The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/02/21

[DR. KUBUSCHOK, Continued]

Just as little can one, to prove the criminal character
of the SA, use occurrences which took place entirely
outside the organization, occurrences about which "in
general it can no longer be justly assumed that members
were informed."

Accordingly, the defence of the SA has to prove that:
  
  1. There did not exist at any time a common and
  joint plan of the SA members to commit crimes of the
  nature indicated in Article 6 of the Charter.
  
  2. That neither at the time of their joining, nor
  during any other subsequent period of time, were the
  majority of SA members trained to establish the
  Party Programme or the special objectives of the SA
  by the use of illegal means, particularly by the
  employment of terrorism and violence.
  
  3. That if illegal actions have been established,
  the result of the examination and interrogation of
  many thousands of members showed that these
  happenings lack the characteristics of a plan
  involving the majority of the members, and that,
  therefore - since they were entirely outside any
  common, joint plan they can be charged only to
  certain individuals, or very narrowly defined
  categories or groups of persons within the SA.

It is not true that behind those horrible and shameful
events there existed, from the very beginning, a
general and common plan by a mass organization to
commit actions of this type, or that these actions
really "were so completely evident, or had become so
generally known to the members of the accused
organization in some other way, that it can be
generally assumed with justice that the members had
been informed of these purposes and activities."

As for the Crimes Against Peace presented by the
prosecution, it must be made clear first of all that
preparations for a war of aggression, if they are to
lead to the desired goal, must under all circumstances
remain secret. Even if it were true that the Reich
Cabinet or the General Staff had prepared a war of
aggression, there is an almost irrefutable assumption
that they not only did not inform the indifferent
majority of millions of SA members, but, on the
contrary, took particular pains to keep these
preparations secret. But if such preparations were
unknown, then the millions comprising the majority
could at no time have become aware that the defensive
war begun by the Reich leadership, was in reality, as
the prosecution contends, a war of aggression,
participation in which might perhaps be considered as a
crime against the peace.

Crimes against the customs and rules of warfare are by
nature individual actions of narrowly restricted groups
of persons or formations, which are likewise kept
secret by the higher leadership in order to prevent the
international legal principle of retaliation from being
applied. Even if it were possible to see a punishable
participation in the mere approval of such violations
of the recognized rules and laws of warfare, the
prosecution would still be confronted by the hitherto
unsolved, and probably also insoluble, problem of first
proving that at least the overwhelming majority of SA
members knew about such a planned commission of crimes
against

                                             [Page 215]

the customs and rules of warfare. Quite apart from
these assumptions, which are contrary to substantial
contentions of the SA, however, evidence can be
introduced by the defence, after questioning many
thousands of SA members, that if violations of the law
occurred, they turned out to be, according to a legally
necessary analysis by time and place, on the whole,
only independent actions by individual persons or
closely restricted groups of persons, lacking any
common goal; therefore, there is no justification for
treating them as "typical manifestations" of a uniform
plan which might justify characterizing the SA as
criminal.

It will not be possible, in the face of this evidence
of the defence, to advance the objection that the
conclusions drawn by the latter cannot be accepted
without reservation, because the investigation extended
to only a part of the millions of members comprised in
the Indictment against the organizations, and that,
therefore, a generalization of the result, such as
expressed in the conclusions drawn by the defence, does
not appear justified.

It is not the fault of the defence, your Honours, that
part of the members could not he heard, for in co-
operation with the General Secretary's Office, the
defence did everything possible to have the witnesses
brought from the Russian Zone and with whom, up to the
time when they were named as witnesses, it was still
able to correspond. I furthermore declare that the
members of the SA who live in the Russian Zone could
not be given the hearing to which they were entitled,
since, according to my information, most of them were
kept in ignorance of the charge against the
organizations. This is one of the most serious
objections against the trial, and will always remain in
history.

THE PRESIDENT: Dr. Boehm, that is a most improper
observation. There is no evidence that members of the
SA have been kept in ignorance. On the contrary, the
same notices have been posted in the camps in the
Russian Zone as in the other zones, and, moreover, the
defence counsel, Dr. Servatius, who has been in the
Russian Zone, has made no complaint to the Tribunal. We
consider that as an observation which no counsel ought
to have made.

DR. BOEHM: Yes, Mr. President, but it was precisely
from the mouth of my colleague, Dr. Servatius, that I
received this information.

THE PRESIDENT: Dr. Boehm, Dr. Servatius said no such
thing to this Tribunal. On the contrary, he said that
he had been properly treated in the Russian Zone.

DR. SERVATIUS: Mr. President, I have been in the
Russian Zone, and, in accordance with my wishes, was
able to visit two camps. In my final plea I have
pointed out and declared that, according to the
information placed at my disposal, the announcement was
made in all camps. I myself only had time to visit two
camps, which I picked out personally. Indeed, I have
also stated that here in Court.

THE PRESIDENT: Thank you.

DR. BOEHM: In that case, I must have completely
misunderstood the information which was given me, Mr.
President.

(Going on with document). Moreover, I should like to
stress the limitations imposed on the defence by the
fact that, in spite of all our efforts and the most
exact indication of the addresses, some of the
witnesses who live in other zones did not show up. In
particular, the witnesses Fust, Lucke, Alvensleben and
Wallenhoefer are missing. Because of the absence of
these witnesses, we also lack the statistics about the
SA and the relief fund that are necessary to form a
true judgment of the events before the year 1933, which
would have shown the terrorism employed against the SA.
Moreover, a part of the documents, which had been
requested and were approved by the Tribunal, did not
reach the hands of the defence.

Accordingly, the International Military Tribunal when
passing judgment can only proceed from the premise that
illegal acts were committed only by a limited

                                             [Page 216]

number of persons, or numerically restricted groups of
persons, whose activities can no more place the stamp
of "criminality" on the organizations as a whole than a
number of crimes, such as are found in any nation,
could characterize that nation as a criminal nation.

To sum up, from the point of view of the defence, one
may state that the charge raised against the SA
organization as a whole, and which in its effects
includes even the war dead, lacks those basic,
theoretical and material prerequisites the neglect of
which, implicit in any unfavourable decision of the
Tribunal, cannot be reconciled with "healthy popular
sentiment," any more than with the aspirations of the
United Nations, born from such painful experience, to
restore confidence in fundamental human rights, and to
create conditions under which justice and respect for
International Law can be maintained.

The prosecution states that the declaration of
criminality is necessary in order to create the
necessary conditions for convicting a large part of the
direct perpetrators who cannot be convicted
individually, as well as to punish their accomplices.
According to the charges of the prosecution, the
Supreme SA Leadership - to cite the main charges - must
have done or tolerated the following:

  (a) Prepared or planned, that is, ordered a war of
  aggression.
  
  (b) Tolerated or carried out atrocities or other
  crimes in the concentration camps.

The presentation of evidence has clearly established
that no orders were given to this effect by the Supreme
SA Leadership, and that no misdeeds were tolerated.

Moreover, the assertion that in most cases the real
perpetrators are not to be found is not true.

If a war of aggression really was planned, only a few
people, never 4,000,000, could have been concerned in
this planning. The perpetrators of the Jewish
persecutions, which were limited as to place and time,
are known, or can be ascertained. Since the localities
of the Jewish persecutions in November, 1938, are known
and the perpetrators can be convicted by witnesses or
else by documents, as is proven by the present trials
for the Jewish pogroms in 1938, for instance, in
Weissenburg and Hof, it is unnecessary to create an
assumption through a declaration of criminality,
especially since these deeds were repudiated by the
majority of SA members. In the same way, the localities
where concentration camps were situated and the names
of those responsible for the deeds committed there are
well known. This is borne out by the numerous trials
against concentration camp commanders and guard units.
Are millions of SA members, 70 per cent of whom were at
the front during the Second World War when these
terrible happenings took place in the concentration
camps, to be made responsible for them, when even
former ministers claim that they had no knowledge of
these events? Let the actual perpetrators be seized! A
collective arrest, however, of 4,000,000 men is
unprecedented and unique in the history of penal law.
It is inhuman and is based upon an extension of the
concept of "accomplice," which disregards all the legal
security and the principles of all criminal codes.

The basic idea in the conspiracy is that it is
punishable to join an organized group of persons which,
at the moment of joining, is already prohibited. The
persons joining, therefore, must be aware upon their
admission that they are committing an unlawful action.

A retroactive declaration of criminality, the aim of
which is to make proceedings possible against
individual members, violates the principle "nulla poena
sine lege." The International Control Council expressly
established this principle in its first law on the
administration of justice in Germany. The International
Tribunal cannot disregard a general legal principle of
the inter-Allied legislative organ, which is
authoritative for Germany.

In case of a declaration of criminality, still another
principle would be violated. By their recognition of
the German State and thus of its leadership, by their
constant participation through representatives at
noteworthy occasions, such as at SA manoeuvres, also by
different agreements, the Allied Powers gave evidence

                                             [Page 217]

that they recognized the German leadership and its
organizations as legal. The document which I quoted, SA
229, "The Political Ordinances of the Inter-Allied
Rhineland Commission and their Application in the years
1920-1924," established that on the 21st of March,
1925, the Rhineland Commission revoked the ban on the
German Liberty Party (Freiheitspartei) and the National
Socialist Party. An affidavit from the Palatinate
(Affidavit General SA No. 42), which was submitted by
the defence, shows that all social functions organized
by the NSDAP and the SA were approved by the French
occupational authorities before the year 1930. The
foreign offices of the Allied nations must have had a
better insight into the overall political situation
than millions of ordinary SA men who, considering the
political situation, could not have been aware that
they were committing an illegal act by entering or
remaining in the SA.

The present prosecution of an organization which was
recognized at that time contradicts the universally
accepted legal principle: "Nemo an factum proprium
venire potest," that is "Nobody may act in
contradiction to his previous conduct." This principle
of Roman law, which is used as a rule of interpretation
in the League of Nations, claims universal validity.

Concerning the SA, the prosecution employs a number of
over-simplifications regarding purpose, place, time,
and assisting-groups of persons which alone enables it
to provide a basis for the declaration of criminality.
In other words: the prosecution acts as if throughout
the entire time there had existed a uniform
personality, "the SA," with uniform leadership,
responsibility, common purpose, intention, membership,
and uniform conduct. Without such generalizations the
prosecution would never accomplish its aim; for
instance, in the question of aggressive warfare and the
persecution of the Jews. By doing so it ignores the
real problem of mass liability which can be solved
justly only by a great number of individual statements,
and which requires the investigation of the agreement
of action and aim in a majority of the members. In
contrast to such an opinion, we cannot stress too
strongly the actual schism among the SA concerning the
objectives of the leadership circles, as well as of the
membership, and the limitation in time and space of the
deeds which stamp the things which happened, within an
organization of four millions, as nothing but
occurrences restricted to time, locality and persons
which took place during a period lasting over twenty
years. It would have been necessary for the prosecution
to prove that the majority of the members of the SA had
the intention, the inner will, and the knowledge of the
criminal purpose and its component elements, as well as
that they were generally aware of its unlawfulness. As
this is impossible, they put forward the theory that
the facts of the case and the objectives were so
obvious that anyone could have recognized them. If all
this was so clear to millions of ordinary people why
did the Allies maintain relations and make agreements
until 1939 with this nation which was governed and
controlled by bands of criminals? The theory that with
this state of affairs the members could have known and
ought to have known the criminal aims and deeds
involves the abandonment of any real examination of the
knowledge of the majority of the members.

Practically speaking, the prosecution content
themselves with the fiction of premeditation. In doing
so it overlooks innumerable speeches which were made in
order to deceive the German people, it forgets:

   (1) that quotations from foreign sources concerning
   the value of the National Socialist State were
   reprinted in the Press;
   
   (2) that in the course of these twelve years the
   actual events were presented to the German people
   and to the majority of SA members in a veiled or
   cleverly justified form.

That, furthermore, premeditation can only be considered
in conjunction with concrete facts, to which I propose
to refer later, is so obvious that it is unnecessary
for me to say anything further. I merely want to point
out that innumerable affidavits contained in the
collective summarization which I have submitted prove

                                             [Page 218]

the ignorance of, and icon-participation in, the
following crimes: persecution of the Jews, the planning
of a war of aggression, or the commission of atrocities
of all kinds.

But above all I should also like to point out that
there is no connection between the main defendants and
their actions and the membership in the SA. The SA can
- if at all - be rendered responsible only for actions
committed by persons in their capacity as members or
leaders of the SA, but not for those committed by them,
for instance, in their capacity as Reich Ministers,
Reich Leaders, Gauleiter, Regional Commissioners, or
other functions. Apart from his brief guest appearance
in the SA before the 9th November, 1923, Goering played
no part at all in this organization. Later on, his rank
was only that of an honorary leader. The same applies
to the defendant Frank; the SA cannot be rendered
responsible for his alleged deeds as Governor-General
of Poland. He was not the leader of the SA formations,
which were composed of the German nationals and racial
Germans employed in Poland. Rosenberg, Bormann,
Schirach, Streicher, Hess and Sauckel had no
relationship with the SA. As the witness Juettner
emphasized in his evidence, Bormann was one of the
bitterest opponents of the SA. Streicher was the man
who removed SA Obergruppenfuehrer Stegmann.

The propaganda, to which the prosecution has also
fallen victim, shows a National Socialist State in
which the Party, the State and the armed forces on the
one hand, and the Party and its organizations on the
other, represent one uniform whole. In relaity [sic],
there existed profound divergencies. It was just these
divergencies that gave Adolf Hitler an unheard-of power
over people and an unheard-of independence, which he
only availed himself of with a few confidential
friends, as is now becoming evident for the first time.
In this connection I shall only recall the divergent
views held within the Party, as well as among the
leading men such as Goering Goebbels, Himmler and Lutze
on the Church question and the Jewish problem. For the
average man and the average member of an organization
it was no simple thing to perceive and find a clear
line leading through this diversity of tendencies.

However, none of the problems, especially these of war
and peace, were of such a kind, as regards their
solution, that they could be the object of a
conspiracy.

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