The following five pages 50, to 54, concern the slave labor. Pages 55 through 57 concern Partizan Warfare. I cannot read then now. I ask you to consider them. Now I shall deal with the problems of the concentration camps. regime on. Without then the Hitler State was inconceivable. Hundreds of thousands went through those camps, were degraded and mistreated there; more than a hundred thousand died or were killed there. murders and misdeeds. In the face of all the world this confession must be made in this trial. And just as every German must be ashamed that such horrible inhuman things occurred in his country, even more should every SS man search himself and examine to what extent he is politically or morally guilty for those happenings. He should be concerned, not only with the defense against the accusation of the Prosecution that every SS man has become a criminal through those crimes, but he should again reflect his whole life and study when, where and how he might have deviated from the road of true humanity, perhaps only in thoughts and memories. This he can do, he must do -- even if he denies his criminal guilt and when he ways that he has stoof for four years in the front lines engaged in toughest fights, believing in Germany and her just cause. And if he feels shame, genuine shame -- and even if only a little of it -- then his reflections, then this trial, were not in vain. Then that a man who has been misunderstood so profoundly. if all those SS men should remain unteachable -- and from my visits to the to serve earthly justice, would have to examine whether due to the concentration organization, whether all SS men became by those acts, criminals. matters, even though millions of victims of the concentration camps complain, hundreds of thousands of the surviving inmates Suffer from the aftermath, and even though the world accuses in one single outcry the SS.
SS, I found a considerable amount of material of the Prosecution, evidence taken in the main proceedings, and many documents which were assembled in the document book "Concentration Camps." The American motion picture on the concentration camps I had seen shortly after the occupation of Germany. All that was gruesome, horrible and surpassed all imagination. But, on the other hand, in the concentration camps it could not have been possible that hundreds and thousands were discharged, that work could not have been carried on during the war as it was, and that finally, those things could not have remained unknown to the masses of people and to the mass of the detained SS men whom I now interviewed.
There were contradictions which could not be solved; in the American report on the development of the Buchenwald Camp from 1937 to 1945 (Document EC 168), the basis of which I do not know, the following which is taken from a letter of the WVHA from December 28, 1942, attached as an appendix:
136,000 people were brought to the camp within a half year. During the same time 70,000 died. Though it is obvious that not just half of those new inmates died, but that 70,000 of a total population of some hundred thousand inmates passed away in six months, yet that mortality rate is frighteningly high. detainees were systematically exterminated or at least killed through overwork of 28 December, 1942, by the WVHA, according to which the doctors of the camps were to take all measures to insure lower death rates and to maintain working capacity as high as possible, by the control of food and working conditions and by suggesting practical ameliorations which should not merely remain on paper. Neither was this in accordance with the fact testified by witnesses over and over again, that foreign and German commissions inspecting the camps and even SS Fuehrers themselves gained a very good impression of the administration and the prisoners. defense counsel the fact could not be sufficient that the tremendous number of victims was there and that the whole world said that they had been murdered and ill treated by the SS system.
In this decisive question which is produced by the mass effect of a mutually conditioned formation of opinions, in other words, a typical case of mass suggestion of public opinion, does not yield any facts which may be considered relevant by the Tribunal. For here we have to find clear facts without any prejudice. This is important for the following questions. Who were the authors of each of these crimes which became the enormous number of anonymous concentration camp atrocities? Did they do it on their personal initiative or on order? Do they belong to a typical criminal group, and if so, to which one, in order to discover a collective guilt? In which relation are they to the organization of the SS, that is, to the tens and hundreds of thousands of members, which had not been active in the concentration camps and affirmed to have ignored these crimes?
THE PRESIDENT: The Tribunal will recess.
(A short recess was taken.)
THE PRESIDENT : Dr. Pelckmann, you have now been speaking for two hours and twenty-eight minutes, so that, strictly speaking, you have got twenty-two minute more.
DR. PELCKMANN: The German counsel put the questions which seemed important to me for the clarification of the connection between the SS and the crimes committed in concentration camps. I hoped that those questions had been answered by the allied Courts which had been sitting in concentration camp trials since last year, because that might contribute to the quicker sentencing of all the criminal disposal the records of all these trials for consideration. From them I might have discovered many facts which have come to my and public opinion's knowledge, only during these last weeks.
I have nevertheless nothing left undone to discover the truth. My application aiming at placing at my disposal the concentration camps' administrative files of the WVHA, from which only incriminating extracts have been dealt with by the Pros cution, met with considerable difficulties , but I do not need it any more because I succeeded at last in the beginning of July to find a witness whose testimony is I believe, decisive in many respects for the discovery of truth, that is, for the historical and in this trial, relevant truth. This witness is Dr. Morgan.
We owe this witness the discovery of three primary facts. First, the last and profoundest reason for the killings in the concentration camps were the outlawry of the detainees, the omnipotence of the police (Gestapo) and the weakness of justice. called extermination camps was ordered by Hitler directly, Knowledge and execution of these orders was confined to very few. ception was destined to keep knowledge of the happenings in the concentration camp and extermination camps from the public and the Prosecuting authorities.
I shall never forget my first meeting with this witness, Dr. Morgan. Everything in this gigantic hunched looking man seemed to strive for expressing what he knew for about two years, what he had viewed and experienced for months while dealing with detainees and personnel in these places of horror.
With flagging hope Dr. Morgan made his report for the third time, with which as before, he wanted to help find the guilty, protect the innicent, and to show the German people and the world the final guilt of the criminal leadership for the most horrible murders in world history. In this he succeeded. centration camp system and the participation of the SS. From 1933, 1934, on, they were financed from the budget of the individual German Leader, and administered by the political police. As head of the political police of all Laender, except Prussia, Himmler, in 1934, regulated the guard and admini strative conditions uniformally. By taking over a part of the previous guard personnel, SA and SS men, he created the Death Head formations and supplemented them with volunteers from all sections of the population without consideration of membership in the Paryt and the SS. They are now intended exclusively for guarding concentration camps and comprised, in the year 1936, 400 men from the Kommandatur and 3,600 men for guard duties, They guard about 10,000 to 12,000 prisoners in five concentration camps all over Germany. I ask you to compare the then unusually large membership of the General SS with these figures. ever into the Reich budget; that is, separated according to Kommandantur and Guard personnel.
At the beginning of the war the Kommandatur personnel consisted of 600 ,em; the guard personnel amounted to about 7,400 men. There were only six concentration camps in all of Germany, and as yet no work or subsidiary camps, with a total number of 21,300 prisoners existed.
At that time there were about 240,000 members of the General SS. The Waffen SS did not yet exist at that time. the "Totenkopf Units" (Death Head Units) created in 1934 as special troops of the State, were not paid by the party but by the Reich and that they had in common with the General SS only a part of their name, "SS", and the chief, Himmler. I am submitting this explanation as an appendix. (This follows in particular from Hitler's Secret Edict of the 17th of august 1938 and from Document SS 84.
war, when the wave of destruction begins to mount slowly in the concentration camps. division. Thus they were eliminated entirely from the concentration camp system. During the course of the entire war there were employed about 30,000 men in the concentration camp system, as can be seen from the testimony of Brill and from Affidavit No. 68 (Kaindl). These included new arrivals and men departing. They comprised about 1,500 men of the original cadre of the Totenkopf Units and 4,500 men originally from the General SS. who had been called up until 1940 upon the emergency service decree, and who had became members of the Waffen-SS. The remaining 24,000 men of the concentration camp personnel, that is, eighty percent - originally had no nominal connection with, the 80. Those were 7,000 persons of German descent or extraction who had been called, up, 10,000 German Nationals who had volunteered to go to the Front in the Waffen-37, and 7,000 soldiers subordinate either to the army or the Airfor Many of the volunteers came from the SA, the Reichskriegerbund, the Party and other organizations, or with the exception of the original personnel of 1,500 men had been assigned the task of guarding the concentration camps against their will upon the order of Himmler, and without their having any connection with the Commando Amt of the Waffen-SS. Only in the course of the war were these guarding and administrative units of Himmler's nominally taken over into the Waffen-SS, thus exceeding his powers. This was done in order to prevent the personnel of the concentration camp continually having to be freed from military service, that is to say, for reasons which were practically to put the regulations of military supervision out of force. After the unmistakable evidence given by the witnesses, Reinecke, Juettner, Rueff, Brill and many others there can be no more doubt that the police task of the concentration camp system did not change for all that, and that in particular the concentration camp system did not become a concern of the Waffen-SS and, in deed, the entire concentration camp system, even after the formal transfer of the military staff into the Waffen-SS, was not directed and Aug26-RT-A-18-4-Price administrated by the needed agencies of these organizations, but by a special office, the well known Amtsgruppe D in the chief office of the Economic administration WVKA witness Stein, Affidavits Fanslau SS 41, 100, Frank No. 99). deal in detail with the activity of the Amtsgruppe D. This Amtsgruppe D, which was entirely separated not only from the other SS agencies but also from the remaining departments of the WVHA, for organization, personnel and also location, as shown in Affidavits 66 Kaindl and 99 Frank, surveyed, and gave orders to the military personnel and commandantur personnel.
All income from concentration camps, especially from work done by the prisoners, was booked with WVHA Amtsgruppe D. camps and particularly the extermination camps of with and Hoess. I continue on Page 66. special orders of Hitler, of the Chancellory of the Fuehrer, and were outside the framwork of the normal concentration camp system. For that reason, they did not have the normal chain of command and form or organization. Wirth was Criminal Commissar without being an SS member. Hoess received extermination orders, aside from Himmler, only from Eichmann personally, without being allowed to inform his immediate superior, Glueks, the Inspector of concentration camps, of them. So Hoess testified, on 15 April. camps atrocities through the Einsatzgruppen to mass gassings -- for the charge against the SS? such a great extent and in such vast proportions, that they and the criminal aims and methods must have been known to every member. tasks is a condition for the judgment, the decision of the court of 13.3.46 is in agreement.
The assertion of the prosecution is based upon the following arguments: statements of official personalities and all manner of publications in the allied countries informed the public of these States widely about the atrocities committed in the concentration comps, and other crimes.
Under these circumstances, it would seem obvious to conclude that, if in these countries such crimes were almost universally know of, it must have been even more so the case in Germany and particularly in the SS. The collective affidavits which have been submitted and are partly extensively proven show that the majority of SS members deny any such knowledge. But the defense has countered the charge with a comprehensive statements: The crimes committed within thelimits of the German power sphere were carried out under a minutely planned system of secrecy so that the mass of SS members not only did not know anything about them, but, indeed, could not possibly have knew. The charge of the prosecution can only be made credible by the legally very doubtful use of deductions; whereas the argument of the defense is proven by the facts. And this proof, Gentlemen of the Tribunal, has been furnished by the defense.
Let us start with the concentration camps. On looking back we can easily detect the thick veil of secrecy and deliberate deceit. In all this time only five or six camps were existent in Germany with 12,000 prisoners in 1936 and 21,000 in 1939. It is obvious that for this period the chrge of the prosecution is not valid, which maintins that on every one of his journeys every German passed many concentration camps on his way. matter if secrecy or the regulations which made it impossible that any if this Information got out of the camps.
All in these camps is secret. Not only the official execution of death sentences of courts, but also the execution instructions of the RSHA, which began only at the beginning of the war and certainly the murders arising from the assumption of power of the Kommandants, were not undertaken publicly. Dr. Morgen describes this in detail in his affidavit number SS-66. In his examination he described all the clever methods to disguise murders as natural deaths and thus to deceive the civil courts and from 1940 on, the SS courts.
Since the activation in 1934 of the Death's Head Unit as comp personnel, the General SS and later the Waffen SS no longer had anything to do with the concentration camp affairs and certainly not with the Kommandantur personnel in personnel or legal questions. The Amts Group D, of the WVHA with their small group of thirty thousand men of the above mentioned nominal Waffen SS had become an independent and separate system with their own telephone and teletype not and their own couriers to the concentration camp. Only the Gestapo had a channel into the concentration camp consisting of the so-called political department, which was subordinate to it and mostly led by a criminal secretary. Here also there was no connection with the reset of the SS. affidavit SS 68, the staffs of the Kommandanturs were made up of the some personnel until the middle of 1942 which they had had at the beginning of the war. Thus the knowledge of the events could not be spread before 1942. From a psychological point of view one must consider that these persons, responsible because they issued orders or received them had not the slightest reason to discuss their sinister acts. deal in detail with counter propaganda which had been started by Germany and presents comprehensive proof in the way of affidavits and statements before the Commission. The same applies to mass extermination camps, Auschwitz Monowitz, Treblinka and so on.
the activity of the Einsatz Commandos. tion camps I may point only to the fact which appeared grotesque to me -that there has taken place here an elaborate taking of testimony on the question, whether the witness Goering had know of them. I could state that those experiments were carried on only in a few camps, that as proven by variou affidavits, they were carried out only after the prisoners had voluntarily agreed to them -- I am not going to do so because I am not willing to defend them at all, and I do not wish to create such an impression. It is enought to refer to the argument about the knowledge or ignorance of Goering, and the question which has been decided in favor of the unknown SS man. I do not doubt at all that the carrying through of criminal experiments and their knowledge by the Director of Ahnenerbe, the witness Siever is charged with guilt, and not his co-workers since those experiments constituted about one percent of its total research program. an article which I found in the "Berliner Blaetter", issue No. 1, of 1946. In an article by Oskar Goetz, entitled "The Jew in the Third Reich." I quote:
"The happenings in Auschwitz, the other crimes in the death camps of Mauthhausen, Maidanek, Ravensvroock, and Buchenwald, we in Theresienstadt, considered only as rumors, yes, as only terrible exaggerated rumors. The things that actually happened in Auschwitz, for example, we did not learn authentically in Theresienstadt, before the Spring of 1945 when a few survivors returned from Auschwitz. In the interest of just evaluation of contemporaries one should be factual, and should desire to be factual. No guilty one should go free, but no innocent one should be burdened with guilt." or more or less definable group of culprits -- withness Dr. Morgen mentioned certain circles of culprits within the concentration camps -- the great mass of the SS had no knowledge of the crimes, but that they, however, the majority as well as the rest of the Germans had knowledge of the deportations, that would be considered criminal under Article 60 of the Charter only if it were in connection with a war of aggression.
I have already mentioned before that the bulk of the SS were not aware that they waged a war of aggression. 1941, on the occasion of the shootin of hostages by German forces if occupation that civilized nations for a long tire upheld the principle that none should be punished for the deeds of another person. Justice Jackson has declared on February 28, 1946, that the aim of declaring the organizations criminal is to punish assistance increase crimes, though the real authors could never be found, nor identified Can they really not be found?
Is the contrary not proved by the great number of trials, which I just mentioned before, for concentration camp crimes before Allied military courts, which pronounced 153 death sentences, out of 241 defendants? Does the prosecution still maintain that they have not yet found the real authors, though for more than a year all persons who had anything to do with the concentration camps are under arrest, and though all detainees are today grouped in organizations and are at any time at the disposal of the Tribunal as witnesses? All files and documents, too, are in the hands of the Allies. Roosevelt and Jackson, I shall place myself for a moment in the point of view of the prosecution by assuming that such a collective criminality exists. be held responsible for a crime which he did not commit. It means that in this case, too, the group of accused should be limited as much as possible.
1. The degree of responsibility, that is, the position or the rank held in office.
2. The subdivisions of the while organization known as SS. charge against the Party and the government. From the Party the political leaders only and from the executives of the German state, the Reichs Cabinet members only are put on trial.
moral and legal responsibility The question must be asked, what each individual in his respective office should have done if he committed a crime upon order or only if he came to know about it and what could resonably be expected from him. can be justified by the fact, which I have thoroughly explained, that these groups had very definite and separated spheres of activity and differed very much as to the knowledge of activities, perhaps crimes. ceivable and would permit a collective exception of the mobilized members. necessary, in view of the heavy consequences brought about by Law No. 10, to insert in the formula of the verdict of the reasons given for the verdict that each individual member would have the possibility of appeal, except against provisions of Law No. 10. which has been demanded: The meaning of the additional sentencing of a member of an organization as an individual belonging to this organization seems to me the following according to Article 9: An organisation shall be held responsible for the acts of an individual defendant only who is its member if between the acts of this individual defendant and his organization a connection exists so that for legal reasons joint liability of the organization is considered necessary. Such a connection exists only if the individual defendant committed the deed as a member of the organization, say it be that by doing so he fulfilled the aim of the organization, or that he used the organization for its commitment. On February 28, 1946, Justice Jackson stated: "Individual defendants, at least one of them, must have been members of the organization, and must have been sentenced for a food by which the criminality of the organization has been ascertained."
In the case of the organization of the SS, which I represent this means:
defendants belonged to it, and was sentenced for a crime which he has carried out either through the organization, or which is to be considered as recurring from the aims of the organization, and has been performed in their realization. dants stand before this high Tribunal for acts, which they have performed as the chiefs of important state or Party offices and which they carried out in the fulfillment of their task there, but not in offices of the SS. either one of the SS organizations, is not enough to consider the SS organizations co-responsible for deeds, for the carrying out of which they were not responsible and in which they did not share.
The defendant, Kaltenbrunner, could be one exception. He is indicted independent his capacity as chief of the Security Police, that is, the criminal police and Gestapo, and the SD. Also for these deeds which were carried out by the SD. But by that the SS organization could also be burdened with guilt. The Criminal Police is not indicted. The Gestapo is indicted as such. The indictment of the SD also must be considered as an independent one. It is true that it was connected originally with that against the SS, but soon the SD got its own defense counsel and throughout the whole proceedings, it was treated independently.
Since 1934 SD and SS were separated. A sentencing of Kaltenbrunner, therefore, would if at all give only a formal basis for the sentencing of the organizations, their Gestapo and the SD, but not at all of the SS. that none of the defendants concerned was ever asked whether and how far he committed his deeds, for the SS or as a member of the SS. This appears to me as a short comment.
I come to the end, gentlemen of the High Tribunal. I said in the beginning that this trial was a most gigantic criminal trial -- but still a criminal trial. And therefore I venture to ask now, what purpose from the standpoint of legal policy could and would, a sentencing serve? And I am to receive the traditional answer, retaliation and threatening. the former Nazi formations, but also before the peoples of all the world which might ever be tempted to burn to dictators, or anti-Democratic methods, and to make them face the severe consequences of the violation of international law, the new universal law now incorporated within the Charter. This trial should be the last warning to those who do not heed these demands of the world, and of all their peace loving citizens, for freedom of speech and religion, for freedom from what and freedom from fear. The war, the terrible consequences of the defeat, the detention of hundreds of thousands of prisoners of war, the painful months of the proceedings here, the political investigations and occupational limitations -- all these are such impressive and threatening effects that they shall have for all those consequences which we hope for.
But gentlemen of the High Tribunal, one thing above all: Your armies have freed Germany from the tyranny of Nazism; now will you free the world from the curse of retaliation. The world can recover only when once there will be made an end to the hateful slogans directed against races, nations, classes, once parties. will be many on the side of the Allies, who will not understand the meaning of my words.
word: "I am here to love and not to hate." organization, or one of its units -- and there are more than a few of them. good faith, and who therefore share only the moral and metaphysical guilt of the German people, not a criminal one. in legal form, against the creation of a mass of condemned and degraded ones in the heart of Europe, I warn so that the longing of all peoples and men might be fulfilled.
THE PRESIDENT: Now, I think the SD will come next.
DR. GAWLIK: May it please the Tribunal, I do not regard it as my task as defense counsel for the SD to prove that crimes which have been proved were not committed. Far be it from me to palliate injustice practiced in any way. whether individual persons must be punished for crimes committed. It is much more important to determine whether, according to the outcome of the evidence submitted, a circle of three thousand officially active persons and thirty thousand purely honorary office-holders, who were collected under the designation SD in Offices III and VI, can be declared criminal.
I have to deal with this question alone. I have to prove whether the charge made against the SD by the Prosecution is justified on the basis of the Charter and so far as this is admissible according to the Charter on the basis of international law, national laws, and the basis of laws developed from jurisprudence which cone to this Tribunal. discuss in the second part of my presentations the factual circumstances under consideration of the outcome of the evidence.
The first part divides itself into two sections:
In the first section I discuss the questions arising from the law itself; in the second, the questions of procedure. the organizations and groups in relation to the SD. Then I shall investigate (a) what prerequisites must be complied with in order that an organization or groups can be declared, as criminal, (b) what conclusions can be drawn from these confirmations. Finally I should investigate whether the basis nulla poena sine lege is opposed to a sentencing of the SD. part of my statement.
I start with the explanation of the word "SD", the Security Service. This word has no unequivocal meaning. By SD one first understood
a) the SS-Formation SD
b) Offices III, VI and VII two completely different unions of persons. or were candidates, and who were employed with the Security Police or with other similar Police or organizations (e.g., custom frontier protection) or with the SD Intelligence Service. This SS-Formation SD had no tasks and no purpose. It exercised no activity order to fulfill a common general purpose. Its members never met for a common service or at other general gatherings. They lacked any feeling of solidarity, as they served independen of each other in different organizations. I refer particularly to the testimony of the witness Hoeppner before the Commission for the Tribunal. candidates of certain professional groups. badge "SD" on the left sleeve. Their different branches were thus not outwardly distinguishable.
2 b): Offices III, VI and VII were the home Intelligence Service, the foreign Intelligence Service and scientific research.
They were the SD offices in the Reich Security Main Office (RSHA) which was founded in 1939, in contrast to the security police *---*o) offices IV and V. Office VI was united on 12.11.44 to the military Counter Intelligence of the united German Intelligence Service. different. The Reich Security Service provided the guard for leading personalities of the State. This unit did not belong to the Reich Security Main Office and it was also not part of the SS. The Reich Security Service was under the then brigade leader Rattenhuber, whose immediate superior was Himmler.
2. Offices III and VI of the Reich Security Main Office, the home Intelligence Service and the foreign Intelligence Service are the indicted. is not indicted. I refer particularly to the minutes of the Commission of July, 1946. indicted offices III and VI. 1939. which has elapsed since that date. In contradiction to this, however, accusations have also been made against the SS relating to a time before that. Therefore, against the formal text of the indictment, I shall also make the time before that the subject of my speech.
3) Departments III and VI were not indicted separately, but as a part of the SS. within the meaning of A tide 6 of the Charter and the SD merely as a part thereof.
Is this right? and group within the meaning of the Charter.
of 23 February 1946 considered the following conditions necessary for the term organization.
1) An alliance of persons with an identifiable relationship,
2) a collective general purpose,
3) the voluntary character of the alliance. (Juristische Rundschau 1928, page 688), I shall base my further arguments. existed between SS and SD:
a) an identifiable relationship,
b) a collective general purpose. answered in the affirmative. To that extent I refer in particular to the statement of the witness Hoeppner. SS are applicable to the SD, and I shall in consequence make no fundamental statements for this period. relationship existed between the SS and SD must, however, be answered in their negative. SS Supreme Command, as has been asserted by the Prosecution. It is also not true that the Main Office for National Security was a department of the SS. To that extent the Prosecution contradicts itself, since the secret State Poli which was Department IV of the Main Office for National Security, is not indicted as part of the SS, but separately. SD was an espionage division of the SS, this is obviously inasfar as a division of the SS is meant, a case of confusing it with the separate SS formation, SD.
of Organization was not created by the person of Himmler; in that case this obvious connection must have existed with the police and would have existed even with the reserve army since 1944. the police by creation of a State Defense Corps. Here, however, it is the question of future plans which have as yet not materialized. and police Leaders as they had, as a matterof principle neither an essential nor a disciplinary directive right against the members of the Offices III and VI. ganization could not have existed since 1934 for the simple reason that only 10 % of the chief and honorary members of the Organization SD were members of the SS; 90 % were not members of the SS and did not wear the uniform of the SS Special Formation SD with the insignia SD. During the war about 50 % of the SD were women. SD there was also missing since 1934 a collective general purpose. For this. I refer to the testimony of the witness Hoeppner. The SD, therefore, was part of the SS only until the year 1934 as an organization, according to Article 9 of the Statute. After this period the SS a SD were no longer united in one organization according to the statute. ding to Article 9 of the Statute ? Important distinction from a legal point of view between "group" and "organization". The wording of article 9 of the Charter could speak against a distinction. It says there that Groups or Organizations can be declared criminal Organizations. Also the Group, therefore, is to be declared a criminal Organization. If, however, a distinction is assumed, I wish to st in this connection the following :