Looking at it from the point of view of personnel, we are concerned here with the duties of the entire police and of the SD, not with the duties of the Gestapo alone. The actual participation of the Gestapo in the Einsatzgruppen amounted to approximately ten per cent. This, of course, was a very small number in comparison with the total figure of Gestapo officials. Their selection for the Einsatzgruppen took place without any application on their part, very frequently against their will, but on the strength of orders from the RSHA. Upon being detailed to the Einsatzgruppen, they were eliminated from the organisation of the Gestapo. They were exclusively subordinate to the leadership of the Einsatzgruppe which received its orders in part from the Higher SS and Police Leader, in part from the High Command of the Army and in part from the RSHA directly. Any connection to their home office and thereby to the organisation of the Gestapo was almost completely severed through their being used by the Einsatzgruppe. They could not receive orders of any kind from the Gestapo, and they were removed from the sphere of influence of the Gestapo.
These principles governing the Einsatzgruppen applied particularly to the Einsatzgruppen in the East, which are the ones that have been accused of the most crimes and the most serious crimes. To them also applies the fact that the Osteinsatz was not a Gestapo Einsatz either in personnel or in the tasks given, but an Einsatz of various units which had been set up especially for this purpose.
The witness Ohlendorf testified to the same effect.
The fact that the Gestapo also supplied men for this does not justify the conclusion that it was responsible for deeds committed by the Einsatzgruppen. Nor is this changed by the fact that the Chief of Amt IV, i.e., Muller, the Director of the Gestapo within the RSHA, had an important part in passing on all orders. He was acting here directly on behalf of Himmler and Heydrich. The activity of Muller cannot be decisive in view of the fact that the overwhelming majority of the agents under him had no knowledge of the events. If that had been the case, the Kripo or the Public Order Police (Ordnungspolizei) would have had to be held equally responsible for the events as a unit. But the Gestapo cannot be declared criminal because of Muller’s position with regard to the Einsatzgruppen any more than the Kripo - whose chief, Nebe, by the way, was himself the leader of an Einsatzgruppe in the East - can be held responsible, on the basis of the participation of its chief and individual members, for the mass executions undertaken by the Einsatzgruppen. Therefore, mass murders of the civilian population, like all other atrocities committed by the Einsatzgruppen, cannot be charged against the Gestapo as such.
The next charge refers to the execution of politically and racially undesirable prisoners in camps.
I beg the Tribunal to take judicial notice of it, as well as of the third charge, according to which the Gestapo together with the SD sent prisoners of war who had escaped, and who had been recaptured, to concentration camps.
I continue on Page 38 of the original, in order to deal further with the concentration camps.
The American prosecution says that the Gestapo and the SD bear the responsibility for the establishment and distribution of the concentration camps and for the assignment of racially and politically undesirable persons to these and to extermination camps for forced labour and mass murder; that the Gestapo was legally entrusted with the responsibility of administering the concentration camps; that it alone had the power to take persons into protective custody and to execute the protective custody orders in the State concentration camps and that the Gestapo issued the orders to establish such camps, to convert prisoner-of-war camps to concentration camps, and to establish labour training camps.
In the treatment of this point of the Indictment the widespread error must be corrected that the concentration camps were an institution of the Gestapo.
In reality the concentration camps were at no time established and administered by the Gestapo. It is true that Paragraph 2 of the order for the execution of the law concerning the Secret State Police of 10th February, 1936 - Gestapo Exhibit 8 - that the Secret State Police Office administers the State concentration camps, but this regulation was only on paper and was never carried out in practice. It was rather the Reichsfuhrung SS which was responsible for the concentration camps, and appointed an inspector of concentration camps whose duties were later transferred to Amtsgruppe inspector (Dept. D) of the WVHA of the SS.
This is clearly confirmed among other facts by the witnesses Ohlendorf and Best and a large number of documents. (Compare among other material Gestapo Exhibits 40 and up to and including 45.)
After Hitler’s seizure of power in 1933 the SA and SS had independently established numerous camps for political prisoners. The Gestapo on its own initiative took steps against these unauthorised concentration camps, eliminated them, and released the inmates. Gestapo Chief Dr. Diels even brought upon himself the accusation that he was supporting the Communists and sabotaging the Revolution. (See affidavit 41, testimony of the witnesses Vitzdamm and Grauert.)
Thus the concentration camps were never under the Gestapo. The Inspectorate of Concentration Camps and the Economic and Administrative Departments of the WVHA remained independent agencies and their chiefs were directly subordinate to Himmler.
The order contained in Document USA 492 does not affect the administration of concentration camps, but it regulates the assignment of prisoners to the various camps, so that political prisoners would not be sent to camps which, according to their structure and their form of work, were meant for hardened criminals.
Of the large number of documents which prove the non-participation of the Gestapo in the administration of the concentration camps, I should like to mention only one more: Gestapo Exhibit 38. This shows that all persons not mentioned there - and thus all Gestapo officials regardless of their rank or position - needed the written permission of the Inspector of Concentration Camps to enter a camp. If the concentration camps had been subordinate to the Gestapo, there would not have existed a necessity to obtain this written permission to enter.
In each concentration camp there existed a so-called political department, the position of which in the camp and its relationship to the Gestapo is a matter of conflicting views. In this political department were employed one to three officials of the criminal department of the Gestapo. These officials did not form an office of the Gestapo or of the Kripo; rather they were attached to the commandant of the camp as experts to fulfil police tasks in regard to individual prisoners. Above all, they had to conduct the interrogations of those prisoners against whom a case before the ordinary court was pending. This was done upon the request of the ordinary courts or of the Secret State Police, or Criminal Police. With regard to the power to issue orders they were exclusively subordinate to the commandant of the concentration camp. They had no influence whatsoever on the administration and conduct of the camp or on the transfer, discharge, punishment and/or execution of the prisoners.
As it can be seen, the concentration camps were not institutions of the Gestapo, but rather institutions which served the Gestapo requirements in the transaction of its police tasks. For the Gestapo they were the same as the regular prisons were for the courts or for the Public Prosecutor, namely, executive institutions to carry out the protective custody ordered by the Gestapo.
In my plea I shall not deal with the matter of protective custody and beg the Tribunal to take judicial notice of it.
I pass to Page 43, the second sentence of the last paragraph. If one takes the trouble to analyse the numerical relationship of the cases to the various measures available to the Gestapo, such as instructions, warning, security fee and protective custody, one will find that when the latter was chosen the transfer to a concentration camp was the least practised measure. At the beginning of the war approximately 20,000 people were kept in protective custody in the concentration approximately half of them were professional criminals, the other half political prisoners. At the same time there were kept in the regular prisons about 300,000 prisoners, of whom approximately one-tenth were sentenced for political crimes.
THE PRESIDENT: What evidence is there of those figures, of the proportions?
DR. MERKEL: Dr. Best made this statement before the Commission on 6th July, 1946. Larger use of the concentration camps was made by transferring to them the professional criminals and the anti-social elements, particularly those who had been sentenced by the court to protective custody, a measure which was not ordered and executed by the Gestapo (compare witness Hoffmann).
On the basis of Gestapo Affidavit 86 the maximum numbers of prisoners sent to the concentration camps by the Gestapo at the beginning of 1945 were about 30,000 Germans, 60,000 Poles, and 50,000 subjects of other States. All other prisoners - on 19th December, 1945, the prosecution claimed that there were in the concentration camps on 1st August, 1944, 524,277 prisoners - had been sent there not by the Gestapo but by the criminal police, the courts, and various authorities in the occupied territories.
The following parts of my brief which deal in detail with the question of concentration camps will also be omitted by me; and I again beg the Tribunal to take judicial notice of them. I shall continue on Page 50, approximately in the middle of the page.
It is correct that the Gestapo established and maintained labour training camps and that it was responsible for any commitment to them.
The purpose of a labour training camp is described by the periodical The German Police (Gestapo Exhibit 59):
“The purpose of the labour training camps is to educate in a spirit of workers’ discipline those who have broken their work contracts and those who shirk their duty, and to bring them back to their old jobs after that aim has been accomplished. Any commitment is handled exclusively by offices of the State Police. To stay there is not to be considered a penalty, but an educational measure.”
It is incorrect to say, as the prosecution has done, that only foreign labourers were sent to the training camps. They had been established equally for Germans and for foreign labourers, and also for employers who had abused the rights of their employees.
The maximum length of stay stipulated (which was established after thorough investigation in each individual case) was originally twenty-one days, later fifty-six days, in contrast to the sentences of courts for breach of contract which ran from three months up to one year of imprisonment. Those who broke a contract and were committed to a labour training camp in every respect found themselves in better conditions than those who were sent to prison. The commitment was not included in the individual’s court register of penalties, and in general, shelter, feeding and treatment in the labour training camps were better than in the prisons. The food consisted of the regular prisoners’ rations supplemented by the additional rations for heavy work; these rations were continuously submitted to inspection as to quantity, quality, and taste, as is shown by Gestapo Exhibit 58.
On the basis of these facts, it is not possible to characterise the supervision of the foreign labourers and particularly the establishment of and commitment to labour training camps by the Gestapo as a crime.
6. Execution of Commandos and Paratroopers.
The next link in the chain of major crimes of which the Gestapo is accused is the charge that the Gestapo and the SD executed commandos and parachutists who had been captured and protected civilians who had lynched airmen. What can be said in this connection?
In Exhibit USA 500 - it is a secret order of the OKW of 4th August, 1942, concerning countermeasures against parachutists - the treatment of captured paratroopers is characterised as the exclusive concern of the Army, while that of single parachutists was transferred to the Chief of the Security Police and the SD. The latter task did not include their execution, but was to serve only the purpose of discovering possible sabotage orders on these parachutists and obtaining news about the intentions of the enemy.
On 18th October, 1942, Hitler ordered the destruction of all commando groups (Exhibit USA 501). This order was directed not to the German Police but to the German Army. Article 4 of that order stated that all members of such commandos falling into the hands of the Army should be transferred to the SD. Nothing can be learned about any part played by the Gestapo in these measures against the sabotage commandos. If, however, the Gestapo had played a part in it, a task not in the character of a police task would have been transferred to it, for the execution of which the Gestapo as an organisation cannot be accounted responsible since doubtless under any circumstances only a small number of individuals participated in it.
Besides, the following should be pointed out: As Rudolf Mildner stated in his affidavit of 16th November, 1945 - Document PS-2374 - an order was issued in the summer of 1944 to the Commanders and Inspectors of the Sipo and the SD to the effect that all members of the American and English commando troops should be surrendered to the Sipo for interrogation and execution by shooting. This may be taken as a proof that, at least up to that moment, the Sipo had not shot any commando groups, otherwise a need for this order would not have existed. Mildner continues to say that that order had to be destroyed immediately, which means that only the Commanders and Inspectors of the Sipo could gain knowledge of it. On account of the invasion which had started at that time and on account of the relentless advance of the Allies into the interior of France, it was practically impossible to execute these orders, because there were no longer any officers of the Sipo left in the field of operations, which was being pushed back continuously. Equally it is unlikely that that order, which presumably was issued by Himmler, ever became known to the mass of Gestapo members.
Above all, the prosecution rests its case on an order of Himmler of 10th August, 1943 (Document USA 333), stating that it was not the task of the police to interfere in controversies between Germans and bailed-out English and American terror flyers, and from this the prosecution concludes that the Gestapo approved of lynch law. However, it is of significance that this order of Himmler’s was addressed to all the German Police, above all to the uniformed regular police. For in case of the bailing out of Allied airmen, as a rule it was not Gestapo officials who made an appearance, but members of the uniformed regular police, the military police, or the local police. Only those branches of the police were in charge of street patrols, and not the Gestapo.
As proved by the numerous affidavits, all the Gestapo members were not informed of this order, but rather learned of it only through the statement Goebbels made over the radio.
The evidence given by the witness Bernd von Brauchitsch, first assistant to the Supreme Commander of the Luftwaffe, shows distinctly that that order was generally sabotaged. He stated: “In the spring of 1944 the civilian losses through air attacks rapidly increased. Apparently this made Hitler issue orders not only for defense but for measures against the airmen themselves. As far as I know, Hitler advocated the most severe measures. Lynchings were to be permitted more liberally. The Supreme Commander and the Chief of the General Staff did, it is true, condemn the attacks on the civilian population in the sharpest terms, yet they did not desire special measures to be taken against the airmen; lynching and the refusal to give shelter to the crews who had bailed out were to be rejected.”
And his further statement is of particular importance. I quote:
“The measures ordered by Hitler were not carried out by the Luftwaffe. The Luftwaffe did not receive any orders to shoot enemy airmen or to transfer them to the SD.”
Actually the Gestapo officials, in the few cases when members of the Gestapo were accidentally present after Allied airmen had bailed out, not only did not kill them but protected them against the population - see Gestapo Affidavit 81 - and if they were wounded they saw to it that they were given medical care. As to the few cases in which higher Gestapo officials ordered and executed the shooting of crews who had bailed out, these men have already been justly punished by the courts of the occupying powers. To hold all members of the Gestapo responsible for them is not justifiable.
The next point of the Indictment states: The Gestapo and the SD brought civilians from occupied countries into Germany in order to place them before secret courts and sentence them there.
On 7th December, 1941, Hitler issued the so-called “Nacht and Nebel” decree. According to this decree persons who had transgressed against the Reich or against the occupying power in the occupied areas would, as a measure of intimidation, be taken to the Reich where they were to be put before a special court. If, for any reason whatsoever, this was not possible, the transgressors were to be placed in protective custody in a concentration camp for the duration of the war.
As may be seen from the distribution list in Document 833-PS, this order went only to the offices of the Wehrmacht and not to the offices of the Gestapo - with the exception of Amt IV of the RSHA itself. The execution of this decree was a task of the Wehrmacht, not of the Gestapo. According to directives contained in Document 833-PS, it was for the Counter-Intelligence offices to determine the time of arrests of individuals suspected of espionage and sabotage.
In the Western areas, for they were the only ones concerned here, this order was to be carried out therefore by the Wehrmacht which exercised police power through its own men or those of the Security Police who were directly subordinated to the Wehrmacht commanders-in-chief.
Only to that extent did the Security Police participate in the execution of this order. The Gestapo, which was numerically very weak in the occupied Western areas, was only involved to the extent that the RSHA established a Stapo office which had to take charge of those arrested. Through the Stapo offices, in agreement with the competent Counter-Intelligence offices, the details of the deportation to Germany were determined, particularly in cases where it still remained to be decided whether transport was to be conducted by the Secret Field Police, the Field Gendarmerie, or by the Gestapo. The Gestapo had no other tasks assigned to it by the “Nacht and Nebel” decree.
Just how active Gestapo officials or Gestapo offices actually were in the execution of this decree has not been determined in these proceedings. On the contrary, according to the testimony of witness Hoffman, it has been established that Amt IV rejected this decree and that it was not applied at all in Denmark for instance.
As this decree was to be kept strictly secret, and as it emanated from the highest Wehrmacht offices, we may assume with assurance that only the most intimate circle of individuals, those charged with its actual handling, knew the contents of this decree and its significance. The officials of the Stapo offices charged with the transport received instructions to see that the arrestees were brought to a certain place in Germany without being told for what purpose or on the strength of what decrees the arrest had taken place.
If this were the case - details have not been established - you cannot hold the entire Gestapo responsible for the practice of turning over prisoners to some offices in occupied territory in order to take them under orders to Germany.
The portion of my speech dealing with the deportation of members of foreign States to Germany for the purpose of condemning them under summary proceedings and the arrest of kindred will also not be read by me, but I beg the Tribunal to take judicial notice of it.
I should now like to continue on Page 60, section 10.
The next point of the Indictment concerns the killing of prisoners upon the approach of Allied troops.
As a basis for this charge Exhibit USA 291 of 21st July, 1944, has been submitted. It is an order by the Commander of the Sipo and the SD for the Radom district through which he informs his subordinates of the order of the Chief of the Sipo and the SD in the Government General, that in the case of unforeseen developments which would make the transfer of the prisoners impossible, they should be liquidated.
The question to what extent these or similar orders have existed or were known elsewhere, and to what extent such orders were carried out, is not a matter for consideration. The essential question for me to consider, namely, the participation of the Gestapo, has not been fully determined. On the basis of the affidavits before me, and the statements by the witnesses Straub and Knochen, the Gestapo only in a few places had prisons of its own. As a rule, there existed only one police prison to be used by all local police branches. The administration and supervision of these police prisons were always the tasks of the local police administrator; in the occupied territories it was partly the task of the Army. At any rate, the Gestapo had no right to interfere with the conditions in which the prisoners found themselves. Therefore, it is unlikely that the Gestapo would have carried the killing of prisoners upon the approach of the enemy. On the other hand, it has been established with certainty that in many places the prisoners either were dismissed or were handed over to the Allied troops when they occupied the locality. (Gestapo Affidavits 12, 63, and 64.)
May I be permitted to dwell on two cases which came up during the proceedings: The witness Hartmann Lauterbacher has given evidence concerning an order, in accordance with which the inmates of the prison at Hameln in Westphalia were to be killed upon the approach of the enemy. The person who issued the order however, was not a Gestapo official, but the Kreisleiter of Hameln who, for doing so, was sentenced to seven years’ imprisonment by the Fifth British Division, and those who were to execute that order were not Gestapo officials, but prison employees, who, however, refused to carry it out.
The second case concerns the camps Muhldorf, Landsberg, and Dachau, in Bavaria. I refer to the evidence given by Bertus Gerdes, the former Gaustabamtsaleiter under Gauleiter Giessler of Munich (Exhibit USA 291). It states April, 1944, the inmates of the Dachau concentration camp and of the Jewish work camps Muhldorf and Landsberg were to be liquidated; i.e., to be killed by order of Hitler. It is certain that the order was not given to the Gestapo, and, above all, that neither of these actions was carried out, owing to the refusal on the part of the Luftwaffe and the witness Gerdes - for their exoneration this must be stated here. Thus, at least in this case, crimes did not take place the frightful planning of which alone severely shocks our deepest feelings. What is of importance for the organisation of the Gestapo, which I represent, is something which it is my duty as its defense counsel to draw to your attention: The order was given to the competent Gauleiter in Munich, who was to discuss it with the head of the Gau Staff and the competent Kreisleiter. Never was there any mention that the Gestapo should be used for its execution.
Regarding the next point, the confiscation and dividing up of public and private property, I beg the Tribunal to take judicial notice of 1t and I shall continue on Page 63 of the original, section 12.
The prosecution accuses the Gestapo of having employed the third degree method of interrogation. I had already spoken about this when I discussed the question whether the methods employed by the Gestapo were criminal. At this point I have the following to say with reference to this accusation:
The documents submitted by the prosecution made it perfectly clear that it was only permissible to employ third degree methods of interrogation in exceptional cases, only with the observance of certain protective guarantees and only by order of higher authorities. Furthermore, it was not permissible to use these methods in order to force a confession; they could only be employed in the case of a refusal to give information vital to the interests of the State, and finally, only in the event of certain factual evidence.
Entire sections of the Gestapo, such as the counter-intelligence police and frontier police, have never carried out third degree interrogations. In the occupied territories, where occupation personnel were daily threatened by attempts on their lives, more severe methods of interrogation were permitted, if it was thought that in this manner the lives of German soldiers and officials might be protected against such threatened attempts. Torture of any kind was never officially condoned. It can be gathered from the affidavits submitted, for instance, numbers 2, 3, 4, 61, and 63, and from the testimonies of witnesses Knochen, Hermann, Straub, Albath, and Best, that the officials of the Gestapo were continuously instructed during training courses and at regular intervals, to the effect that any ill-treatment during interrogations, in fact any ill-treatment of detainees in general, was prohibited. Violations of these instructions were, in fact, severely punished by the ordinary courts and later by the SS and Police Courts (see Gestapo Affidavit 76.)
Then I beg official notice be taken of the subsequent pages and I shall continue on Page 65. Discussion of the crimes of which the Gestapo is accused leads me now to the third and last group - Crimes Against Humanity.
The prosecution alleges that the Gestapo, together with the SD, had been the foremost instrument for the persecution of the Jews. The Nazi regime was said to have considered the Jews as the chief obstacle to the “police State” by means of which it had intended to pursue its aim of aggressive war. The persecution and extermination of Jews is supposed to have served this aim too. The National Socialist leaders had regarded anti-Semitism as the psychological spark to inflame the populace. The anti-Jewish actions had led to the murder of an estimated six million human beings.