The guard of concentration camp Oranienburg, according to the presentation of the Prosecution, was an SA Scharfuehrer. Nevertheless, it is not asserted that he committed any crueltie by SA and SS members, in the year 1934, led to a criminal proceeding, and the guilty SA men were sentenced to six years. excesses of the 10th to 11th of November, 1938, when the windows of Jewish stores were broken, synagogues were burned, and so on. Here, too, the plan and the order did not originate with the SA. It was given by the highest Party leadership, and the SA was simply commissioned with its execution. SA, in the political struggles of that time, was involved in street fights with political opponents, during which, nevertheless, in many cases their activity was of a defensive nature, but that the growth of the SA to an organization embracing millions of people took place only after Hitler's seizure of power. Then we see the following numerical picture: secution, were committed by at most 2 percent of all the indicted former SA members; 98 percent of the four million, according to their conviction, kept their hands clean of any such individual punishable acts. this 2 percent should serve to have the whole organization declared criminal. This 98 percent, that is 3,900,000 previous SA members, must, nevertheless, find themselves here defendants in this trial, accused of having waged aggressive war or in the planning or carrying out of the general conspiracy; or, even more strongly formulated, accused of having belonged to organizations which pursued these criminal aims. an organization? That definition formulated yesterday by Justice Jackson and Sir David, the SA members as they were defined to us yesterday in Points 1 and 2 -- the SA must also submit to this definition, namely, that the SA was a union of numerous people, and their collective aims were principally voluntary membership.
But, particularly in the case of Points 3, 4, and 5, we must strenuously object to their application to the SA. Number 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. neither in the program, nor in the speeches of their leaders had they recognized that they were called upon to carry out such goals. whether the leaders of the SA pursued such goals in secret, that the individual member is not in a position to judge. Whether such criminal goals were pursued secretly by the leadership of the SA, it is possible that this be determined only by the high court, and only after the archives have been opened, after the witnesses have testified, and that the whole framework should be laid open to the perusal of the Court.
Now, point four of the Prosecution's definition, if I understood Justice Jackson correctly yesterday, requires as a definition of the criminal nature of the organization, that the crimes and methods of these organizations had such character that a reasonable, normal man can be accused to having Known of these things. boration with my colleagues, do not accept this definition as adequate for it means that a member can then be punished if he had not recognized the criminal nature of the organization but reasonable care should have enabled him to recognize that criminal nature. I know of no penal code in a modern state in which negligence, even of a serious nature, is sufficient grounds to prove guilt in a serious crime, as of a crime of a nature so serious of which these people are accused. Such a crime can. only be committed intentionally. Perhaps the Prosecution can later on the grounds of the knowledge of the particulars make some statement on this matter. the danger that the Justices, 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 lacking the Germans. We are a politically immature people, easily misled and consequently susceptible to political seduction.
The Court should take this into consideration in passing its judgment on the good faith of the various organizations. its visits to camps, from a large number of letters and so on, a vast number of SA members are convinced that they did not belong to any criminal organization. Among other reasons are the following subjective ones. specifically stated that only those would be accepted in the SA whose character are altogether unobjectionable. It is further stated verbatim, and I quote, "unobjectionable behavior and references." The members of the SA state that they know of no case in which any criminals or band of conspirators require such entrances requirements. that its criminal goals should not become known to the enemy. An organization of several millions, is, by its very nature, not designed to carry out a plot. The leaders of the SA emphasized in many addresses that they wanted to maintain peace under all circumstances. They pointed out that Germany, without means of defense, without arms in the very center of Europe, was no more a danger to European peace and that being in a state of preparedness was the best guarantee of European peace. diplomatic recognition to the leaders of the Nazi Party. That was not simply international courtesy that the expression of the conviction that foreign governments would have had no intercourse with the German Government if that German Government were composed of obvious criminals.
I might mention a particularly characteristic is example. The Indictment against the SA is substantiated by a number of demands. These are documents 22, 28 and 23 PS. According to the these documents, even on May of 1933, a deputy of the Reich War Ministry, Colonel Auleeb, was transformed to the highest command of the SA in order to assure liaison between the two organizations. But the entire occurrence is treated as strictly secret and it is stated that Auleeb, in order to camouflage himself, should not wear the SA uniform.
How, I ask, could a single SA member know anything of such events? interests of the SA members. The Defense wishes to make no gratuitous assumptions. they were members of a criminal organization. Also the 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 establish as in the case of the SA. This may, at first, sound very surprising since of the main defendants here six were high members of the SA. Nevertheless, a closer scrutiny shows that their connections were in no case close connections. Besides Goering, none of the main defendants ever had command authority over the entire SA. The rank that these main defendants had in the SA was an honorary rank and to a large extent simply decorative. mentioned only Goering's connection with the SA but even Goering's connection with the SA curiously enough is very slight and is confined actually to the period of three-quarters of a year, that is for nine months, mainly from February 1923 to November 1923, that is to say twenty-seven years ago, Goering was never, as he is accused in Appendix A of the Indictment, Reichsfuehrer of the SA. That is an error. Rather in February, 1923, Goering was commissioned with the command of the Sturmabteilung that the Party had at that time.
1923. After that, his command over the SA vanished and was never revived. Later, Goering received from Hitler honorary leadership of the Standarte Feldherrnhalle. He was, however, not commander of this unit. must be generally known. I do not have to dilate upon it further. Honorary membership is a purely decorative function. The tasks that the SA had to carry out under Goering in the year 1923 were safeguarding of meetings. It cannot be asserted that at that time the SA, along with Goering, had anything to do with planning the crimes stated in Article 6 of the Charter, or that those acts had already been formulated or could have been anticipated at that time. It also cannot be asserted that after the year 1923 Goering made use of the SA for the execution of any criminal plan. opponent of Goering's. After his death, the SA, from 1934 to 1943 was led by Victor Lutze, and then, until its dissolution, by Wilhelm Schepmann. tion can only be comdemned in connection with an action on account of which one of the main defendants is being tried. From the legal and reality point of view, I have the gravest doubts whether the events I have just spoken of suffice for the requirement of the Indictment. I ask that the High Court not look upon Goering's activities as honorary member of the SA 23 years ago as criminal. On the other hand, this entire event was settled by the amnesty of the democratic government in Germany at that time, which amnesty was granted to the SA at that time. zation, and certainly in the case of the SA, inclusion among the numbers of the criminal organization does not correspond to reality. Large circles in foreign countries, particuarly those who had to leave Germany in 1933, knew nothing of the complete change of structure which the SA went through in the following years. The foreign countries heard, from every Reichstag meeting, "The SA marches," whereas, as a matter of fact, it had lost all political Influence, and in its size had become numerically enormous.
It was precisely for that reason it had become innocuous from any conspiratorial point of view, nor could it have been used for any criminal act. tion. This is on page 1546 of the court record.
"The organization by which the SA was then completely excluded from political life was, as everyone knows, the SS, and this occurred in connection with the so-called Roehm Putsch in the year 1934." as inimical brothers, a fact that in the interests of truth should not remain unmentioned. The opinion of the SA is, for all these reasons, also in the case of the Germans, even under National Socialism, a completely different one, and this has already led to contradictory occurrences the elimination of which by the Prosecution or the Court would be highly desirable.
This is the time to point out the following: The SA, up to the higher ranks, is not susceptible to being taken into custody, in contradistinction to the other organizations. The new Denazification Law which, after these things were talked over with German circles and the Military Government, came into effect and which is now law throughout the American Zone, regards all SA members in the lower ranks, such as that of Sturmfuehrer, neither as active Nazis nor as criminals. Since, in the American Zone, the laws regarding who can vote have now been formulated, and under those laws in thousands of German communities voting took place under the direction of the Military Government, the simple SA members, so far as they were not Party members, were not simply actively permitted to vote, but the same people who are here accused before the Court of serious crimes, at the same time, according to valid law, could right now be chosen as Community Councillors. on the request of the Court, he had reported here for interrogation. He reported that he saw no reason for that because in themeantime he had been elected and approved as a Community Councillor.
The regulations of Law No. 30 regarding the organization of German communities, 30 December 1945, Paragraphs 36 and 37, in which eligibility to be elected is defined, state also the fact known in all Germany, but apparently not in foreign countries, concerning a simple Party member who had no active political life, any more than the purely uninfluential SA man. Whoever was a member before 1937 cannot vote, and whoever was a Party member cannot be elected. here, and the SA members, who are indicted here, is as follows: could, without difficulty, become an SA member, but under no circumstances a Party member because, in relationship to Party membership, higher political requirements were made than in the case of the SA membership. There were certainly many SA members who belonged to this organization only in order to remove the blemishes of their suspect political life. to show one extreme danger which exists, particularly in the case of the SA, if a judgement is passed that concerns up to millions of simple SA men, if these millions of people are declared by this Court to be criminal. here a case of the verdict to be passed by this Court of a purely abstract judgment with no punishment mentioned -- I cannot agree with that. who weren't even members of the Party, have been inculpated, and their existence and income will be endangered by the passing of this verdict.
But for them to be banned and dealt with as I have just described, the verdict of this Court would be enough. The evidence being submitted is not direct evidence. A Court does not decide the fate of lifeless forms or organizations that have long since ceased to exist; it passes judgment on living, human beings, and no court should fail to look those in the face whom they are considering condemning. A good court is a good judge of character and can judge, by having the person in front of them, whether he is a criminal or not. or allowed such a passing of a judgment. The laws cited yesterday by the prosecution regarding conspiracy certainly define to a large extent the participation of members in a conspiracy, but two requirements were made even in these cases; Firstly, the member must know that he is party to a criminal plot or conspiracy; and secondly, the Indictment is not directed toward the conspiracy as such, and it is not the conspiracy that will be condemned but the individual participants. stand in contradiction to these legal principles of all states. father of the Charter, in his greatest speeches, particularly in that of the 25th of October, 1941, and others, clearly stated that the leaders shall be judged. Franklin D. Roosevelt, published by the Government of the United States.
I quote from the speech of the 25th of October, 1941:
"Civilized nations have long recognized the principle that no one shall be punished for the crimes of another." the 7th of October, 1942, and I quote:
"The number of those held guilty will, compared with the total population of the enemy countries, undoubtedly appear extraordinarily slight. The Governments of the United States and its Allies intend no mass reprisals, but we are determined to punish the leaders as they deserve for the planned murder of thousands of innocent people and those deeds of terror for which they are responsible, and every Christian principle that they have offended."
must be considered.
The Tribunal's decision regarding the organization will affect millions of people. It will put these millions of people in a twilight zone of banishment which will only be ended after the subsequent trials have been held. Until that time every individual is under serious suspicion of being a criminal, since it is questionable whether he will succeed, in the subsequent trial, in exonerating himself. But since an individual person, with such a frustration, would probably not be able to re-enter his profession--and until he is exonerated will be excluded from the ranks of honorable citizens--we are depriving him of the right for such a subsequent trial, and we do not have the right to do so.
I believe that Justice Jackson will agree to this. But if, as the prosecution requires, seven million members of organizations should be affected by the judgment of the Tribunal, and so be condemned to this twilight region of banishment, then millions of subsequent trials will have to take place. We shall have to assume that in one year, perhaps, a hundred thousand trials will have to be carried out. I believe that that is a very conservative estimate.
Our German courts will not be able to help out in this. They are, as everyone knows, greatly overworked since they have now only a small portion of their previous personnel. The courts, for these millions of cases, will probably have to treat those first whose criminal nature is mat suspect. The others, for whom it is a question of their existence, will defend themselves with all the legal means at their disposal. It is probable that the person who is really innocent will have to wait years, even decades, before he will have an opportunity to exonerate himself and so rehabilitate himself. another to find a way cut of this dilemma if the Control Council had passed the necessary laws, since the suspicion arises that the organizations mentioned have committed crimes against peace and humanity. Consequently the courts have the right and duty, for those of whom it can be proved that they were participating in these crimes in any form, to call them to judgment.
prosecution and the defense would recognize in that a just solution. This problem would then be limited to those who actually could have guilt proved against them. guilty, provided that their guilt is once and for all determined in an open trial. as the prosecution has requested, then I ask, for the reasons that I have just given, from the picture that the prosecution will now draw of the case, that the condemnation of the SA should not be pronounced. other organizations--for instance, the various murders and cruelties, where the individual perpetrators can no longer be determined--this consideration does not apply to the SA. The few excesses which, according to the presentation of the prosecution, took place, did so only in Germany. The perpetrators are known. Individual regional courts have already instituted proceedings against these people. against the destroyers of the synogogue, and that the perpetrators of these deeds, on the 10th and 11th of November, 1938, were called to trial. should be condemned, thon I ask the Tribunal, so far as possible, to make use of the right which both the prosecution and defense recognize as theirs, to limit the condemnation in terms of classes and time.
A very important discrimination is to be made here. For one, the SA members who, after the accession or seizure of power in 1933, entered the SA, joined an organization that had State approval. Certainly a state authority cannot make a matter of law the commiting of crimes against humanity. But the question of finding out who is 1st Mar - M -O'B - 1 categories, I should like to request a double limitation.
First, least in the American Zone, this appears advisable to me.
Perhaps-
Wehrmannschaften of the SA. In the interests of justice and equality be separated from the SA.
It is here a question of the Marine SA and and that these were their prime interests.
when the Party achieved 1st Mar - M - O'B - 2 but they had nothing to do with the SA's political activities.
one of these sporting groups. Members of the Higher SA felt themselves to be at a particular disadvantage because the N. S. Kraftfahrkorps and the N. S. Fliegerkorps, with perfect right, are not here indicted, since their sporting character was recognized.
The N. S. Kraftfahr korps and the N. S. Fliegerkorps were, however, until the year 1934 The N. S. Kraftfahrkorps had the same duties as the N. S. Fliegerkorps.
The N. S. Reiterkorps, on the other hand, could not withdraw itself itself in the year 1936 as a self-contained unit.
However, it still remained connected in its leadership with the SA; through the Chief no further role in war; and as to the Kraftfahrkorps and the Flieger 1st Mar - M - O'B - 3 recreational activity group for many physicians.
called to lay attention by one of my colleagues, because I wanted to set a time limit regarding SA membership after 1933. I should have said after the 30th of January, 1933, the day of the seizure of power.
of SA members. Most of the members of the SA are now free. If only a few so far have written to the Court, this is almost explicitly to be traced back to the fact that since the SA is generally considered in the country to be harmless, they can hardly imagine that a Court with the experience and significance of this Tribunal could reach any other conclusion but that one. This, however, the Court should decide against the SA. the Prosecution to the effect that the members should make an effort to appear in their own defense. I refer to remarks made by the Defense Counsel for the Leadership Corps, that direct contact between Defense Counsel and his clients is here lacking. In the case of the SA and their people, a subsidiary authority should be appointed, for the various departments to carry out different trials against members of the SA. Every individual member of an organization could, with the help of this official, answer those questions to the Court which are to be found relevant. In a way, we were glad to hear Justice Jackson's statement yesterday. If I understood him correctly, he stated that in the trial of the organizations, because of its fateful importance for millions of people, the consideration of justice is much more important than the consideration of speed. by the Defense for the Leadership Corps, that the trial of the organizations should be viewed from a different point of view from the trial against the main Defendants.
Members of the Tribunal, I am at the conclusion of my remarks. I should like, however, to reply to the words uttered by Jackson at the beginning of his address. He said that for the first time in history a modern state had completely collapsed and that this capitulation presented the victor nations with completely new problems; that the most important thing was to destroy the structure of those organizations and to prevent this country from ever again waging aggressive war. All persons of good will must welcome this goal and will support Justice Jackson, but it is questionable whether this is a correct means toward that end -- to condemn all organization members as such, involving millions of people.
the whole country who does not have near relatives that were in some way connected with one of these organizations at some time or other. The organizations are dead, the system of terror and lying has disintegrated, millions of deceived people have turned away from those who led and seduced them; but if now they find themselves branded and ostracized, the effect would probably be the opposite of that which we all had hoped for. the Control Council believed -- and we are in favor -- that in the problem of denazification, in this case previous experience should be helpful, namely that a schematic treatment of such a problem is an offense against one's sense of justice and consequently a challenge to solidarity. The individual hanger-on of an organization would in such a verdict find less manifestation of justice than an active revenge; but the leaders could conceal their real guilt behind the backs of millions of people. The effect of such a verdict would consequently be weakened and would not any longer be that of just punishment.
(A recess was taken).
DR. LOEFFLER: I ask the Tribunal that I be permitted to make one more remark. the Stahlhelm, and only for the reason that according to my material at hand, the Stahlhelm organization after the accession to power was absorbed in its entirety into the SA. Therefore, in my opinion, it was included in the declaration made yesterday by Justice Jackson to exclude certain groups.
DR. BABEL (Counsel for the SS and SD): May it please the Court, also in the interest of a speedy trial I wouldhave considered it essential that the Defense should take a position on the statements of the Tribunal and the Prosecution and that only then, when the numerous statements of the Prosecution will have been received in writing by the Defense, will the Defense be in a position to take a conclusive attitude toward all the questions.
Since a number of Defense Counsel for the organizations have already spoken, I see it is necessary to do the same, in so far as I am in a position to do so at this time, and consider it necessary and essential. legal definition of a criminal organization and in particular an examination of the problems which facts are needed to declare an organization a criminal one. It is now believed that a final, conclusive and basic definition of this entirely new concept can only be given at the end of the proceeding, after collecting and examining all necessary factual material that has come before this proceeding. The Prosecution has already presented the definition, but there are a series of objections, because the legal attitude is one that has been formed in other countries outside of Germany, under different circumstances and it is all fraught with legal consequences, since the Tribunal is right now in the full view of the German people and the entire world. mostly large mass organizations, without their own will, which would have come from the masses, which have aims and purposes which were given by the Party policies, and activities prescribed by the Party. All that has developed to national dimensions. For some of these organizations a just definition can only be found if all elements concerning the purpose, the will and the actions of these organizations and their members have been examined are now under examination, it is questionable whether it can at all be possible to apply the fundamental ideas for the judgment as to these organizations. The Prosecution and Defense are agreed that the indictment is directed really not against organizations, which do not exist any more, but in reality against the former membership. Likewise, we can assume that the agreement exists on the fact that the Tribunal in principle will give to the members an actual possibility, not only a theoretical one, of being heard on the question of criminal character. That follows, a fortiori, since according to Law No. 10 the possibility of the members making any objections concerning themselves and the organizations is excluded.
as the responsibility of the individuals, there exists a danger of a generalization which in its extent would be much worse than the so-called Sippenhaftung of the Third Reich which included innocent members of the families in proceeding against a member of the family which was accused of criminal acts.
From the definition of a criminal organization there comes the necessity to have known about the intentions and the actions of the organization as a member and it is identical with the principal laws of justice and dignity that before any individual be tried--all the more before the trial against millions--that they should be informed about the indictment individually and that they should individually have the opportunity to be heard.
consequences with which these members are threatened in case of a verdict-loss of property, long punishment, loss of liberty and even the death penalty. reasons: it is necessary to have an unlimited collection of legal material. The defense does not ignore the fact that these principal demands regarding the extent of the trial provide tremendous difficulties. The extent and the duration of the trial, however, should not reduce the thoroughness of the procedure but should increase it. several firms. If, now, the owner of a firm uses one of them to permit criminal acts, can we say that the other firms and their employees are also criminals? out which organization, according to the reasons given by the Prosecution so far, are affected by the accusations against the SS. They are, first, the General SS, the Allgemeine SS. At the beginning of the war, about 550,000 men. In this number there is a variety of special units: horsemen, motormen, despatchers, and many other units. still under arms about 600,000 men. In this entire number of Waffen SS there were about 36 divisions of the Army and a large number of reserve units, as well as all those who have been dismissed from the Waffen SS for several reasons.
The verdict in this trial would affect the honor of the dead and the fate of their relatives, so that, also, the dead should have to be included in the number of those who are affected by a verdict in this trial.
The total number of members of the Waffen SS, especially including those who have been dismissed as incapable for war service, would be a multiple figure of the one I have given. will submit still more material, unless this is being done by the Prosecution, which in my opinion should submit to the Court this material which would be helpful.
Third, the Death Head Units. Before 1939, about 6,000 men.
Fourth, SS Verfuegungstruppe, Leibstandarte Adolf Hitler. Before 1939, about 9,000 men. very large. For instance, the present leaders of the Reichsnaehrstand, Bauern Fuehrer, all the way down to the Reich Peasant Leaders were mostly nominated honorary leaders of the SS. There are similar conditions with respect to officials of several branches of the administration, of whom many, without their own doing, had become honorary leaders of the SS, withou* being able to do anything against it. Many leaders also of the Reichs Comba* League received honorary leadership offices of the SS.
Sixth, the sponsoring members of the SS* among which there were also many non-Party members: Their number is not yet known, but it is certainly very large.
Tenth, the entire Order Police, among which there were (a) the Schutzpolizei of the Reich with several special units, as Traffic, Accident, Message, and Medical Units; (b) the Gendarmerie, with many stations and posts, was distributed all over the country, including small villages and hamlets and did their service since Napoleon's time without considerable change. To do traffic service, there was a motorized unit. (c) Schutzpolizei, police of small villages and towns. (d) the Order Police. (e) the Fire Police. (f) Technische Nothilfe Units.
