The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/10


Although the prosecution had many weeks to examine its
records and those of all the Allies, which records had
existed for months, yes, for years, and although these 29
witnesses before the Commission and before the Tribunal had
held middle, high, and highest positions, the prosecution
could not prove any such thing against them. Is not this
fact the best refutation of the contention of the criminal
character of the SS? Is it not symptomatic if the
prosecution did not succeed in accusing or convicting one of
the highest generals of the fighting Waffen SS, a very high-
ranking Fuehrer of the General SS, at the same time Higher
SS and Police Leader and Police Commissioner - an extremely
rare case - of the third largest German city, a staff
officer of the administration of the Waffen SS who was
repeatedly in service at the front, and two high SS judges,
of committing or tolerating crimes? Later on I shall discuss
the case of the witness Sievers, the only case which was
different. Thus the prosecution had only one recourse: it
consciously brought forward documents or affidavits which
were to prove that climes had been committed, but with
which, even in the opinion of the prosecution, these SS
witnesses themselves had had nothing to do. Nevertheless,
the prosecution asked the witnesses whether they knew of the
events described therein. Were they thus seeking to discover
the truth for which this taking of evidence was intended, or
was further evidence for the prosecution merely to be
introduced at a time when the case of the prosecution had
already been closed? These documents are for the most part
Government reports on investigations which have not yet led
to any trial or judgment - particularly in the partisan
territory in Yugoslavia, which are very difficult to judge.
Their evidential value must be very slight.

Can the new documents and affidavits introduced thus in
enormous numbers make it possible for the Court to answer
objectively the question of whether the deeds actually took
place, and thus whether the SS is criminal? Would not the
Court have to hear the accused, that is, the SS men who were
mentioned by name In the documents, or members or officers
of the accused SS units? After the experience with the
ability of the witness Eisenberg to distinguish uniforms, I
ask, is it convincing that these people say, "They were SS
men"? Or were they police or SD and Gestapo members? In part
such errors arise obviously from the documents. But I cannot
and do not wish to deny that according to a few documents
terrible crimes have been established, and that they are
numerous. Should not the defence have an ample opportunity
to comment on these docu-

                                                  [Page 112]

ments and affidavits with as much preparation as for the
evidence which the prosecution presented in November,
December, and January? Should it not be given a few months'
time? I do not fail to realize that my demand would mean a
prolongation of the trial for months, in so far as the case
against the organizations is concerned. But if for any
reason -

THE PRESIDENT: Dr. Pelckmann, the Tribunal has already ruled
again that the trial has got to conclude now, and therefore
any argument that you should have three more months is
entirely irrelevant and cannot be listened to. The Charter
lays it down. It is for the Tribunal to say how the
individual is to be represented, and we have laid it down to
the best of our ability.

DR. PELCKMANN: If for these reasons the judgment cannot be
delayed so long, then it must be passed now; but since, in
my opinion, the new evidence of the prosecution can only be
used with this reservation, it (the judgment) can consist
only in the rejection of the application of the prosecution.

I must add something. I asked myself whether I should deal
at all with the Erhardt affidavit, D-973, from the
Neuengamme camp. But it is necessary; because it is typical
of the evidence of the prosecution in this last stage of the
trial. It is necessary at the last minute, when it is no
longer possible for the defence to carry on investigations
on the spot. I refer you to the decision of the Court of 1st
August, 1946, which does not permit the defence to visit
camps, in contrast to the prosecution. Their administrative
machine -

THE PRESIDENT: Dr. Pelckmann, if you are proposing to deal
with the rules which the Tribunal has made with reference to
the hearing of individuals, the Tribunal will not hear that.
The Tribunal has done the best it can to enable individuals
to be heard, and the Tribunal does not propose to listen to
you criticizing what the Tribunal has done.

DR. PELCKMANN: I believe there is a misunderstanding, your
Lordship I am not criticizing. I am dealing with the Erhardt
affidavit, with the evaluation of this testimony.

THE PRESIDENT: Very well. Go on.

DR. PELCKMANN: This affidavit cannot affect the value of the
affidavits of the SS members. It refers only to the
interrogatory, which does not come from me, and the answers
- there are altogether only 40 000 - which I did not

I submitted 135,000 detailed affidavits to the Tribunal, and
I summarized them. The methods described by Erhardt could
not be used in them. As evidence of this, I should like to
ask you not only to read the summary but also a few of the
very conscientious and descriptive affidavits themselves.

The Erhardt affidavit itself is full of contradictions,
improbabilities, and exaggerations. Erhardt was an SS man
and is now in the service of the British authorities. Of
course, he does not want to lose his position. Therefore he
has every reason to make himself popular.

Can a single affidavit on the ostensible circumstances in
only one camp, the actual and psychological reasons for
which are so doubtful, shake the value  of 135,000 detailed
statements? No, your Honours. This attempt of the
prosecution to shake the value of the whole legal hearing
guaranteed by the Charter can remain only an attempt. It
lies in the nature of the defence in this trial that it
unfortunately does not have the possibility of ascertaining
the sources of such mistakes in the obtaining of mass
material by the prosecution, and of criticizing it.

I am of the opinion that the evidence put in by the
prosecution, in so far as it may be considered in view of
what has just been said, forces the defence to the
conclusion that crimes in considerable extent were committed
by members of the SS; but not that the whole SS organization
is criminal.

Is it not striking - and I should like to settle one point
of the Indictment immediately in this discussion of
procedural and evidential questions - that there

                                                  [Page 113]

are only two judgments concerning the inhuman fighting
methods of the SS, for example the shooting of prisoners,
one against SS General Kurt Keyer (Normandy front) and the
other against SS General Sepp Dietrich, and 73 officers and
men of his army? That, gentlemen of the Tribunal, is the
sole result of the most energetic and comprehensible efforts
in support of the contentions of the prosecution, on the
part of all the Allies for more than a year.

 Must one not conclude therefrom that in spite of this long
period of time it has not been possible for the Allied
prosecution to pass judgment on more crimes? The death
sentence against Meyer, with which I am acquainted, was
reprieved. The trial of Sepp Dietrich and his men, the
record of which I was not able to obtain, ended with 43
death sentences, but it is striking that the highest leaders
did not receive this punishment. This must force us to the
conclusion that no such criminal orders were given by them,
and consequently there was no criminal system. The defence
brings forward some noteworthy objections against the
methods of investigation and of accumulating evidence.

I should ask you to note the following, High Tribunal: These
happenings occurred in the last half-year during the most
violent part of the war, and concerned only very few members
of the Waffen SS.

At the same time please remember the extensive counter-
evidence given by witnesses and affidavits, which the
defence procured also for this particular point of the
Indictment, e.g., the training for and waging of fair
warfare; and the excesses committed by the enemy. This
evidence was only meant to prove that from such occasional
excesses in battle, one cannot postulate a criminal system.

In this connection allow me to develop another principle
which to my mind must be the basis for the proper evaluation
of the evidence in these proceedings: Where any doubts may
arise as to whether the individual charges are proven by the
evidence, the weakness of which I have just made apparent,
particularly also where doubts arise as to whether proved
individual crimes may be said to be typical and that,
therefore, the entire organization, that is, all its
members, can be considered criminal; where, therefore, one
counter-proof, or item of circumstantial evidence, is given
by the defence as against ten or a hundred proofs or items
of circumstantial evidence by the prosecution, I believe
that the Tribunal cannot draw any conclusions which are
sufficient for a condemnation in the sense of the

This is a fair logical conclusion arising from the nature of
these proceedings. From the tremendous evidence at its
disposal, the prosecution has chosen and charged some
incriminating facts, and then made the assertion that these
were typical cases, that they were the same everywhere, that
these actions were typical of the SS, etc. As already
stated, it is the sole responsibility of the defence to
furnish exonerating evidence. And this is where the
difficulties for the defence of the organizations,
particularly of the SS, begin. The organizations have been
dissolved; they exist no longer. When we accumulated the
evidence most of the members of the organizations and all
their leaders were in custody and many of them still are.

The occupational authorities have secured the entire written
evidence, all personal acts, correspondence, decrees and
orders. It is true that we have been able to speak to most
of the prisoners, but after so many years, and particularly
in questions of detail, the information was bound to be
incomplete, and was not given until April or May, as it
depended on the progress of the stage reached by the trial.
We could not always reach the competent persons. In
connection with the question of the legal hearing, I would
ask you to consider that we have no evidence at all from SS
men from Austria and the Soviet-Russian zone of Germany. For
reasons of security we could not be allowed to conduct a
research in the Allied document centres in which the
confiscated documents are classified according to subject
matter, and thus we were not able to obtain good documentary
information. We could not counter this deficiency by an
approximate indication

                                                  [Page 114]

of the documents based upon certain assumptions, because a
specified indication was demanded. As things stand the
counter proof must be considered successful if the defence
succeeds in establishing but a shadow of a proof for their

And now for lack of time I shall omit two pages, your
Honours, 32 and 33, and I shall deal with the charge of the
participation of the SS in the pogrom of 19th November,
1938. The next four pages deal with that, which I must also
omit for lack of time, pages 33 to 36. I ask you to read

THE PRESIDENT: Dr. Pelckmann, you say that you have only got
to pages 32 and 33?

DR. PELCKMANN: I want to start on page 36 now. But as far as
I am informed, your Lordship's copy is longer. I am farther

THE PRESIDENT: I do not have a copy at all; but I do not
understand how you are proposing to finish your speech, if
your speech is, as I am told, about l00 pages long.

I tried to point out to you at an earlier stage that the
sort of general topics which are very familiar to us were
topics which you might just as well pass over, and you said
"Very well; I am going to shorten my speech. I have taken
steps to shorten it."

Now we find that when you have been speaking for nearly two
hours, you have not got any farther than page 33. All I want
you to understand is that you will not be allowed more than
a half-day.

Now, will you go on, please?

DR. PELCKMANN: In the pages which I am omitting, I have
dealt with the events of November, 1938. I will add that if,
in connection with the arrests, which were purely a
political matter and were the business of the Gestapo, some
officials may have had black uniforms on, this did not make
it an SS action. Gestapo officials also wore black uniforms.
This would be a typical erroneous generalization which can
be traced back to the fascination of the black uniform and
of the SS insignia, and whose falsifying influence upon
truth and recollection must not be underestimated for the
entire proceedings against the SS.

This insignia, in its insolent aggressiveness, was not only
dangerous in the past through its publicity value, because
through its doubling of a Germanic rune it awoke romantic
historical feelings in the German, but even today after the
destruction of all the myths surrounding it, it has the
peculiar power of preventing any clear conception as to its
nature. It is so easy to mention the SS without any clear
conception as to its real meaning.

There exists the danger that an historical myth may be born
which like any other such myth is based upon ignorance of
the facts, or, even worse, upon a half-knowledge of these
facts. We, who combat the Hitler myth wherever we can - we
have done so in the evidence before the Tribunal - do not
wish that a myth should be formed around a group of people
under the slogan "SS," around the guilty and innocent alike.
We do not want to help to create so-called "martyrs" in the
interests of a neo-Fascist propaganda.

That is why we must ask a definite question and give the
answer: "What is the actual meaning of 'SS'?"

The decisive error of the Indictment is that all, or at
least all essential spheres of activity of Himmler's, are
considered as activities of the SS. Without heed to the
origin or tasks of the many agencies and units under
Himmler's command, without heed whether there ever existed
any organized ties or links, the Indictment assembles the
General SS, Waffen SS, the SD, the police, the concentration
camp system, the affairs of the Reich Commissar for the
Consolidation of German Nationalism, the activity of the
Chief of the Prisoner-of-War System and others, in one great
imaginary unit, the SS. The Indictment must proceed from
such a unity in order to create a basis for the evidence
that within the framework of an alleged conspiracy all
sectors of the public life in the State, in the Party, and

                                                  [Page 115]

the Wehrmacht were permeated with this SS, this monster
which had spread its tentacles over Germany and Europe.

That Himmler's activity was identical with the activity of
the SS is only true for the period until 1933 or 1934. Only
until then did an organized unity in the SS exist, and the
prosecution has taken over this idea of the unity of
everything which they call SS from this time, thus falsely
interpreting the actual developments. The SS was a part of
the SA and therefore a section of the NSDAP.

The seizure of power opened an era in which a great part of
all supreme and superior State positions were filled with
Party Leaders. From this time on, Himmler goes his own way
at the side of the SS. First - in comparison to other high
Party members - extremely cautiously, and then in an ever
more determined way. It was mainly Heydrich who awakened
Himmler's interest for State affairs, for power politics.
Himmler, like many of the SA leaders, had become Police
Commissioner, and that in Munich in 1933. Soon he was made
Chief of the Political Police in Bavaria, and then in the
other States of Germany, with the exception of Prussia.
Here, Goering was still Chief of the Gestapo. But soon
Himmler became his deputy and Heydrich the leader of the
Secret State Police Office in Berlin. Himmler's ambition for
the widening of his power in the State, which the SS could
not offer him, now became ever more obvious. His goal was
the Ministry of the Interior. As early as 1936 he gathered
the entire police power of the Reich, which until then had
been the affair of each State, in his hands, in his capacity
as Chief of the German Police. Thus he had become the
highest superior not only of the Secret State Police and of
the Criminal Police, which is jointly named the Security
Police, but also of the entire ordinary police in Germany.
Only now did he hold a position of power which was of the
greatest importance, and it was given to him by Hitler and
not by his SS, and not through the SS or for the SS. I ask
the Tribunal to consider that these police organizations
existed independently besides the SS, before Himmler became
their chief.

In 1939, he was made Reich Commissar for the Consolidation
of German Nationalism and was thus assigned a new task, the
transfer back of populations, etc.

Then, in 1943, he was actually nominated Reich Minister of
the Interior.

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