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 :
from common usage When explaining this concept common sense should be use According to common usage the Group is a numerically small community of per For 15-20 persons we speak of a Group, not, however, for larger unions. There is some talk about the fast that Groups were formed within a party or within an association. The Group is part of the Organization according to common usage. The Group, therefore, is the subordinate concept of the Organization. man Supreme Court of the Reich of 8 May 1922. In this resolution it has been said that a Group, having made it its task to pursue a definite individual aim, may be singled out from the members of a large majority of persons who pursue some other general aims. This may occur particularly if the large majority of persons pursue approved aims with approved means : part of the members, however -- perhaps without the others being informed of it-- united themselves for activities which ter to further the general aims in a prohibitive way.
Article 9 of the Charter; therefore, might be explained as follow : We can declare as criminal : 1) an Organization or 2) a Group as part of an Organization of it had been part of the SS. This, however, at it has already been stated is not the case.
Result: Since 1934 the SD was not part of the SS as an Organization Group according to Article 9 of the Charter.
I come to a further question : they two separate Organizations according to the Charter. collective general purpose. This held good for the time after 1939 when themselves Offices III and VI belonged to the Reich Security Main Office (RSHA), as well as for the period prior to 1939, when they were united in the SD Main Office.
Office I was the Home Intelligence Service, Office VI the Intelligence Service Abroad.
On the basis of the presentation of evidence it can be 26 Aug A LJG 21-1a Daniels considered as proved that the aims, tasks, activities and methods of offices III and VI in the Reichsecurity Main Office does not suffice to prove a recognizable connection between both agencies, and that they both have a general task in Common.
Office IV and the Criminal police, Office V, also belonged to the Reich Security Main Office. The Gestapo is rightly considered by the Prosecution as an independent organization and has been charged as such. The Prosecution has evidently the same opinion regarding the criminal police, against which no charge was made. Just as little as the Gestapo and the Criminal Police have lost of their character as independent organizations, as little could the fusion of office III and VI create a recognizable fusion and common general task for both these offices. The Reich Security Main Office was only the designation of an Administrative Agency.
I refer here to a statement made by the witness Best: The SD, therefore, was no uniform organization within the meaning of the Charter, but Offices III and VI could only have been two separate organizations had the presupposition of voluntary membership been accepted. necessary for each member to be a voluntary one. The Prosecution considers it unimportant if a small part or small percentage did not join it voluntarily. point does not tally with German jurisdiction. In a judgment in 1928, the German National Court required for a society, which corresponds to the Charter's concept of an organization, the voluntary, contractual reunion of all members. can be considered as existent when a small percentage of the members did not belong to the society on the basis of a voluntary contractual reunion, because such is not the case with the SD.
War the membership of a considerable portion of the members of 26 Aug A LJG 21-2a Daniels the SD was not voluntary but was based on a legal ordinance, either on compulsory service or emergency service.
I refer to the deposition of the witness Hooppner, who revealed that during the War an estimated 50 to 60% of the members belonged to the SD by virtue of a legal ordinance. disclose on an average the same percentages for the most widely different services. 3) I, moreover, refer to the collective list of affidavits submitted by me on the subject. emergency service were based since 1939 are to be found in Document SD 65-69, submitted by me. I especially refer in this respect to Document SD 65, reproducing the circular of 16 October 1940, in the text of that of 1 July 1942. It is expressly stipulated in this circular that as emergency headquarters the SD commands can demand that replacements and reinforcements be put in readiness for them. those who joined the SD voluntarily. the Prosecution that membership of the SD was voluntary. brought forward by the Prosecution, Offices II and VI cannot, for the time of war, be considered as organizations as conceived by the Charter. for the group as part of the organization, the factual features of the organization, including free will, are necessary.
1) Until 1934 or therabouts, the SD was part of the SS.
2) In the period from 1934 to 1939, the Home Intelligence and the Foreign Intelligence were separate organizations.
3) During the time after 1939, they were not organizations or groups in the sense of the Charter because the membership of 26 Aug A LJG 21-3a Daniels a large part of the members was based on legal ordinance.
Consequently, for this reason alone, Offices III and VI cannot, since 1939, be declared to be criminal organization.
must have to be called criminal.
1. The Prosecution has submitted that the organization
a) must pursue a purpose which according to the definition of Article 6 of the Charter is punishable, or
b) pursue legitimate purposes through means which, according to Article 6, are liable to punishment. guilt of the members must be established. This means the members must have known that the organizations pursued goals termed punishable according to Article 6. can be declared criminal also when not all of its members knew about the punishable purposes.
Professor Dr. Exner established in detail and convincingly, in his final pleadings for the defendant Jodl, that the action per se is not a crime but that guilt must be there also. Without guilt no punishment. Going further, Professor Dr. Exner has established that this principle can also be found in foreign decisions. I refer to the statement made by Dr. Exner, and I wish to point to the American law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law demands explicitly the knowledge of illegitimate goals. cannot be convicted by penal law unless it can be proven that guilty intent some of the members is sufficient for sentencing the organization could be uphold if the language of law No. 10 were different, in other words if by reason of law No. 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.
This is not the case,however. Law No. 10 provides conviction of each member merely by reason of the fact that he belonged to an organization which has been declared criminal.
The members can no longer argue in subsequent proceedings that they did not know of the criminal goals and purposes. The opinion held by the Prosecution would thus mean that in subsequent proceedings persons will be convicted who had no knowledge of the criminal goals or activities. This would be contrary to the fundamental principle known to penal law in the entire world -- previously referred to by me -- according to which the proof of objective facts is insufficient for conviction and that the presence of guilt must also be proven. In view of this and since subsequent proceedings will not deal with the intent of guilt, it is imperative that the guilt of all members be established in this trial before the International military Tribunal. Only to the extent that this guilt has been established could the organization, or individual groups as a part of the organization, be declared criminal.
2) The intent of guilt also includes cognition of illegality. Also in this respect I should like to refer to Prof. Dr. Exner's argument whereby he established convincingly that every serious crime -- and only serious crimes are being tried here -- does not presuppose the cognition that something punishable is being done but does presuppose the knowledge that it is a crime to act in that manner; that the perpetrator must be cognizant of the fact that he commits an infraction of law, or that he is acting in a manner considered naturally wrong. Prof. Dr. Exner also has established that these principles prevail not only in the German penal law, but he also cited a number of examples from the English law. the goals or methods of the organizations, which would correspond to the facts with which Article 6 is dealing, but the members must also have been aware that these goals or these methods are illegal or in any case contrary to law. In that connection, on the other hand, the question arises whether this cognizance must have been present in all members or whether knowledge in some of them is sufficient. Because -- for reasons which I already explained -- only he is liable to punishment who was conscious of the illegality and because this consciousness can no more be examined in subsequent proceedings it must be established in these proceedings for all members for otherwise those members night be punished by virtue of Law No. 10 who did not have this consciousness.
To renounce the factual criterion of the cognizance of illegality would mean that the demands made on the ordinary members are unduly high. The cognizance of illegality may be absent even in the case where a perpetrator executes an order given him. order as a general reason for exclusion from punishment; but it is possible for an order to exclude the cognizance of illegality in the individual case. He who has recognized the illegality of his action cannot, according to Article 8, justify himself through reference to an order. legal by virtue of an order given him must be exonerated. Provisions of Article 8 of the Charter can have only this meaning and this interpretation. The question whether appeal by virtue of an order received from superiors furnishes ground for exoneration is not left uncontested in international literature. Article 8 of the Charter ruled on this controversial question that the perpetrator cannot make appeal because of an order obeyed. This explains why I did not discuss this controversial question in greater detail.
All authors, however, who deal with this question, presuppose that the subordinate has known that the order was illegal and unjust. They deal only with the question as to whether the subordinate, by knowing the illegality and unlawfulness of the order, had grounds for exemption from punishment. can also be founded on an order, the perpetrator is exempt from punishment. protect the execution of the deed which was obviously punishable. to cite an order as proof of the lack of illegality. if he lacked the knowledge of its illegality. If he, however, commits the same deed on the strength of an order, he would have to be punished, if one does not agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. and for this reason exclude the guilt. punishment who hascommitted crimes under the authoritative influence of other , i.e., not as a result of an unchecked and deliberate intention. relationsof society as, for instance, between subjects and the supreme power of the State and excuses obedience to the existing authority if bodily force is exercised or is immediately imminent.
Thus I arrive at the following result : 1) its purposes or expedients correspond with the facts of the case as 2) all members have known these purposes and expedients and 3) all members were conscious of the fact that these purposes were illegal This results gives rise to two further questions:
1. A legal one, whether the condemnation of an organization can be brought into harmony with the general rules of International Law and national law, 2. Factual one, whether the necessary elements of the case can be established at all for all members of the SD and whether a trial of this kin can be held at all. drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing this. It may be assumed that the legislators pursue a purpose in having prescribed the condemnation of the organizations as not Mandatory -even if all the conditions for this were fulfilled. It may be presumed that the legislators who promulgated the Charter wanted to submit Article 9 to examination under the rules of international law. judge's right of examination to the International Military Tribunal with regard to Article 9 - and I expressively emphasize, in order to avoid any misunderstandings, only with regard to Article 9, becuase in other respects the Charter is a mandatory rule. The International Military Tribunal should examine Article 9 to determine whether this rule is a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law should especially favor such an intention. The question as to whether a formal law is in contradiction to other laws, can be immediately locked over when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars. does not recognize the judge's right of examination. The Union of the Socialist-Soviet Republics does not recognize the judge's right of ex-mination either. In France the judge's right of examination is almost unanimously accpeted by legal scholars.