Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08

by Various

Morning Session

THE PRESIDENT: At the conclusion of the argument on the organizations, which the Tribunal anticipates will finish before the end of today’s session, the Tribunal will adjourn into closed session. Tomorrow morning at 10 o’clock the Tribunal will sit in open session for consideration of the applications for witnesses and documents by the second four defendants. Will the defendant’s counsel who was in the middle of his argument now continue? Dr. Merkel, had you finished?

DR. MERKEL: Yes, Sir.

DR. MARTIN LÖFFLER (Counsel for the SA): May it please the Tribunal: The objections and misgivings expressed yesterday by the Defense regarding the criminal proceedings against the six accused organizations are particularly applicable when judging the SA.

No other organization is so much exposed to the danger of a sentence contrary to our sense of justice as is the SA. I ask the Tribunal’s permission to submit the reasons for this fact.

The demand of the Prosecution that the SA should be declared a criminal organization affects at least 4 million people at a conservative estimate. The limitation according to groups approved yesterday by Justice Jackson was gratifying and welcome; but it will have no appreciable effect on the numbers since the groups eliminated yesterday, the armed SA units and the bearers of the SA Sports Badge, were not full members of the SA. The only persons so far eliminated, therefore, are the SA Reserves. As no limitation according to time was made, these criminal proceedings will include everyone who ever belonged to the SA, even for a very short time, during the 24 years between its establishment in 1921 and its dissolution in 1945, that is to say, during a period of almost a quarter of a century.

We heard yesterday from the Prosecution that the criminal acts charged to the organizations are the same as those charged to the main defendants, namely, Crimes against Peace, crimes against the laws or customs of war, and Crimes against Humanity, as well as participation in the common conspiracy.

If we now contemplate the possible participation of these 4 million former SA men in these four important categories of crime, we get the following picture:

Crimes against the laws or customs of war are not charged to the SA. It is true that the Prosecution presented an affidavit saying that the SA also took part in guarding concentration camps and prisoner-of-war camps and in supervising forced labor; but, according to the presentation of the Prosecution, this did not occur until 1944 within the framework of the total war raging at that time, and it has not been charged that this activity of the SA involved any excesses or ill-treatment.

In none of the atrocities reported here by witnesses and documents did the SA with its 4 million members participate. The few offenses against humanity charged to the SA by the Prosecution and committed by individual members in the course of almost a quarter of a century can in no way be compared with the serious crimes against humanity of which we have heard here.

The occupation of the trade-union buildings by the SA, adduced by the Prosecution as another point, took place on the order of Reichsleiter Ley, who used the SA for this operation, and this happened after the seizure of power.

Even the Prosecution did not assert that any outrages, ill-treatment, or excesses occurred when this operation was carried out. The fact that in connection with the seizure of power in the spring of 1933 individual excesses occurred, and that the American citizens Rosemann and Klauber, according to the affidavits submitted by the Prosecution, were beaten on this occasion is certainly regrettable. However, such excesses on the part of individual persons are unavoidable in organizations comprising millions of people and, considered by themselves, are hardly proper grounds for declaring the entire organization criminal.

The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the Prosecution, restricted to single exceptions and ended anyway in 1934. The commandant of the Concentration Camp Oranienburg, according to the presentation of the Prosecution, was an SA Führer. However it is not asserted that he committed any atrocities.

The second case, the ill-treatment of prisoners in the camp of Hohnstein by SA and SS members in 1934 led to criminal proceedings and the SA men guilty were sentenced to imprisonment of up to 6 years.

As a last individual act there remains the participation of the SA in the excesses during the night of 10 and 11 November 1938, when the windows of Jewish stores were broken and the synagogues were burned. Here, too, the plan and the order did not originate with the SA. The SA was simply commissioned by the highest Party leadership to carry out this order. Finally if we consider that during the political struggles of 1921 to 1933 the old SA was involved in brawls—often purely defensive—with political opponents and that it did not develop into an organization with millions of members until after the seizure of power, we arrive at the following conclusion, expressed in figures:

On the basis of the presentation of the Prosecution at most 2 percent of all the indicted former SA members participated in punishable individual actions; 98 percent of the 4 millions, according to their conviction, kept their hands clean of any such punishable individual acts.

Here, too, the Prosecution will not want to insist that the excesses of these 2 percent considered by themselves should brand the entire organization as criminal. These 98 percent, that is in round numbers 3,900,000 former SA members, must nevertheless defend themselves here against the charge of having participated in the preparation of the war of aggression or in the planning or execution of the common conspiracy, or, formulated more strongly, against the charge of having belonged to organizations which pursued these criminal purposes.

What is the result if we apply the definition of the criminal nature of an organization as formulated yesterday by Justice Jackson and Sir David Maxwell-Fyfe?

The SA members will acknowledge that the criteria under Points 1 and 2 as defined yesterday are also true for the SA, namely, that the SA was an aggregation of numerous persons with collective aims and a membership which was voluntary in principle. However, they will strenuously deny the application of the Criteria 3, 4, and 5. Point 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. The millions of members, if testifying here, would state that neither in the programs nor in the speeches of their leaders had they been called upon to pursue such criminal aims or methods. Whether the leaders of the SA pursued such criminal aims in secret or not these people are not in a position to judge. Whether such criminal aims were pursued secretly by the leadership of the SA can be determined only by the Tribunal, and only now when the archives have been opened, witnesses can testify, and the documents are laid open to the Court.

Now, Point 4 of the Prosecution’s definition, if I understood Justice Jackson correctly yesterday, requires, beyond this, as an element of crime involving subjective guilt, that the aims and methods of this organization were of such character that a reasonable, normal man may properly be charged with knowledge of them.

I should like at this point to emphasize particularly that I, in agreement with my colleagues, do not consider this definition an adequate protection, since it means that a member may be punished even if he did not recognize the criminal nature of the organization but ought to have recognized it by application of reasonable care. I know of no system of penal law in any modern civilized state which holds that negligence, even of a gross or serious nature, is sufficient to constitute guilt of an infamous common crime, that is, of a crime belonging to the group of severest offenses. A crime of this category can be committed only with intention. Perhaps the Prosecution can later discuss this question on the basis of their knowledge of the particulars of Anglo-Saxon and other foreign legal systems.

This point seems of particular importance to me because—if it is neglected—there is the danger that the judges, particularly the Anglo-Saxon judges, will apply the political standards of their countries to German conditions. The sober political instinct that is characteristic of the citizens of England and America is nonexistent in the Germans. We are a politically immature people, credulous, and consequently especially susceptible to political misguidance. The Court should not overlook this dissimilarity when passing its judgment on the good faith of the individual members of the organizations. According to the impressions which the Defense of the SA has received to date from its visits to camps and from numerous letters, the majority of SA members are convinced that they did not belong to any criminal organization. Among other reasons are the following subjective ones:

It was generally known and has been specifically stated in the Organization Book of the Party—Document 1893-PS, Page 365—that only a person whose character was unobjectionable could join the SA. It is further stated verbatim, and I quote: “Unobjectionable reputation and no criminal record.” The members of the SA maintain that they know of no case in which a gang of criminals or conspirators required in their statutes similar conditions for membership.

Part of the essence of a conspiracy is the idea that its criminal aims be kept secret from its opponents. An organization of several millions is, by its very nature, not suited to carrying out a plot. The leaders of the SA emphasized in numerous addresses that they wanted to maintain peace under all circumstances. They pointed out that Germany would be rather a danger to European peace if she were without defense and arms in the heart of Europe and that being in a state of preparedness was the best guarantee for securing future peace in Europe. The simple members point again and again to the fact that foreign powers gave diplomatic recognition to the leaders of National Socialism. They consider this fact not simply an act of “international courtesy” but are convinced that foreign governments would not have entered into relations with the German Government if that German Government had consisted of open criminals.

I might mention a particularly characteristic example: the Indictment against the SA is substantiated by a number of documents. These are Documents 2822- and 2823-PS. According to these documents, as early as May 1933 Lieutenant Colonel Auleb, a deputy of the Reich War Ministry of that time, was detailed to the high command of the SA in order to assure liaison between the heads of the two organizations. But the whole affair is treated as strictly secret, and it is ordered that Auleb should wear the SA uniform for the purpose of “camouflage.” How, I ask, should or could a simple SA member have known anything of such affairs? I have mentioned here only a few points put forward by SA members which, in the opinion of the Defense, do not constitute unfounded subterfuges, but which show that the majority of these people never thought of participating in a criminal conspiracy.

Also the fifth criterion set up yesterday by the Prosecution to define a criminal organization—the close connection between the main defendants and the SA—is in the case of no organization so difficult to prove as in the case of the SA. This may, at first, sound surprising; of the main defendants here, six were high-ranking members of the SA. Nevertheless, a closer scrutiny shows that there were no close connections at all. Except for Göring, none of the main defendants ever exercised command authority over the entire SA. The rank which these main defendants had in the SA was an honorary rank; and, so to speak, merely decorative. Consequently, the Prosecution has mentioned only Göring’s connection with the SA in its recent list of the criminal elements. But even Göring’s connection with the SA curiously enough is very slight and is actually confined to a period of three quarters of a year—that is—9 months, namely, from February 1923 to 9 November 1923, that is to say, 23 years ago. Göring was never, as stated in Appendix A of the Indictment, Reichsführer of the SA. That is an error. Rather, in February 1923 Göring was commissioned to take over the command of the then existing Party group for the protection of meetings—the so-called Sturmabteilung. Göring led the SA until the November Putsch of 9 November 1923. On that day his command power over the SA came to an end and was never revived. Later Göring was given by Hitler honorary command of the unit Feldherrnhalle. He was the honorary commander, not the active commander of this unit. I believe the difference between honorary and active command of a regiment is known in all states. I do not have to give any further explanation. Honorary command has a purely decorative significance.

The task which the SA had to carry out under Göring in the year 1923 was the protection of meetings. Anyway, it cannot be charged that at that time the SA, in co-operation with Göring, already planned the crimes stated in Article 6 of the Charter or that these aims could have been anticipated at that time in any tangible form. Neither can it be charged that Göring ever made use of the SA after 1923 for carrying out any criminal plan. The man who led the SA from 1930 to 1934, Ernst Röhm, was an embittered opponent of Göring’s. After his death the SA was led by Victor Lutze from 1934 to 1943 and from 1943 until its dissolution, by Wilhelm Schepmann.

According to Article 9, Paragraph 1, of the Charter, an organization can be declared criminal only in connection with any act of which a main defendant may be convicted. From a legal and factual point of view I have the gravest doubts as to whether the facts of the case in 1923, as described by me, are sufficient to comply with the requirements of the Charter as far as the SA is concerned. This could be done only if the Tribunal had reason now to pass sentence on Göring’s activity as leader of the SA group for protecting meetings 23 years ago, including the November Putsch, as a special crime. This, however, would be at variance with the fact that this entire action was settled with legal effect by the amnesty of the democratic Reich Government, whereby the matter was, at the time, disposed of in this fashion.

May it please the Tribunal, if it is a fact in the case of any organization, then certainly it is a fact in the case of the SA, that its being listed among the criminal organizations is contrary to the real picture. Large circles abroad, particularly those who were forced to leave Germany in 1933, knew nothing of the complete change of structure which the SA underwent during the following years. The foreign countries heard at every Reichstag session the traditional song, “The SA Marches,” while, as a matter of fact, the SA had long since lost all political influence and had been transformed en masse into an association with a huge membership, the very size of which rendered it harmless as far as conspiracy was concerned and which showed all the characteristics of the so-called German club-mindedness. I refer in full here to the statements made by Colonel Storey, himself, in his speech for the Prosecution. This is on Page 1546 of the Court’s Record (Volume IV, Page 138). The organization through which the SA was then eliminated from political life was, as is well known, the SS, and this happened on the occasion of the so-called Röhm Putsch in 1934. That, indeed, the SA and SS always confronted each other like rival brothers is a fact which, in the interest of truth, should not remain unmentioned. For all these reasons the SA is judged on a completely different basis, even by German opponents of National Socialism; and this has already led to contradictory results, the speedy elimination of which by the Prosecution or the Court would be highly desirable.

At this opportunity the following facts should be pointed out: The SA, up to the higher ranks, is not, as a matter of principle, subject to arrest, which is at variance with probably all the other organizations. The new denazification law which recently came into force after thorough consultation between German circles and the Military Government and which is now the law in force throughout the entire American Zone, regards all SA members of a rank lower than that of Sturmführer neither as active Nazis nor much less as criminals. According to the electoral procedure now in force in the American Zone of Occupation, which recently was the basis for elections in thousands of German communities under the directives of the Military Government, the ordinary SA members, insofar as they were not Party members, were not only permitted to vote, but were also eligible for election. The same people who are before the Court accused of serious crimes may at the same time, according to the law in force, be elected as community councillors, and, in fact, are being so elected.

I talked personally about two weeks ago to an SA man and asked him whether, following the notice of the Court, he had reported here for interrogation. He declared that he saw no reason for doing that, because in the meantime he had been elected and approved as community councillor.

The regulations of Law Number 30, regarding the application of the German community order of 20 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 at any time was 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 suspected 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 SA members. 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 in the past.

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. 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 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 Court. A declaratory judgment of this Court 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 of the law or formal organizations that have long since ceased to exist; it passes judgment on living human beings, and no court should forego the opportunity of seeing in person those whom it is trying. A good judge is always a good psychologist and soon can 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 judgment 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, and the conspiracy will not be judged, but the persons of the individual participants. It is the conviction of the Defense 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 25 October 1941 and 7 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 on order of the government of the United States.

I quote from the speech of 25 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 7 October 1942, and I quote:

“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 judgment 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 honorable 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, 7 million members of organizations, according to a conservative estimate, are affected by the declaratory judgment 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 1 year, perhaps 100,000 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 of the most criminal nature. The accused, whose 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 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 offenses 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 Defense would consider that a just solution. The effect would be limited to those who are actually guilty. The Defense objects in no way to the punishment of those who are actually guilty, provided that their guilt is determined in regular 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 judgment 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 10 and 11 November 1938.

But should the Tribunal be of the opinion that judgment 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 Defense 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 the perpetrator acted outside the bounds of the laws in force and committed offenses 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 10 and 11 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 Sturmführer 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 tremendously—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 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 Sports Badge, and the members of the SA Reserve—or rather, to exempt them altogether. 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 Court, 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, and 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 regrouping. 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 main 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 Flier 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 since 1934 or 1935, due to the political influence of its leader Hühnlein. 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 NS Reiterkorps; 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 100,000 farmers and farmhands who enjoyed education 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 rather be in 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 case of the SA Reserve and the armed SA units.

As the last group I mention the SA university units (SA Hochschulstürme), because they were almost without exception obligatory organizations for those students who would not have been admitted to the state examinations without a record of activity in such organizations. The same thing applies to the SA health units (SA Sanitätsstürme), which represented an obligatory activity 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 30 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 Court, 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 would differ from public opinion. Should the Court, 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 for the members to 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 Defense 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 Defense Counsel in Nuremberg appoint deputies, preferably lawyers, in every province, for example, Baden, Bavaria, and Württemberg. 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 Court 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 main defendants.

Members of the Tribunal, I am at 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 Justice Jackson. It is, however, questionable whether the right way toward 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.

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.

THE PRESIDENT: The Tribunal will adjourn now for 10 minutes.

[A recess was taken.]

DR. LÖFFLER: I ask the Tribunal that I be permitted to make one more remark.

In my previous request I did not ask for the exemption of one particular group, namely, the Stahlhelm; this was only because, according to my information, the Stahlhelm was transferred in its entirety to the SA Reserve after the seizure of power and therefore, in my opinion, is included in the declaration made yesterday by Justice Jackson exempting the SA Reserve.

HERR BABEL: May it please the Tribunal, I should have considered it appropriate in the interest of a speedy trial that the Defense not answer the inquiries of the Tribunal and reply to the arguments of the Prosecution until they have received in writing the extensive and important arguments of the Prosecution and are thereby in a position to deal with the whole complex of problems comprehensively and conclusively.

Since a number of Defense Counsel for the organizations have already spoken, I feel prompted to do the same, insofar as I am in a position to do so at this time and consider it necessary and appropriate.

The Tribunal desire to have a discussion in order to define the legal concept of the criminal organization and desire in particular to examine the question of which qualifying elements of a factual nature are necessary in order to declare an organization criminal. The Defense believe that a final and basic definition of this concept, which is entirely new to any legal system, can be given only at the end of the proceedings by means of a special hearing of evidence after all necessary factual information has been collected and examined.

The Prosecution have already presented a definition, which, however, raises very serious objections, because it is derived from legal ideas which have grown in countries other than Germany, under different conditions and circumstances, and which involve far less important legal consequences than those now considered by the Tribunal, the public opinion of the world, the German people and jurisprudence, and jurisdiction in general.

The organizations now indicted are mostly large mass organizations, without aims and ideas of their own, organizations whose Party-political aims and purposes and Party activities developed to national dimensions.

A just and pertinent definition can be found for these organizations only on the basis of the evidence to be presented concerning the nature and aims of these organizations and the knowledge, intentions, and activities of their members. Considering the basic difference of the organizations which have been and are now being investigated, it is more than questionable whether it will be possible to take the legal basis applied so far to single cases as a basis for proceedings against political organizations comprising millions of people.

The Prosecution and the Defense are probably agreed that the Indictment is actually not directed against the organizations, which do not exist any more anyhow, but in fact against the former membership. Likewise the opinion seems to be held unanimously that the Tribunal as a matter of principle will give the members an actual opportunity, not only a theoretical one, to be heard on the question of the criminal character of the organizations; that follows all the more since, according to Law Number 10, the possibility seems to be excluded that the members may make essential objections in regard to the organizations and their own person during the subsequent individual trials. If the Tribunal does not measure the responsibility of the entire organization on the basis of the responsibility of the individuals comprising it, the danger of collective liability arises, which would create such a degree of injustice affecting individuals in such a way that it would be much worse than the justly attacked Sippenhaftung of the Third Reich, which in a criminal way aimed at involving innocent members of the family in proceedings taken against any one of its members.

In order to define a criminal organization, evidence and information as to the knowledge, intentions, and actions of the members of the organizations must be provided; similarly, before convicting individuals, either singly or in the mass, justice and human dignity alike demand that they should each be informed of the indictment and should each have an opportunity to be heard in his own defense. This requirement is imperative in view of the serious legal consequence threatening the members of the organizations in case of a verdict against them, such as loss of property, long-term imprisonment, and even the death penalty.

Last but not least, the hearing of all members of the organizations is also necessary because the unrestricted compilation of judicial evidence appears to be inevitable in order to work out the legal definition of criminal character.

The Defense do not ignore the fact that, considering the scope of the Trial, these basic demands are confronted with tremendous difficulties. The scope of the Trial, however, should not reduce the thoroughness of the procedure but, on the contrary, should increase it.

May it please the Tribunal, there are businessmen who are owners of several firms. If, now, the owner uses one of these firms to commit criminal acts, can we say that the other firms and their employees are also criminal? On the basis of this principle, I consider it necessary to point out which organizations, according to the reasons given by the Prosecution so far, are affected by the Indictment as units of the SS. They are:

1. The General SS—strength at the beginning of the war, about 350,000 men. This number includes the variety of special units like cavalry, motor, information, music, and medical units.

2. The Waffen-SS, of which, at the end of the war, there were still under arms about 600,000 men. In the over-all number of Waffen-SS must be included about 36 divisions of the combat troops and a large number of reserve units of the reserve of the Armed Forces, as well as all those who were discharged from the Waffen-SS or who left in some other way. The verdict in this Trial would also affect the honor of the dead and the fate of their surviving relatives, so that the dead also will have to be included in this number which demonstrates the far-reaching significance of this Trial. Consequently, the total number of members of the Waffen-SS, especially when including those discharged as unfit for war service, would be many times larger than the figure representing the final strength.

On the basis of investigations under way the Defense will submit still more accurate figures, unless this is to be done by the Prosecution, which in my opinion ought to submit to the Court the information necessary for a verdict.

3. The Death’s-Head Units—before 1939, about 6,000 men.

4. SS troops for special employment, including the Adolf Hitler Bodyguard—before 1939, about 9,000 men.

5. Honorary Führer of the SS, whose number will probably turn out to be very large, as, for instance, the Farmer Leaders (Bauernführer) of the Reich Food Estate down to the District Farmer Leaders (Kreisbauernführer) were for the most part appointed honorary Führer of the SS. Similar conditions prevail with respect to the chiefs of several branches of the state administration, who were often made honorary Führer of the SS without any initiative on their part and without being able to do anything about it. Likewise many leaders of the Reich Veterans’ League received honorary ranks in the SS.

6. The “supporting members” of the SS, among whom were also many non-Party members; their number is not yet known but it is certainly very considerable.

7. SS Front Line Auxiliaries of the Reich Post Office.

8. SS Construction Units.

9. SS Front laborers.

10. The entire Regular Police, to which belonged:

(a) The Municipal Police of the Reich with several special units, such as traffic squads, accident squads, information, cavalry, police dog squads, radio, and medical units; (b) the Gendarmerie with innumerable stations and posts, distributed all over the country, even in the smallest villages, which had rendered service without essential changes since Napoleon’s time—the motorized Gendarmerie supervised traffic; (c) the Municipal Police of smaller communities; (d) the Water Police; (e) the Fire Police; (f) the Technical Auxiliary Police Units, the Technical Emergency Service. . .

THE PRESIDENT: Dr. Babel, you are going rather fast if you want us to take down these categories.

HERR BABEL: Mr. President, I shall submit a copy to the Tribunal.

THE PRESIDENT: Personally, I prefer to understand the argument when I hear it.

HERR BABEL: I repeat: (f) the Technical Emergency Service, the Compulsory, Industrial, and Voluntary Fire Brigades; (g) Police and Gendarmerie Reserves; (h) the Air Raid Police, with security and auxiliary service; (i) the Town and Country Guard.

Further, there belonged to the Regular Police a great many central institutions, such as the State Hospital for Police, the Police Officers’ Schools, the Technical Police School, the Police Sports and Cavalry Schools, Police and Gendarmerie Schools, the Water Police School and the Reich Fire Brigade School, the Driving and Traffic Schools, the Air Raid Precautions Teaching Staff, the School and Experimental Station for Police Dogs, and the Horse Depot of the Police.

In 1942 all the above-named units of the Regular Police, including the police troop units, totaled about 570,000 men. If we follow the presentation of the Prosecution, then all the groups, institutions, and organizations enumerated so far belong to the SS.

11. All those units of the Security Police which did not belong to the separately indicted Gestapo and SD, that is, offices and officials of the Criminal Police.

12. The Volksdeutsche Mittelstelle.

13. The Offices of the Reich Commissioner for the Preservation of German Nationality.

14. National Political Institutes.

15. The Lebensborn Association.

16. The SS women auxiliaries.

All these groups, institutions, and suborganizations were under the administration and jurisdiction of the SS.

By way of summary, the Defense estimate the group of persons indicted as SS members at several millions. The verdict, however, will also affect the members of the families of all SS members, at least indirectly, so that additional millions will be affected personally, morally, and financially. Since, besides the SS, the mass organizations of the SA and the Leadership Corps are also indicted, a verdict against the indicted organizations would amount to a considerable part of the German nation’s being considered criminal.

According to Law Number 10 of the Control Council, of 20 December 1945, every member may be subject to any penalty, including the death penalty, merely because he was a member of an organization which has been declared criminal.

The question put to discussion by the Court as to what objections can be made in this collective Trial and what objections can be made later in the individual trials has, in my opinion, been decided already by Law Number 10 to the effect that in the individual objections of a defendant, for example, ignorance of the criminal aims of the organization, cannot be given any consideration.

It is, therefore, necessary that evidence in this present Trial should be admitted to the widest extent possible. It should be made possible for the Defense to rebut, by means of evidence of the factual situation at the date of the respective act, the conclusions drawn by the Prosecution retrospectively from individual acts and facts.

When evidence on behalf of the individual defendants was submitted, the Tribunal declared its readiness to admit evidence if there is only the slightest degree of relevancy. Considering the significance of the decision of this Court for the millions of people affected and for their families, it appears to be an absolutely necessary condition that evidence be admitted to the largest extent possible in order to permit a just verdict, to clarify the facts, and especially to find out to what extent members of the SS participated in any criminal acts according to Article 6 of the Charter.

To clarify the question of whether it is permissible to conclude from the fact of the extent of the indicted actions, as maintained by the Prosecution, that the members of the SS had knowledge of these actions, it will also be necessary to admit evidence to the widest extent possible about the question as to whether or not and, if so, to what extent the members of the SS knew of these actions, as well as evidence of the facts which prove that the members of the SS, like the majority of the German people, did not know anything about these matters, owing to the precautions taken to keep them secret.

The discussions initiated by the Tribunal make it necessary to anticipate essential parts of the final pleadings. A ruling by the Tribunal on the question of evidence would at this time signify a ruling by the Tribunal on an essential part of its future decisions, without any hearing of the evidence on the objections of the Defense having taken place. The Charter has a gap, insofar as it has not defined the facts which qualify an organization as criminal. This gap cannot be filled by admitting evidence only in a certain direction. By doing so the Tribunal would anticipate an essential part of its final verdict.

According to what I have said, I believe that it will be necessary for the evidence to include all elements which might influence the decision of the question as to whether the organization of the SS was criminal. This, however, would hardly be possible within the framework of this Trial which, according to the Charter, is to be conducted as expeditiously as feasible. Therefore, I consider it necessary to separate the procedure against the SS and the SD from the trial of the individual defendants.

On 15 January 1946, partly for other reasons, I made a motion for separation. As far as I know, no ruling has yet been given. I repeat this motion as follows:

Judging from the course of the Trial and the procedure up to now, I have come to the opinion that the Indictment against the organizations of the SS and the SD—for which I have been appointed Defense Counsel by an order of the International Military Tribunal of 22 November 1945—and probably against the other indicted organizations also, cannot be dealt with within the framework of this Trial for factual and legal reasons.

1. So far as the legal aspect is concerned, I restrict myself to a few brief points reserving for myself the right to present additional arguments at a later date:

(a) The International Military Tribunal has no jurisdiction. To this point I should like to remark that a few days ago I learned from a newspaper article that the objection of lack of jurisdiction has already been raised during the session of 20 November 1945 and has been overruled by the Court. I asked for a copy of the record of 20 November 1945—and also of the following days—but I have not received it to date. Therefore, I could not take note either of the motion and the reasons given or of the decision of the Tribunal and its reasons.

(b) A criminal procedure against an organization is not possible or permissible, especially against an organization which has been dissolved.

(c) To appoint a Defense Counsel for a dissolved organization, that is, for something non-existing, is not possible and admissible.

2. As to the facts, I am compelled to make more detailed statements in support of my motion.

On 19 November 1945 I was told orally that the International Military Tribunal intended my nomination as counsel for the organization of the Leadership Corps. After discussion I declared in writing my agreement to take over the obligatory defense. On 20 November 1945 I was told orally that I should take over the defense of the organizations of the SS and SD. On 21 November 1945 I was told orally that I had been appointed counsel for the SS and SD, and that I would receive the written appointment very soon. On 23 November 1945 I received the letter of appointment, dated 22 November 1945, and in the English language, and a few days later I received the German translation which I had requested. This letter, in the translation which I received, reads as follows:

“Pursuant to the direction of the International Military Tribunal you are hereby appointed to serve as counsel in the case of United States et al. v. Göring et al. for the members of the defendant organizations, the Schutzstaffeln der Nationalsozialistischen Arbeiterpartei (commonly known as the SS) and the Sicherheitsdienst (commonly known as the SD), who may make application to the General Secretary under the order of the International Military Tribunal attached hereto.”

A few days later a file was handed to me with about 25 letters addressed to the General Secretary of the International Military Tribunal, partly from members of the SS and partly from relatives of such members. When I asked about my position and the position of these applicants in the Trial, I was told orally that these applications were to be submitted by me to the Tribunal in proper form.

On 23 November 1945 there was a conference, during which a number of questions and suggestions were brought up concerning the position and rights of these members of the indicted organizations, who had applied for and been granted leave to be heard, and of the defense counsel provided for them.

From 28 November 1945 until 11 December 1945 I was not able to obtain the applications filed by members of the SS and SD although I asked for them several times each day. At that time about 25 applications were handed to me each day, upon request, and I had to return them in the evening of the same day. I was told every time that the Tribunal needed them and that they had not yet been returned. When I received the folder again on 11 December 1945 the number of petitions had increased considerably.

By notice of 10 December 1945, according to the German translation which I received on 11 December 1945, the Tribunal made known its view that a member of an indicted organization who has applied to be heard on the question of the criminal character of the organization is not to be considered a defendant but will have the individual status of a witness only, although he will be permitted to give evidence; furthermore, that counsel representing any group or organization may, for this group or organization, exercise the rights accorded by the Charter to counsel for individual defendants.

After a closed session of the Court on 11 December 1945, in which counsel for the indicted organizations also took part, the Tribunal by notice of 17 December 1945—of which I did not receive a German translation until a few days later—directed that the respective counsel, that is, counsel for the organizations, should represent only the indicted groups and organizations and not individual applicants.

Not until this date was the extent of my duties unambiguously stated and defined.

THE PRESIDENT: The Tribunal would like to know what your application now is. The object of this session is to have an argument from Counsel for the Prosecution and Counsel for the Defense in order that the legal questions with reference to these organizations should be clear, and what your personal experience during November and December of 1945 has to do with it the Tribunal is unable to see.

HERR BABEL: Mr. President, before I started reading this motion, I pointed out that already on 15 January of this year I made a motion to separate the procedure, and to my knowledge no ruling has yet been given. I have tried to repeat in part the reasons for this motion which I made at the time. If the Court does not think it desirable or necessary, I shall refrain from doing so.

THE PRESIDENT: I don’t see any relevance in what you have been reading to us now, either to the question of whether there should be a separate trial or to any other questions with reference to the criminal organizations.

HERR BABEL: Mr. President, under these circumstances I shall not read those further arguments, which may be known to the Court from my written motion, and I shall come to the conclusion of what I still wish to say.

THE PRESIDENT: Dr. Babel, the Court will, of course, consider the suggestion which has been made, I think, by other counsel for the organizations as well as the suggestion which I understand you are now making, that it is necessary to have a separate trial. The Court will consider that. But what you have been saying to us does not appear to me to have any relevance to that.

HERR BABEL: Mr. President, in my former motion I merely wanted to point out the difficulties I had—since I was still alone and had no assistance—before I was in a position to devote myself to my real assignment; for that reason also, in my opinion, my motion for separating the trial was well founded at that time. Part, or the greater part, of what I said then has been repeated now. What I have read just now, and the remainder of my motion, might have more significance today, but I shall refrain from reading it, since the question of the separation of the trial has already been brought up and argued by others. Therefore, for the rest, I can also join in the arguments brought forward by my colleagues in this regard. In this connection I should like to point out that on 19 January 1946 I made a motion to be relieved of the defense of the SD because of conflicting interests.

I believe I ought to call this to your attention as I do not plead today for the SD, because I have been waiting for a ruling on my motion. I reserve for myself the right to make further statements after I receive a copy of the record of 28 February, in particular on the question of the membership of individuals and groups of persons in the SS, on the definition of the lines of demarcation between the SS and the governmental sector, on limitations as to periods and organizations, on the question of voluntary membership, on limitation of responsibility for other reasons according to criminal law, and on the jurisdiction of the SS courts.

In view of the tremendous amount of work which I had to do so far, I have to this date not yet been able to take a stand on all these points. I wish to make the remark that the suggestions made by the Prosecution and several of the Defense Counsel as to the presentation of evidence seem untenable to me. They would entail a considerable restricting of the Defense. To carry them out seems to be impossible also for reasons of time.

This concludes my argument.

THE PRESIDENT: The Tribunal will now adjourn.

[The Tribunal recessed until 1400 hours.]