28 Aug M LJG 8-1 Ninabuck punishment only these who acted " in defeating aims of high treason and treason". Thus, the law does not cover these cases which concern persons outside of the "Roehm circle". These were partly sentenced, and partly Hitler decreed their exemption from punishment by virtue of his right of abolition. In this connection I refer to the affidavits of Meissner and Schwerin-Kresigk, as well as to the statements of witness Schlegelberger. Most of the ministers know that tension existed between Hitler and Roehm. The events themselves surprised them. The statements concerning the events which Hitler made at the cabinet session of 3 July 1943 were essentially the same as his declarations made at the Reichstag session of 13 July 1934. On the basis of this description the ministers were mostly of the opinion, that it was actually a question of enterprises of high treason and that the immediate defensive measures taken by Hitler were necessary in order to prevent a greater expansion of the revolt. Hitler admitted himself that excesses had occurred to a certain extent and that persons were involved who had nothing to do with the revolt. For these cases he promised a legal inquiry. If the law in its wording, actually limited itself to the persons who participated in the revolt, then the ministers thought that they could answer for this law. One may have objections against this law, but one must not disregard the fact that the crushing of this revolt could appear as an event with which a state of constant disorder and acts of violence by the Roehm followers were done away with once and for all. Therefore, one cannot draw the conclusion from this law that thereby generally, also In the future, measures which were not justified by formal law, would be sanctioned afterwards and removed from the regular administration of justice. It seems possible that one advocates the view of wishing to do away legally and once and for all with such a complex of unrest, particularly if the guilt in the cases dealt with by law appeared to the evident. In any case, many believed at that time that 28 Aug M LJG 8-2 Ninabuck they could see in such a legal treatment of the case that the principle of the obligation to prosecute political crimes was maintained.
which are connected with rearmament and for this reason alone are alleged to point to the plan of an aggressive war. In this connection the prosecution deals with the formation of a Reich Defense Council in April 1933 and the two secret Reich defense laws of 1935 and 1938. stated that as early as 1929 an interministerial working commission had been formed dealing with questions of Reich defense. This commission was not in the least concerned with operative or strate gic questions or with questions of armament or procurement of war material. On the contrary, it deliberated exclusively the measure which had to be taken in the civil sector if the Reich should be drawn into a conflict of war.
Into this category came especially preparations for evacuation in case of war, an indubitably defensive measure. Apr 1 1933 every Minister was obliged to send a specialist to the Commission, instead of the voluntary collaboration of individual specialists. It was only for this reason that the Ministers grouped together to form the Reich Defense Council. In this capacity a group never worked or had discussions, but rather, the work was done in the same manner as up to now by the Reich Defense Commission. A comprehensive view of the work it did can be found in the "Mobilization a Book for Civilian Authorities", published in 1939, which contained a list of administrative measures to be taken by the civil authorities in case of a mobilization. The contents of the book in no way show an aggressive tendency. The preparations that were made were obvious state security measures for the event of war. One cannot draw the conclusion that a war of aggression was being planned just because the work of the Commission was kept secret. It is only natural and a generally accepted fact that all measures, even those for the defense of a country, are not revealed to the public. beginning of the war. It was not changed either when the unpublished Reich Defenses decree of 21 May 1935 finally gave a legal basis to the Reich Defense Council, which had been founded in April 1933 through a closed cabinet decision. interrogation of Goering, Lammers, Schacht, Keitel and Neurath has shown. There was not a single conference, and the procedure of circulating questionnaires to consult members was also not used. The only activity consisted in the task of the Reich Defense Commission, which has already been discussed here. The Reich Defense Council itself was merely the head organization for the Commission. of the Plenipotentiary for the War Economy was also created. He was given the right to secure economic sources for the event of a war already in times of peace, and to give directions in this field. Actually, Schacht, as Plenipotentiary for the War Economy, did not issue any measures in this, his appointed official position.
In practice, these tasks already went over to the Commissioner for the Four Year Plan in 1936. Here again it has to be pointed out, that organizational and precautionary measures for the event of a war are a matter of course. They alone can by no means be considered proof for aggressive intentions. To take economic measures for the event of a war was an absolute necessity for Germany, due to its especially exposed economic and geographic position in the event of a war. One could not afford to make the organizational preparations after the outbreak of a war, since an uncontrolled German industry from the start would not have been able to survive in case of war. stated that defensive measures were uncalled for because no country had the intention of attacking Germany. In opposition to this it must be pointed out that the leadership of a country has the responsibility of taking precautions in vital points in view of even the most remote possibilities. There is never a period, in which, within a reasonable space of time, a country can completely exclude the possibility of war brought on from the outside. Hitler's decree of 4th of February 1938, it was not noticeable at first, as the Reich Defense Council did not meet at all, that its personnel composition according to the Reich Defense Law of 1935, no longer agreed with this decree. Only when Keitel as Chief of the Council pointed out these discrepancies, were they removed through the new Reich Defense Law of the 4th of September 1938 and at the same time -- as people were generous in the Nazi regime as regards organizational matters and as they loved exaggeration and artificial distension -- a huge organization was created. The Reich Defense Council was remodeled, the Commission was changed somewhat as regards its personnel. A "Plenipotentiary for the Administration" was created as well as the "Plenipotentiary for War Economy." Both together with the Chief of the OKW formed a staff of three; and most of the other ministers were subordinated to them separate groups. The entire body, however, with the exception of the Commission was to go into action only after the outbreak of a war, when the extensive legislative powers of the staff of three were also to become effective.
When the war actually broke out, Hitler did not concern himself with these preparations on paper, however, but created the Council of Ministers for Reich Defense" which thereby virtually replaced the current organizations. Only later, when the legislative machine of the Council of Ministers was too slow, did the authority of the staff of three appear again, and decrees were based on their decisions. Even if it was the duty of the staff of three just as it is the general duty of every department, to have ready these measures in its own particular field which are necessary in a purely defensive sense, still one cannot infer from this any aggressive intentions, or even the consciousness of an approaching war. Such general war preparations originate in the constant and inevitable supposition of the possibility of war. There is no indication in them of aggressive intentions. If one did regard them as such, then every country would have to be regarded as planning aggression, since no state can omit such preparations. The staff of three did not hold any discussions until the outbreak of the war, and could therefore neither have worked towards a war nor made any plans for a war of aggression. The same is true for the Reich Defense Council, It did certainly meet twice but just how unimportant those meetings were, particularly how little suited they were, especially to the making of the most secret plans, is shown by the fact that of the 12 members of the Council only a part appeared, whereas there was a very large number of counsellors from the individual departments. The large group of persons who attended - once about 40 and another time as many as 70--could not have allowed a subject to come up, which needed handling in such a discreet way. partial announcement by the defendant Goering of the contents of the nonpublished Reich Defense law. Otherwise there were no meetings or written discussions by the members of the council. actually created here for the event of the war, but that in practice it never worked. If the goal of this organization actually had been the preparation of a war of aggression, then the great number of tasks which in this case had to be undertaken more or less in view of time, would have necessitated the actual work of the organization already in time of peace.
The "Law concerning the Rebuilding of the Wehrmacht" of 16 March 1935 and the "Compulsory Service Law of 21 May 1935" have also been brought into the discussion by the prosecution. I do not wish to discuss at this point whether these laws constitute a violation of the Versailles peace treaty or not, since the only thing that is relevant for the judgement is whether the fact of the issue of these laws can be considered as a proof of plans of aggression. Already the necessary publication of the entire contents of these laws shows that they were not the basis for such a plan. The limitation to a comparatively snail number of divisions in the law of 16 March 1935 already makes it impossible to think of a war of aggression. plans of aggression. Compulsory defense service was introduced in most countries and no doubt had ideological grounds apart from the intention to increase the armed forces' reserves. tion, it must be considered that the introduction of compulsory military service in March 1935 made a new set-up of the military organization necessary. In previous years practically nothing had been planned in this field. It was not surprising, therefore, that a decree was now issued containing the principles required. This complete and compulsory reshaping of an organization necessitated the laws mentioned, without providing any reasons to conclude that a war was being planned. formed of the situation, there need be no discussion as to whether at the outbreak of war German war preparations were actually ready for an attack. The legal basis, fear only to this extent had the majority of Cabinet members to deal within their departments with questions of rearmament, could give no comprehensive insight into the actual extent of rearmament. They were restricted to whatever information was furnished them. The generals themselves were of the opinion that, given the extent of the rearmament, it could only have a defensive nature. Hitler himself told them nothing of any aim at an aggressive war. Austria's Anschluss to Germany was announced. This law was not agreed upon by the entirety of the Cabinet members.
Previously, the ministers received no information of any kind as to the march of events. They merely received word in the usual way about the fact of the entry. As regards the other laws brought up by the Prosecution, the idea that they have any connection with the planning of a war of aggression, is, in my opinion, so far-fetched that I need not go into them in detail. There are factual reasons for the creation of these laws which cannot be denied. They are included in the official grounds for the drafts of the bills, as shown in my Document Book. These grounds were added to the drafts of the bills for ministers as regards the meaning end purpose of the laws. These laws were, by the way, decreed at a later date, after which, as I have explained above, there were no longer any cohesiens between Cabinet members. issued during the war and which have not been mentioned in detail in the indictment, either. For this period we can no longer consider a collective functioning of the Cabinet. At that time, the complete organizational reshaping of the legislative already showed itself if only outwardly in the fact that the essential laws had been issued by the newly created offices which were endowed with full legislative powers and set up for the different spheres of activity. Stress was laid on the Fuehrer decrees and the Fuehrer orders, especially as regards all fundamental and general political questions. This excluded, to begin with, all other functions but the purely departmental, subordinate work of the ministers. The conception of the unity of Cabinet members making their own free decisions and cooperating together had become a phantom long ago. Consequently, the responsibility for each individual law can be charged only to the individual or to those ministers who participated in making them, but not to the Cabinet. in the activity of the Reich Cabinet especially emphasized by the fact that a close connection existed between the highest Reich offices and the Party. Individual ministers are said to have held the highest party offices. The "Law to Ensure Unity of Party and State" was to secure cooperation between the party and state offices. By this infiltration of the party into government leadership, party ideas became practically the substance of government leadership.
In reality, neither the "law to Ensure Unity between Party and State" nor later decrees could secure full cooperation of the government with the party. It was here that the difference between the opinions of the Ministers and the leading party offices became most obvious. The ministers looked on their tasks in the administration as mere matters of state. The party had to struggle constantly, supposed by Hitler's decrees, to obtain increasing cooperation in the affairs of the state offices. The witness Schlegelberger has given a clear account of this. He declared that a considerable part of the working expenditure in government agencies, especially in the Ministry of Justice of which he himself was the head, was used in order to keep off the repeated attempts of the party offices to make their influence felt. We saw Fuehrer decrees which were supposed to accomplish this until the very end of the war, a sign that the party never fully succeeded in its intended penetration into the government administration. It is, therefore, not possible to follow the prosecution in its claim that owing to its penetration by the party the state apparatus was practically an instrument of the party. no way proved that collectively the members of the groups included in the indictment ever desired a war of aggression and its criminal consequences as stated in the Charter regulations, or that they even set it up as their goal and directed all their activities towards it. Anyway, as long as one can speak at all of a certain cohesion in the Cabinet, - until 1934, - the true realization of this aim may not have been clear even to Hitler. Inasmuch as he himself reckoned perhaps with this possibility and took account of it in his decision, nevertheless, all the circumstances show that the group of people indicted hare were the least suitable to be informed of such plans or even possibilities. If on 5 November 1937 Hitler did not consider the Cabinet worthy of receiving his first pronouncement as to his purpose, when he further divided the Cabinet to a much greater extent, and even went so far in his secrecy that he withheld preparations for a war which concerned a certain department, from the minister himself, as in the case of Darre, divulging then only to a competent expert official, form all this we can see quite plainly that collectively the Cabinet neither had the knowledge of the aim which is affirmed nor could have directed their activities towards it.
Were the thesis of the prosecution correct, Hitler would have left the existing organization as it was and would not have undertaken a complete reorganization of those in the key positions. His allegedly loyal and conspiring followers would best have been suited for the actual execution of the general plan when it had been drawn up. With regard to people in the cabinet it also seems an absurdity to imagine so close and intimate a collaboration between its members and Hitler. Here were men from the most widely separated camps. The ministers of tie individual departments, who were partly taken over by Hitler and in part newly assigned, were by no means his party members. And even before, the great majority of thorn had no close connection with him. It is impossible to explain psychologically how and when Hitler won over these people not only to share his party ideas for their common purpose but also to commit the capital crimes of the Charter. And we see a constant change in the personnel of the Cabinet. People like Hugenberg, Papen, Schmidt, Eltz von Ruebenach and Schacht leave the Cabinet. All of them have differences with Hitler, based partly on far less weighty grounds than are represented in the crimes of the Charter. But according to the indictment all those people at the very start of their activities as Ministers are said to have blindly acquiesced in the criminal plot. To mention only the case of Eltz von Ruebenach which has been brought up by the Prosecution, does it seem feasible that on accepting the golden insignia of the party a man should express his religious scruples against Nazi ideas, when on the other hand he was already connected with such criminal aims and had been active in them for many years. Is it not clear from his very letter to Hitler that he had no doubts as to the integrity of the Cabinet's works. How could a man like Minister Popitz be connected with such aims and their attainment when as a conspirator on 27 July 1944 he sealed with his death his active opposition? of "Reich Cabinet" is small. And just this very thing which gives us a clear example of how dangerous it is to confirm to the explanation proposed in judging, the character of a community of persons and at the same time the character of an individual.
Council and the Ministerial Council for Reich Defense. I need say little about the Privy Cabinet Council. It never met and so never took any decisions or showed any activity. It was founded for personal reasons connected with the departure of the Foreign Minister von Neurath. In this Cabinet Council, which was merely enacted by law but which in practice was never active, no plans could have been made nor anything done towards their execution. The Ministerial Council for the Reich Defense had been founded by a decree of Hitler at the start of the war. It is incomprehensible to me personally on what grounds the prosecution places the Council of Ministers under a separate indictment, as a separate institution within the framework of the Reich Cabinet. All its members belong to the Cabinet and up to Lammers they are all present in the dock. In no case could there be any practical value for the declaration made with regard to the number of people accused. So it seems that the prosecution itself had doubts as to the acceptance of its arguments concerning the entire Cabinet and wants to ensure the sentencing of this part of the Cabinet members, at least, as a minimum of its motion. Ministerial Council. Moreover, the prosecution has permitted the absence of arguments in which it sees the Council's participation in the Charter crimes. to establish, even in the small circle of Cabinet members, the intentions, action and motives of individual members. The provision in Article 9 of the Charter is not a compulsory one. It should provide a technical facilitation for the inclusion of greater quantities of persons. The case of the Reich Cabinet embraces a numerically small circle. 17 of them are present in the dock. Apart from these there are only 20 still alive. There exist sufficient factual and legal possibilities to judge their former activities with perfect clarity both objectively and subjectively in an individual procedure, this being also necessary in view of their importance up to now in public life. To put all of them new into one category and by the verdict to outlaw all of them, including those members who are dead, and to deprive them in subsequent proceedings of an argument which would affect an essential part of their defense - for this there are no reasons of any practical nature.
In the case of the Reich Cabinet practical considerations should not lead to the sacrifice of the universal principles of legality for the sake of practical requirements.
Finally, I feel obliged to express the following idea which generally regards the problem of the organizations: Mr. Justice Jackson termed also considerations of expediency as being decisive for the verdict asked for by the prosecution. He believed that otherwise a great number of participants in the crimes would not be included. The anonymous perpetrators would perhaps remain to a certain extent in the background. He believes that one can also see a political reason for the verdict asked for in the principle that the "good ones" should be separated from the "bad ones." organization would necessarily and ultimately include in the essential points a condemnation of possible innocent persons. But is this sacrifice of the absolute principle of justice really necessary and worth being advocated for considerations of political appropriateness? Will the political goal be final reached at all in this way? The larger the circle of persons included in a verdict, the more diminished the desired effect, of degradation. If several millions of members are declared as criminals, and if one considers that the dependents ad friends of these prescripts also do not remain untouched by such a declaration, I believe that whatever is intended by the separation of "good ones" and "bad ones" will not be reached. By such an expansion of the circle, the person who judges sees in the foreground those persons who, according to his opinion, did and desired nothing wrong. The intended effect can be attained only if the circle of affected persons is limited to an extent which allows to recognize, even when judging critically, a just separation of really bad elements. of the population from the body of the nation is numerically limited. I ask that this also be considered if one has in view the aim of a general appeasement. to lead to their punishment perpetrators who hitherto remained anonymous. Those who can be considered as perpetrators have been for the greater part seized. Their examination in the internment camp and in the denazification proceedings provides a good possibility of determining the real culprits. Therefore, if a condemnation of all members of an organization is not necessary in order to attain the endeavored goal, the transgression against the security offered by the law which such a condemnation forcibly brings on appears particularly objectionable.
Germany was the feeling of legal insecurity. We, who had to deal professional with these matters, we had to experience daily what it means for a legalminded person to know that there was no legal system, based on fundamentals and codes to give the individual that protection which alone makes him a free person. The feeling of insecurity, that on the grounds of same considerations of political expediency, one could be seized at any hour by that system violating this primitive right of men, weighed upon every German. With the present change of the whole situation they all want to consider this condition as finally removed once and for all time. After the experience of the past they consider that the principle of justice in particular must be without compromise. One desires to live with the conviction that only he can lose his freedom whose criminal activity is established beyond question in a legal proceeding provided with all possible legal guarantees. Therefore, innumerable people look full of expectation upon the first tribunal which will help this principle to prevail which has been dragged in the mud for years, as an example to the world. All of us who were called to cooperate in these proceedings found this hope strengthened in all phases of the trial. The Tribunal faces now the decision of whether a verdict according to the motion of the Prosecution shall actually include innocent people, too. Representatives of the prosecution have declared, of course, that by cautious use of the legal possibilities the number of persons to be subsequently prosecuted could be limited to such a minimum that actually guilty people only would be reached. However, even if this intention could be carried out to the full extent in all zones of occupation, it must be considered that independent of this practice to be hoped for, the fact remains that the verdict in itself establishes the legal rule and the legal possibility for prosecuting on account of membership as such. Even if one does not agree with the legal aspect of this possibility I developed the legal question concerning material and procedure is of such problematic nature that for the individual innocent member that is no absolute legal guaranty that he will not be prosecuted.
Therefore a situation would be finally created in which an endless number of people would live in a state of latent uncertainty and would not be able to foresee whether they will ever be prosecuted and sentenced on the ground of legal possibilities. Especially, the minor cases would be affected, who in any case would probably be set back by the national tribunals in the order of procedure. the trial of the organizations, a situation would thus be created for millions which could deprive then of what we see as our highest goal: to win back the feeling of having judicial and legal security.
THE PRESIDENT: The Tribunal will adjourn until 2:00 o'clock.
(A recess was taken until 1400 hours.)
(The Tribunal reconvened at 1400 hours, 28 August 1946)
THE PRESIDENT: The Tribunal has just received an application dated the 18th of August from Dr. Gerges; that application is denied.
I now call upon Dr. Boehm.
DR. BOEHM: (Counsel for the SA) Mr. President, High Tribunal: It is in contradiction to the fundamental rights of every man to be made responsible only in accordance with his own guilt, if he could be submitted by the possible result of the collective indictment against the organizations to the provisions of law number 10 of the Allied Control Council. An atonement without guilt has been considered unjust since the beginning of human history. The one who desires to punish, therefore, has to establish the guilt of each individual if more than one have participated in a crime. If the planning of a crime is considered punishable as an act of preparation only those can be punished, in accordance with the legal and moral principles which have been in force up to now, who participated in the plan--that means, who joined together just for the desired and conscientous carrying out of that purpose. rights been replaced in any national criminal law by the concept of "Conspiracy". Based on the definition developed by the main prosecutor, a guilt results when;
(1.) An association existed for the accomplishment of a jointed and common plan.
(2.) When these aims were criminal.
(3.) The pursuance of these aims produced the criminal deed inevitably and finally.
(4.) The method of the carrying out of the deed was in accordance with either means agreed upon at the time of joining or subsequently approved of.
We must therefore examine:
(A) To what extent the here-mentioned facts of a conspiracy are covered by the concept of law as presented by the prosecution; and (B) To what extent these facts were carried out by the members of the organizations.
concepts of law, but also by well-known penal laws of other civilized countries, seems to cover completely the limit established by the prosecution in the court session of the 28th of February 1946; so that, if we recognize the soundness of this argument, we have only to examine the aforementioned second question, i. e., to what extents members of the SA involved themselves criminally in the execution of thus limited facts. First, adjustment of value, inasmuch as the concept "criminal", which is used in connection with the aims of the organizations, necessitates an unequivocal limitation. are criminal only if they are punishable by the German penal laws. According to principles of International Law, which have been recognized until now, a people is not bound to consider criminal what other peoples consider as criminal, but only what it has adopted in its own ethics and legal awareness as "criminal." At any rate, after conscientious investigation of this question we find that the German people without exception -- that is also the mass of the members of the SA indicted in Nurnberg - has never differed in its ethical and legal basic attitude from the fundamental laws of the rest of the civilized world. The millions of its members considers as a crime a war of aggression as defined in Article VI of the Charter. Furthermore, all SA members would never argue the point that actions as defined in Article VI of the Charter as crimes against humanity have always been contradictory to their principles and must therefore merit becoming criminal from their standpoint. must only investigate the question whether the accused organization, the SA, at any time, endeavored to realize such criminal aims, or permissible aims, which precluded methods, however, of criminal character. program and the Charter. The means for the realization of these aims were visibly limited in the Reich Laws and regulations published in the Reich Legal Gazette.
An accused organization can be considered only an affiliation of persons whose common and general endeavor was exclusively directed towards realization of the indicated aims with means admissible according to German law. Thus, the aims and the legally limited means for the realization of those aims, which were openly known not only to the members of the accused organizations but to the entire world, can not have been considered criminal by the world which formerly recognized the National Socialist government, even after the union of Party and State was emphasized, despite their knowledge of the aims and legally limited methods for which this National Socialist Government was responsible. Not only did the world recognize this government, but this recognition was repeatedly and visibly expressed to the German people by the conclusion of a number of interstate contracts and at the end in the Munich agreement of the 29th of September 1938, and in the Russo-German Non-Aggression Pact and the Secret Amendment of the 24th of August, 1939. founded differently than by a mere indication of the criminal character of the National Socialist ideology. If the idea itself is not already criminal, then the criminal character of an organization intended to carry out these ideas can be derived, if at ail, only from the criminal methods which, to use a phrase of the Tribunal, were so completely evident, or had become known to the members of the accused organization in another way, that it can be generally assumed correctly that the members had been in formed about these purposes and activities. objective and subjective characteristic parts of an action which must be fulfilled if the International Military Tribunal wants to designate the SA as a criminal organization. rences may be used which we find in other countries also without being occasioned so far as to designate the executor of these occurrences as criminal. To be fair, therefore, these occurrences can also not be used in the proceedings of the International Military Tribunal to prove the criminal character of the accused organizations.
Thus, it can not seen just to the defense if the prosecution tries to derive the criminal character of the accused organization, for instance, by establishing that the Party and their organizations effectively controlled the machinery of the State, quite apart from the fact that the SA did not have power to do this. unique in the world, and do not belong into the past. But as long as these methods are not regarded and treated as criminal all over the world, they should not be justly used as a criminal characteristic of the criminal character of the indicted National Socialist organizations. be eliminated with the establishment of the proof of a criminal quality.
the SA, those happenings which have taken place entirely outside of the framework of the SA Organization, happenings of which "in general it cannot justly be assumed any more that the members were informed about the happenings."
1. There did not exist at any time a common and joint plan of the SA member to commit crimes of the nature described in Article 6 of the Charter.
2. That neither at the time of their joining, nor during any other period of time, the mass of the members of the SA were trained to realize the Party Program, or the special aims of the SA by the use of illegal means, particularly by the employment of terror and force.
3. That if illegal actions have been ascertained, the result of the examintion and interrogation of many thousands of members showed that these happenings lack the characteristics of a plan involving the mass of members, and that, therefore,--because they were standing entirely outside of a common, joint plan--can be changed only to a certain group of individuals, or very limited categories, groups of parsons within the SA. ginning, a general and common plan of a mass organization to commit actions of this type, to that these actions really "were so completely open, or had otherwise so generally come to the knowledge of the members, that the members as a whole ca rightly be legally charged with their knowledge." first that the preparations for a war of aggression, if they are to lead to the desired goal, must under all circumstances remain secret. Even if it were true that the Riech Cabinet or the General Staff had prepared a war of aggression, the is an a most irrefutable assumption that they not only did not inform the indifferent mass of millions of SA members, but, on the contrary, saw to it scrupulousy that these preparations remained secret. But if such preparation was unknown, the the mass of millions could at no time have the consciousness that the defensive we begun by the Reich leadership, was in reality, as the Prosecution contends, a war of aggression, participation in which might perhaps have been evaluated as a crime against the peace.
individual actions of closely restricted groups of persons or formations, which arc also kept secret by the higher leadership in order to prevent the international law principle of retaliation from being applied. Even if It were possible to see in the mere approval of such violations of the recognized rules and laws of warfare a punishable participation, the prosecution could still have the problem which has not yet been solved, and which is probably not capable of solution-first to bring evidence that at least the overwhelming majority of the SA member had known of such a planned commission of crimes against the customs and rules of warfare. Quite aside from these assumptions, which are contrary to essential contentions of the Prosecution, however, the defense can prove, after question many thousands of SA members, that, if violations of the law occurred, they t*---* ed out to be, according to a legally necessary analysis by time and place, on the whole, only mutually independent actions of individual persons or closely restricted groups of persons, free from any general planning; therefore, there is not justification for treating them as "typical manifestations" of a uniform plan which might justify characterizing the SA as criminal. be heard,. In cooperation with the General Secretary's Office, the Defense did everything possible to have those witnesses brought from the Russian Zone with whom they were able to correspond up to the time when the witnesses were named. I state, furthermore, that the SA members living in the Russian Zone could not be given their due hearing, since, according to my information, most of them were kept in ignorance of the charge against the organizations. This is one of the most important objections of the trial which will always remain in history.
THE PRESIDENT: Dr. Boehm, that is a most improper observation of you to ha made. There is no evidence that members of the SA have been kept in ignorance the contrary, the same requisites have been posted in the camps in the Russian Zone as in the other Zones, and, moreover, the Defense Counsel, Dr. Servatius, we has been in the Russian Zone, has made no complaint to the Tribunal. He consider that as an observation which no counsel ought to have made.
DR. BOEHM: It is particularly on the strength of what colleague Servatius said, that I am in possession of that information.