The Nizkor Project: Remembering the Holocaust (Shoah)

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[SIR DAVID MAXWELL FYFE, Continued]

THE SA

VOLUNTARY MEMBERSHIP

Before dealing with the evidence against this organization,
I would say a word upon the question of voluntary
membership. Counsel for the SA has argued that membership
was not voluntary; it is said that great pressure was
brought to bear upon the German people to make them join one
or other of the Nazi Party organizations and that, in the
case of certain sections of the SA, not only was pressure
brought to bear but membership was enforced by decree. On
the evidence to which I shall draw your attention you may
well think that if, as in certain cases there undoubtedly
was, pressure was exerted upon individuals to join the
Party, and in some cases, perhaps, to join this particular
organization, the consequences of refusal as they have been
pictured by the defences are very much exaggerated. It is
submitted that even if you accept without qualification the
evidence of some of these witnesses as to particular cases
of compulsion, the evidence which you have as to the
organization as a whole is perfectly clear: the membership
was from the first until the last voluntary; never was there
at any time compulsion recognizable in law as such, either
physical or as a result of legal decrees.

The English law upon what constitutes physical compulsion
sufficient to excuse crime has been clearly established for
many years and is stated in Halsbury's Laws of England
(Hailsham Edition, Vol. 9, pp. 23-24, Para. 20) in these
words:

  "A person compelled by physical force to do an act which,
  if voluntarily done, would be a crime, is free from
  criminal responsibility, but the person compelling him is
  criminally liable.
  
  The use of threats inducing a person, from present fear of
  death, to join with rebels is, it seems, an excuse, so
  long as the person is under the influence of such fear.
  {LINK-HALSBURY1}
  
  Subject to this exception, a person who commits a crime
  when influenced by threats or 'moral force,' or by the
  confining of his person, or by violence not amounting to
  actual compulsion is not excused. {LINK-HALSBURY2}

                                                  [Page 265]

  Necessity, in the sense of compulsion arising from hunger
  or from imminent danger to a person's own life or
  property, is no excuse for crime." {LINK-HALSBURY3}

Let me shortly discuss the evidence upon this point. The
general service regulations for the SA published in 1933
laid it down that:

  "He who cannot or will not subordinate himself is not
  suited to the SA and has to withdraw."

The Organization Book of 1940 states:

  "Service with the SA is and remains voluntary .... As in
  recruitment for the SA no advantages may be promised and
  no pressure whatever may be exercised. The SA man should
  have the possibility to withdraw."
  
The witness Juettner agreed with that statement as correct.
He was asked:

  "Did it always remain a fundamental principle of the SA
  that membership should be voluntary?"

and answered:

  "That was always the principle adhered to by the
  leadership."

He was asked again:

  "If a man no longer agreed with the SA views, was he
  expected to withdraw?"

and answered:

  "Numerous men left the SA for a variety of reasons."

By no stretch of the imagination can the evidence given in
respect of the Reiterkorps be said to constitute compulsion,
physical or by decree. It is true that the original riding
organizations were arbitrarily amalgamated into the SA, but
as the witness Walle, called on behalf of this branch of the
SA, himself admitted:

   "Membership in the SA was voluntary in 1933 and this did
   not change ... A man could resign from the Reiterkorps
   but he had to give up his sport inasmuch as the riding
   installations were no longer at his disposal."

"The Riders' Association," he said, "submitted to the
process of co-ordination because it enabled them to continue
their athletic activity."

You may think that it was during the years 1933 and 1934
that the activities of the SA were more obviously criminal
to all the people of Germany than at any other time. How
then can the loss of "sporting activities" constitute
compulsion and afford an excuse for membership? Is the risk
of the loss of a horse and stable to be regarded as legal
justification for participation in murder?

It should be remembered also that both in the case of the
Reiterkorps and the Stahlhelm, although those organizations
may have been amalgamated with the SA by legal decree, there
is no evidence before you that the decrees contained one
word which might be construed as compulsion upon individual
members to take up membership in the SA.

The Stahlhelm is in much the same position as the
Reiterkorps, except that the evidence that Juettner gave
before the Commission is clearer still. Let me quote from
the transcript of his evidence:

  Q. There was nothing, was there, to stop a member of the
  Stahlhelm withdrawing from the SA when the two
  organizations were combined in 1933?
  
  A. As far as I was concerned in my district no member of
  the Stahlhelm who did not desire to do so would have been
  compelled to join the SA.

                                                  [Page 266]

  Q. And that goes generally for the whole of Germany, does
  it not?
  
  A. It is reported that there were instances in which
  members, of the Stahlhelm agreed to transfer only because
  it was ordered.
  
  Q. But there is no instance where a man was forced to join
  or continue his membership?
  
  A. No, sir."

Almost pathetic evidence was given of the fate that awaited
civil servants if they refused to join - refused to join not
the SA, be it noted, but any Party organization. But the
witness Boley, who himself gave this evidence, showed how
exaggerated it was when he admitted to the Commissioner that
in those offices in which he was himself employed, only 18
per cent of the civil servants had become members either of
the Party or of one of its organizations. And those offices
were the Reich Finance Ministry and Reich Chancellery - the
very heart of the Nazi Government.

The witness Freiherr von Waldenfels is another outstanding
example of how a German who had the character to stand up
for what he believed to be right could continue to do so
without any dire results. Himself a civil servant and a
leading member of the Stahlhelm in 1933, he resigned on its
amalgamation with the SA, refused to join the SA , the Party
or any other Party organization, yet nevertheless continued
to hold his position until the end of the war.

Evidence has been given by the defence that university
students were compelled by decree to become members of the
SA. This contention has been supported by an order of the SA
University Department in Munich, dated 16th April, 1934,
which is contained in the SA Defence Document Book.

Upon that document I make two submissions: First, the
references to "SA service" do not connote membership of the
SA, but a course of training under SA direction; secondly,
the sentence in Paragraph 3 "All newly matriculated students
are therefore bound to join the SA" is not in accordance
with the policy of the SA leadership and does not represent
the practice in universities generally.

We have submitted to you another similar order, issued by
the SA University Department at Cologne two days before.
When that order is read with the Munich order it becomes
apparent that this submission is well founded.

Paragraph 1 of both orders is identical. All students are to
be "regimented by the SA University Department in order to
be physically and mentally trained in a uniform manner in
the spirit of the National Socialist revolution." In
Paragraph 2 it is expressly stated that it is a matter of
indifference whether they are members of the SA at all.
Paragraph 3, while following the same form in both orders,
differs essentially. In both cases the orders are said to be
based upon the same decree of the Supreme SA Leadership of
27th March, 1934. We have not seen that decree, but
Paragraph 3 of the Cologne order makes it clear that
membership of the SA was not intended to be compulsory, as
is suggested by the Munich order. It is evident also that
the SA service, with which both orders are concerned is
something different and independent from membership of the
organization. How can compulsory "SA service" mean
compulsory SA membership when is expressly stated that,
except during the eleven days from 25th April to 5th May
there is a ban on the enrolment of new members? The next
words in both orders mark the essential difference between
the two. In Munich students "are therefore bound to join the
SA," while in Cologne they are "thereby offered the
possibility of joining the SA." If the SA service which was
to be compulsory for all German students connoted membership
of the SA, there could be no question of "offering" them
"the possibility" of joining. You may think that in Munich,
the heart of National Socialism, the decree of the Supreme
SA Leadership of 27th March was deliberately misinterpreted
to suit the desire of a particularly fanatical Sturmfuehrer.
On the face of the documents it is apparent that whatever
was happening in Munich was not characteristic of every
other university in Germany.

                                                  [Page 267]

Juettner confirms the case for the prosecution. He states:

  "I have already stated that in some instances pressure has
  been exercised by organizations outside the SA, for
  instance, in the case of students and in the case of
  financing schools."

But in answer to the question:

  "There was nothing which compelled a student to join the
  SA if he disapproved of what the SA stood for?"

He said:

  "I share that opinion."

The fact is as he explained: where organizations were
amalgamated with the SA "the vast majority of men were proud
of the SA and proud to serve in the SA." If further evidence
were wanted of the voluntary nature of this organization,
both in theory and in practice, it is to be found in the
steps which were taken by the SA leadership itself to reduce
its membership after the large influx that had taken place
in 1933 and 1934, by the incorporation of such organizations
as the Stahlhelm and Reiterkorps and by the large numbers of
candidates that flocked to every Party organization after
the Nazi seizure of power. From 4,500,000 in 1934 the
membership of the SA had dropped to 1,500,000 at the
outbreak of war in 1939. Juettner explained the causes of
this reduction. It was due partly to the Kyffhauserbund,
another old soldiers' organization, being excluded from the
SA. But it was due also to the introduction of examinations
for their members, failure to pass which resulted in
dismissal, and to the fact that those who "for reasons of
their occupation were unable to do us a service and
accordingly did not cheerfully continue to serve us in the
SA" were also dismissed. Such a weeding out and reduction in
numbers from 4,500,000 to 1,500,000 in five years is hardly
compatible with the story of the whole of the German youth,
the whole of the German civil service and of the population
generally being compelled to become members of this
organization. It is submitted that this is conclusive
evidence of its voluntary nature.

How can it be maintained that all civil servants, whose
total number the witness Boley gave as 3,000,000; 1,000,000
Stahlhelm members; 100,000 students; 200,000 Reiterkorps
members; and others besides, were all compelled to join the
SA, when the total membership of that organization in 1939
was only 1,500,000?

It may well be that upon a small unwilling minority pressure
was brought to bear; that the consequences of refusal would
have been serious. But this issue is to be decided upon
recognized and established principles of law. Even were it
not so, could we feel sympathy for these people? Did they
show sympathy for the thousands of their fellow countrymen
who were taken to the dreaded horrors of the concentration
camps? Did they sympathize with the thousands of Jews who
were slandered and persecuted unceasingly over the years?

EXCLUSIONS

You will remember that, when certain questions in connection
with the organizations were argued before you in February, I
stated on behalf of the prosecution that we did not seek a
declaration of criminality against certain sections of the
SA. We excluded:

1. All wearers of the SA Party badge who were not strictly
members of the SA.

2. Members of the SA Wehrmannschaften who were not otherwise
members of the SA. You may well think, having heard the
evidence that you have of the crimes committed by the
Wehrmannschaften in Poland and in the Eastern territories,
that that branch of the SA ought not to be excluded.
Nevertheless, we feel that many members of the units which
were involved in those atrocities were also members of the
SA proper, and we therefore respectfully submit that our
original statement can properly stand.

3. Members of the SA reserve who at no time served in any
other formation of the organization.

                                                  [Page 268]

4. The National Socialist League for Disabled Veterans.

It has been reiterated time and again that the prosecution
are anxious to obtain a declaration of criminality only
against those who bear a major responsibility for the crimes
that have been committed. In view of this, and in view of
the evidence that has been presented to you since February,
we desire respectfully to recommend certain additional
exclusions from among the general membership of this
organization.

First, the total strength of the SA in 1934 was given you by
Juettner as 4,500,000. That figure included 1,500,000
members of the Kyffhauserbund. Shortly after the
amalgamation of that organization with the SA in 1933 the
two were again separated. We respectfully recommend the
exclusion of all those members of the Kyffhauserbund who did
not retain their membership of the SA after that;
separation.

Secondly, we believe that we are also justified in asking
for the exclusion of certain sections of the Stahlhelm. So
that you may understand the grounds for this recommendation,
it may be of assistance if I briefly remind you of the
structure and history of that organization. It was composed
of:

  1. The Scharnhorst, which was the Stahlhelm youth
  organization for boys under 14, with a strength of about
  500,000.
  
  2. The Wehr Stahlhelm, which included the Jung Stahlhelm
  (boys from 14-24 years of age) and the Stahlhelm sports
  formations (men from 24-35 years of age). The total
  strength of the Wehr Stahlhelm was 500,000.
  
  3. The Kern Stahlhelm, which consisted of men between 36
  and 45 years of age. Its strength has been given as
  450,000.

The total strength of the Stahlhelm was therefore
approximately 1,500,000 me and boys.

In 1933 the Stahlhelm was placed under the control of the
Nazi Party. The Scharnhorst was transferred to the Hitler
Jugend; the Wehr Stahlhelm to the SA proper; and the Kern
Stahlhelm to the SA Reserve. Since we have already excluded
the SA Reserve we are left to consider only that part of the
Stahlhelm which was incorporated into the SA proper -
500,000 members of the Wehr Stahlhelm.

You have evidence both from witnesses and from documents
contained in the defence document book that many of these
500,000 Stahlhelm members were opposed to their transfer to
the SA and to the policies and aims of the SA and the Nazi
Party. Many, including the witness von Waldenfels, refused
to join the SA. It is a possible hypothesis that many more,
although opposed to the policies of the SA, were prepared to
join, in view of the assurance that was given to them that
they would retain their independent character, identity and
leaders in the same way as did the Reiterkorps, and that
they would never be called actively to associate themselves
with the SA proper. On the other hand, there can be no doubt
whatsoever that many wholeheartedly joined the SA and
participated to the fullest extent in its criminal
activities. Juettner himself is an example, and he declared
that he was by no means the only one. You will remember his
evidence:

  "Numerous SA men came to me in the first few months, who
  had formerly belonged to the Stahlhelm; like myself, they
  felt regret that their fine old organization was no longer
  in existence. But together with me they hailed the fact
  that they were now permitted to participate in this large
  community of the SA."

Speaking of his own district, he said:

  "Really, after 1935 the nucleus of the SA was my old
  Stahlhelm organization; therefore many Stahlhelm men
  remained in the SA."

To exclude the whole of the Stahlhelm would entail the
exclusion of men like Juettner and many other Stahlhelm
members who were to form the nucleus of the SA.

                                                  [Page 269]

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