The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/21

THE TRIBUNAL (Judge Biddle): - that the purposes of the
organization was to overthrow the Government by force or
violence, right?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): And therefore, that the analogy
is not true because the finding as to the organization in
the first trial against the first individual would have no
effect -

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle):  - on the second trial against
the second individual, and that that principle is inherent
in all Anglo-Saxon law because the finding of a fact against
one individual cannot affect the trial against the second
individual, is that your argument?

DR. GAWLIK: Yes.

Certainly, it would be sufficient for the accomplishment of
this purpose if the legal effect went only as far as the
objective determination of the tasks, aims, and

                                                  [Page 142]

activities of the organization and the determination of
guilt were left to the subsequent proceedings.

With regard to Article 10, as it was pointed out -

 - The English is not coming through -

With regard to Article 10, as it was pointed out, the
condemnation of the organizations according to Article 9 of
the Charter contains not only the objective statement of the
aims, tasks, and activities of the organizations, but beyond
this purpose the confirmation of the guilt of the members.

Consequently, Article 9 of the Charter, besides legal
confirmation of objective and subjective factual evidence,
also has a legal criminal meaning.

This juridical aim which is evidently pursued by Article 9
of the Charter can, however, only then be reached if this
decision is so interpreted that the member is sentenced on
account of membership in an organization whose aims or
expedients are punishable according to Article 6 of the
Charter and not on account of any action.

Another interpretation would have no meaning and no purpose.

Only a condemnation of the defendant Kaltenbrunner on
account of membership in such an organization could,
therefore, according to Article 9 of the Charter, justify
the condemnation of the SD.

In consideration of these statements the formal hypotheses
for the application of Article 9 of the Charter do not seem
suitable to me.

It would be supposed that the defendant Kaltenbrunner would
have to be charged on account of his membership in the SD as
a criminal organization within the meaning of the Charter,
and that in this proceeding against the defendant
Kaltenbrunner the character of the SD would be examined. In
this case only would there be a case at hand - as the Chief
Prosecutor of the United States has stated - on the basis of
which the criminality of the SD could be examined. Such a
charge has, however, not been made against the defendant
Kaltenbrunner.

The defendant Kaltenbrunner has not been accused for
belonging to the SD as a criminal organization, but is to,
be sentenced for other punishable offences.

Therefore, taking the statement of the American Prosecutor
as a basis, it must be considered as inadmissible that, for
the proof of the criminality of the SD, evidence has been
produced, which has no connection with the criminal actions
with which the defendant Kaltenbrunner has been charged.

Finally, it must still be proved what connection must exist
between the period during which the accused member belonged
to the organization and the period for which the
organization is to be declared criminal. This purely legal
question is completely different from the question of the
period during which an organization was criminally active.
Here, the matter is only as follows: In the proceedings
against a defendant, can the organization of which he was a
member be declared criminal also for the period during which
he did not belong to the organization.

According to the statements made by the American Prosecutor,
the criminality of the organization has to be tested only on
the strength of the defendant's action. Such action of the
defendants limits the examination as to whether the
organization can be declared criminal, also from the
standpoint of time. The evidence in the proceedings against
an accused member can only justify the decision regarding
the organization for the period during which the defendant
belonged to the organization.

This limit in time is justifiable also for the following
reasons: He who shall be sentenced has the right to be
heard. This right to be heard is not met by making of
statements before the Court. On the contrary it includes the
right to participate in the whole proceedings. According to
Article 9 of the Charter, this right to participate in the
entire proceedings is obviously not to be annulled, but
restricted to only one person of the organization mentioned,
in order to save time, based on the principle that the
depositions of further members as to the aims an tasks and
activities of the organization would be cumulative. A member
who did not belong to the organization during the whole
period for which the organization

                                                  [Page 143]

is to be declared criminal can define his attitude towards
the question of the aims, tasks and activities of the
organization only for the duration of his membership.
According to the principle of legal hearing, it is,
therefore, necessary that a member participate in the
proceedings as a defendant, if he was a member of the
organization during the whole period for which the
organization is to be declared criminal.

For these judicial reasons also the organization can be
declared criminal only for the period during which the
defendant was a member of it. Should an organization be
declared criminal for the entire duration of its existence,
then a member must be indicted who belonged to it during the
whole period.

For judicial reasons the SD, therefore, could be declared
criminal only for the period during which the defendant
Kaltenbrunner was Chief of the Sipo and the SD, that is,
since January, 1943.

The crimes with which Amter III and VI are charged must,
therefore, have been committed during this period.

I now come to the real evaluation of the facts based upon
the results of the evidence. This is my second main part,
and I shall deal with general statements first of all.

The prosecution has submitted a large number of documents in
which the SD is mentioned, thus wishing to prove that the
Amter III and VI were those responsible for them. However,
the prosecution itself has said that in common usage and
even in orders and decrees, "SD" was used as an abbreviation
for "Sipo and SD" (I refer to the Trial Brief against the
Gestapo and SD, Page 19 of the German, and to the German
record, Page 1832).

Even according to the prosecution, a document mentioning the
SD is no proof that this deed must have been committed by
members of Amter III and VI. These may just as well be deeds
of the Sipo. This has been proved by the evidence.

The witness von Manstein, one of the highest military
leaders of the former German Wehrmacht, was heard before the
Tribunal. This witness spoke repeatedly of the SD in his
hearings before the Tribunal and the Commission. When I
asked the witness what he understood by SD, he declared that
he was not quite certain. My further question whether he
believed it to be the Amter III and VI he answered in the
negative.

The shooting of a Commando troop in the north of Norway was
mentioned in the examination of the defendant Jodl on the
witness stand. The defendant Jodl was told that the
prisoners had been shot by the SD. Thereupon the defendant
Jodl declared, and I refer to Page 11014 of the record in
German: "Not by the SD, that is not correct, but by the
Security Police."

I furthermore draw your attention to the affidavit of the
defendant Keitel - SD 52 - who declared under oath that he
only realized during the Trial at Nuremberg that the opinion
frequently reigning also in military circles concerning the
tasks and competence of the SD as an executive police organ
was not correct. Therefore in military language and decrees,
the SD was often mentioned when the competent police organ
with executive power was meant. Keitel declared further that
concerning the competencies of the SD an erroneous
conception had existed which had led to the wrong
interpretation of the abbreviation "SD."

In this connection also I refer to the affidavit of the
former Chief of the General Staff of the Luftwaffe Koller
(Document Jo 58, Page 179 and following in Document Book
Jodl) In this affidavit Koller reports upon a conference
with Hitler to discuss the situation. At this conference
Hitler gave the order to transfer all bomber crews of the
different Allied forces to the SD and to liquidate them
through the SD. Then Koller describes a conversation he had
with Kaltenbrunner after this conference. According to
Koller, Kaltenbrunner made the following statement during
this conversation: "The Fuehrer's conceptions are quite
erroneous. The tasks, too, of the SS are constantly being
misinterpreted. Such things are no concern of the SD."

                                                  [Page 144]

The French prosecution has submitted a great number of
documents in which the SD is mentioned. I have shown these
documents to the witness Knochen, who was examined before
the Commission. Knochen was the Commander of the Security
Police and the SD in France. In connection with these
documents he said that there had been a confusion of words,
and that SD should be interpreted as "police." Upon my
question: "What does transfer to the SD mean?" the witness
Knochen answered and I quote (Commission Record, Page 414):
"This means transfer to the executive section, Amt IV of the
Security Police."

I showed the witness, Dr. Hoffmann, Document 526-PS before
the Commission. Hoffman was an official of the Security
Police and never belonged to the SD. Document 526-PS
concerns the carrying out of a Commando order in a Norwegian
fjord. This report states: "Fuehrer order carried out by
SD."

Upon my question to the witness Hoffmann, what was to be
understood by SD, he answered literally: "Since this seems
to be an executive measure, SD must here be interpreted as
Security Police, since the Wehrmacht often mixed up the two
ideas."

The prosecution has furthermore submitted Document 1475-PS.
This is a report of the commander of the prison of Minsk,
dated 31st May, 1943, in which he reports that Jews had been
brought into the prison by the SD, through Hauptscharfuehrer
Ruebe, and that the gold bridges, fillings and crowns had
been removed from their teeth. In this connection I have
submitted Affidavit SD 69 of Gerty Breiter, a stenographer
employed with the Commander of the Security Police and the
SD in Minsk. Gerty Breiter states that Ruebe was an official
of the State Police, and that the SD in Minsk had nothing to
do with Jewish affairs. The sole activity of the SD in Minsk
was to make reports upon the general moods and opinions of
the public. There were no SD prisons in Minsk.

This confusion of words is apparently due to the fact that
the members of the SS Special Formation SD, which, as I
said, in the introduction, was something entirely different
from the SD Intelligence Service, wore the SS uniform with
the SD insignia.

In the territories occupied by Germans, all members of the
RSHA, including all members of the Stapo and the Kripo, even
those who were not members of the SS or SS candidates, wore
the SS uniform with the SD insignia. Thus every member of
the Sipo was characterized as an SD man, and measures
carried out by the Security Police were considered to be SD
measures. I refer in particular to the Commission Record,
Pages 446-448, German, and to the Court Transcript, Page 14.

THE PRESIDENT: Did you say then that all members of the SS,
including the Kripo and the Sipo, when they were working in
the East, were in the uniform of the SS with an SD badge on
it?

DR. GAWLIK: Yes. The witness has given this in evidence,
your Lordship.

THE PRESIDENT: Go on.

DR. GAWLIK: In this connection I point out that about 90 per
cent of all members of Amter III and VI were honorary, and
only a small part of them belonged to the SS or were SS
candidates (Affidavit SD 32). During the war, a large number
of the members of the SD, Amter III and VI, were women.
These persons were not entitled to wear the uniform of the
SS Formation SD.

According to the subdivisions of the Trial Brief against the
Gestapo and SD, I shall discuss:

  (a) The charge of conspiracy. (b) Crimes Against Peace.
  (c) War Crimes.
  (d) Crimes Against Humanity.

                                                  [Page 145]

I shall now refer to the conspiracy charges. I still do not
have Evidence III of the English Trial Brief against the
Gestapo and SD.

Amter III and VI are accused of having participated in a
conspiracy to commit Crimes Against Peace, War Crimes and
Crimes Against Humanity.

There are three possibilities for an organization to be in
contact with a circle of conspirators:

(1) The organization can belong to the circle of
conspirators. This presumes that all the members of the
organization participated in the agreement or the secret
plan to commit illegal actions or to carry out legal actions
by illegal means.

It must therefore be proved that

  (a) Such a plan existed.
  
  (b) All members adopted this plan as their own.

(2) Organizations can have the aim and the purpose of
supporting participants in a conspiracy. For this it is
required that:

  (a) There must be a secret plan or an agreement.
  
  (b) The organization must objectively have pursued the
  aim of aiding one or more of the participants in the
  execution of the plan,
  
  and
  
  (c) All members must have known of it and desired it.

(3) The organization can be used objectively by
conspirators, to carry out the secret plan without the
members realizing it.

In this case there can be no question of punishable
participation of the organization, because the
characteristic of a factual state of guilt is lacking. The
organization is merely an unpunished tool and cannot be
declared criminal.

1. The prosecution has submitted that not all participated
in the conspiracy, but that all contributed to the offences
(Transcript, Page 1690, German text). This indicates that
the prosecution does not want to contend that the
organizations were participants in the conspiracy. I shall
therefore not deal further with this question.

The punishable support of a conspiracy, also requires -

  (a) the existence of a secret plan,
  
  (b) the knowledge of the members.

Therefore the existence of a secret plan and the members'
knowledge thereof must also be proved.

Hitherto it has in no way been shown that such a plan for
the commission of Crimes Against Peace, War Crimes, and
Crimes Against Humanity actually existed. This has already
been presented in detail by the defence counsel for the
principal defendants, and I do not want to repeat these
statements, but I should like briefly to point out the
following:

A conspiracy cannot be considered proved until evidence is
brought as to:

  (1) When,
  (2) Where,
  (3) Between what persons this common agreement was
  reached, and
  (4) What its contents were.

Even if such a plan should have existed, it has in no way
been shown that it was known to members of the SD, and that,
therefore, they had the purpose in mind of supporting such a
conspiracy with their activity. The prosecution has decided
that such a conspiracy existed in particular from facts
mentioned in the so-called key documents. The facts
mentioned in these documents were, however, kept strictly
secret and were known only to the persons immediately
concerned with them. Members of the organizations which
participated had no knowledge of these things; this can be
assumed as known to the Tribunal.

If the fact of a secret plan for the commission of Crimes
Against Peace, War Crimes and Crimes Against Humanity arises
from the key documents, the members of the SD did not know
this, and therefore did not have the intention of supporting
such a circle of conspirators with their activity.

                                                  [Page 146]

The facts which the prosecution produced to prove that
members of the SD knew of a conspiracy cannot be regarded as
"firm" assumptions, nor as "probable" assumptions, but at
most as "light" or "rash" assumptions which are without
significance.

Furthermore, I believe that the examination of witnesses and
the affidavits have brought proof that members of the SD had
no knowledge that a secret plan for the commission of Crimes
Against Peace, War Crimes and Crimes Against Humanity
existed and that, therefore, there was no intention in the
SD to support such a circle of conspirators with their
activity.


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