Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-212.05 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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