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1900 - 1999
COL. POKROVSKY: Mr. President, would you allow me to inform the Tribunal that in conformity with the ruling given by the Tribunal during the morning session of 12 August 1946 concerning the witness Schreiber, this witness has been brought to Nuremberg and is here and can be examined today or at any other time, as the Tribunal may decide.
THE PRESIDENT: Colonel Pokrovsky, could he be examine6 now, at once?
COL. POKROVSKY: He could be examined at once, Mr. President.
THE PRESIDENT: I think that would be the most convenient, before we go on with the organizations' speeches.
COL. POKROVSKY: Very well, Mr. President; General Alexandrov will therefore examine him at once.
DR. LATERNSER: Mr. President, I object to the examination of this witness for the following reasons: for the trial of the organizations it was decided by the Court that all witnesses should first be examined before the Commission. What is valid for the Defense must, according to general legal principles, be valid for the Prosecution as well. For these reasons the examination of this witness is inadmissible.
THE PRESIDENT: I have before me the order of the Court o the 12th of August 1946, which is termed as follows:
"With reference to the objection of Dr. Laternser to the use of the statement made by Major General Walter Schreiber, the Tribunal is not inclined to admit any evidence so late as this, or to reopen questions which have been gone into fully before the Tribunal; but, on the other hand, in view of the importance of the statement of Major General Schreiber and its particular relevance, not only to the case of certain of the individual defendants but also, to the case of the High Command, the Tribunal will allow Major General Schreiber to be heard as a witness if he is produced before the end of the
26 Aug. 46
hearing of the case. Otherwise no use can be made of this statement."
Dr. Laternser's present objection is, therefore, overruled.
[The witness Schreiber took the stand.]
THE PRESIDENT: Will you state your full name, please?
WALTE R. SCHREIBER (Witness): Walter Schreiber.
THE PRESIDENT: Will you repeat this oath after me:
I swear by God-the Almighty and Omniscient-that I will speak the pure truth-and will withhold land add nothing.
[The witness repeated the oath.]
THE PRESIDENT: You may sit down.
MAJOR GENERAL ALEXANDROV: Witness, will you kindly give the Tribunal some brief particulars about yourself, about your career, and about your scientific and educational activities?
SCHREIBER: I am 53 years of age. I was born in Berlin and am a Professor of Medicine. I studied medicine at the Universities of Berlin, Tubingen, and Greifswald. I passed the State medical examination at Greifswald in 1920. 1 received my degree and was made a Doctor of Medicine.
In 1940 1 became teacher of Hygiene and Bacteriology at the University of Berlin and in 1942 Professor at the Military Medical Academy. I have been an active military physician since 1921. 1 have held various positions as a garrison physician, and have been a division physician since 1929, although I only did scientific work as a hygienist and bacteriologist.
I carried out my work as a scientist and a professor at the Universities of Berlin and Freiburg in Breisgau. After 1929 1 was first in Freiburg, later hygienist at the Wehrkreiskommando, in Berlin, and finally during the second World War hygienist and bacteriologist at the headquarters of the High Command of the Army. I then became section chief in the High Command of the Army and was in charge of the science and health departments in the Army Medical Inspectorate and finally head of the Scientific Department, Group C, of the Military Medical Academy. In this capacity I was in charge of the scientific institutes of the Academy in Berlin.
MAJOR GENERAL ALEXANDROV: What was the last military rank you, held, and what position did you occupy in the German Army?
SCHREIBER: I was Generalarzt, that is Major General in the Medical Service. My last position was that of medical officer in charge of the military and civilian sector of Berlin, but only from 20 to 3,0 April 1945.
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MAJOR GENERAL ALEXANDROV: When and in what circumstances were you taken prisoner by the Soviet Army?
SCHREIBER: On 30 April I was in the large hospital in the air-raid shelter of the Reichstag building in Berlin. Since most of the city of Berlin was already in the hands of the Russian troops, there was no more supervisory work for me to do. I therefore opened a large military hospital there and took care of several hundred wounded.
MAJOR GENERAL ALEXANDROV: You are now going to be shown your statement of 10 April 1946, which you addressed to the Soviet Government.
[A document was handed to the witness.]
MAJOR GENERAL ALEXANDROV: Do you remember that statement?
SCHREIBER: Yes; that is a report ...
THE PRESIDENT [Interposing]: Wait a minute.
General Alexandrov, the Tribunal would prefer that you should get the evidence orally and not by a document. Therefore, if you question him upon the subjects which are contained in it ...
MAJOR GENERAL ALEXANDROV: Mr. President, that is -what ...
THE PRESIDENT [Interposing]: Wait a moment.
MAJOR GENERAL ALEXANDROV: That is what I was going to do.
THE PRESIDENT: Yes, General, the Tribunal would prefer that you get the evidence from the witness and do not use the document. Go on.
MAJOR GENERAL ALEXANDROV: That is what I intend to do, Mr. President, but I wish to have the witness tell us about a few circumstances, in connection with this document.
THE PRESIDENT: Very well.
MAJOR GENERAL ALEXANDROV: The substance will be obtained orally from the witness.
[Turning to the witness.] Do you confirm the facts set forth in that statement?
SCHREIBER: Yes, I confirm them.
MAJOR GENERAL ALEXANDROV: What was the reason for your making the statement to the Soviet Government?
SCHREIBER: In the second World War things occurred on the German side which were against the unchangeable laws of medical ethics. In the interests of the German people, of medical science in
26 Aug. 46
Germany, and the training of the younger generation of physicians in the future, I consider it necessary that these things should be thoroughly cleared up. The matters in question are the preparations for bacteriological warfare, and they give rise to epidemics and experiments on human beings.
MAJOR GENERAL ALEXANDROV: Why did you make this statement only on 10 April 1946 and not before that date?
SCHREIBER: I had to wait and see whether this Court itself might not raise the question of bacteriological warfare. When I saw that it did not raise this question I decided in April to make this statement.
MAJOR GENERAL ALEXANDROV: Thus, as a prisoner of war, you had the opportunity of following the Trial at Nuremberg?
SCHREIBER: Yes, in the prison camp German newspapers were available in the club room. In addition, there was the Prisoner-of-War News printed in Soviet Russia, which reported regularly on the Trial.
MAJOR GENERAL ALEXANDROV: Witness, will you kindly tell us what you know about the preparations by the German High Command for bacteriological warfare?
SCHREIBER: In July 1943, the High Command of the Wehrmacht called a secret conference, in which I took part as representative of the Army Medical Inspectorate. This conference took place in the rooms of the General Wehrmacht Office in Berlin, in the Bendler Strasse, and was presided over by the Chief of Staff of the General Wehrmacht Office, a colonel. I do not remember the name of this colonel. The colonel said by way of introduction that as a result of the war situation the High Command authorities now had to take a different view of the question of the use of bacteria as a weapon in warfare from the one held up till now by the Army Medical Inspectorate. Consequently, the Fuehrer, Adolf Hitler, had charged Reich Marshal Hermann Goering to direct the carrying out of all preparations for bacteriological warfare, and had given him the necessary powers.
A bacteriological warfare group was formed at this meeting. The members of this group were essentially the same gentlemen who had been taking part in the conference, that is, Ministerial Director Professor Schuhmann of the science section of the Army Armaments Office; Ministerial Councillor Stantin of the Army Armaments Office, Weapons Examination Section; Veterinary General Professor Richter, as representative of the Veterinary Inspectorate, and another younger veterinary officer of the Army Veterinary Inspectorate; and from the Army Medical Inspectorate, Chief Medical Officer Klieve; the latter only as an observer, however. In addition, there was a staff officer of the Luftwaffe as representative of the High Command of
26 Aug. 46
the Luftwaffe, a staff officer of the Armaments Office as its representative, a well-known zoologist, and a botanist. But I do not know the names of these gentlemen.
At a secret conference it was decided that an institute should be created for the production of bacterial cultures on a large scale, and the carrying out of scientific experiments to examine the possibilities of using bacteria. The institute was also to be used for experim6nting with pests which could be used against domestic animals and crops, and which were to be made available if they were found practicable. That is the substance of what was discussed at the conference in July 1943.
MAJOR GENERAL ALEXANDROV: And what was done after that? What do you know about that?
SCHREIBER: A few days later, I learned from the Chief of Staff of the Army Medical Inspectorate, Generalarzt Schmidt-Bruecken, who was my direct superior, that Reich Marshal Goering had appointed the Deputy Chief of the Reich Physicians' League, Blome, to carry out the work, and had told him to found the institute as quickly as possible in or near Posen. Among the people who worked at this institute in Posen were Ministerialdirektor Schuhmann, Ministerial Councillor Stantin, and a number of other doctors and scientists whom I do not know. I myself made a report of this secret conference on the same day to the Chief of Staff, and a few days later to the Army Medical Inspector, Generaloberstabsarzt Professor Handloser, since he was not in Berlin at the time.
MAJOR GENERAL ALEXANDROV, And what do you know about the experiments which were being carried out for the purpose of bacteriological warfare?
SCHREIBER: Experiments were carried out at the institute in Posen. I do not know any details about them. I only know that aircraft were used for spraying tests with bacteria emulsion, and that insects harmful to plants, such as beetles, were experimented with, but I cannot give any details. I did not make experiments myself and do not know any details.
MAJOR GENERAL ALEXANDROV: You testified that the first secret conference devoted to these questions was presided over by a colonel belonging to the General Staff of the OKW. In whose name did he do so?
SCHREIBER: In the name of Field Marshal Keitel and the chief of- the General Wehrmacht Office, General Reinecke.
MAJOR GENERAL ALEXANDROV: Who ordered you to take part in this conference?
SCHREIBER: The Chief of Staff, Generalarzt Schmidt-Bruecken, commissioned me to attend.
2G AU9. 46
MAJOR GENERAL ALEXANDROV: Was the Army High Command informed about it and did they know about the preparations for bacteriological warfare?
SCHREIBER: I assume so, for Generaloberstabsarzt Handloser, the medical chief, to whom I had reported the results of the conference was, in his capacity as army physician, that is, as Chief Medical Officer of the Army, directly subordinate to the Chief of the General Staff of the Field Army and had to report to him about it.
MAJOR GENERAL ALEXANDROV: What do you know about the participation of the Defendant Jodl in the carrying out of these measures?
SCHREIBER: I know nothing about any co-operation by Generaloberst Jodl.
MAJOR GENERAL ALEXANDROV: Will you kindly tell us precisely what the reason was for the decision of the OKW to prepare for bacteriological warfare?
SCHREIBER: That was implied by the words of the president of the secret conference. The defeat at Stalingrad which, in contrast to the heavy fighting around Moscow in the winter of 1941 to 1942, was a severe blow for Germany, inevitably led to a reassessment of the situation, and consequently to new decisions. It was no doubt considered whether new weapons could be used which might still turn the tide of war in our favor.
MAJOR GENERAL ALEXANDROV: How do you explain that the German High Command did not put into effect these plans for the waging of bacteriological warfare?
SCHREIBER: The High Command probably did not carry out the plans for the following reasons: in March 1945, Professor Blome visited me at my office at the Military Medical Academy. He had come from Posen and was very excited. He asked me whether I could accommodate him and his men in the laboratories at Sachsenburg so that they could continue their work there; he had been forced out of his institute at Posen by the advance of the Red Army. He had had to flee from the institute and he had not even been able to blow it up. He was very worried at the f act that the installations for experiments on human beings at this institute, the purpose of which was obvious, might be easily recognized by the Russians for what they were. He had tried to have the institute destroyed by a Stuka bomb but that, too, was not possible. Therefore, he asked me to see to it that he be permitted to continue work at Sachsenburg on his plague cultures, which he had saved.
26 Aug. 46
I told Herr Blome that Sachsenburg was no longer under my command and for that reason I could not give him my consent, and I referred him to the Chief of the Army Medical Service, Generaloberstabsarzt Handloser. The next day Generaloberstabsarzt Handloser called me up and said that Blome had come to him and that he had an order from the Commander of the Reserve Army, Heinrich Himmler, and that on the strength of this order he was unfortunately compelled to give Blome a place in which to work at Sachsenburg. I took note of this but I had nothing more to do with it. Thus Blome had had to leave the Posen Institute. It is difficult to imagine what the work of such an institute entails. If one wants to cultivate plague bacteria on a large scale, one must have an adequate laboratory with appropriate precautionary measures. The personnel must be trained, for no German, not even an expert bacteriologist, has any experience with plague cultures. That takes time, and after its founding had been decreed a considerable interval elapsed before the institute at Posen began its work. Now it had suffered a severe blow; it was to carry on at Sachsenburg. During his visit Blome told me that he could continue his work at an alternative laboratory in Thuringia, but that this was not yet completed. It would take a few days or even a few weeks to complete it, and that he had to have accommodation until then. He added that if the plague bacteria were to be used when the military operations were so near to the borders of Germany, when units of the Red Army were already on German soil, it would, of course, be necessary to provide special protection for the troops and the civilian population. A serum had to be produced. Here again time had been lost, and as a result of all these delays it had never been possible to put the idea into effect.
MAJOR GENERAL ALEXANDROV: Witness, will you kindly tell us now what you know about the illegal experiments carried out on human beings by German doctors?, I would ask you to testify very briefly as to, these questions, because they have already been sufficiently gone into in the Trial.
SCHREIBER: In the course of my duty I learned of a few things. In 1943, 1 believe it was in October, we had at the Military Medical Academy a scientific meeting of qualified doctors, so-called advisory doctors, and Obersturmbannfuehrer Dr. Ding lectured to the bacteriology section, which comprised about 30 gentlemen, on tests with typhus vaccine. The lecture showed that this Dr. Ding had inoculated prisoners with vaccines against typhus in the Buchenwald concentration camp, and that some while after, I do not know how long it was, he had artificially infected them with typhus by typhus-infected lice, and that according to whether these people contracted typhus or not, he based his conclusions on the protection
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which the vaccine had or had not given to the people in question. Since vaccines of various qualities had been given there were cases of death to be deplored.
MAJOR GENERAL ALEXANDROV: Now, what was the scientific value of the experiments carried out by this Dr. Ding?
SCHREIBER: In my opinion they had no scientific value at all. In the course of the war, we had gained much knowledge in this field by empirical means and collected a great deal of experience. We knew our vaccines very well, and there was no need for these further tests. A number of the vaccines with which Ding experimented were not used at all in the Wehrmacht and were rejected.
MAJOR GENERAL ALEXANDROV: Please continue your statements regarding this question.
SCHREIBER: There was a second matter which came to my notice in the course of my duties: the head of the hospital in Hohenlychen, SS-Gruppenfuehrer Professor Gebhardt, a talented surgeon, had carried out cranium operations on Russian prisoners of war and had killed the prisoners at certain intervals in order to observe the pathological changes, the progress of the bone changes on the basis of trepanation, the results of the operations, and so forth. And thirdly I attended, here in Nuremberg, a scientific meeting held by the High Command of the Luftwaffe.
MAJOR GENERAL ALEXANDROV: When did this take place?
SCHREIBER: The meeting was in 1943, 1 cannot say exactly when it was. I believe it was the autumn of 1943, but it may have been in the summer. At this meeting, which was held in the hotel near the station, two doctors, Dr. Kramer and Professor Holzlehner, director of the Psychological Institute at the University of Kiel, reported on experiments which they had carried out on behalf of the High Command of the Luftwaffe in Dachau on the inmates of the concentration camp. The purpose of the experiments had been to obtain data for the production of a new protective suit for airmen for use over the English Channel. Many German airmen had been sh6t down in the Channel and had, in a short time, met their death in the cold water before the rescue plane could reach them. Now, it was proposed to make a suit which would have some kind of insulating effect and protect the body against cold. For this purpose the persons on whom the experiments -were carried out had to be placed in water of varying low temperatures-ice cold water, water at zero, water of more than five degrees-I do not know exactly what all the temperatures were; and measurements were taken showing the decline of body temperature; they indicated the falling-off of body temperature by a graph-the temperature
26 AU9. 46
at the point between life and death. The subjects of the experiments wore various suits, the ordinary ones which were worn at that time, and others. I recall one special suit which developed a foam between the suit and the skin, that is, a layer of air which had an immediate insulating effect, and death from freezing could be postponed for a considerable time by this suit. Of course, these experiments, which were undertaken under, anaesthetics, cost a number of subjects their lives.
MAJOR GENERAL ALEXANDROV: Please tell us what the Defendant Goering had to do with the experiments carried out at Dachau?
SCHREIBER: Stabsarzt Kramer said at the beginning of his lecture that the Defendant Goering had ordered these experiments, and that the Reichsfuehrer SS Himmler had kindly made available the subjects for the experiments.
MAJOR GENERAL ALEXANDROV: Do you yourself admit the possibility that similar experiments could -have been carried out without the knowledge of the Defendant Goering?
SCHREIBER: I cannot imagine that.
MAJOR GENERAL ALEXANDROV: Mr. President, I have no further questions to put to this witness.
DR. LATERNSER: Witness, you are in a Russian prisoner-of-war camp?
DR. LATERNSER: Where?
SCHREIBER: Near Moscow.
DR.LATERNSER: Do you hold any office in this camp?
SCHREIBER: No. I hold no office in the prisoner-of-war camp.
DR. LATERNSER: How did it come about that you made your statement on 10 April? Did you yourself take the initiative or were you asked to do so?
SCHREIBER: I myself took the initiative. When I heard the report of Dr. Kramer and Professor Holzlehner here in Nuremberg I was deeply shocked at the obviously perverted conceptions of some of the German doctors. Even at that time I already spoke about it to the Chief of the Army Medical Service, Generaloberstabsarzt Handloser, who shared my opinion; and when more and more such things were reported in the papers, I considered it my duty-I refer to what I said before-in the interest of the future of the German medical profession, and future generations, to clear these things up once and for all.
DR. LATERNSER: What did you learn about such things?
26 AU9. 46
SCHREIBER: What I said before.
DR. LATERNSER: No, I mean what you learned in the prisoner-of-war camp.
SCHREIBER: From the papers which we received.
DR. LATERNSER: Well, what did you learn from the papers?
SCHREIBER: I learned...
DR. LATERNSER: One moment, Witness. Have you a piece of paper before you?
DR. LATERNSER: What does it say?
SCHREIBER: "You can speak faster."
DR.LATERNSER: One question: Your testimony in answer to the questions of the Russian Prosecutor today-was it prepared?
SCHREIBER: I was interrogated, and what I said is in this statement.
DR.LATERNSER: I ask you, Witness, whether before the examination today, you were informed by the Russian Prosecutor on what you were to testify about? Was your testimony previously determined?
SCHREIBER: No, my statement was not previously determined, but I knew that I would be asked about bacteriological warfare and experiments on human beings.
DR. LATERNSER: Now, as to the statement: you have the statement before you?
SCHREIBER: Yes, here it is.
DR. LATERNSER: At the end of that statement there is a note. Would you please look at it?
DR.LATERNSER: Was this note put on this document in your presence?
SCHREIBER: No, I received this document here in this room a little while ago.
DR. LATERNSER: I mean something else; was your signature certified on the original? Or did you send off the original before this note, which now appears at the end, was added?
SCHREIBER: I made my statement. No note was written on it in my presence.
DR. LATERNSER: Was any advantage promised to you for making this report?
26 AU9 46
SCHREIBER: No, nothing was promised me. I would refuse to allow anybody to hold out advantages to me.
DR. LATERNSER: I do not know. That is why I asked you. Was the German Army Medical Service at any time afraid that the Soviet Union might use bacteria as a means of combat?
SCHREIBER: Not the Army Medical Inspectorate, but the General Staff. In 1942 the General Staff inquired of the Army Medical Inspectorate whether the enemy in the East might be expected to use bacteria as a weapon. I, myself, wrote the answer. On the basis of intelligence reports and reports of the army physicians on the Eastern front, and in view of the situation regarding epidemics among our troops, we were able to say that this fear was not justified. That opinion was given by me in 1942. It was a comprehensive opinion and was prepared by me and signed by Generaloberstabsarzt Handloser. Already in 1939 an opinion about the same matter had been asked for, and was drawn up on similar lines and signed by Generaloberstabsarzt Dr. Waldmann.
DR. LATERNSER: You stated that in 1943, after Stalingrad, an order to make preparations for this bacteriological warfare against Russia was issued. Do you know who issued the order to prepare for this warfare?
SCHREIBER: Well, I...
DR.LATERNSER: I ask you, do you know who issued this order? It is a clear question. I ask you to answer it equally clearly.
SCHREIBER: It, was not said at the conference who issued it.
DR. LATERNSER: You do not know who issued the order?
DR.LATERNSER: Then, you do not know-or do you know the exact contents of the order?
SCHREIBER: No. I did not receive any written order. The Chief of Staff of the General Wehrmacht Office said that the Fuhrer had given the Reichsmarschall full powers, and so forth, for carrying out all the preparations.
DR.LATERNSER: So what you said about it is hearsay? You do not know it yourself?
SCHREIBER: I was told so officially at the conference. Therefore, I did not learn it from hearsay, but officially, at an official conference; we who were assembled there were told that.
DR. LATERNSER: When you were told that at this conference, what was your capacity?
SCHREIBER: As I said before, I was a representative of the Army Medical Inspectorate.
26 Aug. 46
DR. LATERNSER: When this proposal was made known, what did you do-you yourself?
SCHREIBER: I pointed out that bacteria were an unreliable and dangerous weapon. I did nothing else.
DR. LATERNSER: You were an expert. Since 1942 you had been a professor?
DR.LATERNSER: And you said nothing else?
SCHREIBER: No, nothing else.
DR.LATERNSER: Why did you not say anything else?
SCHREIBER: Because we were confronted with a fait accompli.
DR. LATERNSER: A fait accompli? But you say the matter was to be discussed.
SCHREIBER: We were told it. It was not discussed. We were told, "This decision has been taken."
DR. LATERNSER: But it was a fait accompli only if these bacteria were actually to be used. It was only proposed to start the preparations. A strong objection by a professor in such a high position might have had some effect. You should at least have tried it. Might it not have changed this opinion?
SCHREIBER: According to our experience, nothing could be done against such a decision. As an expert I pointed out that it was a dangerous and unreliable weapon.
DR. LATERNSER: You could have got up and left the room or made some strong protest.
SCHREIBER: It would have been b6tter if I had done it.
DR. LATERNSER: That is enough on that point. The working group was to meet once a month in the rooms of the General Wehrmacht Office in Berlin. Do you know how many meetings took place?
SCHREIBER: No. I cannot tell you.
DR. LATERNSER: Do you know when the last meeting was?
SCHREIBER: I cannot say that either.
DR. LATERNSER: Were any meetings held?
SCHREIBER: Yes. Meetings were held.
DR. LATERNSER: Do you know whether there are records of these meetings?
SCHREIBER: I assume so, certainly. Professor Klieve informed me from time to time.
26 Aug. 46
DR. LATERNSER: Did you yourself belong to this working group?
DR. LATERNSER: When and in what way did Professor Blome receive powers from Goering to make immediate arrangements for the medical and technical side of these preparations?
SCHREIBER: Immediately after this conference, perhaps on the very same day or even previously, because Blome's name was mentioned at the conference. At least, it was said he had been proposed, and two days later Herr Schmidt-Bruecken told me "Blome is the man."
DR. LATERNSER: And how do you know that?
SCHREIBER: From my immediate superior, Generalarzt Schmidt-Bruecken.
DR. LATERNSER: At what time did the spraying experiments from airplanes take place?
SCHREIBER: I cannot tell you.
DR. LATERNSER: What do you know about these spraying experiments?
SCHREIBER: The following: Bacterial emulsions with non-pathogenic bacteria which could be easily traced again-easily determined culturally were sprayed from planes on an experimental field near the institute at Posen.
DR. LATERNSER: Did you yourself see such experiments?
DR.LATERNSER: How do you know that these experiments took place?
SCHREIBER: Klieve spoke to me about these spraying experiments and said that first a dye stuff was used which had more or less the same specific density as a bacterial emulsion. This had been poured over the land, and then experiments were made on models.
DR.LATERNSER: Did Klieve see these experiments himself?
SCHREIBER: I believe so.
DR.LATERNSER: You cannot say for sure?
SCHREIBER: I would not like to swear to it, but it is extremely probable.
DR. LATERNSER: You say that at this conference in July 1943 the colonel was acting for Field Marshal Keitel and General Reinecke?
26 Aug. 4(;
DR. LATERNSER: How do you know that?
SCHREIBER: First of all, the meeting took place in General Reineeke7s office. The colonel who was presiding was his chief of staff, and we had been ordered to come to a meeting at the General Wehrmacht Office at such and such a time, and the colonel also mentioned Field Marshal Keitel's name.
DR. LATERNSER: But you cannot say whether it was actually ordered by him?
SCHREIBER: No, I did not see the order.
DR. LATERNSER: Well, then you do not know it?
SCHREIBER: No, I only know what the colonel told us officially.
DR. LATERNSER: You also said you supposed the High Command of the Army had been informed, namely, by Professor Handloser.
DR.LATERNSER: What facts made you assume this?
SCHREIBER: I personally made a report to Generaloberstabsarzt Handloser, and Handloser expressed his opinion about the matter to me. It was an extremely serious matter for us physicians, for if there really should be a plague epidemic it was clear that it would not stop at the fronts, but would come over to us too. We had to bear a very grave responsibility.
DR.LATERNSER: You have deviated a little. We will come back to this point. I wanted to know whether you can give any facts to prove that the High Command of the Army was informed?
SCHREIBER: No. I cannot.
DR. LATERNSER: It is a pure assumption, then?
SCHREIBER: Yes. But it is quite obvious ...
DR. LATERNSER: Never mind if it is obvious or not, I want to know whether you know of any facts.
SCHREIBER: No, I cannot give any facts.
DR.LATERNSER: Do you know to whom Professor Handloser was subordinate?
SCHREIBER: His subordination was threefold. He was Chief of the Wehrmacht Medical Department, and in that capacity was under Field Marshal Keitel of the OKW. He was Army Medical Inspector, and in that capacity was under the Commander of the Reserve Army, Generaloberst Fromm, and later Reichsfuehrer SS Himmler and Juttner; thirdly, he was Army Physician, that is, Chief Medical Officer of the Field Army, and in this capacity was subordinate to the Chief of the General Staff of the Field Army.
26 AU9. 46
DR. LATERNSER: You were also questioned about the reasons why this bacteriological warfare was not carried out. What actual reasons are known to you?
SCHREIBER: The head of the institute at Posen, Professor Blome, reported the destruction and total loss of the Posen Institute to me when he visited me. He told me of his plight.
DR. LATERNSER: Do you yourself know whether a military command authority gave the positive order that this bacteriological warfare was not only to be prepared but was also to be carried out?
SCHREIBER: No, I did not see any order.
DR. LATERNSER: Then these were merely preparations?
SCHREIBER: Preparations for bacteriological warfare was what I said.
DR.LATERNSER: With which high-ranking general did you yourself speak about this bacteriological warfare?
SCHREIBER: I did not speak to any general.
DR.LATERNSER: Do you know from your own knowledge whether any high-ranking general was informed of these intentions? I am asking you whether you know it?
SCHREIBER: I was not present when a general was informed about them.
DR.LATERNSER: Then you do not know it?
DR. LATERNSER: Do you know how far apart the enemy troops and our troops usually were at the front?
SCHREIBER: That differed a great deal.
DR. LATERNSER: What was the normal distance?
SCHREIBER: I am not a front-line soldier. I would not like to speak of a subject of which I know nothing.
DR. LATERNSER: We will assume that the enemy troops were normally at a distance of 600 to 1,000 meters from our own troops.
Would you, as a physician, consider the use of plague bacteria safe and not dangerous for our own troops?
SCHREIBER: I would always consider the use of plague bacteria as dangerous, no matter what the distance was.
DR. LATERNSER: Well, let us assume that such a devilish idea as actually to use bacteria did exist. Would that not have involved our troops in serious danger?
SCHREIBER: Not only our troops, but the whole German people; for the refugees were moving from East to West. The plague would have spread very swiftly to Germany.
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THE PRESIDENT: Dr. Laternser, it is useless to ask the same question over again. The witness has already said so.
DR. LATERNSER: May that not have been one of the reasons why this warfare was not used?
SCHREIBER: According to the statements made to me by Herr Blome, who was head of the institute and who had been appointed by the Reichsmarschall, no. He was using all his efforts trying to cultivate his cultures somewhere else.
DR. LATERNSER: Mr. President, may I ask for the recess now and ask a few more questions of the witness later?
THE PRESIDENT: No, Dr. Laternser, the Tribunal thinks you should finish now.
DR.,LATERNSER: You say, on Page 7 of your written statement, that in Norway 400 Yugoslav prisoners of war were shot out of hand because an epidemic had broken out among them. You say that this was a labor camp of the Waffen-SS ...
THE PRESIDENT: Go on.
DR.LATERNSER: This incident was reported to you?
DR.LATERNSER: Did you report it to your superior?
DR.LATERNSER: What was done?
SCHREIBER: A letter was immediately sent to the Chief Medical Officer of the SS and Police, Professor Grawitz, and through these official channels the affair was reported to the office which was the supervisory agency for this camp.
DR. LATERNSER: Do you know whether any legal steps were taken?
SCHREIBER: I do not know how the SS courts work. I do not know.
DR. LATERNSER: Then you write on Page 7: "Specially cruel treatment was meted out to the Russian prisoners of war by the High Command of the Wehrmacht."
DR. LATERNSER: Then you write that the Russian prisoners of war were given inadequate food.
DR. LATERNSER: Now I ask you, when were those observations made concerning the inadequate food? Immediately after capture in the reception camps behind the front, or in prisoner-of-war camps in Germany?
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SCHREIBER: I am not speaking of what happened in the reception camps immediately after the fighting. There, even with the best intentions, the state which has taken the prisoners is not always able to care for them as might be necessary. I am speaking of a later period when the prisoners had been in the hands of the Germans for weeks, and I am speaking of camps which were in the Baltic. countries. They were not taken to Germany. The Russian prisoners were brought to Germany only later. The conditions in these camps were extremely poor.
DR. LATERNSER: Were these bad conditions due to bad intentions?
SCHREIBER: I assume that these bad conditions were due to basic ideological problems ...
THE PRESIDENT: Dr. Laternser, the Tribunal did not allow the statement to be put in and you are now cross-examining upon a subject which is totally distinct from the subjects upon which the witness has given evidence.
DR. LATERNSER: These statements are in the written statement of the witness.
THE PRESIDENT: Well, you must have heard that we did not allow the written statement to be put in evidence. We asked that the witness should be examined orally and he was examined orally and the written statement is not yet in evidence.
DR. LATERNSER: I have one more question, Witness. Did you ever write down your objections to this bacteriological warfare?
SCHREIBER: Yes, in the memorandum which I mentioned before.
DR. LATERNSER: When did you submit that memorandum?
SCHREIBER: In 1942; may I now ...
DR. LATERNSER: That is enough. The conference took place in July 1943. Afterwards did you put your divergent views on this point into writing?
SCHREIBER: No, I did not put anything into writing.
DR. LATERNSER: After you reported to him, did your superior put his objections in writing?
SCHREIBER: Not that I know of. Generaloberstabsarzt Handloser was at headquarters and I in Berlin. He came once a week or once every fortnight. We reported to him and then he went back to headquarters.
DR. LATERNSER: I have no further questions.
THE PRESIDENT: The Tribunal will adjourn.
[A recess was taken.]
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THE PRESIDENT: Before we continue I will deal with three applications. First of all, the application of Dr. Kauffmann of the 20th of August, 1946. It appears originally to have been dated the 15th of August. That application will be granted, and an affidavit by the witness Panzinger may be put in evidence, provided it is put in evidence before the end of the Trial.
With reference to the application by Dr. Pelckmann, dated originally the 22d of August, 1946, the application is denied.
The two applications by Dr. Dix dated the 20th and the 21st of August; both applications are denied.
Now, is there any further cross-examination on behalf of the Defense?
Does the Soviet Prosecution desire to re-examine?
COL. POKROVSKY: The questioning by the Soviet Prosecution is finished, Mr. President. We have no more questions.
THE PRESEDENT: The witness may retire.
Now, Dr. Pelckmann.
HERR PELCKMANN: First, I should like to refer to two points. In my letter of 23 August I announced that my final speech cannot be translated. Secondly, I should like to remind the Tribunal that the ...
THE PRESIDENT: Dr. Pelckmann, 60 pages of it have already been translated, I understand.
HERR PELCKMANN: Yes. The French translation, however, has not been made yet. Furthermore, I beg to point out to the Tribunal that the answers to the interrogatory which I sent to the witness Rauschning have apparently not been received yet.
Your Lordship, Gentlemen of the Tribunal: when on 27 February 1933 the German Reichstag was destroyed by fire,, the Nazis willed that out of those flames the Third Reich, to last a thousand years, should be born. When, a little more than twelve years later, the whole of Germany was engulfed in a sea of flames, that Reich went down in rubble -and ruins.
Both of those historic events were followed by trials. Their meaning was and is to determine who was responsible for those two crimes of human history.
The German Supreme Court did not solve that task. It is true that it acquitted with remarkable courage, as Mr. Jackson has stated, the indicted Communists, but it failed to determine and certainly to sentence those who were really guilty, who hired the unfortunate tool, Van der Lubbe, and who performed the deed with him. Thus, under the impact of public opinion, the truth has been muzzled and has been concealed by the Nazi Government. Formal justice has
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been satisfied. The culprit had been sentenced, but Truth, that divine power and profoundest human insight, remained hidden. It alone would have been able to open the eyes of the German people at that time and have had the power to hold it back from the abyss.
Now this High Tribunal, this Court of the World, faces the task of passing judgment. Whose guilt was that world conflagration? Who was responsible for the destruction of foreign lands, and finally for the infernal downfall of our German Fatherland? And again there exists the danger that this Court too might pass merely a formal verdict naming guilty men, while the deepest and final truth would remain unfound by the influence of a psychosis which, in accordance with the laws of psychology and psychoanalysis, is the natural consequence of the many years of struggle between the Hitler regime and the free peoples of the world. Will this Tribunal be in a position to save, by its verdict, Germany and all the world from an abyss deeper and more horrible than anything experienced before?
This Trial is a criminal trial. It is truly the greatest as far as the number of defendants and people concerned goes, and above all, the most important which ever was recorded by legal history-but still, in all its characteristics, it remains a typical criminal trial. Therefore, it follows the Anglo-Saxon legal principle governing the Charter, which was reaffirmed during these public proceedings, namely, that the Prosecution must collect and present only those factors which could incriminate the accused, never those that could excuse them. The Prosecution is being effectively supported by the mass psychosis to which all the witnesses of the greatest causes c6Mbres of World history are subject, for reasons which international scientists, particularly Le Bon, have given in detail. Openly and gladly do I proclaim that in the course of the defense which I have conducted, I did not use the principle of painting everything in black and white. I, too, was endangered by the possible mass suggestion exerted by those hundreds of thousands of voices which reached me from the internment camps, and I was tempted to defend at any price-thereby losing the sound basis of facts as they actually were. This effect in itself shows the dangerous reaction brought about by such a mass accusation and its political consequences.
I am most thoroughly convinced that by such black and white painting the High Tribunal would have been led astray in its search for the real truth. I did not conceive this to be my task, although the principles of the Charter would have given me the right to do so. In such a trial, concerned with the very basis of humanity, with the fate of the German people and the future of the world, it cannot be left to the cleverness of methods in voicing the conflicting conceptions of Prosecution and Defense to bring the Tribunal to consider that the truth must lie halfway between. It is not the task
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of the Defense to gain tactical successes by emphasizing the one and suppressing the other argument. Incorruptibly we have to find clarity-Clart6, as demanded by that fanatic seeker of truth, Henry Barbusse. That is the rule in accordance with which I selected my witnesses. I particularly remind you of Reinecke and Morgen, whose evidence I shall evaluate later.
It was my endeavor to assist the Tribunal in ascertaining the historic truth.
In doing so I was inspired by the simple and therefore all the more beautiful German medieval proverb, "Geschehenes hat kein Umkehr," that is to say, "What is done cannot be undone." Those words imply not only all the tragedy of the fact that there is no undoing what is done; those words have a deeper meaning: Past events do not permit or tolerate a retrospective study; this means that no deed can be correctly grasped and understood if speculated upon ex post. No, one must look at it as it appeared to the contemporaries at the time of its performance, from the beginning to the end.
One must examine all the circumstances surrounding the deed and the person who performed it, as well as his psychological situation at the time of its performance. The judges must familiarize themselves most thoroughly with the personality of the perpetrator to measure the extent of his guilt.
This is equally true of this Trial. One nation judges another nation; the family of peoples judges one people which has brought deep suffering to the world, a State which has committed crimes against humanity. In the organizations there have been indicted huge formations; large sectors of the German people have been put in the dock and, therefore, it seems necessary that the judges of these millions of people should acquaint themselves most thoroughly with the lives, the knowledge, the hopes, and the beliefs of these masses as they were at the moment when the ideas and ai2complishments of National Socialism were becoming effective, and its criminal excesses were beginning. Hence, the judges of the four largest and, for the outcome of this World War, most important nations of all the world, will have to make the endeavor to decide-just as in a case before any normal jury-"How did the deed come about?" In what situation did the defendant find himself at that time? What speculations and sentiments drove him to commit the act? Did he have any intention of doing anything illegal? Is it possible that he himself was deceived? Was he at all able to recognize the illegal nature of his doing, and if he learned of it only gradually, was he in a position to adjust his action in accordance with that insight? It is extremely difficult for the judge even in normal criminal proceedings to free himself from the ex post reflection and to evaluate correctly the circumstances of the deed, the milieu of the deed, and
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the personality of the one who performed it. How exorbitant are the demands for justice upon the judge when he has to pass sentence on a man who has transgressed against a member of his, the judge's family! Every one of the four nations sitting in this Court has suffered tremendous damage by the crimes of the Nazi regime, for which millions of members of the organizations have to account now. But in accordance with the statements made by Justice Jackson in his opening speech, I venture to hope that you, High Tribunal, will succeed in this titanic undertaking in being free of feelings of revenge, and will seek justice and nothing but justice. Will you, as non-Germans, who have not yourselves lived through the unique historic phenomenon of a mass psychosis and a tyranny of continental proportions-will you indeed be able to grasp and to picture to yourselves how such things could happen? Can you conceive that crimes were not committed by the bulk of, the members, that they were not consciously organized by them-that they were not even known to them?
The Charter rightly states, and the Tribunal has acted accordingly, that it is not the task of this Court to ascertain what inner causes-whether justified or not-led to this war. The decisive question is only: was it an aggressive war? Nevertheless, already in the cases of the individual defendants evidence was allowed to be admitted as to how the historical development psychologically conducted them from the first World War to this new murder of nations. How infinitely more is one justified, when endeavoring to establish the guilt and the crime of the organizations in their very incipiency, in examining the historical background, the political situation as a whole, in and around Germany. The masses have no clear thoughts or sentiments. They are moved by vague emotions, emanations of a phenomenon which the scientists have called "mass soul." They are moulded by the pictures and promises offered by their leaders.
One of the prosecutors in his final speech against the individual defendants stressed how enormous was their guilt and how disastrous the consequences of their acts because of the clever use made of the masses, the seducing of the soul of the people by the glittering magic of slogans and the promise of Utopian development. Do not these very words give the best. proof that the bulk of the members desired only the good and the noncriminal?
Already in its very beginnings, even before 1933, the principles of the SS were identical with the program of the NSDA-P. Not only before this Tribunal has the question been discussed whether that program and the means and methods of its realization were criminal. This question stirred the public, the authorities of the German Republic, and the best heads and hearts of our people for many years before 1933. Were the motives criminal if the masses followed
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a politician who did not promise them easy predatory incursions at home and abroad, but rather work and bread; when he rallied them to national unity as contrasted to the p6le-ra&e of a parliamentary system turned to ridicule by 41 parties, and a democracy which brought about its own death by weakness and half measures?
It is the German peoples deep tragedy that it could not turn its efforts, having come too late when the material riches of the world were distributed, towards strengthening and improving its recognized position in the world of intellect and applied sciences. Germans are romantics-particularly in the field of politics. This romanticism circles around vague concepts of fate and doom and the dream of power once held in the "Holy Roman Empire of the German Nation" of a thousand years ago. This belief in destiny has been fostered by an absolutely incorrect presentation of German history for more than a hundred years, so that it needed only a skilful sorcerer to send once more millions of German youth to death and destruction by suppressing the real facts.
But the great seducer, Hitler, had not yet reached that point. The protestations of peaceful intentions towards the opponents among his own people were as yet more important than those towards foreign countries, which did not yet enter into the picture. As a result of shortcomings of all the large political parties and their formations and because of the weakness of the republican government, the issues of domestic politics were more and more being decided by street brawls. Nevertheless, the secret parliamentary elections were carried through without terror or deceit. Through these elections the citizen could observe a steady increase of strength of the extreme parties of the Right and of the Left. He could not consider it a crime to join the extreme party of the Right, the NSDAP, or its SS, which in contrast to the SX which ruled the streets, was mainly concerned with the protection of the speakers during the guerilla warfare among the political adversaries of those days.
Every German who lived through those days knows with what tension the question was discussed whether the NSDA-P and its formations were planning undertakings which signified high treason or aimed at overthrowing the Government by force. In 1923, in the early days of the Party, Hitler had attempted a coup d'etat which had failed. Now, for many years he had been advocating "legality." When in September 1930, three young officers of the 100,000-man Army were indicted before the German Supreme Court for high treason for having attempted to found National Socialist cells in the Army, Hitler as a witness testified under oath his revolution was -one of the spirit and that his aim was to come to power by legal
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means. This appeared in all the papers in huge headlines and impressed itself on the enemies and the followers of Hitler alike. Professor Dr. Kempner, then Oberregierungsrat in the Prussian Ministry of the Interior, now a member of the American Prosecution, was one of the few who considered that oath perjury. He submitted to his Ministry a detailed report which ended with the conclusion that the NSDAP was guilty of high treason. But even that seeker after truth had to admit in his description of the situation as it existed then (Volume XIII, Number 2, June 1945, Research Studies of the State College of Washington, Page 120) that even ministerial officials of the German Republic did not consider Hitler a liar at that time, 1930. That was how Hitler's clever propaganda influenced such critical and hostile circles. Should one be surprised that the masses of the SS put their trust in him? Incidentally, at that time they numbered only a few thousand. Well, matters went even farther. When Dr. Kempner denounced the Nazi Party in 1930, after a thorough investigation before the Supreme Court, the Chief Public Prosecutor ruled in August 1932 that there existed no reason to prosecute or dissolve it. (Compare Kempner's study, Page 133.) What other effect could such statements, voiced by the highest authorities of the Republic, have had on the masses? The effects were reflected in ever-increasing election returns for the Nazis.
But the most striking feature is-and that is of decisive importance for the inner attitude of those thousands who joined the SS immediately after 30 January 1933-that Hitler actually did not break his oath. Although it is quite true that Dr. Kempner's prophecies in regard to the further development were correct in general-this was not recognized until much later-he was mistaken in his early predictions. The Nazi Party in fact remained a legal one; it did not seize power by a coup d'etat, but Hitler was asked by Hindenburg to form a cabinet in accordance with parliamentary rules.
What is it that those ministerial officials who had refused to believe the -pessimist, Dr. Kempner, were able to say? Is it not likely that they could triumph at the fact that they had been right? Was their conscience not set at rest? After all, that man Hitler was not as bad as people had said. Now that he had entered the Government he would become a moderate-like every opposition after gaining power. And was it not true, too, that the bulk of Hitler's followers were proud that they had succeeded in coming to power by peaceful means after an election fight whose propaganda machine was almost of American proportions?
In viewing that period of time one question inevitably arises: were the mass of Hitler's followers, the mass of SS men, at that time able to recognize that that point of the Party Program which-
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probably was the most clear-cut, namely, anti-Semitism, contained a criminal element?
Anti-Semitism is not a new phenomenon; neither is it, if one studies its spiritual basis, something typically German. In my opinion it is based on the inferiority complex of the average man, on his mistrust of the Jews' superiority in certain intellectual fields. Neither is the refutation of anti-Semitism by all civilized nations and individuals anything new. It culminates in the Pope's statement, "He who discriminates between Jews and other human beings does not believe in God and is in conflict with the divine commands." But the enigma which we cannot pass by when discussing the question of criminality is that there should exist at all a Jewish -problem which is not based on religious differences, but on race. The enigma is that there still exists a race problem which leads continuously to conflicts in our modern world which has grown so small. Is it not puzzling that the Polish Cardinal Mond, who went through all the horrors of the Nazi regime, only a few weeks ago tried to justify to some extent Polish anti-Semitism by referring to the leading role played by Jews in the Polish Government? Is it not puzzling that even today, after the horrible experiences of the Hitler regime, the Arabs take action against the Jews in their traditional homeland, Palestine, and particularly against their influx, and that mutual acts of violence are committed? The situation is similar in Europe. Race problems, not only anti-Semitism, still exist in all other corners of the globe.
All of them cry out for a just solution, and that can be found only in the granting of equal rights to all races. Some progressive nations have made anti-Semitism a criminal offense. But was it criminal when society, the State, under the influence of those false ideas, sought the solution by prohibiting the races from mixing and influencing public life? Here again much can be explained by what was happening in those days. The bad example of a few Jewish immigrants from Eastern European countries, such as the notorious swindlers Barmat and Kutisker, was in sharp contrast to that of the great German Jew and unforgettable statesman, Walter Rathenau, who long ago had appealed to his brethren for a reawakening of their moral consciousness. This situation offered the basis for a collective attitude, for a mass psychosis against the Jews, aided by external economic distress, as always happens in the course of great political and social upheavals, just as in this present Trial it is about to happen again by creating collective injustice against certain categories of people. The demand to put this anti-,Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and personal revenge. In a way
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it was merely another version and anachronistic aggravation of the American legal principle of ...
THE PRESIDENT: Dr. Pelckmann, I do not want to interrupt you, but you will not lose sight of the fact that you are only going to be allowed half a day for the speech, and I observe that it is said to occupy 100 pages; and I 6nly interrupt you at the present stage to point out to you that the matters which you are dealing with now are matters of a general nature, to which our attention has been drawn throughout the course of this Trial, and it may be in your interest to shorten this part of your speech rather than other parts of it. That's the only reason why I interrupt you now.
HERR PELCKMANN: Yes, Your Lordship, I have already considered abbreviating the speech.
The demand to put this anti-Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and revenge. That in all this Hitler was inwardly moved by hatred-this is revealed by his most trusted mouthpiece, Rauschning, in his book Hitler Speaks, Page 91-was not known to the masses. That hatred which sprang from the -feeling of inferiority of him who recognized the superiority of the penetrating intellect over dark impulses remained concealed; for anti-Semitism was preached to the SS men merely as the other side of race eugenics on which emphasis , was laid. By skilful use of those race emotions which spring from a country's history, so difficult for the non-European to understand, and which were bound up with such conceptions as "Ordensprinzip," "Mannerbunde," and "Sippengemeinschaft"-I refer to Documents Numbers SS-1, 2, and 3 with all their twisted romanticism dressed up in modern clothes-Hitler endeavored to create in the SS a breed of men who by their bearing and self-discipline would represent an Mite for purposes of raising his own people to a high level. This tendency, though very alien to modern Europeans or cosmopolitans, can hardly be called criminal-I am referring to the pertinent questions asked by the High Tribunal-and it did exclude automatically an anti-Semitic tendency of the nature of the Sturmer, or even of the brand of the less vulgar SA-Mann. It is also significant that the Prosecution has not charged the SS with one single case of brutality towards Jews before 1933. The Leithefte, the monthly publication of the SS, and the evidence given before the Commission by the witness Schwalm concerning the training of the SS, testify to the reserved attitude of the SS towards the Jewish question. Later it was reaffirmed by the nonparticipation of the SS in the anti-Jewish pogroms of 1938, which I shall describe in another connection. I shall also demonstrate how the atrocities committed during the war against Jews, and the mass killings, were in conflict with the original tendency of the SS and how they were made possible by direct
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secret orders from Hitler and Himmler through criminal individuals and groups, and how they were kept secret from the masses of SS members.
Of the many points of the Party Program, which the SS accepted as a matter of course, I would like to pick out only the rejection of the Versailles Treaty and the demand for living space, because those two things might be important factors for the alleged preparation of an aggressive war. Nowhere has the Prosecution said how at that stage the bulk of SS members could assume that those demands were criminal, that is, that they should be accomplished by an aggressive war.
I have shown how Hitler by his legal assumption of power not only strengthened the confidence of his SS men, but how he gained the trust of new men who never would have started with him on the road to crime. May I respectfully request the High Tribunal to read the testimony of State Secretary Grauert before the Commission and learn how a man with the best intentions entered the Hitler administration and the SS, and did not leave it until 1936 when he, an experienced legal administrator, realized that the suspension of the historic principle of the separation of powers ...
THE PRESIDENT: Will you spell the name?
HERR PELCKMANN: G-r-a-u-e-r-t, Grauert.
THE PRESIDENT: All right.
HERR PELCKMANN: ... which he, an expert, realized only in 1936-remained hidden from the masses. In this connection I ask you to read the summary of approximately 136,000 affidavits which show why the membership of the General SS increased within a few months from 50,000 on 30 January 1933 to approximately 300,000.
Hitler's great gamble for power, and with it the tremendous betrayal of the German people, only begins-however paradoxical that may sound-after the so-called seizure of power. After one month of triumph over the Chancellery and this parliamentary revolution, in the course of which, no doubt, the Right did commit excesses, which cannot, however, be laid to the charge of the masses as premeditated planning, the pretext was created for the final elimination of all opponents, the burning of the German Reichstag. The Prosecution does not assert that the German people, the members of the organizations, the SS men, knew or even suspected that this fire had been planned by the Nazis and carried through by the Brown Shirts by using the tool Van der Lubbe. Such an assertion would, of course, be absurd.
In order to understand the mentality of the SS men who after January 1933 filled the ranks of the BS and formed four-fifths of their strength, one must recall Hitler's Reichstag speech of 17 March
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1933. When the new Reichstag was elected, a large part of the opposition was eliminated after -the fire by the banning of the Communist Party and the arrest of many of their members, and this with the approbation of the enraged population, because they had committed high treason by their alleged participation in the crime of arson.
When Hitler, while observing all parliamentary forms, asked for an Enabling Law, the Social Democrat members of the Reichstag asserted that this law would undermine legal security.
In view of the true background as portrayed above, it could only be the act of a daring trickster -when Hitler answered in reply: "I really must say that had we not had an understanding of what is legal, then we would not be sitting here and you would not be sitting here-Gentlemen, it would not have been necessary for us to embark on this election or summon the Reichstag." (Reichstag Records, 1933, Pages 65 and 66.)
But- who, Gentlemen of the Tribunal, among the mass of the people, among the old and new members of the General SS, knew at the time how audaciously Hitler was lying? These men were misled by the cloak of legality under which Hitler concealed his true self. And this speech is not all. Just consider how the Supreme Court, made up of old experienced former Republican judges, with scrupulous precision during many months of the trial until 1934, sought to establish who was guilty of the Reichstag fire. They acquitted the Communists Torgler, Dimitroff, and others, but sentenced the Communist Van der Lubbe and established publicly the complicity of Communist circles who remained unknown. Must not the mass of SS members, as well as the rank and file of the German people, have thought that Hitler had really saved the people and the State from a violent revolution for which the Communists were blamed at that time? Who, at that time, knew-as I knew, being a defense counsel-that the charge which had been prepared for months, even years, against Thalmann had to be withdrawn because of insufficient evidence? These few who then, or soon after, learned or guessed the truth and who, in spite of the ever-increasing danger of being arrested, in discussions with friends and acquaintances expressed doubts regarding the authenticity of the official and popular thesis, these few knew that, as against the semblance of legality supported by unceasing propaganda, they would not be believed by the masses.
The masses appreciated that in view of this threat to the State the so-called "enemies of the State" were to be rendered harmless in time. Seen from this angle, even the concentration camps appeared justified. But I shall come back to that later. All these were harsh and in many cases even criminal measures which partly also, incriminate SS members, but not the entire mass of the SS.
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However, we must not lose sight of one thing. There was no use of force, such as occurs in a revolution, until after Hitler had assumed power. The cunning thing about it was that these excesses, such as arrests and bodily injuries; which were committed by members of Nazi formations-in very few cases by members of the SS-were committed in the belief, created through deceiving the masses, that they were necessary in order to safeguard and def6nd the power, which was legally acquired, against attacks or threats.
Coming after the acquisition of power, this revolutionary attitude, created by the deception of the masses regarding the true events, a unique phenomenon in history, is typical of all revolutionary excesses: under cover of factual or alleged idealistic motives, such as love of the Fatherland, love of humanity, crimes were committed. Just consider, Gentlemen of the Tribunal-since we have not yet sufficient perspective of the many revolutions of the modern age-just consider the French Revolution: what crimes were committed under the slogan of "Equality, Liberty, and Fraternity." In the light of the experience of modem psychology it seems to me to be quite out of the question that mass movements can be unleashed or incited by inferior moral aims. The masses cannot consciously be led to crime. Gustave Le Bon also inclines to this opinion. In the shadow of the high ideals of the masses it frequently happens that crimes are committed; but then they are only instigated or perpetrated by the few who deceive the masses about the true reasons and events. This thought seems to me to be a decisive factor when dealing later with the question of concentration camps and the atrocities committed there, and establishing whether the mass of the SS were responsible or not for these.
The concept of loyalty, too, belongs to those ideals which inspire the masses. One must be acquainted with the German mentality in order to be able to gauge what immense possibilities this concept afforded the psychopathological seducer of a people, Adolf Hitler, ignominiously to deceive hundreds of thousands. We know how much the word "loyalty" means to a German, educated as he is, and influenced by romantic and retrospective contemplation of history. Even Tacitus praised these qualities in the ancestors of the Germans. Hitler exploited this weakness of the Germans, and in that way was able to cause hundreds of thousands, even millions, to link themselves with him and his destiny. We know that what is permissible and understandable in private life is fundamentally wrong for the State. By that I mean unconditional devotion to a human being. In his work, The Question of Guilt, the Heidelberg philosopher Karl Jaspers says in regard to this question:
"The loyalty of followers in narrow circles and in primitive conditions is a feeling which has nothing to do with politics. In a free State all people are subject to control and change."
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The German Socialist Bebel once expressed it in the following manner:
"Mistrust is a virtue of Democracy."
These views are taken for granted by the free peoples of the world. But for a people who wanted to create a modern state according to retrospective historical dreams they are a new revelation. Quite justifiably Jaspers sees a twofold guilt.
"First, because of the very fact of submitting oneself politicaly and without reservation to a leader, and secondly, the esteem of the leader to whom one subjects oneself. Even the atmosphere created by such subjection is a collective guilt."
Actually Jaspers means by that a moral and political, but not a criminal guilt.
In certain individual cases, however, this loyalty can render the individual perpetrator criminally guilty. That becomes clear when we listen to the secret speech of Himmler at Posen, when he addressed SS Obergruppenfuehrer of the home country and of the rear army area. That was late in the war-October 1943 (1919-PS, Document SS-98). After various statements concerning obedience and the possibility of refusing to execute orders, he says quite clearly:
"But he who proves unfaithful, be it only in his thoughts, will be thrown out of the SS and I, Himmler, would see to it that he disappears from among the living."
This, Gentlemen of the Tribunal, is an important fact when considering the question of guilt in the individual case and the question as to the extent to which coercion and obedience to order during the war eliminate the guilt and thereby the criminality of certain individual persons or subordinated groups. This is supplementary to the question of refusal of military service and its consequences according to military law.
The supernatural, and I can even say devilish, power of this bond of loyalty was exemplified by Himmler himself in his relations to Hitler during the last days of the war.
The Swede, Count Bernadotte, describes, from his own experience, in his book, The Curtain Falls, how Himmler could not make the decision to save the German people from destruction by calling a halt to hostilities, in spite of his very clear realization of the consequences, because-and Bernadotte admits this-even in this hopeless situation he dared not violate his loyalty to Hitler. We also know how in all times and with all peoples it has always been this loyalty that made soldiers fight to the last drop of blood in the gravest battles, just as the Waffen-SS did, and in so doing won the respect of their opponents in this war. And from these two examples
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we see how this hypnotic word, "loyalty," embraces alike criminal madness and the highest virtue of the soldier.
So much for the question of how far the SS man had knowledge of the points of the Party Program-if indeed he knew them sufficiently, which from the affidavits of 136,000 SS men is doubtful and how he viewed the ideals of his organization. But did not the Nazi leaders plot war from the very beginning? Mr. Justice Jackson asserts this, and I answer: According to the knowledge that we have today, I admit it, yes. But how could the SS man know it?
The Prosecution does not say why the conversion of an army of professional soldiers into a people's army should signify the planning of an aggressive war. Switzerland, the best example of a country with a people's army, has not been engaged in a war for a long time. Was the sponsoring of physical training and sports activities of youth a camouflaged plan for military training? In my opinion Mr. Justice Jackson failed to give us the proof for that assertion. The training of the General SS was nonmilitary. Field sports as practiced by the SA were completely lacking, and a typical example-the cavalry units of the SS which were numerically smaller than those of the SA, did not even give their members the right to hold a horsemanship certificate, as was the case with the SA. (Compare the testimony of Weikowsky-Biedau before the Commission.)
We know today that Hitler wanted war; it is particularly clear from the intimate conversations with Rauschning and when we consider the events as a whole. But, Gentlemen of the Tribunal, please note: it is ex post.
It would have been a fruitless undertaking, especially in view of the position in which the German people found themselves after the first World War, to present a new war as less shocking or bad, or even as a noble and necessary undertaking, to use Justice Jackson's own expression. Hitler, whom one can accuse of anything else, but certainly not of not knowing the facts of mass psychology, stressed again and again before and after 1933 that he wanted peace, peace, and nothing but peace. He pointed out that he had experienced the horrors of war on his own body, that war always meant a selection detrimental to the most valuable elements in any nation. And only by these means was he able to win over ever-increasing numbers of the German people to himself and to his ideas. With propaganda for war, however carefully conducted, he would never have achieved it.
Rearmament was represented to the German people as being merely a confirmation of the will for peace, as a defensive measure against the nondisarmament of other nations, and to, counter any
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attempts to interfere with the peaceful rebuilding of Germany. The building of the West Wall confirms it, and so do many utterances of foreign military experts. The high-ranking major defendants and many witnesses, including such a reliable witness as Gisevius, have confirmed that not even in the leading circles was any planning of aggressive war discussed. This applies to the SS to an even greater degree. The entire training with the organizations always centered around the idea that the Party Program would be carried through in a legal and peaceful manner, that peace was absolutely necessary and should be preserved at all costs. Not only was there no psychological preparation for war in all the SS organizations, but on the contrary, the peaceful aims of the Reich were continually stressed.
In this connection, I would like to ask the High Tribunal to read Documents SS-70, 71, 73, 75, 76, 77, 78, 79, 80, 81, 82 from the years 1933 to 1935, particularly an article from the Schwarzes Korps entitled "The SS Does Not Like War," written in 1937, and other documents which I am not quoting. That psychological preparations for war were lacking among the German people, and also among the SS, was never more clearly demonstrated to observers at home and abroad than by the reaction of the masses to the Munich Pact in 1938. The jubilation of the masses, including the SS who formed the cordons, was not meant for the Adolf Hitler who had enforced the cession of the Sudetenland, but rather the Hitler, and to an even greater degree those foreign statesmen, who had saved the peace.
For the German people and the soldiers did not want war and this must be stated in this historical place for the sake of historical truth-when war came in 1939 they accepted this fate not with loud rejoicing as in 1914, but in solemn silence, most of them in the erroneous belief that their leaders did not desire this war, that it was not a war of aggression.
However, it would be unworthy of me and I should lose face if I attempted to deny that the young Germans, particularly in the SS, saw their ideals in the manly virtues, those same virtues of self-assertion and refusal to take it lying down as are cherished by other nations too. It may be that the SS men overemphasized those virtues in a manner which was not always good or wise. But none of the old soldiers, students, and farmers who had joined the SS imagined that war was for a purpose even remotely akin to what Hitler had in mind. If Hitler had ever dared to speak to those men of attacks on other peoples with whom he had just concluded solemn pacts of friendship, or of Einsatzkommandos in -foreign lands, he. would never have found any followers, apart from a handful of desperadoes, The war which the tall, blond, and
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perhaps intellectually not always very alert, typical SS man imagined-and I must admit that he did not shrink from it-was the kind of war which his ancestors before him had waged during many centuries and which, in the last resort, always amounted to an appeal to destiny, the great gamble of the gods. It is true that we have to wean the Germans, and particularly the younger Germans, from this atavistic longing-and in this respect I am now more optimistic for my fellow countrymen than for many other peoples. But war, which at present it does not appear possible to extirpate-the Kellogg Pact and modern international law do not ban war as a means of defense and self-preservation-is essentially different from that high treason, that betrayal of world peace, that attack and robbery for the purpose of extermination, which was invented by Hitler.
In addition to its general aims and tendencies with which the Prosecution charges the SS since the very beginning of its activities, and on the basis of Which it seeks to declare it to be a criminal organization, there is one outstanding event which, it is alleged, -discloses its criminal character in a striking manner-the killings which took place on 30 June 1934.
Owing to lack of time, Your Lordship, I shall have to skip three pages dealing with the evidence in connection with these events.
In regard to the happenings which took place in Germany on June 30, 1934, and the following days, the taking of evidence has rounded out the following picture (witnesses Hinderfeld, Grauert, Johnk, Reinecke, Eberstein; Affidavit SS-70, Kampp-Franz, Affidavit SS-3, Schmalfeld, and Affidavits SS-119 to 122; summary of the mass declarations): In the morning of 30 June, the General SS was alerted practically everywhere in the Reich. Wherever there were Police or army barracks they were assembled there or in other buildings such as schools, et cetera, on 30 June, and sometimes even I July. In most cases, they remained entirely inactive; only in some places the Police used them to assist in the confiscation of arms in SA offices. In Berlin this task was carried through by the Police Division for Special Purposes Wecke by itself, while the majority of the General SS, which was concentrated in the barracks of the Leibstandarte at Lichterfelde, was used during the course of 3o June to form cordons at the Tempelhof Airfield. For that purpose, the General SS, which as a rule was unarmed, was furnished weapons by the Police or Army. After Hitler's arrival by plane from Munich the units of the General SS marched back to the barracks and immediately had to surrender their arms (Affidavit SS-3, Schmalfeld).
Nowhere were arrests or executions carried out by units of the General SS (witness Eberstein). In Munich, one of the hot spots of the so-called Rohm-Putsch, Hitler himself arrested the participating SA leaders. In the same manner he arrested R61un and his inner circle at Wiessee on the Tegernsee. Rohm and the other SA leaders subsequently were transferred to the Stadelheim, Prison and were executed there the same day by members of the Leibstandarte (witness J6hnk).
The arrests in Berlin, the other center of the revolt, were carried out in accordance with orders given by G6ring through the Gestapo. To sentence the arrestees there was formed a court martial in which the Reichswehr was also represented through the Wehrkreisbefehlshaber or the Stadtkommandant. Before the execution was performed through a Kommando of the Leibstandarte, the verdict of the court martial was rendered. The executions were performed on the grounds of the barracks of the Leibstandarte at Lichterfelde. From the apartments on the Finckensteinallee one could view the execution ground. Not all
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members of the SA who came before the court martial were executed. However, 2 number of SS members who had maltreated arrestees were shot (witness.161ink, Affidavit SS-3 by Schmalfeld). The members of the General SS were only subsequently acquainted with the reasons for their being called out. The same applied to the members of the Leibstandarte. During the days before 30 -June, however, there were various rumors circulating which largely dealt with the attitude of the SA. But the mass of the SS was only informed through the announcements of the press and radio on 30 June. They thereby received the same official picture as the German people and the whole world (witness Hinderfeld).
Doubt as to the accuracy of this description could not arise in the General SS then or in the following years. Even highly placed SS leaders, as the testimony under oath of SS Obergruppenfuehrer Von Eberstein and of SS Brigadefuehrer Grauert proved, were informed by Himmler or Goering himself to the effect that R6hm had made an attempt of a putsch with the SA. The just mentioned manner of the commitment of the General SS on 30 June further excludes the possibility that the SS participated in the violations which were carried through outside the judicial framework.
As to the forming of opinion of the mass of members of the SS, apart from their knowledge regarding the complete insignificance of their own commitment, the telegram of thanks of Reich President Von Hindenburg (Document SS-74), and Hitler's statement before the Reichstag on 13 July 1934, were of decisive importance. There the Chancellor of the German Reich gave a justification for the declaration of the state of emergency and determined numerically the circle of conspirators executed. In particular, it is essential to point out Hitler's statement where he says that the excesses committed, going beyond the necessary measures for the squashing of the revolt, would be sentenced by regular courts. No misgivings regarding the legality of the executions could arise with the members of the SS and the men of the Leibstandarte, nor any doubts about the seriousness of the announcement that illegal violations were to be punished by the courts. The details which Hitler issued regarding this alleged high and state treason, especially the description of the conspirators' connection with foreign countries and the attempts against his own life, were absolutely astonishing (Document SS-106). They were not senseless at all, since it Is a historical fact, even valid in modem times, that new governments before their consolidation are often vitally threatened, especially by opponents and counterrevolutionaries who might even come from the rank of their old friends; and therefore have to safeguard themselves by brutal action.
The fact that as little as possible was talked among the SS regarding the events of 30 June, as Himmler stated in Posen, cannot be considered as a sign of bad conscience. It was a question of tact that one did not unnecessarily speak of happenings in one's own house, that is, quarrels between Party formations-which might have a defamatory effect on one part-so as not to break open an old wound.
Finally, as far as the gaining of independence of the SS and their separation from the SA is concerned, one can only see therein an appreciation of the loyal attitude of the SS and their uncompromising rejection of Rohm's plans, and, at the same time, an intended weakening of the position of power to be given to the Chief of Staff of the SA.
The events of 30 June, according to my presentation of the facts, are by no means as significant as the Prosecution would seek to assert. The members of the SS did not see in them the beginnings of a criminal development.
I have reached a point in my review of the ideas held by the SS and its activities where we should pause to consider what the other factors were which led to the holding of these opinions. We must look the true facts in the face. The SS man, unlike an opponent or an intellectual of our kind, so ridiculed at that time, did not examine with a critical eye everything that was said about
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his Fi1hrer, about his country. He felt the need to believe in something-I will give proof of this-his belief was not shaken by what was being said in the world around him. Unfortunately, the world around him did nothing to shake his belief.
Your Lordship, I have just come to the end of a chapter. Would it be in order to adjourn now?
[A recess was taken until 1400 hours.]
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HERR PELCKMANN: I have said, Your Honor, that the surrounding world, unfortunately, did nothing to shake this belief in Hitler.
What I shall now discuss shall not serve to declare others guilty, or to detract from personal guilt if it exists. No; these statements are intended to clarify how we all, the whole world-in part likewise deceived about the true danger, in part hoping thus to avert this danger-did something which, in its effects on the whole German people, on Hitler's followers, and on his SS men, had to be interpreted as confirmation of the correctness and legality of his intentions and deeds.
I can understand that this evidence was declared irrelevant for the defense of the individual defendants, for they are being4charged precisely with having consciously deceived the world. In that case one cannot take the conduct of the world as an index for its credulity. In the case of the organizations this problem is different.
The Prosecution will not seriously charge the bulk of their members, even the bulk of their leaders, with having known of the criminal aims and intentions of Hitler; still less will they be able to prove it. I have just shown how the events up to about 1934-35 had to appear to the SS man. Thus the objection of the Prosecution that they could not have become confirmed in their error, which is worthy of consideration in the case of the principal defendants, does not apply to the organization which I am defending.
What was the situation at that time? I shall quote essentially from Jasper's The Question of Guilt, Pages 82-83.
In the early summer of 19.33 the Vatican concluded a Concordat with Hitler. Papen conducted the negotiations. It was the first great confirmation of the Hitler regime; a mighty gain in prestige for Hitler.
All states recognized the Hitler regime. Voices of admiration were heard. In 1935 Britain concluded the Naval Agreement with Hitler through Ribbentrop. In 1936 the Olympic Games were held in Berlin. The whole world flocked there. In 1936 the Rhineland was occupied by Hitler. France tolerated it. In the spring of 1938 Hitler moved into Austria amidst the acclamation-undeniable even today-of the overwhelming majority of the population In 1938 an open letter from Churchill to Hitler was published in The Times, in which there occurred sentences like this one:
"Should England be overcome by a national misfortune comparable to the misfortune of Germany in 1918, 1 would pray to God to send us a man of your strength of will and spirit."
How is it possible that in all these years foreign diplomats and leading men-accompanied respectfully by SS men with whom they
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had confidential conversations-at Party rallies, in the Reich Chancellery, and in the Ministries, shook hands with men who were guilty of murder and arson? What effect did that necessarily have on the SS men, who considered these hands pure and clean?
The general situation in the years 1933 to.1939 is characterized by,R6pke in his book, The German Question, which was published in Switzerland. Owing to pressure of time I shall refrain from -giving the quotation and would request the High Tribunal to give it due consideration.
"The present world catastrophe is the gigantic price which the world must pay for having been deaf to all alarm signals which, from 1930 to 1939, in increasingly shrill tones, proclaimed the hell which the satanic forces of National Socialism were to unleash, at first against Germany itself, and then against the rest of the world. The horrors of this war correspond exactly to the others which the world let pass in Germany while it even maintained normal relations with the National socialists and organized international celebrations and congresses with them."
At that time the world still considered what happened in another state to be an affair which did not concern them. Only as a result of the experience with the Hitler regime and the second world conflagration does the solidarity of the great states and, we hope, one day that of the United Nations, see to it that dictatorship and undemocratic methods in all countries do not lay the foundation for new world conflicts. I cite the remonstrances of the United States because of the internal government conditions in Argentina a few months ago.
Now, before I turn to the special criminal activities of the SS which the Prosecution have listed, I should like to, interrupt the consideration and evaluation of material with a few statements on the law of the Charter and on the rules of procedure. I did not want to tire the Tribunal with this at the beginning, but wished first to create a factual atmosphere in which the legal argument would gain strength. My arguments will be as brief as possible, for much bas already been said in this connection by my colleagues, and I fear that more will be said; and the Tribunal is also acquainted with the memorandum of my colleague Klefisch. I hope that my statements may clarify what I have already discussed, and I hope that they may afford insight into the underbrush of the small section of the voluminous factual material which I can offer in the remaining -period of the three hours which were granted me for my speech.
The legal nature of the Indictment against the organizations and ,of the possible declaration of an organization as criminal must be determined. The general statements of the Defense regarding the -possibility of the organizations committing, offenses are known to the Tribunal. I consider them fitting and correct. And yet one must risk the question: Who is really indicted according to Article 9 of the Charter? Is it really the formations as former legal entities, or are
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not rather in reality the millions of individual members, merely represented by one of the principal defendants or the extinct formations, sitting in the dock? It is, after all the individual members who are accused. This follows from a thorough consideration of the whole complex of questions. The Trial will not decide the fate of the former organizations, which are no longer alive and can never again become dangerous, but merely the fate of the many members. A glance at Law Number 10 and the disastrous consequences of the declarations of criminality confirms this. Declaration of criminality constitutes an unassailable establishment of guilt in advance for possible charges under Law Number 10. It is true that for subsequent proceedings it will be for the Prosecution to decide whether they consider it expedient to indict the individual member. But this does not change the basic idea.
The declaration of criminality thus bears the character of a declaration of guilt in advance for each individual member of the organization. If the individual is not indicted later, he will receive no punishment, it is true; but he is nevertheless a criminal according to legal decision. The character of criminality does not affect the organization as such, but in reality since the organization as such no longer exists-exclusively its former members. Your Honors, the main trial against each individual one of these members is taking place before you now. The issue is the establishment of his punishable action consisting of "membership." The most important declaration of guilt is made against each individual. The concept of guilt, however, in all civilized states of the world is always, within the meaning of the law, connected with the individual deed of a person. There has never been any guilt of organization. No one could object to declaring the aims and purposes of an organization criminal if individuals were not thereby affected. But as soon as the declaration of criminality of the organizations is to amount to the indirect condemnation of individuals, one must conscientiously examine and establish the personal guilt of each individual.
This may be concluded for another reason as well: What does the concept of organization include? That an organization is a union of people is clear. That this union, at least in general outlines, pursues unified aims and purposes, and has a corresponding constitution, should also be clear. Whether it includes the characteristic of voluntary adherence is, on the other hand, extremely doubtful. No one will deny that the German Wehrmacht was an organization, although there can be no question of voluntary adherence, not even in the majority of cases. One may think further of occupational groups, schools, or even compulsory guilds, in which there is no voluntary membership, but which are certainly organizations. The Klefisch Memorandum as well as the basic ruling of the, Tribunal of 13 March 1946 (Paragraph 6, Number 2) introduced the characteristic
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of voluntary adherence into the terminology; in my opinion, quite correctly. But why? Fundamentally only because otherwise the act of declaring the organizations criminal would appear unjust in view of the consequences for the individual members. What follows from this? A great deal. One sees here quite clearly that in reality what is involved is not the organization, but the members. The ruling of 13 March 1946 considers relevant only the question of whether membership was in general voluntary; it therefore takes into consideration that involuntary members will be affected. In view of the consequences of Law Number 10, this is irreconcilable with the idea of justice.
Constitution, aims or purposes, and activities of the organization whether on a voluntary basis or not-are criminal if they fulfill the conditions of Article 6; that is, if they were aimed at crimes against peace, war crimes, or crimes against humanity. In connection with Number 6 of the ruling of 13 March 1946 the individual characteristics of Article 6 of the Charter shall be carefully examined here. One should ask, for example: were the constitution, purposes, or activity of the SS aimed at the planning, preparation, initiation, or execution of a war of aggression, at the violation of the rules of warfare, or at murder, extermination, enslavement, and so forth?
These latter crimes of Paragraph 10 of Article 6 of the Charter, however, are punishable only if they were committed in the execution of or in connection with another crime punishable under the Charter; that is, in connection with crimes against peace or war crimes. This is how the author of the Charter, Justice Jackson, explained it in his statement, which is added to the text of the Charter in the Department of State Bulletin of 12 August 1945, on Page 228.
1 ask you to read the English text:
"We have taken another step forward in recognizing an international accountability for persecutions, exterminations, and crimes against humanity when associated with attacks on the peace of the international order."
I have already explicitly shown that in the examination of the charges of the Prosecution in connection with Article 6 of the Charter, the judgment must adapt itself to the time of the program point in question or of the allegedly criminal act.
After establishing that the crimes were without doubt committed, the question of whether the organization as such is to be designated as criminal will depend on how many or-in proportion to the millions of members-how few SS members took part in these crimes. Did an organization really act, or did only relatively few members act, who perhaps-paradoxically-frequently had not even joined the SS voluntarily?
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That it must not be overlooked at what period the individual crimes took place, the High Tribunal has already affirmed in its ruling of 14 January 1946. If the organization or a part of it was. at all criminal, then it would only be for certain periods of time. Designs and plans once made could perhaps appear criminal only through later misuse, although they were originally not calculated to be so. An axe when forged never knows upon leaving the anvil whether it will perform useful service for humanity or whether it, or even the wooden handle, let us say, will not one day be misused as an instrument of murder.
That such limitations in regard to time and personnel are necessary is shown by the following example: the Indictment says on Page 5 that between 1933 and 1935 unsuitable members were expelled. I may add that these were about 50,000 or one-sixth of the membership; people who-this is shown by the most varied testimony and affidavits-on the basis of their previous political attitude had only sought camouflage, including previously convicted persons and other unreliable elements. Even these persons would not be excepted from the Indictment and the consequences of the declaration. Such a grotesque result cannot possibly be desired.
Finally, according to Number 6 a (3) of the ruling of 13 March 1946, the evidence will have to be examined to discover the extent of the individual member's knowledge. This question will be decisive for the judgment on the masses of the SS.
I said before that even if the SS organization, which no longer exists, is formally indicted, the Indictment is nevertheless, in effect, directed against each individual member. Now, if the criminal character of the organization is to be proved through criminal act& of the members, then the member who is supposed to have committed this specific crime must have an opportunity to answer to, you, Your Honors.
If he cannot do this, then the Court will not be in a position to know whether the accusations are true. How then will the proceedings be carried out according to the Anglo-Saxon corporate penal law? The leaders and the members are heard in detail on the specific accusations made against them-the Court does not judge on the basis of unfavorable testimony of witnesses without giving the leaders and members of the organization who are personally affected by this testimony an opportunity to comment on it.
How little the Court-this High Court-can base its judgment only on the testimony -of witnesses, without hearing the accused person or persons, is shown by the astonishing experiment which I undertook with the witness Izrael Eizenberg on 7 August 1946. 1 showed him two pictures from a Prosecution Document 867-PS in Polish, Exhibits Number SS-2 and 3, from which I cut off the
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captions under the pictures. The witness identified the two men pictured as SS men and named their SS ranks. He deduced these ranks exclusively on the grounds of the shoulder straps and, an insignia on the sleeves.
The witness Morgen, whom I examined on 8 August 1946, immediately recognized as an expert that the men pictured were not wearing SS uniforms, and were not SS men. He pointed out that these photographs showed the shoulder straps of the Police, and on the sleeve the insignia of the Police. In the photograph, Exhibit Number SS-3, which is in the hands of the Tribunal, the police insignia can also be clearly seen on the cap: the eagle completely enclosed in an oval wreath of oak leaves. Nowhere, Your Honors, is the SS insignia to be seen. All other photos in this book also show only police uniforms and police insignia. But all of this did not strike the witness; he considered these men "SS men." That was only a minor example of the power of observation of the witnesses with regard to uniforms.
Please consider further how slight the difference is between the uniform of the SD and that of the SS-only a small "SD" lozenge on the sleeve-and that nonmembers of the SS wore this uniform (compare the testimony of Dr. Best and Reinecke before the Commission); that precisely in the rear army area it was the Police who were employed, while the SS were at the front; that the mass suggestion of the guilt of the SS distorts the memory of the witnesses. Then, Your Honors, you will be able to realize the true value of the testimony of non-German witnesses who arbitrarily designate "the SS" as the perpetrators of any crimes committed in the occupied countries.
The incompleteness of a collective indictment, which is raised here for the first time in the long history of law, is based particularly on the difficulty of taking testimony for the accused organization in a fair manner. This difficulty arises of necessity from the peculiar nature of the proceedings, particularly from the fact that it is technically hardly possible, unless through proceedings going on for years, to clear up every concrete charge in a satisfactory manner by hearing the members of the organization specifically affected, and to establish whether each charge is justified or not.
As long as in such a trial it is impossible for the Defense to produce at once each individual member of the organization impeached by Prosecution witnesses or documents, and to have him make a concrete statement, as well as to hear further witnesses on this case, this trial remains incomplete and unsuited to render true justice.
It follows of necessity that to a large extent the cases of the Prosecution and the Defense by-passed each other without being able to give the Court a picture of the true state of affairs in large
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parts of the Indictment. Only thus could the grotesque picture arise which we experienced repeatedly during the Defense case, that is, a Defense witness describing his activity and the u1iits and SS men under his command.This covered sectors and periods as large as possible, since the Court permitted only an infinitesimal number of witnesses in proportion to the total membership, and any individual testimony of a little man was inadmissible according to the ruling of 13 March 1946. The Prosecution would now have had to attempt to break down the testimony of the witness in cross-examination. The surest and simplest method for this would have been to throw doubt on the credibility of the witness by showing, for example, that he himself had committed a crime, or that something of the sort had been done by people under his command.
Although the Prosecution had many weeks to examine its records and those of all the Allies, which records had existed for months, or even years, and although these 29 witnesses before the Commission and before the Tribunal had held medium, high, and supreme positions, the Prosecution could not prove any such thing against them. Is not this fact alone the-best refutation of the contention of the criminal character of the SS? Is it not symptomatic that the Prosecution did not succeed in convicting of crime one of the highest generals of the fighting Waffen-SS, a very high officer of the General SS, at the same time Higher SS and Police Leader and Police Commissioner-an extremely rare case-of the third-largest German city, a staff officer of the administration of the Waffen-SS who was repeatedly in service at the front, and two high SS judges? Later on I shall discuss the case of the witness Sievers, the only case which was different. Thus the Prosecution had only one recourse: it deliberately brought, forward documents or affidavits which were to prove that crimes had been committed, with which, however, even in the opinion of the Prosecution, these SS witnesses themselves had had nothing to do. Nevertheless, the Prosecution asked the witnesses whether they knew of the events described therein. Were they thus seeking to discover the truth for which this taking of evidence was intended, or was further evidence for the Prosecution merely to be introduced at a time when the case of the Prosecution had already been closed? These documents are for the most part Government reports on investigations which have not yet led to any trial or judgment-particularly in the partisan territory in Yugoslavia, which is very difficult to judge. Their evidential value should be very slight.
Can the new documents and affidavits thus introduced in enormous numbers make it possible for the Court to answer objectively the question of whether the deeds actually took place, and thus as to whether the SS is criminal? Would not the Court have
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to hear the accused, that is, the SS men who were mentioned by name in the documents, or members or officers of the accused SS units? After the experience with the ability of the witness Eizenberg to distinguish uniforms, I ask: is it convincing when these people say, "They were SS men"? Or were they Police or SD and Gestapo members? In part such errors obviously arise from the documents. But I cannot and do not wish to deny that according to a few documents terrible crimes have been established, and that they are numerous. Should not the Defense have an ample opportunity to comment on these documents and affidavits with as much preparation as was expended on the evidence which the Prosecution presented in November, December, and January? Should it not be given a few months' time? I do not fail to realize that my demand would mean a prolongation of the trial for months, insofar as the ease against the organizations is concerned. But if for any reason ...
THE PRESIDENT: Dr. Pelckmann, the Tribunal has already -ruled again that the Trial has got to conclude now, and therefore any argument that you would have three more months is entirely irrelevant and can't be listened to. The Charter lays it down. It is for the Tribunal to say how the individual is to be represented, and we have laid it down to the best of our ability.
HERR PELCKMANN: If for these reasons judgment cannot be delayed so long, then it must be passed now; but since in my opinion the new evidence of the Prosecution can only be used with this -reservation, decision can consist only in the rejection of the application of the Prosecution.
I must add something. I asked myself whether I should deal at all with the Erhardt affidavit, D-973, from the Neuengamme Camp. But it is necessary because it is typical of the evidence of the Prosecution in this last stage bf the Trial. It is necessary at this last minute when it is no longer possible for the Defense to carry on investigations on the spot. I refer you to the ruling of the Court of I August 1946, which does not permit visiting camps, in contrast to the Prosecution. Their administrative. machine...
THE PRESIDENT: Dr. Pelckmann, if you are proposing to deal with the rules which the Tribunal has made with reference to the hearing of individuals, the Tribunal will not hear that. The Tribunal has done the best it can to enable individuals to be heard, and the Tribunal does not propose to listen to you criticizing what the Tribunal has done.
HERR PELCKMANN: I believe there is a misunderstanding, Your Lordship. I am not criticizing. I am dealing with the Erhardt affidavit, with the evaluation of this testimony.
THE PRESID ENT: Very well. Go on.
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HERR PELCKMANN: This affidavit cannot affect the value of the affidavits of the SS members. It refers only to the interrogatory, which does not come from me, and the answers-there are altogether only 40,000-which I did not utilize.
I submitted 135,000 detailed affidavits to the Tribunal, and I summarized them. The methods described by Erhardt cannot have been used in them. As evidence of this, I should like to ask you not only to read the summary but also a few of the very conscientious and descriptive affidavits themselves.
The Erhardt affidavit itself is full of contradictions, improbabilities, and exaggerations. Erhardt was an SS man and is now in the service of the British authorities. Of course, he does not want to lose his position. Therefore, he has every reason to make himself popular.
Can a single affidavit on the ostensible conditions in only one camp, the actual and psychological reasons for which are so doubtful, shake the value of 135,000 detailed statements? No, Your Honors. This attempt of the Prosecution to shake the value of the whole legal hearing guaranteed by the Charter can remain only an attempt. The Defense in this Trial is in the unfortunate position of not being able to ascertain the source of such mistakes in the mass material presented by the Prosecution, and of criticizing it.
I am of the opinion that the result of the Prosecution's evidence, insofar as it can be considered in view of what has just been said, forces the Defense to the conclusion that crimes in considerable extent were committed by members of the SS, but not that the whole SS organization is criminal.
Is it not striking-I should like to deal with one point of the Indictment immediately in this discussion of procedural and evidential questions-that there are only two judgments concerning the inhumane fighting methods of the SS, including for example the shooting of prisoners, one against SS General Kurt Meyer on the Normandy front, and the other against SS General Sepp Dietrich and 73 officers and men of - his army. That, Gentlemen of the Tribunal, is the result of the most painstaking efforts of the Prosecution, on the part of all the Allies, for more than a year. Must one not conclude therefrom that in spite of this long period it has not been possible for the Allied Prosecution to pass judgment on more crimes? The death sentence against Meyer, with which I am acquainted, was reprieved. The trial of Sepp Dietrich and his men, the record of which I was not able to obtain, ended with 43 death sentences, but it is striking that the highest leaders did not receive this punishment. This must force us to the conclusion that no such criminal orders were given by them, and consequently there was no criminal system. The Defense brings forward some
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-noteworthy objections against the methods of investigation and of accumulating evidence.
I should ask you to note the following, High Tribunal: these happenings occurred in the final six months during the most violent part of the war, and concerned only very few members of the Waffen-SS. At the same time please remember the extensive counter-evidence given by witnesses and affidavits, which the Defense also procured for this particular point of the Indictment: the training for and the waging of fair warfare, and excesses committed by the enemy, -which were only meant to prove that from such occasional excesses in battle one cannot conclude the existence of a criminal system.
In this connection allow me to develop another principle governing the evidence which to my mind must serve as the basis for the proper evaluation of the evidence in these proceedings: where any doubts may arise as to whether the individual charges are proven by the evidence, the weakness of which I have just made apparent, particularly also where doubts arise as to whether proved individual crimes may be said to be typical so that the entire organization, that is, all its members, can be considered criminal; where one counter-proof or one piece of circumstantial evidence is given as against ten or a hundred proofs of circumstantial evidence of the Prosecution, I believe that the Tribunal -cannot draw any conclusions which are sufficient to warrant a condemnation in the meaning of the Indictment.
This is a fair and logical conclusion arising from the nature of these proceedings. From the huge mass of evidence at their disposal, the Prosecution have chosen some incriminating facts, and then made the assertion that these were typical cases, that they were the same everywhere, that these actions were typical of the SS, et cetera. As already stated, it is the sole responsibility of the Defense to furnish exonerating evidence. And this is where the difficulties for the defense of the organizations, particularly of the SS, begin. The organizations have been dissolved; they no longer exist. When we accumulated the evidence most of the members of the organizations, and all their leaders, were in custody, and many of them still are.
The occupational authorities have secured the entire written evidence, all personal files, correspondence, decrees, and orders. It is true that we have been able to speak to most of the prisoners; but after so many years, and particularly on questions of detail, the information was bound to be incomplete, and was not given until April or May, since it depended on the progress of the Trial. -We could not always reach the competent persons. In connection with the question of the legal hearing, I would ask you to consider that
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we, have no evidence at all from SS men from Austria and the Soviet-Russian Zone of Germany. For reasons of security we could not be granted permission to conduct a research in the, Allied document centers in which the confiscated documents are classified .according to subject matter, and thus we were not able to obtain some valuable documentary information. We could not counter this deficiency by an approximate indication of the documents based upon certain assumptions, because a specified indication was demanded. As things stand, the counter-proof must be considered successful if the Defense succeeds in establishing but a shadow of a proof for their counter-evidence.
And now for lack of time I shall skip two pages, Your Honors, for the interpreters 32 and 33, and I shall deal with the charge of the participation of the SS in the pogrom of 9 November 1938. The next four pages deal with that, which I must also skip for lack of time, Pages 33 to 36. 1 ask you to read them.
Before I began with my considerations upon the Charter and the law of procedure, I endeavored to refute the charge of the Prosecution that the members of the SS were incriminated by the happenings of 30 June 1934. Not even the few members of the Leibstandarte directly concerned could have felt that they were committing a crime in killing men who were presumably guilty of high treason. That was how it appeared to the Germans and the bulk of SS men, -who had been fooled in such a masterly manner. A further and final confirmation of the legality of his intentions came when Hitler, after the elections in the summer of 1934 (nobody knew then that th6y had been falsified), declared that the struggle for power had now come to an end (Document SS-106). And it really seemed to be so. Even the issuing of the Nurnberg Laws, which came as a surprise to the SS as well as to most Germans, seemed to be merely a confirmation of the Party Program, branded above as absurd, though not as criminal in the sense of the Charter; in particular, a confirmation of the policy which Frick had declared publicly already in 1934, and which formally denied the idea of compulsory transfer of population (Document SS-93).
It is significant that, apart from the concentration camp system until 1938that is, 3 to 4 years-the Prosecution cannot raise any concrete charges against the General SS. The underhand anti-Semitic measures taken by the Party itself, or by other organizations, found no echo in the General SS. Only in November 1938 did anti-Semitism receive new official criminal impulse.
The Prosecution charges the SS with having taken part in the planning and execution of the measures against the Jews in the Reich on 9 and 10 November 1938. This charge is based upon Documents US-240, 3051-PS, and 374-PS, which, however, if they are brought into connection with the evidence of the witnesses, prove the contrary. Many Germans who were indignant witnesses of those happenings know that other Party organizations-partly in civilian clothes-took part in these excesses. That Is why I am concerned with establishing historical truth: on the evening of 9 November 1938, Goebbels made a speech in the Ceremonial Hall of the old Munich Townhall, following upon the murder of the German Legation Secretary Vom Rath. It was an aggressive speech against the Jews, which led to anti-Jewish demonstrations and excesses throughout the entire Reich that same night, obviously not only spontaneously but through preparatory measures of the Reich Propaganda Minister, as has been shown in the course of the Trial. According to Affidavit Number SS-5 by Schallermeier, together with the testimony of Von Eberstein, neither Hitler nor Himmler heard Goebbels' speech. Hitler retired early to his apartments, Himmler was with him. Considering the evidence it does not seem Impossible to me that Himmler at least was surprised by this action. The testimony of Eberstein and Schallermeier, Affidavit Number SS-5, makes clear beyond doubt that Heydrich was informed of the action already taking place in Munich only towards 11:15 p.m. by the office of the
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Gestapo in Munich; that Himmler could be informed only shortly before the beginning of the swearing-in ceremony at midnight; and that Himmler could come, and indeed did come, to some decision only after this ceremony, toward one o'clock.
What was the situation at this time? After the ceremony in Munich and other places where the swearing-in of the SS men had taken place, the SS marched of] and had-as every year-general orders to return directly to their homes in vie of the special solemnity of the preceding ceremony. In the meantime the action against the Jews had been afoot for several hours. We know from Document US-332, the report of the Party judge Buch, that this action was started oral instructions of the Reich Propaganda Chief, which were given by telephone immediately, that is, sometime before the first telegram of the Gestapo, by a large part of the Party members present to the agencies of their Gaue.
The Party leaders present understood Goebbels' instructions to mean that the Party should not appear as the instigator of these demonstrations, but in reality, should organize and carry them out. It is clear beyond doubt that purely reasons of time the SS until then could not have taken part in these horrible happenings. In the meantime Himmler had arrived towards one o'clock at the Hotel Vier Jahreszeiten in Munich. According to the aforementioned affidavit o Schallermeier, the truth of which is established by other evidence, such as Affidavit Von Bassewitz-Behr, Number 8S-9, and the testimony of the witness Vo Eberstein, Himmler gave two orders. The first was transmitted at 1:20 a.m. b Heydrich to all Gestapo agencies. This order was issued after the disaster ha already occurred. For reasons of security it demanded that political agencies be contacted concerning the carrying out of the demonstrations, ordered unconditional protection for German property and life, and furthermore, made provisions for the taking into custody of Jews. The contents of this order, and the agencies to which it was given, clearly established that these were merely police measures.
The SS organizations which I am defending are certainly not incriminated connection with these police instructions, since Heydrich, who held no office either in the General SS or the Verfugungstruppe, could not give them an. order (Witness Norbert Pohl). Himmler's second order was given orally to the leaders of the chief sections of the General SS who were assembled at the Hotel Vier Jahreszeiten. It contained definite instructions to the agencies of the General SS to help, if necessary, the Gestapo in safeguarding Jewish property, against all manner of plundering. He was obviously taking into consideration, the opinion that this was an unworthy and despicable action, from which the S should on principle stay away upon the definite instructions of Hitler. The task of the General SS was only to alleviate the consequences of this action if this should become necessary. This order was immediately telegraphed by the Oberabschnittsfuehrer from Munich to their local agencies.
This is established without doubt in Affidavit Number SS-5, Schallermeier The contents of the notes which, according to Schallermeler's affidavit, Himmler made of this occurrence, gain in credibility if considered from this aspect. In n event can the assertion of the Prosecution, that Himmler and Heydrich ha deliberately assigned the SS for the action of 9 and 10 November 1938, be considered proven. The contrary would seem to me more probable.
In this connection let us consider the actual participation of the SS in the Reich. The witness Von Eberstein has described the occurrences in the Munich district. Throughout the Reich the SS was never ordered to participate in the excesses, nor did units of the General SS participate out of their own initiative Their nonparticipation has been proved by numerous affidavits for all parts o the Reich (for instance, Von Roedern, Kaufmann, Lott, Enzner, Eschholdt, Fischer and Kampp-Pranz, Numbers 7, 8, 104, 6, 105, 10, 70). According to the affidavit of Kampp-Franz, approximately 200 affidavits have been submitted in proof 0 the nonparticipation of the SS in-the whole Reich territory in Camp 73.
According to these affidavits the units of the General SS, and most member of the SS in barracks, had come to be sworn. in in Munich, as everywhere in Germany. They all agree in saying that after the ceremony the members 0 the SS returned to their homes, without knowing anything about this action Also, according to the affidavit of Kampp-Franz, participation was strictly forbidden as far as this action became known during the swearing-in. Most 0 the SS members only heard of this action on the morning of 10 November 1938
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on their way to work or through an alarm given. Those units of the General SS who had been alerted upon the order of Himmler to the Oberabschnittsfuehrer were assigned in several places in the course of 10 November to safeguard synagogues, for instance at Offenburg in Baden (Affidavit SS-104, Lott); see also 4407 affidavits summarized and collected in Affidavits Number SS-119-122.
These affidavits prove that the General SS in many cases prevented further excesses, and that within the SS this disgraceful action was disapproved of from the very beginning. Document USA-332, a report upon the juridical party proceedings, in which four or six SS men are named, does not contradict this, for in such excesses, committed by the masses throughout the whole Reich, the participation of individuals against express supreme orders cannot be avoided entirely. But that cannot be considered as symptomatic for the criminal nature of the SS without further proofs.
THE PRESIDENT: Dr. Pelckmann, you say that you have only got to Pages 32 and 33?
HERR PELCKMANN: I want to start on Page 36 now. But as far as I am informed, Your Lordship's copy is longer. I am farther on.
THE PRESIDENT:- I do not have a copy at all; but I do not understand how you are proposing to finish your speech, if your speech is, as I am told, about 100 pages long.
I tried to point out to you at an earlier stage that the sort of general topics which are very familiar to us were topics which you might just as well pass over, and you said "Very well; I am going to shorten my speech. I have taken steps to shorten it."
Now we find that when you have been speaking for nearly two hours, you have not got any farther than Page 33. All I want you to understand is that you will not be allowed more than a half day.
Now will you go on, please?
HERR PELCKMANN: In the pages which I am skipping I have dealt with the events of November 1938. 1 will add that if in connection with the arrests, which were purely a political matter and were up to the Gestapo, some officials may have worn black uniforms, this did not make it an SS action. Gestapo officials also wore black uniforms. This would be a typical erroneous generalization which can be traced back to the fascination of the black uniform and of the SS insignia, and its misleading influence upon truth and recollection must not be underestimated for the entire proceedings against the SS.
This insignia, in its insolent aggressiveness, flaunted by visual and auditory means, was not only dangerous in the past because through its doubling of a Germanic rune it awoke romantic historical feelings in the German, but even today after the destruction of all the myths surrounding it, it has the peculiar power of preventing any clear conception as to its nature. This word "SS" is so easily pronounced without being accompanied by a clear conception as to its real meaning.
There is a, danger of a historical myth being born which, like any other such myth, is based upon ignorance of the facts, or, even
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worse, upon partial knowledge of the facts. We, who combat the Hitler myth wherever we can-we have done so in the evidence before the Tribunal-do not wish to see a myth form around a group of people under the slogan "SS," around the guilty and innocent alike. We do not want to help to create so-called "martyrs" in the interests of neo-Fascist propaganda.
That is why we must ask a definite question and give the answer: What is really to be understood by SS?
The decisive error in the Indictment is, that all, or at least all essential, spheres of activity of Himmler's are considered as activities of the SS. Without inquiring into the origin or tasks of the many agencies and units under Himmler's command, without inquiring as to whether there ever existed any organized ties or links, the Indictment assembles the General SS, Waffen-SS, the SD, the Police, the concentration camp system, the affairs of the Reich Commissar for the Consolidation of German Nationalism, the activity of the Chief of the Prisoner-of-War Organization, and others, in one great imaginary unit, the SS. The Indictment must proceed from such a unity in order to create a basis for the evidence that, within the framework of an alleged conspiracy, all sectors of the public life in the State, the Party, and the Wehrmacht were permeated with this SS, a monster which had spread its tentacles over Germany and Europe.
That Himmler's activity was identical with the activity of the SS is only true for the period up to 1933 or 1934. Only until then did an organized unity in the SS exist; and the Prosecution has taken over this idea of the unity of everything which they call SS from this time, thus falsely interpreting the actual developments. The SS was a part of the SA and therefore a section of the NSDAP.
The seizure of power opened an era in which a great part of all supreme and superior State positions were filled with Party Leaders. From this time on, Himmler went his own way alongside the SS. At first-by comparison with other high Party members-extremely cautiously, later more and more determinedly and arbitrarily.
It was mainly Heydrich who awakened Himmler's interest for State affairs, for power politics. Himmler, like many of the SS leaders, had become Police Commissioner, namely, in Munich in 1933. Soon he was made Chief of the Political Police in Bavaria, and then in the other states of Germany, with the exception of Prussia. Here G6ring was still Chief of the Gestapo. But soon Himmler became his deputy and Heydrich the leader of the Secret State Police Office in Berlin. Himmler's ambition for the widening of his power in the State, which the SS could not offer him, now became ever more obvious. His goal was the Ministry of the Interior. Already in 1936 he took over the entire police power of the Reich, which until then
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had been the affair of each land, in the capacity of Chief of the German Police. Thus he had become the highest superior not only of the Secret State Police and of the Criminal Police, which were jointly named the Security Police, but also of the entire Regular Police in Germany. Only then did he hold a position of power which was of the greatest importance, and it was given to him by Hitler, and not by the SS, or through the SS, or for the SS. I ask the Tribunal to consider that these police organizations existed independently alongside the SS before Himmler became their chief. In 1939, he was made Reich Commissioner for- the Consolidation of German Nationalism and was thus assigned a new task, the re-transfer of populations, et cetera. Finally, in 1943, he was actually nominated Reich Minster of the Interior. Through his personal allegiance to Hitler, and through his acceptance of any and every new task, he gained the personal confidence of Hitler and thus continually extended his personal position of power within the Reich. It was peculiar to this Reich that Hitler should have united so many offices and tasks in one single person who had his confidence. As an example, I would point to Goering. In the measure that Goering continued to lose Hitler's confidence, Himmler's power, rose like a meteor. He had gained this position of power for himself alone and without the help of his SS, and quite independently from the fact that he was, their Reichsfuehrer. The witnesses Grauert, Reinecke, and Pohl have amply testified to this effect. The SS, formerly so closely connected with Himmler, had, In the course of time, followed an individual and quite independent line of development, owing to the great number of the entirely different sections which began to take shape. Unfortunately, the short time at my disposal does not permit me to describe here this development in detail, although it is of the greatest importance to the entire defense.
To prove the unity they have asserted, the Prosecution say that the General SS was the basis upon which all the other organizations have been established. The fact alone that almost a million men have at one time been in the Waffen-SS, whereas the General SS had only numbered 250,000 members, refutes this statement. In the aforementioned appendix I have shown how the individual organizations were built up, augmented, and developed according to their own intrinsic nature. The General SS is not the source of life for the other organizations, but an ancient vestige which at first managed to keep alive, but which during the war was forced to disappear altogether for lack of any special task., (Witnesses Eberstein, Hinderfeld, Juttner, Pohl-)
The Indictment did not, however, mention the most important aspect. To my mind this is an aspect which is particularity suited to shed light upon the question of the imaginary unity of the SS:
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where lay the executive power in the State? For an alleged conspiracy only such an instrument could have been suitable, which controlled some means of the State authority, which had executive power in the State. Neither the General SS nor the Waffen-SS was such an organization. At no time in its existence did a leader or a simple member of the General SS have more rights in public and especially police matters than any other German citizen. He could not and did not at any time carry out arrests or house searches with impunity. (Witnesses Reinecke, Eberstein.)
The fact that revolutionary excesses were committed immediately after the seizure of power does not alter this fact. They were at once successfully combated, as testified by the witness Grauert. No member of the Waffen-SS ever had more rights than any members of the Wehrmacht (Witness Hausser). Indeed the executive power in the State was solely in the hands of the Police: the Gestapo and Criminal Police combined as Security Police, and the Regular Police. A policy of power in the sense of an alleged conspiracy could logically have found support only through them.
The testimony of the witness Grothmann, who belonged to the closest circle around Himmler, is particularly revealing for the question as to which activities of the SS are to be considered as connected with the executive power. This testimony is nothing special inasmuch as he tells us that Himmler was informed of the affairs of the Waffen-SS by the adjutant of the Waffen-SS, and of police affairs by the Police Adjutant, while the General Secretariat had to inform him of the other affairs of the General SS. Thus the sharp separation existing among the various fields again becomes very clear.
The essential point, however, is that all matters concerning the concentration camp system and the totally different sphere of the SD were not dealt with and reported on by the SS Adjutant, but rather by Himmler's own Police Adjutant. In this way the testimony given by the witness Reinecke, who testified as to the judicial basis for the separation into five independent spheres of influence under Himmler in the sense of the Indictment, into General SS, Waffen SS, SD, Concentration Camps, and Police, is again reaffirmed.
Executive power is indeed the key to full understanding of the charges raised under the Indictment, and for a just evaluation of this case. In the beginning, Himmler was on the side of his SS and was entirely absorbed by it. After the police power of the entire Reich had been transferred to him alone, the only thing he concerned himself with was this one sphere, the sphere of executive power. He played the leading role in the rapid development of Germany into a police state. Very soon he let every vestige of regard for any legal consideration go by the board. Moreover he continued
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to follow the path he had chosen for his organizations General SS and Waffen-SS, and withdrew behind a heavy curtain of secrecy, hiding himself and the excesses of his police activity from these ,organizations as well as from the entire nation. It is quite impossible to understand all of this if one does not appreciate the fact that Himmler had a "Jekyll and Hyde" personality. On the one hand he preached and fostered ethical values, such as decency, manliness, and courtesy. Here he used the instrument of his organizations, the General SS and the Waffen-SS. On the other hand he -exploited his tremendous power by issuing the most uncompromising orders and measures of a police state nature. I would only refer to concentration camps, mass executions without trial, and the Einsatzgruppen.
Here, and here alone he used the instrument of the executive power in the Reich. A deep abyss opens up between these two. It was not surprising, therefore, that in the few speeches he made during the war, in which he showed his obsession with his State Police troops of the future, that he met with opposition among the leaders and the troops of the Waffen-SS; for these men were soldiers and were fighting the enemy. It is quite understandable that the Prosecution considers this first side of Himmler's nature to be but a whitewash for the second. But nothing could be more erroneous than an assumption of this sort. It is no coincidence either that the Defendant Seyss-Inquart from his complete knowledge of developments, and the witnesses Hausser and Reinecke, who because of their former high positions and their present knowledge have an over-all picture of events, describe Himmler as a man who had two totally different faces. And when they say that, they are in good company; for on the strength of his many conferences with Himmler, Count Bernadotte says exactly the same thing in his book The Curtain Falls, which has been frequently quoted.
Himmler, therefore, is not the SS. The fact that he is referred to as the "Reichsfuehrer SS in all laws and directives which gave him new missions to accomplish does not alter this situation in the least. As the witnesses Reinecke and Kubitz have stated quite correctly in this regard, his official position and title, to all practical purposes, had replaced his name in public life. Specialized departments like the Police and the Reich Commissioner for the Consolidation of German Nationalism, or the position of Commander-in-Chief of the Reserve Army, and of Chief of the Prisoner-of-War Organization, did not become concerns of the SS just because they -were transferred to the person of the "Reichsfuehrer SS," that is, Himmler.
However, that is something asserted by the Prosecution, and in -order to support their position they state further that as soon as
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-Himmler took over new offices he immediately started to infiltrate them with members of the SS. That is equally wrong. The witnesses Zupke and Bader have7 confirmed the fact that a number of members of the Regular Police were taken over into the General SS, and not vice versa. An infiltration of the Police therefore never took place. As far as the Security Police is concerned, we can see from Himmler's decree of 23 June 1938 (Document 1637-PS) that the civil servants and employees of the Security Police were taken over by the SD and received SS ranks commensurate with their police ranks, and not vice versa. They never served in the General SS for even one day.
The testimony of the witness Zupke, who was interrogated before the Commission on 20 May 1946, and Affidavit SS-82, prove that roughly 20 different categories of members of the Regular Police became formal members of the SS when on the strength of ministerial directives they were granted ranks in the SS commensurate with their police rank. This so-called "Co-ordination of Rank," however, did not establish true- membership, for the police officials involved did not take the SS oath, did not pay dues, did not perform SS functions, did not serve in the SS, had no privileges or advantages of any kind because of their rank, and did not even wear SS uniform. Their police service remained constant and unchanged.
Everywhere else in public life the same procedure was followed. It was not the case that the SS filled key and other essential positions, but rather that the men holding such positions were taken over into the SS as honorary leaders by Himmler.
The affidavits deposed by Herr Fuehrer, SS-63, and Herr Wunder, SS-42, give striking examples of the appointment of honorary leaders; SS-49, and Bethke, Number 48, show that the Kreis- and Ortsbauernfuehrer were taken over as a group by the SS in that way, and Affidavits SS::97 and SS-98 describe the taking over of the leaders of the Reich Veterans Society.
Therefore it was not true that the SS infiltrated into the State; on the contrary, elements foreign to the SS were taken over by its organizations. The bulk of the membership remained what it was, a unit of farmers, mechanics, students, workers, and representatives of all the professions. The tasks of the General SS were not changed in any way because of this process.
After studying this matter, we can see how little basis in fact there is for the assertion made by some of the defense counsel on behalf of individual defendants and organizations to the effect that during the war the SS exercised all the powers of government in Germany. Many witnesses and affidavits prove that the activity of the General SS, which must be described as typical club life, began
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to decrease at the beginning of the war and disappeared altogether during the course of the war. The Waffen--5S was fighting at the different fronts, receiving more and more draftees into its ranks It was under the supreme command of the Wehrmacht. These branches of the SS therefore could not rule Germany during the war. As I shall demonstrate later, the VFTHA, which concerned its with concentration camps, belonged to the SS only nominally, an had no administrative authority over any other institutions Germany.
A reign of terror may well have been exercised through arrest and the putting of individuals in concentration camps, but that was not a function of any branch of the SS organization, but rather of the Ministry of the Interior, of the Police, and the RSHA (Gestapo)
The setting up of Higher SS and Police Leaders does not alt these facts either, for the name is in fact misleading. They had n authority of command over the Police and the Waffen-SS. 0 rarely, when like the Reichsfuehrer SS, who held both State an Police positions-as for instance Police Commissioner-were the authorized to give orders to the Police, but only because of their State position, not because of their position as SS Leaders. This may be seen even more plainly in the Occupied Eastern Territories for there was no General SS there. The Higher SS and Police Leaders there did not have any authority of command in the Waffen-SS, so that the Higher SS and Police Leaders exercised on public police functions. I am referring to the testimony given b the witness Von Eberstein, and to Affidavits SS-86 and 87.
Then we see the following: Himmler's power increased tremendously during the war, but the power of the SS was not increased
He did not receive this power because of his position. as Reichsfuehrer SS, and he could not exercise this power through the S but solely through State organs, that is, through the various police organizations.
Competing with Himmler's authority were other power factors not of the State, but exercised by the Party (Reichs-, Gau-, an Kreisleitung). All branches of the SS were outside this struggle for power between Himmler and Bormann.
From the description presented by me we can conclude the following: First, we cannot consider the organizations comprising the SS to be a unified instrument of a conspiracy. Secondly, the -Court can only examine separately the question of the criminal character of each branch of the organization.
The accusations raised under the Indictment which I shall have to deal with after these detailed statements-because of lack of time. I can cover only the most important aspects-become weightier the closer we approach the period of the war, and finally the collapse
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A very serious and comprehensive pattern of accusations against the SS has been included in the term "Germanization."
With this, Gentlemen of the Tribunal, I am dealing on the next five pages, 46 to 50, and I shall skip the heading "Enslavement"; the next four pages, 50 to 53, deal with the, "Compulsory Transportation for Slave Labor"; a further page and a half, 54 to 55, with the Einsatzgruppen, and finally three pages, 55 to 57, with "AntiPartisan Combat." Owing to pressure of time I am unable to present them and would ask the Tribunal to give them due consideration.
By "Germanization" we certainly cannot understand the resettling of entire sections of a population and transplanting them from their native soil to a new locality, for the same thing is taking place today in those regions between the Oder and the Vistula in Silesia and Czechoslovakia, in areas which were formerly German but have now been given to Poland. In order to arrive at criminal circumstances several vital points must accrue; namely, planning, methods of execution, and their connection with a war of aggression.
The contradictory yet determining points in Hitler's orders never appear more sharply than in that pattern which the Indictment understands by the term "Germanization." One thing, however, is clearly evident; these orders, some of which were issued in the form of laws, were not addressed to the SS. The decree of 7 October 1939, Document Number 686-PS, which has been quoted frequently, is of basic importance here. But a jurist can understand this decree only as a law to establish a new public authority to be known as the Reich Commissioner for the Consolidation of German Nationalism. Out of the many who competed for this position, Himmler succeeded in coming out ahead, for he was made Reichskommissar. In this decree, which was not issued by Party ,authorities but was signed by the Reich Cabinet, Himmler is also referred to by his other title of Reichsfuehrer SS. If he had been a general in the Wehrmacht, then perhaps he would have also been referred to as Lieutenant General; if he had been a civil servant, he probably would have also been referred to as Minister. From this, no instructions to the SS as an organization can be deduced.
This new office was paid for by the Reich. The men working there were officials who were taken from the various other offices and agencies, not only from the SS.
Of course SS members participated, but they were not predominant and they were not in the most important positions. Please refer to Affidavits SS-113, 110, 111, 43, 73, and 75. The Reichskommissariat for the Consolidation of German Nationalism belonged to the sphere of Himmler's personal authority, but no executive official of the Kommissariat had the power of command over SS offices or SS members except when subordinate to him as his officials.
Under the Reichskommissar for the Consolidation of German Nationalism there was the Volksdeutsche Mittelstelle, with which the Prosecution have dealt repeatedly. It was the task of the VDM to repatriate Germans who up to that time were not German citizens, and to bring them back into Germany from the countries where they had been living. The VDM furnished the means (Mittel) for this task. That is the real significance of the title used in contrast to incorrect translations. "Means" (Mittel) signifies money or objects which had the value of money. The Mittelstelle procured and cashed the necessary foreign exchange. The VDM was not concerned with the other tasks assigned to the Reichskommissar for the Consolidation of German Nationalism, which are characterized in the decree mentioned as "elimination of the harmful influence of alien minorities." These tasks were taken over as police tasks by Heydrich and by the police departments of the RSHA. They were handled in the same way as the deporting of Jews to the East; for example, into labor camps or to Theresienstadt. For these matters also Heydrich and the police departments of the RSHA were exclusively responsible.
These accusations are dealt with in detail by the statements given by the witness Kubitz before the Commission, and the affidavits of Creutz, Greifelt, and Golling (SS-115, 72, 79, 80, 71, 112, 113, 114, 77, 73, and 76).
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As has been abundantly demonstrated before this Tribunal, only Goering-with, the Four Year Plan had influence over the exploitation of the productive resources, and by no means the Reichskommissar for the Consolidation of German Nationalism or the SS (Golling, Affidavit SS-73). The voluntary resettlement of Germans from abroad carried through by the Volksdeutsche Mittelstelle, particularly from the Soviet Union on the basis of the treaty with the Soviet Union, cannot be considered as deportations or evacuations in the sense of the Indictment (Greifelt 3:1, SS-76). The Prosecution concluded the participation of the SS in that activity from the fact that many men in SS uniform had a share in it. The evidence given by Kubitz demonstrated that those people were not SS men and did not carry out SS tasks.
The evacuation of Poles from the former German Eastern Provinces had been almost concluded already before the creation of the Reichskommissar for the Consolidation of German Nationalism (Creutz, SS-72; Golling, SS-71). They had been previously carried out by the chief of the civil administration, not by the SS. I
In the Government General there existed special legal conditions, so that the office of the Stabshauptamt and the Volksdeutsche Mittelstelle were not able to interfere and cannot be held responsible for the conditions that existed there.
The evacuations in the West were performed by the chiefs of the civil administration as the agencies exclusively competent for them (evidence Kubitz, Affidavit Bruckner, SS-74; Edgar Hoffmann, SS-75; Creutz 11, SS-80). The members of the former German minority in the former Polish provinces were given German citizenship not by the Reichskommissar for the Consolidation of German-Nationalism, but by the Reich Ministry of the Interior and its subordinate office at a time when Himmler not yet held that ministerial office. The procedure of the Volksliste, which erroneously has been translated "Race Register," was carried through by the Reich Ministry of the Interior. This shows that that list had nothing to do with the Reichskommissar for the Consolidation of German Nationalism or the race ideology of the SS (Golling I, SS-71).
The confiscation of the agricultural property by the Reichskommissar for the Consolidation of German Nationalism was based on a decree by the Reich Government of 8 October 1939, in accordance with which the incorporated Eastern territories were declared Reich territory, as well as on those decrees concerning confiscation which in the framework of valid law had been properly promulgated and were not even co-signed by the Reichskommissar for the Consolidation of German Nationalism (SS Document Book, Number 13).
A thorough examination of that decree will show that the confiscations ordered actually had already been pronounced before the Reichskommissar for the Consolidation of German Nationalism had taken office. He did nothing but register and re-examine the confiscations which had already taken place (Creutz, SS-72; Golling, SS-71).
It would be entirely fallacious to speak of a confiscation through the Reichskommissar for the Consolidation of German Nationalism, much less the SS, for the purpose of settling racial Germans or rewarding deserving Nazis, since the confiscations carried out by the Reichskommissar for the Consolidation of German Nationalism were not qualified to furnish land for settlement or to drive away farmers from their estates (Golling, SS-71; Greifelt 1, SS-73, 76, 78; Creutz, SS-79).
For that reason the Reichskommissar refrained from any settlements involving a transfer of property. The only thing which happened was that the trustees on the ownerless estates we, e replaced by trustees taken from the ranks of the resettled ones.
The opinion of the Prosecution, which is in conflict with this description (1352-PS), is based on the unauthorized acts and proposals made by some subordinate official, Kusche, who did not even belong to the SS and whose errors-as shown by the document itself and Affidavit Golling SS-7-,,vere corrected. The case of Kusche is characteristic of the Reichskommissar for the Consolidation of German Nationalism inasmuch as this man was relieved of his office because of his entirely erroneous conceptions (Golling SS-71). No uniform plan is apparent in the so-called Germanization. The chiefs of the civil administration had their districts evacuated, and according to other motives.
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and orders (Bruckner, SS-2; Edgar Hoffmann, SS-75), the agencies of the Reichskommissar for the Consolidation of German Nationalism and the Chief Staff Office did not approve these evacuations. They could not, however, stop them, although they obstructed them as far as possible and practically put an end to them altogether (Testimony of Kubitz, Affidavit Bruckner, Edgar Hoffmann).Himmler, for instance, did not know anything about the plans of Burckel or Hitler. The Polish population in Posen and West Prussia was evacuated; in Upper Silesia it was not evacuated. The transfer of the Germans living in the Baltic countries was decided within a very few hours, but absolutely nothing was known as to the carrying out of their resettlement (Kubitz). The Reichskommissar for the Consolidation of German Nationalism transferred racial Germans from Lublin to Posen, the Governor General again settled Germans in Lublin (2916-PS, 910-PS; Creutz, SS-72). Continuous retransfers of Germans from abroad brought hundreds of thousands into the Reich, despite the fact that for years more than half a million had been waiting in camps for some kind of resettlement (Kubit7).
Polish property was confiscated by the Four Year Plan, the Haupttreuhandstelle East, and the Reich Ministry for Food (Reich Law Gazette, 1940, Page 353, 1270).
From this brief picture of the confusion existing one cannot speak of a premeditated plan for Germanization on the part of the Reichskommissariat, or on the part of the SS.
The deportation of civilians for slave labor, particularly into Germany, takes an important position in the Indictment amongst the crimes committed in occupied territory against the civilian population, and is directed above an against the Defendant Sauckel. His defense counsel, Dr. Servatius, has dwelt on the taking of evidence and on the legal evaluation of the concept of slave labor, and we will simply refer to that.
The Prosecution, and to some extent Dr. Servatius too, however, are of the opinion that the SS shared the guilt for those crimes. As far as the General SS. and the Waffen-SS are concerned, this point of view cannot be adopted.
As shown before, the General SS practically had concluded its activity at the beginning of the war. There is not a single piece of evidence which would show that any unit of the General SS had anything to do with the deportation of civilians for labor service.
The same is true in regard to the Waffen-SS, which never had any influence on the labor program of Sauckel and which also was never employed for the execution of his measures. The recruiting of foreign laborers for their employment in the Reich was, as a matter of principle, a task of the administration. For making manpower available to Sauckel's organization, the Reich Commissioners in the occupied areas were used, and they employed their executive, staff, as for instance the General Commissioners, and so on. They in turn, as prescribed by the laws of the administration, made use, as far as necessary, of the Regular and Security Police; the SS, particularly the Waffen-SS, was not available to the General Commissioners and had nothing to do at all with the labor program (Affidavit Von Bomhard, SS-108).
In special fields this system was-not changed either. The Waffen-SS and the General SS did not give any assistance in the transfer of arrestees to concentration camps and their employment for slave labor there. As is well known, the only authority in charge of assignments to concentration camps was the Gestapo, which was also in charge of the bringing-in of new arrestees. This has been stated already by Mr. Parr of the British Prosecution (Volume IV, Page 194). This is shown also by individual pieces of evidence, such as Document L-61, which speaks of the assignment of criminal and asocial Poles to concentration camps by the Chief of the Security Police and SD. It also proves that the exchange of Jewish against Polish workers in the Reich was based exclusively on an agreement between the office of Sauckel and the Chief of the Security Police. Thus the SS, both Waffen and General SS, had nothing to do with it, as was wrongly assumed (Volume III, Page 413). This is equally true for the transfer of other groups to concentration camps, and their employment in armament plants there. Without exception these assignments were handled by the Gestapo. This is true both for the assignments of Frenchmen (compare Servatius' plea) and that of partisans (744-PS, USA Exhibit 445). Again these cases therefore are eliminated from the material charging the General or Waffen-SS, because the arrests and assignments to a concentration camp of these
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groups were performed not as measures for securing manpower, but on the basis of Gestapo considerations. Himmler's order, 744-PS, furthermore is based on a decree by the OKW (Keitel), ordering that those prisoners who were taken in warfare against the partisans were to be looked upon as prisoners of war, put into camps, and referred to Sauckel through the labor offices. This was therefore a group of persons who ought to have been referred to courts-martial as snipers and whose assignments to a concentration camp constituted only an improvement. If the General SS and the Waffen-SS had nothing to do with the assignments to concentration camps, it is impossible to charge them with the crime of dragging people away to slave labor simply because the prisoners later worked in concentration camps. The following must be said in this connection.
(1) As I shall explain later, the concentration camps were not an institution of the General SS and Waffen-SS. They were a State institution of their own (Affidavit SS-40D, Fanslau).
(2) The Chief of the WVHA, Pohl, was in charge only of the administration of the concentration camps. The products of the prisoners, just as those produced by the prisoners of the general Administration of Justice, were administered by a Reich Finance Office which existed in each concentration camp. Just like any other fiscal office of the Reich, they were examined and supervised by the Court of Accounts of the Reich (Affidavit Frank, Number 99).
(3) In the main, the prisoners were made available to armament plants of a public or private nature, as well as to the economic enterprises of Himmler (Affidavit SS-9, Frank; and SS-100, Fanslau). Their position was exactly the same as that of other armament plants which received Eastern or other foreign laborers through the office of Sauckel.
Nothing against the General SS or the Waffen-SS can be concluded from the employment of those prisoners in the interest and for the benefit of the Reich. The evidence given by Juttner and the Affidavits SS-99, Frank, and SS-100, Fanslau, show that the products of their labor did not accrue to the Waffen-SS, as the Prosecution has charged.
In the battle in the East the activity of the Einsatzgruppen A, B, C, and D of the Security Police and the SD appeared for the first time. They were formations
,of a special type, of a Security Police character-that is, of the executive of the Reich. I need not go into the other tasks of these units. Here it is a question only of that horrible activity to which the witness Ohlendorf testified; particularly, the part played by the Waffen-SS.
The testimony of Rode and Ohlendorf has proved that the Einsatzgruppen were tactically never under any command posts of the Waffen-SS. It is shown, rather, that these units were tactically subordinate to the army groups of the Wehrmacht. There were never any army groups of the Waffen-SS.
Against the Waffen-SS there is the fact, it is true, that three or four Waffen-SS companies-a total of one battalion-had to be assigned to these units without the appropriate battalion staff. I said, "had to," because the instructions from Himmler were direct (witnesses Juttner and Ruoff). Document L-180 proves that, for example in Einsatzgruppe A, 340 out of 999 men were soldiers of the Waffen-SS. The total strength of SS men assigned to these units was 600 to 700 men.
The fact that men of the Waffen-SS were used for Security Police tasks seems to -contradict the fact, which has been proved by me, that the Security Police and the Waffen-SS were two completely different organizations. But that is not the case: The testimony of Flutter shows that the assignment of three or four companies was ordered by Himmler with the express provision that these men should serve as protection and guard units of mobile police details which were to follow the fighting troops. That police details were necessary in the occupied territory was clear.
That they needed military protection, if they followed the fighting troops immediately, was not surprising. It was never mentioned that the Einsatzgruppen were to carry out exterminations of human beings on a large scale and that men of the Waffen-SS should be called upon to participate in these actions against their express orders to maintain and afford protection. No suspicious doubts could arise in this connection (witness Juttner), nor did it become known at any later time in the leading agencies of the Waffen-SS that these SS men had been wrongly used for such tasks (witness Ruoff). The witness Blume, of the organization section of the Waffen-SS, had stated that these three or four companies,
26 Aug. 46,
in contrast to all other units of the Waffen-SS, had never submitted any reports of the true state of affairs to the Fuehrungshauptamt. Practically they were not even part of the Waffen-SS. This also explains that none lcif the leading or less important witnesses for the Waffen-SS ever gained any knowledge of the activity of the Einsatzgruppen, which had been held strictly secret, or of the specific participation of any SS men.
The assignment of not quite one thousand men, which was so much talked about, has not changed anything in the nature and the task of the Waffen-SS, an organization including millions.
When there was any talk of Einsatzkommandos the Prosecutors generally mentioned the so-called special Kommandos of the East in the evidence. Since these were merely concerns of the Security Ponce, in which members of the General SS or the Waffen-SS were never used, I need not dwell on these matters.
Due to the statement of the witness Von dem Bach-Zelewski, -and a statement in the affidavit of the witness Rode, which was submitted by the Prosecution, the idea of partisan warfare in Russia had been quite erroneously connected with the idea of the systematic extermination of Jews. Both witnesses declared that upon looking back they had come to the conclusion that partisan warfare in Russia was merely a pretext for the extermination of the civilian population. In the meantime, this incredible assertion was rectLed by the witness Rode in cross-examination before the Commission. As Rode's testimony shows, his interrogator discussed the compilation of the affidavits referring to partisan fighting and at the same time to the aforementioned Einsatzgruppen and Einsatzkommandos of the Security Police. Rode's statements referred only to the activity of the Einsatzgruppen, whose activity the interrogating officer often erroneously connected with partisan activities by calling them "partisan combat groups."
In reality, partisan fighting was an intensified guerrilla warfare which was developed, especially by the Soviets, behind the front. It was intended to cause difficulties to the fighting troops by iAterfering with their maintenance channels, and it also took direct action against units in the rear. This type of warfare was an the harsher since the partisans knew that according to international law they could be considered as f r a n c t I r e u r s, and accordingly fought a bitter war.
Because of the division of the hinterland behind the front into the rear army area and the area of the civil administration, the task of combating partisans became either the responsibility of the Wehrmacht, or that of the Police. The witness Hausser said, on 6 August 1946, at the beginning of his interrogation: "That was a military-police task." (Not "military-political task," as was erroneously translated into English.) Therefore, those who possessed police powers In the occupied area, that is, the Higher SS and Police Leader and the chief of the anti-partisan unit, had to carry out their task in collaboration with one another. The fact that occasionally units of the Wehrmacht, and only once a unit of the Waffen-SS, a cavalry brigade, were committed for that purpose, changed nothing in the manner of the activity, nor can one conclude therefrom that there was any organizational connection between partisan combat and the Waffen-SS In the rear police. area (Witnesses J11ttner, Ruoff, Grothmann).
From his statement that inferior troops had been chosen for partisan warfare one can see how the testimony of the witness Von dem Bach-Zelewski must be judged, a witness whose testimony contains several discrepancies (witnesses Grothmann, Reinecke, JUttner, Ohlendorf). According to the testimony of the witness Hausser, there were never any inferior units in the Waffen-SS; on the contrary one cannot establish a connection between the testimony of Bach with the Waffen-SS. According to the explanation of the witness Grothmann, the unit Dirlewanger was a probation troop of prisoners, such as are used in all armies of the world. It is an essential fact, there, that it was never a unit of the Waffen-SS, or even, as Bach states contrary to the real facts, a unit of the General SS (witness Grothmann). Apart from anything else, it would never have been adequate for the war against the partisans.
Thus the charge that partisan warfare was a pretext for the extermination of the civilian population is disproved, and furthermore, any special participation of the Waffen-SS is also disproved.
Concentration camps existed from the very beginning of the Hitler regime on. Without them the Hitler State was inconceivable. Hundreds of thousands went through these camps, were
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degraded and ill-treated there; more than a hundred thousand died or were killed there.
It cannot be denied that the name of the SS is connected with these murders and misdeeds. In the face of all the world this. confession must be made in this Trial. And just as every German must be ashamed that such horrible and inhuman things occurred in, his country, even more should every SS man search himself and examine to what extent he is politically or morally guilty for these happenings. He should be concerned not only with the defense, against the accusation of the Prosecution that every SS man has become a criminal through these crimes, but he should again look back upon his whole life and study when, where, and how he might have deviated from the road of true humanity-perhaps only in heart and mind. This he can do and must do-even if he denies his criminal guilt and maintains that he was for four years in the front lines engaged in hardest fighting, believing in Germany and her just cause. And if he feels shame, genuine shame-if only a little of it-then his reflections, then this Trial, will not have been in vain. Then that purifying feeling of guilt is present to which Pastor Niem6ller has referred, a man who has been misunderstood so profoundly.
But even if that SS man should persist in his inner obstinacy, even if all those SS men should remain unrepentant-though from my visits to the camps I know that this is not the case-even then we would have to continue to serve earthly justice, we would have to examine whether, due to the concentration camps and other atrocities, the SS is to be considered a criminal organization, whether all SS men by those acts became criminals.
We therefore have to deal with the details of those matters, even though millions of people mourn the victims of the concentration camps, hundreds of thousands of the surviving inmates suffer from the aftermath, and even though the world accuses the SS in one single outcry of revenge.
When, in the beginning of March, I was charged with the, defense of the SS, I found a considerable amount of material of the Prosecution, evidence taken in the main proceedings, and many documents which were assembled in the Document Book "Concentration Camps." But on the other hand, upon calm consideration-and that, in spite of everything, is essential-it is clear that if during the entire period before and during the war conditions in concentration camps were actually as represented, for instance in the picture "Concentration Camps," then it could not have been possible that hundreds and thousands were discharged, that work could have been carried on during the war as it was, and that finally, those-
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things could have remained unknown to the masses of people and the the mass of the detained SS men whom I now interrogated.
There were contradictions which could not be eliminated; in the American report on the development of the Buchenwald Camp from 1937 to 1943, the basis of which I do not know, the following, which is taken from a letter of the VFIHA of 28 December 1942, is attached as an appendix: 136,000 people were brought into all concentration camps within a half year. During the same time 70,000 died. Though it is obvious that not just half of those new inmates died, but that 70,000 out of a total population of some hundred thousand inmates passed away in six months, the mortality rate is still frightfully high. Thus the Prosecution seemed to be right in affirming that the detainees were systematically exterminated, or at least killed through overwork. However, this was not in accordance with the order issued in a circular of 28 December 1942 by the VFVHA, according to which the physicians in the camps were to take all measures to insure lower death rates and to maintain working capacity as high as possible, by adequate supervision of food and working conditions and by suggesting practical ameliorations which should not merely remain theoretical. Neither was this in accordance with the fact testified to by witnesses over and over again, that foreign and German commissions inspecting the camps, and even SS Fuehrer themselves, gained a very good impression of the administration and the prisoners.
I have been, and am still, of the opinion that for me as lawyer and defense counsel the fact cannot be sufficient that the number of victims was huge and that the whole -world said that they had been murdered and ill-treated by the SS system. In this decisive question, which is produced by the mass effect of a mutually-conditioned formation of opinions, in other words, a typical case of mass suggestion of public opinion, there can be no "legally notorious facts"; there can be only clear facts which must be established without prejudice and bias. This is important for the following questions: who were the authors of each of these crimes which became the enormous number of anonymous concentration camp atrocities? Did they do it on their personal initiative or on order? Do they belong to a typical criminal group, and if so, to which one, in order to discover a collective guilt? In what relation do they stand to the organization of the SS, that is, to the tens and hundreds of thousands of members who had not been active in the concentration camps and who insist that they knew nothing of these crimes?
THE PRESIDENT: The Tribunal will recess.
[A recess was taken.]
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THE PRESIDENT: Dr. Pelckmann, you have now been speaking for 2 hours and 28 minutes, so that, strictly speaking, you have got 22 minutes more.
HERR PELCKMANN: I had just put the questions which seemed important to me for the clarification of the connection between the SS and the crimes committed in concentration camps. I hoped that these questions, the elucidation of which might contribute to the speedier sentencing of all the criminals, would have been answered by the Allied courts which had been sitting on, concentration camp trials since last year.
That is the reason why, Your Honors, I made an application to place at my disposal the records of all these trials for consideration. From them I might have discovered many facts which have come to my knowledge and that of the public only during these last weeks.
I have nevertheless left nothing undone to discover the truth. My application aiming at placing at my disposal the concentration camps' administrative files of the WVHA was handed in at a rather late date and I did not follow it up. I did not need to follow it up because I succeeded at last, in the beginning of July, in finding a witness whose testimony is, I believe, decisive in many respects for the discovery of the- truth, that is, for the historical and, in this Trial, relevant truth. This witness is Dr. Morgen.
We are indebted to this witness for the discovery of three primary facts. First, the basic and profound7est reason for the killings in the concentration camps was the outlawry of the detainees, the omnipotence of the Police (Gestapo), and the -weakness of justice. Secondly, the ordering of and organization of mass exterminations of Jews in special so-called extermination camps were undertaken by Hitler directly. Knowledge and execution of these orders were confined to a few initiated. Thirdly, an absolute sphere of secrecy, together with a, diabolic system of deception, was designed to keep knowledge of the happenings in the concentration and extermination camps from the public and the prosecuting authorities.
I shall never forget my first meeting with this witness, Dr. Morgen. The entire nature and soul of this gigantic man bent forward in his chair seemed eager to communicate what he had known for about two years, and what he had viewed and experienced for months while living with detainees and personnel in these places of horror.
I shall skip the next sentences.
He had twice reported in detail, once to the highest competent German authorities, so that they might improve conditions; a second time in 1945 to the American investigating authorities for concentration camp atrocities. Both times his revelations were unanswered.
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With flagging hope Dr. Morgen made his report for the third time, with which, as before, he wanted to help find the guilty, protect the innocent, and show the German people and the world the final guilt of the criminal leadership in the most horrible murders in world history. In this he succeeded.
I shall skip the next paragraph, which describes the concentration camp system and the participation of the SS.
The beginnings of the concentration camps are characterized by absolute illegality. It began with arrest without legal grounds. There were purely considerations of political expediency. But these have always characterized this means of power, which has been employed from the beginning of this century up to the present by many civilized states, particularly in times of great political tension, under various names. Although according to international practice there is nothing illegal in the establishment of such camps and the confinement of prisoners, it must be admitted that immediately after the seizure of power, and in the years 1933 and 1934, the execution of this arrest was accompanied by numerous atrocities and murders. Documents 1216-PS and D-926 speak a terrible language. There is sufficient proof that members of the SS were also responsible for this.
But soon the establishment and guarding of concentration camps were legalized. From 1933 or 1934 on they were financed from the budgets of the individual German Lander and administered by the Political Police. As head of the Political Police of all Lander except Prussia, Himmler in 1934 uniformly -regulated the guard and administrative conditions. By taking over a part of the previous guard personnel, SA and SS men, he created the Death's Head formations and supplemented them with volunteers from all sections of the population, without consideration of membership in the Party and the SS. They were now intended exclusively for guarding concentration camps and comprised, in 1936, 400 -men for the Kommandantur and 3,600 men for guard duties. They guarded about 10,000 to 12,000 prisoners in five concentration camps throughout Germany. I ask you to compare the the4i unusually large membership of the General SS with these figures.
In 1936 the concentration camps and their guard personnel were taken over to the Reich budget, and separated according to Kommandantur and guard personnel. At the beginning of the war the Kommandantur personnel consisted of 600 men; the guard personnel amounted to about 7,400 men. There were only six concentration camps in all of Germany, containing 21,300 prisoners, and as yet no labor or subsidiary camps existed. At that time there were about 240,000 members of the General SS. The Waffen-SS did not yet exist.
In my explanation of the question of the organizations I have proved that the "Totenkopf Verbunde" (Death's Head Units), created in 1934 as special troops of the State, were not paid by the Party but by the Reich, and that they had in common with the General SS only a part of their name "SS" and the chief Himmler. (This follows in particular from Hitler's Secret Edict of 17 August 1938, and from Document SS-84.)
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The following change after the beginning of the war, when the wave of destruction began to mount slowly in the concentration camps, appears to be important.
6,500 men of guard personnel were sent to the front with a newly activated division. Thus they were eliminated entirely from the concentration camp system. During the course of the entire war about 30,000 men were employed in the concentration camp system, as can be seen from the testimony of Brill and from Affidavit SS-68 (Kaindl). These included new arrivals and men departing. They comprised about 1,500 men of the original cadre of the Totenkopf Units, and 4,500 men originally from the General SS.
These 41500 men were a part, of altogether 36,000 members of the General SS who had been called up by 1940 under the emergency service decree -and had become members of the Waffen-SS. The remaining 24,000 men of the concentration camp personnel-that is, 80 percent-originally had no nominal connection with the SS. These were 7,000 persons of German descent or extraction who had been called up, 10,000 German nationals who had volunteered to go to the front in the Waffen-SS, and 7,000 soldiers subordinate either to the Army or the Air Force. Many of the volunteers came from the SA, the Reichskriegerbund, the Party, and other organizations. All, with the exception of the original personnel of 1,500 men, had been assigned the task of guarding the concentration camps -against their will upon the order of Himmler, and without having any connection with the Kommandoamt of the Waffen-SS. Only in the course of the war were these guarding and administrative units of Himmler's nominally taken over into the Waffen SS; Himmler thus transgressed his powers. This was done in order to avoid continually having to free the personnel of the concentration camps from military service, that is to say, for reasons which were practically to eliminate the regulations of military supervision. After the unequivocal evidence given by the witnesses Reinecke, Juttner, Ruoff, Brill, and many others, there can be no more doubt that the Gestapo tasks of the concentration camp system did not change for all of that, and that in particular the concentration camp system did not become a matter of concern for the Waffen-SS. Indeed, the entire concentration camp system, even after the formal transfer of the guard personnel into the Waffen SS, was not directed and administered by the leading agencies of these organizations but by a special office, the Well-known Amtsgruppe D in the chief office of the Economic and Administrative Main Office (witness Stein; Affidavits Fanslau, SS-41 and 100; Frank, SS-99).
I ask the High Tribunal to read the following three pages which deal in detail with the closely defined activities of Amtsgruppe D,
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and also the actual part of Dr. Morgen's testimony on the extermination camps, dealing especially With the camps run by Wirth and Hoess.
This Amtsgruppe D, which was entirely separated not only from the other SS agencies, but also from the remaining departments of the WVHA, in regard to organization, personnel and also location, as shown in Affidavits SS-GG, Kaindl, and SS-99, Frank, gave orders to the military personnel and Kommandantur personnel. All income from concentration camps, especially from work done by the prisoners, was credited to WVHA Amtsgruppe D, and was only temporary income for the Reich, which therefore did not benefit the Waffen-SS. The budget of the Waffen-SS was treated in exactly the same way as that of the Army. It was not connected with that of the Army, but established in the same way, adapted to that of the Army and brought into correlation by the same officials of the Ministry of the Interior.
Never-I should like to emphasize this-was a complete unit of the Waffen-SS assigned to guard concentration camps.
Thus, Your Honors, I have explained to you the jurisdiction of Kommandantur and Guard personnel and the administration of the camps, and have limited it as regards the General SS and the Waffen-SS.
Still more marked is the limitation of jurisdiction in the question of who had to decide on the admission and release or on the execution of prisoners. That was exclusively the Gestapo, In this state of affairs there is no doubt that those responsible, directly or indirectly, for all atrocities and murders which occurred in the concentration camps are to be found at the head, in these two offices, and among the concentration camp personnel.
The witness Dr. Morgen, and many affidavits on concentration camps, emphasized however-I must point this out now for the purpose of further limitation-that the guards on principle had nothing to do with the internal administration of the camps, and that it was forbidden and impossible for them to enter the camps proper. Executions and shootings by order of the RSHA, and certainly those on the basis of the assumed right of the Commandant, were carried out by a detail of the Kommandantur staff, not by the guards.
As distinct from the concentration camps we have the extermination camps. They were established after 1942, after Hitler had declared war on the United States and now wanted to take his most bloody revenge for this development of the war, for which he held the Jews throughout the world responsible. From the terrible descriptions of the witnesses Hoess and Morgen we still recall the technique of these mass killings.
From the testimony and affidavits of Hoess and Morgen and the examination of Wisliceny before the Tribunal and the Commission, we have now obtained a
comprehensive picture of this whole murder system. Hitler and certain offices of the Chancellery of the Fuehrer-with practice in murder from the extermination of the insane-employed the services of two experts, Reichsarzt; (Reich Physician) of the SS Dr. Grawitz and Kriminalkommissar Wirth. The one developed medically the best methods for killing, the other, the best technique of execution in deceiving the victims and the surrounding world.
Aside from Wirth, the head of the extermination camp near Lublin, there was Hoess, the head of the extermination camp in Auschwitz, or rather Monowitz, who was at the same time head of the concentration camp at Auschwitz.
one of the persons who brought in these victims was Eichmann, who was incorporated in the Gestapo, and up to Hitler's order for the "final solution," that is, killing, deported the Jews to camps in the East.
The transports-as Wisliceny testified before the Commission on 5, 6, and 7 June-were accompanied only by police, including Slovakian and Hungarian police, and only in a single instance by SS men who had been drafted in Hungary as racial Germans.
All these extermination installations and details can be traced back to special orders of Hitler, or the Chancellery of the Fuehrer, and were outside the framework of the normal concentration
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camp system. For that reason, they did not have the normal chain of command and organizational form. Wirth was Criminal Commissioner without being an SS member. Hoess received extermination orders, aside from Himmler, only from Eichmann personally, without being allowed to inform his immediate superior, Glucks, the Inspector of Concentration Camps, of then-L So Hoess testified on 15 April.
Now what follows from all these terrible events-from concentration camp atrocities through the Einsatzgruppen to mass gassings -for the charge against the SS?
The Prosecution says that all the crimes charged have been committed to such a great extent and in such vast proportions, that they and the criminal aims and methods must have been known to every member. The Prosecution thus says that knowledge of the criminal nature of these, tasks is a preliminary condition for the judgment, and the ruling of the Court of 13 March 1946 is in agreement. The assertion of the Prosecution is based upon the following arguments:
Before, and particularly during the war, the press and the wireless, statements of official personalities and all manner of publications in the Allied countries widely informed the public of these states about the atrocities committed in the concentration camps and other crimes. Under these circumstances it would seem obvious to conclude that if in these countries such crimes were almost universally known, this must have been even more so the case in Germany, and particularly in the SS. The collective affidavits ,which have been submitted, and which are partly extensively proven, show that the majority of SS members deny any such knowledge. But, in addition, the defense has countered the charge with a comprehensive statement: the crimes committed within the limits of the German sphere of power were carried out under a minutely planned system of secrecy, so that the bulk of SS members not only did not know anything about them, but indeed could not possibly have done so. Whereas the charge of the Prosecution can only be made credible by the legally very doubtful use of deductions, the argument of the defense is proven by the facts. And such proof, Gentlemen of the Tribunal, has, in my opinion, been furnished by the defense.
Let us start with the concentration camps.
On the next pages-and I would ask the Tribunal to read them-I have described the veil of secrecy with all its regulations and circumstances preventing any publicity of the facts towards the outside world.
On looking back we can easily detect the close veil of secrecy and deliberate deceit. In all this time only five or six camps were existent in Germany, with about 12,000 prisoners in 1936 and 21,000 in 1939. It is obvious that for this period
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the charge of the Prosecution is not valid, which maintains that on every one of his journeys every German passed many concentration camps on his way. But the relatively small number of concentration camp personnel, a few thousand, also makes a spread of information about circumstances In the concentration camps seem unlikely. The majority of this personnel-the guards-were not allowed to enter the camp proper.
Characteristic of the deception of the public are the statements of Himmler made at an inspection of a concentration camp by Wehrmacht officers, which are contained in the collection "National Political Course of Instruction". (Document 1992A-PS).
The prisoners consisted of Communists and criminals, who were, in part assigned to the camp only for a few months, in part for a longer time. He mentions the cleanliness in the camp, the frequent washings and change of linen, and the use of toothbrushes. Thus the impression-had to be given to the visitors that the criminals were really an anti-social element of the lowest grade who had a bearable life in the camp. Numerous affidavits declare that visitors, precisely from SS circles, for example in visits of Junker schools, found orderly conditions and the prisoners in a satisfactory state of nutrition.
The greatest secrecy prevailed in these camps. Not only the official execution of death sentences of courts, but also the execution instructions of the RSHA, which began only at the beginning of the war, and certainly the murders resulting from the lust for power of the commandants, were not undertaken publicly. Dr. Morgen describes this in detail in his Affidavit Number SS-66. In his examination he described all the clever methods to disguise murders as natural deaths, and thus to deceive the civil courts and, from 1940 on, the SS courts.
I ask the Tribunal to consider in these questions for once, that the deaths and mistreatments began on a larger scale only with the beginning of the war.
The obligation to absolute secrecy was incumbent not only upon the personnel but also upon released prisoners. The affidavits of prisoners, which the Prosecution has submitted, frequently emphasize this order for secrecy, but it is striking that they themselves do not claim to have violated this order (Document 2334-PS). According to our professional experience these orders of secrecy had a very strong effect even where a condition of great confidence existed. The fear of being returned to the camp for any indiscretion was too great.
Since the use, in 1934, of the Death's Head Units as camp personnel, the General SS, and later the Waffen-SS, no longer had anything to do with the concentration camp affairs and certainly not with the Kommandantur personnel in personnel or legal questions. The Amtsgruppe D of the VFVTHA, with their small group of 30,000 men of the above-mentioned nominal Waffen-SS, had become an independent and separate system with their own telephone and teletype net and their own couriers to the concentration camps. Only the Gestapo had a channel into the concentration camp, into the so-called political department, which was subordinate to it and usually run by an investigation secretary. Here also there was no connection with the rest of the SS.
It is important for the question of secrecy that, as Kaindl explains in Affidavit SS-68, the staffs of the Kommandanturen were until the middle of 1942 made up of the same personnel which they had had at the beginning of the war. Thus, too, knowledge of the
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conditions and events could not be spread before 1942. From a psychological point of view one must consider that the persons responsible for orders issued or received did not have the slightest reason to talk about their sinister acts.
Owing to lack of time I shall have to skip the next pages and would ask the Tribunal to take notice of them. They deal in detail with the counter-propaganda deliberately undertaken by the German side, and provide a large quantity of evidence from affidavits and testimonies before the Commission. The same is true of the mass extermination camps at Auschwitz, Monowitz, Treblinka, and so forth.
In my opinion, the witness Dr. Morgen has described authentically by vivid examples how difficult it was to look behind the scenes. He has explained in, detail how, through the co-operation of commandant, physician, and prison, director, often together with devoted "Kapos," any crime could be concealed in such a way that neither the judicial authorities up to 1939, nor later the SS courts, nor the other prisoners, noticed anything.
These conditions led to terrible murders and mistreatments. But in the interest of objective determination of the truth, and to evaluate these events in the light of the collective guilt question, I must emphasize Dr. Morgen's statement that we encountered camp commandants and physicians who did everything humanly possible for the prisoners. And I may recall the answer of the President to Mr. Dubost in the session of 18 January 1946, that prisoners of all camps would have to be examined if he wished to prove that things had been so murderous and inhuman everywhere.
I do not intend to defend the SS courts here. Their fate is not an issue at the moment. But does it not give cause for reflection if even they recognized -only in 1943-and that by accident-that the so carefully camouflaged deaths were in reality murder? Does it not give cause for reflection if one sees the resistance of influential people-Pohl, Kaltenbrunner, Muller-which went so far that Pohl, during the investigations, issued an order to all commandants that SS judges were to be permitted to enter the concentration camps only with his express approval?
The Prosecution have not attempted to shake the testimony of Dr. Morgen on this essential point of secrecy. It appears to be unable to do so although it apparently is in the possession of all files of the WVHA, and probably also those of the Main Office SS Courts since it published in a pamphlet the text of the testimony of Mrs. Eleonore Hodis, which she gave to the former investigation judge Dr. Morgen against Hoess in the autumn of 1944. That the Prosecution has absolutely no possibility of refuting the testimony of Dr. Morgen, I should like to conclude from the fact that it attempted at one time to end my examination ,of the witness by saying that I was acting in this examination only in favor of the Prosecution, whereupon, in contradiction to this, the Prosecution did not care to proceed to a cross-examination of the witness, stating that his evidence had been refuted by all evidence taken before.
No, I do not have the least doubt that the men in charge tried with an the means at their command to shroud the crimes in the concentration camps with ever-increasing secrecy-and I believe to be in a position to prove that they succeeded in doing so.
in the case of the mass killings particular caution is required. On this point the evidence given by the witnesses Hoess, Wisliceny, and Morgen is practically in agreement. There did exist special channels of command from the Reich Chancellery to Wirth, or from Himmler to Eichmann and Hoess. All those witnesses agreed that only a very few were employed and initiated. For the case of Auschwitz, Hoess speaks of about 60 men; for the entire process of extermination Dr. Morgen, in Affidavit SS-65, speaks of only a few hundred. Wisliceny also affirms a number of about 100 for the Eichmann case. The pretense of a mere deportation, which was kept up among the Jews and the personnel accompanying them from the beginning until the horrible end, and
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the fact that confidence men from among the victims themselves were used, made possible the inconceivable fact that hundreds of thousands were murdered without the outside world knowing anything of it. All witnesses stated that the landscape there is deserted and bleak, with occasional chimneys of factories. I shall not re-enumerate the devilish tricks by which primarily the victims themselves, but at the same time the external world and the German people, were deceived.
May I also refer to the evidence given by the witness Von Thadden, who, upon command of the German Foreign Office, visited camps accompanied by numerous foreigners so that they and he himself might become convinced that there was no truth to the rumors about the complaints. Theresienstadt was also visited as an example of one planned separate Jewish settlement and, as the witness Hoess said, conditions there were found to be satisfactory. In 1942 there -%vas published, in the so-called Protectorate, a law concerning the formation of a closed settlement at Theresienstadt (Document SS-95). Thus all the world had to assume that the claims concerning deportation were correct. Why should the SS men, too, who had nothing to do officially with these matters and did not know more than others, fail to believe this? Whether the so-called "Urnsledlung," that is, the deportation, constituted a crime as defined by the Charter, that is another question which will be dealt with later.
Above all, one should not forget that all this happened during the war. The bulk of the SS men were continually employed at the front. The witnesses Brill and Blume gave their total strength at the end of the war as approximately 580,000. Entirely occupied by the action in the field, they knew nothing of what was going on behind their backs. It it was known at all that men in the same uniform served in the concentration camps, they felt no inner relationship to them and had no inner or external contacts with them (witness Hausser; Affidavit Gille and Affidavit Steiner). Quite infrequently personnel was transferred from concentration camps to the front.
The fact that there did not exist in Germany any free dissemination of news was necessarily supplemented by a strict prohibition of the import of foreign newspapers and the listening to foreign stations. Generally speaking, the Government succeeded with those measures. The official statements that the foreign news services contained nothing but propaganda were believed in the Waffen-SS too, because occasionally enemy news had proved to be incorrect. This the Defendant Fritzsche has explained. Finally, this system of prohibition was -supplemented by a well-calculated positive German official propaganda. In 1942 Himmler himself declared, in a speech before the Junker School at T61z, that there were found in the concentration camps mainly criminal elements who, if treated decently, could be educated through positive work to become useful members of society (Affidavits SS-119-122, Von Saucken). Such a contention had to be believed, since the ever-increasing shortage of manpower made it essential to save every human life and to exploit to the utmost all available manpower. Particularly typical in this connection is the Affidavit Rothemund (Affidavit SS-12), because it shows how expedient this explanation was considered by all authorities concerned since it established confidence. This witness testified that at the end of 1943, in his capacity as assistant to the Chief of the SS Personnel Main Office with the RSHA, Amt IV, and with the WI.THA, Amtsgruppe D, he had inquired whether the rumors about the killings of Jews were true. He was answered that that was mere enemy propaganda. The WVHA added that the prisoners were indispensable manpower for the armament industry, without whom Germany could not get along.
Not even the highest authorities of the Reich were in a position to gain insight into the true situation. The witness Von Thadden has given details how, by clever play with truths and untruths, Eichmann succeeded in deceiving the Foreign Office. The examinations of the Jewish camps by the witness, whether alone or in the company of representatives of the protective powers or the Red Cross, gave no reason to suspect the mass killings. Eichmann knew how to forestall further examinations in those camps where exterminations of Jews were carried out by the irrefutable contention that there highly secret armament orders were placed, namely, the production of V-weapons, and that therefore no access could be given to those camps.
I have, furthermore, given proof that the Gestapo, in reply to official inquiries in 1942 or 1943, told the Ministry of Justice, personified by the expert for the
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prosecution of rumor-mongers, Kuehn, that the rumors about the extermination of the Jews in the Eastern territories were mere inventions. This affidavit has been rejected by the Commission on the grounds that it did not concern the SS. May I now apply for the admission of this document?
The Defendant Fritzsche as a witness has also given a number of clear examples how he, in his official position, did not succeed in obtaining a verification of the rumors concerning the persecution of the Jews, but that he had to conclude the opposite as a result of his examination.
Nothing has been given as proof that the bulk of the SS knew anything of the activity of the Einsatzkommandos.
To refute the question of whether knowledge existed of the biological experiments in the concentration camps I. wish to point only to what I consider a grotesque fact-that extensive testimony was taken on the question of whether the witness Goering had known of them. I might state those experiments were carried on only in a few camps and that, as proven by various affidavits, they were carried out only after the prisoners had voluntarily agreed to them; but I am not going to do so because I am not willing to defend them at all, and I do not wish to create such an impression. I am content to, refer to the argument about the knowledge or ignorance of G6ring in this matter, and to the question as to what evidence has been taken in favor of the unknown SS man. There can be no doubt that through the carrying-out of criminal experiments, and through his knowledge thereof, the director of the Ahnenerbe, the witness Sievers, is charged with guilt, but certainly not his co-workers, since those, experiments constituted about one percent of the total research program.
Finally, I would like to quote in regard to the knowledge of those crimes an article which I found in the Berliner Blatter, 1946, Number 1, Page 54. From an article by Oskar Gotz, entitled "The Jew in the Third Reich," I quote:
"We, for instance, in Camp Theresienstadt, considered the gassings in Auschwitz, the other crimes in the death camps of Mauthausen, Maidanek, Ravensbruck, and Buchenwald to be only rumors, in fact, immeasurably exaggerated rumors. The things that actually happened in Auschwitz, for example, did not authentically come to our attention in Theresienstadt before the spring of 1945, when a few survivors returned from Auschwitz after th.6 camp was dissolved. In the interest of a just evaluation of one's contemporaries one must be factual, and should desire to be factual. No guilty person should go free, but no innocent one should be burdened with guilt.
"And in the interest of calming public opinion in the future, a greater measure of objectivity is urgently required."
I wish that this example of objectivity, which someone who was humiliated by the Nazi regime and the SS still managed to preserve, might become ark inspiration to others.
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If now one were to reach the conclusion that, apart from a certain definable, or more or less definable, group of culprits-the witness Dr. Morgen mentioned certain circles of culprits within the concentration camp system-the great mass of the SS had no knowledge of the crimes-although most of them, as well as the rest of the Germans, had no knowledge even of the deportations this fact could be considered criminal under Article 6a of the Charter only if it were in connection with a war of aggression. I have already mentioned before that the bulk of the SS were not aware that they were waging a war of aggression.
Your Honors, President Roosevelt declared in his speech of 25 October 1941, on the occasion of the shooting of hostages by German forces of occupation: "Civilized nations for a long time upheld the principle that none should be punished for the deeds of another person." Justice Jackson declared on 28 February 1946, that: "The aim of declaring the organizations criminal is to punish assistance in these crimes, though the real authors could never be found nor identified."
Can they really not be found? Is the contrary not proved by the great number of trials, whi6h I just mentioned before, for concentration camp crimes before Allied military courts, which pronounced 153 death sentences out of 241 defendants? Does the Prosecution still maintain that they have not yet found the real authors, though for more -than a year all persons who had anything to do with the concentration camps are under arrest, and though all detainees are today grouped in organizations and are at any time at the disposal of the Tribunal as witnesses? All files and documents, too, are in the hands of the Allies. Despite that, and despite the discrepancy of these two quotations by Roosevelt -and Jackson, I shall assume for a moment the point of view of the Prosecution that such a collective criminality exists. Then within its framework the principle still stands that none shall be held responsible for a crime which he did not commit. It means that in this case, too, the number of accused should be held as low as possible.
This limitation can be made in two ways, either separately or combined, according to:
1. The degree of responsibility, that is, the position or the rank held in office;
2. The subdivisions of the whole organization known as SS.
The Prosecution have, to my knowledge, already made this first limitation in their charge against the Party and the Government. From the Party, the Political Leaders only, and from the executives of the German State, the Reich Cabinet members only, are to be put on trial.
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As for the limitation of responsibility, a line must be drawn between moral and legal responsibility. The question must be asked, what ought each individual in his respective office to have done if asked to commit a crime upon order, or if he only heard of such a crime? What could reasonably be expected of him?
As for a limitation according to the subdivisions of the whole organization, this can be justified by the fact, which I have thoroughly explained, that these groups had very definite and separated spheres of activity and differed very much as to their knowledge of other activities, and perhaps crimes. A subdivision as to beginning and end of membership, too, would be conceivable and would permit a collective exception of drafted members.
But even for a sentence limited in such a way it seems to me absolutely necessary, in view of the grave consequences brought about by Law Number 10, to insert in the text of the verdict, or to add to the reasons given for the verdict, that each individual member would have an opportunity to object, except as provided under Law Number 10.
Lastly, I want to draw attention to a procedural obstacle to the conviction sought: the meaning of the accessorial sentencing of a member of an organization as an accused individual belonging to
this organization seems to me the following, according to Article 9: An organization shall be held responsible for the acts of an individual defendant, who is a member, only if between the acts of this individual defendant and his organization such a connection exists.
that for legal reasons accessorial liability of the organization is deemed necessary. Such causal connection exists only if the individual defendant committed the deed as a member of the organization, be it that he thereby accomplished the aims of the organization, or that he used the organization for its commitment. On 28 February 1946 Justice Jackson stated: "Individual defendants, at least one of them, must have been members of the organization, and must have been sentenced for a deed by which the criminality of the organization has been ascertained." In the case of the organization of the SS, which I represent, this means: An SS organization can be declared criminal only if at least one of the defendants belonged to it, and was sentenced for a crime which he carried out either through the organization, or which must be considered a result of the aims of the organization and was committed in their realization.
With one exception, about which I am still going to speak, all the defendants stand before this High- Tribunal for acts which they have performed as the chiefs of important State or Party offices, but not of the SS, and which they carried out in the fulfillment of their tasks. The fact that a few of the defendants held honorary-
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ranks in any one of the SS organizations is not enough to consider the SS organizations co-responsible for deeds for which they were not responsible and in which they did not share.
The Defendant Kaltenbrunner might be an exception. He is indicted in his capacity as Chief of the Security Police, that is, the Criminal Police and Gestapo, and the SD, including those deeds which were carried out by the SD. But the SS organization cannot be incriminated by that. The Criminal Police is not indicted. The Gestapo is indicted as such. The indictment of the SD must also be considered as an independent one. It is true that it was originally connected with that against the SS, but the SD was later given its own defense counsel and throughout the whole proceedings it was treated independently. Since 1934 SD and SS were separated. The sentencing of Kaltenbrunner therefore would, if at all, give only a formal basis for the sentencing of the organizations of the Gestapo and the SD, but certainly not of the SS.
As far as the method of the proceedings is concerned, I might point out that none of the defendants concerned was ever asked whether and to what extent he committed his deeds for the SS, or as a member of the SS. This appears to me to be a shortcoming.
I have come to the end, Gentlemen of the High Tribunal. I said in the beginning that this Trial was a most gigantic criminal trial but nonetheless a criminal trial. And therefore I venture to ask: what purpose, from the standpoint of legal policy, could and would a conviction serve? And I hear the traditional answer-retaliation and deterrence.
Certainly it is necessary to deter, not only the German people and especially the former Nazi formations, but also all those everywhere who might ever be tempted to bow to dictators, or accept anti-democratic methods, and to make them face the severe consequences of the violation of international law, the new universal law now incorporated within the Charter. This Trial should be the last warning to those who do not heed the demands voiced by the world and all its peace-loving citizens, for freedom of speech and religion, for freedom from want and freedom from fear. The, war, the terrible consequences of the defeat, the detention of hundreds of thousands of prisoners of war, the painful months of the proceedings here, the political investigations and occupational limitations-all these carry such impressive and deterrent effects that they will have for all of them the result we hope for.
But, Gentlemen of the High Tribunal, one thing above all: your armies have freed Germany from the tyranny of Nazism; now free the world from the curse of retaliation! The world can recover only when an end is made to the hateful slogans directed against races, nations, classes, or parties.
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I say this, though I know that there will be many SS men, just as there will be many on the side of he Allies, who will fail to understand the meaning of my words. But they, too, sometime, will come to recognize the eternal truth of the word: "We are here to love, n6t to hate."
And thus I would like to summarize my defense of the SS.
I indict every one of the murderers and criminals -who belonged to that organization or one of its units-and there are more than a few of them.
I acquit the thousands and hundreds of thousands of those who served in good faith, and who therefore share only morally and metaphysically, not criminally, the guilt which the German people must bitterly bear.
But I warn the world and its judges against the commitment of mass injustice in legal form, against the creation of a mass of condemned and outlawed individuals in the heart of Europe; I warn, so that the longing of all peoples and men may be fulfilled.
May God bless your judgment!
THE PRESIDENT: Now, I think the SD will come next.
DR. GAWLIK: I will adhere strictly to the ruling of the Court and only read parts of my statement.
May it please the Tribunal-, I do not regard it as my task as counsel for the SD to palliate *injustice or to avoid punishment for the people who are responsible.
In the proceedings against the SD we are not concerned with the question whether individual persons must be punished for crimes committed. It is much more important to determine whether, according to the outcome of the evidence submitted, 3,000 officially active persons and 30,000 purely honorary officeholders, who were collected under the -designation SD in Amter III and VI, can be declared criminal.
I have to deal with this question alone. I have to prove whether the charge made against the SD by the Prosecution is justified on the basis of the Charter and, so far as it is admissible according to the Charter, justified on the basis of international law, of national laws, and of legal principles developed by jurisprudence.
I shall first of all take a stand on the legal problem, in,. order to discuss in the second part of my presentation the factual circumstances under consideration of the result of the evidence. The first part is divided into two sections: In the first section I shall discuss the questions arising from the law itself; in the second, the questions of procedure.
In the material legal part I shall first investigate the question of the organizations and groups in relation to the SD. Then I shall
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investigate, (a); what prerequisites must be complied with in order that an organization or group can be declared criminal, (b), what conclusions can be drawn, from such findings. Finally I shall investigate, (c), whether the basis nulla poena, sine lege is opposed to a sentencing of the SD.
I start with the explanation of the word "SD," the Security Service. The word has no unequivocal meaning. The SD originally referred to:
(a) the SS Formation SD
(b) Amter III, VI, and VIL
These were, as it is shown from the interrogations of the witness Hoeppner, two completely different groups of persons.
(a) The SS Formation SD included all persons who were members of the SS, or candidates, and were employed with the Security Police, or with other organizations of a police character (for instance, the Customs Frontier Protection), or with the SD Intelligence Service. This SS Formation SD had no task and no aims. It exercised no activity for a common general purpose. Its members never met for common service or at other general gatherings. They lacked any feeling of solidarity, since they served independently of each other in different organizations. I refer particularly to the testimony of the witness Hoeppner before the Commission and before the Tribunal. It was purely a matter of a registered compilation of SS members and SS candidates of certain professional groups. The members of this SS Special Formation SD wore the SS uniform with the badge "SD" on the left sleeve. The different branches were thus not outwardly distinguishable.
(b) Amter III, VI, and VII were the Domestic Intelligence Service, the Foreign Intelligence Service, and the Scientific Research Service. They were the SD offices in the Reich Security Main Office (RSHA) which was founded in 1939, in contrast to the Security Police (Sipo) Amter IV and V. Amt VI was merged on 12 November 1944 with the military Counter-Intelligence; both became the German Intelligence Service. I refer here to Document SD-1, and Schellenberg's affidavit, SD-62.
There was, moreover, the Reich Security Service, but that was something else. The Reich Security Service provided the guard for leading personalities of the State. This organization did not belong to the Reich Security Main Office, nor was it part of the SS. The Reich Security Service was under the then Brigadefuehrer Rattenhuber, whose immediate superior was Himmler.
Amter III and VI of the Reich Security Main Office, the Domestic Intelligence Service and the Foreign Intelligence Service, are the ones indicted. ,amt VII, although designated as SD together with
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Amter III and VI, is not indicted. I refer particularly to the minutes of the Commission of 23 July 1946. When speaking in my further statements of the SD, I mean by this only the indicted Amter III and VI. Amter III and VI of the RSHA were not organized until September 1939.
In a formal sense, therefore, the Prosecution can only refer, to the period which has elapsed since that date. In contradiction to this, however, accusations have also been made against the SD with reference to a period before that. , Therefore, against the formal text of the Indictment, I shall also make the time before that the subject of my speech.
Amter III and VI were not indicted separately, but as part of the SS. The Prosecution therefore considers the SS as an organization or group within the meaning of Article 6 of the Charter, and the SD merely as a part thereof. Is this correct? To decide this question, a definition of the terms organization and group within the meaning of the Charter is required.
The American and British Prosecutors, in their opening speeches of 28 February 1946, considered the following prerequisites to be necessary for an organization:
(1) an alliance of persons with an identifiable relationship,
(2)a common general purpose,
(3) the voluntary character of the alliance.
On this definition, which is also in accord with Germ-an jurisprudence (Juristische Rundschau, 1928, Page 688), 1 shall base any further arguments.
The decision, therefore, hinges upon the questions as to whether there existed between SS and SD:
(a) an identifiable relationship,
(b) a common general purpose.
For the period up to the end of 1933 and the beginning of 1934 this must be answered in the affirmative. I refer in particular to the witness Hoeppner. For this period, therefore, the arguments of counsel for the SS are applicable to the SD, and I shall in consequence make no fundamental statements for this period. For the later period the question as to whether an identifiable relationship existed between the SS and SD must, however, be answered in the negative.
The Reich Security Main Office was not one of the offices of the SS Supreme Command, as has been asserted by the Prosecution. Nor is it true that the RSHA was a department of the SS. Here the Prosecution contradicts itself, since the Gestapo, which was Amt IV of the Reich Security Main Office, is not indicted as part of the SS, but separately.
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If the assertion is made in the trial brief against the SS, Page IX, that the SD was an espionage division of the SS, this is obviously, insofar as a division of the SS is meant, a confusion with the SS Special Formation SD. There was no supreme common command over both the SS and SD after 1934.
The connection between the SS and the SD required for the conception of organization was not established through Himmler's person; for in that case this obvious connection must also have existed with the Police, and would have existed even with the Reserve Army, as from 1944. It is true that Himmler strove for the amalgamation of the SS, the SD, and the Police through the creation of a State Defense Corps. This, however, was a plan for the future which had as yet not materialized. Neither was this required union created by the Higher SS and Police Leaders, as they had, as a matter of principle, no essential disciplinary authority over the members of the Amter III and VI.
The recognizable association necessary for the conception of an organization could not have existed since 1934, if only for the reason that only 10 percent of the regular and honorary members of the Organization SD were members of the SS; 90 percent were not members of the SS and did not wear the uniform of the SS Special Formation SD with the insignia "SD." During the war about 50 percent of the SD were women.
Aside from the required recognizable connection between the SS and the SD, a collective general purpose was also, lacking since 1934. For this I refer to the testimony of the witness Hoeppner.
The SD, therefore, was part of the SS only until the year 1934, as an organization according to Article 9 of the Charter. After this period the SS and SD were no longer united in one organization according to the Charter.
Did the SS and the SD during the period after 1934 form a group according to Article 9 of the Charter? It may be doubtful whether the legislator really desired to establish a distinction from a legal point of view between, "group" and "organization." The wording of Article 9 of the Charter might indicate that none exists.
It says there that groups or organizations may be declared criminal organizations. A group, too, can therefore be declared a criminal organization. If, however, a distinction is assumed, I wish to state in this connection the following:
The Prosecution have stated that the concept of the group should be taken from ordinary parlance. When explaining this concept common sense should be used. According to ordinary parlance a group is a numerically small community of persons. Of 15 to 20 persons we speak as a group, not, however, for larger unions. We speak of the fact that groups were formed within a party, or
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within an association. The group is part of the organization, according to ordinary parlance. A group, therefore, is a subdivision of an organization.
In this connection I should like to point to a finding of the Reich Supreme Court of 8 May 1922. This finding states that within a bigger association of persons following some general aims, a group may form in order to pursue a definite individual aim. This may occur particularly if the larger association pursues approved aims with approved means; part of the members, however-perhaps without the others being informed thereof-have united for activities which attempt to further the general aims in a forbidden manner.
Article 9 of the Charter therefore might be explained as follows: We can declare as criminal:
(1) an organization, or
(2) a group as part of an organization.
The SD could have been a group, during the period since 1934, only if it had been part of the SS. This, however, as I already stated, is. not the case. Result: Since 1934 the SD was not part of the SS as an organization or group according to Article 9 of the Charter.
I come to a further question: Were the Amter III and VI a centralized organization or group, or were they two separate organizations in the sense of the Charter?
The Amter III and VI had neither an identifiable relationship nor a collective general purpose. This held good for the time after 1939 when Amter III and VI belonged to the Reich Security Main Office-(RSHA), as well as for the period prior to 1939, when they were united in the SD Main Office. Amt III was the Domestic Intelligence Service, Amt VI the Foreign Intelligence Service.
On the basis of the presentation of evidence it can be considered as proved that the aims, tasks, activities, and methods of Amter III and VI were always completely different. The fusion of Amter III and VI in the Reich Security Main/Office does not suffice to prove a recognizable connection between both agencies, and to establish that they have a general task in common. The Secret State Police, Amt IV, and the Criminal Police, Amt V, also belonged to the Reich Security Main Office. The Gestapo is rightly considered by the Prosecution as an independent organization and has been charged as such. The Prosecution has evidently the same opinion regarding the Criminal Police, against which no charge was made. Just as the Gestapo and the Criminal Police, through union within the RSHA, lose their character as independent organizations, the
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fusion of Amter III and VI failed to create a recognizable connection and common general task for both these offices. The Reich Security Main Office was only the designation of an administrative agency. I r6fer here to a statement made by the witness Best.
The SD, therefore, was no uniform organization within the meaning of the Charter, and Amter III and VI could really only have been two separate organizations, if one were further to establish voluntary membership.
According to the speech of the Prosecution it should not be necessary for each member to be a voluntary one. The Prosecution considers it unimportant if a small part or small percentage did not join voluntarily. Let me point out in this respect that this juridical standpoint does not tally with German jurisdiction. In 1928 the Reich Supreme Court established that for an association, which would correspond to the Charter's concept of an organization, the voluntary contractual union of all members was required. I leave the question undecided as to whether an organization can be considered as existent even though a small percentage of the members did not belong to the society on the basis of a voluntary contractual union, because this point is not of importance as far as the SD is concerned. The examination of evidence has revealed that during the war the membership of a considerable portion of the members of the SD was not voluntary, but based on a legal ordinance, in the form of compulsory service or emergency service. I refer to the deposition of the witness Hoeppner, who revealed that during the war an estimated 50 to 60 percent of the members belonged to the SD by virtue of a legal ordinance. These statements are supported by the affidavits which disclose on an average the same percentages for a number of offices. Moreover I refer to the collective list of affidavits submitted by me on the subject.
The legal prescriptions on which, since 1939, compulsory service and emergency servic6 were based are to be found in Documents SD-65 to 69 submitted by me. I especially refer in this respect to Document SD-65, reproducing the circular of 16 October 1940, in the version issued on 1 July 1942. It is expressly stipulated in this circular that the SD regional agencies, as offices entitled to such claims, can ask for replacements of personnel. Likewise no withdrawal was possible during the war for those who joined the SD voluntarily. In this connection I refer to Affidavit SD-22. It is therefore not -accurate for the Prosecution to maintain that membership in the SD was voluntary.
Consequently, on the basis of the juridical standpoint brought forward by the Prosecution, Amter III and VI cannot for the duration of the war be considered as organizations as conceived by the Charter. Neither- were they groups in the sense of the Charter,
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because a group, as part of the organization, requires the characteristics of an organization, including voluntary membership. As a result, the -following can be concluded:
(1) Until 1934 or thereabouts the SD was part of the SS.
(2) In the period from 1934 to 1939, Domestic Intelligence and Foreign Intelligence were separate organizations.
(3) Ever since 1939 they were no organization or group in the sense of the Charter, because the membership of a large part of the members was based on legal ordinance.
I now come to the question of what characteristics an organization must have to be called criminal.
1. The Prosecution have submitted that the organization
(a) must pursue a purpose which, according to the definition of Article 6 of the Charter, is punishable, or
(b) pursue legitimate purposes through means which, according to Article 6, are liable to punishment.
A further requirement, according to the Prosecution, is that the guilt of the members must be established. This means that the members must have known that the organizations pursued goals termed punishable according to Article 6, or legitimate goals by punishable means.
However, in the submission of the Prosecution an organization can be declared criminal even though not all of its members knew about the punishable purposes. This contention I cannot accept.
Professor Exner established, in detail and convincingly, in his final pleadings for the Defendant Jodl, that the action per se is not a crime, but that guilt must be there also. Without guilt there can be no punishment. Going further, Professor Dr. Exner has established that this principle can also be found in decisions of foreign countries. I refer to the statement made by Professor Exner, and I wish to point to the American Law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law expressly requires knowledge of illegitimate goals. In English law, too, it is a general practice that a person cannot be convicted unless it can be proven that guilty intent was involved.
The argument of the Prosecution, that knowledge on the part of some of the members is sufficient for sentencing the organization, could be upheld if Law Number 10 were drawn up differently; in other words, if by reason of Law Number 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.
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That is not the case, however. Law Number 10 provides for conviction of each member merely by reason of the fact that he belonged to an organization which has been declared criminal. The members can no longer argue in subsequent proceedings that they did not know of the criminal goals and purposes. The opinion held by the Prosecution would thus mean that in subsequent proceedings persons will be convicted who had no knowledge of the criminal goals or activities. This would be contrary to the fundamental principle known to penal law in the entire world-which I previously referred to-according to which proof of objective facts is insufficient for conviction and the presence of guilt must also be proven. In view of this, and since guilt can no longer be established in subsequent proceedings, it is imperative that the guilt of all members be established in this Trial before the International Military Tribunal. Only to the extent that this guilt has been established could the organization, or individual groups as a part of the organization, be declared criminal.
Guilt also includes cognizance of illegality. In this respect, too, I should like to refer to Professor Eimer's argument, whereby he established convincingly that not every serious crime-and only serious crimes are being tried here-must necessarily presuppose cognizance that something punishable is being done, but certainly, that it is wrong to act in that manner. The perpetrator must be cognizant of the fact that he commits an infraction of the law, or that he is acting in a manner considered naturally wrong. Professor Eimer has also established that these principles prevail not only in German penal law, but he also cited a number of examples from English law.
In other words, the members are not only required to know the goals or methods of the organizations, in accordance with Article 6, but must also be aware that these goals or these methods are illegal, or in any case contrary to law. In that connection the question arises whether all members must have such cognizance, or whether it suffices that only some of them have it. Because-for reasons which I already explained-only such a person is liable to punishment who was conscious of the illegality, and because such consciousness can no longer be examined in subsequent proceedings, it must be established in the present proceedings for all members, for otherwise those members might be, punished by virtue of Law Number 10, who did not have this consciousness. To renounce the requirement of cognizance of illegality would unduly raise the demands made on simple members.
The cognizance of illegality may equally be absent when a perpetrator executes an order given. The provision of Article 8 of the Charter merely eliminates superior orders as a general reason for
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exclusion from punishment; but it is possible for an order to exclude the cognizance of illegality in individual cases. He who has recognized the illegality of his action cannot, according to Article 8, justify himself by reference to an order. In a case, however, where a person considers his action right and legal by virtue of an order given him, he must be exonerated. The Provisions of Article 8 of the Charter can only have this sense and this meaning.
The question whether the plea of superior orders furnishes grounds for exoneration is not uncontested in international writings. Article 8 of the Charter rules on this controversial question that the perpetrator cannot plead superior orders. Therefore I do not need to discuss this controversial question in greater detail. All authors, however, who deal with this question assume that the subordinate knew that the order was illegal and unjust. They deal mainly with the question as to whether the subordinate, although he was aware of the illegality and unlawfulness of the order, had grounds for exemption from punishment. It is to be concluded here from that in the absence of such knowledge, which may also be founded on an order, the perpetrator is exempt from punishment.
The French Prosecutor also stated that superior orders do not cover the execution of a deed which was obviously punishable. It would lead to an illogical result if one considered it inadmissible to cite an order as proof of the lack of illegality. He who carried out an act without -an order would not be punished if he lacked the knowledge of its illegality. If, however, he commits the same deed on the strength of an order, he would have to be punished, unless one were to agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. Orders can, however, place the perpetrator under a state of compulsion, and for that reason -exclude guilt.
It is a general rule of English law that any person is protected against punishment who has committed crimes under the stress of force employed by other people, and not as a result of unhindered and deliberate intention. According to English law this protection also exists in the relationship between the state and society, such as between the supreme power and the subjects of the state, and obedience to the ruling powers will act as an excuse if bodily force is exercised or imminent. Thus I arrive at the following result: An organization could only be declared criminal if
(1) its purposes or expedients correspond with the requirements of Article 6 of the Charter;
(2) all members knew these purposes and expedients;
(3) all members were conscious of the fact that these purposes were illegal or unjust.
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This result gives rise to two further questions:
1. A legal one, namely, whether the conviction of an organization can be brought into harmony with the general rules*of international law and national law.
2. A factual one, namely, whether the necessary elements of the case can be established at all for all members of the SD, and whether a trial of this kind can be held at, all.
Before I begin to discuss the legal question I take the liberty of drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing so. It may be assumed that the legislators pursued a purpose in not prescribing the conviction of the organizations as compulsory even if all the necessary conditions were fulfilled. It may be presumed that the legislators who promulgated the Charter desired to submit Article 9 to an examination under the rules of international law.
By this the authors of the Charter apparently, with regard to Article 9, wished to transfer the judge's right of examination to the International Military Tribunal. I expressly emphasize, in order to avoid any misunderstandings, that this refers only to Article 9, because in other respects the Charter is a mandatory rule. The International Military Tribunal was to examine Article 9 to determine whether this rule constitutes a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law especially points to the existence of such an intention. The question as to whether a formal law is in contradiction to other laws cannot be immediately investigated when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars.
English constitutional law, with its special concept of the constitution, does not recognize the judge's right of examination. The Union of the Socialist Soviet Republics does not recognize the judge's right of examination either. In France the judge's right of examination is rejected by the courts, but is almost unanimously accepted by legal scholars. In the United States the judge's right of examination is generally recognized. The courts of the United States are required to compare the laws which have been issued with the Constitution, and to discover the true intentions of both.
I believe that the international community of nations comes close to the federal system of the United States, and that therefore the International Military Tribunal is justified in examining the relationship of Article 9 of the Charter to the generally recognized
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rules of international law and also the laws of individual nations which, according to the statements of Justice Jackson, are likewise to form the legal foundation for the decision.
Concerning Article 9 of the Charter, it must be added that it is a precept unknown to the previous laws. It can obviously be presumed, and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts of prevailing international law and bring it into legal form, and that in doing so they certainly had no intention of placing themselves hi opposition to the rules of international law. All written law, however, requires careful and scholarly examination and revision, to allow a reasonable application in practice to become possible. Only in this way will the courts be placed in a position to reach verdicts which are really in accordance with the facts. The International Military Tribunal, therefore, on the basis of the judge's right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter to the general basic legal principles of international law and the national laws of civilized nations.
In this connection we have to start from the legal significance of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Article 9 varies basically from the corporate penal law as introduced, for example, into English law by Section 2 of the Interpretation Act of 1889. Punishment according to corporate penal law is directed at the organization. According to Article 9, the sentence can no longer affect the organizations, because they have been dissolved and no longer exist. The sentence is directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings according to Law Number 10.
Two other important differences , must be mentioned:
(1) According to corporate penal law, especially English corp6rate penal law, no imprisonment sentence is permitted.
Article 9 is, nevertheless, intended as a basis for imprisonment sentences and even death sentences, as provided in Law Number 10.
(2) According to English corporate penal law, no crimes and offenses can be prosecuted.
If we examine English jurisdiction, we find that corporations have been condemned only on account of transgressions, especially on account of neglect of public obligations, such as failure to repair streets or bridges although such an obligation existed, blocking of a street by a railway company, or for publishing a lampoon.
Article 9, on the other hand, deals with major crimes. Article 9 of the Charter does not accordingly amount to the introduction of corporate penal law into international criminal law.
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A number of foreign laws have been quoted by the Prosecution according to which it should be permissible to declare an organization criminal: from American law, the Law of 28 June 1940 and the "California Act"; from English law, the "British India Act Number 30" of 14 November 1936; from French law, the Law o 18 December 1893, Section 265 of the French Penal Law Code Section 1 of the Law of 26 August 1944; and two legal decisions from Russian law.
THE PRESIDENT: Dr. Gawlik, I believe you are reading too rapidly.
DR. GAWLIK: The following German laws were also cited:
(1) Articles 128 and 129 of the German Criminal Code of 1871,
(2) The Law of 22 March 1921,
(3) The Law of 21 July 1922.
In this connection it should be noted that according to all these laws only individual persons may be prosecuted, and that in the proceedings against such prosecuted individuals it may be established that the organization has a criminal character, without this having a legal effect upon the non-prosecuted members. It may thereby be established in proceedings against some members of the organization that the organization pursues aims contrary to law, while in subsequent proceedings against other members this may be denied.
Non-applicability of sentence against members who are not accused is however the decisive factor which distinguishes these laws from Article 9 of the Charter. The decision according to Article 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before military tribunals, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective establishment of the objective facts in the case, but furthermore an effective establishment of guilt for all the members, including consciousness of illegality, that is to say, a legal effect of hitherto unique significance in penal law.
Thus a verdict based on Article 9 does not amount to a further development of corporate law, nor to the sentencing of individual persons because of the membership in a criminal community of persons, but to a conviction of the collective members of the organizations, because the essential facts, which shall form the basis for later judgments in subsequent proceedings according to Law Number 10, have been effectively established for the collective members. In subsequent proceedings the sole question of membership must be examined. In other words: we are here concerned with the collective judgment of all members of the organization.
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What is the attitude of international law scholars toward the question of collective conviction?
The majority of the American, English,, and French international law scholars reject collective conviction as "arbitrary and contrary to the elementary principles of justice" (Garner in International Law and the World War, Volume 1, Page -154). The well-known authority on international law, Garner, rightly states that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons,. Garner goes on to explain that for that reason a collective conviction should never be employed as long as other just measures fulfill the same purpose. The French legal scholars Bonfils and de Martons have condemned the basic principle of collective punishment in detailed dissertations, expressing the hope that collective conviction would disappear altogether.
These statements should be fully concurred in.
In the proceedings against the organizations past crimes are to be atoned for. In order to achieve this aim, however, the indirect way of convicting the organizations is not necessary. That aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as has been done in a large number of cases.
On the basis of the general basic legal principles of international law and the national laws of civilized states, therefore, use should be made, of the optional rule of Article 9, by refraining from declaring the accused organizations to be criminal. The persons responsible for the crimes can be punished in individual proceedings.
There now arises the question whether it is at all possible in this Trial to establish all the required facts.
To do so would appear impossible. Even to furnish proof that all members of the SD were informed of certain criminal goals would appear impossible. Guilt can always be established for the individual only. All guilt is bound to a person. If many persons participate in some offense or crime, the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, or complicity in a concrete and well-defined manner.
It seems entirely impossible, however, to determine whether all members were cognizant of the illegality and unrighteousness of the goals and tasks. In this connection we must also examine what was to be the standard for members of the SD in determining whether the goals or means were illegitimate or unrighteous. According to the German law in force while the organization was in existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that
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the German legal measures conflicted in part with the provisions of international law, and that therefore goals and methods-while not illegal or wrong according to the law of the German State-can nevertheless be considered illegitimate and unrighteous according to the concepts of international law. But this is not the decisive point. What does count is whether the members, that is, all the members, recognized the illegality and unrighteousness of goals and methods which were legitimate according to German laws.
The well-known teacher of international law, Oppenheim, has stated that the law cannot demand that an individual be punished for a deed which he was forced to commit in virtue of the law. If the best-known authorities on international law cannot agree as to what is right and wrong, can one demand from ordinary members of the organizations that they recognize it?
The capital crimes which were discussed during the Trial, for instance,. the extermination of the Jews, and the inhuman treatment in the concentration camps, require no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the question as to whether primarily the perpetrators, and furthermore all members, knew of the injustice and the illegality, cannot lightly be answered in the affirmative.
Particularly where acts and deeds were committed during the war it is very difficult to decide whether they were recognized as illegal and unjust. In times of peace- everybody knows that he must not kill, and that another's property is inviolable. Such acts are, however, partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain circumstances. The individual who commits the deed, together with all the members, therefore has consciousness of illegal acts committed during the war only as long as he is aware of the limitations which are set by law.
A strict examination of these points in the case of the organization is particularly necessary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of international law are unknown. I believe that this is also the opinion of the Chief Prosecutor for the United States who explained in his opening speech of 20 November 1945 that a soldier assigned to an execution squad could not hold an investigation as to whether the execution was legally admissible.
While examining the question concerning the knowledge of the members as to illegality and injustice, the mistake should not be made of assuming that the simple members of the organization had the same knowledge which we now have gained in this Trial on the basis of documents coming from secret archives. Particularly in
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the proceedings against the SD a great number of secret papers, documents, and regulations have been produced, which were only intended for the internal administration of individual offices. The content of these papers, therefore, testifies that they had not been brought to the knowledge of all members, but only to that of a small definite circle. In this connection I wish to refer for example to the well-known Document L-180, the Stahlecker report, dealing with the activity of Einsatzgruppe A.
It can, therefore, already be said that a great part of the evidence produced by the Prosecution does not suffice for the collective conviction of the members of the SD. The documents do not even prove that the offenders themselves were conscious of illegality, because, in order to establish this, one would have to be familiar, with the particular circumstances of the act. And it must still be proved that the members of the SD knew of these acts and recognized that the acts were illegal, or at least wrong.
I do not consider it necessary to discuss this question in the second part of my statement with regard to each act with which the SD had been charged; in my opinion it is sufficient that I have described the problem in general, and I will leave the examination in individual cases to the Tribunal. In each individual case, however, with which the SD is charged, and with each document submitted against the SD, the Tribunal ...
THE PRESIDENT: Would that be a convenient point to break off?
[The Tribunal adjourned until 27 August 1946 at 1000 hours.]