The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

DR. LOEFFLER: I ask the Tribunal that I be permitted
to make one more remark.

In my previous request I did not ask for the exemption of
one particular group, namely, the Stahlhelm; this was only
because, according to my information, the Stahlhelm was
transferred in its entirety to the SA Reserve after the
seizure of power and, therefore, in my opinion, is included
in the declaration made yesterday by Justice Jackson,
exempting the SA Reserve.
                                                   [Page 83]
DR. BABEL (counsel for the SS and SD): May it please the
Tribunal, I should have considered it appropriate in the
interest of a speedy trial that the defence should not
answer the inquiries of the Tribunal and reply to the
arguments of the prosecution, until it has received in
writing the extensive and important arguments of the
prosecution, and is thereby in a position to deal with the
whole complex of problems comprehensively and
conclusively.Since a number of defence counsel for the
organizations have already spoken, I feel prompted to do the
same, in so far as I am in a position to do so at this time,
and consider it necessary and appropriate.The Tribunal
desires to have a discussion in order to define the legal
concept of a criminal organization, and desires in
particular to examine the question of which qualifying
elements of a factual nature are necessary in order to
declare an organization criminal. The defence believes that
a final and basic definition of this concept,  which is
entirely new to any legal system, can be given only at the
end of the proceedings by means of a special hearing of
evidence, after all necessary factual information has been
collected and examined.The prosecution has already presented
a definition, which, however, raises very serious
objections, because it is derived from legal ideas which
have developed in countries other than Germany, under
different conditions and circumstances, and involving far
less important legal consequences than those now considered
by the Tribunal, the public opinion of the world, the German
people, and jurisprudence and jurisdiction in general.The
organizations now indicted are mostly large mass
organizations, without aims and ideas of their own,
organizations whose Party-political aims and purposes   -and
Party activities - developed to national dimensions.A just
and pertinent definition can be found for these
organizations only on the basis of the evidence to be
presented concerning the nature and aims of these
organizations and the knowledge, intentions and activities
of their members. Considering the basic difference of the
organizations which have been and are now being
investigated, it is more than questionable whether it will
be possible to take the legal basis applied so far to single
cases, as a basis for proceedings against political
organizations comprising millions of people.The prosecution
and the defence are probably agreed that the Indictment is
actually not directed against the organizations, which do
not exist any more, but in fact against the former
membership. Likewise the opinion seems to be held
unanimously that the Tribunal as a matter of principle will
give the members an actual opportunity, not only a
theoretical one, to be heard on the question of the criminal
character of the organizations. That follows all the more
since, according to Law No. 10, the possibility seems to be
excluded that the members may make essential objections in
regard to the organizations and their own person during the
subsequent individual trials. If the Tribunal does not
measure the responsibility of the entire organization on the
basis of  the responsibility of the individuals comprising
it, the danger of collective liability arises, which would
create a degree of injustice affecting individuals in such a
way that it would be much worse than the justly attacked
"Sippenhaftung" of the Third Reich, which, by criminal
methods, aimed at involving innocent members of the family
in proceedings taken against anyone of its members.In order
to define a criminal organization, evidence and information
as to the knowledge, intentions and actions of the members
of the organizations must be provided; similarly, before
convicting individuals, either singly or in the mass,
justice and human dignity alike demand that they should each
be informed of the indictment, and should each have an
opportunity to be heard in their own defence. This
requirement is imperative in view of the serious legal
consequence threatening the members of the organizations in
case of a verdict against them, e.g., loss of property, long
term imprisonment, and even the death penalty.Last but not
least, the hearing of all members of the organizations is
                                                   [Page 84]
necessary because the unrestricted compilation of judicial
evidence appears to be inevitable in order to work out the
legal definition of criminal character.
The defence does not ignore the fact that, considering the
scope of the trial, these basic demands are confronted with
tremendous difficulties. The scope of the trial, however,
should not reduce the thoroughness of the procedure but, on
the contrary, should increase it.May it please the Tribunal,
there are businessmen who are owners of several firms. If,
then, the owner uses one of these firms to commit criminal
acts, can we say that the other firms and their employees
are also criminal?On the basis of this principle, I consider
it necessary to point out which organizations, according to
the reasons given by the prosecution so far, are affected by
the Indictment as units of the SS. They are:-

1. The general SS; strength at the beginning of the war,
about 350,000 men. This number includes a variety of special
units such as cavalry, motor, information, musician, and
medical units.2. The Waffen-SS, of which, at the end of the
war, there were still under arms about 600,000 men. In the
overall number of Waffen-SS must be included about thirty-
six divisions of combat troops and a large number of reserve
units of the Reserve Armed Forces, as well as all those who
were discharged from the Waffen-SS or who left in some other
way. The verdict in this trial would also affect the honour
of the dead and the fate of their surviving relatives, so
that the dead also will have to be included in this number.
Consequently, the total number of members of the Waffen-SS,
especially when including those discharged as unfit for war
service, would be many times larger than the figure
representing the final strength.On the basis of
investigations under way, the defence will submit still more
accurate figures, unless this is to be done by the
prosecution, which in my opinion ought to submit to the
Tribunal the information necessary for a verdict.3. The
Deaths Head Units; before 1939, about 6,000 men.4. SS troops
for special employment, including Adolf Hitler bodyguard;
before 1939, about 9,000 men.

5. Honorary Leaders of the SS, whose number will probably
turn out to be very large as, for instance, the Farmer
Leaders (Bauernfuehrer) of the Reich Food Estate
(Reichsnaehrstand) down to the District Farmer Leaders
(Kreisbauernfuehrer) were for the most part appointed
honorary leaders of the SS. Similar conditions prevail with
respect to the chiefs of several branches of the State
administration, who were often made honorary leaders of the
SS without any initiative on their part, and without being
able to do anything about it. Likewise many leaders of the
Reich Veterans' League (Reichskriegerbund) received honorary
ranks in the SS.6. The "sponsoring" members of the SS among
whom were also many non-Party members; their number is not
yet known but it is certainly very considerable.7. SS
Auxiliaries of the Army Post Offices (SS Fronthilfe Deutsche
Reichspost).8. SS Building Units.9. SS Front labourers.

10. The entire Regular Police to whom belong:

(a) The Municipal Police of the Reich with several special
units, as traffic squads, accident squads, information,
cavalry, police dog squads, radio and medical units.

(b) The Rural Police (Gendarmerie), with innumerable
stations and posts, distributed all over the country, even
in the smallest villages, and which had rendered service
without essential changes since Napoleon's time; the
motorized Rural Police supervised traffic.(c) The Municipal
Police of communities in small villages and market towns.(d)
The Water Patrol (Wasserschutzpolizei).(e) The Fire Police.
The technical auxiliary police units . . .

                                                   [Page 85]

THE PRESIDENT: Dr. Babel, you are going rather fast if you
want us to take down these categories.

DR. BABEL: Mr. President, I shall submit a copy to the

THE PRESIDENT: Personally, I prefer to understand the
argument when I hear it.

DR. BABEL I repeat.(f) The Technical Auxiliary Police Units:
The Technische Nothilfe; the regular and factory fire
brigades and voluntary fire brigades.

(g)Police and Gendarmerie Reserves.(h) The Air Raid Police,
with security and auxiliary service. (i) The City and Rural
guard (Stadt und Landwacht).Further, there belonged to the
Regular Police a great many central institutions, such as
the State Hospital for Police, the Police Officers' Schools,
the Technical Police School, the Police Sports and Cavalry
Schools, Police and Rural Police Schools, the Water Patrol
and Reich Fire Brigade School, the Driving and Traffic
Schools, the Air Raid Precautions. Teaching Staff, the
School and Experimental Station for Police Dogs and the
Horse Depot of the Police.In 1942 all the above-named units
of the Regular Police, including the police troop units,
totalled about 570,000 men. If we follow the presentation of
the prosecution, then all the groups, institutions and
organizations enumerated so far belong to the SS.11. All
those units of the Security Police which did not belong to
the separately indicted Gestapo and SD; that is, offices and
officials of the criminal police.12. The Office for Racial
Germans who are not German citizens.

13. The Offices of the Reichskommissar for the Strengthening
of Germanism.14. National Political Schools.

15. The "Lebensborn" Society.

16. The SS Female Auxiliaries.

All these groups, institutions, and sub-organizations were
under the administration and jurisdiction of the SS.

By way of summary, the defence estimates the group of
persons indicted as SS members at several millions. The
verdict, however, will also affect the members of the
families of all SS members, at least indirectly, so that
additional millions will be affected personally, morally and
financially.Since, besides the SS, the mass organizations of
the SA and the Leadership Corps are also indicted, a verdict
against the indicted organizations would amount to a
considerable part of the German nation being considered

According to Law No. 10 of the Control Council of 20th
December, 1945, every member may be subject to any penalty,
including the death penalty, merely because he was a member
of an organization which has been declared criminal.

The question under discussion by the Tribunal, as to what
objections can be made in this collective trial and what
objections can be made later in the individual trials has,
in my opinion, been decided already by Law No. 10 to the
effect that the individual objections of a defendant, e.g.,
ignorance of the criminal aims of the organizations, cannot
be given any consideration.It is, therefore, necessary that
evidence in this present trial should be admitted to the
widest extent possible.It should be made possible for the
defence to rebut, by means of evidence of the factual
situation at the date of the respective act, the conclusions
drawn by the prosecution retrospectively from individual
acts and facts.When evidence on behalf of the individual
defendants was submitted, the Tribunal declared its
readiness to admit evidence if there were only the slightest
degree of  relevancy. Considering the significance of the
decision of this Tribunal for the millions of people
affected and for their families, it appears to be an
absolutely necessary condition that evidence be admitted to
the greatest possible extent in order
                                                   [Page 86]
to permit a just verdict, to clarify the facts, and
especially to find out to what extent members of the SS
participated in any criminal acts, according to Article 6 of
the Charter.To clarify the question of whether it is
permissible to conclude from the fact of the wide extent of
the indicted actions, as maintained by the prosecution, that
the members of the SS had knowledge of these actions, it
will also be necessary to admit evidence to the widest
extent possible about the question as to whether or not and,
if so, to what extent, the members of the SS knew of these
actions, and evidence of the facts which prove that the
members of the SS, like the majority of the German people,
did not know anything about these matters due to the
precautions taken to keep them secret.The discussions
initiated by the Tribunal make it necessary to anticipate
essential parts of the final pleadings. A ruling by the
Tribunal on the question of evidence would at this time
signify a ruling by the Tribunal on an essential part of its
future decisions, without any hearing of the evidence on the
objections of the defence. The Charter has not defined the
acts which qualify an organization as criminal. This lack of
definition cannot be met by admitting evidence only in a
certain direction. By doing so the Tribunal would anticipate
an essential part of its final verdict.According to what I
have said, I believe that it will be necessary for the
evidence to include all elements which might influence the
decision of the question as to whether the organization of
the SS was criminal. This, however, would hardly be possible
within the frame-work of this trial which, according to the
Charter, is to be conducted as expeditiously as is
reasonably possible. Therefore, I consider it necessary to
separate the procedure against the SS and the SD from the
trial of the individual defendants.On 15th January, 1946,
partly for other reasons, I made a motion for separation. As
far as I know, no ruling has yet been given. I repeat this
motion:-Judging from the course of the trial and the
procedure up to now I have come to the opinion that the
Indictment against the organizations of the SS and the SD -
for which I have been appointed defence counsel by order of
the International Military Tribunal of 22nd November, 1945 -
and probably against the other indicted organizations also -
cannot be dealt with within the framework of this trial for
factual and legal reasons.1. As far as the legal aspect is
concerned, I restrict myself to a few brief points reserving
for myself the right to present additional arguments at a
later date:(a) The International Military Tribunal has no

On this point I should like to remark that a few days ago I
learned from a news-paper article that the objection of lack
of jurisdiction has already been raised during the session
of 20th November, 1945, and has been overruled by the
Tribunal. I asked for a copy of the record of 20th
November,1945 - and also of the following days - but I have
not received it as yet. Therefore, I could not take note
either of the motion or of the reasons given for the
decision of the Tribunal.(b) A criminal procedure against an
organization is not possible or permissible, especially
against an organization which has been dissolved.(c) To
appoint a defence counsel for a dissolved organization,
i.e., for something non-existing, is not possible or

2. As to the facts I am compelled to make more detailed
statements in support of my motion.On 19th November, 1945, I
was told that the International Military Tribunal proposed
my nomination as counsel for the organization of the
Leadership Corps. After discussion I declared in writing my
agreement to take over the defence.On 20th November, 1945, I
was told that I should take over the defence of the
organizations of the SS and SD. On 21st November, 1945, 1
was told
                                                   [Page 87]
that I had been appointed counsel for the SS and SD, and
that I would receive the written appointment very soon. On
23rd November, 19945, 1 received the letter of appointment
dated 22nd November, 1945, in the English language, and a
few days later I received the German translation which I had

This letter, in the translation which I received, read as
follows:-"Pursuant to the Direction of the International
Military Tribunal you are hereby appointed to serve as
counsel in the case of United States et al v. Goering et al.
for the members of the defendant organizations Die
Schutzstaffeln der Nationalsozialistischen Arbeiterpartei
(commonly known as the SS) and including the Sicherdienst
(commonly known as the SD) who may make application to the
General Secretary under the order of the International
Military Tribunal attached hereto."A few days later a file
was handed to me with about twenty-five letters addressed to
the General Secretary of the International Military
Tribunal, partly from members of the SS and partly from
relatives of such members.When I asked about my position and
the position of these applicants in the trial, I was told
that these applications were to be submitted by me to the
Tribunal in proper form.

On 23rd November, 1945, there was a conference, during which
a number of questions and suggestions were brought up
concerning the position and rights of these members of the
indicted organizations, who had applied for and been granted
leave to be heard, and of the defence counsel provided for

From 28th November, 1945, until 11th December, 1945, I was
not able to obtain the applications filed by members of the
SS and SD, although I asked for them several times each day.
At that time about twenty-five applications were handed to
me each day, upon request, and I had to return them in the
evening of the same day. I was told every time that the
Tribunal needed them and that they had not yet been

When I received the folder again on 11th December, 1945, the
number of petitions had increased considerably.

By a ruling of 10th December, 1945, according to the German
translation which I received on 11th December, 1945, the
Tribunal made known its view that a member of an indicted
organization, who has applied to be heard on the question of
the criminal character of the organization, is not to be
considered a defendant, but will have the individual status
of a witness only, although he will be permitted to give
evidence; furthermore, that counsel representing any group
or organization may, for this group or organization,
exercise the rights accorded by the Charter to counsel for
individual defendants.

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