The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. NELTE, Continued:

As the present State power, which in this case was
represented by the Chief of State, who was identical with
the Supreme Commander of the Wehrmacht, does not come into
the question, we merely have to decide whether an authority
which could "bind or absolve" exists above or beyond the
authority of the particular State. Since the struggle for
power between Pope and Emperor which dominated the Middle
Ages has no longer any significance in regard to
constitutional law, this power can only be impersonal and
moral. The German poet Schiller expresses the highest
commandment of the unwritten, eternal law in the words: "The
power of tyranny has a limit .... " That is only one of the
manifold poetic revelations in world literature which
express the deep yearning for freedom felt by all peoples.

If there is an unwritten law which indisputably expresses
the conviction of all men, it is this, that with due
consideration for the necessity of maintaining order in the
State, there is a limit to the restriction of freedom.
Should this be transgressed, a state of war will arise
between the national order and the international power of
world conscience.

It is important to state that no such statute of
International Law has hitherto existed. This is
understandable, as freedom is a relative conception and the
different conceptions existing in various States and the
anxiety of all for their sovereignty are irreconcilable with
recognition of an international authority.

The authority which "binds and absolves" - which absolves us
of guilt before God and the people - is the universal
conscience which becomes alive in every individual.

He must act accordingly. The defendant Keitel did not hear
the warning voice of the universal conscience. The
principles of his soldierly life were so, deeply rooted and
governed his thoughts and actions so exclusively that he was
deaf to all considerations which might turn him away from
the path of obedience and faithfulness, as he understood
them. This is the really tragic role played by the defendant
Keitel in this most terrible drama of all times.

THE PRESIDENT: Dr. Kauffman - yes, go on, Dr. Kauffmann.

DR. KAUFFMANN (counsel for defendant Kaltenbrunner): Mr.
President, may I first say that I have a few changes which I
will announce when I come to them. I shall take about two
hours altogether, Mr. President.

May it please the Tribunal; the present trial is world
history - world history full of revolutionary tensions. The
spirits conjured up by mankind are stronger than the cries
of the tortured peoples for justice and peace. Since man was
deified and God humiliated, chaos, as an inevitable
consequence and punishment, has, afflicted mankind with
wars, revolutions, famine and despair.

However great my country's guilt may be, it is now enduring
- and permanently enduring - the greatest penance ever
endured by any people.

The means adopted to restore the longed-for prosperity are
wrong, because they are second-rate. And none of my
listeners can question the truth of my assertion that the
present trial does not begin, at the end of a period of
wrong, to end that wrong, but is surrounded by the surging
waves of a furious torrent bearing on its surface the
hopeless wreckage of a civilisation guarded through the
centuries, and

                                                  [Page 224]

in the demoniacal depths of which lurk those who hate the
true God, who are the enemies of the Christian religion and
are, therefore, opposed to all forms of justice.

The European commonwealth of peoples, of which my country,
if only because .of its geographical position, was the very
heart, is seriously ill. It suffers from the spirit of
negation and humiliation of human dignity. Rousseau would
have cursed his own maxims had he lived to see the radical
refutation of his theories in this 20th century. The peoples
proclaimed the "liberty" of the Great Revolution, but in the
course of a mere 150 years they have in the name of that
same liberty created a monster of bondage, cruel slavery and
ungodliness, which contrived to elude earthly justice, but
did not escape the living God.

This Tribunal, conscious of its task and mission, will some
day have to pass before the searching eye of history. I do
not doubt that the selected judges are striving to serve
justice as they see it. But is not this task indeed an
impossible one? The American Chief Prosecutor stated that in
his country important trials seldom begin until one or two
years have elapsed. I do not need to elucidate the profound
core of truth contained in this practice. Could human
beings, torn between love and hate, justice and revenge,
conduct a trial immediately after the greatest catastrophe
humanity has ever known - and constantly harassed by the
statutory demands for rapid and time-saving proceedings - in
such a way as to earn the thanks of mankind when the waters
of this second deluge have withdrawn into their old bed?

Would it not have been better to preserve the above-
mentioned distance between crime and atonement with regard
to the present proceedings?

Law can be shaped only when the Court possesses that inner
liberty and independence which owes allegiance only to
conscience and to God himself. Such a sanctified activity
had largely been forgotten in my country, above all, by the
governing class of the nation; Hitler had prostituted the
law. But this Tribunal intends to prove to the world that
the good of the peoples is based on law alone. And no
conception could arouse more joy and hope within the heart
of people of good will than that of unselfish justice.

I am not criticising the provisions of the Charter; but I do
ask whether any justice has been, or could be, found on
earth if Might acknowledged Reason even so far as to grant
its enemies some kind of regular trial, but could not make
up its mind to crown this tribute to Reason by appointing a
genuinely international tribunal; for even if nineteen
nations have approved of the legal basis of the Charter it
is far more difficult to apply it in legal form.

The American Chief Prosecutor has emphatically declared that
he did not hold the entire German nation guilty; but the
records of this Tribunal, which history will some day
scrutinize attentively, nevertheless contain many things
which, to us Germans, appear to be false and, therefore,
painful. Unfortunately they also contain numerous explicit
questions on the part of the French prosecution as to what
extent, for instance, certain crimes against humanity
committed both inside and outside Germany were known to the
German people. Indeed, the French prosecution has asked
explicitly: "Could these atrocities remain, on the whole,
unknown to the entire German nation, or were they aware of
them?" These and similar questions are not appropriate for
the solution of such a difficult and tragic problem with
even the slightest regard for the truth. To the extent that
evil, which always grows and manifests itself organically,
remains supreme in a nation, so to the same extent every
individual who has reached the age of reason bears some
guilt for his country's disasters. But even this guilt,
which is on the metaphysical plane, could never become the
collective guilt of a nation unless every individual member
of this nation had incurred a separate guilt. But who would
be entitled to establish the existence of such a guilt
without examining thousands of individual circumstances?

The problem, however, becomes even more difficult if one
tries - and this is the end aimed at - to establish the so-
called national guilt for any past crimes against peace,
humanity, etc., on the part of the omnipotent State, no
matter in what

                                                  [Page 225]

form they may have been committed. One must bear in mind
most carefully the conditions of the Reich before 1933.

This has been done sufficiently here and I shall not discuss
it. Hitler claimed for himself alone such far-reaching
concepts as the proverbial German diligence, homeliness,
family affection, willingness to make sacrifices,
aristocracy of labour and a hundred more. Millions believed
in this: millions more did not. The best of them did not
lose hope of being able to avert the tragedy which they
foresaw. They flung themselves into the stream of events,
assembled the good and fought, visibly or invisibly, against
the bad. Can the man in the street be blamed for not
immediately refusing to believe in Hitler, considering the
latter's ability to pass as a seeker after the truth, and
the fact that he constantly raised a highly extolled palm of
peace before the peace-lovers? Who knows that he himself was
not convinced at the start that he could strengthen the
Reich without going to war? After the assumption of power
large sectors of the German people probably felt themselves
to be at unison with many other peoples on earth. Therefore,
it is not astonishing that gradually, and with the approval
or tolerance of other countries, Hitler acquired the halo of
a man unique in his century. Only a German who lived in
Germany during the past few years and did not view Germany
through a telescope from abroad is competent to report on
the historical facts of an almost impenetrable method of
secrecy, the psychosis of fear and the actual impossibility
of changing the regime, and thus to comply with Ranke's
demand to historians to establish "how it was".

Let me say a few words about that secrecy. This trial has
shown clearly that the State itself was able to suppress
such facts as would lower its prestige and betray its real
intentions. Even the men indicted here, most of whom, at any
rate, have been termed conspirators, have been the victims
of that carefully devised system of secrecy.

A special place in that system of secrecy is reserved for
the plan ordered by Hitler and executed by Himmler, Eichmann
and a circle of initiated persons for the biological
destruction of the Jewish people, the ghastly aim of which
was for years concealed by the designation of "final
solution" - a term not immediately recognizable in itself.
The problem of the Jewish question -

THE PRESIDENT: Dr. Kauffmann, it seems to the Tribunal a
very long preamble to the defence of the defendant
Kaltenbrunner, who has not been named at all yet in what you
have said. Is it not time that you came to the case of the
defendant whom you represent? We are not trying a charge
against the German people. We are trying the charges against
the defendant. That is all we are trying.

DR. KAUFFMANN: Mr. President, in the next few sentences I
would have concluded, but I would like you to understand
that the important word "humanity" forms the core of my
case; I believe that I am the only defence counsel who
intends to go more deeply into that subject; and I request
permission to make these few statements. I shall come to the
case of Kaltenbrunner very soon.

THE PRESIDENT: On Page 8 you have a headline which is, "The
Development of the History of the Intellectual Pursuit in
Europe." That seems rather far from the matters which the
Tribunal has got to consider.

DR. KAUFFMANN: Mr. President, may I remind you that this
question was discussed by the prosecution and especially by
M. de Menthon. I do not believe that I can carry out my task
if I take these tremendous crimes only as facts. A German
must have an opportunity of giving a short description of
the development - and it is very short. At the end of a few
pages I come to the case of Kaltenbrunner; and my plea will
in any case be the shortest one presented here.

THE PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far
as it can, to decide the cases which it has got to decide in
accordance with law and not with the sort of very general,
very vague and misty philosophical doctrine with which you
appear to be dealing in the first twelve pages of your
speech, and, therefore, they would very much prefer that you
should not read these passages. If you insist

                                                  [Page 226]

upon doing so - there it is, but the Tribunal, as I say, do
not think that they are relevant to the case of the
defendant Kaltenbrunner. They would much prefer that you
would begin at Page 13, where you really come to the
defendant's case.

DR. KAUFFMANN: Mr. President, it is, of course, extremely
difficult for me to present a plea now which is already very
much condensed and to condense it even more. It is really
difficult. I hope that the Tribunal will appreciate that.

THE PRESIDENT: Well, Dr. Kauffmann, there has been nothing
condensed in what you have read up to the present. It has
been all of the most general type.

DR. KAUFFMANN: In that case may I at least read a few
sentences below the headline with regard to the defence? It
starts -

THE PRESIDENT: Cannot you summarize the general nature of
what you wish to say before you come to the defendant

DR. KAUFFMANN: Yes, I shall try. I shall read only a few
sentences for the sake of better understanding, from the
short charter dealing with the task of the defence. I say
that the defence has been established by the Charter and ask
how it can still identify its task.

In this trial, error and truth are mysteriously mixed,
probably more so than ever before in a great trial of law.
To try to find the truth raises the defence counsel to the
dignity of an assistant of the Court. Not only does it
entitle the defence to doubt the credibility of the
witnesses but also that of the documents. It entitles the
defence counsel to state that such reports, although they
may be admitted by the Charter in evidence, can only be
accepted under protest, because none of the defendants'
counsel or neutral observers could have any influence on the
way in which they originated.

These testimonies were made, certainly, within the framework
of the law, but also within the framework of power.

The people, or a large part of the people, in their
aspirations towards peace and happiness, elevated the
representative of an heretical doctrine to the position of
their Fuehrer and this Fuehrer abused the faith of his
followers so that the people, no longer possessing the
strength to make a timely and open resistance, tumbled into
the gigantic abyss of the annihilation of its entire racial,
political, spiritual and economic existence. All of this is
tragic in the truest sense of the word. Had the individual
man in the street, the mother at home and her sons and
daughters been asked to choose between peace and war, they
would never voluntarily have chosen war. The unsatisfactory
element in this trial is the absence of the man -

THE PRESIDENT: Are you reading now from some part of your

DR. KAUFFMANN: I am reading a few sentences, Mr. President.
This is at Page 7 of the German text.

THE PRESIDENT: Cannot you summarize the argument you are

DR. KAUFFMANN: Mr. President, I would appreciate it if I
could be told once more whether the Tribunal does not wish
me to throw any light at all on the ideological background
in the interests of an understanding of these crimes against
humanity and peace. If the Tribunal states that it does not
desire me to make any such statements, then of course I
shall follow the wishes of the Tribunal. But such a
phenomenon -

THE PRESIDENT: Well, Dr. Kauffmann, if you think it is
necessary for you to read this passage you can do so; but,
as I have indicated to you, the Tribunal think it is very
remote indeed from any question which they have to consider.

DR. KAUFFMANN: Thank you very much. Then I shall omit a few
pages and shall only present four or five pages which will
be very condensed, on the subject which I have just

The rise and the ... that begins with the heading -

  "Outline of Intellectual Development."

                                                  [Page 227]

The rise of Hitler and his downfall, unique in its extent
and consequences, may be viewed from any side - from the
historical perspective -

THE PRESIDENT (interposing): What page are you on?

DR. KAUFFMANN: Mr. President, according to my German copy,
on Page 8 "Outline of Intellectual Development in Europe."


DR. KAUFFMANN: - from the perspective of the historical
spectacle afforded by the course of German history, the
course of economic forces supposedly governed by
irresistible laws the sociological divisions of its people,
the peculiarities of race and character of the German
people, or the mistakes committed in the political sphere by
the other brothers and sisters of the family of nations
living in the same house.

All this is certainly completes the picture of the analysis
but it brings to light only partial knowledge and partial
truth. The deepest and at the same time most fatal reason
for the Hitler phenomenon lies in the metaphysical domain.
In the final analysis the Second World War was unavoidable.      

Anyone, however, who regards the world and its phenomena only 
from the standpoint of economics, may arrive at the conclusion 
that both World Wars could have been avoided if the world resources 
had been reasonably distributed.

Economic factors alone can never change the face of the
earth; and therefore, the change in the German people's
standard of living, the demoralisation of the national soul
by the Treaty of Versailles, inflation, serious unemployment
and other factors formed a pretext for Hitler. It is
possible that catastrophes may be delayed by years or
decades if certain external living conditions make the
relationship between different nations and peoples appear
happier. At no time, however, can a false idea be destroyed
through economic measures alone, and deprived of its power
to injure the individual and the nation, unless the people
overcome these ideas and replace them by better ones.

  "In the way in which the name of God is used by the
  people and nations," says the famous Donoso Cortes, "lies
  the solution of the most feared problem."

Here we have the explanation of the providential mission of
the separate nations and races, the great changes in
history, the rise and fall of empires, conquests and wars,
the different characteristics of the nations and even their
changing fortunes.

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