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

The Trial of German Major War Criminals

Two Hundred and Fourteenth Day: Thursday, 29th August, 1946
(Part 5 of 14)

[Page 264]




Before dealing with the evidence against this organization, I would say a word upon the question of voluntary membership. Counsel for the SA has argued that membership was not voluntary; it is said that great pressure was brought to bear upon the German people to make them join one or other of the Nazi Party organizations and that, in the case of certain sections of the SA, not only was pressure brought to bear but membership was enforced by decree. On the evidence to which I shall draw your attention you may well think that if, as in certain cases there undoubtedly was, pressure was exerted upon individuals to join the Party, and in some cases, perhaps, to join this particular organization, the consequences of refusal as they have been pictured by the defences are very much exaggerated. It is submitted that even if you accept without qualification the evidence of some of these witnesses as to particular cases of compulsion, the evidence which you have as to the organization as a whole is perfectly clear: the membership was from the first until the last voluntary; never was there at any time compulsion recognizable in law as such, either physical or as a result of legal decrees.

The English law upon what constitutes physical compulsion sufficient to excuse crime has been clearly established for many years and is stated in Halsbury's Laws of England (Hailsham Edition, Vol. 9, pp. 23-24, Para. 20) in these words:

"A person compelled by physical force to do an act which, if voluntarily done, would be a crime, is free from criminal responsibility, but the person compelling him is criminally liable.

The use of threats inducing a person, from present fear of death, to join with rebels is, it seems, an excuse, so long as the person is under the influence of such fear. (11.) Subject to this exception, a person who commits a crime when influenced by threats or 'moral force,' or by the confining of his person, or by violence not amounting to actual compulsion is not excused. (12.)

[Page 265]

Necessity, in the sense of compulsion arising from hunger or from imminent danger to a person's own life or property, is no excuse for crime." (13.) Let me shortly discuss the evidence upon this point. The general service regulations for the SA published in 1933 laid it down that:
"He who cannot or will not subordinate himself is not suited to the SA and has to withdraw."
The Organization Book of 1940 states:
"Service with the SA is and remains voluntary .... As in recruitment for the SA no advantages may be promised and no pressure whatever may be exercised. The SA man should have the possibility to withdraw."
The witness Juettner agreed with that statement as correct. He was asked:
"Did it always remain a fundamental principle of the SA that membership should be voluntary?"
and answered:
"That was always the principle adhered to by the leadership."
He was asked again:
"If a man no longer agreed with the SA views, was he expected to withdraw?"
and answered:
"Numerous men left the SA for a variety of reasons."
By no stretch of the imagination can the evidence given in respect of the Reiterkorps be said to constitute compulsion, physical or by decree. It is true that the original riding organizations were arbitrarily amalgamated into the SA, but as the witness Walle, called on behalf of this branch of the SA, himself admitted:
"Membership in the SA was voluntary in 1933 and this did not change ... A man could resign from the Reiterkorps but he had to give up his sport inasmuch as the riding installations were no longer at his disposal."
"The Riders' Association," he said, "submitted to the process of co-ordination because it enabled them to continue their athletic activity."

You may think that it was during the years 1933 and 1934 that the activities of the SA were more obviously criminal to all the people of Germany than at any other time. How then can the loss of "sporting activities" constitute compulsion and afford an excuse for membership? Is the risk of the loss of a horse and stable to be regarded as legal justification for participation in murder?

It should be remembered also that both in the case of the Reiterkorps and the Stahlhelm, although those organizations may have been amalgamated with the SA by legal decree, there is no evidence before you that the decrees contained one word which might be construed as compulsion upon individual members to take up membership in the SA.

The Stahlhelm is in much the same position as the Reiterkorps, except that the evidence that Juettner gave before the Commission is clearer still. Let me quote from the transcript of his evidence:

Q. There was nothing, was there, to stop a member of the Stahlhelm withdrawing from the SA when the two organizations were combined in 1933?

A. As far as I was concerned in my district no member of the Stahlhelm who did not desire to do so would have been compelled to join the SA.

[Page 266]

Q. And that goes generally for the whole of Germany, does it not?

A. It is reported that there were instances in which members, of the Stahlhelm agreed to transfer only because it was ordered.

Q. But there is no instance where a man was forced to join or continue his membership?

A. No, sir."

Almost pathetic evidence was given of the fate that awaited civil servants if they refused to join - refused to join not the SA, be it noted, but any Party organization. But the witness Boley, who himself gave this evidence, showed how exaggerated it was when he admitted to the Commissioner that in those offices in which he was himself employed, only 18 per cent of the civil servants had become members either of the Party or of one of its organizations. And those offices were the Reich Finance Ministry and Reich Chancellery - the very heart of the Nazi Government.

The witness Freiherr von Waldenfels is another outstanding example of how a German who had the character to stand up for what he believed to be right could continue to do so without any dire results. Himself a civil servant and a leading member of the Stahlhelm in 1933, he resigned on its amalgamation with the SA, refused to join the SA , the Party or any other Party organization, yet nevertheless continued to hold his position until the end of the war.

Evidence has been given by the defence that university students were compelled by decree to become members of the SA. This contention has been supported by an order of the SA University Department in Munich, dated 16th April, 1934, which is contained in the SA Defence Document Book.

Upon that document I make two submissions: First, the references to "SA service" do not connote membership of the SA, but a course of training under SA direction; secondly, the sentence in Paragraph 3 "All newly matriculated students are therefore bound to join the SA" is not in accordance with the policy of the SA leadership and does not represent the practice in universities generally.

We have submitted to you another similar order, issued by the SA University Department at Cologne two days before. When that order is read with the Munich order it becomes apparent that this submission is well founded.

Paragraph 1 of both orders is identical. All students are to be "regimented by the SA University Department in order to be physically and mentally trained in a uniform manner in the spirit of the National Socialist revolution." In Paragraph 2 it is expressly stated that it is a matter of indifference whether they are members of the SA at all. Paragraph 3, while following the same form in both orders, differs essentially. In both cases the orders are said to be based upon the same decree of the Supreme SA Leadership of 27th March, 1934. We have not seen that decree, but Paragraph 3 of the Cologne order makes it clear that membership of the SA was not intended to be compulsory, as is suggested by the Munich order. It is evident also that the SA service, with which both orders are concerned is something different and independent from membership of the organization. How can compulsory "SA service" mean compulsory SA membership when is expressly stated that, except during the eleven days from 25th April to 5th May there is a ban on the enrolment of new members? The next words in both orders mark the essential difference between the two. In Munich students "are therefore bound to join the SA," while in Cologne they are "thereby offered the possibility of joining the SA." If the SA service which was to be compulsory for all German students connoted membership of the SA, there could be no question of "offering" them "the possibility" of joining. You may think that in Munich, the heart of National Socialism, the decree of the Supreme SA Leadership of 27th March was deliberately misinterpreted to suit the desire of a particularly fanatical Sturmfuehrer. On the face of the documents it is apparent that whatever was happening in Munich was not characteristic of every other university in Germany.

[Page 267]

Juettner confirms the case for the prosecution. He states:
"I have already stated that in some instances pressure has been exercised by organizations outside the SA, for instance, in the case of students and in the case of financing schools."
But in answer to the question:
"There was nothing which compelled a student to join the SA if he disapproved of what the SA stood for?"
He said:
"I share that opinion."
The fact is as he explained: where organizations were amalgamated with the SA "the vast majority of men were proud of the SA and proud to serve in the SA." If further evidence were wanted of the voluntary nature of this organization, both in theory and in practice, it is to be found in the steps which were taken by the SA leadership itself to reduce its membership after the large influx that had taken place in 1933 and 1934, by the incorporation of such organizations as the Stahlhelm and Reiterkorps and by the large numbers of candidates that flocked to every Party organization after the Nazi seizure of power. From 4,500,000 in 1934 the membership of the SA had dropped to 1,500,000 at the outbreak of war in 1939. Juettner explained the causes of this reduction. It was due partly to the Kyffhauserbund, another old soldiers' organization, being excluded from the SA. But it was due also to the introduction of examinations for their members, failure to pass which resulted in dismissal, and to the fact that those who "for reasons of their occupation were unable to do us a service and accordingly did not cheerfully continue to serve us in the SA" were also dismissed. Such a weeding out and reduction in numbers from 4,500,000 to 1,500,000 in five years is hardly compatible with the story of the whole of the German youth, the whole of the German civil service and of the population generally being compelled to become members of this organization. It is submitted that this is conclusive evidence of its voluntary nature.

How can it be maintained that all civil servants, whose total number the witness Boley gave as 3,000,000; 1,000,000 Stahlhelm members; 100,000 students; 200,000 Reiterkorps members; and others besides, were all compelled to join the SA, when the total membership of that organization in 1939 was only 1,500,000?

It may well be that upon a small unwilling minority pressure was brought to bear; that the consequences of refusal would have been serious. But this issue is to be decided upon recognized and established principles of law. Even were it not so, could we feel sympathy for these people? Did they show sympathy for the thousands of their fellow countrymen who were taken to the dreaded horrors of the concentration camps? Did they sympathize with the thousands of Jews who were slandered and persecuted unceasingly over the years?


You will remember that, when certain questions in connection with the organizations were argued before you in February, I stated on behalf of the prosecution that we did not seek a declaration of criminality against certain sections of the SA. We excluded:

1. All wearers of the SA Party badge who were not strictly members of the SA.

2. Members of the SA Wehrmannschaften who were not otherwise members of the SA. You may well think, having heard the evidence that you have of the crimes committed by the Wehrmannschaften in Poland and in the Eastern territories, that that branch of the SA ought not to be excluded. Nevertheless, we feel that many members of the units which were involved in those atrocities were also members of the SA proper, and we therefore respectfully submit that our original statement can properly stand.

3. Members of the SA reserve who at no time served in any other formation of the organization.

[Page 268]

4. The National Socialist League for Disabled Veterans.
It has been reiterated time and again that the prosecution are anxious to obtain a declaration of criminality only against those who bear a major responsibility for the crimes that have been committed. In view of this, and in view of the evidence that has been presented to you since February, we desire respectfully to recommend certain additional exclusions from among the general membership of this organization.

First, the total strength of the SA in 1934 was given you by Juettner as 4,500,000. That figure included 1,500,000 members of the Kyffhauserbund. Shortly after the amalgamation of that organization with the SA in 1933 the two were again separated. We respectfully recommend the exclusion of all those members of the Kyffhauserbund who did not retain their membership of the SA after that; separation.

Secondly, we believe that we are also justified in asking for the exclusion of certain sections of the Stahlhelm. So that you may understand the grounds for this recommendation, it may be of assistance if I briefly remind you of the structure and history of that organization. It was composed of:

1. The Scharnhorst, which was the Stahlhelm youth organization for boys under 14, with a strength of about 500,000.

2. The Wehr Stahlhelm, which included the Jung Stahlhelm (boys from 14-24 years of age) and the Stahlhelm sports formations (men from 24-35 years of age). The total strength of the Wehr Stahlhelm was 500,000.

3. The Kern Stahlhelm, which consisted of men between 36 and 45 years of age. Its strength has been given as 450,000.

The total strength of the Stahlhelm was therefore approximately 1,500,000 me and boys.

In 1933 the Stahlhelm was placed under the control of the Nazi Party. The Scharnhorst was transferred to the Hitler Jugend; the Wehr Stahlhelm to the SA proper; and the Kern Stahlhelm to the SA Reserve. Since we have already excluded the SA Reserve we are left to consider only that part of the Stahlhelm which was incorporated into the SA proper - 500,000 members of the Wehr Stahlhelm.

You have evidence both from witnesses and from documents contained in the defence document book that many of these 500,000 Stahlhelm members were opposed to their transfer to the SA and to the policies and aims of the SA and the Nazi Party. Many, including the witness von Waldenfels, refused to join the SA. It is a possible hypothesis that many more, although opposed to the policies of the SA, were prepared to join, in view of the assurance that was given to them that they would retain their independent character, identity and leaders in the same way as did the Reiterkorps, and that they would never be called actively to associate themselves with the SA proper. On the other hand, there can be no doubt whatsoever that many wholeheartedly joined the SA and participated to the fullest extent in its criminal activities. Juettner himself is an example, and he declared that he was by no means the only one. You will remember his evidence:

"Numerous SA men came to me in the first few months, who had formerly belonged to the Stahlhelm; like myself, they felt regret that their fine old organization was no longer in existence. But together with me they hailed the fact that they were now permitted to participate in this large community of the SA."
Speaking of his own district, he said:
"Really, after 1935 the nucleus of the SA was my old Stahlhelm organization; therefore many Stahlhelm men remained in the SA."
To exclude the whole of the Stahlhelm would entail the exclusion of men like Juettner and many other Stahlhelm members who were to form the nucleus of the SA.

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