reports but saw them for the first time here in the courtroom during their questioning. And I would like to insert here that the two officials of the Defendant Von Schirach who were mentioned by name, Dr. Fischer and the other one, were entirely unaware of them. In any case the result, as has been proved by the file notes which are on the documents, is that Schirach did not have any knowledge whatsoever of these reports, and that he is not coresponsible for the atrocities described therein. and therefore cannot be criminally charged on the basis of these activity reports.
May it please the Tribunal, in judging the personality of Schirach, his behavior during the last weeks in Vienna is also not without importance. For Schirach it was a matter of course not to carry out the various insane orders which came from Berlin at that time. He absolutely condemned the lynching of enemy aviators which was ordered by Bormann, and likewise the order to hang defeatists
461
18 July 46
without mercy, regardless of whether they were men or women. His summary court was never even in session, and did not pronounce a single death sentence. No blood is on his hands. On the other hand, for example, he did everything in order to protect from the excited mob enemy aviators who had made an emergency landing and again, as we have heard from the witness Wieshofer, he immediately sent out his own car in order to bring to safety American aviators who had parachuted. Thereby he again placed himself in deliberate opposition to an order of Bormann that such aviators were not to be protected against lynching by the civilian population. Nor did he pay any attention to the order that Vienna was to be defended to the last man, or that in Vienna bridges and churches and residential sections were to be destroyed, and he emphatically refused compliance with the order to form partisan units in civilian clothing or to continue the hopeless struggle in a criminal manner with the aid of the Werewolf organization. He turned down such demands out of his sense of duty, all the more since this would have caused him to violate international law.
The characterization of the Defendant Von Schirach would be incomplete if we were not also to recall at this moment the declaration which he deposed here on the morning of 24 May 1946. I am speaking of that declaration in which he described Hitler as an unmitigated murderer, here before the whole German people and before the entire world public. Already last year Schirach made declarations which show his feeling of responsibility and his preparedness to answer fully for his actions and those of his subordinates. This waste case on 5 June 1945, for example, when he was hiding in the Tyrol and heard over the radio that all Party leaders were to be brought before an Allied court. Schirach thoreupon gave himself up immediately, and in his letter to the American local commander stated he was doing so in order to protect other people, who had only executed his orders, from being called to account for his actions. He surrendered voluntarily, although the British radio had already announced the news of his death. and although Schirach could have hoped to remain undiscovered in his hiding place. This behavior deserves consideration in judging the personality of a defendant.
The same feeling of responsibility was then shown by Schirach in the autumn of 1945 when he was heard by the Prosecution. He believed at that time that his successor Axmann had been killed, as he had been reported to be dead. In spite of this, Schirach did not attempt to put the responsibility on his successor; on the contrary, he expressly stated that he was assuming full responsibility also for the time his successor was in office, as well as for what had been done under his successor in the Reich Youth Leadership. The
462
18 July 46
keystone in this line of conduct is furnished by the statement which Schirach made here on 24 May 1946, which went out from this courtroom to the whole world, to all the German lands, down to the last farm, down to the last workman's hut.
May it please the Tribunal: Any man may err, he may even make mistakes that he later may not understand himself. Schirach also has erred; he brought up the younger generation for a man whom he for many years held to be unimpeachable and whom he must now brand as a diabolical criminal. In his idealism and out of loyalty he remained faithful and true to his oath to a man who deceived and cheated him and the youth of Germany and who, as we learned here from Speer, up to his last breath placed his own interests higher than the existence and the happiness of 80 million people.
Schirach is perhaps the one defendant who not only clearly realized his mistakes, however they may be regarded, but who confessed to them most honestly and who through his plain speaking prevented the creation of a Hitler legend in the future. Such a defendant must be given consideration for trying to repair as far as he can the damage which he caused in good faith.
Schirach had tried to do that; he took pains to open the eyes of our people about the "Fuehrer" in whom, together with millions of Germans, he saw for many years the deliverer of the fatherland and the guarantor of its future. He publicly rendered an account which the German people are entitled to ask of every subleader since Hitler committed suicide. He did this so that foreign countries could see how the conditions of the last six years had come about in Germany and just who was responsible for. them.
But above all, the former Youth Leader, in making his statement on 24 May 1946, desired to tell the youth of Germany openly that so far, quite unknowingly and with the best of intentions, he had led them astray and that now they must take another path if the German people and German culture are not to perish. In doing so Schirach did not think of himself nor of his life's work which had been destroyed; he was thinking of the youth of today, which not only faces the ruins of our cities and dwellings, but also wanders about among the wreckage of its former ideals; he was thinking of German youth, which is in dire need of new guidance and which must base its future existence on another foundation.
Schirach hopes that the entire youth of Germany has heard his words. What was particularly valuable in his confession of 24 May 1946 was his assurance that he alone takes the guilt for youth, just as he formerly assumed command. If this point of view is acknowledged as being right, and if the necessary conclusions are drawn
463
18 July 46
therefrom, this would be a valuable result of this Trial for our German youth.
May it please the Tribunal, I am now coming to the end of my survey of the case of Von Schirach. In the treatment of this case I desisted from making general statements, and especially those of a political nature. Rather, I confined myself to the appreciation of the personality of the defendant, his actions and his motives.
In this connection I should like to add, to complete the picture, that these considerations and this appreciation by the Defense have shown that the Defendant Von Schirach is not guilty in the sense of the Indictment and cannot be punished, for he did not commit a punishable act, since you as judges will not judge political guilt but rather criminal guilt in the sense of the penal code.
At the end of my remarks in the case of Von Schirach I should like to have the privilege of making a few general statements, not immediately connected with the personality of Schirach, but suggesting themselves to a German defense counsel at the end of this Trial.
May it please the Tribunal, you are the highest tribunal of our times; the power of the whole world stands behind you; you represent the four mightiest nations on earth; hundreds of millions of men, not only in the defeated countries, but also in the victorious nations listen to your opinions and anxiously await your judgment, ready to be taught by you and to follow your advice.
This high authority affords you, Gentlemen, an opportunity of doing much good through your verdict and particularly through the statement of the basis for the judgment, in order that out of today's disaster the way to a better future may be found for the benefit of your own people and for the good of the German people.
Today, Gentlemen of the Tribunal, Germany lies beaten to the ground, a poor people, the poorest of all. The German cities are destroyed; German industry is smashed to pieces; on the shoulders of the German people rests a national debt representing many times the entire national wealth and spelling want and poverty, hunger and slavery, for many generations for the German people if your peoples do not help us. The findings supporting your verdict will in many respects point the way and give the help needed to emerge from this desperate plight.
To be sure, for reasons of sentiment it may be hard for you to consider this point of view and to take it into account when you think of the misfortune which the past six years also brought to your own countries. It becomes doubly hard, because for months this Trial has revealed nothing but crimes, crimes committed for a great number of years by a German tyrant misusing
464
18 July, 46
Germans and the name of this same German people of whose future you as judges are now asked to think benevolently and whom you are now required to help.
May it please the Tribunal: Hitler is dead-with him his tools who in these years committed crimes without number tyrannizing Germany and nearly all of Europe and disgracing the German name for generations to come. The German people on the other hand live, and must be allowed to live if half a universe is not to fall into ruins.
With this Trial and during this epoch, the German people are undergoing a very serious operation. It must not bring death; it must bring recovery. Your verdict can and must make a contribution in that direction, so that in the future the world may not see in every German a criminal, but revert again to the concept of Professor Arnold Nash of the University of Chicago, who a few days ago, when questioned about the purpose of his present trip to Europe, replied: "Every scientist has two fatherlands, his own and Germany." These words ought to be a warning also for all of those irresponsible critics who even today see it as their task, with propaganda means of every sort, so stir up feeling against everything German and to tell the world that at least every other person in Germany is a criminal.
You, as impartial judges, will not wish to forget one thing: There always was and there still is today another Germany, a Germany that knows industriousness and economy; a Germany of Goethe and Beethoven, a Germany that knows loyalty and honesty and other good qualities which in past centuries were proverbial for the German character. Believe me, Gentlemen of the Tribunal, in this epoch, when Germany is regaining consciousness as after a severe illness, as she proceeds to rebuild a better future from the ruins of an evil past, a future for her youth which has no part in the crimes committed, at this time some 70 or 80 million German people are looking to you and are awaiting from you a verdict which will open the way for the reconstruction of German economy, the German spirit, and true freedom.
You are, Gentlemen, truly sovereign judges, not bound by any written law, not bound to any paragraph, pledged to serve your conscience only, and called by destiny to give to the world simultaneously a legal order which will preserve for future generations that peace which the past was unable to preserve for them. A wellknown democrat of the old Germany, the former Minister Dr. Diltz, said in a recent article on the Nuremberg Trial: In a monarchist state justice would be administered in the name of the king; in republics courts would pronounce their rulings in the name of
465
18 July 46
the people; but you, the Nuremberg Tribunal, should administer Justice in the name of humanity.
It is, indeed, a wonderful thought for the Court, an ideal aim, if it could believe that its verdict could in fact make real the precepts of humanity, and that it could prevent Crimes against Humanity for all time. But in certain respects this would still remain an unsteady foundation for a verdict of such magnitude as confronts you, because ideas on what humanity demands or prohibits in individual cases may vary, depending upon the epoch, the people, the party concepts according to which one judges.
I believe you may find a reliable foundation for your verdict when you revert to a maxim which has endured throughout the centuries and which certainly will remain valid in ages to come: Justitia est fundamentum regnorum.
Thus the German people, and with them the entire world, await from you a judgment which will not just be hailed today by the victor nations as the final victory over Germany, but which history will recognize as proper; a verdict in the name of justice.
THE PRESIDENT: I call on Dr. Servatius for the Defendant Sauckel.
DR. SERVATIUS: Mr. President, may it please the Tribunal:
The Defense of the Defendant Sauckel has, in the first place, to deal with the charge of 'Slave labor." What is slave labor?
One cannot accept this as an established term comprising all the occurrences which, in bewildering abundance, are charged against the Defendant Sauckel under the heading "slave labor." Particularly, those actions ought first to be examined from a legal point of view. The legal basis for this examination is the Charter. However, this Charter does not say what is to be understood by "slave labor" or by "deportation." Therefore, these concepts must be clarified by interpretation. Article 6 of the Charter deals in two passages and from two different points of view with deportation and slave labor. Deportation is designated both a war crime and a crime against humanity, and forced labor appears as "slave labor" under the heading of War Crimes, and as "enslavement" under the heading of Crimes against Humanity.
The question of under what heading the mobilization of labor by the Defendant Sauckel should fall is of decisive importance; if it is a war crime, then it should be judged exclusively under martial law. If it is a crime against humanity, then the latter presupposes the commission of a war crime or of a crime against peace.
It follows therefrom that the deportation mentioned in Article 6(b) cannot be the same thing as deportation according to
466
18 July 46
Article 6(c), nor can forced labor according to Article 6(b) be identical with forced labor under Article 6(c). The difference between the two kinds must be found in...
THE PRESIDENT lInterposing.7: That paragraph of your speech which is in English on Page 2, the second paragraph:
"It follows therefrom that deportation mentioned in Article 6(b) cannot be the same as deportation according to Article 6(c)..." is not altogether clear to the Tribunal. Could you make it clearer?
DR.SERVATIUS: In Article 6(c) we deal with Crimes against Humanity, whereas in Article 6(b) we deal with War Crimes. In both articles the expressions deportation and forced labor are used, but there must be some differentiation, and my examination is directed at establishing this difference more exactly. I believe, Mr. President, that my further statements will make this clearer than it has heretofore been.
I turn now to the terminology used in the Charter. I was talking of the difference between the two kinds of slave labor and deportation. The difference between the two kinds is to be found in the fact that something has to be added to the war crimes which violates the rules of humanity.
The correctness of this interpretation may also be recognized in the terminology of the Charter, however fluctuating it may be. For instance, the Russian text for deportation as a war crime chooses the word uvod, which means only removal from a place, whereas, on the other hand, it uses for crimes against humanity of the same nature the technical expression ssylka, by which penal deportation under the rule of the czars is understood as denoting deportation in the sense of penal deportation.
THE PRESIDENT: The French is not coming through. Will you just wait a minute, there is some difficulty with the French translation, Dr. Servatius. The Tribunal must adjourn.
MARSHAL: The Court will remain adjourned until a quarter to two.
[The Tribunal recessed until 1345 hours.]
467
18 July 46
Afternoon Session
DR. SERVATIUS: I was speaking of the terminology of "deportation" in the Russian text. I pointed out the distinction between the word uvod meaning only transportation, and ssylka meaning a deportation as a form of punishment. From that one may conclude that deportation from the occupied territories for the purpose of work can only be regarded as a war crime, while it becomes a crime against humanity when assuming the penal character of a transportation of prisoners.
However, the question arises whether, beyond this, according to the Charter any removal of the population is punishable as a war crime, regardless of whether it occurs for allocation of labor or for other reasons. According to the text of the Charter, the latter seems at first sight to be the case, since it renders punishable "removal for slave labor, or for any other purposes." Upon closer examination, however, it becomes evident that this rule cannot be meant in such a sense, as there are cases in which a removal is not only consistent with international law but even becomes imperative.
Accordingly, the Charter could only be understood to mean that the punishable act does not consist of plain "removal" but comprises the composite concept '`removal for slave labor" and "removal for any other purpose." The clause, "or for any other purpose," should be understood so as to mean only that an illegal purpose equivalent to slave labor exists. If removal of any kind was to have been made punishable, then the qualifying addition "for slave labor or for any other purpose" would be contradictory to common sense. This definition is important for the Defendant Sauckel, as otherwise proof of deportation classified as a war crime would be evident from the acts admitted by him.
Just as for the various kinds of deportation, the difference between the kinds of slave labor, according to the Charter, must be clarified. Here, too, a clue to the interpretation is provided by the terminology of the different languages, though not because of their clarity and consistency but by the very opposite:
The English version speaks of "slave labor" as a war crime and of "enslavement" as a crime against humanity; the French version states travaux forces and reduction en esclavage, the Russian version accordingly rabsivo (slavery) and poraboshtshenie (enslavement). It is not discernible how the terns chosen differentiate in ret Basing upon the fact that labor inconsistent with laws of humanity must be carried out under more severe conditions than other labor and assuming "slave labor" to be the severest forms of labor, it will be seen that no definition can be derived from this
468
18 July 46
terminology of the Charter and that more of an ethical discrimination and stigmatization is intended.
Accordingly an objective division of the kinds of labor should be carried out independent of the terminology by considering exclusively the degree of severity of labor conditions. If one tries to analyze the terminology used, one finds the designation "enslavement," esclavage) and poraboshtshenie for the inhuman form of labor, whereas the labor not inconsistent with laws of humanity is called "forced labor," travaux forces, and prinudidjenaja rabota. Slave labor ("slave labor," travaux forces, and rabstvo) consequently is the general term comprising both kinds.
What does this definition mean for the defense of the Defendant Sauckel? He admits having negotiated "compulsory labor" in the form of obligatory labor which, as stated before, has been termed "slave labor" in general. He denies, however, having demanded "slave labor," which might be looked upon as inhuman labor, in other words, enslavement. A different standard applies, just as for deportation, to these two categories; "obligatory labor" is only a war crime and must be judged according to the rules of war; crimes against humanity, as I already stated above in connection with deportation as a crime against humanity, bear the additional characteristics of being connected with war crimes or crimes against peace. If it can be proven that the mobilization of manpower as ordered by the Defendant Sauckel was permitted by the rules of war, then the same act cannot be held to be a crime against humanity.
The Indictment, too, has made a difference as to the kinds of labor. It has treated, under Paragraph 3, Section VIII (H), as a separate war crime under the title of "Conscription of Civilian Labor," the mobilization of manpower as directed by the Defendant Sauckel, which I shall call "regulated labor mobilization," and mentions only "forced labor." The French version speaks here of travaux forces and uses terms such as les obligerent 2 travailler and mis en obligation; the Russian version follows this and also speaks only of "compulsory labor" as prinuditjeluaja rabota but does not refer to this as being slave labor.
The Defendant Sauckel does not deny the facts taken here as a basis, but I shall submit the legal reasons which justify this mobilization of labor, and I shall prove that it does not involve any war crime that would break international law.
The rules of international law are authoritative in determining the question whether "regulated labor mobilization" is a war crime. The Charter cannot prohibit what international law permits in wartime. Such precepts of international law are laid down in the agreements on the rules of war and in the general legal principles and usages as applied by all states.
469
18 July 46
The Prosecution bases its opinion that labor mobilization is a war crime on the definitions of the Hague Convention on Land Warfare, as well as on the agreements and rules of war and the criminal codes of the countries concerned. If it is shown that labor mobilization is permitted. by international law, then a judicial inquiry into the penal regulations is, of course, not necessary.
The Hague Convention on Land Warfare can be considered as a basis for the laws of warfare with which we are concerned here. Whether it was recognized by all the states involved here is, from a practical point of view, of little importance, for inasmuch as it was not recognized or cannot be directly applied, it is a case of a shortcoming in international law which is filled as a matter of course according to the principles of the belligerent's needs and his duty to respect the laws of humanity. The principles of international law as established in the Hague Convention on Land Warfare are in all cases an important guide.
The Prosecution quotes, in the first place, Article 46 of the Hague Convention on Land Warfare, which is designed to safeguard the fundamental rights of the population. It is typical for labor mobilization that it does restrict liberty, whereas this particular basic right is not protected by this article.
If the Hague Convention on Land Warfare is examined for a definite rule concerning deportation and forced labor, it will be realized that no such regulation exists. Just as in the sphere of air warfare and the use of new weapons, the Hague Convention on Land Warfare could not deal with questions which, at the time of its drafting, were far from the mind of the contracting parties. The first World War was still fought between two armies with already prepared material, and after it was used up the fight would be ended. The idea of a long war consuming huge amounts of material and requiring a continuous production with all available labor was for the Hague Convention on Land Warfare not yet a problem ripe for discussion.
Article 52 of the Hague Convention on Land Warfare, which deals with the right to requisition, touches on the matter; but it can be seen that the rules deal only with purely local requirements of an army which appears fully equipped and has only supplementary local requirements. It is characteristic for the purely local meaning that the requisitioning authority is entrusted to the local commanders, in contrast to Article 51 of the Hague Convention on Land Warfare which permits only an independent commanding general to impose compulsory contributions. The literature about the right to requisition in international law accordingly quotes only examples of local significance.
Although Article 52 of the Hague Convention on Land Warfare can accordingly not be directly applied, its basic principles are
470
18 July 46
nevertheless binding on the belligerents. The basic idea is that an army can demand practically everything necessary for the satisfaction of its requirements. There are only two limitations: It may not take more than it needs and not more than is compatible with the resources of the country.
The idea of a local obligation to furnish services will have to be adapted to modem warfare. The Hague Convention on Land Warfare envisaged the employment of smiths and wheelwrights necessary for the maintenance of the equipment of the army; work within the home country of the occupying power was, in view of undeveloped transportation conditions, impracticable and remained unconsidered.
Today the necessary work will no longer be done in the vicinity of the front-lines but must be carried out in the belligerents' own countries, so that it must be possible to demand that labor should be available at the only place where it can be done and where it is necessary. It must also be possible to demand such labor for modern war requirements of mass production for current replacements. What is necessary at any given time can be asked for, the amount depending on prevailing conditions. If in earlier times, according to the principle "the war feeds the war," an army far removed from its homeland was even to a large extent equipped in occupied territory, it must surely be possible today to supply the army by moving the workers to the factories in the belligerent's own country. The evolution of the laws of warfare is influenced by the requirements which these laws have to serve.
With the basic idea of the obligation to furnish services the basic idea on limitations will have to be accepted, too. These limitations must also be interpreted to apply to the changed conditions. While the obligation to furnish services is justified, no more work may be demanded than the occupying power requires of its own people at home. The intensity of the war as total war must be taken into consideration. The obligation to work may thereby assume considerable proportions.
The meaning and the purpose of the Hague Convention on Land Warfare is certainly not to place the nationals of a defeated state in a better position than those of the victorious state which occupied the country. This, however, would be the result if the Hague Convention on Land Warfare were interpreted according to its original wording. If this is maintained, then France, which had surrendered unconditionally together with all the other occupied countries, would have been able to look on in security while Germany, strangled by the blockade, was exhausting herself in an indefatigable struggle by sacrifices of life and property. Can one really demand that the prisoner in a besieged fortress should live more comfortably than
471
18 July 46
the defender of the fortress? If Germany today could live according to the romantic concepts of the Hague Convention on Land Warfare, this would certainly be preferable to the burden of the peace treaty to be expected.
Actually, the Hague Convention on Land Warfare has not been adhered to even in its original interpretation, if it is true that already before the conclusion of the armistice the Soviet Union as occupying power transferred the population on a large scale from the eastern parts of Germany for the purpose of performing labor outside Gemmany. The Tribunal could obtain official information about this through an inquiry with the Control Council. I also have information that German civilian internees are used for work in France today. Here too the Tribunal could obtain official information.
The second limitation of the obligation to work is embodied in the rule that no participation in war operations against the home country of the worker may be demanded. Any work done for the occupying power indirectly benefits its war effort; the prohibition is therefore restricted to direct participation in operations of the fighting force. The literature on international law contrasts the participation in military operations with the permissible participation in preparations. Participation in war operations in this sense was not asked of any worker; on the contrary, the purpose was to employ workers away from these operations and without disturbance by the war.
Consequently only such activity as is directed against the workers' own country is forbidden, thus taking the feelings of the individual into consideration. No protection of the enemy state is thereby intended. Wherever, therefore, the individual renounces his country and in a struggle of ideologies opposes the government of his country, such a restriction no longer applies. In connection with this I wish to point to the vast number of foreigners who adopted such an attitude and who, in part, still live in Germany today.
The same applies when the state to which the worker belongs has ceased fighting. This question is of special importance with regard to the obligation to work in the armament industry. The rules of the Geneva Convention with regard to the work to be done by prisoners of war are known. The basic notion, that no one may be forced to make weapons against his own brothers, must apply to civilian workers also.
The fact, however, that one's country is no longer in a legal state of war is one of the reasons that nullify this restriction. The need for protection also ceases to exist when a country, though legally still participating in war, to all intents and purposes no longer possesses any fighting forces and has thus ceased to exist as a
472
18 July 45
military object of attack. The fact, that this country may have allies who fight for it cannot arbitrarily extend this limitation beyond the terms of the Geneva Convention; nor is it the duty of a subject of a given state to protect allies fighting for it and to participate in the policies of his government.
Puppet governments cannot change reality. Recognition cannot be granted to them unless they reappear as independent combatants under a command of their own and are recognized as such. This applies to all states defeated by Germany.
At the time of the mobilization of labor only Britain, the United States, and the Soviet Union were active combatants against Germany. British and American subjects were not affected by this mobilization, although citizens of the Soviet Union were in part used in armament production.
The legal position of citizens of the Soviet Union is however fundamentally different. Under Document Number EC-338, USSR356, the Prosecution has submitted a decree by the People's Commissars dated 1 July 1941. This decree deals with the utilization of prisoners of war for labor purposes; but it also, however, refers to the employment of interned civilians. According to the wording, armament production is not forbidden for either category of workers; and only two limitations are specified in the decree, namely, work in the combat zone and services required of an orderly.
Thus, from the point of view of reciprocity, no objection can be raised against the employment of Soviet citizens in armament production. In his examination before the Tribunal the witness General Paulus stated that prisoners of war were employed in factories of the Soviet Union, which means that in a state with a directed economy they were employed during the war in the armament industry. According to the decree it must be assumed then that these workers were also employed in the production of weapons.
The significance of such a violation of the principle that armament production shall be forbidden lies in the serious consequence that no formation of a generally recognized rule of international law in this new field of utilization of manpower can thereby be proven. Under these circumstances therefore Germany was likewise free to employ workers of the Soviet Union and workers of all other states in armament production.
The Hague Convention on Land Warfare thus does not forbid the regulated utilization of manpower, but there are also further international aspects permitting such a utilization of manpower. The assent of the government of the occupied state is of primary consideration. This assent was given by France. The objection that Marshal Petain's Government was not a constitutional government is invalid, for it was the legitimate successor to the provisional
473
19 July 46
armistice Government. That it represented the French State with foreign governments is of decisive consideration in international relations. This authority of representation was confirmed by the United States by its keeping an ambassador in Vichy even after its own entry into the war. Great Britain also negotiated the terms of an armistice with a general of the Vichy Government in Syria in 1941.
This Government once recognized could not be deprived of its legality by the simple declaration of an oppositional government, even though the latter might have been recognized by the Allies. A government loses its international position only if it is forced to transfer its actual power to the oppositional government. Up to that moment it retains authority within its sphere of influence.
The other objection that the Government of Marshal Petain was not free to act as it wished and that consequently agreements with Germany in the field of utilization of manpower were reached by coercive measures and are therefore invalid, is not justified from the point of view of international law. Armistice and peace treaties are always concluded under great pressure. That this does not curtail the validity of such treaties is an obvious point of international law. This has constantly been emphasized when refusing German demands for a revision of the Treaty of Versailles.
Agreements which are reached in periods between the armistice and the peace treaty are subject to the same conditions. This also applies to the agreement with France with respect to the utilization of manpower. Thus, if-contrary to the statement of the Defendant Sauckel-negotiations about the utilization of manpower were conducted in the form of an ultimatum, there could from the point of view of international law still be no reason for an objection. Besides, Sauckel's influence surely cannot have been so great that he could have exerted an excessive amount of pressure.
The validity of such agreements is open to doubt only under very special conditions, such as would mean that excessive obligations were to be assumed which obviously violate principles of humanity; for instance, if the agreements contain a clause stating that work must be performed under slave-like conditions.
The motive for these agreements was, however, to offer, especially to the French workers, favorable working conditions and salaries for their obligatory labor in Germany, thus to attract the workers.
Military reasons too can command the evacuation of an occupied territory by part of the population and thereby cause a displacement of manpower. This nary happen when the population participates in partisan warfare or is active in resistance groups and thus endangers security instead of behaving obediently and
474
18 July 46
peacefully. It even suffices for the population in the so-called partisan territories to be drawn upon even against its will for the support of the partisans. That such conditions were organized by Germany's enemies as combat measures in an increasing degree, first in the East and later in the West, is today looked upon as a patriotic achievement. In view of this one must not forget that the resulting displacement of workers was precisely the consequence of their activities and that such action was permitted by international law. Evacuation had to be carried out in the interest of security, and assignment of labor elsewhere was necessary if only to maintain order. It is the privilege of the occupying power to utilize this labor within a regulated state economy in the manner deemed most appropriate under the prevailing conditions. Similar measures might also be imposed in areas of retreat after it had been ascertained that the male population illegally took part in hostilities during the retreat, as it had been called upon to do by the enemy, sometimes even being supplied with weapons.
Evacuation measures for the security of combat troops are equally permissible under international law. To engage persons evacuated from the combat zone in new work is not only legal but is actually the duty of the occupation administration. The state which calls upon its subjects to fight and thereby intensifies combat, bears the guilt for such evacuation. The necessary retaliatory measures therefore must be legal
Whenever such evacuations become necessary, they must be carried out without undue suffering for the population. For this preparatory measures, which alone can avoid unnecessary hardships, are necessary. That is the duty of administration as laid down in Article 43 of the Hague Convention on Land Warfare. Thereto appertain the proposals made by Sauckel for the evacuation of territories of retreat in France in the event of invasion (Document 1289-PS). These proposals did not materialize and cannot therefore incriminate the Defendant Sauckel.
This administrative duty may also call for a displacement of labor in order to avoid unemployment and famine. This, for example, occurred when the industrial areas of the Soviet Union were occupied, where there were no more working possibilities after the population became unemployed following the scorched earth policy adopted by the Soviet Union, and supplies failed to arrive because of transport difficulties.
These military and administrative. points of view of international law can invalidate a number of reproaches; but they do not answer the basic question, namely, whether the enlistment of workers is also permitted outside the Hague Convention on Land Warfare for the very purpose of intensified labor to enable the
475
18 July 46
state to carry on the war through increase of production and to allow it to release its own workers for service at the front.
A purely military emergency would provide no excuse for disregarding international law. Victory jeopardized must not be
sought by breaking the law when in distress, because the laws of warfare are intended to govern that very combat, which is of necessity connected with distress. International law inclines differently where it is a case of a measure to be taken to safeguard the existence of the state. That is a law of self-preservation which every state is entitled to because higher institutions are lacking which could protect it from destruction.
It has repeatedly been stressed by all concerned that in this war our existence was at stake. This became evident for Germany after the fatal battles on the Eastern Front in the winter 1941-42. Whereas up to that time no wholesale employment of foreign labor had been necessary, new equipment now had to be produced immediately. The German labor reserves were depleted due to the drafting of 2 million workers for service at the front. The employment of unskilled women and young people could not immediately relieve the situation. During the later stages of the war, especially through aerial warfare, armament demands increased to such an extent that, in spite of the increased employment of women and. young people, the level could no longer be maintained The means were exhausted.
The official figures which the Defendant Sauckel made public in his speech in Posen in February 1943 (see Document 1739-PS) proved that already in 1939, at the beginning of the second World War, more than twice as many women were being employed than at the end of the first World War and that their number at the end of the second World War had increased by another 2 million to a total of over 10 million. This figure exceeds the entire number of male and female workers in the armament industry at the end of the first World War. Yet in spite of that there was a shortage of labor. This has been confirmed by the witness Rohland for Codefendant Speer in Document Speer-56, according to which Speer also declared that foreign labor was needed under all circumstances.
The crux of the matter did not concern the problem of female labor, where by introducing additional home labor the limit was attained, but that of procuring specialists and men for heavy labor. Among the 10 million German women who were at work, there were also the wives of front-line officers and others from similar classes of society.
The notion that in Britain the women were conscripted for work in a higher degree than in Germany is wrong. In Germany the
476
18 July 46
women had to work up to 45 and later 50 years of age, and they actually worked in factories and did not have fake jobs of a social kind. Even schoolchildren beginning with the age of 10 were required to work, and from 16 years onward they were switched to regular labor or occupied in other services. Families were disrupted; schools and universities were closed; pupils and students worked in the armament industry, and even the wounded could not continue their studies. A grim fight was waged over every person capable of work. Speer's reserve of workers did not exist. What efforts were made in this sector is shown among others by Enclosure 2 of the Wartburg Document RF-810.
Another point of view illustrating the necessity of employing additional labor is the fact that the powers in possession of colonies brought labor from their colonies; France (see Document RF-22, Page 17), for instance, took in about 50,000 workers from North Africa and Indo-China, which were under the command and supervision of officers and noncommissioned officers. Since Germany, having been refused colonies and on account of the blockade, was unable to draw upon such reserves, she was entitled to some means, in her fight for existence, of procuring labor where it could be found inactive in occupied territories.
This is in outline the basis, with regard to international law, for judging the regulated mobilization of labor as a war crime. One may, with regard to certain points, differ in opinion; and it will generally be found that in international law a uniform interpretation will not be readily arrived at. The interests of individual members in the community of international law play an important part and are not always identical; legal principles are often not recognized because some state does not wish to place itself officially in contradiction with its former actions, or because it prefers to remain unbound for the future.
As counsel for the Defense, I am in a position to present my interpretation of law without such inhibitions. The significance of my statement for the Defense, apart from the objective side, lies in the fact that the Defendant Sauckel, subjectively, was for good reasons entitled to believe in the lawfulness of a regulated mobilization of labor and that to him his actions were not discernible as being in contradiction with international law. This was supported by the impression which the Defendant Sauckel could not but gain of the permissibility of a regulated mobilization of labor, as shown by the attitude of other superior offices. When Sauckel entered upon his office, foreign workers had already been enlisted by individual action; and he could take it for granted that the State would equally proceed in a legal manner. None of the highest of flees has ever raised legal objections before Sauckel. These of fines,
477
18 July 46
both the competent Foreign Office and the highest civil and military offices in the occupied territories, accepted his orders as a matter of course; and no questions of doubt on international law were raised.
For the opinion of the Defendant Sauckel the attitude of the foreign agencies concerned was necessarily of special importance, notably the consent of the French and the Belgians, who came to Berlin personally for discussions. From this resulted the good co-operation with the local authorities in the occupied territories, as was the case before enemy propaganda intervened.
Whether cognizance of breaking a law is indispensable when committing a crime against international law may be a moot point; but to establish guilt leading to a conviction, cognizance of the realization of all the criminal facts is essential. This includes cognizance of the fact that the action performed was contrary to international law. The subjective aspect of the facts, involving criminal guilt of the Defendant Sauckel, cannot be proved in respect to application of the regulated mobilization of labor. It would be impossible to commit the Defendant ' Sauckel for yet another legal reason, even if the regulated mobilization of manpower really were a violation of international law. According to the Hague Convention on Land Warfare, no individual responsibility exists. The Hague Convention on Land Warfare differentiates between two kinds of war crimes; those which can be committed by an individual, such as murder and ill-treatment, and those which can be committed only by parties in a war. The regulated utilization of manpower is a proceeding which can only be initiated by the state. While the individual action is punished according to the penal code of the different states, a special regulation was laid down for offenses committed by parties in a war in Article 3 of the introductory agreement to the Hague Convention on Land Warfare. This specifies only a liability for damages on the part of the state. This passage of the Hague Convention on Land Warfare still applies today, since it cannot be rescinded by agreement among the Allies alone. The Charter, which- specifies the immediate criminal responsibility of the state organs or its executors, is void insofar as it is contradictory to the Hague Convention on Land Warfare.
I do not have to refer to the fact that Germany, as one of the parties to the agreement, would have had to agree to the suspension of Article 3; there are other reasons which speak for a continuation of this stipulation. A modification of the Hague Convention on Land Warfare in the sense of the Charter might have resulted from the law of usage or general custom due to changing legal conceptions. The presupposition for this assumption would be, however,
478
18 July 46
that the contracting powers relinquish their sovereignty, since only then would the punishment of the state organs be possible. However, such a renunciation of the rights of sovereignty has not, as far as I am aware, taken place to such an extent as would generally render such punishment permissible. With regard to this point, I refer to the general statements made by Professor Jahrreiss before the Tribunal.
I shall now deal with the utilization of manpower as a crime against humanity. If a regulated utilization of manpower appears permissible according to international law, there remains the problem of the method of its execution, namely, the question of up to what point this utilization of manpower can still be regarded as in order and when it will exceed the permissible limit.
The Charter fails to define the concept of humanity. As far as international law is concerned, the term can only be transposed from the practice of the nations. In endeavoring to establish the limit for actions permissible under international law, we must, for the sake of comparison, mention the bombing of large cities and the use of the atomic bomb, as well as deportations and evacuations as still in progress today. These are all incidents which have occurred before the eyes of the world and were regarded as permissible by the executing countries.
Once again we are confronted with the conception of necessity and find that it is being interpreted in a very flexible manner. This should be kept in mind when examining the mobilization of labor as to any violation of the principle of humanity involved. Its aim is not the sudden killing of hundreds of thousands; however, it naturally entails hardships and is certainly also subject to mistakes which arise unintentionally or are due to the shortcoming of individuals. An answer will be required to the question of whether deliberate killing does not always weigh heavier than the temporary infliction of other sufferings. Also, the Charter does not prescribe punishment for every violation of the principles of humanity but only when inhuman treatment occurred in the execution of, or in connection with, a crime for which the Tribunal is competent. However, the Tribunal is competent only for Crimes against Peace and for War Crimes. As for Crimes against Peace, inhuman treatment may be admissible in self-defense, while it is punishable when committed by an aggressor; or alternatively, it must be a case of a war crime.
This does not apply when compatriots are ill-treated, for they are not protected by the laws of warfare. Prosecution for an act against humanity committed toward them can only take place if a crime against peace is involved at the same time.
479
18 July 46
From an objective point of view labor commitment furthered the waging of the war which has been designated by the Prosecution as a war of aggression or as a war violating treaties. If this is established and if it is proved moreover that the mobilization of labor was carried out in an inhuman way, then the requirements of the Charter will have been met and a crime against humanity committed, regardless of whether the mobilization of labor was allowed or not allowed by the rules of war, since it was committed in connection with a crime against peace. But punishment can be inflicted only if the culprit himself knows that an unlawful war is being waged and that he is furthering it by his action. Since the Defendant Sauckel denies any such knowledge, it must be proved.
The other possibility of meeting the factual requirement occurs when the inhuman act serves to carry out a war crime or is connected with it. Of the examples given by the Charter for violation of the rules of war, the following in the main can be taken to apply to the mobilization of labor: murder, ill-treatment, and deportation of the civilian population. As shown by this enumeration, these war crimes are not, however serious they may be, in themselves crimes against humanity. Some aggravating circumstance making the act inhuman must be added. As shown by the examples of inhuman "extermination" and "enslavement," the acts in question must be objectively of particular scope or cruelty. Subjectively, however, an inhuman disposition of the culprit and the knowledge of the inhuman character of the act, that is to say, knowledge of the scope of the measure or of the cruelty of its execution, is additionally required. How far these conditions apply to the Defendant Sauckel must be investigated later on. A "regulated mobilization of labor," as allowed by international law can never in itself be a crime against humanity; but its execution may be carried out in such a way that it involves killings and ill-treatment, which for their part might be war crimes.
Such ill-treatment could result from regulations issued by the highest authority involved, who thereby would bear the responsibility. It may, however, also be committed by subordinate agencies acting on their own authority without the knowledge or intention of their superior authorities. In that case the head of the agency acting on its own accord bears the responsibility. Lastly, it may be a case of a purely individual act committed against the regulations in force. For such an act the individual is solely responsible.
It follows that the Defendant Sauckel is responsible, to begin with, only for such general orders and instructions which he has given, not however for independent acts by superior authorities in the occupied territories or by supreme Reich authorities, such as
480
18 July 46
the Chief of SS and Police, which were not under his jurisdiction. The orders and directives of the Defendant Sauckel have been submitted, and they must show whether the mobilization of labor as ordered by him was in fact a regulated one or was tantamount to an "ill-treatment" of the population. Apart from the call for volunteers, mobilization of labor took place on the basis of a compulsory service decree, signed as a legal measure in accordance with Hitler's instructions by the territorial commanders. The authority to issue such laws exceeded the powers of the Defendant Sauckel, nor could he ask that any such laws be issued. He did however approve of them and made them the basis for his work. The contents of these laws were consistent with the fundamental ideas of the German laws concerning compulsory labor service. These laws were coercive. The use of coercive measures is not called for as long as the legal authority of the occupying power is acknowledged by the population; they become necessary only when such authority fails.
In this connection the Defendant Sauckel has repeatedly asked for the maintenance of executive authority by operations in partisan-infested territories for overpowering the resistance movement (Document R-124). No legal objections can be raised against the fact that to this end he demanded the use of means provided by the State. He is wrongly incriminated only by the words "SS and Police," which have been connected by the Prosecution with the conception of crime. Such an incrimination would only be justified if the criminal character of the Police had been proven and if the Defendant Sauckel at that time had had cognizance of such criminal activity.
That force may be used in case of resistance against orders of the occupation force cannot be disputed. The question is, where are the limits of force and whether or not there are legal and illegal, admissible and inadmissible, human and inhuman, measures of force.
If fundamental laws are no longer deemed to be valid when a state of siege is declared within a state, surely this will apply all the more to a power occupying another country in wartime. Anyone who refuses to carry out the orders of the occupying power knowingly participates in the fight to which he is not entitled and has to accept the consequences. Obedience is the primary duty toward the occupying power; and where patriotism and obedience are conflicting issues, the law decides against patriotism. The punishment meted out is, as such, not subject to any limitation; and the threats of punishment by an occupation power are, for purposes of intimidation, usually extremely severe. The question is whether there exists a limit, from the standpoint of humanity, which prohibits punishment in excess of the legitimate purpose
481
18 July 46
which may be considered unwarranted. Orders like the burning of houses, which were issued independently by subordinate offices in connection with the recruitment of labor, must be examined from this point of view.
This question is not easy to answer, if one bears in mind the special underlying circumstances and realizes that it was a case here of an open struggle between the occupying power and the population, with official support from the enemy. In case of uprisings and organized general resistance one cannot disclaim the applicability of the military laws as practiced by the combat troops. Necessity alone must be the decisive factor in this case. International law has put only one limit to coercive measures in forbidding, in Article 50 of the Hague Convention on Land Warfare, collective punishment of an entire population for the deeds of individuals for which the population cannot be held partially responsible. It is essential that such partial responsibility shall have been established by actual events and not construed through orders. It is not specified wherein collective punishment may consist. The limitations of humanity, as I already pointed out, must be respected, but in war this is a vague conception; necessity and practical value must always have preference.
Next to the manner of recruiting labor, the conditions of work may represent an ill-treatment which can be looked upon as a war crime. On principle, there can be no question of ill-treatment whenever the foreign workers are generally treated in the same way as the workers of the home country. Different treatment is only permissible when special circumstances justify it. Whereas generally foreign workers work on the same level as the Germans the so-called, Eastern Workers were discriminated against. The most striking difference here was the limitation of freedom. If this had been arbitrary, that would be sufficient reason for declaring this to be ill-treatment. But the reasons for this limitation of freedom were not arbitrary; they were conditioned by the State's need for security. During wartime the presence of an enemy alien in the country always represents a danger, and it is for that very reason that originally the bringing in of foreign workers had been dispensed with. Only when necessity demanded the utilization of foreign workers did the need of security have to be taken into account simultaneously. The measures to be taken will depend upon the danger, which will vary according to the attitude of the alien. Whereas police measures with regard to the French were almost imperceptible, the Eastern Workers were in the beginning kept under supervision in camps.
The natural interest of the state lies in attaining security by winning the aliens over inwardly because their collaboration is
482
18 July 46
desired. This will never be achieved by depriving them of their freedom. As long as the attitude of the alien cannot be clearly assessed, especially if he be like the citizens of the Soviet Union, propagandistically trained, more stringent control may be necessary. However, it must not develop into permanent captivity, and should at most constitute a sort of quarantine. To deprive people without guilt of their liberty for an extended period is not admissible, because that would correspond to a forbidden collective punishment. The mere assumption of danger is not sufficient to justify such limitations; there must be certain acts which show that such foreign workers appear dangerous even under normal working conditions. The custody of Eastern Workers behind barbed wire and without permission to go out, as ordered by Himmler, must be regarded as ill-treatment if it is a permanent practice.
The Defendant Sauckel, guided by a feeling that in this matter the limits of the permissible had been overstepped, immediately took steps against this and in a tough fight against Himmler demanded and obtained the withdrawal of barbed wire and the prohibition to go out, as can be seen from the ensuing decrees, Document Number Sauckel-10, Exhibit USA-206.
Where in spite of later arrangements the old methods were still applied by the police, Sauckel always intervened whenever he heard of such occurrences. This has been confirmed repeatedly by witnesses. I refer particularly to Exhibit Sauckel-10, the statement by the witness Goetz.
Another controversial point was the identification by a badge "Ost," which was maintained until 1944 and then replaced by a national insignia. This identification of the Eastern Workers, who were free to move among the population, was necessary for security reasons. This cannot be considered ill-treatment. The distaste for this sign shown by the Eastern Workers was chiefly due to the defamation of this badge by propaganda, and the Defendant Sauckel always tried to change this insignia and to replace it by a national insignia such as the other workers wore voluntarily. He finally prevailed here also against Himmler (Document RF-810, Page 12).
Equality must also exist between a nation's own workers and foreign workers with regard to the rules concerning maintenance of discipline. With all belligerent states the war has raised the same problem as to how to deal with those workers who do not properly fulfill their work duties; that is to say, slackers, shirkers, and saboteurs. The practice of discharge, common in peacetime, is ineffective during war; on the other hand, deserters from work cannot be tolerated today by any belligerent. In cases amounting to sabotage, police and penal measures were called for, the principal one being a short term in a labor training camp; in certain extreme cases,
483
18 July 46
imprisonment in a concentration camp was inflicted. Document 1063-PS, RF-345, shows the similarity in the execution of the regulations as applied to Germans and foreigners.
Such police measures, which are caused by disloyal conduct of the worker, are justified. The Wartburg Document ItF-810 shows in the report of the expert Dr. Sturm that such measures were carried out on a very moderate scale and that only 0.1 to 0.2 per thousand were thus punished.
Hence it follows that the issue of regulations concerning the maintenance of discipline is not yet in itself an ill-treatment which might form the basis for a crime against humanity. Such ill-treatment, however, can consist of excesses such as did occur outside the competence of the Defendant Sauckel. He can only be held responsible for those if he himself was subjectively to blame in that he knew of such excesses and approved of them although- he might have prevented them.
In summing up one can say that the "regulated mobilization of labor" is permissible in international law and that restrictions imposed on workers within the limits of necessities must be permitted for reasons of state security. On the other hand, excesses in carrying out the regulations must be looked upon as ill-treatment and may amount to crimes against humanity. Responsibility for those rests with whoever has instigated them or who, within the sphere of his competence, failed to prevent them in the performance of his duty. When measuring the grave charges brought against the Defendant Sauckel by the standards of the aforesaid legal considerations, it will be necessary first of all to single out those fields in which the evidence reveals him to be absolutely clear of any responsibility.
In the first place, it is not proved that the Defendant Sauckel can be connected with the biological extermination of the population. His whole interest, as has been shown, pointed toward the opposite direction, since his purpose was to obtain people as laborers. He had nothing to do with migration measures and any methods used in that respect.
Work in concentration camps was just as far removed from the Defendant Sauckel's responsibility. Himmler's speech in Posen in October 1943 (Document 1919-PS, Page 21) reveals that the SS had erected gigantic armament plants of their own. We know that Himmler covered his extensive labor requirements by despotic arbitrary arrests of persons in occupied territories. Inside Germany he had workers engaged in regular employment arrested on insignificant pretexts and brought to concentration camps, fraudulently using the regular labor offices. This is clearly shown in Document 1063-PS, containing a letter dated 17 December 1942 as well as a
484
18 July 46
letter dated 25 June 1943, in which a requirement of 35,000 prisoners is signified. Moreover, no correspondence with reference to concentration camp labor ever passed through Sauckel's offices. As an example, I refer to Document 1584-PS containing some correspondence with Himmler's department. The Defendant Sauckel's name is never mentioned with reference to a conscription of prisoners, and the witnesses have unanimously stated that the Defendant Sauckel had no connection with these matters. This is also confirmed by the statement of the Director of the armament ministry's Labor Office, Schmelter, who received the prisoners required direct from Himmler.
Another field which must be eliminated is the conscription of Jews for labor. This formed a part of labor conscription of concentration camp prisoners; it was Himmler's own personal secret sphere. This is revealed for instance by Document R-91, in which Himmler's service orders the arrest of 45,000 Jews as concentration camp prisoners.
By the production of Document L-61 the Prosecution has attempted to convict Sauckel of a share of guilt in this field. This document is a letter, dated 26 November 1942, from Sauckel's office to the presidents of the provincial labor offices, stating that by agreement with the Chief of the Security Police and SD, Jewish workers remaining in the plants must be withdrawn and evacuated to Poland. As a matter of fact, this letter actually confirms that Sauckel had nothing to do with Jewish labor in the concentration camps, since Jewish workers were withdrawn from his department under the very pretext of evacuation. The measure is indeed solely concerned with the purely technical matter of excluding the Jewish laborers and replacing them by Poles, an operation which could not have been carried out without the participation of Sauckel's office.
This letter is in continuation of a correspondence which can be traced back to the period prior to Sauckel's assumption of office, and Document L-156 subsequently deals with the same technical operation. The unimportant character of the matter is attested by the fact that these letters were not sent from the Defendant Sauckel's head office in the Thuringerhaus, but from an auxiliary office in the Saarlandstrasse. The Defendant Sauckel disclaims knowledge of this correspondence and points out that the letters do not bear his original signature but were, according to the routine of his service, made out in his name just because they were of minor importance. The fact that the letters begin with the routine business term of "by agreement with," instead of "by consent of," the Chief of Police and SD does not mean that they refer to an agreement reached, but simply points to the agency in charge of the matter.
485
18 July 46
Next, reference has been made to "extermination by labor." However, Documents 682-PS and 654-PS, dated September 1942, unmistakably show that this is a case of a secret maneuver of Himmler and Goebbels in co-operation with the Reich Minister of Justice, Thierack. The Defendant Sauckel is not involved.
Neither was the conscription of workers for the Organization Todt under Sauckel's responsibility. The accusations proceeding from Document UK-56 in this respect, bearing upon labor conscription methods in the Channel Islands, do not therefore concern him. The documents do not show that the Defendant Sauckel was aware of these proceedings or that he could have prevented them. This separation between the Defendant Sauckel's labor jurisdiction and the Organization Todt is confirmed in Document ~191, the report of the International Labor Office in Montreal.
The enlistment of labor by civil and military departments is another chapter. This was to a certain extent carried out as 'Pirate'' mobilization and kept secret from the Defendant Sauckel, because he opposed these practices and endeavored to prevent them by all means. Occasionally he was by-passed by higher orders. In this category there is labor enlistment by the SS, the Reichsbahn, Air Force construction battalions, Speer's transport and traffic units, fortification and engineering staffs, and other services.
The exclusion of these aspects from the scope of the Indictment should exonerate Sauckel all the more since in these cases his directives did not apply.
Document 204-PS illustrates in this respect the circumstances in which transport auxiliaries were produced in White Russia. Document 334-PS shows the same with regard to the execution of an independent drive for Air Force auxiliaries, which cannot be held against Sauckel. The commitment of adolescents, known as the Hay Action, according to Document 031-PS of 14 June 194A, remained outside Sauckel's jurisdiction and activities, as becomes clear from the document itself. The 9th Army together with the Eastern Ministry were the originators.
A letter from the Codefendant Rosenberg to Reich Minister Lammers of 20 July 1944 (Document 345-PS) falsely refers to the "agreement" of the Plenipotentiary General for the Allocation of Labor; on the other hand it states that the Defendant Sauckel was not connected with an SS helper action and that he refused co-operation in this affair. According to this, as stated by Document 1137-PS of 19 October 1944, a special office in the Rosenberg Ministry with its own personnel attended to the seizure of juveniles. The Defendant Sauckel's agency was by-passed and labor furnished directly to the armament industry.
486
18 July 46
In circumvention of the Defendant Sauckel's agency certain measures also took place which Hitler caused by direct orders to the local offices of the Armed Forces and of the civil administration; this for instance applied to the labor commitment ordered in the occupied territories for the fortification of the Crimea (Document UK-68).
The enlistment of labor in Holland, which was carried out by the Armed Forces against the protest of the labor service offices, is another of these cases; this is shown in D