THE PRESIDENT: Certainly,
DR. LATERNSER: The author is Gen. Warlimont, who at present is at Nurnberg. He wrote this letter on the 23rd of August. He wrote it here in Nurnberg. and I received it yesterday. I found it on my table after I came down from the session. I put it in my brief case without reading it. I noted the contents the first time when I arrived home yesterday. that in this letter we hear that after the publication of the intentions along bacteriological lines over the radio, this Col. Buerker whom I asked as a witness came to Warliment, who was at Dachau at the time, and told him those factswhich took place and I have presented now. But a few days and General Warliment was brought back to Nurnberg. These are the matters connected with this point.
THE PRESIDENT: What is it ?
DR. LATERNSER: I was referring, Mr. President, to this letter written by Gen.
Warliment in which the General tells me the statements which Col.
Buerkermade to him a few days and in the camp at Dachau. There statement I set forth directly and I shall be very happy to submit this letter to the High Tribunal.
SIR DAVID MAXWELL FYFE: There are two points that occur to me. First, if Dr. Laternser would let us see the letter, it might be possible shorten the matter in that way, to make some admission as to the statement in the letter. Otherwise it might be convenient to see an affidavit from the officer and know what he was going to say before we occupy the time by having him examined. If Dr. Laternser would agree to the Prosecution having the letter translated and examined, we should be able to make a communicate to him and if necessary, to the Tribunal in the course of the day.
THE PRESIDENT: That seems a convenient course, and particularly in view of the fact that the Tribunal expect to finish the entire hearing of the case this week, certainly by Saturday evening, and it will be, there fore, very difficult to get an affidavit by this Col. Buerker before that time. Therefore, if the Prosecution are able to agree that the Colonel would give that evidence, that probably would be the best way of dealing the matter.
SIR DAVID MAXWELL FYFE: If your Lordship please, then if Dr. Laterns would allow us to have the letter, we will have it translated and looked into in the course of the day
THE PRESIDENT: Yes.
DR. LATERNSER: Mr. President, if the witness can be called here through a request by telephone, then 2 can take his affidavit here or inter gate him here. That would be the quickest way. If I have to write to the camp first in order to get the affidavit that way, that would take more time Mr. President. I assume that the telephonic connection is such that we can call Dachau today to have the witness brought here and then we can see further.
THE PRESIDENT. We will hear first what the Prosecution say after the have seen the letter.
COL. PROKROWSKY: My Lord, I would like to report that I tried to satisfy the possibility of confronting the witness of Dr. Laternser with Schreiber, but this possibility, unfortunately, has been excluded because Schreiber has been sent back into the camp of prisoners of war. In this case it is impossible to confront the two witnesses because Dr. Laternser presented his request too late. The Soviet Prosecution doesn't think, therefore, that it would be advisable to call the witness requested by Counsel Laternser, so much so that the witness requested by Laternser does not refute the fact itself that there was a secret session of the OKW. That is way I thought it necessary to report to the Tribunal on the part the Soviet Prosecution.
THE PRESIDENT: The Tribunal will await the communication from the Prosecution and they will consider the matter. Dr. Gawlik.
DR. GAWLIK: May it please the High Tribunal: Yesterday I paused with the question whether it would be possible at all to determine these prerequisites which are necessary in order to declare an organization criminal. I shall continue. guilt cannot be summarily determined by drawing conclusions from the member or crimes and tye type of crime committed, from the knowledge of all the men of these deeds and from their consciousness of illegality. It is rather necessary, that the proof of the knowledge and consciousness of illegality should be considered in special proceedings in each individual case of a member of the organizations, so that on account of the circumstances the individual members would be given the opportunity to reply to them. Should the members ever have had knowledge of real facts of individual criminal acts no proof is given that the know that their organizations were involved therein the principle of penal law nulla poena sine lege. This principle has already been treated in detail by the defendants of the principal accused. I shall not repeat these statements but only point out briefly the following points:
In his speech of indictment on 29.11.1945 the American Chief prosecutor has said that the defendant could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the Organizations because the members had no influence on the legislation but were themselves objects of the legislation. in his final speech on July 29, 1946 in the discussion of this principle, the the Charter of the International military Tribunal is an unviolable law and absolutely had to be carried out. if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, because paragraph 9 of the Charter is merely a can prescription. The Chief Prosecutor of the Union of Socialist Soviet Republic has said further that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples.
peoples that punishable offences must be judged by individual proceedings. to now unknown in international law. On the contrary it is denied, as said before, by the science of international law. amnesty clauses for war crimes committed. After the First World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of war laws. I refer to Fenwick in International Law, 1924, para 578. Great Britain and the Union of Socialist Soviet Republics of 2 November 1943 mentioned by the Prosecutor of the Socialist Soviet Republics orders expressly that individuals shall be made responsible. The declaration contains no statement to the effect that the collective condemnations of communities of persons is permissible. internationally admitted legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921 as purposed by the Chief Prosecutor of the United States or even for the time from 1935 on as purposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29.7.46. principle nulla poena sine lege. procedure resulting from Para 9 of the Charter. In level procedure, according to paragraph 9 of the Charter, an organization of group may be said to be criminal (a) in a trial against a member of such organization or group and (b) in connection with any action by reason of which the accused is Both these hypotheses must be realized.
Of the principal defendants, only the defendant Kaltenbrunner, Chief of the Security Police and SD is involved, as member of the SD.
It can be gathered from the words "in connection with any action by reason of which the accused is sentenced" that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. like to illustrate by the law of the United States of 28 June 1940 already quoted. 20 June 1940 are arraigned before a tribunal in several different proceedings an admittedly extensive examination of evidence, but doubtful in its results, must be effected in each proceeding as to whether the association to which the person belongs fulfils the primary conditions contained in the above legal stipulations. organization had pursued the purpose, named in the law of 20 June 1940, while in other trials the result of the testimony is not considered as sufficient. of the law that the trial be held against one or several members of the organization, the other members who have not yet been accused are given the possibility of a legal hearing and -- if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940 -- the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfils the purpose mentioned in the decree of 28 June 1940.
Such provisions would achieve the following:
(1) the testimony on the aims, tasks and activities of the organization (2) contradictory decisions on the objective tasks, aims and activities Charter.
The situation is to be avoided whereby the Military Tribunal in the individual occupation zones in the proceedings against the members of the accused organizations would have to examine the question of the character of the organization each time and perhaps once to contradictory decisions.
THE PRESIDENT: Dr. Gawlik, are you arguing that if any 27 Aug M LJG 3-1 Perrin individual were tried under this Act of June, 1940, that the declara tion of this Court under Article 9 would have any effect in the trial under that Act of June, 1940?
Is that your argument?
DR. GAWLIK: No, Your Lordship. The stipulation put down in Article 9, I wanted to explain that in line with the Decree of June of 1940. The Law of June, 1940, is something quite different and has no connection with Paragraph 9. I wanted to explain the Law of June, 1940, which was mentioned by the Chief American Prosecutor, and I wanted to explain what importance a stipulation would have such as is set down in Paragraph 9, Article 9.
THE PRESIDENT: What importance are you suggesting that it would have?
DR. GAWLIK: Paragraph 9, as I shall set forth, has the following significance: One member has to do accused because of the membership in an organization, an organization which porsues crimes according to Article 6 of this Charter. Then, in this trial against one member the entire fact has to be cited against this member because of his membership in the organization, and then the facts that have been ascertained, the findings that ha ve been set up because of the aims and activities and purposes of the organization; if a sentence is reached, it can be used in the trials against the other members. The objective facts, not guilty or guilty is associated with an individual.
Your Lordship, may I cite an example: Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because of his membership in the SD, that he was a member of an organization which permitted crimes against the peace, the laws of war, and against humanity. If this member now is punished because of his membership in an organization of that nature, then you are objectively determining that the SD is an organization of that kind, then the findings can be used to deal with the activities of the SD and use the findings against the other members.
THE PRESIDENT: Well then, I think I follow that argument 27 Aug M LJG 3-2 Perrin based upon the first para graph of Article 9, is that right?
It is based upon your construction or your interpretation of the first paragraph of Article 9?
DR. GAWLIK: Yes.
THE PRESIDENT: Are you saving that a decision of this Tribunal upon that would have any importance or effect upon a trial under the act of 1940?
DR. GAWLIK: No, that is only an example.
THE TRIBUNAL (Judge Biddle): The Act of 1940 is a sedition law, is it not? That is the Sedition Law of 1940?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): You say the Prosecution, as they did in the argument, depended on tha t Act to show that this type of group condemnation was used in the other countries, they made that analogy?
DR. GAWLIK: Yes, I know -
THE TRIBUNAL (Judge Biddle): A nd the reason you say that is that if one individual were tried under the Act of 1940 -follow?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the government by force or violence, right?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): Now, the Court then would have to decide first the purposes of the organization, right?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): Now, you say also that is a second individual were, at a later time, tried under that Act that the government would again have to prove -
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): --that the purposes of the organization was to overthrow the government by force or violence, right?
DR. GAWLIK: Yes.
27 Aug M LJG 3-3 Perrin
THE TRIBUNAL (Judge Biddle): Therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect -
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): -- on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon Laws because the finding of a fact against one individual cannot affect the trial against the second individual, is that your thought?
DR. GAWLIK: Yes. this purpose, if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization and the determination of guilt were left to the subsequent proceedings.
With regard to Law No. 10, as it was pointed out already, the condemnation of the organizations according to Par. 9 of the Charter, contains not only the objective statement of the aims, tasks, an activities of the organizations, but beyond this purpose the confirmation of the guilt of the members.
Par. 9 of the Charter has consequently besides the materially legal confirmation of objective and subjective factual evidence also a legal criminal meaning.
This juridical aim,which is evidently pursued by par. 9 of the Charter can, however, only then be reached if this decision is thus interpreted that the member is sentenced on account of this membership of an organization, whose aims or expedients are punishable according to point 6 of the Charter and not on account of any action.
Another interpretation would have no meaning and no purpose. Only a condemnation of the defendant Kaltenbrunner on account of his membership of such an organization could, therefore, according to par. 9 of the Charter, justify the condemnation of the SD. In regard to this statement the formal hypotheses for the application of par. 9 of the Charter do not seen suitable to me. to be charged on account of his membership of the SD as a criminal organization within the meaning of the Charter, and that in this proceeding against the defendant Kaltenbrunner the character of the SD willbe examined. In this case only would there be a case at hand - as the Chief Prosecutor of the United States has stated - in virtue of which the criminality of the SD might be examined. Such a charge has, however, not been made against the defendant Kaltenbrunner. the SD as a criminal organisation, but is to be sentenced for other punishable offences. basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced, which has no connection with the criminal actions for which the defendant Kaltenbrunner has been charged. between the period during which the accused member belonged to the organization and the period for which the organisation is to be declared criminal.
This purely legal question is completely different from the question of the period during which ah organization was criminally active. Here, the matter is only as follows: Can, in the proceeding against a defendant, the organization of which he was a member, be declared criminal also for the period during which he did not belong to the organization? criminality of the organization has to be tested only on the strength of the defendants action. Such action of the defendant confines the examination, also from the standpoint of time, to the question as to whether the organization can be declared criminal. The evidence in the proceedings against an accused member can only justify the decision regarding the organization for the period during which the defendant belonged to the organization.
This limit in time is justified also for the following reasons: He who shall be sentenced, has the right to be heard. This right to be heard is not met by the making of statements before the Court. On the contrary it includes the right to participate in the whole proceedings. According to Par. 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but restricted to only one person of the Organization mentioned, in order to save time, as they started from the principle that the depositions of further members as to the aims and tasks and activities of the Organization were cumulative. A member who did not belong to the Organization during the whole period for which the Organisation is to be declared criminal, can define his attitude towards the question of the aims, tasks and activities of the Organization only for the duration of his membership. According to the principle of legal hearing it is therefore necessary that a member participate in the proceedings as a defendant, if he was a member of the Organization during the whole period for which the Organization is to be declared criminal. criminal only for the period during which the defendant was a member of the Organization. Should an Organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period.
criminal only for the period during which the defendant Kaltenbrunner was Chief of the SIPO and the SD, that is, since January 1943. been committed during this period.
DR. GAWLIK: I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part. I shall deal with general statements first of all. The Prosecution has submitted a large number of document in which the SD is mentioned, thus wishing to prove that the offices 111 and VI are responsible for the SD. However, the prosecution itself has said that common and even in orders and decrees "SD" was used as an abbreviation for "Sipo and SD I refer to record page 1832 (German). that this deed must have been committed by members of offices 111 and VI. These may just as well be deeds of the Sipo as well, this has been proved by the evide The witness von Manstein.
one of the highest military leaders of the former German Wehrmacht was heard before the Tribunal. This witness spoke repeatedly of the SD in his examinations before the Tribunal and the Commission. When I asked the witness what exactly he understood by SD, he declared that he was not quite certain. To further question whether he believed it to be the offices 111 and VI he answered in the negative. examination of the defendant Jodl on the witness stand. The Defendant Jodl was told that the prisoners had been shot by the SD, whereupon the defendant Jodl was told that the prisoners had been shot by the SD, whereupon the defendant Jodl declared, and I refer to Page 11014, in German, literally, "Not by the SS, that is not correct, but by the Security Police." SD No. 52 - who declared under oath that he only realized during the trial at Nurnberg that the opinion reigning in military circles also concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in the military language and decrees, the SD was mentioned when the competent police organ executive power was meant, Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which lead to the wrong interpretation of the abbreviation "SD" General Staff of the Luftwaffe, Koller, document No. 58, page 119 in document book Jodl. In this affidavit Koller reports upon a conference with Hitler to discuss the situation.
At this conference Hitler gave the order to transfer all bomber crows of the different Allied Armies to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation. "The Fuehrer's conceptions are quite erroneous. The taskd, too, of the SS are constantly being misinterpreted. Such things are no concern of the SD." SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission. Knochen was the commander of the Security Police and the SD in France. of words, and that SD should be interpreted as "police" Upon my question:
"What does transfer to the SD?" The witness Knochen answered literally "This means transfer to the executive section IV of the Security Police."
I showed the witness, Dr. Hoffmann, document 526-PS before the Commission. Commission Record page 474. Hoffmann was an official of the Security Police and has never belonged to the SD. The document 526-PS concerns the carrying out of Commando order in a Norwegian Fjord. This report states: Fuehrer decree carried out by SD. answered literally. "Since this seems to be an executive measure, SD must here be interpreted as Secutiry Police, since the Wehrmacht often mixed up the two meanings."
The Prosecution has furthermore submitted document No. 1475-PS. This is a report of the commander of the prison of Minsk, dated from the 31 May 1943, in which he reports that Jews had been brought into the prison by the SD Hauptscharfuehrer Ruebe whose gold bridges, fillings and crowns had been removed from their teeth. In this connection I have submitted affidavit SD No. 69 of Gerty Breiter a stenographer employed with the commander of the Security Police and the SD in Minsk. Gerty Brieter states that Ruebe was an official of the State Police, and that the SD at Minsk had nothing to do with the Jewish affairs in Minsk. The sole activity of the SD in Minsk was to make reports upon the general moods and opinions of the public. There were no 80 prisons in Minsk.
the SS special Formation SD, who, as I said, in the introduction, was something entirely different from the SD Intelligence Service, were the SS uniform with the SD insignia. all members of the STAPO, and Kripo, even these who were not members of the SS or SS candidates, were the SS uniform, with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police, were considered to be SD measures. Please refer to the Transcript, Page 14515 (German).
THE PRESIDENT: Did you say then all members of the SS, including the Kripe and the Sipo, were working in the East in the uniform of the SS with an SD badge on them?
DR. GAWLIK: Yes. Yes. The witness has confirmed this, Your Lordship. In this connection I point out that about 90 per cent of all members of Offices III and VI were honorary, and only a small part of them belonged to the SS or were SS candidates, Affidavit SD No. 32. During the war, a large number of the membersof the SD, Offices III and VI, were women. These persons were not entitled to wear the uniform of the SS formation, SD. the SD, I shall discuss:
a. The charge of conspiracy.
b. Crimes against peace.
c. War crimes.
d. Crimes against humanity. Gestapo and SD. commit crimes against peace, War Crimes and crimes against humanity. circle of conspirators:
I. The organization can belong to the circle of conspirators.
agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means.
(a) Such a plan existed.
(b) All members made this plan on their own. supporting participants in a conspiracy. Fir this it is required:
(a) A secret plan or an agreement.
(b) The organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan.
(c) All members must have known of it and desired it. conspirators, to carry out the common plan without the members realizing it. organization, because the characteristic of a factual state of guilt is lacking. The organization is an unpunished tool and cannot be declared criminal. conspiracy, but that all contributed to the offenses, Transcript, page 1690, German text. This indicates that the prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question.
(a) the existence of a secret plan, (b) the knowledge of the members.
Consequently the existence of a secret plan and the members' knowledge thereof, must be proved. of crimes against peace, war crimes, and crimes against humanity actually existed. principle defenders and I do not want to repeat these statements, but I should like briefly to point out the following:
1. When, 2. Where, 3. Between what persons this common agreement was reached, and 4. What its contents were.
Way that it was known to members of the SD, and that, therefore, they had the purposes in mind of supporting such a conspiracy with their activity. The prosecution has derived the fact that such a conspiracy existed in particular from the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations in question had no knowledge of these things; this can be assumed as known to the Court. peace, war crimes, and crimes against humanity arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity. the SD knew of a conspiracy cannot be regarded as "violent", as assumptions, nor as probable assumptions, but at most as light or rash assumptions which are without significance. affidavits have brought proof that members of the SD had no knowledge that a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity existed and that,therefore, there was no intention in the SD to support such a circle of conspirators with their activity. conspiracy because there is no evidence that
a) A circle of conspirators actually existed, and
b) The members of the SD had knowledge thereof, and by their activity wanted to support a circle of conspirators. it does not matter whether the SD supported the SS, the Secret State Police, the Party, or individual persons of the State leadership, unless the Prosecution has brought the proof of the prerequisites which I have indicated;
a) Existence of a secret plan for the commission of crimes according to Article VI of the Charter, and
b) Knowledge of all members of the SD.
of the SD with the SS, the Secret State Police, or other persons, requires correction.
I shall not read Pages 46, 47, 48, 49, 50, 51, 52, 53 or 54. I shall continue on Page 55 in the second paragraph. I should like to refer to statements made in Document SD 70, the handbook of the Supreme Headquarters of the United Nations of April 1945. There it is said:
"The SD maintained for its purposes a networkof newsmen throughout all fields of life in Germany . . . who were recruited from all social groups and professions. The information gained through the newsmen were used to furnish situation reports . . . Those reports are exceptionally frank and contain a complete and uncolored picture of the mood and attitude in Germany." in my summary and made by former full-time and honorary workers, trustees for the total area of the Reich and of parts of the Reich. affidavits SD-61, 62, 66 and Document SD-1. Evidence V of the English Trial Brief against the Gestapo and SD. the outbreak of the war to give Hitler an excuse for starting the war. The Prosecution, however, referred to only one border incident in which the SD is alleged to have participated. That is the alleged attack on the Gleiwitzer Radio Station. of November 20, 1945. This is prosecution Document PS-2751. before the Commission. On that occasion he declared that the attack on the Gleiwitz Radio Station was not included in the aims andpurposes of Offices III and IV. This is in the Proceedings of the Commission, Page 147 of the German text. The witness further testified that no part of Offices III and IV was used for the execution of that border incident in Gleiwitz and that the man who with him attacked to the Gleiwitz station did not belong to the SD, Office III, RSHA.
This is in the record of the Commission, Page 150 of the German text.
The witness continued to state that by the term "SD men" he did not mean in his affidavit of November 20, 1945 the members of any definite office of time RSHA; common usage of the term "SD men" rather referred to RSHA members of all offices which were subordinate to Heydrich. of the border incident at Gleiwitz not because he belonged to Office VI and worked there but that exclusively personal reasons made for that decision. The witness testified that on the basis of the conversation he had had with Hoydrich he had gained the impression that Heydrich would have given him that assignment even if he had not been a member of Office VI and the SS. The order for the execution of the assignment reached witness Naujocks not through the official channels of the chiefs of Amt III or IV. Those chiefs in question of Offices III and IV had no knowledge of this action. The members of the SD, Office III and Office IV, had no Knowledge that, the attack was carried out by Naujocks, a member of Office VI. Particularly the members of the SD-Leitabschnit which was in charge of Gleiwitz and the outposts of the SD had no knowledge of this activity and they could not have had because Naujocks had been forbidden to get in touch with any members of the SD whatsoever in that territory. Somann and the affidavit SD No. 11 deposed by Professor Dr. Marx. as for all territories of the SD-Leitabschnitts and the SD-Abschnitts, particularly for those situated in the East, Kattowitz, Danzig and Saxonia. These affidavits testify that the members of the SD duringthe critical time had no knowledge of the faked border incidents or the participation of the SD in them.
Page 59 will not be read. I shallturn to Page 60, which deals with the Einsatzgruppen. grounds of the activities of the Einsatzgruppen, the following questions must be examined:
1. Did the Einsatzgruppen A, E, C and D, which were assigned in the East to the Army groups, belong to the organization of Offices II, VI or VII?