The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/10

DR. PELCKMANN: I have said, your Honour, that the
surrounding world, unfortunately, did nothing to shake this
belief in Hitler.

And what I shall now discuss does not serve to declare
others guilty, and to distract from one's own guilt if it
exists. No - these statements are intended to clarify how we
all, the whole world - in part, likewise deceived about the
true danger, in part in the hope that we would thus best
master this danger - did something which, in its effects on
the whole German people, Hitler's followers, and his SS men,
had to be interpreted as confirmation of the correctness,
the legality of his intentions and his deeds.

I can understand that this evidence was declared irrelevant
for the defence of the individual defendants, for they are
being charged precisely with having deceived the world
consciously. Then, one cannot take the conduct of the world
as an index for its credulity. In the case of the
organizations this problem is different.

The prosecution will not seriously charge the mass of their
members, even the mass of their leaders, with having known
of the criminal aims and intentions of Hitler and still less
will they be able to prove this. I have just shown how the
events up to about 1934/35 had to appear to the SS man.
Thus, the objections of the prosecution, which are worthy of
consideration for the principal defendants, do not apply to
the organization which I am defending.

What was the situation at that time? (I quote essentially
from Jasper's The Question of Guilt [Die Schuldfrage] Pages
82-83.)

In the early summer of 1933 the Vatican concluded a
Concordat with Hitler. Papen conducted the negotiations. It
was the first great confirmation of the Hitler regime; a
mighty gain in prestige for Hitler.

All States recognized the Hitler regime. One heard voices of
admiration.

In 1935 England concluded the Fleet Pact with Hitler through
Ribbentrop.

In 1936 the Olympic Games were held in Berlin. The whole
world flocked there.

In 1936 the Rhineland was occupied by Hitler. France
tolerated it.

In the spring of 1938 Hitler moved into Austria amidst the
acclamation - still undeniable today - of the overwhelming
part of the population.

In 1938 an open letter from Churchill to Hitler was
published in The Times, in which there occurred sentences
like this one:

  "Should England be overcome by a national misfortune
  comparable to the misfortune of Germany in 1918, I would
  ask God to send us a man of your strength of will and of
  spirit."

How is it possible that in all these years, foreign
diplomats and leading men - accompanied respectfully by SS
men with whom they had confidential conversations - at Party
rallies, in the Reich Chancellery, and in the Ministry,
shook the hands of murderers and men guilty of arson? What
effect did that necessarily have on the SS men, who
considered these hands pure and clean?

The general situation in the years 1933 to 1939 is
characterized by Roepke in his book, The German Question
(Die Deutsche Frage), which was published in Switzerland.
Because of the lack of time I will not read the quotation,
and I ask the Tribunal to read it for themselves.

At that time the world still considered what happened in
another State as an affair which did not concern it. Only as
a result of the experience with the Hitler regime and the
second world conflagration is the solidarity of the great
States, and we hope one day that of the United Nations,
seeing to it that dictatorship and undemocratic methods in
all countries do not lay the cornerstone to new world

                                                  [Page 108]

conflicts. I cite the remonstrances of the United States
because of the internal government conditions in Argentina a
few months ago.

Now, before I turn to the particularly criminal activities
of the SS which the prosecution have listed, I should like
to interrupt the consideration and evaluation of material
with a few statements on the law of the Charter and on the
rules of procedure. I did not want to bore the Tribunal with
this at the beginning, first I wanted to create a factual
atmosphere in which the legal argument would gain strength.
My arguments will be as brief as possible, for much has
already been said in this connection by my colleagues, and I
fear that more will be said, and the Tribunal is also
acquainted with the memorandum of my colleague Kleefisch. I
hope that my statements may clarify what I have already
discussed, and I hope that they may give insight into the
undergrowth of the small part of the voluminous factual
material which I can offer in the remaining period of the
three hours which were granted me for my speech.

The legal nature of the Indictment against the organizations
and the possible finding of an organization as criminal must
be cleared up. The general statements of the defence
regarding the possibility of the organizations' committing
offences are known to the Tribunal. I consider them fitting
and correct. And yet one must ask the question: Who is
really indicted according to Article 9 of the Charter? Are
these really the formations as former legal entities or are
they not rather, in reality, the millions of individual
members who, merely represented by one of the principal
defendants and represented by the dead formations, are
sitting in the dock? It is, after all, the individual
members who are accused. This follows from a thorough
consideration of the whole complex of questions. The Trial
will not decide on the fate of the former organizations
which are not alive and can never become dangerous but only
on the fate of the many members. A glance at Article 10 and
the disastrous consequences of the declarations of
criminality confirms this. Declaration of criminality
constitutes an unassailable decision of guilt in advance for
possible charges under Article 10.

It is true that for subsequent proceedings, it will be up to
the prosecution whether they consider it expedient to indict
the individual member. But this does not change the basic
idea.

The declaration of criminality thus bears the character of a
declaration of guilt in advance for each individual member
of the organization. If the individual is not indicted
later, he receives no punishment, it is true; but he is
nevertheless a criminal according to legal decision. The
character of criminality does not affect the organization as
such, but in reality - since the organization as such no
longer exists - exclusively its former members. Before you,
your Honours, the main trial against each individual one of
these members is proceeding. The issue is the establishment
of his punishable action, "membership." The most important
declaration of guilt is made against each individual. The
concept of guilt, however, in all civilized States of the
world, is always, within the meaning of the law, connected
with the individual deed of a person. There has never been
guilt of organizations. No one could object to declaring the
aims and purposes of an organization criminal if individuals
were not affected thereby. But as soon as the declaration of
criminality of the organizations is to be the indirect
condemnation of individuals, one must conscientiously
examine and establish the individual guilt of each
individual.

This conclusion is reached for another reason as well: What
does the concept of organization include? That an
organization is a union of people is clear. That this union,
at least in general outlines, pursues unified aims and
purposes and has a corresponding constitution should also be
clear. Whether it includes the characteristic of
voluntariness is, on the other hand, extremely doubtful. No
one will deny that the German Wehrmacht was an organization
although there can be no question of voluntariness, not even
in the majority of the cases. One may think further of
occupational groups, schools, or even compulsory guilds, in
which

                                                  [Page 109]

there is no voluntariness of joining, but which are
certainly organizations. The Kleefisch Memorandum as well as
the basic decision of the Tribunal of 13th March, 1946
(Paragraph 6, No. 2), introduced the characteristic of
voluntariness into the terminology - in my opinion, quite
correctly. But why? Fundamentally only because otherwise the
aftermath of declaring the organizations criminal would
appear unjust in view of the consequences for the individual
members. What follows from this? Very much. One sees here
quite clearly that in reality what is involved is not the
organization but the members. The decision of 13th March,
1946, considers relevant only the question of whether
membership was in general voluntary; it therefore takes into
consideration that involuntary members will be affected. In
view of the consequences of Law No. 10, this is not
reconcilable with the idea of justice.

Constitution, aims or purposes, and activities of the
organization - whether on a voluntary basis or not - are
criminal if they fulfil the conditions of Article 6; that
is, if they were aimed at Crimes Against Peace, War Crimes,
or Crimes Against Humanity. In connection with No. 6 of the
decision of 13th March, 1946, the individual characteristics
of Article 6 of the Charter are to be carefully examined
here. One should ask, for example: were the constitution,
aims, purposes, or activity of the SS aimed at the planning,
preparation, starting or execution of a war of aggression,
at the violation of the rules of warfare, or at murder,
extermination, enslavement, and so forth?

These latter crimes of Paragraph 10 of Article 6 of the
Charter, however, are punishable only if they were committed
in execution of or in connection with another crime
punishable under the Charter; that is, in connection with
Crimes Against Peace or War Crimes. This is how one of the
authors of the Charter, Mr. Justice Jackson, explained it in
his statement, which is added to the text of the Charter in
the Department of State Bulletin of 12th August, 1945, on
Page 228.

I ask you to read the English text:

  "We have taken another (step forward) in recognizing an
  international accountability for persecutions,
  exterminations, and Crimes Against Humanity when
  associated with attacks on the peace of the international
  order."

I have already explicitly shown, that in the examination of
the charges of the prosecution in connection with Article 6
of the Charter, the judgment must adapt itself to the time
of the programme point in question or of the allegedly
criminal act.

After establishing that the crimes were without doubt
committed, the question of whether the organization as such
is to be designated as criminal will depend on how many or -
in proportion to the millions of members - how few SS
members took part in these crimes. Did an organization
really act or did only relatively few members act who
perhaps - paradoxically - frequently had not even joined the
SS voluntarily?

That it must not be overlooked at what period the individual
crimes took place the High Tribunal has already affirmed in
its decision of 14th January, 1946. If at all, then it is
quite possible that the organization or a part of it was
criminal only at certain periods of time. Designs and plans
once made could perhaps appear criminal only through later
misuse, although they were originally not destined to be so.
An axe, when forged, never knows upon leaving the anvil
whether it will perform useful service for humanity or will
one day be misused, as an instrument of murder, if only - to
follow the metaphor through - with its detached wooden
handle.

That such limitations in regard to time and personnel are
necessary is shown by the following examples: The Indictment
says on Page 5 that between 1933 and 1935 unsuitable members
were expelled. I may add that these were about 50,000, or
one-sixth of the membership; people, who - this is shown by
the most varied testimony and affidavits - on the basis of
their previous political attitude had only

                                                  [Page 110]

sought camouflage; also previously convicted persons and
other unreliable. elements.

Even these persons would not be excepted from the Indictment
and the, consequences of the declaration. Such a grotesque
result cannot possibly be  desired.

Finally, according to No. 6a (3) of the decision of 13th
March, 1946, the evidence will have to be examined to see
how far the knowledge of the individual members reached.
This question will be decisive for the judgment on the
masses of the SS.

I said before that even if the SS organization, the no
longer existing organization, is formally indicted, the
Indictment is nevertheless, in effect, directed against each
individual member. If now the criminal character of the
organization is to be proved through criminal acts of the
members, then the member who is supposed to have committed
this specific crime must have an opportunity to answer to
you, your Honours.

If he cannot do this, then the Court will not be in a
position to know whether the accusations are true. Then how
will the proceedings be carried out according to the Anglo-
Saxon corporate penal law? The leaders and the members are
heard in detail on the specific accusations made against
them - the Court doe not judge on the basis of unfavourable
testimony of witnesses without the leaders and members of
the organization who are personally affected by this
testimony having an opportunity to comment on it.

How little the Court can base its judgment only on the
testimony of witnesses, without hearing the accused person
or persons, is shown by the astonishing experiment which I
undertook with the witness Israel Eisenberg on 7th August,
1946 (see the English Transcript, pp. 15283, 15284). I
showed him two pictures from a document, PS-867 in Polish,
Exhibits SS Nos. 2 and 3, from which I cut off the captions
under the pictures. The witness called the two men pictured
SS men and named their SS ranks. He deduced these ranks
exclusively on the basis of the epaulettes and insignia on
the sleeves.

The witness Morgen, whom I examined on 8th August, 1946,
immediately recognized as an expert that the men pictured
were not wearing SS uniforms, and were not SS men. He
pointed out that these photographs showed the epaulettes of
the police, and on the sleeve the insignia of the police. In
the photograph Exhibit SS No. 3, which is in the hands of
the Tribunal, the police insignia can also be clearly seen
on the cap: the eagle completely enclosed in an oval wreath
of oak leaves. Nowhere, your Honours, is the SS insignia to
be seen. All other photos in this book also show only police
uniforms and police insignia. But all of this did not strike
the witness; he considered these men "SS men." That was only
a minor example of the power of observation of the witnesses
with regard to uniforms.

Please consider further how slight the difference is between
the uniform of the  SD and that of the SS - only a small SD
rectangle on the sleeve - and that non-members of the SS
wore this uniform (compare the testimony of Dr. Best and
Reinecke before the Commission); that it was precisely in
the rear army area that the police were employed, while the
SS were at the front, that the mass suggestion of the guilt
of the SS distorts the memory of the witnesses; then, your
Honours, you will be able to realize the true value of the
testimony of non-German witnesses who arbitrarily designate
"the SS" as the perpetrators of any crimes committed in the
occupied countries.

The incompleteness of a collective indictment, which is
raised here for the first time in the long history of law,
is based particularly on the difficulty of taking testimony
for the accused organization in a fair manner. This
difficulty arises of necessity from the peculiar nature of
the proceedings, particularly from the fact that it is
technically hardly possible, or possible only through
proceedings lasting for years, to clear up every concrete
charge in a satisfactory manner by hearing

                                                  [Page 111]

the specifically affected members of the organization, and
to establish whether each charge is justified or
unjustified.

As long as in such a trial it is impossible for the defence
immediately to produce each individual member of the
organization who is impeached by prosecution witnesses or
documents, and to get him to make a concrete statement, as
well as to hear further witnesses on this case, this trial
remains incomplete and unsuited for true justice.

It follows of necessity that to a large extent the cases of
the prosecution and the defence by-passed each other without
being able to give the Court a picture of the true state of
affairs in large parts of the Indictment. Only thus could
the grotesque picture arise that we experienced repeatedly
during the defence case; that is, a defence witness
describing his activity and the units and SS men under his
command. It covers sectors as large as possible in regard to
subject matter and territorial extent, since the Court
permitted only a minimum number of witnesses in proportion
to the total membership, and any individual testimony of a
little man was inadmissible according to the decision of
13th March, 1946. The prosecution would now have had to
attempt to break down the testimony of the witness in cross-
examination. The surest and simplest method for this would
have been to throw doubt on the credibility of the witness
by showing, for example, that he himself had committed a
crime or that something of the sort had been done by people
under his command.


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