2. That the individual in question either (a) became or remained a member with knowledge that it was being used for the commission of acts declared criminal by article VI of the London Agreement, or (b) was personally implicated as a member of the organization in the commission of such crimes.
The prosecution believes that, once it has established that a defendant was a member of one or more of the criminal organizations, it is incumbent upon the defendant to come forward with evidence that he neither knew of the criminal activities of the organization, nor participated in their commission, or that he ceased to be a member prior to 1 September 1939. We believe that any question concerning the burden of proof will be entirely academic in this case, in as much as the positions which these defendants held, and the evidence embodied in the documents which we will offer in evidence will show beyond question that they both knew of and participated in the criminal activities.
a. Membership in the SS
I will deal first with the four defendants charged with membership in the SS. The evidence will show that the defendant Altstoetter became a member of the SS in 1937, that he remained a member after 1939, and attained the rank of Oberfuehrer (senior colonel) in June 1944. The defendant Cuhorst became a sponsoring member (Foerderndes Mitglied) of the SS in January 1934 and remained such after 1939. The defendant Engert joined the SS in 1936 and thereafter attained the rank of Oberfuehrer (senior colonel). The defendant Joel joined the SS in 1938, and attained the rank of Obersturmbannfuehrer (lieutenant colonel).
The activities for which the SS was declared a criminal organization are set forth in the judgment of the International Military Tribunal.[69] These activities included the extermination of numerous “undesirable” classes, including Jews, and the transfer of numerous Jews and foreign nationals to concentration camps where they were murdered and tortured.
It will be abundantly apparent from the proof that if any member of the SS knew of, and participated in, its widespread criminal activities, surely these defendants did. They were directly concerned with penal problems, and, as we have seen, of necessity their cooperation with the SS was extremely close. In fact, Himmler himself took special pains to insure that the German judiciary would be fully advised on the ideology of the SS and of its nefarious aims and purposes. In July 1944 at the special invitation of Thierack as Reich Minister of Justice, Himmler made a speech to the presidents and the attorneys general of the courts of appeal. A report from the files of the Ministry of Justice describing this occasion reads as follows:
“On the invitation of the Reich Minister of Justice Dr. Thierack, the Reich Leader SS, spoke to the presidents and the attorneys general of the courts of appeal at the Reich Castle of Cochem on 20 May 1944. The question of the development and the aims of the SS was dealt with, in particular the importance of the racial question, questions of national biology, fighting selection, racial community, the importance of the Waffen SS (armed SS) and the greater German concept.
“The judges and public prosecutors were to receive the information through the presidents of the courts of appeal and might have been informed in the meantime.
“You are respectfully requested to submit a detailed report on the reception and the effect of this speech on the judges and the chief public prosecutors.”
Himmler’s well-known views on the value of non-German human life were thereby made available to all German judges and chief prosecutors. They surely came to the attention of the defendant Cuhorst, in this and numerous other ways. They surely were well known among the higher officials of the Ministry of Justice, including Altstoetter, Engert, and Joel.