“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.