The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-First Day: Friday, 1st March, 1946
(Part 2 of 9)

[DR. LOEFFLER continues]

[Page 78]

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 elected.

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

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 record.

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

[Page 80]

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 proceedings.

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 altogether,

[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 taken.)

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