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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
August 26, 1946

Two Hundred and Eleventh Day: Monday, 26th August, 1946
(Part 7 of 12)

[Page 111]


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-

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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 utilize.

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

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are only two judgments concerning the inhuman fighting methods of the SS, for example the shooting of prisoners, one against SS General Kurt Meyer (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 indictment.

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

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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 counter-evidence.

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 them.

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 on.

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 in

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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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