Chapter IV: Front Matter (4)

The apparent necessity for camps of this sort is thereby recognized. I myself detest those institutions of human slavery; but I state openly that these institutions also lie on the road which, when followed to the end, can and does bring suffering to persons holding different views to those desired by the state. By this the crimes against humanity in the German concentration camps are not in the least to be minimized.

As far as Kaltenbrunner is concerned, this man, in view of his character and attitude as apparent since 1943, according to my conviction and as can be affirmed by many witnesses, is basically a National Socialist leader who noted only with repugnance the general trend of the continually growing wave of terror and enslavement in Germany. For this reason I deem it important to point to the statement of the witness Eigruber to the effect that the claim of the Prosecution that Kaltenbrunner established Mauthausen is wrong.

The second reason lies in the subject of the two conversations with Himmler, about which Kaltenbrunner testified. According to that Kaltenbrunner was prepared to take over the offices of the Domestic and Foreign Intelligence Service in the Reich Security Main Office with the promise of Himmler that he would be allowed to expand this service into a central agency, with the aim of absorbing the Political Intelligence Service and joining it with the hitherto military one of Admiral Canaris. No doubt it is true, as the witnesses Wanneck, Dr. Hoettl, Dr. Mildner, and Ohlendorf, and also the defendant himself have testified, that Himmler, with Kaltenbrunner’s wish in mind, after the murder of Heydrich, intervened in the executive realm so that nothing of any importance took place in any executive field in Germany without Himmler having the final word and thus issuing the decisive order.

The witness Wanneck confirmed the subject of those two conversations of Kaltenbrunner with Himmler in the following words, which I shall quote because of their importance:

“When material problems arose Kaltenbrunner frequently remarked
that he had come to an understanding with Himmler to work rather
in the field of the Foreign Political Intelligence Service and
that Himmler himself wanted to exert more influence in executive
functions. To my knowledge Himmler agreed to these adjustments
all the more since he believed that he could depend on
Kaltenbrunner’s political instinct in foreign affairs, as was
apparent from various remarks made by Himmler.”

Various witnesses have testified that Kaltenbrunner, predominantly and from inner conviction, did dedicate himself to the Domestic and Foreign Intelligence Service and more and more approached the influence on domestic and foreign politics he was hoping for. I call attention again to Wanneck and Dr. Hoettl, and then also to the Defendants Jodl, Seyss-Inquart, and Fritzsche. Dr. Hoettl testified:

“In my opinion Kaltenbrunner never was completely master of the
large Reich Security Main Office and, from lack of interest in
police and executive problems, occupied himself far more with
the Intelligence Service and with exerting influence on politics
as a whole. This he considered his real domain.”

From the testimony by General Jodl I stress the following sentences:

“Before Kaltenbrunner took over the Intelligence Service from
Canaris he already sent to me, from time to time, very good
reports from the southeastern territory, through which I first
noticed his experience in the Intelligence Service ... I had the
impression that this man knew his business; I now received
constant reports from Kaltenbrunner, just as earlier from
Canaris; not only the actual reports from agents, but from time
to time he sent to me, I might almost say, a political survey on
the basis of his individual reports from agents. I noticed these
condensed reports on the entire political situation abroad
especially, because they revealed, with a frankness and sobriety
never possible under Canaris, the seriousness of our entire
military position.”

The results therefore, which I must deduce from the evidence, are as follows: Kaltenbrunner, on the basis of the separation of the Intelligence Service from the executive police function in the Reich Security Main Office as desired by him, actually held a position, the main interest of which was the Intelligence Service and its continuous development. I should add that this Intelligence Service covered more than Europe; it went from the North Cape to Crete and Africa, from Stalingrad and Leningrad to the Pyrenees. Kaltenbrunner was the most zealous of all those in Germany who wished to feel the pulse of the enemy nations.

That was the lifework of this man as he himself wished it to be for the duration of the war. Personally he lived in modest circumstances, and it is the truth when I say that he leaves the stage of political life just as poor as when he first entered it. The witness Wanneck once quoted a statement by Kaltenbrunner which is characteristic of him: That he, Kaltenbrunner, would retire completely from office after the war and return to the land as a farmer.

Only with deep regret will the spectator see that under the pressure of political and military events this man did not observe the limitations desired by himself. His obedience to Hitler, and therefore also Himmler, submitted to the apparent necessity, in the years 1943-45, of guaranteeing the stability of conditions inside Germany through police compulsion. Thereby he became involved in guilt; for it is clear that he might count on a milder judgment on his guilt before the conscience of the world only if he could produce evidence that he actually effected a sharp separation from the unholy Amt IV of the Secret Police, if he had in no way participated in the ideas and methods, which I believe, eventually led to the institution of this whole Trial. I cannot deny that he did not undertake this separation. Nothing is clearly proved in this direction; even his own testimony speaks against him. Thus his statement at the beginning of his examination before the Tribunal may be explained, which I should like to define as the thesis of his guilt:

“Question: ‘You realize that a very special accusation has been
brought against you. The Prosecution accuses you of Crimes
against Peace as well as of your role of an intellectual
principal or of a participant in committing Crimes against
Humanity and against the rules of war. Finally the Prosecution
has connected your name with the terrorism of the Gestapo and
with the cruelties in the concentration camps. I now ask you: Do
you assume responsibility for these points of accusation as they
are outlined and familiar to you?’”

And Kaltenbrunner answers:

“First of all I should like to state to the Court that I am
fully aware of the serious nature of the accusations brought
against me. I know that the hatred of the world is directed
against me, since I am the only one here to answer to the world
and to the Court, because a Himmler, a Müller, a Pohl are no
longer alive ... I want to state at the very beginning that I
assume responsibility for every wrong which from the time of my
appointment as Chief of the Reich Security Main Office was
committed within the jurisdiction of that office as far as it
occurred under my actual command, and I thus knew or should have
known of these occurrences.”

Thus the duty of the Defense is automatically delineated by asking the questions:

(1) What did Kaltenbrunner do, good and evil, after his appointment as Chief of the Reich Security Main Office on 1 February 1943?

(2) To what extent is the statement justified that in the essential points he did not have sufficient knowledge of all the Crimes against Humanity and against the rules of war?

(3) In how far can his guilt be established from the viewpoint that he should have known about the serious crimes against international law in which Amt IV of the Reich Security Main Office (Secret State Police) was directly or indirectly involved?

What has Kaltenbrunner done? In this connection I am passing over the accusation brought against him by the Prosecution for his participation in the events surrounding the occupation of Austria and Czechoslovakia, for no matter with what energy he followed his goal of seeing his Austrian homeland incorporated into the German Reich and used the SS forces under his command for the realization of this end, this aim cannot have been a criminal one according to the world’s conscience. Just as little could one reach a verdict of criminal guilt because of the forcible means employed at that time to accomplish the annexation of Austria, which was the outcome of history and desired by millions. Kaltenbrunner was still much too insignificant a man for that. Economic distress—Anschluss movement—National Socialism: That was the path followed by the majority of the Austrian people, not the National Socialist ideology; for Hitler himself was, from the standpoint of Austrianism, a spiritual and political renegade. Yet the Austrian Anschluss movement was a people’s movement before National Socialism had reached any importance in Germany. Austria wanted to protect herself against the Versailles and St. Germain ruling, which forbade the Anschluss, by holding a plebiscite in each province. After 90 percent had voted in Tyrol and Salzburg, the victorious powers threatened to discontinue the shipment of food supplies. Hitler’s seizure of power paralyzed the desire for Anschluss among those not sympathizing with the Party, but the distress in Austria became still more acute and isolated the Dollfuss-Schuschnigg regime. Incorporation into the economic sphere of Greater Germany, where the removal of mass unemployment seemed to be the source of hope, appeared to the greatly distressed Austrian people as the only way out. The wave of enthusiasm which on 12 and 13 March 1938 went through all Austria was real. To try to deny this today would be to falsify history. The Anschluss, not the Dollfuss-Schuschnigg Government, was based on democracy.

Just as little can one, I believe, according to the reasons mentioned above, reach a verdict of guilt for Kaltenbrunner because of his alleged activity in the question of Czechoslovakia. In my opinion, the question of guilt and expiation arises only for the time after 1 February 1943. The indignation of the German people over one of the most infamous terroristic measures, the imposition of protective custody, had already become immense before this date. Is it correct to say that Kaltenbrunner himself, of whom many orders for protective custody bearing his signature are in evidence before the Court, inwardly abhorred this type of suppression of human liberties?

May I refer to just a few sentences from his interrogations:

“Question: ‘Did you know that protective custody was at all
permissible and was used frequently?’

“Answer: ‘As I have stated, I discussed the idea of “protective
custody” with Himmler already in 1942. But I believe that
already before this time I had corresponded quite extensively on
this subject with him, as well as once also with Thierack. I
consider protective custody as applied in Germany only in a
smaller number of cases to be a necessity of state, or better, a
measure such as is justified by war. For the rest I often voiced
my opinion, well founded in legal history, against this
conception and against the application of protective custody in
principle. I had several discussions about it with Himmler and
with Hitler also. I publicly took my stand against it at a
meeting of public prosecutors, I think in 1944, because I have
always been of the opinion that a man’s freedom is one of his
highest possessions and only the lawful sentence of a regular
court of justice founded on the Constitution may limit or take
away this freedom.’”

Here the same man expresses the right principles, the observance of which would have spared the German people and the world untold suffering, and the nonobservance of which constitutes the guilt of this man who in spite of his right views, suited his actions to the so-called necessity of state. He thereby, against his own will and knowledge, became subject to the principle of hatred, which sooner or later will always shake or shatter the foundations of the strongest state. “Right is what benefits the people,” Hitler had proclaimed. I well know that Kaltenbrunner today deeply regrets having adhered too long to that false maxim without putting up sufficient resistance ...

Although the Prosecution has not been able to produce even one single original signature of Kaltenbrunner in connection with orders for protective custody, and I do not think it incredible when Kaltenbrunner deposes that he himself never put into effect such an order for protective custody by his signature, nevertheless, in view of the tragic results due to so many of these orders, I do not need to say even one word as to whether he is entirely blameless or is much less to blame because these orders had perhaps been signed without his knowledge; although of course the question arises immediately how this was possible in an office however large. Be that as it may; in affairs of such depth and such tragic outcome one’s feelings are inclined to make hardly any distinction between knowledge and ignorance due to negligence, because one wants to hold everyone occupying a post in an office responsible for what happens there. This recognition is also the meaning of Kaltenbrunner’s statement, cited above, regarding his fundamental responsibility. Where the happiness and fate of living men are involved, it is impossible to retreat under the pretext of ignorance in order to avoid punishment; at best mitigation of sentence can be asked for. The defendant knows this too. Orders for protective custody were the ominous harbingers of the concentration camp. And I am not revealing a secret when I say that the responsibility for issuing orders for protective custody includes the beginning of responsibility for the fate of those held in the concentration camps. I could never admit that Dr. Kaltenbrunner may have known of the excesses suffered by the thousands who languished in the camps; for, as soon as the gates of the concentration camps were closed, there began the exclusive influence of that other office, the frequently mentioned Central Office for Economy and Administration. Instead of referring to many statements of witnesses regarding this point, I refer only to the one of the witness Dr. Hoettl who, when asked about subordination in rank replied:

“The concentration camps were exclusively under the command of
the SS Central Office for Economy and Administration, hence not
under the Reich Security Main Office, and therefore not under
Kaltenbrunner. In this sphere he had no authority of command and
no competency.”

Other witnesses have said that of necessity Kaltenbrunner should have had knowledge of the sad conditions in the concentration camps, but there is no doubt that the commandants of the concentration camps themselves deliberately concealed criminal excesses of the guards even from their superiors. It is furthermore a fact that the conditions found by the Allies upon their arrival were almost exclusively the results of the catastrophic military and economic situation during the last weeks of the war, which the world mistakenly identified with general conditions in former times as well. The above statement is fully verified by the statements of the camp commandant of Auschwitz, Hoess, who because of his later activity in the Concentration Camp Department of the Central Office for Economy and Administration, had an accurate over-all picture. Hoess has no ulterior motive whatsoever to give false testimony. A person like him, who sent millions of men to their deaths, no longer comes under the authority of human judges and considerations. Hoess stated:

“The so-called ill-treatment and tortures in the concentration
camps were not, as assumed, a policy. They were rather excesses
of individual leaders, subleaders, and men who laid violent
hands upon the inmates.”

These people themselves were, according to the statement of Hoess, taken to task for that. I believe I need not go into any more details of how, according to various witnesses, visitors to concentration camps were impressed and surprised by the good condition, cleanliness, and order in the camps; and therefore no suspicion was aroused as to special sufferings of the inmates. But it would be in the worst taste if I contested the fact that a chief of the Intelligence Service, if only on the basis of foreign news of atrocities, should not have felt a responsibility, in the interest of humanity, to clear up any doubts arising in that sphere.

The lack of knowledge seems to be confirmed by the statement of Dr. Meyer of the International Red Cross, since the permission to allow the International Red Cross to visit the Jewish Camp at Theresienstadt and to allow food and medical supplies to be sent in, coming from Kaltenbrunner, seems to be proof of the bad conditions in the camps during the last months of the war; nobody, however, would allow neutral or foreign observers to have insight into the camps if it had been known that crimes against humanity were, so to speak, scheduled daily in the camps, as is asserted by the Prosecution.

In no case, therefore, do I come to the conclusion that Kaltenbrunner had full knowledge of the so-called “conditions” in the concentration camps, yet I do conclude that it was his duty to investigate the fate of those who were imprisoned. Kaltenbrunner might have found out then that a considerable number of the inmates were sent to the camps because they were criminals and that a much smaller portion was there because of their political or ideological viewpoints or because of their race but that he would then have found out about those primitive offenses against humanity, about those excesses and all the distress of these people—that I contest, in agreement with Kaltenbrunner.

The way to arrive at the truth was immensely complicated in Germany, and even the Chief of the Reich Security Main Office found nearly insurmountable obstacles in the hierarchy of jurisdiction and authority of other offices and persons. The alleviation of the sad lot of the internees was, after 1943, a problem which could have been solved only through the dissolution of such camps. A Germany of the last 12 years without any concentration camps would, however, have been a utopia. On the whole, Kaltenbrunner was but a small cog in this machinery.

Earlier I spoke about the orders for protective custody and of their effect. Dr. Kaltenbrunner has affirmed the necessity for work education camps, owing to—as stated by him during his examination—the conditions then prevailing in the Reich, to the shortcomings of the labor market, and to other reasons. And if I am not mistaken, no convincing proof was submitted of ill-treatment and cruelties in such camps. The reason may well lie in the fact that these camps were in some respects only related to, but not on equal footing with, concentration camps.

With all available means of evidence, Kaltenbrunner has opposed the accusation of having confirmed orders of execution with his signature. The witnesses Hoess and Zutter stated that they saw such orders in isolated cases. The Prosecution, however, does not seem to me to have proved that any such orders were issued without judicial sentence or without reasons justifying death, with the exception of a particularly serious case reported from hearsay by the witness Zutter, adjutant of the camp commandant of Mauthausen. According to him, a teletype signed by Kaltenbrunner is said to have authorized the execution of parachutists in the spring of 1945. An original signature by Kaltenbrunner is entirely lacking. I add that Kaltenbrunner has contested having any knowledge or information about this matter. I think I may safely claim that he did not sign any such orders concerning life and death, because he was not authorized to do so. Dr. Hoettl as a witness stated:

“No, Kaltenbrunner did not issue such orders and could not, in
my opinion, give such orders”—for killing Jews—“on his own
initiative.”

And Wanneck explicitly asserted the following:

“It is known to me that Himmler personally decided over life and
death and other punishment of inmates of concentration camps.”

Thus the exclusive authority of Himmler in this sad sphere may be considered proved. I am not seriously disposed to deny the guilt of Kaltenbrunner completely on this point. If such orders were carried out against members of foreign powers, for example, based on the so-called “Commando Order” of Hitler of 18 October 1942, then there arises the question of the responsibility of that person whose signature was affixed to these orders, because misuse of his name by subordinates was possible. It is certain that Kaltenbrunner never exerted the least influence in originating the “Commando Order.” It can, however, hardly be doubted that this decree constituted a violation of international law. The development of the second World War into a total war inevitably created an abundance of new stratagems. Insofar as genuine soldiers were employed in their execution, even a motive of bitterness, humanly quite understandable—and I am now speaking about the conduct of the Commando troops concerned in violation of the laws of warfare and other things—could not justify the order. Fortunately but very few people fell victims to this order of Hitler, as the Defendant Jodl has testified.

Perhaps one might ask me whether it is my duty, or whether I am permitted, to reiterate such points of incrimination as I have just done, since this seems to be the task of the Prosecution. To this I reply: If the Defense is so liberal as to admit the negative side of a personality, it surely is apt to be heard more readily when it approaches the Tribunal with the request to appraise the positive side in its full significance. However, is there a positive side at all in the case before us? I believe that I may answer that question in the affirmative. I already pointed out several facts which are connected with the time of the assumption of office by Kaltenbrunner. During his short 2 years of activity this man has made himself a bearer of decidedly fortunate and humane ideas. I wish to remind you of his attitude toward the lynch order of Hitler with respect to enemy aviators who were shot down. The witness, General of the Air Force Koller, described the decent conduct of Kaltenbrunner, which led to a total sabotage of this order. After first describing the contents of Hitler’s order and Hitler’s threat, pronounced during the situation conference at that time, namely, that any saboteur of this order should himself be shot, Koller goes on to repeat the statements of Kaltenbrunner. Permit me to quote a few sentences of the deposition of Koller. Koller says that Kaltenbrunner said:

“The tasks of the SD are always given a wrong interpretation.
Such matters are not the concern of the SD. Moreover, no German
soldier will do what the Führer commands. He does not kill
prisoners; and if a few fanatic partisans of Herr Bormann try to
do so, the German soldier will interfere ... Furthermore, I
myself, too, will do nothing in this matter ...”

Koller and Kaltenbrunner, therefore, were fully agreed on that matter. This positive action of Kaltenbrunner, important for the judgment of the actual nature of his personality, does not stand alone. Dr. Hoettl confirmed the fact that, in questions of the future fate of Germany, Kaltenbrunner went, if not beyond, at least up to the borderline of high treason. This witness, for example, confirms that Kaltenbrunner in March 1944 caused Hitler to moderate the plans concerning the Hungarian question and succeeded in preventing the entry of Romanian units into Hungary, that with his support also the planned Hungarian National Socialist Government was not set up for a long time.

Dr. Hoettl then says literally:

“Since 1943 I told Kaltenbrunner that Germany must attempt to
end the war by a peace at any price. I informed him of my
connections with an American authority in Lisbon. I also
informed him that I had taken up new contacts with an American
authority abroad by way of the Austrian resistance movement. He
declared that he was prepared to go to Switzerland with me and
there to take up personally negotiations with the American
representative, in order to prevent further useless bloodshed.”

The depositions of the witness Dr. Neubacher run along the same lines. But over and beyond that, this witness testified to a significant humane deed of Kaltenbrunner. Upon being questioned whether Kaltenbrunner had assisted the witness in moderating, as much as possible, the terror policies in Serbia, Dr. Neubacher answered; and I quote:

“Yes, in this field I owe much to the assistance of
Kaltenbrunner. The German Police agencies in Serbia knew from me
and from Kaltenbrunner that in his capacity as Chief of the
Foreign Intelligence Service he uncompromisingly supported my
policies in the southeastern territory. Thereby I succeeded in
exerting influence on the police offices. Kaltenbrunner’s
assistance was of value in my efforts to abolish the then
prevailing system of collective responsibility and reprisals
with the aid of intelligence officers.”

I further mention the relief work of the Geneva Red Cross, which is due to the initiative of Kaltenbrunner. The activity of the defendant with respect to this was portrayed by the witnesses Professor Burckhardt, Dr. Bachmann, and Dr. Meyer. As a consequence many thousands were able to exchange their captivity for liberty.

I should like to draw your attention to a few words stated by the Defendant Seyss-Inquart on two points. He mentioned that Kaltenbrunner advocated the complete autonomy of the Polish state as well as the reintroduction of the independence of both Christian Churches, and I might add that Dr. Hoettl testified that Kaltenbrunner defended his activity very energetically and met with most bitter resistance by Bormann. Kaltenbrunner tried to realize his humane intentions not only in this field. Therefore, it seems to me to be of significance also to point out his efforts to make the Austrian Gauleiter understand that any resistance against the troops of the Western powers would be senseless and that in view of this, irresponsible orders for resistance were not to be issued. This was confirmed by the witness Wanneck. The Prosecution held Kaltenbrunner responsible for the evacuation and planned destruction of certain concentration camps. I believe this evidence may not only be considered as inconclusive, but that the contrary has in fact been proved. Upon the question, addressed to Dr. Hoettl, whether Kaltenbrunner had instructed the commandant of the concentration camp Mauthausen to surrender the camp to the advancing troops, Dr. Hoettl answered:

“It is correct that Kaltenbrunner issued such an order. He
dictated it in my presence for transmission to the camp
commandant.”

As a supplement Kaltenbrunner, during his personal examination, declared very logically: If the camp of Mauthausen, filled with criminals, could not be evacuated by his orders, an order to evacuate Dachau would have been devoid of any basis by reason of its—compared with Mauthausen—harmless inmates. According to the testimony of Freiherr Von Eberstein, the destruction of the concentration camp Dachau with its two secondary camps was the goal of the then Gauleiter of Munich, Giesler.

Finally the witness Wanneck confirmed the fact that such an order of Kaltenbrunner had not become known to him; that, however, due to his position with Kaltenbrunner, he would have known if such an order had been issued by the latter or even the issuance of such an order considered. Who actually issued these orders can no longer be established with certainty. The witness Hoess, in his examination, mentioned an order of evacuation by Himmler, as well as one directly by Hitler.

In this connection it seems appropriate to me to refer to Kaltenbrunner’s participation in the sad case of Sagan as charged by the Prosecution. With reference to Kaltenbrunner’s statement, confirmed by the examination of the witness Wielen, it appears to me to be a proven fact that this matter came to Kaltenbrunner’s attention for the first time only several weeks later, after the conclusion of this tragedy.

It also appears doubtful to me whether the so-called Einsatzgruppen, introduced on the basis of Hitler’s “Commissar Order” of 1941, were still in existence and functioning after the appointment of Kaltenbrunner. Some facts speak for it, others against it. Kaltenbrunner denied the existence of these groups during his term as Chief of the Reich Security Main Office. I do not want to lose myself in details, but I should like to draw the attention of the Tribunal to these doubts. The same applies, for example, to the so-called “Bullet Decree.” Document 1650-PS confirms that it was not Kaltenbrunner but Müller, the infamous Chief of Amt IV, who issued the instructions involved, while Document 3844-PS mentions personal signatures of the defendant. It appears to me that the first document deserves preference. May I finally draw your attention to those documents which are of less value as evidence because they are based upon indirect observation. I believe that the Tribunal possesses sufficient experience in evaluating evidence so that I need not argue this any further.

I have thus far openly conceded the negative, so that I may be the more justified in emphasizing the positive in Kaltenbrunner’s personality. How far, however, shall I be justified in stating that Kaltenbrunner had actually insufficient knowledge of many War Crimes and Crimes against Humanity which were committed with some kind of participation of Amt IV in the course of the last 2 years of the war? Would such a defense offer the prospect of essentially exculpating the Chief of the Reich Security Main Office?

Dr. Kaltenbrunner admitted during his examination that it was only very late, in some cases as late as 1944 or 1945, that he obtained knowledge of orders, instructions, and directives, despite the fact that they originated much earlier—in some instances several years before he took office. And here I add—and I wish to emphasize this particularly at this point—that these orders, which are contrary to international ethics and humanity, all go back to a time during which Dr. Kaltenbrunner was still in Austria.

I will not at this moment try to prove in detail all these statements of Kaltenbrunner’s. The Prosecution is interested exclusively in whether such orders, decrees, directives, and so forth, were also executed during the period of time in which the defendant was in office as Chief of the Reich Security Main Office. It is also often very difficult for a defense counsel to follow a defendant along the secret channels of his knowledge or his ignorance. Perhaps the defense counsel also sometimes lacks the necessary distance for a free and just judgment, in view of the hecatombs of victims spread out across a whole continent, and he is unfair to his client. Thus he leaves the nature of the defendant’s character to the later judgment of history, for even the defense counsel is not infallible when it comes to drawing a picture of the soul of his own client.

During his examination before the Tribunal Kaltenbrunner once explained the difficult position he was in when he took over his office on 1 February 1943, and I hope that nobody will misjudge this situation. The Reich was still fighting, and even in 1943 was still dangerous for any adversary colliding with it. But it was already a fight for a goal obviously remote and out of reach. Whoever tries to hold back the spokes of the wheels on a vehicle rolling into an abyss at top speed will perish all too easily. Coupled with these conditions, from which there was no way of escaping, there was an uncreative officiousness, caused by nervous insecurity, in all areas of private and public life. Kaltenbrunner said with regard to this situation:

“I beg you to put yourself into my situation. I came to Berlin
in the beginning of February 1943. I began my work in May 1943,
except for a few complimentary calls. In the fourth year of the
war the orders and decrees of the Reich also in the execution
sector had piled up by the thousands on the tables and in the
filing cabinets of the civil service. It was quite impossible
for a human being to read through all that, even in the course
of a year. Even if I had felt it to be my duty, I could never
possibly have made myself acquainted with all these orders.”

In connection with this I remind you respectfully that, according to the evidence given by the witness Dr. Hoettl and others, the Reich Security Main Office in Berlin had 3,000 employees of all categories when Kaltenbrunner was in office and that according to the statement of the same witness Kaltenbrunner never controlled this office completely.

Nobody will be able to deny that the question is justified whether it was not Kaltenbrunner’s duty to have himself informed in the shortest possible time at least about the most essential proceedings in all the departments of the Reich Security Main Office and whether he would not then very soon have obtained knowledge of, for example, Himmler’s and Eichmann’s anti-Jewish operation and many other serious terrorist measures. I may remind you that Kaltenbrunner declared repeatedly and emphatically, in answering my questions before this Tribunal, that he protested regularly every time he heard of such occurrences, addressing himself to Himmler and even to Hitler, but that he had but little success, and this only after a long while. The defendant, for example, traces back the cessation of the extermination of Jews, by an order of Hitler in October 1944, to his personal initiative. However difficult it may be to judge whether the power and influence of a single person would have been sufficient to bring about the suspension of a program of the extermination of a race, already in its final phase, I believe I may say without being open to correction that many tens of thousands of Jews owe it to this man that they escaped the hell of Auschwitz and can still see the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer of the International Red Cross it appears that Kaltenbrunner asked the International Red Cross to organize relief shipments to a large Jewish nonpolitical camp at Unskirchen near Wels.

Wanneck has characterized Kaltenbrunner’s attitude toward the question of Himmler’s Jewish policy as follows. He says:

“In the daily haste of our joint labors and discussions on
foreign policy, we no longer dwelt upon the problem of Jewish
policy. At the time Kaltenbrunner came into office this question
was already so far advanced that Kaltenbrunner could not have
had any more influence on it. If Kaltenbrunner expressed himself
at all on the subject, it was to the effect that mistakes had
been made here that could never be made good.”

This witness then finally confirmed the fact that this operation was conducted independently through a direct channel of command from Himmler to Eichmann and said that the position of Eichmann, which already had been a dominating one when Heydrich was still alive, had increased steadily, so that eventually he had acted completely independently in the entire Jewish sphere.

And here I add that, according to the statement of Hoess, the only man left alive who is familiar with this question, it is established that only about 200 or 300 people knew of that dreadful order of Himmler’s which was given during a conference which lasted for 10 or 15 minutes, on the basis of which more than four million people were exterminated. And I add that a large nation of 80 million had learned little or probably nothing about these things which happened in the Southeast of the Reich during the war. Professor Burckhardt states that Kaltenbrunner, when discussing the Jewish question, declared:

“It is the greatest nonsense; all the Jews should be released,
that is my personal opinion.”

But in spite of all this, the fundamental question is raised for the problem of guilt: May a high official and the director of an influential office, whose subordinates in a far-reaching hierarchy continually commit crimes against humanity and against the rules of international law, assume such an office at all or remain in such an office, although he condemns these crimes? Or is it perhaps a different case if this man has the intention of doing all that is humanly possible to break the chain of crimes and thereby finally to become a benefactor of humanity? The last question is generally to be answered in the affirmative. It is to be appraised solely from the standpoint of the highest ethical principles.

My further thought in this connection is the following: He who invokes such a philanthropic intention is free of guilt if from the first day of his taking over such an office he refuses to take any active part in the actual commitment of the crime, and, beyond this, avails himself of every conceivable possibility, even seeks it out, to achieve the elimination of evil orders and their execution through his never-ending resistance and every form of human cunning.

The defendant himself has also sensed and clearly recognized all these things. On account of the importance of the question I should like to refer to his interrogation:

“Question: ‘I ask you whether there was a possibility that you
might have brought about a change after having gradually learned
the conditions in the Secret State Police and in the
concentration camps, _et cetera_. If this possibility existed,
will you then say that an alleviation, that is, an improvement,
was brought about in the conditions in these fields due to your
remaining in office?’”

Kaltenbrunner says:

“I repeatedly applied for service at the front. But the most
burning question which I had to decide for myself was whether
the conditions would be thereby improved, alleviated, or
changed. Or was it my duty to do everything possible in this
position to change all the conditions that have been so severely
criticized here? Since my repeated demands to be sent to the
front were refused, all I could do was to make a personal
attempt to change a system, the ideological and legal
foundations of which I could no longer change, as has been
illustrated by all the orders presented here from the period
before I was in office; I could only try to moderate these
methods in order to help eliminate them for good.

“Question: ‘And so, did you consider it consistent with your
conscience to remain in spite of this?’

“Answer: ‘In view of the possibility of constantly using my
influence on Hitler, Himmler, and other people, I could not in
my opinion reconcile it with my conscience to give up this
position. I considered it my duty to take a personal stand
against injustice.’”

As you see, the defendant refers to his conscience and you have to decide whether this conscience, taking into consideration duty toward one’s own country but also toward the community of mankind, has failed or not. The duty which I have just mentioned, to resist the orders of evil, exists in itself for every human being, regardless of his position. This duty is expressly affirmed by Kaltenbrunner also. He who holds a state office must in the first place be able to prove that he contributed toward abolishing the gigantic injustice which occurred in Europe as soon as he learned of it, if he does not want to become guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to this question I leave to your judgment. But one thing I should like to express as my opinion: This man was no conspirator; rather was he exclusively a person acting under orders and under compulsion. Himmler’s order was, despite all previous agreement, for him to take over the Reich Security Main Office. Is it right that an order should change the fundamental aspect of the problem? This question is of the highest importance. According to the Charter of this Tribunal one cannot plead higher orders for the purposes of avoiding punishment. The reasons given for this by the American chief prosecutor proceeded from the presumed knowledge of the crimes or their background in the minds of the higher leaders which, therefore, precluded them from pleading the existence of orders. Like a red thread the fact runs through this Trial that hardly one high official, in whatever position of public life he may have been, was put into office without the order of the highest representative of official authority; for in the last 3 years of the war the already clearly discernible inevitable destiny of the Reich meant for the holder of a high office the renunciation of that part of life which many people say makes life worth living. For the duration of the war, orders tied the office holder to his position. Also there is no doubt that he who refused to obey an order, especially in the last years of the war, risked his own death, and possibly the extinction of his family.

From whatever side we approach the problem of orders in Germany after 1933, the invocation of the above-mentioned state of duress ought not to be denied to a defendant, because that principle of duress which exists in the German criminal code, as no doubt it does in the criminal codes of all civilized nations, is based on that freedom of the individual being which is necessary for the affirmation of any guilt.

If the perpetrator is no longer free to act, because another person deprives him of this liberty through direct immediate danger to his life, then, on principle, he is not guilty. I do not want at this instant to examine whether in the German world of reality of the last years such a direct immediate danger for one’s own life always existed; but an encroachment upon the freedom of the man receiving orders did exist to a smaller or larger extent without any doubt. It seems certain to me that Himmler would have interpreted a refusal of Kaltenbrunner to take over the direction of the Reich Security Main Office as sabotage and would, as a necessary conclusion, have eliminated him.

Hitler, according to the revelations at this Trial, was one of the greatest lawbreakers that world history has ever known. Many even admit it to be a duty to kill such a monster, so as to guarantee to millions of human beings the right of freedom and life. At this Trial the most varied points of view with regard to the “Putsch,” especially the killing of the tyrant, have been proffered by witnesses and defendants. I cannot recognize the duty, but the right is certainly not contestable. If the oppression of human freedom occurs by means of a clearly unjust order based on misanthropy, the scales in the now ensuing conflict between obedience and freedom of conscience will be weighted on the side of the latter. Even the so-called oath of allegiance could not justify a different point of view because, as everybody feels, the obligation to allegiance presupposes duties of both partners, so that he who treads under foot the obligation to respect human conscience in the person of his subordinates loses at the same moment the right to expect obedience. The tortured conscience is freed and breaks the ties which the oath had created. Perhaps some people will not agree with my point of view on this problem and will point out the necessity of orderliness in the community, and the salutary effects of obedience in the very interest of this orderly state, or they will point to the wisdom of those in command and at the impossibility of understanding and evaluating all such orders as well as the person in command does; they will point to patriotism and other aspects. And though all that may be correct, there yet remains an absolute obligation to resist an order the purport of which, clearly recognizable to a subordinate, amounts to the materialization of evil and obviously violates the healthy sentiments which aim at humanity and peace among people and individuals. The phrase “in a life-and-death struggle of a nation there can be no legality” is an untrue thesis not thought out to the end, no matter who expresses it. Even immediate danger to the life of the person receiving the order could not induce me to change my conviction. Dr. Kaltenbrunner would not deny that he who stands at the head of an office of great importance to the community is obliged to sacrifice his life under the above-mentioned conditions.

Whereas even direct and imminent danger to his own life and that of his family cannot excuse him, it does diminish his guilt, and Kaltenbrunner only means to point to this moral and legal evaluation of his position. Thus he emphasizes a fact, historically proven, which was one of the deeper reasons for the collapse of the Reich; for no living man can bring to a community liberty, peace, and welfare, who himself bears his chains reluctantly and has lost that freedom which is the decisive characteristic of all human beings.

I believe Kaltenbrunner would like to be reborn, and I know that he would fight for that freedom with his life’s blood. Kaltenbrunner is guilty; but he is less guilty than he appears in the eyes of the Prosecution. As the last representative of an ominous power of the darkest and most anguish-laden period of the Reich’s history he will await your judgment, and yet he was a man whom one could not meet without a feeling of tragedy.

THE PRESIDENT: The Tribunal will adjourn now.

[_A recess was taken._]

THE PRESIDENT: Yes, Dr. Thoma.

DR. ALFRED THOMA (Counsel for the Defendant Rosenberg): May it please the Tribunal, Mr. President, the documentary film which was shown in this room and which was to illustrate the “Rise and Fall of National Socialism,” begins with a speech delivered by Rosenberg concerning the development of the Party up to the assumption of power. He also describes the Munich insurrection and says that on the morning of 9 November 1923 he saw police cars with machine-guns assembling in the Ludwigstrasse in Munich and he knew what the march to the Feldherrnhalle implied. Nevertheless he marched in the first lines. Today also, my client takes the same position in face of the Indictment formulated by the prosecutors of the United Nations. He does not want to be pictured as though nobody paid any attention to his books, his speeches, and his publications. Even today he does not want to appear as a person other than what he was once before, a fighter for Germany’s strong position in the world, namely, a German Reich in which national freedom should be linked to social justice.

Rosenberg is a German, born in the Baltic provinces, who learned to speak Russian as a young boy, passed his examination in Moscow after the Technical College in Riga moved to Moscow during the first World War, took an interest in Russian literature and art, had Russian friends, and was puzzled by the fact that the Russian nation, defined by Dostoievsky as “the nation with God in its heart,” was overcome by the spirit of materialistic Marxism. He considered it inconceivable and unjust that the right of self-determination had indeed often been promised but never voluntarily granted to many nations of Eastern Europe which had been conquered by Czarism even in the nineteenth century.

Rosenberg became convinced that the Bolshevik revolution was not directed against certain temporary political phenomena only but against the whole national tradition, against the religious faith, against the old rural foundations of the Eastern European nations, and generally against the idea of personal property. At the end of 1918 he came to Germany and saw the danger of a Bolshevistic revolution in Germany too; he saw the whole spiritual and material civilization of the Occident endangered and believed to have found his lifework in the struggle against this danger as a follower of Hitler.

It was a political struggle against fanatical and well-organized opponents who had at their disposal international resources and international backing and who acted according to the principle: “Strike the Fascists wherever you can.” But as little as one can deduce from that slogan that the Soviets entertained intentions of military aggression against Fascist Italy, just as little can one say that the struggle of the National Socialists against Bolshevism meant a preparation for a war of aggression against the U.S.S.R.

To the Defendant Rosenberg a military conflict with the Soviet Union, especially a war of aggression against the latter, seemed as likely or as unlikely as to any German or foreign politician who had read the book _Mein Kampf_. It is not correct to maintain that he was initiated in any way into plans of aggression against the Soviet Union; on the contrary, he publicly advocated proper relations with Moscow (Document Rosenberg-7b, Page 147). Rosenberg never spoke in favor of military intervention against the Soviet Union. However, he did fear the entry of the Red Army into the border states and then into Germany.

When, in August 1939, Rosenberg learned about the conclusion of the Non-Aggression Pact between the Reich and the Soviet Union—he was as little informed about the preliminary discussions as he was about the other foreign political measures taken by the Führer—he might have gone to see the Führer and protested against it. He did not do it, and he did not object to it with a single word, which the witness Göring confirmed as being a statement of Hitler’s.

In the witness box Rosenberg himself described (session of 16 April 1946) how he was then suddenly called to Hitler, at the beginning of April 1941, who told him that he considered a military clash with the Soviet Union inevitable. Hitler offered two reasons for it:

(1) The military occupation of Romanian territory, namely, Bessarabia and North Bukovina.

(2) The tremendous increase of the Red Army, along the line of demarcation and on Soviet Russian territory in general, which had been going on for a long time.

These facts were so striking, he said, that he had already issued the appropriate military and other orders, and he said that he would appoint Rosenberg in some form as a political adviser. As he further stated in the witness box, he thus found himself confronted with an accomplished fact, and the very attempt to discuss it was cut short by the Führer with the remark that the orders had been issued and that hardly anything could be changed in this matter. Thereupon Rosenberg called some of his closest collaborators together, because he did not know whether the military events would take place very soon or later on; and he made, or had made, some plans concerning the treatment of political problems. On 20 April 1941 Rosenberg received from Hitler a preliminary order to establish a central office to deal with questions concerning the East and to contact the competent highest Reich authorities with respect to these matters (Document Number 865-PS, USA-143).

If this statement made by Rosenberg is not in itself sufficient to refute the assertion made by the Prosecution, according to which Rosenberg is “personally responsible for the planning and execution of the war of aggression against Russia” (Brudno, in the session of 9 January 1946) and was aware of the “aggressive predatory character of the imminent war” (Rudenko, in the session of 17 April 1946)—if, above all, it is not accepted that Rosenberg was convinced of an imminent aggressive war to be waged by the Soviet Union against Germany, then I would like to bring up four more points in order to prove the correctness of the statements made by the defendant.

(1) Rosenberg was not called to the well-known conference at the Reich Chancellery on 5 November 1937 (“Hossbach Document,” Document Number 386-PS, USA-25), when Hitler disclosed for the first time his intentions of waging war. This was at the time when Rosenberg still had political influence, or at least seemed to have it. If ever, he should have played the part of the intimate political “inspirator” then.

(2) Lammers, as a witness, stated before this Tribunal that Hitler made all important decisions quite alone; thus also the decision concerning war against Russia.

(3) To my question about Rosenberg’s influence on Hitler’s decisions concerning foreign policy, Göring replied before this Tribunal on 16 March 1946:

“I think that after the accession to power, the Führer did not
consult the Party Office of Foreign Affairs a single time about
questions concerning foreign policy and that it was created only
as a center for dealing with certain questions concerning
foreign policy which came up within the Party. As far as I know,
Rosenberg was certainly not consulted about political decisions
after the accession to power.”

This was also confirmed by the witness Von Neurath on 26 June 1946 in this courtroom.

(4) Finally, I would further like to refer to the “brief report concerning the activity of the Office of Foreign Affairs of the NSDAP” (Document Number 003-PS, USA-603). Brief mention is made in it of the “Near East” in such a harmless manner that no word need be said about it. In the confidential reports 004-PS and 007-PS nothing is said either about any preparations against the Soviet Union.

Administration in the East.