It is not my task here to discuss 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 31 December 1941, Lammers, acting on behalf of the Führer, merely referred to the suggestion of utilizing 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 charged Rosenberg, when the latter was in the witness box, with the fact 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 only remains the offense of a suggestion of a criminal act, which, according to German law, must be judged as an offense 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 district 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 improper argument of the defense when I say: Does that not prove that Rosenberg abhorred criminal acts against the Jews?
(5) Document Number Rosenberg-135, Exhibit Number USSR-289, refers to the report of the General Commissioner of White Ruthenia in Minsk, dated 1 June 1943, on the subject of what happened in the prison of Minsk as regards gold fillings. This was addressed to the Reich Commissioner Ostland, who forwarded the report on 18 June 1943 with the utmost indignation. At his hearing before the Tribunal on 16 April 1946 the defendant already made a statement on this point. I should like to repeat this briefly now: The defendant had returned on 22 June 1943 from an official visit to the Ukraine and found a pile of notices about conferences, a number of letters, and above all the Führer decree from the middle of June 1943, 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 letter concerned, but he has to surmise—he cannot remember this—that the letter was explained 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 shall 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. 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. Can we condemn Rosenberg on the basis of his presumed and probable knowledge? Rosenberg has by no means the intention of playing a false and cowardly game of hide-and-seek 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 hide-and-seek 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 particularly those of the author Rosenberg. Of none other could one be so sure that he would turn with indignation from inhuman and criminal acts.
But let us go one step further 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, 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 naturally had no knowledge and no idea.
The lower echelons of police leaders 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 change 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 might further claim, 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 know 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 decision 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 Rosenberg—and mostly he 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 approached him? Here again, there is a lack of that causality which is indispensable for a legal condemnation.