The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/21

For the period before 1939, I refer to the affidavits of
Fromm and particularly to SD 55 of Theo Gahrmann. I draw
your attention to the fact that the English Document Book H
which deal with the persecution of the Churches contains no
evidence against the SD. Documents D-75, 101, 145, 848-PS,
1164-PS, 1481-PS, and 1521-PS contained in this document
book were purely police affairs.

THE PRESIDENT: Go on.

DR. GAWLIK: These statements refer to Document PS-1815. The
principal document of the prosecution against the SD deals
with the persecution of the Church.

I believe I have shown that a collective sentencing of all
members of Amter III and VI, which is the intention of the
prosecution, would not do justice to the tasks and
activities of Amter III and VI.

If the Tribunal, however, should pass sentence on the SD
despite my explanations, then the numbers of persons
affected by this decision will have to be strictly limited
especially because of Law No. 10. The general designation
"SD" should not suffice because of the various meanings of
this word.

It will have to be clarified whether the decision affects:

                                                  [Page 156]

1. Only members of Amter III and VI, which were not founded
until September, 1939, or also members of Central Department
II/I of the SD Main Office.

2. Only the full-time members or also the honorary members.

3. From the honorary members only the collaborators, or also
the Vertrauensmanner (persons entrusted with special tasks).

4. From the Vertrauensmanner only the permanent employees,
or also those who furnished occasional reports.

5. Also the technical personnel, secretaries, drivers,
telephone operators, etc.

High Tribunal, your decision will be a milestone in the
history of law, but it could also be a milestone in the
history of humanity.

The striving of the people is towards peace. Influential
politicians, as well as representatives of legal science
agree that this wish of humanity can only be fulfilled by
independent jurisdiction unbounded by State sovereignty.

James Brown Scott, the President of the American Institute
for International Law, established in a speech delivered in
the year 1926 that the history of mankind is but the history
of the individual on a larger scale. In the history of the
individual the right to take justice into one's own hands
has given way to an arbitration by the parties concerned -

THE PRESIDENT: Go on.

DR. GAWLIK: - and from thence developed the juridical
proceedings of nominating judges and the execution of their
judgments.

Violence is violence; whether between armed men or entire
peoples, who in the case of war have at their disposal the
last resources of their governments.

Today, the people, in their development, as compared with
the development of the individual, are in a state of transit
from the arbitration system to a regular juridical system.
Nature repeats herself from day to day, from generation to
generation, whether in individuals or in such groups of
individuals which we call State or Nation. The International
Arbitration System will be the basis for the regular
juridical system of the United Nations, which is unbounded
by State sovereignty, just as the regular juridical system
has developed out of the arbitration system within the
peoples.

We are at the dawn of this era in the history of peoples, an
era which is the end of belligerent struggles and would thus
fulfil the deep wish of all the peoples. The International
Military Tribunal could fulfil this task in the World
History.

THE PRESIDENT: Dr. Gawlik, I have before me the English
translation of your speech, and on Page 113 of the speech
there appears to be a reference in the paragraph which has
arabic number 1, to the Chief Department of the SD. I would
like to know for the benefit of the Tribunal, what you mean
by the Chief Department of the SD. Do your pages correspond?

DR. GAWLIK: Yes, my Lord. The SD Main Department existed
until 1939. It had the following departments: II-1-(Roman
two, Arabic one) "Gegnerforschung" (Enemy Investigation) and
when the RSHA was founded, that department was transferred
to the Gestapo.

THE PRESIDENT: The Main Department of the SD was transferred
to the Gestapo?

DR. GAWLIK: No, not the entire Main Department, my Lord.
Until 1939 there was a Main SD Department and in September,
1939, the RSHA was founded. The RSHA has only existed since
September, 1939. Before that there was the Main SD
Department, which had various sub-departments; and one
department of the SD Main Office was transferred to the
Gestapo when the RSHA was founded. That department was
called II/1.

THE PRESIDENT: Did the Main Department of the SD cease to
exist in September, 1939?

                                                  [Page 157]

DR. GAWLIK: Yes, then it ceased to exist. And Department II-
2 then became Amt III of the RSHA.

THE PRESIDENT: You are saying, are you not, that II-1, which
was a branch of the Main Department of the SD, was
transferred to the RSHA and became II in the RSHA or Amt II
in the RSHA?

DR. GAWLIK: No, my Lord, Department II-1 cane [sic] into Amt
IV of the RSHA, that is, the Gestapo. Department II-2 became
Amt III in the RSHA.

THE PRESIDENT: At any rate, the SD Main Department ceased to
exist, and all passed into the various Amts of the RSHA?

DR. GAWLIK: Yes.

THE PRESIDENT: Yes.

DR. GAWLIK: We are at the dawn of this era in the history of
peoples, an era which is the end of belligerent struggles,
and would fulfil the deep wish of all the peoples. The
International Military Tribunal could fulfil this task in
the history of the world if by its decision it were to
indicate that it intends to be the Court above all nations,
which is the aim of politicians and of representatives of
legal science. The collective condemnation of the members of
the organizations, however, is not the way to fulfil this
aim, because this would punish the innocent as well. This
Tribunal can only be built up on the principle: no
punishment without the establishment of the guilt of the
individual.

THE PRESIDENT: I do not know that the Tribunal has laid down
any exact order, and I am not sure how far the translations
of the various speeches have now gone, but perhaps counsel
for the organizations know how far their speeches have been
translated and therefore which it is most convenient to take
now.

Is it you, Dr. Laternser?

DR. LATERNSER: Yes, Mr. President.

THE PRESIDENT: We will take the High Command now, then.

DR. LATERNSER: So far as I know, the English translation of
my final plea is completed. The French translation,
apparently, is mostly completed - I have just seen one copy
of it here - but the Russian translation - I do not know
about that.

THE PRESIDENT: Very well.

Yes, Dr. Laternser.

DR. LATERNSER (counsel for General Staff and High Command):
My Lord, gentlemen of the Tribunal:

It has happened more than once in the history of nations
that, after a war, the military leaders of the defeated
party were brought to trial.

If the defeated war leaders or generals could not be
reproached with ineptitude or negligence of their military
duties, they were suspected of treason, of pursuing
political aims, or they were accused of infringing the rules
of warfare or the limitations of their military powers.

There is one feature, however, which must be noted: As a
rule, trials were conducted and verdicts rendered by their
own State, and not by the enemy victors. To find examples
for the latter case, one must go back into history more than
2,000 years. The Romans strangled their enemy Jugurtha in
jail and persecuted Hannibal with their vengeance until they
were able to force the cup of poison into his hands at the
Court of his host. In more recent history, there is the sole
example of Napoleon I, who was banished by the victorious
Powers to St. Helena, where he died: but he was not taken to
account by the victors because he had served his country as
a French general, but because he was the Emperor of the
French, and consequently the political head of his country.

Hitler, who was the Head of the German Reich, and the
Supreme Commander of the Armed Forces, has eluded judicial
responsibility by his death. As he can

                                                  [Page 158]

no longer be dealt with, the prosecution has taken the
highest military commanders instead of the Supreme Commander
and Head of the State, has made them summarily also
political leaders, and attempts in this way to render them
responsible.

This method is indeed unique and without precedent in the
history of nations, and may well be contemplated with
peculiar feelings by all soldiers of the world.

If one thing stands out clearly from the collection of
evidence - and I shall have to deal with this in detail
later on - it is the fact that the German military leaders
did not dominate their country, and did not drive it into
the war, and which is the tragic point, that they were not
politicians, but exclusively, and perhaps even too
exclusively, soldiers. Had they been politicians, Germany
would not have fallen into this abyss. If we keep this
clearly in our minds, it is obvious that these men are
facing trial before this Tribunal in fact only because they
served their country as soldiers.

If the Prosecutor, General Taylor, argues that Hitler could
not have waged his wars without the assistance of the armed
forces, that argument cannot be invalidated. Nobody has ever
been able to wage a war without soldiers. However, what
Carlyle says is true for the German military leaders, as for
all soldiers:

  "If a man becomes a soldier, his soul and his body
  thereby become the property of his commanding officer. He
  is not allowed to decide for himself whether the cause
  for which he fights is good or bad. His enemies are
  selected for him, and not by him. It is his duty to obey
  and to ask no questions."

If the German military leaders are today indicted before
this Tribunal as an allegedly "Criminal Organization," this
indictment does not only apply to them, but is also in fact
directed - however strongly it may be desired t6 deny this
publicly - to the soldiers in general, or at least to the
military leaders as a class.

By indicting the military leader who, obeying the orders of
his Government, has fulfilled his military duties, because
the prosecution declares the action of his Government to be
illegal and represents him as a partner to such action of
the Government, the prosecution places upon him the
obligation to examine the legality of his country's policy,
and raises him to the position of a judge called upon to
give a verdict on the policy of his State.

It cannot be my task to present the consequences of such a
mental revolution for the soldiers of the world. I can only
ask the Tribunal to consider with particular care and in the
consciousness of its peculiar responsibility, these special
circumstances, when it applies the principles of the Charter
to the special position which the soldier occupied both in
fact and in law. Whenever a noble judge, after careful self-
examination, comes to the conclusion that all sorts of
reasons might tempt him to be prejudiced against a
defendant, he will feel an obligation to weigh the evidence
with special care, and to ask himself again and again
whether he is guided by a genuine appreciation of the facts,
or rather by a sentimental attitude.

Now, in this case, where one party is passing judgment on
the other - the prosecution modestly calls this a flaw -
where the judges are exclusively from nations against whom
the defendants fought as soldiers, in this case, I say, the
judge is required to do something that is humanly almost
impossible, namely to free himself, in the interests of the
future of mankind, from the feelings engendered by the
struggle which has just come to an end, and by the passions
which were whipped up in its course. I conduct the defence
in the expectation that, as regards the German military
leaders whom I represent, this Tribunal will not exercise
retaliation, but will render justice, in truth and in the
highest meaning of the term.

The whole Indictment is based on the attempt to collect 129
high-ranking officers of the German armed forces, who
occupied certain service positions in the military
hierarchy, under the double designation "General Staff and
OKW" in a "group" both in law and in fact.

Before dealing with the legal aspects of the alleged " group
character " I must present some observations on the term
"General Staff" and "High Command" (OKW).

                                                  [Page 159]

There never existed during Hitler's time a General Staff for
the whole armed forces, as the prosecution obviously seems
to think, along the lines of the "Great General Staff" of
the former Imperial Army.

The Navy neither had an Admiral's Staff nor Admiral's Staff
officers. The "Naval War Staff" set up in autumn, 1938, was
also in no way similar to a General Staff. The Navy only
participated in the functions of the Army, and of the armed
forces in general, to the extent to which operational co-
operation was required in individual cases.

The Air Force had a General Staff of its own, consisting of
the Chief of the General Staff and the General Staff
officers. Its functions, however, were sharply distinguished
from those of the General Staff of the Army and were limited
to the Air Force's own sphere of activity. Co-operation
between the two existed only in the case of joint
operations.

Nor was the General Staff of the Army itself, as the
prosecution seems to think, a central agency, but it
consisted likewise merely of the Chief of the General Staff
and of the General Staff officers.

How little the position of this General Staff corresponds to
the picture drawn by the prosecution results from the fact
that its first Chief of the General Staff, General Beck, was
only received twice by Hitler during his whole term of
office from 1935 to 1938.

The "General Staffs" of the Army and of the Air Force, which
actually existed, are not in the least concerned with the
Indictment, for the indicted 129 officers did not represent
these General Staffs as an entity; out of the whole group,
the sole members of these General Staffs were General Jodl,
as Chief of the Operations Staff (Wehrmachtsfuehrungsstab),
the Deputy Chief of this Staff, and the Chiefs of the
General Staffs of the Army and the Air Force. All other
generals were not General Staff officers, but troop
commanders. A great many of them, namely 49 out of the 129
officers, were not even members of the General Staff at an
earlier date. If the prosecution nevertheless gives this
group of persons the name of "General Staff," then this
amounts to the same thing as if one in the Roman Catholic
Church indicted the Order of the Jesuits but really meant
the Cardinals.

The term "General Staff," therefore, does not cover the 129
indicted officers, but all the General Staff officers who
are not in the least concerned with the Indictment. It is
misleading and arbitrary. A verdict based on the designation
"General Staff" would be directed against an institution,
the members of which are not indicted.

The "High Command" (OKW) had even less the importance of an
independent and central leading agency. The proceedings
before this Tribunal have clearly shown that it was only
Hitler's military operation staff, and that it had no
independent powers of its own to give orders. Only four out
of the 129 persons ever belonged to the High Command. None
of the others are covered by this designation.

The double designation "General Staff and High Command" does
not improve matters either. What is here called "General
Staff and High Command" actually represents all the officers
who occupied the highest positions in the course of this
war. They were nothing but the heads of the military
hierarchy, sharply divided among themselves according to the
three service branches. The only link between these high
ranking officers was their relation within the military
hierarchy, their common professional ethics, and the spirit
of comradeship, as is the case in all armies.

The term "General Staff and High Command" is therefore an
accumulation of wrong designations - arbitrarily selected in
order to pretend that there existed a combination of
something that was never either combined or capable of being
combined. As regards the 129 officers neither the name
"General Staff" nor the designation "High Command," nor the
combination of these two designations,

                                                  [Page 160]

"General Staff and High Command," produces a definition
covering the functions and all the persons concerned.

The erroneous designation in itself might perhaps be no
obstacle to a condemnation if it could be replaced with a
more correct name. The term often used by the prosecution,
"Highest Military Leaders," or the designation "Holders of
the Highest Ranks in the German Armed Forces" would
substantially cover the total number of the indicted
officers more adequately than the erroneous term "General
Staff and High Command." But both designations would only be
a loose definition and constitute a clear indication of the
fact that there existed a multiplicity of persons, but could
never be considered as a proof of the existence of any kind
of combination of these persons.


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