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

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 13 of 13)

[Page 250]

[DR. BOEHM, Continued]

Besides that, there was no reason to refuse to work for the national community, since criminal aims, methods and activities of any kind were unknown. This was clearly shown by the collective summarization of 17,089 affidavits. Moreover, the conduct of persons who were enrolled by virtue of orders, that is, by legal coercion, cannot constitute a legal charge if the involuntary character of their enlistment has been proved. To sum up once more, in conclusion I might say:

1. It has been proved that if illegalities occurred, these acts were only acts by individuals and consequently cannot be charged against the organization.

2. That the SA Leadership neither ordered nor tolerated those abuses, and is therefore free from guilt.

3. That these excesses are in no way to be traced back to a criminal education or in any way to a conspiracy with criminal aims.

Truth and justice demand that an organization of millions, or its leadership, should not be declared criminal on account of these abuses by individual members of the organization, after it has been established that the leadership at no time aimed at criminal actions, and that the bulk of the members of the organization never committed any criminal acts. The fact that several of the principal defendants were honorary leaders of the SA in no way alters the evidence presented in regard to the SA. When for a short time Hermann Goering headed the SA it numbered only a few thousand men. At that time it was no different from the Reichsbanner of the SPD.

The Leadership Corps of the SA was composed neither of ruffians nor political flotsam. A few leaders - five altogether - who had not proved satisfactory were eliminated during the events of 30th June, 1934. This is the only criticism which can be made against Roehm, the Chief of Staff at that time, that although he aimed at order and legality in his political actions and dealings, he did not expel these five persons at the right time and thereby played into the hands of his opponents. This involved four per cent of the Senior Leadership Corps, and therefore a small fraction which never could justify a conviction. Among the salaried Obergruppenfuehrer, and Gruppenfuehrer of the period from 1934 to 1945 there was not a single one who had been previously convicted. The Supreme SA Leadership had to require this of its members because there was also a regulation that the ordinary SA member had to furnish a certificate of good conduct from the police upon his admission. None of them was one of the so- called failures in life. They all had been trained for a definite profession, with good opportunities for advancement, before they entered the Leadership Corps of the SA as a salaried member.

That the political objective of the SA was based on patriotism alone has been conclusively shown by the evidence. Roehm did everything to strengthen the idea

[Page 241]

of community among the German people. His aim was to strengthen the confidence already won. He fought against the abuses which occurred during the political revolution. He wished to win over the trade unions and not to crush them. Lutze, a weak personality in himself, repeatedly challenged occurrences and measures within the Party. He put himself in opposition to the leading Party line. In an affidavit which I have submitted in evidence it is stated that he condemned the so-called "Nazism" of the NSDAP. This is also the chief explanation of his universally known and implacable opposition to Himmler and Bormann. There was hardly a question on which he, as SA Chief of Staff, agreed with either of these men. This applies especially to the question of the "master race" and the attitude towards the Jews; to the Church question, as well as to the attitude towards political opponents.

If the Tribunal is seeking objectively for the ones guilty of the unspeakable disaster which has befallen the whole world, then they might proceed from the point of view of the individual. We also find this point of view in a speech of Pope Pius XII, which he made on 20th February, 1946. I quote:

"Erroneous ideas are circulating in the world which declare a man guilty and responsible solely because he was a member of or belonged to a specific community, without making any effort to examine or to investigate whether there really exists a personal responsibility on his part for certain acts of commission or omission.

"That implies the arrogation of the rights of God, the Creator and Redeemer, who alone, in the mysterious planning of His always loving Providence, is the absolute Master of events, and as such, when He so decides in His eternal wisdom, links together the destinies of the guilty and the innocent, the responsible and the irresponsible."

DR. PELCKMANN: May I claim the attention of the Tribunal for just a few minutes. In my plea on Monday, I omitted important statements, for example, those concerning Germanisation, the Einsatzgruppen, the concentration camps, and mass exterminations. Instead of discussing these I referred them to my written plea. The President has repeatedly declared that the Tribunal is willing to study these written statements by all the defence counsel. Yesterday the Tribunal ...

THE PRESIDENT: When did they receive them? I say, we will study them when we receive them; we have not yet received them.

DR. PELCKMANN: That is just what I meant, your Lordship. Today I learned through the General Secretary and the translation section that an English translation will not be prepared for the judges. I do not know whether there is a Russian or French translation available for the judges. Without the parts I omitted, and, particularly without the appendix, which I often quoted, my final speech is incomplete and cannot be understood. Therefore, I shall give the Tribunal a complete copy of my plea with the appendix in German and ask respectively for a translation.

THE PRESIDENT: That will be done in every case. Dr. Gawlik?

DR. GAWLIK: Your Lordship, I also ask permission to submit a complete copy of my plea for translation as I have omitted important parts, too.

THE PRESIDENT: Certainly, certainly. Would the prosecution like to begin today?

SIR DAVID MAXWELL FYFE: May it please the Tribunal.

[Page 242]


In 1938 Hitler spoke in the Reichstag, and I quote his words:

"National Socialism has given the German people that leadership which as a party not only mobilizes the nation but also organizes it. National Socialism possesses Germany entirely and completely .... There is no institution in this State which is not National Socialist."
We know now the kind of leadership that National Socialism did give the German people. We know how and for what purposes the Nazi Party mobilized and organized the German nation - for world dominion at the cost of war and murder. The entire and complete possession of Germany by National Socialism meant the possession of the people, body and soul, by the organizations of the National Socialist Party and Government.

For what purpose were the Nazis seeking this possession of the people? Their aims were to have a controlled but fanatical police State geared for military aggression. If one imagines an "ersatz" Machiavelli adumbrating what this required, he well might have considered necessary:

(1) A quick method of registering your laws and decrees. For this you need a pliant and complacent Cabinet with full legislative powers - the Reichsregierung.

(2) Quick suppression of any signs of opposition or freedom of thought. Here you want an espionage service and a police which will strike at once - the SD and the Gestapo.

(3) A complete check and control of public opinion. This is provided by the pressure of a fanatical Corps of Political Leaders on a propaganda-soaked public.

(4) A Praetorian Guard who will rid you not only of any "turbulent priest" but of any person with a creed of their own, and so you have the SS.

(5) A spreading executive hand which will grasp the population in its clutch for physical training and mental preparation for war; which will thrust that population forward and downward when general violence is necessary; which will hold it firm in the ideologies of terror at home and abroad. What could be more suitable than the SA who had just won "the battle of the streets."

(6) An instrument to turn your existing military forces to your purposes; to make them ready to commit any act even if it is contrary to military tradition and repugnant to soldier-like qualities; to give unquestioning assent to the enslavement of other nations. To co-operate and hold the ring for the agencies of oppression to destroy national life and the dignity of the human spirit. This was the function which the General Staff and High Command must perform.

Ruthlessness in government, delation, absence of free thought and speech, internal suppression, external trained and calculated force. These are the eternal interlocked weapons without which tyranny cannot flourish. These are but other names for the organizations which we have indicted as criminal, and by which these defendants and their colleagues were able to lead and organize and possess a nation.

When Mr. Justice Jackson addressed this Tribunal on 28th February, he emphasized that it was not our purpose to convict the whole German people of crime. I say again that we do not seek to convict the people of Germany. Our purpose now is to protect them and to give them opportunity to rehabilitate themselves in the esteem and friendship of the world. But how can this be done if we leave amongst them unpunished and uncondemned those elements of Nazidom which were most responsible for the Nazi tyranny and crimes and which, as this Tribunal may well believe, are beyond conversion to the ways of freedom and righteousness?

Nor is it only the German people that we seek to protect. All Europe needs protection. Consider the position of Europe today. Among the Germans who

[Page 243]

were Hitlerites there are many thousands of men and women who, with their own hands, have done murder - murder not only of single persons, but of many. Hundreds of thousands, nay, millions more, became disciples of their Fuehrer's creed of hate and cruelty. Amongst them are those whose profession and training was to command and lead, militarily and politically, men who are still as fanatical and ruthless in their lust for power as at any time during the last twenty- five years. You remember the words:
"Fight? Why do you always talk of fighting? You have conquered the State and if something does not please you then just make a law and regulate it differently! Why must you always talk of fighting? For you have every power! For what are you still fighting? Foreign policy? You have the Wehrmacht - it will fight the battle if it is required. Domestic policy? You have the law and the police which can change everything which does not agree with you."
Such were the precepts of "Hoheitstrager" - bearers of National Socialist sovereignty. They are not forgotten in a day.

Should these men be let loose amongst the German people and amongst the people of Europe? Already the difficulties of this unhappy continent are overwhelming. Apart from those who come within the definition of these organizations, a vast number of fanatical adherents of Nazidom must in any event remain at large. We have a whole generation of the German people who know no other ways than those prescribed for them by their Nazi rulers - young men and women whose first lessons were taught by Nazi teachers, whose education was obtained in Nazi schools, and whose sport and recreation were found in the military exercises of the SA. Are the leaders of Nazi Germany - in the shape of the members of these organizations - to be let loose to work their influence upon such fertile ground?

The law is a living thing. It is not rigid and unalterable. Its purpose is to serve mankind, and it must grow and change to meet the changing needs of society. The needs of Europe today have no parallel in history. Never before has the society of Europe faced the problem or the danger of having in their midst millions of ruthless, fanatical men, trained and educated in murder and racial hatred - and in war. It is a situation which, were there or were there not precedents from the past, would justify and indeed compel unusual legal provision. In fact, as the Tribunal will remember from the speech of Mr. Justice Jackson, there are ample precedents for the procedure which we are asking you to institute. If you are satisfied that these organizations as a whole are criminal, that the great majority of the members of these organizations knowingly and voluntarily supported the criminal policies and participated in the criminal activities of the leaders of the Nazi Party, then it is your duty under the Charter to declare them criminal. You may well think that your duty under the Charter is only commensurate with your duty to Germany, to Europe and the world.

The principle on which their condemnation is asked for is clear. It is a practical application of the sound theory of punishment which we learnt in our youth - from, among others, that great German thinker Kant. If men use society merely as a means to their own ends, then society is justified in putting them outside society. The immensity of the problem does not excuse its non-solution. The failure to perform this legal duty may well spell terror and racial persecution throughout a continent, and, for the third time in our adult lives, world war. The Tribunal and the prosecution have had the advantage of reading what is, if you will allow me to say so, a careful and learned argument from Dr. Klefisch. The criticism, however, which I should venture to make is that it is remote from the essential fact-finding function of this stage of the trial. The first thirty pages are in reality an attack on Articles 9 and 10 of the Charter, and the conclusion which is drawn that the Tribunal should use the word "may" in Article 9 as a basis for saying on purely a priori reasoning that no organization can be criminal is,

[Page 244]

in our submission, to make nonsense of Articles 9 and 10, and to fly in the face of their connotation as well as their intent.

In the succeeding parts of the argument Dr. Klefisch makes certain particular submissions to which attention might be drawn.

The question is posed by him to what extent in number, how and by whom must crimes be committed in order to be imputed to the organization? To this we say that the practical answer presents no difficulties. No one can lay down categorically how many grains make a heap, but equally, no one can deny that he knows a heap when he sees one. Again, it is easy to decide on sensible grounds what crimes are within the general aims of the organization. The prosecution not only accept but adopt the proposition that in the case of each organization certain crimes can be said to be typical and repetitive, and they draw attention to the number of such typical and repetitive crimes which occur in the evidence.

Similarly, no difficulty is found in the words "in connection with an individual defendant." To say that if an individual defendant committed his crime in a capacity other than that of a member of the organization, Article 9 is not complied with, is to view this case in a non-existent vacuum. It is the whole burden of the prosecution's case that individuals and organizations are so interlocked that the common end of internal and external domination is omnipresent.

Equally, we strongly contest the suggestion that a number of members were not aware of the criminal purpose of the organizations. Let us once and for all tear aside the artificial suggestion that large sections of the adherents to the Nazi Party were going about in blinkers. It is a travesty of the facts and an insult to their intelligence.

We agree with Dr. Klefisch that non-participating in crimes under Article 6 of the Charter, and a lack of will to support the policies and activities of the organization, are the preconditions of innocence. It is the basis of our whole submission that, to use Dr. Klefisch's own words, "The members did subordinate and work continually for the aims of the organizations and the Nazis."

THE PRESIDENT: Sir David, would it be convenient to break off there or do you want to go on a little further?

(The Tribunal adjourned until 29th August, 1946, at 10.00 hours.)

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