DR. GAWLIK: May it please the Tribunal, I should like to say the following with reference to this subject: It is something which refers to the eastern territories. All members of the Security Police, even if they were not members of the SS, were wearing this SS uniform with the SD badge.
And now I come to Crimes against Humanity, Persecution of Jews. Statements of evidence VII of the English trial brief against Gestapo and SD. international law until now. It was merely admitted that if a state violated any principle of humanity, other states had a right to intervention. As an example I mention the intervention of England, France and Russia against Turkey in 1827; against the Balkan States in 1878; and the intervention brought about by the atrocities committed in Armenia and Crete in 1891 to 1876. 1) recognized. Oppenheim 2) for instance, considers an intervention to end religiou persecution and continued cruelty in war and peace in the interest of humanity, for doubtful. According to Oppenheim it should be a rule that interventions in the interests of humanity be admissible; they must, however, be of a collective nature. In accordance with the general fundamental rule of international law tha only the states are subject to interantional law, this intervention is directed only against the state in which crimes against humanity have been committed. of individuals against humanity. That is probably why, according to paragraph 6-C of the charter *---* This department for Jewish questions allegedly did not have the purpose to prepare the extermination of the Jews.
2) Dr. Shlich furthermore testified that in the amt 111 as well no department concerned itself with the Jewish question, and especially not department 111-B 3) As a result of the regulation about th assignment of tasks to department 111 and Department IV, it had been dotermi d that all Jewish questions were only to be worked on by Amt IV.
3) I refer further to affidavit SD No. 7, SD No.16, and SD No. 17.
SchallenbcrgSD No. 61, and Dittel -SD No. 63- have stated in regard to Amts VI and Vll that those offices as well had nothing to do with the persecution of the Jews. members for the entire area of the Reich, and/ for the time from 1933 until 1945 to the effect that the SD did not pars cute the Jews.
THE PRESIDENT: Have any of these affidavits to which you are referring been translated?
DR. "GAWLIK: No, My Lord. Only the summary affidavits have been translated.
THE PRESENT: well, some of your affidavits have been translated, haven't they?
DR. GAMLIK: Some of them, My Lord, yes, but not those 259; they haven't been translated, my Lord. They are contained in my summary, SD No. 70. 10th of November, 1938, and I shall continue on Page 107. pated in the extermination of the millions of Jews. All Jewish affairs were dealt with by Office 1V, by Fichmann's section. Eichmann belonged to Office 1V and -was the head of Section 1V B4. This is shown by the organizational plans of the RSHA of 1 January 1941 and 1 October 1942, Document L 185 and Document L 219 submitted by the Prosecution. The chain of command for the mass murder of Jews was Hitler, Himmler, Mueller (Office lV) Eichmann. None of the witnesses has indicated that Offices 111,1V, and V11, or any of the local branch offices of those offices cooperated in the extermination of Jews. In this connection I refer to the testimony of Wisliceny, Page 751 of Record of Commission, German text, according to which there was no connection between the department of Eichmann and the offices 111, VI and VII, and further, to the record of Dr. K.H.Hoffmann, German text of Commission record.
Hoffmann stated that Office IV was competent for deportations and that Eichmann was responsible for the solving of the Jewish question. IV, Department Eichmann. The initial IV J on Document RF-1210 , submitted by the prosecution shows that a department of Office IV dealt with the Jewish questions in France. This is confirmed by the testimony of the witness Knochen, Pages 475, 476, 1105, 1113 of the Commission record, German text, and by the Affidavit Daub SD No. 54. They show that Haupsturmfuehrer Dannecker, who was sent to France by Eichmann, also belonged to Office IV and received his instructions directly from Eichmann himself. Thus, no connection existed between Offices 111 and VI and Eichmann's department.
Referring to Denmark and Holland, the witness Dr. Hoffmann testified that the deportation of Jaws from these countries was carried out solely by the Eichmann agency. On the 3rd of January 1946 Wisliceny made an extensive statement on this subject before the Tribunal, saying that the deportation of Jews in the Balkan countries was also carried out by the Eichmann Department. The trial has in no way established that the SD offices 111,V1 or V11 in any way supported the Eichmann agency.
THE PRESIDENT: One moment. Then that is another organization which is direct responsible to Himmler, is it, the Eichmann department? You gave us the RSHA, the Pohl organization, and another organization which I forget for the moment -oh, the Einsatzgruppen; that was three organizations which were entirely outside the SS or the SD or the SA, and now you have got another one. This is the Eichman organization.
DR. GAWLIK: That isn't quite the legal position. It may be the same as reference to those three organizations I have mentioned because, after all, Eichmann was in Office IV, but probably it would be better if my colleague. Dr. Merkel, were to answer that question. I don't want to go ahead for my colleague Merkel who represents the Gestapo, Eichmann had an office in Department IV of the RSHA.
THE PRESIDENT : Go on.
DR. GAWLIK: It is true, however, that Eichmann and a number of other persons who have worked in his department in Office IV, were formerly employed in theSD .
In this connection, Wisliceny has testified before the Tribunal that these persons were in part ordered to Office IV, and in part transferred there. They received their orders exclusively Iron Office IV. The witness Hoffmann has declared that Eichmann was transferred from the SD to the Gestapo, Record of the Commission hearing, Pages 1404 to 1458.
The fact that persons had worked in the SD before they worked in Eichmann's section is in no way sufficient to declare the SD a criminal organization. Thes persons were completely eliminated from the activity of the SD when they were taken over by Office lV or when they were ordered to Office 1V. the aims and duties of Offices lll, Vl, or Vll. The fact alone that these people resigned their activity in the SD and were taken over into Office IV indicates clearly that this activity was not among the aims and duties of the SD. Moreover, the majority of the members of Offices lll, Vl, and Vll did not know that individual persons who had formerly been employed in the SD w re now occupied in Office lV with the final solution of the Jewish question.
VII-B of the English Trial brief against the Gesture and SD. and the SD had been the main departments for the persecution of the churches: that the SD had pursued secret ends with deceptive maneuvers against the church; that the SD had collaborated with the Gestapo; that the SD had dealt with the opposition of the church against the Nazi State; that the Prosecution of the church had been one of the fundamental purposes of the SD. to declare the SD as criminal for their persecution of the church. Paragraph 6-C of the Charter does not-speak of persecution of the churches but of persecution for religious seasons. the general allegation that the churches had been persecuted therefore do not suffice. Moreover, it should have been shown that this persecution was carried out for religious reasons.
The concept "persecution" will moreover need to be explained. Not every meausre can be understood as "persecution" which was undertaken against members of denominations by the State. Here, moreover, we have to start from the concept of human rights. The Charter does not define what is to be understood as violation of human rights from a religious viewpoint. Martens, Bonfils, and others, take this to be the right for existence; the right for protection of honor, of life, of health, of liberty, of property and of religious freedom.
THE PRESIDENT: Is it your contention that Germany had the right, outside the territory of the Reich, to treat the church which existed there in any way they thought right ? Take, for instance, in Russia; in the Soviet Union. Is it your contention that there Germany could treat the Church and the Church property in any way they thought right, if that isn't in accordance with International Law ?
DR. GAWLIK: You have to make a difference between conditions inside and conditionsoutside of Germany. Outside of Germany the general principles of International Law applied. My statements deal with conditions in Germany because the SD has been accused be the Prosecution, in Document 1815-PS, which is the document from Aachen, that it had persecuted the churches inside Germany. There you have to draw a distinct dividing line, and what I had been saying referred exclusively to conditions inside Germany. fall under this penal code. The evidence on this point of the indictment has established the following : III, no church questions, but only general questions of the religious life, have been dealt, with in such a manner that the religious tendencies, wishes and preoccupations of all sections of the population were affected without judging their confessional adherence in the sense of a persecution of the church, or causing or supporting police measures. The witness has stated that the SD carried on no sham proceedings in order to persecute the church. The witness Dr. Best, (witness for the Gestapo) has testified that any police intervention in individual church cases was the task of the Stapo. According to the statements of the witness Roessner the decree of the 12th of May, 1941, which ordered that Office IV should take ever entirely all church affairs from Office III was but the formal confirmation of an already existing state of affairs. particularly to SD Number 55 of Theo Gahrmann. I draw your attention to the fact that the English Document Book H which deals with the Persecution of the churches cntains no evidence against the SD. Documents D-75, 101, 145,848-PS, 1164-PS, 1481-PS, and 1521-PS are contained in this document book. is in reference to the document submitted by the prosecution -- number 1815-PS.
Amts III and IV, which is the intention of the Prosecution, would not do justice to the tasks and activities of the Amts III and IV. If the Tribunal however, should A ass sentence on an SD against my explanations, then the numbers of persons affected by this decision will have to be strictly limited especially because of Law No. 10. The general designation "SD" shoul not suffice because of the versatile meaning of this word. It will have to be clarified whether the decision affects :
1. Only members of Amts III and IV which were not founded until 1939, or also members of Central Department II/I and of the SD Main Office.
2. Only the full time members or also the honorary members.
3. From the honorary members only the collaborators, or also the Vertrauensmaenner (Persons entrusted with special tasks.)
4. From the V ertrauensmaenner only the constant employees, or also those who furnished occasional reports.
5. From Amt VI also those members of the military Abwehr (Intelligenc 6. Also technicians, secretaries, drivers, telephone operators, etc.
Mr. President, High Tribunal, your decision will be a milestone in the history of law, but also be a milestone in the history of humanity.
The striving of the people is peace. The decisive politicians, as wel as representatives of legal science agree that this wish of humanity can only be fulfilled by an independent jurisduction unbounded by State sovereignty. International law, established in a speech held in the year 1926 that the history of mankind is but the history of the individual upon a larger scale, In the history of the individual the right to take justice into your own hands has given way to an arbitration by the parties concerned, and from thence developed the juridical Proceeding of nominating judges and executing the judgment.
Violence is violence; whether between armed men or entire people, which in the case of war put their last resources at the disposal of their governments.
ment of the individual, are in a ransit state from the arbitration system to a regular juridical system. Nature repeats herself from day to day, from generation to generation, whether in individuals or in such groups of individuals which we call State of Nation. The International Arbitration System will be the basis for the regular juridical system of the United Nations, which is unbounded by state sovereignty, just as the regular juridical system has developed out of the arbitration system, within the peoples. is the end of belligerent struggles and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in the World History.
THE PRESIDENT: Dr. Gawlik, I have before me the Russian translation of your speech, and on rage 113 of the speech it apparently refers, in paragraph which has got a number 1, to the chief department of the SD. I would like to know for the benefit of the Tribunal, what you mean by the Chief department of the SD. Do your pages correspond ?
DR. GAWLIK: Yes, My Lord. The SD Main Department until 1939 had the following departments. It had Department II-L -- that was Department 5. When the RSHA was founded, that department was transferred to the Gestapo.
THE PRESIDENT: The Main Department of the SD was transferred to the Gestapo . . .
DR. GAWLIK: No, not the entire Main Department, my Lord. Until 1939 there was a main department SD. After September 1939 the RSHA was in existence and the RSHA only existed since September 1939. Before that there was the main SD department, various sub-departments, and one department of that SD main office was transferred to the Gestapo when the RSHA was founded. That department was called II-I.
THE PRESIDENT: Did the main department of the SD cease to exist in September 1939.
DR. GAWLIK: Yes, then it ceased to exist. And department II-2 then became Amt III of the RSHA.
THE PRESIDENT: You are saying, are you not, that Department II-I, which was a branch of the main department of the SD was transferred to the RSHA and became department II in the RSHA or Amt II in the RSHA?
DR. GAWLIK: No, no, My Lord Amt II-I came into Department IV of the RSHA. That is the Gestapo and . . .
THE PRESIDENT: Yes, I see.
DR. GAWLIK: And department II-2 turned into Amt III of the RSHA.
THE PRESIDENT: At any rate, the SD Main Department ceased to exist,and all passed into the various Amts of the RSHA?
DR. GAWLIK: In September of 1939, yes.
THE PRESIDENT: Yes.
DR. GAWLIK: Yes, that is right. is the end of belligerent struggles, and which would fulfil the deep wish of all the peoples. The International Military Tribunal could fulfil this task in the history of the world if by its decision it were to indicate that the Tribunal stands above the people. organizations, is not the right way, because this would punish the innocent. But this goal can only be reached if the judgment of this Tribunal is based on the principle that there must be no punishment without the establishment of the guilt of the individual.
THE PRESIDENT: I don't know that the Tribunal has laid down any exact order, and I am not sure how far the translations of the various speeches have now gone, but perhaps counsel for the organizations know how far their speeches have been translated and therefore which it is most convenient to take now.
Is it you, Dr. Laternser?
DR. LATERNSER: Yes, sir.
THE PRESIDENT: We will take the High Command now, them.
DR. LATERNSER: Mr. President, so far as I know, the English translation of my final plea is completed. The Drench translation, apparently, is mostly completed, because I have just seen one copy of it here. The Russian translation -- I don't know about that.
THE PRESIDENT: Very well.
Yes, Dr. Laternser.
DR. LATERNSER (Counsel for General Staff and High Command): My Lord, Gentlemen of the Tribunal.
a war, the military leaders of the defeated party were brought to trial. ineptitude or negligence of their military duties, they were suspected of treason, of pursuing political aims, or they were accused of disregarding the rules of warfare or the limitations of their military powers.
There is one feature, however, which must be noted: As a rule, trials were conducted and verdicts rendered by their own state, and not by the enemy victors. To find an example for the latter case, one must go back into history by more than 2,000 years. The Romans strangled their enemy Jugurtha in jail and persecuted Hannibal with their vengeance until they were able to force the cup of poison into his hands at the court of his host. In the more recent history, there is the sole example of Napoleon I, who was banned by the victorious powers to St. Helena, where he died; but he was not taken to account by the victors because he had served his country as a French general, but because he was the emperor of the French, and consequently the political head of his country. Commander of the Armed Forces, has eluded judicial responsibility by his death. As he can no longer be dealt with, the Prosecution have taken the highest military commanders instead of the Supreme Commander and head of the State, made them summarily also political leaders, and attempt in this way to render them responsible. nations, and may well be contemplated with peculiar feelings by allsoldiers of the world. I shall have to deal with this in detail later on -- it is the fact that the German military leaders did not dominate their country, and did not drive it into the war, that they were not politicians, but exclusively, and perhaps even too exclusively, soldiers, which introduces the element of tragedy.
Had they been politicians, Germany would not have fallen into this abyss. If we keep this clearly in our minds, it is obvious that those men are facing their trial before this Court in truth only, because they served their country as soldiers. waged his wars without the assistance of the Armed Forces, that argument cannot be invalidated. Nobody has even been able to wage a war without soldiers. The position of the German military leaders, however, as well as that of all soldiers, is well defined by Carlyle when he says:
"If a man becomes a soldier, his soul and his body thereby become the property of his commanding officer He is not all wed to decide for himself whether the cause for which he fights is good or bad.
His enemies are selected for him, and not by him. It is his duty to obey and to ask no questions." as an allegedly "Criminal Organization", this indictment does not only apply to them, but is also in fact directed -- however strongly it may be desired to deny this publicly -- to the soldiers in general, or at least to the military leaders as a class. Government and fulfilled his military duties, because the Prosecution declares the action of his Government to be illegal and represents him as a partner to such action of the Government, the Prosecution places upon him the obligation to examine the legality of his country's policy, and raises him to the position of a judge called upon to give a verdict on the policy of his State. It cannot be my task to present the consequences which such a mental revolution must have for the soldiers of the world. I can only ask the Tribunal to consider with particular care and in the consciousness of its peculiar responsibility, these special circumstances, when it applies the principles of the Charter to the special position which the soldier ocuupied both in fact and in law. Whenever a noble Judge, after careful self examination, comes to the conclusion that all sorts of reasons might tempt him to be prejudiced against a defendant, he will feel an obligation to weigh the evidence with special care, and to ask himself again and again whether he is guided by a genuine appreciation of the facts, or rather by a sentimental attitude. the Prosecution calls this modestly lack of beauty -- where the judges are exclusively from nations against Whom the defendants fought as soldiers, in this case, I say, the judge is required to do something that is humanly almost impossible, namely to free himself, in the interests of the future of mankind, from the feelings engendered by the struggle which has just come to an end, and by the passions which were whipped up in its course.
I conduct the Defense with the full confidence that, as regards the German military leaders whom I represent, this Tribunal will not exercies retaliation, but will render justice in truth and in the highest meaning of the term. ranking officers of the German Armed Forces, who occupied certain service positions in the military hierarchy, under the double designation "General Staff and OKW" in a "group" both in law and in fact.
Before dealing with the legal aspects of the alleged "groupncharacter" I must present some observations on the term "General Staff" and "High Command" (OKW).
There never existed during Hitler's time a general staff for the whole armed forces, as the Prosecution obviously seems to think along the lines of the "Great General Staff" of the former Imperial Army/
The Navy neither had an Admiral's Staff nor Admiral's Staff officers. nor was the "Naval War Staff"set up in 1933 anything similar to a General Staff. The Navy only participated in the functions of the Army, and of the Armed Forces in general, to the extent to which operational cooperation was required in individual cases. The air Force had a general staff of its own consisting of the chief of the general staff and the general staff officers. Its functions, however, were sharply distinguished from these of the general staff of the Army and were limited to the Air Forces own sphere of activity. Cooperation between the two existed only in the case of joint operations.
Nor was the General Staff of the Army itself, as the Prosecution seems to think, a central agency, but it consisted likewise merely of the chief of the general staff and of the general staff officers. drawn by the prosecution results from the fact that its first chief of the general staff, Col. General Beck, was only received twice by Hitler during the whole term of office from 1935 to 1938.
The "General Staffs" of the Army and of the Air Force, which actually existed, are not in the least concerned with the indictment on the grounds that the indicted 129 officers do not represent these General Staffs as an entity; out of the whole group, the sole members of these general staffs were Col. General Jodl, as chief of the operations staff (Wehrmachtfuehrungsstab) , the Deputy Chief of this staff, and the chiefs of the General Staffs of the Army and the Air Force. All other generals were not general staff officers, but troop commanders, a great many of them, namely, 49 out of the 129 officers, were not even members of the General Staff at an earlier date. If the Prosecut on nevertheless give this group of persons the name of "General Staff", then this amounts to the same thing as if the Roman Catholic Church indicted the Order of the Jesuits but really wanted to attain the Cardinals.
The term "General Staff", therefore, does not cover the 129 indicted officers, but all the General Staff officers who are not in the least concerned with the indictment. It is misleading and arbitrary. A verdict might be based on the designation "General Staff" but it would be directed against an institution, the members of which are not indicted.
The "High Command" had even less the importance of an independent and central leading agency. The proceedings before this Court have clearly shown that it was only Hitler's military operation staff, and that it had no independent powers of its own to give orders. Only four out of the 129 persons ever belonged to the High Command. None of the others are covered by this designation.
The double designation "General Staff" and High Command" does not improve matters either. What is called "General Staff and "High Command actually represents the whole of the officers who occupied the highest service posts in the course of this war.
They were nothing but the heads of the military hierarchy, sharply divided among themselves according to the three service branches. The only link between these high ranking officers was their relation within the military hierarchy, their common professional ethics, and the spirit of comradeship, just as it is the case in all armies. The term "General Staff" and "high Command" is therefore an accumulation of wrong designations -- ar bitrarily selected in order to pretend that there existed a combination of something that was never combined and was not capable either of being combined. As regards the 129 officers, neither the name "General Staff" nor the designation "High command", nor the combination of these two designations, "General Staff" and "High Command", produces a definition covering the functions and all the persons concerned. condemnation if it could be replaced with a more correct name. The term "Military Leaders" or the designation "Holders of the Highest Ranks in the German Armed Forces" would substantially cover the totality of the indicted officers more adquately than the erroneous term "General Staff" and "High Command." But both designations would only be a loose definition and constitute a clear indication of the fact that there existed a multiplicity of persons, but could never be considered as a proof of the existence of any kind of combination of these persons. term constitute in themselves already strong arguments against the assumption of a "Group Organization", it is still necessary to deal with the legal conditions which must be fulfilled in order to be able to consider the indicted 129 officers at all as a "group" or "organization," although it might be nameless.
As the Charter does not define the terms "group" and "Organization", it is necessary for me to say a word or two on the definition of these terms.
In the first place, there is the question as to whether the term "group" is something different than the term "organization."
Or whether both terms are identical. As the Charter uses both terms side by side, even in the sane sentence it must be assumed that these two designations were deliberately chosen in order to emphasize at least a difference in fact. to whether it was actually intended to characterize two different phenomena, because under this Article the Tribunal is only authorized to declare the groups and organizations to be "criminal organizations". Therefore, the Tribunal cannot declare a "group" to be a "criminal organization" if it does not possess the corresponding characteristics, that is to say, if it is not itself also an organization. In this case, the quality of group would be irrelevant. As far as Article Nine is concerned, an unorganized group could not be declared to be criminal.
Nevertheless, the question of the "formation of a group" must be reexamined. chief prosecutor on the natural usage of the language. That means:
The main characteristic of the existence of a "group" of people is the local coexistence of a multiplicity of persons.
One speaks of a "group picture" if several persons are shown side by side, of a group of "curious on-lockers" if a number of people are watching side by side the same event.
From this if follows that the simultaneous coexistence of persons.
As these two characteristics are If this circle of officers cannot be considered as a "group" because the necessary conditions for the formation of the "group" are lacking, the question remains as to whether it was a "group similar to an organization" or even an organization.
If we take the natural usage of the language again as our starting point, we find that the main characteristic of an organization is the fact of "its being organized". But a combination of people is"only organized" if it possesses organs of its own, acting on behalf of the organization, while its creation, its powers and its activities are based on some sort of a constitution. Furthermore this association -- irrespective of whether it be founded in law or may only have an existence based on socialogical fact -- must be able to develop through its own organs a will of its own. An organized association must be as the Prosecutor himself admits, an entity. It is true that this entity need not find expression in so concrete a form that it appears as a special subject in law but it must at least outwardly show the characteristics just mentioned, and must constitute as to its substance a deliberately created voluntary association of severl persons for the pursuit of common purposes.
The main characteristic of an "organization" according to this definition is the "inner purpose" of the association. The external form is not alone decisive for its existence. On the contrary, an associated multiplicity of persons does not become an "organization", unless its inner purpose is that of the pursuit of common aims. lacking both in law and in fact which might justify the assumption that they constitute a group similar to an organization, or an organization. Even the most important condition, namely that of voluntary membership,is not fulfilled. did they remain in these position voluntarily. But that the condition of voluntary memberships must be fulfilled has already been indicated by the Tribunal in its definition of the points of proof considered relevant, and also the Prosecution have called these conditions essential. It is true that the military leaders voluntarily selected the military profess on. They did join the Reichswehr voluntarily in 1920. And in so doing, had to comit themselves for 25 years under a contract. However, they were promoted to the posts which come under the indictment exclusively by reason of their ability, and without any initiative of their own.
By virtue of the commitment entered into, they could not ask to be retired as long as they were capable of carrying out their duties, certainly not during the war when resignation was explicitly prohibited to teem. These events and facts require no proof, as they are the same or similar to all the armies in the world. They are based upon the military power to give orders on the one hand, and the military obligation to obey on the other. way constitute an association of persons based upon voluntary membership. organization because the further condition, namely, the consciousness of these officers that they had joined an association at the moment of their appointment was lacking. this organization exists, and that he is joining it. into the posts which are only new to be grouped together by the Prosecution by the arbitrary process of representing them as a "group" or "organization." How could they, in these circumstances, have been aware at the time of their appointment to the various service positions that this appointment was equivalent to acquiring membership in a kind of association. The argument of the Prosecution that an an earlier date a similar association of General Staff officers existed in what was called the "Schlioffen Society" is irrelevant in connection with the appreciation of the legal aspect with which we are here concerned. The Schlieffen Society, which only met once a year for a lecture and a report, was exclusively concerned with cultivating the spirit of comradeship between the former General Staff officers and those on active service. on active service, who originated from the three service branches, to Set up a similar association during the war. The foundation of a political community was even more out of the question in view of the traditionally unpolitical attitude of the whole German Officer Corps.