Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-212.02 Last-Modified: 2001/01/21 THE TRIBUNAL (Judge Biddle): - that the purposes of the organization was to overthrow the Government by force or violence, right? DR. GAWLIK: Yes. THE TRIBUNAL (Judge Biddle): And therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect - DR. GAWLIK: Yes. THE TRIBUNAL (Judge Biddle): - on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon law because the finding of a fact against one individual cannot affect the trial against the second individual, is that your argument? DR. GAWLIK: Yes. Certainly, it would be sufficient for the accomplishment of this purpose if the legal effect went only as far as the objective determination of the tasks, aims, and [Page 142] activities of the organization and the determination of guilt were left to the subsequent proceedings. With regard to Article 10, as it was pointed out - - The English is not coming through - With regard to Article 10, as it was pointed out, the condemnation of the organizations according to Article 9 of the Charter contains not only the objective statement of the aims, tasks, and activities of the organizations, but beyond this purpose the confirmation of the guilt of the members. Consequently, Article 9 of the Charter, besides legal confirmation of objective and subjective factual evidence, also has a legal criminal meaning. This juridical aim which is evidently pursued by Article 9 of the Charter can, however, only then be reached if this decision is so interpreted that the member is sentenced on account of membership in an organization whose aims or expedients are punishable according to Article 6 of the Charter and not on account of any action. Another interpretation would have no meaning and no purpose. Only a condemnation of the defendant Kaltenbrunner on account of membership in such an organization could, therefore, according to Article 9 of the Charter, justify the condemnation of the SD. In consideration of these statements the formal hypotheses for the application of Article 9 of the Charter do not seem suitable to me. It would be supposed that the defendant Kaltenbrunner would have to be charged on account of his membership in the SD as a criminal organization within the meaning of the Charter, and that in this proceeding against the defendant Kaltenbrunner the character of the SD would be examined. In this case only would there be a case at hand - as the Chief Prosecutor of the United States has stated - on the basis of which the criminality of the SD could be examined. Such a charge has, however, not been made against the defendant Kaltenbrunner. The defendant Kaltenbrunner has not been accused for belonging to the SD as a criminal organization, but is to, be sentenced for other punishable offences. Therefore, taking the statement of the American Prosecutor as a basis, it must be considered as inadmissible that, for the proof of the criminality of the SD, evidence has been produced, which has no connection with the criminal actions with which the defendant Kaltenbrunner has been charged. Finally, it must still be proved what connection must exist between the period during which the accused member belonged to the organization and the period for which the organization is to be declared criminal. This purely legal question is completely different from the question of the period during which an organization was criminally active. Here, the matter is only as follows: In the proceedings against a defendant, can the organization of which he was a member be declared criminal also for the period during which he did not belong to the organization. According to the statements made by the American Prosecutor, the criminality of the organization has to be tested only on the strength of the defendant's action. Such action of the defendants limits the examination as to whether the organization can be declared criminal, also from the standpoint of time. The evidence in the proceedings against an accused member can only justify the decision regarding the organization for the period during which the defendant belonged to the organization. This limit in time is justifiable also for the following reasons: He who shall be sentenced has the right to be heard. This right to be heard is not met by making of statements before the Court. On the contrary it includes the right to participate in the whole proceedings. According to Article 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but restricted to only one person of the organization mentioned, in order to save time, based on the principle that the depositions of further members as to the aims an tasks and activities of the organization would be cumulative. A member who did not belong to the organization during the whole period for which the organization [Page 143] is to be declared criminal can define his attitude towards the question of the aims, tasks and activities of the organization only for the duration of his membership. According to the principle of legal hearing, it is, therefore, necessary that a member participate in the proceedings as a defendant, if he was a member of the organization during the whole period for which the organization is to be declared criminal. For these judicial reasons also the organization can be declared criminal only for the period during which the defendant was a member of it. Should an organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period. For judicial reasons the SD, therefore, could be declared criminal only for the period during which the defendant Kaltenbrunner was Chief of the Sipo and the SD, that is, since January, 1943. The crimes with which Amter III and VI are charged must, therefore, have been committed during this period. I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part, and I shall deal with general statements first of all. The prosecution has submitted a large number of documents in which the SD is mentioned, thus wishing to prove that the Amter III and VI were those responsible for them. However, the prosecution itself has said that in common usage and even in orders and decrees, "SD" was used as an abbreviation for "Sipo and SD" (I refer to the Trial Brief against the Gestapo and SD, Page 19 of the German, and to the German record, Page 1832). Even according to the prosecution, a document mentioning the SD is no proof that this deed must have been committed by members of Amter III and VI. These may just as well be deeds of the Sipo. This has been proved by the evidence. The witness von Manstein, one of the highest military leaders of the former German Wehrmacht, was heard before the Tribunal. This witness spoke repeatedly of the SD in his hearings before the Tribunal and the Commission. When I asked the witness what he understood by SD, he declared that he was not quite certain. My further question whether he believed it to be the Amter III and VI he answered in the negative. The shooting of a Commando troop in the north of Norway was mentioned in the examination of the defendant Jodl on the witness stand. The defendant Jodl was told that the prisoners had been shot by the SD. Thereupon the defendant Jodl declared, and I refer to Page 11014 of the record in German: "Not by the SD, that is not correct, but by the Security Police." I furthermore draw your attention to the affidavit of the defendant Keitel - SD 52 - who declared under oath that he only realized during the Trial at Nuremberg that the opinion frequently reigning also in military circles concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in military language and decrees, the SD was often mentioned when the competent police organ with executive power was meant. Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which had led to the wrong interpretation of the abbreviation "SD." In this connection also I refer to the affidavit of the former Chief of the General Staff of the Luftwaffe Koller (Document Jo 58, Page 179 and following in Document Book Jodl) In this affidavit Koller reports upon a conference with Hitler to discuss the situation. At this conference Hitler gave the order to transfer all bomber crews of the different Allied forces to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation: "The Fuehrer's conceptions are quite erroneous. The tasks, too, of the SS are constantly being misinterpreted. Such things are no concern of the SD." [Page 144] The French prosecution has submitted a great number of documents in which the SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission. Knochen was the Commander of the Security Police and the SD in France. In connection with these documents he said that there had been a confusion of words, and that SD should be interpreted as "police." Upon my question: "What does transfer to the SD mean?" the witness Knochen answered and I quote (Commission Record, Page 414): "This means transfer to the executive section, Amt IV of the Security Police." I showed the witness, Dr. Hoffmann, Document 526-PS before the Commission. Hoffman was an official of the Security Police and never belonged to the SD. Document 526-PS concerns the carrying out of a Commando order in a Norwegian fjord. This report states: "Fuehrer order carried out by SD." Upon my question to the witness Hoffmann, what was to be understood by SD, he answered literally: "Since this seems to be an executive measure, SD must here be interpreted as Security Police, since the Wehrmacht often mixed up the two ideas." The prosecution has furthermore submitted Document 1475-PS. This is a report of the commander of the prison of Minsk, dated 31st May, 1943, in which he reports that Jews had been brought into the prison by the SD, through Hauptscharfuehrer Ruebe, and that the gold bridges, fillings and crowns had been removed from their teeth. In this connection I have submitted Affidavit SD 69 of Gerty Breiter, a stenographer employed with the Commander of the Security Police and the SD in Minsk. Gerty Breiter states that Ruebe was an official of the State Police, and that the SD in Minsk had nothing to do with Jewish affairs. The sole activity of the SD in Minsk was to make reports upon the general moods and opinions of the public. There were no SD prisons in Minsk. This confusion of words is apparently due to the fact that the members of the SS Special Formation SD, which, as I said, in the introduction, was something entirely different from the SD Intelligence Service, wore the SS uniform with the SD insignia. In the territories occupied by Germans, all members of the RSHA, including all members of the Stapo and the Kripo, even those who were not members of the SS or SS candidates, wore the SS uniform with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police were considered to be SD measures. I refer in particular to the Commission Record, Pages 446-448, German, and to the Court Transcript, Page 14. THE PRESIDENT: Did you say then that all members of the SS, including the Kripo and the Sipo, when they were working in the East, were in the uniform of the SS with an SD badge on it? DR. GAWLIK: Yes. The witness has given this in evidence, your Lordship. THE PRESIDENT: Go on. DR. GAWLIK: In this connection I point out that about 90 per cent of all members of Amter III and VI were honorary, and only a small part of them belonged to the SS or were SS candidates (Affidavit SD 32). During the war, a large number of the members of the SD, Amter III and VI, were women. These persons were not entitled to wear the uniform of the SS Formation SD. According to the subdivisions of the Trial Brief against the Gestapo and SD, I shall discuss: (a) The charge of conspiracy. (b) Crimes Against Peace. (c) War Crimes. (d) Crimes Against Humanity. [Page 145] I shall now refer to the conspiracy charges. I still do not have Evidence III of the English Trial Brief against the Gestapo and SD. Amter III and VI are accused of having participated in a conspiracy to commit Crimes Against Peace, War Crimes and Crimes Against Humanity. There are three possibilities for an organization to be in contact with a circle of conspirators: (1) The organization can belong to the circle of conspirators. This presumes that all the members of the organization participated in the agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means. It must therefore be proved that (a) Such a plan existed. (b) All members adopted this plan as their own. (2) Organizations can have the aim and the purpose of supporting participants in a conspiracy. For this it is required that: (a) There must be a secret plan or an agreement. (b) The organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan, and (c) All members must have known of it and desired it. (3) The organization can be used objectively by conspirators, to carry out the secret plan without the members realizing it. In this case there can be no question of punishable participation of the organization, because the characteristic of a factual state of guilt is lacking. The organization is merely an unpunished tool and cannot be declared criminal. 1. The prosecution has submitted that not all participated in the conspiracy, but that all contributed to the offences (Transcript, Page 1690, German text). This indicates that the prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question. The punishable support of a conspiracy, also requires - (a) the existence of a secret plan, (b) the knowledge of the members. Therefore the existence of a secret plan and the members' knowledge thereof must also be proved. Hitherto it has in no way been shown that such a plan for the commission of Crimes Against Peace, War Crimes, and Crimes Against Humanity actually existed. This has already been presented in detail by the defence counsel for the principal defendants, and I do not want to repeat these statements, but I should like briefly to point out the following: A conspiracy cannot be considered proved until evidence is brought as to: (1) When, (2) Where, (3) Between what persons this common agreement was reached, and (4) What its contents were. Even if such a plan should have existed, it has in no way been shown that it was known to members of the SD, and that, therefore, they had the purpose in mind of supporting such a conspiracy with their activity. The prosecution has decided that such a conspiracy existed in particular from facts mentioned in the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations which participated had no knowledge of these things; this can be assumed as known to the Tribunal. If the fact of a secret plan for the commission of Crimes Against Peace, War Crimes and Crimes Against Humanity arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity. [Page 146] The facts which the prosecution produced to prove that members of the SD knew of a conspiracy cannot be regarded as "firm" assumptions, nor as "probable" assumptions, but at most as "light" or "rash" assumptions which are without significance. Furthermore, I believe that the examination of witnesses and the affidavits have brought proof that members of the SD had no knowledge that a secret plan for the commission of Crimes Against Peace, War Crimes and Crimes Against Humanity existed and that, therefore, there was no intention in the SD to support such a circle of conspirators with their activity.
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