The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

The regulations of Law No. 30, regarding the application of
the German Community Order of 20th December, 1945, namely
Articles 36 and 37 which show that SA men are eligible for
election, also confirm the fact, which is known in Germany,
but apparently not in foreign countries, that an ordinary
Party member had only by comparison, naturally - a more
active political position than the completely uninfluential
SA member. Whoever was a Party member before 1937 cannot
vote, and whoever was at any time a Party member cannot be

A comparison of Party members, who are not indicted here,
and SA members, who are indicted here, shows the following

If at the time of National Socialism one was politically
incriminated or suspect one could, without difficulty,
become an SA member, but under no circumstances a Party
member, because in regard to Party membership, and even
ordinary Party membership, much higher political
qualifications were required than in the case of the SA.
There were certainly many SA members who joined this
organization only to escape to some extent the persecution
they had to expect because of their incriminating political

May it please the Tribunal, I have tried by means of these
examples to show the extraordinary danger existing in the
particular case of the SA, if all its members, including its
millions of ordinary SA men, are legally declared criminals
by the Tribunal, even the millionth former simple SA man. I
am sorry I cannot share the opinion expressed yesterday by
Justice Jackson that the verdict sought from this Court
would be a purely declaratory one with no penalties
involved. On the contrary I know that hundreds and thousands
of SA members, who were simple camp-followers and were not
even Party members, have been dismissed from their
positions, and their future and their existence will depend
on the verdict of this Tribunal. A declaratory judgement of
this Tribunal is sufficient to make them outlaws and to
exclude them from positions and professions in the future.
Therefore, the members of the SA are correct in pointing out
that they are denied the right of judicial hearing. There is
no direct evidence and no direct trial. A Court does not
decide the fate of lifeless creatures or formal
organizations that have long since ceased to exist; it
passes judgement on living human beings, and no court should
forgo the opportunity of seeing in person those whom it is

                                                   [Page 79]

trying. A good judge is always a good psychologist and can
soon tell what kind of person is on trial, whether he is a
criminal or somebody who has been deceived and misled.

No law on earth, since time immemorial, ever allowed the
passing of judgement against an organization instead of
against its single members. The laws and precedents quoted
yesterday by the prosecution, regarding criminal gangs and
conspiracy, certainly recognize to a large extent the
collective responsibility for acts of accomplices, but two
requirements must be fulfilled there too; firstly, the
member must know that he is party to a criminal conspiracy
or criminal association; secondly, the indictment is not
directed against the conspiracy as such, but against the
persons of the individual participants. It is the conviction
of the defence that the Charter did not intend to stand in
contradiction to these legal principles of all States.

The late President Roosevelt, whom Justice Jackson named the
spiritual father of the Charter, has, in his great speeches,
particularly in those of 25th October, 1941, and 7th
October, 1942, stated clearly that the leaders and
instigators shall be called to account. Permit me, Mr.
President, to read two sentences from the speech by
President Roosevelt taken from the official collection
"Speeches and Essays by President Roosevelt," published by
order of the Government of the United States.

I quote from the speech of 25th October, 1941:-

  "Civilized peoples long ago adopted the basic principle
  that no man should be punished for the deed of another."

The second quotation is from the speech of President
Roosevelt on 7th October, 1942:-

  "The number of persons eventually found guilty will
  undoubtedly be extremely small compared to the total
  enemy populations. It is not the intention of this
  Government or of the Governments associated with us to
  resort to mass reprisals. It is our intention that just
  and sure punishment shall be meted out to the ringleaders
  responsible for the organized murder of thousands of
  innocent persons and the commission of atrocities which
  have violated every tenet of the Christian faith."

In addition to these fundamental objections to such a
separation of the proceedings, there is also an important
technical objection. If the Tribunal passes a declaratory
judgement against the organizations, as requested, all these
millions of members of the organizations will automatically
become outlaws pending the definite legal decision in the
subsequent trials. Until that date, every individual is
under serious suspicion of being a criminal, since it is
questionable whether he will succeed in exonerating himself
in the subsequent trial. Since, however, an individual
person, without such exoneration will probably not be able
to return to his profession - and will also be excluded from
the ranks of honourable citizens until he is exonerated -
the right to have such a subsequent trial, should not be
denied to him. I believe that Justice Jackson will agree
with me in this. But if, as desired by the prosecution,
seven million members of organizations, according to a
conservative estimate, are affected by the declaratory
judgement of the Tribunal, and thus temporarily become
outlaws, then millions of subsequent trials will have to
take place. We shall have to assume that in the course of
one year, perhaps one hundred thousand trials can be
completed. I believe that this is a very optimistic
estimate, as our German courts will not be able to
participate; it is well known that they are completely
overworked since they have now only a small portion of their
former personnel. Of these millions of cases, the courts
will probably have to deal first with those whose criminal
nature is most suspect. The accused, for whom existence is
at stake, will defend themselves during the subsequent
trials with all legal means at their disposal. There is the
danger that the really innocent people will have to wait for
many years, even for decades, before they will have an
opportunity to rehabilitate themselves through a process of

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exoneration. I believe that it would have been possible to
find some sort of solution. For instance, if the Control
Council had passed a law to the effect that, since there is
the suspicion that offences and Crimes Against Peace and
Humanity have been committed with the aid of these
organizations, the courts have the right and the duty to try
those of whom it can be proved that they participated in
these crimes, as principals or accessories in some way or
other. If such a formula could be found, then I believe that
both the prosecution and the defence would consider that a
just solution. The effect would be limited to those who are
actually guilty. The defence objects in no way to the
punishment of those who are actually guilty,  provided that
their guilt is determined in regular and unobjectionable

Should the Court, however, adhere to a verdict against the
organizations, as requested by the prosecution, then I
request for all the reasons adduced, arising as they do from
the presentation of the prosecution and from the impressions
made by those applications which have been filed, that
judgement shall not be passed against the entire SA. The
point of view brought forward by Justice Jackson in the case
of the other organizations - namely, that in the face of so
many murders and atrocities, the individual members of an
organization can no longer be determined as perpetrators -
this point of view, noteworthy as it is, does not apply to
the SA. The few excesses which, according to the
presentation of the prosecution, took place here, happened
in Germany in public. The perpetrators are known. Some
regional courts have already opened proceedings of this
kind. I have heard, for example, that the city of Bamberg
has opened proceedings against the destroyers of the
synagogue there, and against the perpetrators of the action
of 10th and 11th November, 1938.

But should the Tribunal be of the opinion that judgement is
nevertheless to be passed against the SA as an organization,
then I ask the Tribunal as far as possible to make use of
the right to provide certain limitations in regard to
periods of time and categories of members, as both the
prosecution and the defence agree that the Tribunal has the
power to make such limitations.

Very important distinctions are to be made here, first, as
to the different periods of time. The SA men who joined the
SA after the seizure of power in 1933, joined an
organization that on its face bore the stamp of approval by
the State. Admittedly, not even a State authority can
declare crimes against humanity legal, but when weighing the
degree of guilt and the severity of the penalty, it is,
nevertheless, of considerable importance whether or not the
perpetrator acted outside the bounds of the laws in force
and committed offences against the positive law, or whether
his acts, although they may offend a higher moral order, are
not contrary to the laws of his country. Therefore, an
exemption should be made at any rate of all those SA members
who joined after 1933, and who can be proved to have had no
part in the events of 10th and 11th November, 1938

In regard to categories, I urgently request, in the interest
of justice, a double limitation.

(1) Simple SA members up to the rank of Sturmfuehrer should
be exempted at any rate, and, if possible, very soon. I
mentioned previously why this appears imperative in the
interests of justice, at least in the American Zone. Perhaps
- and I should welcome this wholeheartedly - Justice Jackson
would have the kindness to pay special attention to this
matter once more.

The idea of such limitation is also supported by the fact
that it would considerably reduce the numbers by eliminating
the simple camp-followers, and in this way the technical
difficulties, which seem almost insurmountable, would also
be considerably simplified.

(2) It was gratifying that the prosecution yesterday agreed
to separate proceedings. against the SA Wehrmannschaften,
the bearers of the SA-badge for physical culture, and the
members of the SA Reserve - or rather, to exempt them

                                                   [Page 81]

In the interest of equality and justice as recognized by the
law and by this Tribunal, it would be fair to separate from
the SA all those special sport units which had only a loose
organizational connection with the SA. These are the Navy SA
(Marine SA) and the Cavalry SA (Reiter SA).

There are a number of applications before the Tribunal, and
it is well known in Germany to everybody involved, that
these particular units were exclusively devoted to their
respective sports, namely, sailing and rowing on the one
hand, horsemanship and holding of tournaments on the other
hand. When in 1933 the Party came to power, it attempted to
take charge of all sport activities in Germany.
Consequently, the various Navy Clubs and the so-called
Country Riding Clubs became affiliated with the Party, but
both clubs had hardly anything to do with the political SA,
even after their re-grouping. Only their chiefs were,
according to the organizational system, subordinate to the
SA. They are very well suited for separate proceedings,
because they constituted a completely closed group within
the SA.

None of the chief defendants present here was ever a member
of one of these sport groups. Members of the Cavalry SA feel
that they are at a particular disadvantage because the
prosecution has not indicted the NS Kraftfahrkorps (National
Socialist Motor Corps) and the NS Fliegerkorps (National
Socialist Flyer Corps), which is perfectly justified, since
it is known that they were by nature sport organizations.
The NS Kraftfahrkorps and the NS Fliegerkorps were, however,
until the year 1934, exactly like the Reiterkorps, sport
divisions of the SA. The NS Kraftfahrkorps succeeded in
gaining organizational independence after 1934 or 1935, due
to the political influence of its leader Huehnlein. The NS
Fliegerkorps also succeeded in doing so. The NS Reiterkorps,
however, did not have such influence and merely succeeded in
1936 in being recognized as an independent unit, but it
still remained formally connected through its leadership
with the SA, since Litzmann, the Chief of the Reiterkorps,
was subordinate to the Chief of the SA. For this purely
formal reason, about one hundred thousand farmers and farm-
hands who enjoyed instruction in horsemanship through these
Country Riding Clubs are indicted here. It can be proved
that they never took part in politics or in any activities
against Jews or people of other beliefs. Likewise, a pursuit
of militaristic aims is out of question in the case of the
Cavalry SA. Already after the first World War, it was
evident that the horse had no further role in war. This
charge would be more to the point as far as the
Kraftfahrkorps and the Fliegerkorps are concerned. The
prosecution stated correctly that these organizations were
by nature predominantly sport organizations.

For this reason I should be grateful to the prosecution if
they would once more examine the cases I have mentioned, in
order to find out whether or not the same conditions exist
in this case as in the cases of the SA Reserve and the armed
SA units.

As the last group I mention the SA Hochschulsturme (SA
University units), because they were almost without
exception compulsory organizations for those students who
would not have been admitted to the State examinations
without a membership in such organizations. The same thing
applies to the SA Sanitatssturme (health units), which
represented compulsory membership for many physicians who
were applying for positions.

I should like to correct myself on one point, because it has
been called to my attention that I wanted to set a time
limit for those SA members joining after 1933 I should have
said "after the 30th of January, 1933", the day of the
seizure of power.

In conclusion, I should like to say a few words about the
hearing of SA members. Most of the members of the SA are
free. If only a few so far have written to the Tribunal,
this is almost exclusively due to the fact that, since the
SA in this country is generally considered inoffensive, they
can hardly imagine that a Court with the experience and the
high standing of this Tribunal could reach a decision which

                                                   [Page 82]

would differ from public opinion. Should the Tribunal,
however, adhere to its conception of the SA, then I should
like to support the suggestion made yesterday by the
prosecution, to the effect that the notice be published once
more so that the members can make an effort to defend their
interests. However, I share the opinion of counsel for the
Leadership Corps, that it would not serve the interests of
the proceedings if the direct contact between the defence
counsel and his client were destroyed. In the case of the SA
men who are free, a technically simple method could be used
by having the main defence counsel in Nuremberg appoint
deputies, preferably lawyers, in every province, e.g.,
Baden, Bavaria and Wurttemberg. The provincial Press should
make mention of these men. Every individual member of an
organization could, with the help of these lawyers, answer
by means of an affidavit those questions which the Tribunal
has found to be relevant.

In a very gratifying manner the American Chief Prosecutor
stated yesterday, if I understood him correctly, that in the
trial of the organizations, because of its fateful
importance for millions of people, the principle of justice
is much more important than the question of speedy
proceedings. I should, therefore, like to join in the
request made by counsel for the Leadership Corps, that the
trial of the organizations, which is to be regarded from
different points of view, be separated from the trial of the
chief defendants.

Members of the Tribunal, I have come to the conclusion of my
remarks. I should like, however, to reply to the words,
words worth heeding, spoken by Justice Jackson yesterday at
the beginning of his address. He said that for the first
time in history, a modern State had completely collapsed,
and that this surrender created for the victorious nations
completely novel problems; that one of the most important
tasks was to destroy the structure of those organizations,
and to prevent this country forever from waging wars of
aggression or carrying out pogroms. All people of good will
must sincerely welcome this aim and support Mr. Justice
Jackson. It is, however, questionable whether the right way
towards that end is to defame all members of organizations
as such, involving millions of people.

I ask the Tribunal to consider that there is hardly a family
in this country which did not have near relatives in some
one of these organizations at some time. The organizations
are dead, the system of terror and falsehood has
disintegrated, millions of misled and deceived people have
turned away from their leaders and seducers. But, if they
find themselves ostracized and stigmatized along with them
the effect might easily be the opposite of that which we all
hope for.

Mr. Justice Jackson correctly pointed out in his speech
yesterday, that the Control Council will possibly change the
method of denazification used so far, which has been rather
mechanical, and make it more individual. Present experience
that mechanical treatment evokes the feeling of injustice
and thereby a false solidarity might contribute to this. The
millions of simple misled camp-followers of the
organizations would consider such a verdict an act of
revenge rather than a manifestation of justice. The
ringleaders, however, could conceal their actual guilt
behind the backs of millions of people. The educational and
corrective effect of a verdict as well as the idea of just
atonement would consequently be weakened.(A recess was

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