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.
THE PRESIDENT: Dr. Boehm, Dr. Servatius said no such thing to this Tribunal On the contrary, he said that he had been properly treated in the Russian Zone.
DR. SERVATIUS: Mr. President, I have been to the Russian Zone, and by my wish, I have been able to visit two camps. In my final plea I have pointed out and asserted, according to the information that I have at my disposal, the announcements had taken place in all camps, and I had only had time to see two camps, which I, myself, had visited, and that is what I actually stated here in Court.
THE PRESIDENT: Thank you.
DR. BOEHM: In that case, the information which had reached me, I must have misunderstood quite wrongly, Mr. President.
(Going on with document) I should also like to emphasize the limitations sing for the Defense from the fact that, in spite of all efforts and indicate of exact addresses, part of the witnesses living in ether zones did not show up In particular, the witnesses Fust, Lucke, Alvensleben and Wallenhoefer are miss Because of the failure of appearance of these witnesses, the statistics of the and the relief fund are also lacking, which are necessary to form a judgment of events before the year 1933, which would have shown the terror against the SA. Moreover, a part of the documents, which were requested and which were approved by the Court, did not reach the hands of the Defense. can base its decision only on the fact that illegal actions wire committed only by a limited number of persons, or numerically restricted groups of person, which activities can no more place this stamp of "criminality" on die organization as a whole than a number of crimes to be found in any nation can characterize that nation as a criminal nation. raised against the organization SA as a whole, and affecting even the war dead, lacks basic, formal and material prerequisites, the neglect of which, involved any unfavorable decision of the Court cannot be reconciled with the "healthy po*--* lar feeling" or with the efforts of the United Nations which were born from pain ful experience "to restore confidence and fundamental human rights, and to create conditions under which justice and respect for international law can be maintain order to create the prerequisites of *--*ndmnation of a large part of the non-transferrable immediate perpetrators, as veil as to punish the moral accomplices.
Ac cording to the charges of the Prosecution, the supreme SA leadership -- to give the main charges -- must have done or tolerated the following:
(a) Prepared, or planned, or ordered a war of agression.
(b) Tolerated or carried out atrocities, or other crimes in the concentrate camps. to this effect by the supreme SA leadership, and that no misdeeds were tolerated 28 Aug A LJG 14-1 Saslow not to be found in most cases, is false.
people, but never 4,000,000, could have been concerned in this planning. The perpetrators of the Jewish persecutions, limited as to locality and time, are known, or at least traceable. Since the localities of the Jewish persecutions in November 1938 are known and the perpetrators can be established by witnesses or by documents as is proven by the present trials for the Jewish programs in 1938, for instance in Weissenburg and Hof, it is unnecessary to create an assumption through a declaration of criminality, especially since these actions were refuted by the majority of SA members. The localities where concentration camps were situated and the names of those responsible for the actions committed in those camps are weal known. This is borne out by the numerous trials against concentration camp commanders and military guards. Are millions of SA members, 70% of which were at the front, when during the Second World War those terrible happenings took place in the concentration camps, be made responsible for them, when even ministers declare that they had no knowledge of those events? It is the perpetrators who should be seized. A collective arrest, however, of 4,000,000 men is unprecedented and unique in the history of penal law. This measure is inhuman and is based upon the extending of the concept "Helper", which disregards all the legal security and the principle of all criminal codes. an organized group of persons, which, at the moment of joining, is already prohibited, is punishable. Upon their joining, the newcomers must therefore be conscious of the fact that they are committing an unlawful action. a subsequent proceeding against individual members possible, violates the principle "nulla poena sine lege". The International Control Council has expressly established this principle in its 28 Aug A LJG 14-2 Saslaw first law of Law Practice in Germany.
The International Tribunal cannot disregard a general legal principle of the inter-allied legislative organ, which is authoritative for Germany. would be violated. Through the recognition of the German State and thus of its leadership, through the constant participation of representatives, at noteworthy occasions, such also as SA maneuvers, through different agreements, the allied powers gave the example that they recognized the German leadership and its organizations as legal. The document which I cited, quoted, "SA 229", The political ordinance of the Inter-allied Rhineland Commission and its Application in the years 1920-1224", established that on the 21st of March 1925, the Rhineland Commission revoked the inhibition of the German Liberty Party (Freiheitspartei) and of the National Socialist Party. An affidavit from the Palatinate (Pfalz) (affidavit General SA Number 42), which was submitted by the defense, shows that all social functions organized by the NSDAP and the SA were approved by the French occupational authorities before the year 1930. The foreign policy of the Allied States must have had a better view of the entire political situation than millions of simple SA men who, considering the political situation, could not have had the impression of committing an illegal act by entering or remaining in the SA. contradicts the universally accepted legal principle: "nemo in factum proprium venire potest." This norm of Roman Law which is used as a rule of interpretation in international law, claims universal validity. over-simplifications concerning purpose, place, time, and cooperat ing personalities which alone enable the Prosecution to give a basis for the declaration of criminality. In other words: the Prosecution acts as if there had existed a uniform personality "the SA" that means one with an uniform leadership, responsibility 28 Aug A LJG 14-3 Saslaw common purpose, intention, membership, and uniform attitude.
Without such generalizations the Prosecution would never accomplish its aim; for instance, in the question of aggressive warfare and the persecution of the Jews. By doing so it abandons the original problem of mass liability which justly can be solved only by a great number of individual statements and the study of the agreement of action and aim in a majority of the members. In contrast to such an opinion, we cannot stress too strongly the factual split of SA concerning the aims of the leadership as well as the membership, and the limitation in time and space of the deeds which make the things which happened nothing but individual occurrences which took place within an organization of four millions during a period of existence lasting twenty years It would have been necessary for the prosecution to prove that the majority of the members of the SA held the design, had the inner will, possessed knowledge of the criminal purpose and of the facts as well as of the general consciousness of the unlawfulness.
As this is impossible, the prosecution put forward the theory that the facts and purposes were so obvious that everyone might have been aware of them. If all this had been so clear to millions of simple people why, then, did the Allies until 1939 maintain relations with, and made agreements with, this State which, it is alleged was supported by bands of criminals? The theory that the members of the SA would have been in a position to know and outhg to have known in these circumstances the criminal aims and deeds, involves the abandonment of any real examination of the question as to what the majority of the members did or did not know. design. In doing so it overlooks innumerable speeches which were made to cheat the German people, it forgets
1.) that quotations from foreign sources concerning the value of the National Socialist state appeared in the press;
2.) that in the course of there twelve years actual events were That, furthermore, design can only be considered in conjunction with concrete facts, to which I propose to refer later, is so obvious that it is unnecessary for me to say anything further. I merely want to point out that innumerable affidavits contained in the collective summary which I have submitted prove that ignorance of, and non-participation in, the following crimes: Persecution of the Jews, planning of a war of aggression or commission of atrocities of all kinds. between the main defendants and their actions and the membership in the SA. The SA can -- if at all -- be rendered responsible only for actions committed by persons in their capacity as members or leaders of the SA, but not for those committed by persons, for instance, in the capacity of Reich Ministers, Reichleiters, Gauleiters, Regional Commissioners, or other functions.
Apart from a short term of service in the SA before the 9th of November 1923, Goering played no part at all in this organization. His sunsequent rank was only that of an honorary leader. The same applies to the defendant Frank; the SA cannot be rendered responsible for his deeds as Governor General of Poland. He was not the leader of the SA formations which were composed of the German nationals or of the members of the German minority doing service in Poland. Rosenberg, Bormann, Schirach, Streicher, Hess, Sauckel had no associations with the SA. Bormann was, as the witness Juettner emphasized in his evidence, one of the most severe opponents of the SA. Streicher was the man who eliminated the SAObergruppenfuehrer Stegmann. a national socialist state in which the Party, the State and the Armed Froces on the one hand, and the Party and its organizations on the other, represent one uniform whole. In fact, there existed profound divergencies. If was just owing to these divergencies that Adolf Hitler had an unheard-of power over the persons and an unheard-of independence which he enjoyed, as it has only now become evident, with a limited number of these who had his confidence. I only wish in this connection to recall the divergent views held within the Party, that is to say, also as between the leading men like Goering, Goebbels, Himmler, Lutze, on the Church question and the Jewish problem. It was not easy to the average man and to average member of an organization to visualize and to find a clear line on the background of the variety of tendencies manifesting themselves among the various elements concerned. peace, were in regard to their solution a such that they might have been the object of a conspiracy.
Juettner's evidence as well as the affidavits submitted by Hoerauf and Freund point to the fact that the supreme leadership of the SA had close associations with British and French quarters up to the moment when it was politically eliminated and that it entertained these associations with a view to creating a Western Pact.
I have proved that financial assistance from abroad was given to the SA in connection with these negotiations; I have also shown that the leadership of the SA was actually engaged, in 1932, in negotiations with German government quarters for a coalition directed against Hitler. I have proved that from a political point of view there existed three tendencies as regards foreign policy. I also indicated that the Eastern and the Western tentency were in sharp contrast to each other. May I, in this connection, refer to the sentence pronounced by the British prosecution which is contained in the Minutes of the 31st of July 1946 and reads as follows: "If the German side could show that the British government had given economic assistance to the SA in order to bring it into power, subject to the condition that Roehm were placed in control, the defense would, indeed, have considerably advanced its own case. Because it is obvious that the government of 1946 could not join in the trial against the SA if it had supported the SA in 1934."
The affidavit submitted by Hoerauf shows very clearly and beyond doubt that the negotiations carried on between Anglo-French political quarters and the SA leadership in those days were, indeed, perfectly obvious. I have furthermore shown that the contacts which were established with Britain and French quarters represent a thread along which events developed in 1934. instrument in the hands of the conspirators. The best proof to the contrary are, no doubt, the events of the 30th of June 1934. Again and again the erroneous opinion is heard in connection with these events that it had been possible in these days to crush an SA Putsch or a Putsch of a small group intent upon seizing power. There can be no greater mistake than this theory; because the fact is that, as shown by Fruend's affidavit General SA-83, the SA practically lead a life of its own within the Party. It is clear beyond doubt that at the time of the Chief of Staff Roehm a great mass of the SA had little or nor contact with the Party. The situation in 1934 was such that every free expression of an opinion, particularly also in the Party itself, had been suppressed and regimentation had become almighty. Everything was under the influence of the Gleichschaltung tendency or Party enforcement in all spheres, coercion was triumphant and dominated public life completely. the Reich government had already been practically eliminated at that time. The Reichstag was nothing but a dummy and was of no positive value whatsoever. but it now realized that Hitler as the Chief of Staff put it, surrounded himself with demagogues and non-politicians and, instead of being a national leader, had become a dictator. The supreme leadership of the SA viewed this development with growing distrust because it involved the great, danger that the nation which had given unrestricted full powers to the Fuehrer was completely eliminated from the future development of the Reich and its policy. This danger and the conditions created by coercion brought about an untenable situation. Thus, there arose, at first strictly camouflaged, the opposition of the supreme SA leadership under the command of Chief of Staff Roehm. real government of the people supported by the active cooperation of the whole nation.
All the preparations, which were also mentioned by the witness Juettner at the meeting of the Commission, were made along these lines. It was shown that Roehm intended at the Kulmbach meeting to gather information on the situation of the workers as it had emerged from the dissolution of the trade unions by Ley. It must be emphasized in this connection that Roehm authorized the participation of members of the SA in the action connected with the dissolution of trade-unions merely because the organizations of the Left had kept arms in the labor union headquarters, and that it was to be expected at any moment that civil war might spread from those trade union headquarters to the nation in general.
Roehm intended to dissolve the SS. This is proved by the affidavit of the former SA Brigadefuehrer Fruend. Roehm's endeavor to achieve the consolidation of the Central European area by way of negotiations with the Western powers is connected with this now State which was to be created. It has been shown that these negotiations had been under way for a number of years. (Juettner's evidence, Fruend's affidavit.) explained in the affidavit of Brigade-leader Fruend. All the documents dealing with the defense-political aspects of the SA's indictment by the prosecution are related to this unsuccessful attempt made by Chief of Staff Roehm who believed, as the witness Juettner clearly testified, in the creation of a popular militia according to the Swiss model and based upon the framework of the SA as part of the great plan for the creation of a Western Pact. It is regrettable that it was impossible to produce some witnesses who might have given further information on this matter to the Tribunal. Roehm's attempt failed. In addition, differences with the Reichswehr also contributed to his downfall. The 30th of June 1934 is the result of this development. The first attempt at putting an end to Hitler's dictatorship had definitely failed. Here than 200 SA leaders were shot. Since that time Heinrich Himmler was uncrowned king in Germany. Germany and abroad as this would have seriously shaken Hitler's prestige and that of his government. This was the reason why the camouflage and smoke screening machinery of the press was set in motion on a large scale to divert the attention of the masses, and this was also the reason why so many were as hot, who were to be kept silent and could not speak anymore.