Chapter V: Front Matter (5)

It would be an easy, too superficial, and therefore, unjust procedure if one were to say that firstly the Eastern Territories were occupied in a war of aggression, and therefore anything the German administration did there was criminal; and secondly, that as Reich Minister for the Occupied Eastern Territories, Rosenberg was the responsible minister, and therefore he must be punished for all crimes which have occurred there, at least for what happened within the scope of the jurisdiction and authority of the administrative bodies. I will have to demonstrate that this conception is not correct for legal and factual reasons.

Rosenberg was the organizer and the highest authority of the administration in the East. On 17 July 1941 he was appointed Reich Minister for the Occupied Eastern Territories. Acting on instructions, he had performed preparatory work before that time on questions concerning Eastern Europe by contacting the Reich agencies concerned (Document Number 1039-PS; US-146). He planned and set up his office for dealing centrally with questions concerning Eastern Europe (Document Number 1024-PS; US-278). He had provisional instructions for the Reich Commissioners drawn up (Document Number 1030-PS; US-144); he delivered the programmatical speech of 20 June 1941 (Document Number 1068-PS; US-143); above all, he took part in the Führer conference of 16 July 1941 (Document Number L-221; US-317).

In the presence of Rosenberg, Lammers, Keitel, and Bormann, Hitler said at that time that the real aims of the war against Russia should not be made known to the whole world, that those present should understand clearly that “we will never withdraw from the new Eastern Territories; whatever opposition appears will be exterminated; never again must a military power develop west of the Urals; nobody but a German shall ever bear a weapon.” Hitler proclaimed the subjection and the exploitation of the Eastern Territories, and in making these statements he placed himself in opposition to what Rosenberg had told him before—without being contradicted by Hitler—concerning his own plans for the East.

Thus Hitler probably had a program of enslavement and exploitation. Nothing is so natural, and nothing easier than to say: Even before Rosenberg took over his ministry he knew Hitler’s aims for the East; namely, to rule it, to administer it, to exploit it. Therefore he is not only an accomplice in a crime of conspiracy against peace; he is also jointly responsible for the Crimes against Humanity perpetrated in the Eastern Territories, since Rosenberg held the complete power, the highest authority in the East.

I shall deal later, _de jure_ and _de facto_, with the question of Rosenberg’s automatic responsibility in his capacity as supreme chief of the Eastern Territories. First I would like to consider the question of his individual responsibility. One might deduce it from two reasons:

First, because he allegedly participated in the preparation of the war of aggression against the Soviet Union; I have already stated that this assertion is not correct; Rosenberg has neither ideologically nor actually participated in the preparations of the war of aggression.

Secondly, because he supported Hitler’s plan of conquest by making plans, delivering speeches, and organizing the administration. When a minister or general, following the instructions of the head of the State, elaborates plans or takes preparatory measures of an organizational nature, for later eventualities, this activity cannot be considered as criminal even when the interests of other countries are affected thereby and even when the plans, preparations, and measures are intended for war. Only when the minister or general in question directs his activity toward things which have to be considered as criminal according to sound common sense and an international sense of decency and justice can he be held individually responsible. Rosenberg has consistently proved by word and deed that the traditional conceptions of right are his conceptions also and that he desired to enforce them. But his position was particularly difficult since his supreme chief finally exceeded all limits in his ideas, aims, and intentions and since other strong forces like Bormann, Himmler, and Gauleiter Erich Koch were also involved, who frustrated and sabotaged Rosenberg’s good and fair intentions.

Thus we witness the strange spectacle of a minister in office who partly cannot understand or approve, partly is totally unaware of the intentions of the head of the State; and on the other hand that of the head of a state who appoints a minister to take office, who is certainly an old and loyal political fellow combatant, but with whom he has no longer any spiritual contact whatsoever. It would be wrong to judge such a situation simply according to democratic conceptions of the responsibility of a minister. Rosenberg could not simply resign, yet he felt inwardly the duty of fighting for the point of view which appeared to him right and decent.

In his speech of 20 June 1941 Rosenberg said that it was the duty of the Germans to consider that Germany should not have to fight every 25 years for her existence in the East. He by no means, however, desired the extermination of the Slavs, but the advancement of all the nations of Eastern Europe and the advancement, not the annihilation, of their national independence. He demanded (Document Number 1058-PS; Exhibit USA-147) “friendly sentiments” toward the Ukrainians, a guarantee of “national and cultural existence” for the Caucasians; he emphasized that, even with a war on, we were “not enemies of the Russian people, whose great achievements we fully recognize.” He advocated “the right of self-determination of people”—one of the first points of the whole Soviet revolution. This was his idea, tenaciously defended till the end. The speech in question also contains the passage which the Prosecution holds against him in particular, that the feeding of the German people during these years will be placed at the top of German demands in the East and that the southern territories and the North Caucasus would have to make up the balance in feeding the German people. Then, Rosenberg continues literally:

“We do not see at all why we should be compelled to feed the
Russian people also from these regions of surplus. We know that
this is a bitter necessity which lies beyond any sentiment.
Without a doubt extensive evacuation will be necessary, and
there are very hard years ahead for the Russians. To what extent
industries are to be kept up there is a question reserved for
future decision.”

This passage comes quite suddenly and all by itself in the long speech. One feels distinctly that it has been squeezed in; it is not Rosenberg’s voice; Rosenberg does not proclaim here a program of his own but only states facts which lie beyond his will. In the directives of the eastern ministry (Document Number 1056-PS) the feeding of the population, as well as supplying it with medical necessities, is described as being especially urgent.

On the contrary, the true Rosenberg emerges in the conference of 16 July 1941 when, regarding Hitler’s plans, he called attention to the University of Kiev and to the independence and cultural advancement of the Ukraine and when he took a stand against the intended full power of the Police and above all against the appointment of Gauleiter Erich Koch in the Ukraine (Document Number L-221).

One will contend: What is the use of opposition and protests, what is the use of secret reservations and of feigned agreement with Hitler’s intentions—Rosenberg did co-operate all the same. Therefore he is responsible too. Later on I will outline in detail how and to what extent Rosenberg took part in the policy in the East, what things he did not do and how he opposed them, what he planned and desired himself in order to defend himself against the grave charge of being responsible for the alleged exploitation and enslavement of the East. Here I would only like to point out the following: It was in no way a hopeless task to begin by accepting even Hitler’s most passionate statements without contradiction in the hope and with the intention of nevertheless attaining a different result later on. In opposition to Hitler’s statement: “No other than a German may ever bear weapons in the East,” it was not long, for example, before, on Rosenberg’s recommendation, legions of volunteers were formed from the peoples of the East; and in opposition to Hitler’s wish, an edict of tolerance was issued at the end of 1941 for the churches of the East (Document Number 1517-PS).

If, at first, Rosenberg could achieve nothing for the autonomy of the eastern nations, he still adhered to his plans for the future in this respect too. First he took care of the urgent agrarian question. An agrarian program was drawn up, which it was possible to present to the Führer on 15 February 1942, and which was authorized by him in unchanged form. It was not an instrument of exploitation, but an act of liberal formation of the agrarian constitution in the midst of the most terrible of wars. Right in the middle of the war the eastern countries not only received a new agrarian constitution but also agricultural machinery. The witness Professor Dencker, in his affidavit, has borne witness to the following deliveries to the occupied Soviet territories, including the former border states:

Tractors, 40-50 HP about 7,000
Threshing machines about 5,000
Agricultural implements about 200,000
Gas generators for German
and Russian tractors about 24,000
Harvesters about 35,000
Total Cost: about 180,000,000 marks.

I do not think one can say that these deliveries were made with a view to exploitation. So in this, too, Rosenberg accomplished a piece of constructive work that was really a blessing. In the following I will first treat the question of Rosenberg’s automatic responsibility as minister for the Eastern Territories; that is, the question of his criminal liability on the grounds of his official position.

On 17 July 1941, Rosenberg was appointed Reich Minister for the Occupied Eastern Territories. Two Reich Commissariats were set up as supreme territorial authorities: “Ostland” (Esthonia, Latvia, Lithuania, and White Ruthenia) under Reich Commissioner Lohse, and “Ukraine” under Reich Commissioner Koch. The Reich Commissariats were divided into general districts and regions. Right from the beginning the eastern ministry was not conceived as an administrative authority built on a large scale but as a central office, a supreme authority which was to confine itself to over-all instructions and fundamental directives and in addition was to insure the supply of material and personnel. The actual governing was the duty of the Reich Commissioner; he was the sovereign in his territory.

Moreover, it is of special importance that Rosenberg, as minister for the East, was not at the head of the whole eastern administration, but that several supreme authorities existed at the same time. Göring, as Delegate for the Four Year Plan, was responsible for the control of the economy in all occupied territories and in this respect had authority over the minister for the East, for Rosenberg could only issue economic decrees with Göring’s agreement. The Chief of the German Police, Himmler, was solely and exclusively competent for police security in the Occupied Eastern Territories; there was no police division at all in the ministry for the East, nor in the Reich Commissariats. Rosenberg’s competence was furthermore undermined by Himmler as Reich Commissioner for the Preservation of German Nationality and by Speer, on behalf of whom a Führer decree detached all technical matters from the eastern administration. It was further weakened by Goebbels who claimed for himself the control of propaganda in the Occupied Eastern Territories as well. Later on I shall come to the important question of labor mobilization, which was put under the authority of Sauckel. Nevertheless, Rosenberg was the minister responsible for the Occupied Eastern Territories. In view of this, the following must be emphasized:

In this Trial Rosenberg is not made responsible from the political standpoint, since the High Tribunal is no parliament; neither is he made responsible from the point of view of constitutional law, for the High Tribunal is not a supreme court of judicature. The liability of the defendant with respect to civil law is not in question either, but only his criminal liability, his responsibility for his own alleged crimes and for the crimes of others. I do not need to outline in more detail the fact that in order to establish criminal liability and to condemn it, it must be proved that the defendant illegally committed acts punishable by law and that he may only be punished for failure to act, that is, for an omission, if he had the legal duty to act and if it was due to his inactivity that the crime occurred, always assuming that the actual possibility existed of his preventing the crime.

The fact seems to me of decisive importance that Rosenberg although Minister for the Occupied Eastern Territories, was not a supreme ruler. Supreme rulers were the Reich Commissioners of the gigantic territories “Ostland” and “Ukraine.” The lines along which these territories were to be constitutionally remodeled were not yet visible, but one thing was certain: The Reich Commissioner was the highest authority. For instance, it was he who, on the most important measures—like shooting of inhabitants of a region for acts of sabotage—had the right to make the ultimate decision. I should like to insert that in practice in these cases the Police had exclusive competence. The Reich, that is, other authorities, had the right to fundamental legislation and over-all supervision. By a slight change in the well-known remark of Benjamin Constant, the French professor of constitutional law, “_Le roi règne, mais il ne gouverne pas_,” one may define in the following way Rosenberg’s position as Minister for the Occupied Eastern Territories: “_Le ministre gouverne, mais il ne règne pas._” As in certain dominions of the British Empire, there existed a sovereignty of the Reich Commissioner with a central over-all supervision by the minister for the East. Today nobody would think of summoning the competent British minister before a tribunal because a governor in India had allowed a native village to be bombed and burned down.

And so I come to my conclusion that in Rosenberg’s case there exists no automatic criminal responsibility for the nonprevention of crimes in the East, if only because, although he had authority of supervision, he was not sovereign; the two Reich Commissioners had the supreme authority.

The question must furthermore be asked and briefly examined whether the defendant is individually guilty of the criminal exploitation and enslavement of the nations of the East and perhaps of further crimes. What was his attitude, what were the general lines and general trends of his policy, what did he do positively, and what did he prevent or at least try to prevent?

In the Baltic countries, national administrations or directorates were installed under German supervision. The German administration was compelled by the Reich Minister for the Occupied Eastern Territories to show great understanding for all desires which could be fulfilled and strive for good relations with the Baltic countries; the Baltic countries had a free legal, educational, and cultural system and were only limited with respect to questions concerning politics, economy, and the police. After the war of 1914-18 agrarian reform in the Baltic states was carried out almost exclusively at the expense of the 700-year-old German holdings. Nevertheless Rosenberg, as minister for the East, made a law returning to private ownership the farms which had been made collective by the Soviet Union since 1940 and, by this restitution of soil which had originally been taken away from German proprietors, showed the greatest possible good will of the German Reich. This, as well as the already-mentioned agrarian program, has been expressly confirmed by the witness Riecke.

In the General District of White Ruthenia independent administration was initiated under Reich Commissioner Kube. The White Ruthenia Central Committee was founded, as well as a White Ruthenian relief system and a White Ruthenian youth organization. When a White Ruthenian youth delegation returned from a visit to Germany, Kube said that he would continue to act as a father to White Ruthenian youth; the following night he was murdered, yet this policy was not changed.

I should like to observe here in passing that the actual Russian territories between Narva and Leningrad and around Smolensk remained all the time under military administration; likewise the districts around Kharkov and the Crimea.

As far as the Ukraine is concerned, Rosenberg intended to give it extensive central self-administrative sovereignty, as soon as possible, similar to the directorates in the Baltic states and combined with a pronounced advancement of the cultural and educational needs of the people. After Rosenberg had originally considered himself entitled to assume that Hitler agreed with this idea, another conception later came to prevail, namely, that all forces should be directed toward the war economy. Rosenberg managed to achieve and carry through one thing only: The new agrarian program of 15 February 1942, which provided for a transition from the collective economy of the Soviet Union to private enterprise and then to ownership by the farmers. On 23 June 1943 the property decree was issued as a complement to this. At first it was not possible to carry this out because of Reich Commissioner Koch’s opposition, and then military events brought everything to an end. A further fundamental decree was based on a general adjustment of the school system, which Rosenberg had ordered to be worked out because the Reich Commissioner of the Ukraine declined to do it himself. Rosenberg provided for elementary schools and higher technical schools; the Reich Commissioner protested against this. On account of the conflict, which became more and more acute, between Rosenberg and Reich Commissioner Koch, Hitler in June 1943 issued the following written instruction: The Reich Commissioner had no right to make any obstructions, but the Reich Minister for the Occupied Eastern Territories should confine himself to essential questions, and when issuing any orders should make it possible for the Reich Commissioner of the Ukraine to express his opinion beforehand, which practically meant Koch’s co-operation beside Rosenberg.

During his examination of 8 April 1946 the witness Lammers described Rosenberg’s peculiar constitutional position as Reich Minister for the Occupied Eastern Territories and his political position, which became constantly weaker. I would like to emphasize the following striking and especially important declarations made by the witness: The authority of the Reich Minister for the Occupied Eastern Territories was detracted from by the Armed Forces, by Göring as the Delegate for the Four Year Plan, by Himmler as Chief of the German Police, by Himmler as Reich Commissioner for the Preservation of Germandom (resettlement measures), by Sauckel as Plenipotentiary General for the Allocation of Labor, by Speer in the field of armaments and engineering, and finally, through differences of opinion, by Propaganda Minister Goebbels.

Furthermore, Rosenberg was limited by the fact that two Reich Commissioners, Lohse and Koch, were appointed for the Occupied Eastern Territories. The Higher SS and Police Leader was “personally and directly” subordinated to the Reich Commissioner; but, as Lammers has declared, in technical respects he could not take any orders from Rosenberg or from the Reich Commissioner but only from Himmler.

Lammers said furthermore: Rosenberg always wished to pursue a moderate policy in the East; he was without any doubt against a policy of extermination and against a policy of deportation, which were widely advocated in other quarters. He made efforts to rebuild agriculture through the agrarian program, to put the educational system, church affairs, the universities and schools in order. Rosenberg had great difficulty in asserting himself, for especially the Reich Commissioner for the Ukraine simply did not follow Rosenberg’s orders. Rosenberg favored instituting a certain degree of independence in the eastern nations; he particularly had at heart the cultural interests of the latter. The differences of opinion between Koch and Rosenberg, says Lammers, could have filled volumes of files. Hitler called Rosenberg and Koch to him and decided that they should meet each month in order to consult each other.

The witness Lammers said, quite rightly, that of Rosenberg as the superior minister it was asking too much to have to come to an agreement in each case with his subordinate, the Reich Commissioner. Subsequently it was shown that in spite of the meetings they came to no agreement, and finally it was Herr Koch who was right in the eyes of the Führer. As Lammers says it was about the end of 1943 that Rosenberg was received for the last time by the Führer, and even before that time he had always had great difficulties in reaching the Führer. There had been no more Reich Cabinet sessions since 1937.

Hitler’s ideas tended more and more in the direction of Bormann-Himmler. The East became the ground for experiments.

To this group—as it is quite clear today, for the first time—it seemed hopeless to look for understanding on the part of Rosenberg as to the development of the Reich as they wished it. Rosenberg had no idea of the extent of the fight waged against him. His quarrel with Reich Commissioner Koch, the exponent of Himmler and Bormann, is proof of this ignorance; but it is also complete proof of Rosenberg’s integrity.

On 14 December 1942 Rosenberg issued a set of instructions to the Reich Commissioner of the Ukraine (Document Number 19-PS); his other instructions have unfortunately not been found. In this, Rosenberg requested the administrative chiefs to preserve decent attitudes and views; he demanded justice and human understanding for the population, which had always seen in Germany the supporter of legal order (Document Number 194-PS); the war had brought terrible hardships, but every offense should be fairly examined and judged, and should not be punished to excess. It is also inadmissible that German authorities meet the population with expressions of contempt. One can only show one is the master through correct manner and actions, not by ostentatious behavior; our own attitude must bring others to respect the Germans; those administrative chiefs who have shown themselves unworthy of their tasks, who have misused the authority they were given, and who by their obnoxious behavior have shown themselves to be unworthy of our uniform, must be treated accordingly and summoned before a court or removed to Germany.

The echo which such decrees called forth in Koch is shown in his memorandum of 16 March 1943 (Document Number 192-PS). Koch writes that “it is a strange thought that not only must a correct attitude be displayed toward the Ukrainians, but that we must even be amiable to them and always ready to help.” Furthermore Rosenberg demanded esteem for the highly-developed consciousness of the Ukrainian people and, according to Rosenberg, a high degree of cultural self-administration was desirable for the Ukraine; nations as big as the Ukraine could not be kept in permanent dependence, and the eastern campaign was a political campaign and not an economic raid. Here Koch, addressing Rosenberg, refers in a cynical manner to the climax reached in the relations of his organization with Ukrainian emigration. There are other decrees of Rosenberg’s which are criticized by Koch. One of these is the decree of 18 June 1942 concerning the acquisition by Rosenberg of Ukrainian schoolbooks for a total of 2.3 million Reichsmark to be charged to the budget of the Reich Commissariat without his previously even getting in touch with Koch. One million primers, one million spelling charts, 200,000 schoolbooks, 300,000 language books, and 200,000 arithmetic books were to be provided at a time when there was hardly even the most necessary paper for German school children.

Koch goes on to say:

“It is not necessary to point out repeatedly in the decrees
issued by your ministry and in telephone communications that no
coercion may be used in recruiting laborers and that the eastern
ministry even demands to be informed of every instance in which
compulsion has been used.”

In a subsequent decree Koch says he is blamed for having caused the closing of vocational schools; and he also says that Rosenberg ordered the General Commissioners to adopt a different school policy, thereby overstepping his authority as Reich Commissioner. Koch then concludes with a veiled threat that to him, as a veteran Gauleiter, the way to the Führer could not be barred. So much challenging criticism of Rosenberg, so much unintentional praise, and so much proof of the absolute decency of his behavior and the far-sighted and statesmanlike direction of his office as chief of the eastern administration!

One last document in the fight of Rosenberg against Koch is the report regarding Reich Commissioner Koch and the timber region of Zuman of 2 April 1943 (Document Number 032-PS), regarding which Rosenberg gave exhaustive information as a witness. In this very matter Rosenberg displayed his conscientiousness particularly clearly.

And now we have again to unroll another scene before our eyes, because the Prosecution attached specific importance to it: In July 1942, Bormann wrote a letter to Rosenberg; Rosenberg replied, and a third party, Dr. Markull, an associate of Rosenberg in his ministry, wrote a commentary regarding it. According to Dr. Markull’s representation the contents of Bormann’s letter, the original of which is not extant, was the following: the Slavs should work for us; if of no use to us, they ought to die; health provisions were superfluous; the fertility of the Slavs was undesirable, their education dangerous; it would do if they could count up to one hundred. Every educated person is a potential enemy. We could leave them their religion as an outlet. As sustenance they should receive only the barest necessities; we are the masters and we come first.

To that letter by the closest collaborator of Hitler there could be only one reply by Rosenberg: feigned consent and feigned compliance. In the inner circle of the eastern ministry there arose considerable apprehensions regarding this significant change in the attitude of its chief, apprehensions which were expressed in Dr. Markull’s memorandum of 5 September 1942. Rosenberg as a witness has stated that there cannot exist any doubt, when that document is read impartially, that he agreed only for the sake of pacifying Hitler and Bormann. Rosenberg wanted to insure himself against an attack from the Führer’s headquarters, which he anticipated with certainty because he allegedly did more for the eastern population than for the German people, because he required more physicians than there were available for sick Germans, _et cetera_.

The Markull memorandum is the truest possible bona fide reflection of Rosenberg’s personality and influence, since it shows the anxious subordinate trying to conjure up the spirit of his minister as he had come to know and to love him in his work, and to dispel an alien phantom who seemed to have taken his place. It is stated there that such a train of thought conformed with the policy of Reich Commissioner Koch, but not with the decrees of the Reich Minister and the conception of at least 80 percent of the District Commissioners and specialists who were counting on their minister and who considered that the eastern population should be treated decently and with understanding, for it evinced a surprisingly high capacity for culture, its efficiency in work was good, and we were about to waste a precious stock of gratitude, love, and confidence. The controversy between the minister and the Reich Commissioner was well known among the high authorities of the Reich, and it was no secret that the ministry was unable to carry out its policies in opposition to the Reich Commissioners, who considered the eastern ministry as entirely superfluous; the writings of Bormann would disavow the entire policy of the eastern minister up to now, and one was given the impression that Koch had been backed by Hitler in his opposition to the minister. Since its foundation the ministry had had to register an ever-increasing loss of power. The Higher SS and Police Leaders refused to render to the General Commissioners the normal honors such as reports, et cetera. One jurisdiction of the eastern minister after another was being taken away by other highest Reich offices; in the offices in Berlin it was openly said that the remodeling of the ministry into a mere operations staff was to be expected. On the other hand, the Reich Ministry for the Occupied Eastern Territories, due to the personality of its leader, enjoyed the exceptional esteem of the public.

Dr. Markull implores the minister to stand by his original ideas, saying that the unfortunate master complex should be as much avoided as the opinion that the intelligentsia were alien to the masses. The influence of spiritual forces should be taken into consideration. Germany should prove a “righteous judge,” acknowledging the national and cultural rights of nations. Such had been the ideas of the minister before, and such they should remain.

Rosenberg’s attitude did not in fact change, since at that very time he was working on the great School Program (Schulverordnung). Later on he effected the reopening primarily of the medical faculties in colleges. And then came the conflict with the Führer in May 1943.

On 12 October 1944 Rosenberg tendered his resignation through Lammers to the Führer (Document Number Ro-14), because German eastern policy in general and the political psychological treatment of eastern nations in particular, were still contrary to the point of view which he had had from the very beginning, namely, his plan of autonomy for the eastern nations and the cultural development of their capacities as part of an all-European conception of a family of nations on the continent. He now inwardly broke down at seeing a great statesmanlike program destroyed. All he could do in regard to the policy of enslavement and looting which was going on in his country was merely to accept memoranda from his colleagues in the ministry, or at best indulge in a futile paper war with people like Koch. He had not been strong enough against the plans which benighted forces wanted to carry out in the East; and he was powerless against their influence, being in addition totally unaware at that time of all the police and military orders which were presented here to the Tribunal.

When Rosenberg once reminded Hitler of the creation of a university in Kiev, Hitler apparently agreed; after Rosenberg had left and he was alone with Göring, Hitler said, “This fellow has too many worries. We have more important matters on our minds than universities in Kiev.” No episode can illustrate better than all the documents the one theme: Rosenberg and the reality in the East, and the other theme: Rosenberg as the alleged inspirer of Hitler.

As Rosenberg did not receive any reply to his request for resignation, he tried many times to talk to Hitler personally. It was all in vain.

On 11 December 1945 Mr. Dodd said:

“The system of hatred, barbarism, and denial of personal rights
which the conspirators had elevated to the national philosophy
of Germany followed the National Socialist masters when they
overran Europe. Foreign workers became the slaves of the master
race, being deported and enslaved in millions.”

And on 8 February 1946 General Rudenko said:

“In the long line of ruthless crimes committed by the
German-Fascist troops of occupation, the forcible deportation of
peaceful citizens into slavery and bondage in Germany takes a
particularly important place.”

He said that Göring, Keitel, Rosenberg, and Sauckel were particularly responsible for the inhuman and barbaric instructions, directives and orders of the Hitler Government, whose purpose was the carrying out of the deportation of Soviet people into German slavery.

I have already spoken of the formal and individual responsibility of Rosenberg as Reich Minister for the Occupied Eastern Territories. I have already explained, too, that in the field of labor employment it was not Rosenberg but Sauckel who, as Plenipotentiary General for the Allocation of Labor, was the highest authority and the responsible person, by virtue of the Führer’s decree of 21 March 1942 (Document Number 580-PS). Thus Sauckel in this field was Rosenberg’s superior.

He wrote to Rosenberg on 3 October 1942 (Document Number 017-PS):

“The Führer has drawn up new and most urgent armament programs
which require the speediest employment of two million additional
foreign workers. For the execution of his decree of 21 March
1942 the Führer has given me more authority for my further
tasks, particularly empowering me to use my own judgment in
taking all measures in the Reich and in the Occupied Eastern
Territories in order to insure the organized employment of labor
for the German armament industry under all circumstances.”

In his Program for the Allocation of Labor of 24 April 1942 (Document Number 016-PS), he emphasized that the state and local labor offices are in charge of all technical and administrative matters in connection with labor employment which come under the exclusive competence and responsibility of the Plenipotentiary General for the Allocation of Labor. The defense of Sauckel is not my task. But may I point out that he also did not take over his great and difficult task with a feeling of hatred and intentions of enslavement. In his Program for the Allocation of Labor just mentioned he says, for instance:

“Everything has to be avoided which, beyond the shortages and
hardships caused by war conditions, would aggravate and even
cause unnecessary suffering to foreign male and female workers
during their stay in Germany. It stands to reason that we should
make their presence and their work in Germany, without any loss
for ourselves, as bearable as possible.”

On that point Sauckel and Rosenberg shared the same opinion.

Neither is it my task to state and to prove that many hundreds of thousands of foreign workers found good conditions in Germany, that in fact numberless persons were better off here than in their fatherland. I am only concerned with the bad conditions which have been charged to the Defendant Rosenberg.

I come now to the “Central Agency for Nationals of the Eastern Territories.”

Gentlemen of the Tribunal, several days ago I read the affidavit of Dr. Albert Beil. Essentially it contains an authoritative statement of whatever can be said about that subject. Therefore, I should like to omit this subject, “Central Agency for Nationals of the Eastern Territories,” and ask the Tribunal to consider it as having been presented.

[sm type begins]2. Central Office for Nationals of the Eastern Territories.[sm type ends]

[sm type begins]As the war became more and more intensified in regard to totality and brutality, the German workers, and the Germans altogether, did anything but live in a grand style; they too, as far as they had not been drafted for the Army, were assigned to labor duties, had to do heavy work for long hours, were separated from their families, had frequently to be content with second-rate billets—especially because of the increasing number of houses damaged by air attacks—and they, too, were severely punished for refusal to work or defaulting.[sm type ends]

[sm type begins]The fact that the foreign workers were likewise victims of this totality and brutality of the war and, admittedly, in some respects even more so, does not incriminate Rosenberg either legally or morally. He established, within his ministry, the Central Office for Nationals of the Eastern Territories, which had neither police tasks nor any other competencies of an administrative nature but was concerned solely with the welfare of nationals of the Eastern Territories and which employed trustees taken from among the eastern nations. In the report of 30 September 1942 (Document Number 084-PS, US-199) this office points out several inadequacies: That the accommodation, treatment, food, and pay of the Eastern Workers called forth strong criticism; that, though actually the situation was much better now (deadline 1 October 1942), the conditions for Eastern Workers were on the whole still far from being satisfactory. Rosenberg is therefore asked to discuss the matter with Hitler in order to have Hitler himself take energetic measures; Himmler was to be made to rescind his general regulations concerning the treatment of Eastern Workers; the Party Chancellery and the Party to be reminded of their historical responsibility for the millions of former Soviet citizens now guided by Germany and instructed to co-operate in all matters concerning Eastern Workers in the Reich with the Reich Minister; finally it was suggested to extend the scope of the Central Office for Nationals of the Eastern Territories as quickly as possible, so as to enable it efficiently to look after the interests of the aliens from the occupied territories living in the Reich, being, so to speak, the projected arm of the East ministry and the representative of these people. In this sense, namely, in the sense of social care and humane welfare, the eastern ministry was active for the Eastern Workers.[sm type ends]

To refute the charge that Rosenberg was active as protagonist of the system of hatred and barbarism, of denying human rights, and of enslavement, I must add the following. Rosenberg received further unfavorable reports, one being the report of 7 October 1942 about the bad treatment of Ukrainian skilled workers (Document Number 054-PS, US-198). Abuses in recruiting and during transportation were pointed out; the workers were frequently dragged out of their beds at night and locked up in cellars until the time of their departure; threats and blows by the rural militia were a matter of course; food brought from home was often taken by the militia; during transportation to Germany neglect and transgressions on the part of the escorting units occurred, _et cetera_.

Rosenberg had no authority whatsoever to intervene in those matters, yet he tried to do so in a letter of 21 December 1942 to Sauckel; Rosenberg first emphasized his fundamental accord with Sauckel; but after a few tactical and polite _clichés_, he complained seriously and urgently about the methods used in the employment of labor. I quote:

“I must emphatically request, in view of my responsibility for
the Occupied Eastern Territories, that in supplying the required
quotas methods should be avoided which might one day cause me or
my associates to be charged with connivance and with being
responsible for the consequences.”

Rosenberg further states that he empowered the Reich Commissioner for the Ukraine to make use, so far as required, of his sovereign rights and to give attention to the elimination of recruiting methods which were running counter to the interests of warfare and war economy in the occupied territories. He, Rosenberg, and the Reich Commissioners could not help being surprised that in numerous instances measures, which should have been previously agreed upon with the civilian authorities, were first learned of through the police or other offices. Without co-ordination of their mutual wishes Rosenberg was unfortunately unable to accept the joint responsibility for consequences resulting from these reported conditions. In conclusion Rosenberg expressed the wish to put an early end to such conditions for the sake of their common interest.

Rosenberg also tried personal consultations with Sauckel and got Sauckel to promise that he would do everything to bring about a fair solution of all these questions (conference of 14 April 1942). It was beyond Rosenberg’s power and authority to do more. His secret opponent, supported by higher authorities, was Reich Commissioner Koch, who was indeed one of the chief culprits responsible for the cruel methods of recruiting and employment of Eastern Workers, and whose influence Rosenberg was unable to counteract.

When the prosecutor (Brudno, on 9 January 1946) charges the defendant with protesting against these methods not for humanitarian reasons but out of political expediency, I can only say that in my opinion one cannot, without some sound reasons, simply maintain that the Defendant Rosenberg is devoid of any human qualities.

As an example of the defendant’s particular bestiality, the so-called “Hay Action” has been repeatedly pointed out by the Prosecution (Document Number 031-PS). It concerned the intention of Army Group Center to evacuate 40,000 to 50,000 juveniles from the area of operations, as they represented a considerable burden to the area of operations and were besides, for the most part, without any parental supervision. Villages for children were to be established behind the front lines under native supervision; one of these villages had already proven its value. It was hoped that through the Organization Todt, being a particularly appropriate organization due to its technical and other possibilities, the juveniles might, in the main, be placed at the disposal of German handicraft as apprentices, in order to employ them as skilled workers after 2 years’ training. At first Rosenberg, as Reich Minister for the Occupied Eastern Territories, was against this because he feared that the action might be considered as a deportation of children, while on the other hand, the juveniles did not represent a considerable increase of military strength. The chief of the political operations staff approached Rosenberg again, stating that Army Group Center attached particular importance to the fact that the children should enter the Reich, not by authority of the Plenipotentiary General for the Allocation of Labor, but through the agency of the Reich Minister for the East, as it was felt that only then could they be assured of correct treatment. The Army Group wanted the action to be carried out under the most correct conditions and asked for special regulations to be issued with regard to mail facilities between them and their parents, _et cetera_. In the event of a possible reoccupation of the territory the eastern ministry could then let the children go back. Together with their parents they would certainly form a positive political element during the subsequent reconstruction of the territory.

Finally, as reason for the second request addressed to the minister, it was stated in addition that the children, to be sure, would not essentially contribute to strengthening the military power of the enemy but that the important factor in this case was the long-range weakening of his biological strength; not only the Reichsführer SS but also the Führer had expressed themselves to this effect. Rosenberg finally gave his consent to this action.

With regard to this it may be said: This concerned a field which was not at all within the jurisdiction of Rosenberg’s administration; he did not want to destroy a foreign element, even if biological weakening was given him as a reason—a reason which he himself did not recognize. Instead he wanted to have the children educated and trained and bring them and their parents back to their homes later on. That is virtually contrary to the crime with which the defendant is charged. Later on, in the late summer of 1944, Rosenberg visited the Junkers plant in Dessau where approximately 4,700 young White Ruthenian craftsmen were employed and also visited a White Ruthenian children’s camp. The clothing of the workmen was irreproachable; they were industrious, enjoyed the best treatment, and got along very well with the German workers. As Rosenberg was able to see for himself, the young people were taught languages and mathematics by Russian teachers. The children were cared for in their forest camp by White Ruthenian mothers and women teachers. The figure of 40,000 moreover, was never attained, in fact, barely half of it.

The attempt of the Prosecution in this instance to appeal especially to considerations of humanity in order to discredit the defendant cannot be successful in my estimation. For this very example compels me to point out the following in particular: We were in the midst of a war which was being conducted with terrible intensity on both sides. Is not war in itself “monstrous bestiality”? The “weakening of the biological strength of nations” is truly a fitting expression for the goal and purpose of the whole war, for that is what the thoughts and efforts of both belligerent parties are aimed at. It would surely be unthinkable that one should forget this in judging the actions of the defendants and that one should wish to hold the defendants responsible not only for unleashing the war, but in addition, for the fact that war in its very essence constitutes a great crime on the part of mankind, both against itself and against the laws of life.

The Prosecution contends that Rosenberg is guilty also insofar as it was he who issued the inhuman and barbaric decrees which aimed at carrying out the deportation of Soviet people into German slavery. This causes me to discuss the question as to whether the compulsory labor decree of 19 December 1941 and Rosenberg’s other decrees concerning compulsory labor for the inhabitants of the Eastern Territories, were contrary to international law.

The Eastern Territories administered by Rosenberg were militarily occupied during the war. Through this occupatio bellica Germany realized complete domination and had the same sovereignty as over her own territory. While according to previous conceptions of international law the occupying power could act arbitrarily without consideration of rights and laws, the recent evolution of international law eliminated the principle of force and brought victory to the principles of humanity and culture. Therefore the formerly unlimited might of the occupying power was altered to limited rights. The Hague Rules of Land Warfare stipulated in particular the legal obligations of the occupying power.

On the other hand, it is not true to say that the Rules of Land Warfare specify only certain privileges for the occupying power. They merely set a limit to the basically unlimited right of the occupying power to exercise all powers deriving from territorial sovereignty over an occupied territory.

THE PRESIDENT: Would that be a convenient time to break off?

[_The Tribunal adjourned until 10 July 1946 at 1000 hours._]

ONE HUNDRED
AND SEVENTY-FIFTH DAY
Wednesday, 10 July 1946

_Morning Session_

THE PRESIDENT: The Tribunal will sit in closed session this afternoon and will not sit in open session after 1 o’clock.

DR. THOMA: Mr. President, may it please the Tribunal, with regard to the question of the justification of the decree concerning the compulsory labor service of the inhabitants of the Eastern Territories, I should like to continue on Page 33.

Thus the following principle recognized by international law is indicated:

Measures undertaken by an occupying power in occupied territory are legal as long as they are not in opposition to a proven stipulation of the international rules of warfare. The occupying power is therefore assumed to be entitled to the full exercise of all powers derived from territorial sovereignty over an occupied territory. According to the uniform opinion of experts on international law the occupying power acts by virtue of an original law of its own, guaranteed and defined as to content solely by international law, in the interest of its own conduct of the war as well as for the protection of the civil population in the occupied territory. I quote Heyland from _Handbuch des Völkerrechts_.

“The inhabitants of the occupied territory no longer have a duty
of allegiance to the enemy sovereign but only to the occupying
power; the will of the occupying power rules and decides in the
occupied territory; the occupying power is the executor of its
own will; its own interests alone are decisive for the exercise
of its sovereign rights and, therefore, it is at liberty to act
against the interest of the enemy state.”

In view of Article 52 of the Hague Rules of Land Warfare the right to conscript labor in the occupied territory is acknowledged. It is stipulated here that labor services may be demanded from the inhabitants of the occupied territory; the demand must be limited to the requirements of the occupation forces; it must be in proportion to the resources of the country and must be of such a nature as not to compel the population to participate in military operations against their own country. In these stipulations I cannot discern any prohibition of labor conscription in occupied territories; on the contrary, I consider that an approval of compulsory labor service can be clearly deduced from them. The employment of such labor in war industry is undoubtedly in accordance with the requirements of the occupation forces and, in my estimation, it is equally beyond doubt that this constitutes no commitment to military operations. The Rules of Land Warfare contain no stipulations as to whether labor service may be demanded only in the home country or whether the conscript may be transported into the native land of the occupying power for the purpose of rendering labor services there. Thus, the general principle holds good that the occupying power is assumed to be entitled to exercise to the utmost extent all powers deriving from territorial sovereignty.

If one takes the correct view that the international rules of warfare should tend to humanize war by limiting the rights of the belligerents and that the trend in this direction should be continued, one must consider on the other hand that the stern reality of war tends toward the opposite direction.

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is your contention that the Hague Rules authorize the deportation of men, women, or children to another country for the purpose of labor service.

DR. THOMA: Mr. President, I propose to speak about the interpretation of the Hague Rules of Land Warfare and I am dealing here with the question as to whether it is permissible to transport inhabitants of the country in order to meet the requirements of the occupying forces. I have stated my position here that laborers can also be transported into the country of the occupying power. About children, of course, I have said nothing. I did not say anything about Jews either. I only spoke about persons able to work, who were required to work in accordance with the necessities of the occupying power, and I said it was admissible for them to be transported into the home country of the occupying power. I leave this problem to the discernment of the Tribunal.

THE PRESIDENT: The Tribunal would like to have any authorities in international law which you have to cite for that proposition.

DR. THOMA: Mr. President, I shall mention some more quotations, more detailed scientific quotations concerning this problem. I have already quoted in that regard. I have repeatedly quoted Heyland’s _Handbuch des Völkerrechts_, published by Stier-Somlo, and I shall give more quotations.

THE PRESIDENT: Will you tell me what language that book is in?

DR. THOMA: In German, Mr. President; it is the _Handbuch des Völkerrechts_, published by Stier-Somlo, 1923.

Present-day warfare is no longer what it was in 1907. War has developed into total war, a life-and-death struggle of annihilation, in which the very last physical and moral forces of the nation are mobilized, and the loss of which, as is shown by the example of Germany, means unconditional surrender and the total destruction of her existence as a State.

Can one maintain, in view of this fact, that Germany, in this struggle of life and death, should not have been granted the basic right of self-preservation recognized by international law?

I refer to Strupp, _Handbuch des Völkerrechts_, published by Stier-Somlo, Stuttgart 1920, Part III, “Violations of International Law,” Page 128 _et sequentes_.

There is no doubt that the very existence of the State was at stake; that is, it was an emergency which justified the compulsory employment of labor, even if it had not been permissible according to international law. It is inherent in that great anomaly called war that, as soon as the state of war has been proclaimed, international law is in a large measure set aside in the interest of the objective of the war, the overpowering of the enemy.

I quote Strupp, as above, Page 172.

“The development of civilization has seen a progressive
moderation of the conception according to which everything is
permissible in war until the enemy is destroyed; nevertheless
the rules of warfare constitute even today a compromise between
the demands of unrestrained military necessity and progressive
humanitarian and civilized views.

“One thing, at any rate, is certain, namely, that the existence
of a genuine emergency may be pleaded, even under the
stipulations of the Hague Rules of Land Warfare. During the
negotiations preceding the formulation of Article 46 of the
Hague Rules, the following was stated literally and without
opposition in the plenary session of the Conference:

“‘The restrictions might affect the liberty of action of the
belligerents in certain extreme emergencies,’ indicating that
for extreme contingencies, therefore, a state of emergency may
be pleaded. It is recognized international law that even an
aggressor must not be denied the right of pleading a state of
emergency in case his existence is directly threatened.”

In connection with the chapter concerning the eastern administration, I should like, without pointing out specifically all that the defendant has said during his testimony concerning accusations of the Soviet Prosecution, in particular the reports of the state commissions and the Molotov reports (Documents USSR-39, 41, 51, 89, and record of 16 April 1946), to express a hope that the factual corrections made by the defendant will be duly evaluated by the Tribunal.