The Nizkor Project: Remembering the Holocaust (Shoah)

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Page IX, that the SD was an espionage division of the SS,
If the assertion is made in the Trial Brief against the SS,
this is obviously, in as far as a division of the SS is
meant, a confusion with the SS Special Formation SD.

There was no supreme common command over both the SS and SD
after 1934.

The connection between the SS and the SD required for the
conception of organization was not established through
Himmler's person; for in that case this obvious connection
must have existed with the police and would have existed
even with the Reserve Army since 1944.

It is true that Himmler strove for the amalgamation of the
SS, SD and the police through the creation of a State
Defence Corps. This, however, was a plan for the future
which had as yet not materialized.

Neither was this required union created by the Higher SS and
Police Leaders as they had, as a matter of principle, no
essential nor disciplinary authority over the members of the
Offices III and VI.

The recognizable association necessary for the conception of
an organization could not have existed since 1934 if only
for the reason that only 10 per cent of the chief and
honorary members of the Organization SD were members of the
SS; ninety per cent were not members of the SS and did not
wear the uniform of the SS Special Formation SD with the
insignia SD. During the war about fifty per cent of the SD
were women.

Apart from the required recognizable connection between the
SS and the SD there was also missing since 1934 a collective
general purpose. For this I refer to the testimony of the
witness Hoeppner.

The SD, therefore, was part of the SS only until the year
1934 as an organization according to Article 9 of the
Statute. After this period the SS and SD were no longer
united in one organization according to the Statute.

Did the SS and the SD form a group during the period after
1934 according to Article 9 of the Statute?

It may be doubtful whether the legislator really wanted to
make an important distinction from a legal point of view
between "group" and "organization." The wording of Article 9
of the Charter could speak against a distinction. It says
there that groups or organizations can be declared criminal
organizations. The group also, therefore, is to be declared
a criminal organization. If, however, a distinction is
assumed, I wish to state in this connection the following:

The prosecution has stated that the concept of the group is
to be taken from common usage. When explaining this concept
common sense should be used. According to common usage the
group is a numerically small community of persons. For
fifteen to twenty persons we speak of a group, not, however,
for larger unions.

                                                  [Page 129]

We speak of the fact that groups were formed within a party
or within an association. The group is part of the
organization according to common usage. The group,
therefore, is subordinate to the organization.

In this connection I should like to point out a resolution
of the German Supreme Court of the Reich of 8th May, 1922.
This resolution states that within a bigger association of
persons following some general aims, a group may form itself
to pursue a definite individual aim.

This may occur particularly if the larger association
pursues approved aims with approved means; part of the
members, however - perhaps without the others being informed
of it - united themselves for activities which attempt to
further the general aims in a prohibitive way.

Article 9 of the Charter, therefore, might be explained as
follows: We can declare as criminal:

  1. an organization or
  2. a group as part of an organization.

The SD could only then have been a group during the period
since 1934 if it had been part of the SS. This, however, as
has already been stated, is not the case.

Result: Since 1934 the SD was not part of the SS as an
organization or group according to Article 9 of the Charter.

I come to a further question:

Were the Offices III and VI a centralized organization or
group, or were they two separate organizations in the sense
of the Charter?

The Offices III and VI had neither an identifiable
relationship nor a collective general purpose. This held
good for the time after 1939 when the Offices III and VI
belonged to the Reich Security Main Office (RSHA), as well
as for the period prior to 1939, when they were united in
the SD Main Office. Office III was the Home Intelligence
Service, Office VI the Foreign Intelligence Service.

On the basis of the presentation of evidence it can be
considered as proved that the aims, tasks, activities and
methods of Offices III and VI were always completely
different. The fusion of Offices III and VI in the Reich
Security Main Office does not suffice to prove a
recognizable connection between the two agencies, or that
they have a common task. Office IV and the Criminal Police,
Office V, also belonged to the Reich Security Main Office.
The Gestapo is rightly considered by the prosecution as an
independent organization and has been charged as such. The
prosecution has evidently the same opinion regarding the
Criminal Police, against which no charge was made. Just as
little as the Gestapo and the Criminal Police, through union
in the RSHA, have lost their character as independent
organizations, so little could the fusion of Offices III and
VI create a recognizable connection and common task for
these two offices. The Reich Security Main Office was only
the designation of an administrative agency. I refer here to
a statement made by the witness Best.

The SD, therefore, was no uniform organization within the
meaning of the Charter, but Offices III and VI could really
only have been two separate organizations if one were
further to suppose voluntary membership.

According to the prosecution it should not be necessary for
each member to be a voluntary one. The prosecution considers
it unimportant if a small part or small percentage did not
join it voluntarily.

Let me point out in this respect that this juridical
standpoint does not tally with German jurisdiction. In 1928,
the German National Court decided that a society, which
corresponds to the Charter's concept of an organization,
must require the voluntary, contractual union of all

I leave the question undecided as to whether an organization
can be considered as existent when a small percentage of the
members did not belong to the society on the basis of a
voluntary contractual union, because such is not the case
with the SD.

                                                  [Page 130]

The examination of evidence has revealed that during the war
the membership of a considerable portion of the SD was not
voluntary but was based on a legal ordinance, either on
compulsory service or emergency service. I refer to the
deposition of the witness Hoeppner, who revealed that during
the war an estimated fifty to sixty per cent of the members
belonged to the SD by virtue of a legal ordinance.

These statements are supported by the affidavits which
disclose on an average the same percentages for various
offices. I, moreover, refer to the collective list of
affidavits submitted by me on the subject.

The legal prescription on which compulsory service and
emergency service were based since 1939 are to be found in
Documents SD 65-69, submitted by me. I especially refer in
this respect to Document SD 65, reproducing the circular of
16th October, 1940, in the text of that of 1st July, 1942.
It is expressly stipulated in this circular that as
emergency headquarters the SD commands can demand that
replacements and reinforcements be put in readiness for

Likewise, withdrawal was not possible during the war for
those who joined the SD voluntarily. In this connection I
refer to Affidavit SD 22.

The prosecution, therefore, is not accurate in saying that
membership of the SD was voluntary.

Consequently, on the basis of the juridical standpoint
brought forward by the prosecution, Offices III and VI
cannot, for the time of war, be considered as organizations
as conceived by the Charter.

Neither were they groups in the sense of the Charter,
because for the group, as part of the organization, the
characteristics of an organization, including voluntary
membership, are necessary.

As a result, the following can therefore be concluded:
  1. Until 1934 or thereabouts, the SD was part of the SS.
  2. In the period from 1934 to 1939 the Home Intelligence
  and the Foreign Intelligence were separate organizations.
  3. During the time after 1939, they were not
  organizations or groups in the sense of the Charter
  because the membership of a large part of the members was
  based on legal ordinance.

I now come to the question of what characteristics an
organization must have to be called criminal.

1. The prosecution has submitted that the organization

  (a) must pursue a purpose which, according to the
  definition of Article 6 of the Charter, is punishable, or
  (b) pursue legitimate purposes through means which,
  according to Article 6, are punishable.

A further requirement, according to the prosecution, is that
the guilt of the members must be established. This means the
members must have known that the organizations pursued goals
termed punishable according to Article 6, or legitimate
goals by punishable means.

However, in the submission of the prosecution, an
organization can also be declared criminal when not all of
its members knew about the punishable purposes.

This opinion cannot be agreed to.

Professor Dr. Exner established in detail and convincingly,
in his final pleadings for the defendant Jodl, that the
action per se is not a crime but that guilt must be there
also. Without guilt no punishment. Going further, Professor
Dr. Exner has established that this principle can also be
found in decisions of foreign countries. I refer to the
statement made by Dr. Exner, and I wish to point to the
American law of 28th June, 1940, previously mentioned, which
the prosecution cited as an illustration of the fact that
organizations can be declared criminal. This law demands
explicitly the knowledge of illegitimate goals.

Also, in English law, it is a general practice that a person
cannot be convicted unless it can be proven that guilty
intent was involved.

                                                  [Page 131]

The argument of the prosecution that knowledge on the part
of some of the members is sufficient for sentencing the
organization could be upheld if Law No. 10 were drawn up
differently, in other words, if by reason of Law No. 10 an
investigation were provided to determine whether the
individual member had knowledge of the incriminating goals
and activities of the organization.

This is not the case, however. Law No. 10 provides
conviction of each member only because of the fact that he
belonged to an organization which has been declared
criminal. The members can no longer argue in subsequent
proceedings that they did not know of the criminal goals and
purposes. The opinion held by the prosecution would thus
mean that in subsequent proceedings persons will be
convicted who had no knowledge of the criminal goals or
activities. This would be contrary to the fundamental
principle known to penal law in the entire world -
previously referred to by me - according to which the proof
of objective facts is insufficient for conviction and that
the presence of guilt must also be proven. In view of this,
and since guilt can no longer be established in subsequent
proceedings, it is imperative that the guilt of all members
be established in this trial before the International
Military Tribunal. Only to the extent that this guilt has
been established could the organization, or individual
groups as a part of the organization, be declared criminal.

Guilt also includes knowledge of illegality. Also in this
respect I should like to refer to Professor Dr. Exner's
argument whereby he established convincingly that every
serious crime - and only serious crimes are being tried here
- does not necessarily presuppose the knowledge that
something punishable is being done but that it is wrong to
act in that manner. The perpetrator must be cognizant of the
fact that he commits an infraction of law, or that he is
acting in a manner considered naturally wrong. Professor Dr.
Exner also has established that these principles prevail not
only in the German penal law; he also cited a number of
examples from English law.

In other words, the members not only are required to know
the goals or methods of the organizations, in accordance
with Article 6, but the members must also be aware that
these goals or these methods are illegal or in any case
contrary to law. In that connection the question then arises
whether all members must have this cognizance or whether it
suffices that only some of them have it. Because - for
reasons which I already explained - only he is liable to
punishment who was conscious of the illegality and because
this consciousness can no more be examined in subsequent
proceedings, it must be established in the present
proceedings for all members, for otherwise those members
might be punished by virtue of Law No. 10 who did not have
this consciousness. To renounce the factual criterion of the
cognizance of illegality would mean that the demands made on
the ordinary members are unduly high. The cognizance of
illegality may be absent even in the case where a
perpetrator executes an order given him.

The provision of Article 8 of the Charter merely eliminates
the order as a general reason for exclusion from punishment;
but it is possible for an order to exclude the cognizance of
illegality in individual cases. He who has recognized the
illegality of his action cannot, according to Article 8,
justify himself through reference to an order.

In a case, however, where a person considers his action
right and legal by virtue of an order given him, he must be
exonerated. The provisions of Article 8 of the Charter can
have only this sense and this meaning.

The question whether appeal by virtue of an order received
from superiors furnishes ground for exoneration is not left
uncontested in international writings. Article 8 of the
Charter ruled on this controversial question that the
perpetrator cannot make appeal because of an order obeyed.
This explains why I need not discuss this controversial
question in greater detail. All authors, however, who deal
with this question presuppose that the subordinate knew that
the order was illegal and unjust.

                                                  [Page 132]

They deal mainly with the question as to whether the
subordinate, by knowing the illegality and unlawfulness of
the order, had grounds for exemption from punishment.

It is to be concluded herefrom that with this lack of
knowledge, which can also be founded on an order, the
perpetrator is exempt from punishment.

The French Prosecutor also stated that the order of a
superior does not protect the perpetrator of a deed which
was obviously punishable.

It would lead to an illogical result, if one considered it
inadmissible to cite an order as proof of the lack of

He who carried out an act without an order, would not be
punished if he lacked the knowledge of its illegality. If
he, however, commits the same deed on the strength of an
order, he would have to be punished, if one does not agree
with my point of view. Such a misinterpretation would
contradict the meaning and purposes of the Charter.

Orders can, however, put the perpetrator into a state of
compulsion, and for this reason exclude the guilt.

It is a general rule of English law that he is protected
from punishment who has committed crimes under the
authoritative influence of other people and not a as result
of an unchecked and deliberate intention.

According to English law this protection also exists in the
relationship between the State or the supreme power and the
subjects of the State, and excuses obedience to the existing
authority if bodily force is exercised or is imminent.

Thus I arrive at the following result:

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