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orders, instructions and directives-unmindful of their originating long before, in some instances even several years before his assumption of office-only very late, sometimes as late as 1944 or 1945.

I will not at this moment try to prove in detail these statements of Kaltenbrunner's. The prosecution is out to find exclusively whether such orders, decrees, directives, etc. were also executed during the period of time in which the defendant was in office as head of the Reich Security Main Office (Reichssicherheitshauptamt). It is also often very difficult for the defense counsel to follow up the secret channels of knowing or not knowing of a defendant. Perhaps the defense counsel lacks sometimes the necessary distance for a free judging in view of the hecatombes of victims spread out across a whole continent and he is unjust. At his interrogation at court, Kaltenbrunner once explained the difficult position he was in when he took over his office on 1 February 1943 and I hope that nobody will misjudge this situation. The Reich was still fighting and even in 1943 still dangerous for any adversary colliding with it. But it was already clear that it was a fight for a goal in the infinitely far away and out of reach. Who tries to hold back the spokes of the wheels of a carriage rolling into an abyss at top speed will perish. Coupled with these conditions from which there was no way of escaping, there was an officiousness uncreative and caused by nervous insecurity in all areas of private and public life. Kaltenbrunner said with regard to this situation: "I beg you to put yourself into my situation. I came to Berlin in the beginning of February 1943. I began my work in May 1943 except for a few visits of introduction. In the fourth year of the war the orders and decrees of the Reich had piled up also in the executive sector already to many thousands on the table and in the filing cabinets of the civil service. It was impossible for a human being to read all that through even in the course of a year. Even if I had felt it to be my duty I could never possibly have made myself acquainted with all these orders."

In connection with this I remind you respectfully that according to the evidence given by the witness Dr. Hoettl and others the Reich Security Main Office in Berlin had 3000 employees of all categories when Kaltenbrunner was in office and that according to the statement of the same witness, Kaltenbrunner never dominated this office completely.

Nobody will be able to deny justification of the question, whether it was Kaltenbrunner's duty to have himself informed in the shortest possible time about the most essential proceedings, at least, in all the offices of the main office for Reich Security and


rules of international law, assume such an office at all or remain in such an office, although he condemns these. crimes. But is it perhaps a different case, if this man has the intention of doing all that is humanly possible to break the chain of crimes and thereby finally to become a benefactor of humanity? The last question is in my opinion to be answered in the affirmative. It is to be appraised solely from the standpoint of the highest ethic principle:

My further thought in this connection is the following: he who invokes his philanthropic intention is free of guilt if from the first day of his taking over such an office he refuses all active participation in the direct commission of injustice and even going beyond this, however, uses every conceivable possibility, nay seeks it out, so as to achieve the elimination of unjust orders and their execution through his never ending resistance and every kind of human cunning.

The defendant himself has also sensed and clearly recognized all these things. On account of the importance of the question I should like to refer to his interrogation:

Question: "I ask you whether there was a possibility that you might have brought about a change after having gradually learned the conditions in the Secret State Police and in the concentration camps, etc. If this possibility existed, will you then say that an alleviation i.e. an improvement, was brought about in the conditions in these fields due to your remaining in office?"

Answer: "I repeatedly applied for service at the front. But the most burning question which I had to decide for myself was whether the conditions would be thereby improved, alleviated or changed. Or is it your duty to do all that is possible in this position to change all the conditions that have here been so severely criticized? As my repeated demands to be sent to the front were refused, all I could do, therefore, was to make a personal attempt to change a system, the ideological and legal foundations of which I could no longer change, which has been illustrated by all the order presented here from the period before I was in office; I could only try to moderate these methods, so as to help to eliminate them definitely."

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 appeals to his conscience and you have to decide, whether this conscience, taking into consideration duty toward one's own country but also towards 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, but rather he was exclusively a man acting under orders, under compulsion.

Himmler's order was to take over the main Reich Security Office. Is it right that a given order should change the fundamental aspect of the problem? This question is of the highest importance. The Charter of this Tribunal has forbidden appealing to orders for the purpose 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 leader which, therefore, prevented him from appealing to orders given. 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 the legal authority of the state; for in the last three years of the war the already clearly distinguishable, 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 worthwhile. Even during the duration of the war orders held the office holder fast in his position as with an iron ring. There is also no doubt that he who refused to obey an order, especially in the last years of the war, had to fear his own death, and possibly also the extinction of his family.

From whatever side we approach the problem of orders in Germany, after 1933, the appeal to the above-mentioned state of necessity ought not to be denied to the defendant; because the principle of necessity, which exists also in the German criminal code and which probably exists in the criminal codes of all civilized nations, is based on the freedom of the individual being necessary for the affirmation of any guilt.

If the perpetrator is no longer free to act, because another person deprives him of this liberty by endangering 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; an encroachment upon the freedom of the man receiving orders existed in smaller or larger dimension without doubt. It seems certain to me that Himmler would have interpreted a refusal of Kaltenbrunner to take over the direction of the Reich SecurityMain Office as sabotage and would, as a necessary conclusion, have eliminated him.

Hitler was one of the greatest breakers of law that world history has ever known. Many even affirm the duty to kill such a monster, so as to guarantee for millions of human beings the right to freedom and life. At these trials the most different points of view with regard to the "Putsch" especially the killing of the tyrant have been preferred 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, because misanthropic, order, the scales in the now ensuing conflict between obedience and freedom of conscience will be turned to the side of the latter. Also 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 subalterns loses, at the same moment, the right to expect obedience. The tortured conscience is freed and breaks the ties which the oath has created. Perhaps some persons will not agree with my point of view on this problem and will point at the necessity of an orderly state of community and the wholesomeness of obedience especially in the interest of this orderly state, or they will point at the prudence of those in command and at the impossibility of knowing and evaluating all such orders as the person in command can, they will point to patriotism and many more other points of view. And although all that may be correct, it remains the absolute duty, to resist an order, the purpose of which, clearly recognizable for a subaltern, contains the realization of evil and violates unequivocally the sound sentiments for humanity and peace among peoples and individuals. The phrase "In the fight of a people for life or death there is no question of legality," is not thought out to the end. risain

Even the immediate danger of 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 also his life under the above-mentioned provisions. If, however the

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