[Page 258]

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."

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]

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, etc."

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 consequence.

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]

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 with

[Page 261]

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."

"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."

[Page 262]

"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."

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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