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

The Trial of German Major War Criminals

Two Hundred and Eleventh Day: Monday, 26th August, 1946
(Part 10 of 12)

[Page 124]


Your Honours, President Roosevelt declared in his speech of 25th October, 1941, on the occasion of the shooting of hostages by German forces of occupation: "Civilized nations for a long time upheld the principle that none should be punished for the deeds of another person." Justice Jackson has declared on 28th February. 1946, that: "The aim of declaring the organizations criminal is to punish assistance in these crimes, though the real authors could never be found, nor identified."

Can they really not be found? Is the contrary not proved by the great number of trials, which I just mentioned before, for concentration camp crimes before Allied military courts, which pronounced 153 death sentences, out of 241 defendants? Does the prosecution still maintain that it has not yet found the real authors, though for more than a year all persons who had anything to do with the concentration camps have been under arrest, and though all detainees are today grouped in organizations and are at any time at the disposal of the Tribunal as witnesses? All files and documents, too, are in the hands of the Allies.

Despite that, and despite the discrepancy of these two quotations by Roosevelt and Jackson, I shall assume for a moment the point of view of the prosecution that such a collective criminality exists.

Then within its framework the principle still stands that none shall be held responsible for a crime which he did not commit. It means that in this case, too, the number of accused should be held as low as possible.

This limitation can be made in two ways, either separately or combined according to:

1. The degree of responsibility, that is, the position or the rank held in office;

2. The subdivisions of the whole organization known as SS.

The prosecution has to my knowledge already made this first limitation in its charge against the Party and the Government. From the Party, the Political Leaders only, and from the executives of the German State, the Reich Cabinet members only are to be put on trial.

As for the limitation of responsibility, a line must be drawn between moral and legal responsibility. The question must be asked, what each individual in his respective office should have done if he committed a crime upon order or only if he came to know about it, and what could reasonably be expected from him.

As for the limitation according to the subdivisions of the whole organization, it can be justified by the fact, which I have thoroughly explained, that these groups had very definite and separated spheres of activity and differed very much as to their knowledge of activities, and perhaps crimes. (Since I had to omit these passages, I ask again that the Tribunal read them.)

A sub-division as to beginning and end of membership, too, would be conceivable and would permit a collective exception of the mobilized members.

But even for a sentence limited in such a way, it seems to me absolutely necessary, in view of the heavy consequences brought about by Law No. 10, to insert in the formula of the verdict or to add to the reasons given for the verdict that each

[Page 125]

individual member would have the possibility of appeal, except against provisions of Law No. 10.

At last I want to draw attention to a procedural obstacle to the verdict which has been demanded: The meaning of the additional sentencing of a member of an organization as an accused individual belonging to this organization seems to me the following, according to Article 9: An organization shall be held responsible for the acts of an individual defendant who is its member only if between the acts of this individual defendant and his organization a connection exists so that for legal reasons joint liability of the organization is considered necessary. Such a connection exists only if the individual defendant committed the deed as a member of the organization, whether it be that by doing so he fulfilled the aim of the organization, or that he used the organization for its commitment. On 28th February, 1946, Justice Jackson stated: "Individual defendants, at least one of them, must have been members of the organization, and must have been sentenced for a deed by which the criminality of the organization has been ascertained."

In the case of the organization of the SS, which I represent, this means:

An SS organization can be declared criminal only if at least one of the defendants belonged to it, and was sentenced for a crime which he has carried out either through the organization, or which is to be considered a result of the aims of the organization, and has been committed in their realization.

With one exception, about which I am going to speak, all the defendants stand before this High Tribunal for acts which they have performed as the chiefs of important State or Party offices, but not of the SS, and which they carried out there in the fulfillment of their tasks.

The fact that a few of the defendants were holding honorary ranks in either one of the SS organizations is not enough to consider the SS organizations co-responsible for deeds for the carrying out of which they were not responsible and in which they did not share.

The defendant, Kaltenbrunner, might be an exception. He is indicted in his capacity as chief of the Security Police, that is, the Criminal Police and Gestapo, and the SS, also for those deeds which were carried out by the SD. But the SS organization cannot be incriminated by that. The Criminal Police is not indicted. The Gestapo is indicted as such. The indictment of the SD also must be considered as an independent one. It is true that it was connected originally with that against the SS, but soon the SD got its own defence counsel and throughout the whole proceedings it was treated independently. Since 1934 SD and SS were separated. A sentencing of Kaltenbrunner, therefore, would, if at all, give only formal basis for the sentencing of the organizations of the Gestapo and the SD, but not all of the SS.

As far as the method of the proceedings is concerned, I might point out that none of the defendants concerned was ever asked whether and to what extent he committed his deeds for the SS or as a member of the SS. This appears to me as a shortcoming.

I come to the end, gentlemen of the High Tribunal. I said in the beginning that this trial was a most gigantic criminal trial - but still a criminal trial. And therefore I venture to ask now, what purpose from the standpoint of legal policy could and would a sentencing serve? And I receive the traditional answer - retaliation and intimidation.

Certainly it is necessary to put a threat before the German people, and especially before the former Nazi formations, but also before the peoples of all the world which might ever be tempted to bow to dictators, or accept anti- democratic methods, and to make them face the severe consequences of the violations of International Law, the new universal law now incorporated within the Charter. This trial should be the last warning to those who do not heed these demands of the world, and of all their peace-loving citizens, for freedom of speech and religion, for freedom from want and freedom from fear. The war, the terrible consequences

[Page 126]

of the defeat, the detention of hundreds of thousands of prisoners of war, the painful months of the proceedings here, the political investigations and occupational limitations - all these are such impressive and threatening effects that they should produce the consequences which we hope for.

But, gentlemen of the High Tribunal, one thing above all: Your armies have freed Germany from the tyranny of Nazism; now will you free the world from the curse of retaliation. The world can recover only when once there shall be once and for all an end to the hateful slogans directed against races, nations, classes, or parties.

I say this, though I know that there will be. many SS men, just as there will be many on the side of the Allies, who will not understand the meaning of my words.

But they, too, sometime will come to recognize the eternal truth of the words: "I am here to love and not to hate."

And thus I would like to summarize my defence of the SS.

I accuse every one of the murderers and criminals who belonged to that organization, or one of its units - and there are more than a few of them.

I acquit the thousands and hundreds of thousands of those who served in good faith, and who therefore share only the moral and metaphysical, not the criminal, guilt the German people must bitterly bear.

But I warn - I warn the world and its judges against the commitment of mass injustice in legal form, against the creation of a mass of condemned and degraded wretches in the heart of Europe, I warn so that the longing of all peoples and men might be fulfilled.

May God bless your judgment!

THE PRESIDENT: Now, I think, the SD will come next.

DR. GAWLIK: I will adhere strictly to the ruling of the Court and only read parts of my statement.

May it please the Tribunal, I do not regard it as my task as defence counsel for the SD to palliate injustice or to avoid punishment for the people who are responsible.

In the proceedings against the SD, we are not concerned with the question whether individual persons must be punished for crimes committed. It is much more important to determine whether, according to the outcome of the evidence submitted, three thousand officially active persons and thirty thousand purely honorary office-holders, who were collected under the designation SD in offices III and VI, can be declared criminal.

I have to deal with this question alone. I have to prove whether the charge made against the SD by the prosecution is justified on the basis of the Charter, and so far as this is admissible according to the Charter, justified on the, basis of International Law, of national laws, and of legal principles developed by jurisprudence.

I shall first of all take a stand on the legal problem, in order to discuss in the second part of my presentation the factual circumstances under consideration of the result of the evidence.

The first part divides itself into two sections:

In the first section I shall discuss the questions arising from the law itself; in the second, the questions of procedure.

In the material legal part I shall first investigate the question of the organizations and groups in relation to the SD. Then I shall investigate (a) what prerequisites must be complied with in order that an organization or group can be declared as criminal, (b) what conclusions can be drawn from these confirmations. Finally I shall investigate whether the basis nulla poena sine lege is opposed to a sentencing of the SD.

I start with the explanation of the term "SD," the Security Service. This term has no unequivocal meaning. The SD was first considered to be: [Page 127]

(a) the SS Formation SD

(b) Offices III, VI and VII.

These were, as is shown from the interrogations of the witness Hoeppner, two completely different unions of persons.

(a) To the SS Formation SD belonged all persons who were members of or candidates for the SS, and who were employed with the Security Police or with other organizations of a police character (e.g., customs frontier protection) or with the SD Intelligence Service. This SS Formation SD had no task and no aims. It exercised no activity for a common general purpose. Its members never met for a common service or at other general gatherings. They lacked any feeling of solidarity, as they served independently of each other in different organizations. I refer particularly to the testimony of the witness Hoeppner before the Commission and before the Tribunal.

It was purely a matter of a registered compilation of SS members and SS candidates of certain professional groups.

The members of this SS Special Formation SD wore the SS uniform with the badge "SD" on the left sleeve. The different branches were thus not outwardly distinguishable.

(b) Regarding offices. 1. Offices III, VI and VII were the Home Intelligence Service, the Foreign Intelligence Service and the Scientific Research Service. They were the SD offices in the Reich Security Main Office (RSHA) which was founded in 1939, in contrast to the Security Police (Sipo) Offices IV and V. Office VI was united on 12th November, 1944, to the Military Counter-Intelligence to become the united German Intelligence Service. I refer here to Document SD No. 1 and Schellenberg's affidavit, SD No. 62.

There was, moreover, the Reich Security Service, but that was something else. The Reich Security Service provided the guard for leading personalities of the State. This organization did not belong to the Reich Security Main Office and it was also not part of the SS. The Reich Security Service was under the then Brigade Leader Rattenhuber, whose immediate superior was Himmler.

2. Offices III and VI of the Reich Security Main Office, the Home Intelligence Service and the Foreign Intelligence Service, are the ones indicted.

Office VII, although designated as SD together with Offices III and VI, is not indicted. I refer particularly to the minutes of the Commission of 23rd July, 1946.

When speaking in my further statements of the SD, I only mean by this the indicted Offices III and VI.

Offices III and VI of the RSHA were not organized until September, 1939.

In a formal sense, therefore, the prosecution can only refer to the period which has elapsed since that date. In contradiction to this, however, accusations have also been made against the SS relating to a time before that. Therefore, against the formal text of the Indictment, I shall also make the time before that the subject of my speech.

3. Offices III and VI were not indicted separately, but as a part of the SS.

The prosecution, therefore, considers the SS as an organization or group within the meaning of Article 6 of the Charter and the SD merely as a part thereof.

Is this right?

To decide this question, a definition of the terms organization and group within the meaning of the Charter is required.

The American and the British Prosecutors in their fundamental speech of 28th February, 1946, considered the following prerequisites as necessary for an organization:

1. an alliance of persons with an identifiable relationship.

2. a common, general purpose.

3. the voluntary character of the alliance.

[Page 128]

On this definition, which is also in accord with German jurisprudence (Juristische Rundschau 1928, page 688), I shall base my further arguments.

The decision, therefore, hinges upon the questions as to whether there existed between SS and SD:

(a) an identifiable relationship,

(b) a common, general purpose.

For the period up to the end of 1933 and beginning of 1934 this must be answered in the affirmative. I refer in particular to the statement of the witness Hoeppner.

For this period, therefore, the arguments of the defence counsel for the SS are applicable to the SD, and I shall in consequence make no fundamental statements for this period.

For the later period the question as to whether an identifiable relationship existed between the SS and SD must, however, be answered in the negative.

The Reich Security Main Office was not one of the offices of the SS Supreme. Command, as has been asserted by the prosecution. It is also not true that the RSHA was a department of the SS. In so far the prosecution contradicts itself, since the Secret State Police, which was Office IV of the Reich Security Main Office, is not indicted as part of the SS, but separately.

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