The Nizkor Project: Remembering the Holocaust (Shoah)

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I shall therefore go into the reasons why so few
applications have been submitted, and I shall show that this
is not the fault of those affected, or the result of
negligence; not a lack of interest or disrespect of the
Court, but rather that certain definite facts are
responsible for this lack of response.

The announcement in the Press and over the radio at the
beginning of the proceedings regarding the right to be heard
was made at a time when there were practically no newspapers
in the destroyed cities and radios were a rarity.

In addition, because of the paper shortage, it was made in
small print and for the most part was simply not understood.
The Tribunal ordered an announcement to be made in the
internment camps, where a great number of the people
affected are concentrated. To what extent this announcement
actually was made, I have not yet been able to determine.

Mr. Justice Jackson presented various documents this morning
and from them I shall be able to inform myself. The fact
that so few applications have been made gives cause for
concern. But even those people who have obtained knowledge
of their right have apparently not been able as yet to make
application to the Court. At the time of the announcement
there was no postal service between the various zones, and
there is still no postal communication with Austria, where
there are probably tens of thousands of men in custody.

In the announcement to the organizations, because of the
lack of postal facilities, two alternative ways were
provided for submitting these applications. Both of them
proved to be insufficient and are the main reason why we
have so few applications. Those members who are not in
custody were to submit their applications through the
nearest military office.

I know of no cases in which an application was made in this
way. The attempt to use this procedure failed because of the
lack of co-operation on the part of the offices. I could
give an example of this.

The interned members were to submit their applications
through the commanding officer of their camp. Only in the
case of a few camps, weeks and months after the beginning of
the trial, were applications received which had been made in
November, and even then only from some of the camps in the
American and British zones and from a camp in the United
States. From the Soviet, Polish and French zones, as well as
from Austria, and other camps in foreign countries where
there are camps, no applications have as yet been received,
so far as I know. I shall leave it to the Tribunal to form
its opinion of these facts.

The uniformity of the circumstances shows, however, that it
cannot be the fault of the members of the organizations. Of
the many difficulties I should like to give only one
striking example which will give an insight into the
situation. In one camp about four thousand members of
various organizations asked in November, 1945, to be
permitted to make use of their right. A few days ago I was
told in the camp by a guard officer that at that time no
applications were permitted since those in custody,
according to the rules of the camp, could not communicate
with anyone outside the camp. An army order would have been
necessary for transmission of the applications, but there
was no such order and the present restrictions were strictly
adhered to.

Another reason for the non-arrival of applications is the
fact that those concerned feared certain disadvantages.
There was the fear that the commanding officer would take
action against them because of their applications. This fear
was inspired particularly by the fact that the announcement
of the right to make applications was accompanied by the
notice that the applicants would not be granted immunity

                                                   [Page 70]

of any kind. The effect of this is seen particularly in the
case of those members not in custody, from whom only very
few applications have been received, and these very often
submitted anonymously or under false names.

It would be appreciated if the Tribunal could inform the
public that such fears are without foundation and that the
participation of all is sought, so that a false decision can
be avoided. Thereby the inadequacy of the present procedure
for making applications would be remedied.

From all this it can be seen that the first stage of the
making of applications has already shown itself to be so
inadequate that the legal hearing is a mere illusion. But
even those applications that have been received are, with a
few exceptions, worthless, and for the following reasons :
On the basis of the applications the Tribunal is to decide
whether persons should be heard. But for practical purposes
this can happen only if these applications state the
reasons. Either such reasons are entirely lacking in the
applications or they are useless.

An application without such details or an application which
contains in the main mere asseverations and figures of
speech can form no basis for a decision.

Some of the applications do not even mention the official
function of the member in the organization or his civilian
profession. This faulty sort of application can obviously be
traced back, in the case of the men in custody, to an order
issued by the camp commander, which permitted only
collective or group applications or prescribed certain forms
to be followed. All those affected, whether in custody or
not, were not able to set out their reasons intelligently,
because those accused know only that their organization is
said to have been criminal, but they do not know in what
this criminality consists. In. so far as detailed statements
were made, in single cases, they are based on assumptions.

In order to relieve the situation, defence counsel have
visited various camps known to them to clear up the matter
and to get practical information. I shall not go into the
difficulties which had to be overcome. I do not want to
discuss the limitation placed on the length of time that we
could stay in the camp and similar things; but I must
mention that the visits to the camps have been without
success in so far as I have not yet received the sworn
affidavits and the other written statements of the members
made subsequent to our visit, although I know that in one
case they were handed over to the camp commander.

In these circumstances therefore, today, three months after
the beginning of the trial, the technical basis for the
procedure for hearing the members is not yet in existence.
Defence counsel for the large organizations are also hardly
in a position to make up for this delay in a short period of
time. On the other hand, the actual material is extremely
comprehensive, as in the case of the Political Leadership
where there are about fifteen to twenty categories, such as
the Workers' Front, Propaganda Section, Organization
Section, and so forth, which must be examined as to their
functions and as to their criminal character. None of this
can be neglected, and even the appearance of a less careful
treatment must be avoided. I shall not discuss the
difficulties which confront the defence counsel as a result
of the fact that they now for the first time learn from the
prosecution of certain legal questions.

The members in custody are particularly interested that
their case be decided quickly. Nevertheless, I am compelled
by prevailing conditions to propose a motion, namely, that
the proceedings against the groups and organizations that
are to be declared criminal be separated from the main trial
and be carried out as a special subsequent trial. This
motion is also compatible with the particular nature of the
trial as I discussed it at the beginning of my remarks.

I should like to add to my motion a suggestion as to how the
legal hearing might be made possible. This proposal of mine
is occasioned by the proposal made this morning for carrying
out the hearing by means of a "master," that is, I assume a
legal officer of the Allied armies.

                                                   [Page 71]

I cannot object too energetically to this suggestion. In my
opinion, it is one of the main rights of a defence counsel
to collect his own information, and it is the right of every
defendant to speak with his counsel. It would be
incomprehensible that the Allied prosecution, should at the
same time work both for the prosecution and the defence. One
cannot expect that an officer, however unprejudiced would
instruct the defendant and show an understanding of the
latter and his feelings.

My proposal is this: that every camp should have a German
lawyer, who receives his information from the main defence
counsel and instructs the members interned in the camp and
collects information. Then, in a relatively short period of
time, a selection of material can be made by the defence
counsel - a selection of the persons who can appear here, as
well as of the material that can be submitted to the
Tribunal as evidence.

In the proposal made here this morning by the prosecution I
see an elimination of the defence counsel and I should have
to ponder a long while as to what stand I, on behalf of the
defence, would take towards such a proposal.

DR. MERKEL (counsel for Gestapo): Regarding the general
questions concerning the admissibility of declaring an
organization criminal, the technical procedure for the
submission of evidence and the criminal character of the
organizations in general, I refer to what my colleagues Dr.
Kubuschok and Dr. Servatius have said.

I have just a few additional statements to make.

Regarding the question of applications, I can say from my
own experience that it has seemed strange to me too that the
length of time between the submission of applications in the
individual camps, and the arrival of these applications in
the hands of the defence, is so extremely long.

To mention one example, a few days ago we received
applications from a camp in Schleswig-Holstein, some of
which were drawn up in November or December. I myself, in
order to get information, sent letters to the camps. I sent
them five, six and seven weeks ago and I have so far
received no answer.

In the Camp Hersbruck for example, I know that in November
an application for a hearing with reasons given in detail,
is said to have been sent by members of the SS and Gestapo
to the defence counsel - this has been confirmed to me by
reliable sources. Neither the defence counsel of the SS nor
I have received this application.

Very few applications have been received from members of the
Gestapo. In my opinion one of the reasons is that by far the
greater number of internees doubtless do not know that they
are being represented and defended in this trial, for the
announcement sent to the camps was made in November of last
year. Defence counsel for the organizations were not
appointed until the decision of the 17th December, 1945. The
correctness of my opinion can be seen conclusively, I
believe, from the following: About three weeks ago in a
German newspaper, the Neue Zeitung, an article appeared
regarding this question of the organizations, and in this
article it states word for word:

  "The organizations, as is, of course, well known, are not
  represented in the Nuremberg trial."

Thus, if not even the Press knows of the fact that defence
counsel for the organizations have been sitting here in the
front row for months, and have often spoken here from the
lectern, what can one expect the individual internees, who
are living in camps hermetically shut off from contact with
the rest of the world, to know about the facts of the
defence? That is what has to be said on this point.

I also for the rest take the point of view that the question
whether the organizations in their entirety can be indicted
here is an absolute terra nova in the history of
jurisprudence, and that it is something which, in its extent
and its scope and in its effects shakes the very foundations
of jurisprudence. In addition, as has been mentioned,
organizations are to be judged which ceased to exist almost
a year ago.

                                                   [Page 72]

In the criminal procedure of all civilized countries it is a
basic condition that the defendant still be alive.
Proceedings cannot take place against a dead defendant.

According to Mr. Justice Jackson's statements today, the
organizations of the Gestapo and SS, for example, are to be
held responsible for the liquidation of the Jews in the
East; and it is pointed out that because of the death of
millions of Jews, and the impossibility of determining who
the individual perpetrators were, the organizations as such
must be judged in order that the guilty be punished. Of
course, the defence holds the conviction and takes the point
of view that the guilty must be punished, but only the
guilty. It is a fact, for example, that an Einsatzgruppe of
the SD, whose task it was to solve the Jewish problem in the
East, contained on the average only about two hundred and
fifty members of the Gestapo. Considering the total number
of forty-five to fifty thousand members of the Gestapo, this
figure is thus a very small one. In the case of a general
verdict against, for instance, the Gestapo, more than forty-
five thousand people would be affected who had absolutely
nothing to do with this matter. I refer to the example of a
mass murderer who cannot be captured and whose whole family
is taken into custody in his stead and condemned.

In view of the very important statements which have been
made today by the prosecution regarding the question of the
organizations, I ask the Tribunal for permission to state my
attitude to just a few other points ; first of all, as to
the question of the time during which the Gestapo is to be
considered criminal. In this connection I must assert that
at least until the year 1939 the Gestapo was a lawful,
legally established institution. It is also true that the
Indictment refers to crimes which can be charged to the
Gestapo only after the autumn of 1939, that is, after the
beginning of the war.

Today the prosecution has, furthermore, excluded secretarial
and office workers from the Indictment. I am in agreement
with this. It is in accordance with the motion already made
by me in December. I submit further that not only the
secretarial and office personnel but also all other
employees be excepted, because the reason for dropping the
charges against the office personnel is doubtless that the
prosecution is convinced that this office personnel had
nothing to do with the crimes of which the Gestapo is

It should also be considered whether the administrative
officials of the Gestapo, who represented about seventy per
cent of the personnel, should be excluded from the
Indictment. All the five hundred applications received so
far are from such administrative officials. These officials
were trained only in the field administration. They had
neither the training nor the knowledge for the making of
criminal investigators. They could not be used for the
execution of any criminal actions because they had no
executive power. They were active only in matters of
personnel and finance, such personnel matters as the
appointment of officials, promotions, dismissals, and so
forth; such matters of finance as the administering of
budget funds, computing salary and wage lists, renting of
offices, etc. These are all things which have nothing to do
with executive power, and especially not with the crimes
imputed to the Gestapo by the prosecution. In my opinion
these people are just as entitled to exemption as the
secretarial and office personnel, who have already been
exempted by the prosecution.

I should like to touch briefly on one other point of view,
that is, the question of voluntary joining of an
organization - a question which has played an important
role. On 7th June, 1945, Mr. Justice Jackson, in his
statement to the President of the United States, said among
other things, the following:-

"Units such as the Gestapo and SS were fighting units and
consisted of volunteers, people especially suited for and
fanatically inclined to the plans of violence of these
units." To what extent that is true of the SS, I do not
know. As far as the Gestapo is concerned, it certainly is
not true, for the Gestapo was a State organization founded
by the defendant Goering on the basis of the law of 23rd
April, 1933. It was a police authority just as was the
criminal police whose

                                                   [Page 73]

duty it was to track down crimes or the regular police who
were responsible for controlling traffic. The personnel
consisted mostly of established officials some of whom had
been in the police service many years before the creation of
the Gestapo and who, when this police organization was
created and in the ensuing years, were ordered to, detailed
to or transferred to this police authority. According to the
German law affecting civil servants these officials were
obliged to follow such orders. They had never come
voluntarily to the Gestapo. At the most there might perhaps
have been one per cent. who were voluntary members; but
ninety-nine per cent. of the members were forcibly ordered
into the Gestapo on the basis of this law.

That is all I have to say at the moment. I should like,
however, to reserve for myself the right to speak some time
later about today's discussions.

THE PRESIDENT: Yes, certainly. We will adjourn now.

(The Tribunal adjourned until 1st March, 1946, at 1000 hours.)

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