I quote from the speech of 25 October 1941:

“Civilized peoples long ago adopted the basic principle that no

man should be punished for the deed of another.”

The second quotation is from the speech of President Roosevelt on 7

October 1942, and I quote:

“The number of persons eventually found guilty will undoubtedly

be extremely small compared to the total enemy populations. It

is not the intention of this Government or of the Governments

associated with us to resort to mass reprisals. It is our

intention that just and sure punishment shall be meted out to

the ringleaders responsible for the organized murder of

thousands of innocent persons and the commission of atrocities

which have violated every tenet of the Christian faith.”

In addition to these fundamental objections to such a separation of the

proceedings there is also an important technical objection. If the

Tribunal passes a declaratory judgment against the organizations, as

requested, all these millions of members of the organizations will

automatically become outlaws pending the definite legal decision in the

subsequent trials. Until that date every individual is under serious

suspicion of being a criminal, since it is questionable whether he will

succeed in exonerating himself in the subsequent trial. Since, however,

an individual person, without such exoneration will probably not be able

to return to his profession—and will also be excluded from the ranks of

honorable citizens until he is exonerated—the right to have such a

subsequent trial should not be denied to him. I believe that Justice

Jackson will agree with me in this. But if, as desired by the

Prosecution, 7 million members of organizations, according to a

conservative estimate, are affected by the declaratory judgment of the

Tribunal and thus temporarily become outlaws, then millions of

subsequent trials will have to take place. We shall have to assume that

in the course of 1 year, perhaps 100,000 trials can be completed. I

believe that this is a very optimistic estimate, as our German courts

will not be able to participate; it is well known that they are

completely overworked since they have now only a small portion of their

former personnel. Of these millions of cases, the courts will probably

have to deal first with those of the most criminal nature. The accused,

whose existence is at stake, will defend themselves during the

subsequent trials with all legal means at their disposal. There is the

danger that the really innocent people will have to wait for many years,

even for decades, before they will have an opportunity to rehabilitate

themselves through a process of exoneration. I believe that it would

have been possible to find some sort of solution. For instance, if the

Control Council had passed a law to the effect that, since there is the

suspicion that offenses and crimes against peace and humanity have been

committed with the aid of these organizations, the courts have the right

and the duty to try those of whom it can be proved that they

participated in these crimes as principals or accessories in some way or

other—if such a formula could be found, then I believe that both the

Prosecution and the Defense would consider that a just solution. The

effect would be limited to those who are actually guilty. The Defense

objects in no way to the punishment of those who are actually guilty,

provided that their guilt is determined in regular unobjectionable

proceedings.

Should the Court, however, adhere to a verdict against the

organizations, as requested by the Prosecution, then I request for all

the reasons adduced, arising as they do from the presentation of the

Prosecution and from the impressions made by those applications which

have been filed, that judgment not be passed against the entire SA. The

point of view brought forward by Justice Jackson in the case of the

other organizations, namely, that in the face of so many murders and

atrocities the individual members of an organization can no longer be

determined as perpetrators, this point of view, noteworthy as it is,

does not apply to the SA. The few excesses which, according to the

presentation of the Prosecution, took place here, happened in Germany in

public. The perpetrators are known. Some regional courts have already

opened proceedings of this kind. I have heard, for example, that the

city of Bamberg has opened proceedings against the destroyers of the

synagogue there and against the perpetrators of the action of 10 and 11

November 1938.

But should the Tribunal be of the opinion that judgment is nevertheless

to be passed against the SA as an organization, then I ask the Tribunal

as far as possible to make use of the right to provide certain

limitations in regard to periods of time and categories of members, as

both the Prosecution and the Defense agree that the Tribunal has the

power to make such limitations.

Very important distinctions are to be made here, first as to the

different periods of time. The SA men who joined the SA after the

seizure of power in 1933 joined an organization that on its face bore

the stamp of approval by the state. Admittedly not even a state

authority can declare crimes against humanity legal; but when weighing

the degree of guilt and the severity of the penalty it is, nevertheless,

of considerable importance whether the perpetrator acted outside the

bounds of the laws in force and committed offenses against the positive

law, or whether his acts, although they may offend a higher moral order,

are not contrary to the laws of his country. Therefore an exemption

should be made at any rate of all those SA members who joined after

1933, and who can be proved to have had no part in the events of 10 and

11 November 1938.

In regard to categories, I urgently request, in the interest of justice,

a double limitation:

1. Simple SA members up to the rank of Sturmführer should be exempted at

any rate and, if possible, very soon. I mentioned previously why this

appears imperative in the interests of justice, at least in the American

Zone. Perhaps—and I should welcome this tremendously—Justice Jackson

would have the kindness to pay special attention to this matter once

more. The idea of such limitation is also supported by the fact that it

would considerably reduce the numbers by eliminating the simple

followers; and in this way the technical difficulties, which seem almost

insurmountable, would also be considerably simplified.

2. It was gratifying that the Prosecution yesterday agreed to separate

proceedings against the SA Wehrmannschaften, the bearers of the SA

Sports Badge, and the members of the SA Reserve—or rather, to exempt

them altogether. In the interest of equality and justice as recognized

by the law and by this Tribunal, it would be fair to separate from the

SA all those special sport units which had only a loose organizational

connection with the SA. These are the Navy SA (Marine-SA) and the

Cavalry SA (Reiter-SA).

There are a number of applications before the Court, and it is well

known in Germany to everybody involved that these particular units were

exclusively devoted to their respective sports, namely, sailing and

rowing on the one hand, and horsemanship and holding of tournaments on

the other hand. When in 1933 the Party came to power, it attempted to

take charge of all sport activities in Germany. Consequently, the

various navy clubs and the so-called country riding clubs became

affiliated with the Party, but both clubs had hardly anything to do with

the political SA, even after their regrouping. Only their chiefs were,

according to the organizational system, subordinate to the SA. They are

very well suited for separate proceedings because they constituted a

completely closed group within the SA.

None of the main defendants present here was ever a member of one of

these sport groups. Members of the Cavalry SA feel that they are at a

particular disadvantage because the Prosecution has not indicted the NS

Kraftfahrkorps (National Socialist Motor Corps) and the NS Fliegerkorps

(National Socialist Flier Corps), which is perfectly justified, since it

is known that they were by nature sport organizations. The NS

Kraftfahrkorps and the NS Fliegerkorps were, however, until the year

1934, exactly like the Reiterkorps, sport divisions of the SA. The NS

Kraftfahrkorps succeeded in gaining organizational independence since

1934 or 1935, due to the political influence of its leader Hühnlein. The

NS Fliegerkorps also succeeded in doing so. The NS Reiterkorps, however,

did not have such influence and merely succeeded in 1936 in being

recognized as an independent NS Reiterkorps; but it still remained

formally connected through its leadership with the SA, since Litzmann,

the Chief of the Reiterkorps, was subordinate to the Chief of the SA.

For this purely formal reason about 100,000 farmers and farmhands who

enjoyed education in horsemanship through these country riding clubs are

indicted here. It can be proved that they never took part in politics or

in any activities against Jews or people of other beliefs. Likewise a

pursuit of militaristic aims is out of question in the case of the

Cavalry SA. Already after the First World War it was evident that the

horse had no further role in war. This charge would rather be in point

as far as the Kraftfahrkorps and the Fliegerkorps are concerned. The

Prosecution stated correctly that these organizations were by nature

predominantly sport organizations.

For this reason I should be grateful to the Prosecution if they would

once more examine the cases I have mentioned in order to find out

whether or not the same conditions exist in this case as in the case of

the SA Reserve and the armed SA units.

As the last group I mention the SA university units (SA

Hochschulstürme), because they were almost without exception obligatory

organizations for those students who would not have been admitted to the

state examinations without a record of activity in such organizations.

The same thing applies to the SA health units (SA Sanitätsstürme), which

represented an obligatory activity for many physicians who were applying

for positions.

I should like to correct myself on one point, because it has been called

to my attention that I wanted to set a time limit for those SA members

joining after 1933. I should have said, “after 30 January 1933,” the day

of the seizure of power.

In conclusion, I should like to say a few words about the hearing of SA

members. Most of the members of the SA are free. If only a few so far

have written to the Court, this is almost exclusively due to the fact

that, since the SA in this country is generally considered inoffensive,

they can hardly imagine that a Court with the experience and the high

standing of this Tribunal could reach a decision which would differ from

public opinion. Should the Court, however, adhere to its conception of

the SA, then I should like to support the suggestion made yesterday by

the Prosecution to the effect that the notice be published once more for

the members to make an effort to defend their interests. However, I

share the opinion of counsel for the Leadership Corps, that it would not

serve the interests of the proceedings if the direct contact between the

Defense Counsel and his client were destroyed. In the case of the SA men

who are free, a technically simple method could be used by having the

main Defense Counsel in Nuremberg appoint deputies, preferably lawyers,

in every province, for example, Baden, Bavaria, and Württemberg. The

provincial press should make mention of these men. Every individual

member of an organization could, with the help of these lawyers, answer

by means of an affidavit those questions which the Court has found to be

relevant.

In a very gratifying manner the American Chief Prosecutor stated

yesterday, if I understood him correctly, that in the trial of the

organizations, because of its fateful importance for millions of people,

the principle of justice is much more important than the question of

speedy proceedings. I should therefore like to join in the request made

by Counsel for the Leadership Corps, that the trial of the

organizations, which is to be regarded from different points of view, be

separated from the trial of the main defendants.

Members of the Tribunal, I am at the conclusion of my remarks. I should

like, however, to reply to the words, words worth heeding, spoken by

Justice Jackson yesterday at the beginning of his address. He said that

for the first time in history a modern state had completely collapsed,

and that this surrender created for the victorious nations completely

novel problems; that one of the most important tasks was to destroy the

structure of those organizations and to prevent this country forever

from waging wars of aggression or carrying out pogroms. All people of

good will must sincerely welcome this aim and support Justice Jackson.

It is, however, questionable whether the right way toward that end is to

defame all members of organizations as such, involving millions of

people.

I ask the Tribunal to consider that there is hardly a family in this

country which did not have near relatives in some one of these

organizations at some time. The organizations are dead, the system of

terror and falsehood has disintegrated, millions of misled and deceived

people have turned away from their leaders and seducers. But if they

find themselves ostracized and stigmatized along with them the effect

might easily be the opposite of that which we all hope for.

Justice Jackson correctly pointed out in his speech yesterday that the

Control Council will possibly change the method of denazification used

so far, which has been rather mechanical, and make it more individual.

Present experience that mechanical treatment evokes the feeling of

injustice and thereby a false solidarity, might contribute to this. The

millions of simple misled camp followers of the organizations would

consider such a verdict an act of revenge rather than a manifestation of

justice. The ringleaders, however, could conceal their actual guilt

behind the backs of millions of people. The educational and corrective

effect of a verdict as well as the idea of just atonement would

consequently be weakened.

THE PRESIDENT: The Tribunal will adjourn now for 10 minutes.

[_A recess was taken._]

DR. LÖFFLER: I ask the Tribunal that I be permitted to make one more

remark.

In my previous request I did not ask for the exemption of one particular

group, namely, the Stahlhelm; this was only because, according to my

information, the Stahlhelm was transferred in its entirety to the SA

Reserve after the seizure of power and therefore, in my opinion, is

included in the declaration made yesterday by Justice Jackson exempting

the SA Reserve.

HERR BABEL: May it please the Tribunal, I should have considered it

appropriate in the interest of a speedy trial that the Defense not

answer the inquiries of the Tribunal and reply to the arguments of the

Prosecution until they have received in writing the extensive and

important arguments of the Prosecution and are thereby in a position to

deal with the whole complex of problems comprehensively and

conclusively.

Since a number of Defense Counsel for the organizations have already

spoken, I feel prompted to do the same, insofar as I am in a position to

do so at this time and consider it necessary and appropriate.

The Tribunal desire to have a discussion in order to define the legal

concept of the criminal organization and desire in particular to examine

the question of which qualifying elements of a factual nature are

necessary in order to declare an organization criminal. The Defense

believe that a final and basic definition of this concept, which is

entirely new to any legal system, can be given only at the end of the

proceedings by means of a special hearing of evidence after all

necessary factual information has been collected and examined.

The Prosecution have already presented a definition, which, however,

raises very serious objections, because it is derived from legal ideas

which have grown in countries other than Germany, under different

conditions and circumstances, and which involve far less important legal

consequences than those now considered by the Tribunal, the public

opinion of the world, the German people and jurisprudence, and

jurisdiction in general.

The organizations now indicted are mostly large mass organizations,

without aims and ideas of their own, organizations whose Party-political

aims and purposes and Party activities developed to national dimensions.

A just and pertinent definition can be found for these organizations

only on the basis of the evidence to be presented concerning the nature

and aims of these organizations and the knowledge, intentions, and

activities of their members. Considering the basic difference of the

organizations which have been and are now being investigated, it is more

than questionable whether it will be possible to take the legal basis

applied so far to single cases as a basis for proceedings against

political organizations comprising millions of people.

The Prosecution and the Defense are probably agreed that the Indictment

is actually not directed against the organizations, which do not exist

any more anyhow, but in fact against the former membership. Likewise the

opinion seems to be held unanimously that the Tribunal as a matter of

principle will give the members an actual opportunity, not only a

theoretical one, to be heard on the question of the criminal character

of the organizations; that follows all the more since, according to Law

Number 10, the possibility seems to be excluded that the members may

make essential objections in regard to the organizations and their own

person during the subsequent individual trials. If the Tribunal does not

measure the responsibility of the entire organization on the basis of

the responsibility of the individuals comprising it, the danger of

collective liability arises, which would create such a degree of

injustice affecting individuals in such a way that it would be much

worse than the justly attacked Sippenhaftung of the Third Reich, which

in a criminal way aimed at involving innocent members of the family in

proceedings taken against any one of its members.

In order to define a criminal organization, evidence and information as

to the knowledge, intentions, and actions of the members of the

organizations must be provided; similarly, before convicting

individuals, either singly or in the mass, justice and human dignity

alike demand that they should each be informed of the indictment and

should each have an opportunity to be heard in his own defense. This

requirement is imperative in view of the serious legal consequence

threatening the members of the organizations in case of a verdict

against them, such as loss of property, long-term imprisonment, and even

the death penalty.

Last but not least, the hearing of all members of the organizations is

also necessary because the unrestricted compilation of judicial evidence

appears to be inevitable in order to work out the legal definition of

criminal character.

The Defense do not ignore the fact that, considering the scope of the

Trial, these basic demands are confronted with tremendous difficulties.

The scope of the Trial, however, should not reduce the thoroughness of

the procedure but, on the contrary, should increase it.

May it please the Tribunal, there are businessmen who are owners of

several firms. If, now, the owner uses one of these firms to commit

criminal acts, can we say that the other firms and their employees are

also criminal? On the basis of this principle, I consider it necessary

to point out which organizations, according to the reasons given by the

Prosecution so far, are affected by the Indictment as units of the SS.

They are:

1. The General SS—strength at the beginning of the war, about 350,000

men. This number includes the variety of special units like cavalry,

motor, information, music, and medical units.

2. The Waffen-SS, of which, at the end of the war, there were still

under arms about 600,000 men. In the over-all number of Waffen-SS must

be included about 36 divisions of the combat troops and a large number

of reserve units of the reserve of the Armed Forces, as well as all

those who were discharged from the Waffen-SS or who left in some other

way. The verdict in this Trial would also affect the honor of the dead

and the fate of their surviving relatives, so that the dead also will

have to be included in this number which demonstrates the far-reaching

significance of this Trial. Consequently, the total number of members of

the Waffen-SS, especially when including those discharged as unfit for

war service, would be many times larger than the figure representing the

final strength.

On the basis of investigations under way the Defense will submit still

more accurate figures, unless this is to be done by the Prosecution,

which in my opinion ought to submit to the Court the information

necessary for a verdict.

Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08 · 第 109 / 127 题