“Question: ‘And so, did you consider it consistent with your conscience to remain in spite of this?’
“Answer: ‘In view of the possibility of constantly using my influence on Hitler, Himmler, and other people, I could not in my opinion reconcile it with my conscience to give up this position. I considered it my duty to take a personal stand against injustice.’ ”
As you see, the defendant refers to his conscience and you have to decide whether this conscience, taking into consideration duty toward one’s own country but also toward the community of mankind, has failed or not. The duty which I have just mentioned, to resist the orders of evil, exists in itself for every human being, regardless of his position. This duty is expressly affirmed by Kaltenbrunner also. He who holds a state office must in the first place be able to prove that he contributed toward abolishing the gigantic injustice which occurred in Europe as soon as he learned of it, if he does not want to become guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to this question I leave to your judgment. But one thing I should like to express as my opinion: This man was no conspirator; rather was he exclusively a person acting under orders and under compulsion. Himmler’s order was, despite all previous agreement, for him to take over the Reich Security Main Office. Is it right that an order should change the fundamental aspect of the problem? This question is of the highest importance. According to the Charter of this Tribunal one cannot plead higher orders for the purposes of avoiding punishment. The reasons given for this by the American chief prosecutor proceeded from the presumed knowledge of the crimes or their background in the minds of the higher leaders which, therefore, precluded them from pleading the existence of orders. Like a red thread the fact runs through this Trial that hardly one high official, in whatever position of public life he may have been, was put into office without the order of the highest representative of official authority; for in the last 3 years of the war the already clearly discernible inevitable destiny of the Reich meant for the holder of a high office the renunciation of that part of life which many people say makes life worth living. For the duration of the war, orders tied the office holder to his position. Also there is no doubt that he who refused to obey an order, especially in the last years of the war, risked his own death, and possibly the extinction of his family.
From whatever side we approach the problem of orders in Germany after 1933, the invocation of the above-mentioned state of duress ought not to be denied to a defendant, because that principle of duress which exists in the German criminal code, as no doubt it does in the criminal codes of all civilized nations, is based on that freedom of the individual being which is necessary for the affirmation of any guilt.
If the perpetrator is no longer free to act, because another person deprives him of this liberty through direct immediate danger to his life, then, on principle, he is not guilty. I do not want at this instant to examine whether in the German world of reality of the last years such a direct immediate danger for one’s own life always existed; but an encroachment upon the freedom of the man receiving orders did exist to a smaller or larger extent without any doubt. It seems certain to me that Himmler would have interpreted a refusal of Kaltenbrunner to take over the direction of the Reich Security Main Office as sabotage and would, as a necessary conclusion, have eliminated him.
Hitler, according to the revelations at this Trial, was one of the greatest lawbreakers that world history has ever known. Many even admit it to be a duty to kill such a monster, so as to guarantee to millions of human beings the right of freedom and life. At this Trial the most varied points of view with regard to the “Putsch,” especially the killing of the tyrant, have been proffered by witnesses and defendants. I cannot recognize the duty, but the right is certainly not contestable. If the oppression of human freedom occurs by means of a clearly unjust order based on misanthropy, the scales in the now ensuing conflict between obedience and freedom of conscience will be weighted on the side of the latter. Even the so-called oath of allegiance could not justify a different point of view because, as everybody feels, the obligation to allegiance presupposes duties of both partners, so that he who treads under foot the obligation to respect human conscience in the person of his subordinates loses at the same moment the right to expect obedience. The tortured conscience is freed and breaks the ties which the oath had created. Perhaps some people will not agree with my point of view on this problem and will point out the necessity of orderliness in the community, and the salutary effects of obedience in the very interest of this orderly state, or they will point to the wisdom of those in command and at the impossibility of understanding and evaluating all such orders as well as the person in command does; they will point to patriotism and other aspects. And though all that may be correct, there yet remains an absolute obligation to resist an order the purport of which, clearly recognizable to a subordinate, amounts to the materialization of evil and obviously violates the healthy sentiments which aim at humanity and peace among people and individuals. The phrase “in a life-and-death struggle of a nation there can be no legality” is an untrue thesis not thought out to the end, no matter who expresses it. Even immediate danger to the life of the person receiving the order could not induce me to change my conviction. Dr. Kaltenbrunner would not deny that he who stands at the head of an office of great importance to the community is obliged to sacrifice his life under the above-mentioned conditions.
Whereas even direct and imminent danger to his own life and that of his family cannot excuse him, it does diminish his guilt, and Kaltenbrunner only means to point to this moral and legal evaluation of his position. Thus he emphasizes a fact, historically proven, which was one of the deeper reasons for the collapse of the Reich; for no living man can bring to a community liberty, peace, and welfare, who himself bears his chains reluctantly and has lost that freedom which is the decisive characteristic of all human beings.
I believe Kaltenbrunner would like to be reborn, and I know that he would fight for that freedom with his life’s blood. Kaltenbrunner is guilty; but he is less guilty than he appears in the eyes of the Prosecution. As the last representative of an ominous power of the darkest and most anguish-laden period of the Reich’s history he will await your judgment, and yet he was a man whom one could not meet without a feeling of tragedy.
THE PRESIDENT: The Tribunal will adjourn now.