The Nizkor Project: Remembering the Holocaust (Shoah)

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THE PRESIDENT: Would you give me the number again?

DR. THOMA: That is 3663-PS, in which the "Reich Minister for
the Occupied Eastern Territories," for whom Dr. Leibrandt
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 has 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 Leibrandt, and which in no way point to any knowledge
on the part of the defendant Rosenberg - I will make the
following provisional brief statement:

It is not conceived as a reproach by the Reich Minister
East, because the executions of Jews were not continued, but
it simply means the transmittal of a complain by the Reich
Security Main Office, with a request to report. It is to be
presume 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.

                                                  [Page 259]

In a letter of 18th December, 1941, the Reich Minister, also
signed for by Brautigam, asked the Reich Commissioner
Ostland to settle directly any questions which arose with
the Higher SS and Police Leaders.

The attempt 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 a failure, too. This "R" is not Rosenberg's.

(3) Document No. 3428-PS concerns a letter of the
Commissioner-General 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 may be attributed
to him only if he knew of them, and, neglecting his duty,
failed to intervene. There is no actual proof to go by for 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 Fuehrer of 18th December,
1941" (Document 001-PS) the defendant suggested the
following, which I must quote literally:

  "The attempts on the lives of members of the armed forces
  have not stopped; on the contrary, they continue. This
  reveals an unmistakable plan to disrupt the German-French
  co-operation, to force Germany to retaliate, and, with
  this, evoke a new defence on the part of the French
  against Germany.
  I suggest to the Fuehrer that, instead of executing 100
  Frenchmen, we substitute 100 Jewish bankers, lawyers,

It is not my task here to say 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 31st December, 1941, Lammers, acting on behalf of
the Fuehrer, merely referred to the suggestion of utilising
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 suggested to Rosenberg, when the
latter was in the witness-box, 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 is only the
offence of a suggestion of a criminal act, which, according
to German law, is to be judged as a crime which is to
receive only slight punishment because it has had no

Just at this point I should like to recall that Rosenberg
testified as a witness that on one occasion a Court
sentenced a regional 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
aberrant argument of the defence when I say: Does that not
prove that Rosenberg loathed criminal acts against the Jews?

(5) The Document R-135, USSR 269, refers to the report of
the Commissioner-General of White Ruthenia, in Minsk, dated
1st July, 1943, on the subject of what happened in the
prison of Minsk as regards gold fillings. This was addressed
to the Reich Commissioner of Ostland, who forwarded the
report on 18th June, 1943 , with high indignation.

At his hearing before the Tribunal on 16th April, 1946, the
defendant has already made a statement on this point.

THE PRESIDENT: I think we are going a little bit too fast.

DR. THOMA: Thank you.

I should like to repeat this briefly now. He had returned on
22nd July, 1943, from an official visit to the Ukraine and
found a pile of notices about conferences,

                                                  [Page 260]

a number of letters dating from the middle of June, 1943,
and above all, the Fuehrer decree, 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 above letter, but he has to surmise - he
cannot remember it - that the letter was mentioned 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 should 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. But 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. But can we condemn
Rosenberg on the basis of his supposed probable knowledge?
Rosenberg has by no means the intention of playing a false
and cowardly game of concealment 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 concealment 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 those of the
author Rosenberg. Of none other could one be so sure that he
would turn with indignation from inhuman, criminal acts.

But let us go one step farther 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, too, 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 had no knowledge and
no idea, as a rule.

The lower echelons of police chiefs 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 alter 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 can make further claims, 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 knew 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 say 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

                                                  [Page 261]

Rosenberg - and he mostly 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 gone to 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 works of art and science in the East and West
(Col. Storey, Part 3, pp. 52 et seq.; M. Gerthofler, Part 6,
pp. 707 et seq.; Col. Smimov, Part 7, pp. 47 et seq.). 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, and that the works 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
Tretjakow Gallery in Moscow. Further, I must declare the
statement incorrect that the "looting programme" 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 with
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. I think it unnecessary to refer to
the looting of art treasures in former times as far as
Napoleon, because the concepts of International Law and
regulations have changed in the meantime, but I should like
to mention two things:

(1) How many of the most famous works 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?

(2) I can 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 of art - no plunderer of art. He had
no intention of appropriating the works 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:
(1) to search libraries, archives, etc., for material
suitable for the proposed "High School" of the Party, to
confiscate this material and take it away for the purpose of
research, and (2) to seize objects of cultural value which
were in the possession of or belonged to Jews, or which were
ownerless or of 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 20th 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 1015c-PS). On 30th September, 1942, the Commander-
in-Chief of the Army issued an order (Document 1015n-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 the Cultural Arts"
(Report on work carried out between October, 1940, and 1944,
1015-B) it is stated that in the occupied Eastern
territories, the activities of the "Special Staff for the
Cultural Arts" were restricted to the seizure of official
collections of scientific and photographic specimens, and
that the safeguarding and protection of these was carried
out in co-operation with the military and civilian agencies.
It says further that

                                                  [Page 262]

in the course of vacating the territories, a few hundred
valuable icons and paintings were saved and, with the co-
operation of individual army groups, were brought to a place
of safe keeping in the Reich. Finally, on 12th 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 endeavoured, 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 seizure 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

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 centralised
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 Abels's report on the
library at Minsk, 076-PS). It is quite in accordance with
the conception of International Law (I quote Scholz, Private
Property in Occupied and Unoccupied Enemy Country, Berlin,
1919, Page 36), that care should be taken on the part of the
occupiers not only to protect, but to safeguard and salvage
unprotected works of art as far as the war situation
permits. Yes, it is even considered a cultural duty for the
occupier to remove particularly valuable works of art from
the fighting 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
occupier to bring into his own country, for reasons of
salvage, works of special scientific and artistic value.
This is not an inadmissible seizure (Article 56, Par. 2,
Land-Warfare Rules), because the latter term could only
apply to acts which are hostile to culture and not acts
which are friendly. (See Scholz, as above, Page 37.)

Finally, I want to refer to Document 1109-PS, a report
according to which scientific treasures 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 were exactly in the opposite direction.

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