Chapter VI: Front Matter (6)

Now I come to a new subject: Contrary to the assumption of the Prosecution, Rosenberg was in no instance the instigator of a persecution of Jews, any more than he was one of the leaders and originators of the policy adopted by the Party and the Reich, as the Prosecution claims (Walsh, on 13 December 1945, Volume III, Page 539). Rosenberg was certainly a convinced anti-Semite and expressed his conviction and the reasons for it both verbally and in writing. However, in his case anti-Semitism was not the most outstanding of his activities. In his book _Blood and Honor_, speeches and essays between 1919 and 1933, out of 64 speeches, for example, only one had a title referring to Jewry. The same applies to the other two volumes of his speeches. He felt his spiritual ancestors to be the mystic Meister Ekkehart, Goethe, Lagarde, and Houston Stewart Chamberlain; anti-Semitism was for him a negative element, and his chief and most positive efforts were directed toward the proclamation of a new German intellectual attitude, and a new German culture. Because he found this endangered after 1918, he became an opponent of Jewry. Even such different personalities as Von Papen, Von Neurath, and Raeder now confess to their belief that the penetration of the Jewish element into the whole of public life was so great that a change had to be brought about. It strikes me as very important, however, that the nature of Rosenberg’s anti-Semitism was intellectual above all. For example, at the Party Rally of 1933 he explicitly mentioned a “chivalrous solution” of the Jewish question. We never heard Rosenberg use expressions like “We must annihilate the Jews wherever we find them; we shall take measures that will insure success. We must abandon all feelings of sympathy.” The Prosecution itself quotes the following as an expression of the program Rosenberg set up for himself (Volume III, Page 529):

“After the Jews have been ousted as a matter of course from all
official positions, the Jewish question will find a decisive
solution through the setting up of ghettos.”

GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. President, rather reluctantly I interrupt counsel for the defense, and I do not like to take the time of the Tribunal, but what I just heard is going beyond any permissible limits. When the defendants sitting in the dock tried to express their Fascist views, this was deemed inappropriate and cut short by the Tribunal.

I think that it is absolutely inadmissible that defense counsel should use this place to promote antihuman propaganda; I cannot understand the contention of the lawyer who alleges the existence of a noble, spiritual anti-Semitism which Rosenberg advocates and that Rosenberg’s belief in gathering all Jews in ghettos was chivalrous. Please note that the lawyer is not quoting any Nazi leader but expresses his own opinion, and I protest against the use of the International Military Tribunal for the spreading of Fascist propaganda. I ask the Tribunal to consider this objection of mine and to take appropriate action.

DR. THOMA: May it please the Tribunal—may I make an answer to that?

THE PRESIDENT: Dr. Thoma, we don’t think it is necessary to trouble you. The Tribunal thinks—there may be, of course, differences of opinion as to the use of words in the course of your argument, but they see no reason for stopping you in the argument that you are presenting to the Tribunal.

DR. THOMA: Thank you, My Lord.

May it please the Tribunal, after what General Rudenko has said, I should like to make one statement. In my speech I have tried to argue upon the statements of the Prosecution and nothing else. I would like to say something else. The words “chivalrous solution of the Jewish question” were not my expression; I just quoted that as a statement made by Rosenberg a long time before he came into this Court. The Prosecution quotes the following as Rosenberg’s statement of a program: “The Jewish question...” and so on; I have already read that.

It was not a mere question of chance that Rosenberg did not take part in, the boycotting of Jews in 1933, that he was not called upon to work out the laws against the Jews in 1933, 1934, 1935, and so on (expatriation, prohibition of marriages, withdrawal of the right to vote, expulsion from all important positions and offices). Above all, he never took part in the action of 1938 against the Jews, nor in the destruction of synagogues, nor in anti-Semitic demonstrations. Neither was he the instigator in the background who sent out, or ordered, lesser people to commit certain actions. To be sure, Rosenberg was a true follower of Hitler, who took up Hitler’s slogans and passed them on. For example, the motto, “The Jewish question will be solved only when the last Jew has left Germany and the European continent,” and once the slogan of “Extermination of Jewry.”

Exaggerated expressions were always part of the National Socialist weapons of propaganda. A Hitler speech was hardly imaginable without insults to his internal or external political opponents, or without threats of extermination. Every one of Hitler’s speeches was echoed a million times by Goebbels down to the last speaker of the Party in a small country inn. The same sentences and words which Hitler had used were repeated, and not only in all the political speeches, but in the German press as well, in all the editorials and essays, until, weeks or months later, a new speech was given which brought about a new echo of a similar kind.

Rosenberg was no exception. He repeated, as everyone did, all of Hitler’s slogans, including that of the “solution of the Jewish question,” and once also that of the “extermination of Jewry.” Apparently, like Hitler’s other supporters, he gave as much or as little thought to the fact that in reality none of those phrases were clear but that they had a sinister double meaning and, while they might have meant real expulsion, they might also have implied the physical annihilation and murder of the Jews.

May I remind the Tribunal at this point that Rosenberg, during his testimony, made a reference to a speech of the British Prime Minister in the House of Commons in September 1943, in which speech it was stated that Prussian militarism and National Socialism had to be exterminated root and branch. No German interpreted that literally, and I believe no one interpreted it to mean that German soldiers and the National Socialism had to be exterminated physically.

Aside from the knowledge and will of the German people, and aside from the knowledge and will of the majority of the leadership of the Party—that is to say, known only to Bormann, Himmler, and Eichmann—there was hatched and carried out, from 1941 onward, a mass crime which surpassed all human concepts of reason and morality. The “Jewish question” was developed even further and brought to a so-called “final solution.”

The Tribunal will have to decide the question whether Rosenberg, the specially characteristic exponent of the Party, the Reich Minister for the Occupied Eastern Territories, is also responsible for the murder of the Jews, and particularly for the murder of Jews in the East; that is, is he a murderer of Jews? Or must it be recognized and admitted that, although he stands but a hair’s breadth from the abyss, it was, after all, external circumstances which led up to it all, and that these circumstances were outside his sphere of responsibility and guilt?

I believe I can say that Rosenberg never aimed, either openly or in secret, at the physical extermination of the Jews. His reserve and moderation were certainly no mere tactics. The slipping of anti-Semitism into crime took place without his knowledge or will. The fact in itself that he preached anti-Semitism justifies his punishment as the murderer of Jews as little as one could hold Rousseau and Mirabeau responsible for the subsequent horrors of the French Revolution.

Furthermore, no matter how much the first impression might lead to it, criminal guilt on his part cannot be deduced from his position as Reich Minister for the Occupied Eastern Territories. As already stated, the “responsible minister” cannot simply be held responsible for criminal acts committed in his sphere or his territory. Criminal responsibility, according to the German Penal Code, Paragraph 357, exists only if an official knowingly assents to the criminal actions of his subordinates, and if—the commentaries furnish this supplement—the superior is in a position to prevent the action.

I should like to take up the question of his responsibility on the grounds of the documents submitted for this purpose.

(1) The action taken against the Jews at Sluzk (Document Number 1104-PS).

On 27 October 1941, a horrible slaughter of Jews took place in Sluzk, committed by the four companies of a police battalion, because the commander received an order from his superior to clear the city of all Jews without exception. The district commissioner immediately made vigorous protests, demanded that the action be stopped at once, and gun in hand kept the police officers in check as far as he was able. He reported to the General Commissioner of White Ruthenia, Kube, at Minsk, and the latter suggested to the Reich Commissioner Ostland, Lohse, that the officers implicated be punished for this “unheard-of bestiality.” He in turn reported to the Reich Minister for the East, with the request that immediate measures be taken at higher levels. The Reich Minister for the Occupied Eastern Territories sent the entire report to Heydrich, the Chief of the Security Police and of the SD, requesting further action. Due to an ingenious system according to which the Police were not responsible to the competent administrative chief and were not even obliged to report, Rosenberg could not take any further steps either in this or in similar cases. He was not head of the Police, and could only hope that the transmission of the report to Heydrich would be sufficient to stop what he considered to be regional excesses of the Police.

It can be seen from the indignation of all the administrative offices over the reported incidents that none of them knew that it was no question of excesses, but of an action ordered by Heydrich and Himmler. Even though Rosenberg violently disliked Heydrich and Himmler, not even he could suspect anything of this kind.

(2) Also from October 1941 dates Document 3663-PS in which the Reich Minister for the Occupied Eastern Territories, for whom Dr. Leibbrandt signed, calls for a report by the Reich Commissioner Ostland, because a complaint has been made by the Reich Security Main Office that the Reich Commissioner Ostland had prohibited executions of Jews in Libau. To this the addressee replied:

“I prohibited the execution of Jews in Libau because there was
no justification for the way in which it was carried out.”

This is followed by a request for further instructions. Regarding this document—which is signed by the departmental chief Leibbrandt, and which in no way points to any knowledge on the part of the Defendant Rosenberg—I wish to make the following provisional brief statement:

It is not conceived as a reproach by the Reich Minister for the East because the executions of Jews were discontinued, but it simply represents the transmittal of a complaint by the Reich Security Main Office, adding a request to report. It is to be presumed that the reason for the complaint was that the Reich Commissioner Ostland encroached on the competency of the Reich Security Main Office and the demand for a report was presumably issued in that sense. In a letter of 18 December 1941, the Reich Minister, in a letter also signed “By order: Bräutigam,” asked the Reich Commissioner Ostland to settle directly any questions which might arise with the Higher SS and Police Leader.

To identify the letter “R” as Rosenberg’s initial, because the Prosecution obviously was more than doubtful about Rosenberg’s knowledge of matters, turned out to be equally unfortunate. This “R” is not Rosenberg’s.

(3) Document Number 3428-PS concerns a letter of the General Commissioner for White Ruthenia to the Reich Commissioner for the East. It is a shocking document about the mass extermination of Jews in White Ruthenia; however, there is nothing of interest in it for the case against Rosenberg, because those horrible events could be attributed to him only if he knew of them, and in neglect of his duty failed to intervene. There is no actual proof to found a supposition of such knowledge. The claim that these documents were found in Rosenberg’s possession cannot be in accordance with the actual facts, for they show the Reich Commissioner in Riga as the addressee.

(4) In the “Memorandum for the Führer of 18 December 1941” (Document Number 001-PS) the defendant suggested the following, which I must quote literally:

“The assaults against members of the German Armed Forces have
not stopped, but have gone on. It seems to be an obvious plan to
disturb German-French co-operation, to force Germany to take
measures of retaliation, thereby bringing about a new defensive
attitude on the part of the French against Germany. My
suggestion to the Führer is that instead of killing 100
Frenchmen, he should have 100 or more Jewish bankers, lawyers,
_et cetera_, shot.”

It is not my task here to discuss how far it is admissible to shoot hostages, but one thing is certain, that Rosenberg was convinced such a measure was admissible. In that case, however, his suggestion must be considered in that light, and can by no means be judged as an independent incitement to murder. Besides, the suggestion had no results. In his reply of 31 December 1941, Lammers, acting on behalf of the Führer, merely referred to the suggestion of utilizing the furniture and fittings from Jewish houses, and not to the shooting of hostages. Therefore, Rosenberg made no more reference to it.

At this point I should like to interpolate the following: The French prosecutor charged Rosenberg, when the latter was in the witness box, with the fact that this was murder. Gentlemen of the Tribunal, it was not murder, because no execution took place. But neither was it incitement to murder. One can only incite someone who still has to be persuaded. However, if the man who commits the act is already prepared for anything, is an _omni modo facturus_, then he can be incited no more, and there only remains the offense of a suggestion of a criminal act, which, according to German law, must be judged as an offense to receive only slight punishment, because it has had no consequence.

Just at this point I should like to recall that Rosenberg testified as a witness that on one occasion a court sentenced a district commissioner in the East to death for having extorted valuables from a Jewish family, and that that sentence was carried out. Please do not consider it an improper argument of the defense when I say: Does that not prove that Rosenberg abhorred criminal acts against the Jews?

(5) Document Number Rosenberg-135, Exhibit Number USSR-289, refers to the report of the General Commissioner of White Ruthenia in Minsk, dated 1 June 1943, on the subject of what happened in the prison of Minsk as regards gold fillings. This was addressed to the Reich Commissioner Ostland, who forwarded the report on 18 June 1943 with the utmost indignation. At his hearing before the Tribunal on 16 April 1946 the defendant already made a statement on this point. I should like to repeat this briefly now: The defendant had returned on 22 June 1943 from an official visit to the Ukraine and found a pile of notices about conferences, a number of letters, and above all the Führer decree from the middle of June 1943, in which Rosenberg was instructed to limit himself to the fundamentals of lawmaking and not to bother about details. Herr Rosenberg did not read the letter concerned, but he has to surmise—he cannot remember this—that the letter was explained to him by his office, and presumably in the course of the reading he was informed of many documents and learned that there was again serious trouble between the Police and the civilian administration, and it is probable that Rosenberg said: Turn that over for investigation to Gauleiter Meyer or to the liaison officer. Otherwise the terrible details would certainly have remained in Rosenberg’s memory.

Nobody doubts for a moment that the horrible crimes shown in these documents and all the other frightful things not covered in the documents, but which actually happened, call for atonement. Nobody doubts that not only the lesser henchmen acting on higher orders shall be punished, but also above all those who issued the orders, and those responsible for the crimes. Rosenberg did not issue an order to murder Jews; that much is clear. Is he, in spite of this, responsible for the frightful murders?

There is no trace of the defendant’s handwriting on any of the murder documents. Nor has it been determined in any case that he knew anything about what went on. Can we condemn Rosenberg on the basis of his presumed and probable knowledge? Rosenberg has by no means the intention of playing a false and cowardly game of hide-and-seek behind his advisers and officials. But let us remember how cunningly the so-called executions of the Jews were kept secret, not only from the public, but even from Hitler’s closest collaborators.

Is it not possible, and even credible, that they were playing a game of hide-and-seek even with Rosenberg? The thoughts and intentions of none of the other NSDAP leaders were revealed so openly and clearly to all the world as particularly those of the author Rosenberg. Of none other could one be so sure that he would turn with indignation from inhuman and criminal acts.

But let us go one step further and assume that Rosenberg had full knowledge of this greatest crime. It is not proved, but one could imagine it and surmise it. Is he then responsible, too? Peculiar, even subtle, as we well know, was the departmental authority, and the responsibility which went with it, in the eastern countries. The entire police system had been taken from Rosenberg’s sphere of influence, at the highest level of which was Himmler, and under him Heydrich. Of their orders and measures Rosenberg naturally had no knowledge and no idea.

The lower echelons of police leaders and police agencies were in effect subordinate and responsible to their police superiors and no one else. It was quite immaterial whether or not Rosenberg knew anything of the measures taken by the Police; he could change them as little as any other of his fellow citizens in the Third Reich. One might say: Yes, he could have remonstrated with Himmler or Hitler; he could have resigned. Of course, he could have done so. The decisive point, however, is not whether he could have done it; the question is whether he would have achieved anything by doing so—that is to say, whether he could have prevented the execution; for only in such a case could his responsibility be affirmed on the basis of his failure to act, and only in such a case could one speak of causality without which criminal responsibility is unthinkable.

One might further claim, still under the assumption of Rosenberg’s knowledge of matters, that Rosenberg could at least have taken steps against the Reich commissioners, who were obviously involved in these matters. We know that the administrative organization and the dividing up of final authority in the East were vague, to say the least. The Reich commissioners were sovereign masters in their own territory, who had the final decision in the shooting of hostages and in other retaliatory measures of far-reaching consequence. And what was the actual extent of their authority? In case the Reich Commissioner was dissatisfied with Rosenberg—and mostly he was dissatisfied—he went to Hitler. Does anyone really believe that if Rosenberg disagreed with Koch as regards the execution of Jews, he would have been upheld by Hitler if he had approached him? Here again, there is a lack of that causality which is indispensable for a legal condemnation.

I come now to the Einsatzstab Rosenberg, the Operational Staff Rosenberg.

No less than three prosecutors have taken the stand in this Trial against Rosenberg, and have accused him of wholesale stealing of objects of art and science in the East and West (Storey, 18 December 1945; Gerthoffer, 6 February 1946; Smirnov, 15 February 1946). First I must take exception to some obvious exaggerations and injustices, that is, the assertion that the activities of the special staff in the West extended to public and private property without distinction (Volume VII, Page 55), and that the objects of art Germany appropriated amount to more than the combined treasures of the Metropolitan Museum in New York, of the British Museum in London, of the Louvre in Paris, and of the Tretjakov Gallery. Further, I must declare the statement incorrect that the “looting program” of Rosenberg was intended to rob the occupied countries of their entire centuries-old possessions of art and science. Finally, the Prosecution contrasts Rosenberg’s actions to the looting of art treasures in former wars. It says that while egotism, conceit, taste, and personal inclination used to be the underlying motives of such looting, the National Socialists primarily had the criminal intention of storing up reserves of valuables (Volume VII, Page 65). I think it unnecessary to refer to the looting of art treasures in former times as far back as Napoleon, because the concepts of international law and regulations have changed in the meantime, but I should like to mention two things:

First, how many of the most famous objects of art in the most famous galleries of the world got there through the channels of war and how many got there in a peaceful way?

Second, I am prepared to accept the fact that the Prosecution denies Rosenberg’s delight in art, or joy in the possession of art treasures as a possible motive for his actions, because Rosenberg was no robber, no plunderer, of art. He had no intention of appropriating the objects of art for himself or for someone else.

What were the actual facts? Rosenberg’s operational staff was active in the East and in the West. It had two tasks: First, to search libraries, archives, _et cetera_, for material suitable for the proposed “university” of the Party, to confiscate this material and take it away for the purpose of research, and secondly, to seize objects of cultural value which were in the possession of or which belonged to Jews, or which had no owner or were of a doubtful origin. The Prosecution says: “The true and only motive, the true and only purpose of this ‘seizure’ was robbery and looting; there could be no question of intentions of mere ‘safeguarding.’”

On 20 August 1941 Rosenberg wrote to the Reich Commissioner Ostland that he wished distinctly to prohibit the transfer of any kind of art treasure from any place whatsoever without the approval of the Reich Commissioner (Document Number 1015(c)-PS). On 30 September 1942 the Commander-in-Chief of the Army issued an order (Document Number 1015(n)-PS) in agreement with Rosenberg to the following effect:

“Apart from exceptional cases when it is urgent to safeguard
endangered objects of cultural value, it is desired that for the
time being such objects be left where they are.”

Later on, it says:

“The troops and all military commands within the operational
area are now as before directed to spare valuable cultural
monuments as far as possible and to prevent their destruction or
damage.”

In the report of the Special Staff for Creative Arts (report on work carried out between October 1940 and 1944, Document Number 1015(b)-PS) it is stated that in the Occupied Eastern Territories the activities of the Special Staff for Creative Arts were restricted to the scientific and photographic registration of official collections, and that the safeguarding and protection of these was carried out in co-operation with the military and civilian agencies. It says further that in the course of vacating the territories, several hundred valuable icons and paintings, _et cetera_, were saved and, with the co-operation of the individual army groups, were brought to a place of safekeeping in the Reich. Finally, on 12 June 1942 Rosenberg sent out the following decree in a circular letter to the highest Reich authorities, which reads:

“In the Occupied Eastern Territories a number of offices and
individuals are engaged in the safeguarding of objects of
cultural value. They work from various approaches to the subject
and independently of each other. It is absolutely essential for
the administration of these territories that a survey be made of
the existing objects of cultural value. Furthermore it must be
endeavored, as a general rule, to leave them where they are for
the time being. To this end I have set up a central office for
the registration and safeguarding of objects of cultural value
in the East as a special division within my ministry.”

Thus Rosenberg, as can be proved, proceeded from the point of view that objects of cultural value had to remain in the country and only through the retreat of the German troops were a few hundred valuable icons and paintings brought into Germany.

In time of war, objects of cultural value, both mobile and immobile, are as exposed to the danger of destruction as are any other objects of value. Rosenberg stopped all unnecessary destruction, theft, and removal; he centralized the safeguarding of objects of cultural value and had all necessary actions taken through his operational staff in the East and the West (for example, see Abel’s report on the library at Minsk, Document Number 076-PS). It is quite in accordance with the conception of international law (I quote Scholz, _Privateigentum im besetzten und unbesetzten Feindesland_, Berlin 1919, Page 36) that care should be taken on the part of the occupying powers not only to protect, but to safeguard and salvage protected objects of art as far as the war situation permits. It is even considered a cultural duty for the occupying power to remove particularly valuable objects of art from the combat zone and place them in safety as far as possible. Under certain circumstances the concept of international law may render it the cultural duty of the occupying power to bring into his own country for reasons of salvage objects of special scientific and artistic value. This is not an inadmissible “seizure” (Article 56, Paragraph 2, Rules of Land Warfare), because this term could only apply to acts which are anti-cultural, not to acts which are procultural. (See Scholz, as above, Page 37).

Finally, I want to refer to Document Number 1109-PS, a report according to which scientific institutes that had been saved were ready to be taken back to the Ukraine immediately after the hoped-for re-entry of the troops. I consider it completely impossible to read anything about looting into this clear text.

Certainly, in the East great quantities of cultural objects of considerable value were destroyed by direct military actions, or by wanton destruction, or looting. It would be a fundamental misconstruction of the true facts of the case, and a great injustice, if these losses should be charged to the account of the Einsatzstab and its chief, for his efforts went exactly in the opposite direction.

In the West (I refer to the testimony of the witness Robert Scholz of 19 June 1946, Document Number Rosenberg-41), the case was different but, in my opinion, here also the defendant cannot be charged with looting and robbing objects of art. When in the summer of 1940 the inhabitants of Paris, with the exception of the Jews, had once more returned, somebody conceived the idea of searching the now ownerless apartments, houses, and palaces for books and libraries and of taking to Germany whatever of this scientific material was of interest. From various branches of the Armed Forces came the report that especially in Jewish-owned palaces there were collections of objects of art which one could not guarantee to remain intact in case of a long occupation. Thereupon, Rosenberg made the proposal that his Einsatzstab be allowed to direct its attention to objects of art and to take them into its custody, which was then ordered by Hitler. What did the Einsatzstab do with these objects of art? It set up an accurate card index containing the names of the particular owner of each picture, photographed the art objects, scientifically appraised them, repaired them expertly insofar as was necessary, packed them carefully and shipped them to the Bavarian castles of Neuschwanstein and Chiemsee. Because of the danger of air raids, they were then stored in an old Austrian mine. Rosenberg attached great importance to keeping separate the objects cared for by the Einsatzstab, and not to have them mixed with the large-scale purchases which Hitler made for the proposed gallery in Linz.

Was that looting, robbery, theft? Looting is the indiscriminate and wanton carrying-off of objects in situations involving general distress and danger. Robbery is carrying off by force. Theft is carrying off without force. In all cases intent must exist to appropriate the object illegally for oneself or somebody else. What intent did Rosenberg have? He never denied that he and his co-workers had hopes of the pictures remaining in Germany. Perhaps as compensation or as a security for the peace negotiations, but in any case his intent was only directed at confiscating and safeguarding the objects and it has been proved that the question of what should be done with the confiscated items was left open until the end and that no decision was made on it. It is absolutely certain that Rosenberg did not have the intention of appropriating the things for himself or anybody else. If Rosenberg had been a plunderer of objects of art, he certainly would not have had exact notations made concerning dates and place of confiscation and names of the owners. As a precaution, however, I should also like to point out that because of the flight of their owners the objects were virtually ownerless, and that the question of the lack of a possessor and of the legality of their acquisition by Rosenberg cannot be judged by normal circumstances, but must be judged according to the extraordinary circumstances of the war. If the Prosecution claims that public and private objects of art were stolen at random, I should like to reply to the statement that only Jewish possessions, and indeed the specified ownerless objects were confiscated. Above all it is not true that state-owned property was also touched. Finally he did not act on his own responsibility but in carrying out a governmental order, and I want to ask that the fact be not overlooked that Rosenberg acted without any egotistical motive. Not a single picture passed into his private possession; he did not gain a single Reichsmark from this transaction involving millions, and after all, all the artistic and cultural property has been found again. I would like to thank the French Prosecution for having acknowledged this fact here publicly.

Göring supported the work of the Einsatzstab and, as he admits, “diverted” some objects for his own use, with the Führer’s approval. This disturbed Rosenberg because the Einsatzstab was in his name, and he declared that as a matter of principle he did not want to give anything even to the museums, that his task was purely one of registration and safeguarding. The Führer should have the final decision on these works of art. Rosenberg could not undertake anything against Göring, but he ordered his deputy Robert Scholz at least to make an accurate inventory of what was given to Göring, and to have the latter sign a receipt, which he did. Thus, most certainly it cannot be proved that Rosenberg had the intention of illegally appropriating the objects of art for himself or for somebody else. Furthermore, Robert Scholz confirmed that Rosenberg also forbade all his assistants to acquire any objects of art or culture even by virtue of an official appraisal (Document Number Rosenberg-41).

The Prosecution says that with the Rosenberg Einsatzstab a gang of vandals broke into the European House of Art in order to plunder in a barbarous way. If one contemplates the tremendous work of drawing up an inventory, of cataloging, of restoration, and of scientific appraisal, and if one finally bears in mind that all these treasures were most carefully stored away, and certainly came through the war better than would have been the case if the German authorities had not taken care of them, then I believe that, objectively speaking, one can use any term but that of “vandalism.”

THE PRESIDENT: I think this would be a good time to break off.

[_A recess was taken._]

DR. THOMA: Rosenberg is also especially charged with looting furniture. He allegedly ransacked the contents of 79,000 Jewish-owned homes, among them 38,000 in Paris, and took the loot to Germany. Unquestionably, these measures were taken for the benefit of air-raid victims; in the cities which had been destroyed by air warfare new homes were set up for the homeless. It was in line with National Socialist mentality and it must certainly be morally condemned that the confiscation was limited to Jewish property. The essential question, however, is whether the confiscation was at all legal. In all my statements I have avoided trying to excuse a weak legal position with a state of military emergency, and I do not wish to do it at this point either, for, as an expert on international law states, “The state of emergency is the lever by means of which the entire body of martial law can be torn from its hinges.” In this case, does not the justification of national and military necessity exist, did not air warfare bring intense and general distress to Germany?

One might object that such distress could have been ended by unconditional surrender. In my opinion, however, the above-mentioned justification cannot be denied to the defendant by this reference to unconditional surrender, entailing the Reich’s abandonment of its own existence, its independence, and its own vital interests. The appropriation of enemy private property took place in application of a right of requisitioning, which was extended beyond the legal terms of martial law and justified by the state of emergency. I venture to assert that his procedure of confiscating furniture, in view of the devastating effects of air warfare against Germany, was not contradictory to “the customs among civilized peoples,” “the laws of humanity,” and “the demands of the public conscience” (Marten’s clause in the preamble to the agreement concerning the Laws and Customs of Land Warfare; see Scholz, in the afore-mentioned book, Page 173).

May it please the High Tribunal, I shall now pass on to the Norway operation. The Prosecution characterizes Rosenberg and Raeder as the most energetic conspirators in the Norway operation, and later in the same matter calls Rosenberg a “dealer in high treason.” The opinion of the Prosecution and also the assumption of the present Norwegian Government (Norwegian Report of 13 October 1945, Document Number TC-56) are obviously to the effect that the Party’s Foreign Political Office, of which Rosenberg was the head, and Quisling had plotted the war against Norway in mutual conspiracy. I believe that of all the charges against Rosenberg hitherto dealt with, none has less foundation than this one. On the basis of the few documents which have been submitted to the Court, in my opinion the case could doubtlessly be cleared up in favor of the defendant.

There existed a Foreign Political Office of the Party, which had the task of informing foreign visitors about the National Socialist movement, of referring any suggestions to the official offices, and otherwise of functioning as a central office of the Party for questions of foreign policy. The special interest, and I may say the special sympathy, of the leading men of the Party and the State was directed toward the Scandinavian countries. It was specifically in this direction that the Foreign Political Office placed the main emphasis on the field of cultural policy. The already existing “Nordic Society” was expanded, the birthdays of great Scandinavian scientists and artists were observed in Germany, a great Nordic music festival was held, and so forth. The relations took on a really political note only with the appearance of Quisling, whom Rosenberg had seen for the first time in 1933 and who then, in 1939, 6 years later, looked up Rosenberg again after the convention of the Nordic Society in Lübeck; the former spoke of the danger of European entanglements and expressed the fear that Norway was in danger of being drawn into them. He then feared above all a partitioning of his country in such a manner that the Soviet Union would occupy the northern and England the southern part of Norway.

Quisling again came to see Rosenberg in Berlin in December 1939. The latter arranged for a conference with the Führer. Hitler declared that he would by far prefer to have Norway remain completely neutral and that he did not intend to extend the theater of war and involve more nations in the conflict, but he would know how to defend himself against a further isolation of Germany and further threats against her. In order to counteract the increasing activity of enemy propaganda, Quisling was promised financial support of his movement, which was based on the pan-Germanic idea. The military treatment of the questions now taken up was assigned to a special military staff; Rosenberg was to deal with the political aspect, and he appointed his assistant Scheidt to maintain liaison. Hagelin, a Norwegian confidential agent of Quisling’s, in January 1940 gave Rosenberg some more disturbing reports on the feared violation of neutrality by the Norwegian Government, and Rosenberg passed them on to Hitler. After the _Altmark_ incident, Hagelin, who moved in Norwegian Government circles, intensified his warnings to the effect that the Allies had already begun to examine the Norwegian seaports for disembarkation and transportation possibilities; in any case, the Norwegian Government would be satisfied with protests on paper, and Quisling was indicating that any delay in undertaking a counteraction would mean an exceptional risk. Rosenberg again handed the reports immediately to Hitler. If he had not done so that would have been downright treason to his country. The German counterblow followed on 9 April 1940, and Rosenberg learned about it from the radio and the newspapers like any ordinary citizen. After his above-mentioned report, which he made in the line of duty, Rosenberg, did not participate in either diplomatic or military preparations.

Should there still be any doubt that in the Norwegian case Rosenberg was only an agent who forwarded information to Hitler, and not an instigator, conspirator, or traitor, I should like to refer to two documents. First, to Document Number C-65, Rosenberg’s file note concerning Quisling’s visit. Obviously, it is the information on Quisling which Hitler had requested from Rosenberg. If Rosenberg had been on closer terms with Quisling, he certainly would have been only too glad to inform Hitler about it. Rosenberg had only heard of a fantastic and impracticable plan of Quisling’s for a _coup d’état_ (occupation of important central offices in Oslo by sudden action, supported by specially selected Norwegians who had been trained in Germany, afterward having the German fleet called in by a newly formed Norwegian Government). However, an earlier report of Quisling appeared less fantastic to Rosenberg; according to this—names being given—officers of the Western Powers traveled through Norway as consular officials, ascertained the depth of the water in ports of disembarkation, and made inquiries into the cross-sections and clearances of railway tunnels. This was the true and only reason for everything Rosenberg did in the Norwegian matter.

The second document is the report concerning “The Political Preparation of the Norway Operation” (Document Number 004-PS, Exhibit Number GB-140), a report from Rosenberg to Hess of 17 June 1940. In this interdepartmental report there is also nothing which deviates from Rosenberg’s own trustworthy statement and which would allow him to appear as an instigator of war and of high treason. Rosenberg was not called into any political or military discussion concerning Norway. Thus, what criminal act did Rosenberg commit? Was it criminal that he tried “to gain influence in Norway” (Document Number TC-56), or that with his knowledge the Foreign Office gave subsidies to Quisling? Finally, I should also like to point out that later on, after the operation had succeeded, Rosenberg was in no way entrusted with an office or function with regard to Norway; that even the appointment of a Reich Commissioner for Norway was carried out without consulting him.

I shall not deal with the case of Minister Goga, which I have set forth in detail, but I ask the High Tribunal to consider it as having been dealt with. Now I turn to the topic: Persecution of the Church.

The Prosecution maintains that Rosenberg, together with Bormann, issued the orders for religious persecutions and induced others to participate in these persecutions. However, not a single order of that kind is known. There were presented only letters by Bormann, partly to Rosenberg, partly to others, from which no charges against Rosenberg can be drawn. On the contrary Rosenberg was repeatedly reproached, as on one occasion when in the presence of Hitler he praised a book by Reich Bishop Müller (Document Number 100-PS); another time when Rosenberg gave Reich Bishop Müller instructions to work out directives for thoughts regarding religious instruction in schools (Document Number 098-PS); once again when Rosenberg sponsored a strictly Christian work by General Von Rabenau.

As a witness Rosenberg himself declared (Volume XI, Page 461) that he had opposed propaganda advocating withdrawal from the Church and had never called for state and police measures against his opponents in the fields of theology and research, and particularly that he had never used the Police for suppressing those who were opponents of his book _The Myth of the 20th Century_. In December 1941, as Reich Minister for the Occupied Eastern Territories, he issued an edict for Church toleration (Documents Number 1517-PS and 294-PS). Rosenberg had nothing to do with arrests, the deportation of priests, and persecution of the Church. He had no part either in the negotiations with the Vatican over the Concordat or in the assignment of the Protestant Reich Bishop; neither did he take any part in measures which were hostile to the Church, and which were later carried out by the Police. He never participated in any other administrative or legislative anticlerical measures.

In my opinion it is quite impossible, for lack of documentary evidence, to construe from what Rosenberg thought and said about religious and philosophical matters—which I will quote presently—that he conspired toward a political suppression of religion by force. The only document (Number 130-PS) pointing in this direction was withdrawn by the American Prosecution itself before I was obliged to draw attention to its being a pamphlet directed against Rosenberg.

His book _The Myth of the 20th Century_, which is allegedly written for the reshaping of the denominations in the direction of a Germanic Christianity, is moreover chiefly addressed to those who had already broken with the Church. “No consciously responsible German,” says Rosenberg at one place in it, “should suggest withdrawal from the Churches to those who are still believing members thereof” (Document Number Rosenberg-7, Document Book 1, Page 122), and once again: “Science would never have the power to dethrone true religion” (see as above, Page 125). His writings are not addressed to the faithful churchgoers of today in order to hinder them in the course of their chosen spiritual life, but to those who have already discarded their religious faith (Document Number Rosenberg-7, Document Book 1, Page 125). In his speeches he upheld the view that the Party is not entitled to establish norms in metaphysical matters which contest immortality, et cetera. After he had been assigned to supervise ideological education, he said explicitly in his Berlin speech of 22 February 1934: “No National Socialist is allowed to engage in religious discussions while wearing the uniform of his Movement,” and he declared at the same time that “all well-disposed persons should strive for the pacification of the entire political and spiritual life in Germany” (Document Number Rosenberg-7(a), Document Book 1, Page 130). That in this respect, too, things developed along different lines is not due to the desire or influence of Rosenberg.

Moreover, I need make only brief allusion to the fact that it is a question of the 1000-year-old problem of relations between the clerical and so-called temporal powers. The struggle of emperors, kings, and popes in the Middle Ages; the French Revolution with the shooting of priests; Bismarck’s clerical controversies; the secular legislation of the French Republic under Combes; all those were things, which from the standpoint of the Churches ...

Mr. President, may I make a brief statement by way of explanation? I wanted to say that I have concluded this topic, that I do not wish to concern myself with the problem of Church persecutions any further. I have finished with it. I am coming to the topic of ideology and general politics.

Ideology and education have been nothing but a means of obtaining power and consolidating that power; uniformity of thinking has played an important part in the program of the conspiracy; the formation of the Armed Forces has only been possible in conjunction with the ideological education of the nation and Party—so says the Prosecution (Brudno, on 9 January 1946). And continuing its attacks against Rosenberg, the Prosecution proceeds by saying that Rosenberg’s ideas formed the foundation of the National Socialist movement, and that Rosenberg’s contribution in formulating and spreading the National Socialist ideology gave foundation to the conspiracy by shaping its “philosophical technique.”

I think that one will have to take care, in judging Rosenberg’s case, not to yield to certain primitive ways of thinking and become a victim of them: First of all an exaggeration of the conception of ideology and the inexact use of that concept. At best it was a political philosophy which was hand in glove with Hitler’s political measures and which Hitler himself preached in his book _Mein Kampf_, but it was not an ideology in an all-embracing sense. It is true that National Socialism endeavored to create a spiritual philosophy and an ideology of its own, but it had not reached that stage yet by far. Rosenberg’s book _The Myth of the 20th Century_ is an attempt in that direction, being a personal confession, without any suggestion of political measures. Therefore, his philosophy cannot have formed the ideological basis of National Socialism. In addition there is a total lack of proof that a straight spiritual line, a clear spiritual causal connection, exists between the conceptions of Rosenberg and the alleged and actual crimes.

If one goes to the trouble of looking through the book, _The Myth of the 20th Century_, one will immediately observe that though there is some philosophizing in the National Socialist way, it would be, however, pure fiction to affirm that there is any dogmatic formulation of a tangible program in this book, or that it is a foundation for the activities of the responsible leaders of the Reich in this World War. Another mistake of National Socialism was perhaps the boundless unification and simplification: people were made uniform; thinking was made uniform; only one uniform type of German was left. There was also alleged to be only one National Socialist way of thinking, and only National Socialist ideology. But in spite of this, as we see today, the leaders were frequently of different opinions on essential questions. I will recall the question of the policy in the East. Here too, there seems to be danger of accepting this way of thinking, of observing everything through the spectacles of uniformity, and of saying: One idea, one philosophy, one responsibility, one crime, one punishment. Such a simplification, apart from its primitive nature, would certainly also constitute a great injustice toward the Defendant Rosenberg.

Finally, when one hears how the Prosecution attacks “Germanic Christianity,” the “heathen blood myth,” making much of Rosenberg’s expression, “the Nordic blood is the mystery which has superseded and overpowered the old sacraments,” one feels inclined to close one’s eyes for a moment and to picture oneself attending a session of the Inquisition in the Middle Ages where they are about to sentence Rosenberg to the stake as a heretic. Yet nothing must be farther from the Tribunal’s mind than to harbor thoughts of intolerance, since here, in spite of all attempts by some of the prosecutors, it is not ideologies but crimes which are involved.

In the Defendant Rosenberg’s case it is a question of whether by his teachings he was guilty of preparing and promoting crimes. The Prosecution has brought forth arguments to this end, but have not proved it, while I can prove the opposite merely by pointing to Rosenberg’s activities in the East. Had he been the bearer and apostle of a criminal idea, he would have had an opportunity, such as no criminal has ever yet had in world history, to indulge in criminal activities. I have stated explicitly that in his case it was just the opposite. So when the bearer and apostle of an idea himself has the greatest of opportunities and yet in practice himself behaves morally, then his teachings cannot be criminal and immoral either. Above all, he cannot then be punished as a criminal on the basis of his teachings. What criminally degenerate persons practiced as alleged National Socialism cannot be laid to the charge of Rosenberg. Moreover, Rosenberg’s speeches in three volumes, which express what he taught in the course of 8 years, bear witness to the honorable nature of his endeavors.

Thus, if we relinquish the false conception of uniformity: One party, one philosophy, one ideology, one crime—and we will have to, in view of the indisputable fact that Rosenberg himself never pursued a policy of extermination, destruction, and enslavement in the East—we shall have to admit that the facts of the terrible central executive orders and of Rosenberg’s philosophy are not identical, and on these grounds alone the conclusions of the Prosecution are invalid.

Karl Marx teaches that historical events and political social reality are conditioned by the mere casual play of materialistic forces. Whether Marx in addition acknowledges the independent influence of man and ideas on history is at least doubtful. On the other hand, Rosenberg stresses emphatically the influence and the necessity of the highest ideas in the history of peoples. But Rosenberg does not overlook the fact that every event in history is the result of a totality of acting forces. The will, the passions and the intelligence of the people involved work together to form a historical process which cannot be calculated in human terms. It has already been pointed out that, just as little as Voltaire’s and Rousseau’s ideas can be recognized as the causes of the French Revolution, and the slogans of “Liberty, Equality, and Fraternity” be taken as the cause of the Jacobinic terror, as little as one can say that Mirabeau and Sièze had wanted or plotted such a blood bath, so little can one ascribe to Rosenberg as his moral or even criminal guilt that which National Socialism became during its development through the decades. In other words, I believe it is as unjust as it is unhistorical to ascribe today, in retrospect, the negative aspects of National Socialism, which were connected with the terrible collapse, to a plan desired from the outset and emanating from Rosenberg’s ideas.

Therefore, in considering Rosenberg’s work the mistake of a standardization which does not correspond to reality is added to the further mistake of mechanization; there is neither a mechanical man nor mechanical history. And, finally, the construction of the Indictment is also an absolutely negative one; it views the defendant from the standpoint of political polemics and is impressed by the excitement of people in these excited times. I must briefly take exception to this distortion of the defendant’s mental traits.

The spiritual state of the period after the first World War and even of the preceding period, which gave birth to the defendant’s ideas, are known to all of us only too well: The turmoil in the spirit and soul of man brought about by the technical age, his hunger and thirst for a new spirit and a new soul; liberty was the slogan and a “new beginning” the impulse which directed the will of youth. Its longing and enthusiasm were aimed at nature. The thoughts and wishes of this generation were led into political paths by the contrast between rich and poor, which youth considered unjust and sought to bridge through socialism and the fellowship of the people. In Germany the development along political lines was given further impetus by the national misfortune of 1918-19 and the Treaty of Versailles, which was likewise felt to be unjust. The idea of building German history through the union of nationalism and socialism glowed unconsciously in the hearts of millions, as the undisputed tremendous success of National Socialism proves. The spiritual foundation was the desire for external and internal self-assertion and love for one’s fellow countrymen and for the people themselves, who had had to suffer so much torment and misery in history.