The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-First Day: Friday, 1st March, 1946
(Part 3 of 9)

[Page 82]

DR. LOEFFLER: 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.

[Page 83]

DR. BABEL (counsel for the SS and SD): May it please the Tribunal, I should have considered it appropriate in the interest of a speedy trial that the defence should not answer the inquiries of the Tribunal and reply to the arguments of the prosecution, until it has received in writing the extensive and important arguments of the prosecution, and is thereby in a position to deal with the whole complex of problems comprehensively and conclusively.

Since a number of defence counsel for the organizations have already spoken, I feel prompted to do the same, in so far as I am in a position to do so at this time, and consider it necessary and appropriate.

The Tribunal desires to have a discussion in order to define the legal concept of a criminal organization, and desires in particular to examine the question of which qualifying elements of a factual nature are necessary in order to declare an organization criminal. The defence believes 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 has already presented a definition, which, however, raises very serious objections, because it is derived from legal ideas which have developed in countries other than Germany, under different conditions and circumstances, and involving 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 defence are probably agreed that the Indictment is actually not directed against the organizations, which do not exist any more, 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 No. 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 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, by criminal methods, aimed at involving innocent members of the family in proceedings taken against anyone 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 their own defence. This requirement is imperative in view of the serious legal consequence threatening the members of the organizations in case of a verdict against them, e.g., 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

[Page 84]

necessary because the unrestricted compilation of judicial evidence appears to be inevitable in order to work out the legal definition of criminal character.

The defence does 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, then, 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 a variety of special units such as cavalry, motor, information, musician, 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 overall number of Waffen-SS must be included about thirty- six divisions of combat troops and a large number of reserve units of the Reserve 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 honour of the dead and the fate of their surviving relatives, so that the dead also will have to be included in this number. 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 defence will submit still more accurate figures, unless this is to be done by the prosecution, which in my opinion ought to submit to the Tribunal the information necessary for a verdict.

3. The Deaths Head Units; before 1939, about 6,000 men.

4. SS troops for special employment, including Adolf Hitler bodyguard; before 1939, about 9,000 men.

5. Honorary Leaders of the SS, whose number will probably turn out to be very large as, for instance, the Farmer Leaders (Bauernfuehrer) of the Reich Food Estate (Reichsnaehrstand) down to the District Farmer Leaders (Kreisbauernfuehrer) were for the most part appointed honorary leaders of the SS. Similar conditions prevail with respect to the chiefs of several branches of the State administration, who were often made honorary leaders of the SS without any initiative on their part, and without being able to do anything about it. Likewise many leaders of the Reich Veterans' League (Reichskriegerbund) received honorary ranks in the SS.

6. The "sponsoring" members of the SS among whom were also many non-Party members; their number is not yet known but it is certainly very considerable.

7. SS Auxiliaries of the Army Post Offices (SS Fronthilfe Deutsche Reichspost).

8. SS Building Units.

9. SS Front labourers.

10. The entire Regular Police to whom belong:

(a) The Municipal Police of the Reich with several special units, as traffic squads, accident squads, information, cavalry, police dog squads, radio and medical units.

(b) The Rural Police (Gendarmerie), with innumerable stations and posts, distributed all over the country, even in the smallest villages, and which had rendered service without essential changes since Napoleon's time; the motorized Rural Police supervised traffic.

(c) The Municipal Police of communities in small villages and market towns.

(d) The Water Patrol (Wasserschutzpolizei).

(e) The Fire Police.

(f)The technical auxiliary police units . . .

[Page 85]

THE PRESIDENT: Dr. Babel, you are going rather fast if you want us to take down these categories.

DR. BABEL: Mr. President, I shall submit a copy to the Tribunal.

THE PRESIDENT: Personally, I prefer to understand the argument when I hear it.

DR. BABEL I repeat.

(f) The Technical Auxiliary Police Units: The Technische Nothilfe; the regular and factory fire brigades and voluntary fire brigades. (g)Police and Gendarmerie Reserves.

(h) The Air Raid Police, with security and auxiliary service.

(i) The City and Rural guard (Stadt und Landwacht).

Further, there belonged to the Regular Police a great many central institutions, such as the State Hospital for Police, the Police Officers' Schools, the Technical Police School, the Police Sports and Cavalry Schools, Police and Rural Police Schools, the Water Patrol and Reich Fire Brigade School, the Driving and Traffic Schools, the Air Raid Precautions. Teaching Staff, the School and Experimental Station for Police Dogs and the Horse Depot of the Police.

In 1942 all the above-named units of the Regular Police, including the police troop units, totalled about 570,000 men. If we follow the presentation of the prosecution, then all the groups, institutions and organizations enumerated so far belong to the SS.

11. All those units of the Security Police which did not belong to the separately indicted Gestapo and SD; that is, offices and officials of the criminal police.

12. The Office for Racial Germans who are not German citizens.

13. The Offices of the Reichskommissar for the Strengthening of Germanism.

14. National Political Schools.

15. The "Lebensborn" Society.

16. The SS Female Auxiliaries.

All these groups, institutions, and sub-organizations were under the administration and jurisdiction of the SS.

By way of summary, the defence estimates the group of persons indicted as SS members at several millions. The verdict, however, will also affect the members of the families of all SS members, at least indirectly, so that additional millions will be affected personally, morally and financially.

Since, besides the SS, the mass organizations of the SA and the Leadership Corps are also indicted, a verdict against the indicted organizations would amount to a considerable part of the German nation being considered criminal.

According to Law No. 10 of the Control Council of 20th December, 1945, every member may be subject to any penalty, including the death penalty, merely because he was a member of an organization which has been declared criminal.

The question under discussion by the Tribunal, as to what objections can be made in this collective trial and what objections can be made later in the individual trials has, in my opinion, been decided already by Law No. 10 to the effect that the individual objections of a defendant, e.g., ignorance of the criminal aims of the organizations, cannot be given any consideration.

It is, therefore, necessary that evidence in this present trial should be admitted to the widest extent possible.

It should be made possible for the defence to rebut, by means of evidence of the factual situation at the date of the respective act, the conclusions drawn by the prosecution retrospectively from individual acts and facts.

When evidence on behalf of the individual defendants was submitted, the Tribunal declared its readiness to admit evidence if there were only the slightest degree of relevancy. Considering the significance of the decision of this Tribunal for the millions of people affected and for their families, it appears to be an absolutely necessary condition that evidence be admitted to the greatest possible extent in order

[Page 86]

to permit a just verdict, to clarify the facts, and especially to find out to what extent members of the SS participated in any criminal acts, according to Article 6 of the Charter.

To clarify the question of whether it is permissible to conclude from the fact of the wide extent of the indicted actions, as maintained by the prosecution, that the members of the SS had knowledge of these actions, it will also be necessary to admit evidence to the widest extent possible about the question as to whether or not and, if so, to what extent, the members of the SS knew of these actions, and evidence of the facts which prove that the members of the SS, like the majority of the German people, did not know anything about these matters due to the precautions taken to keep them secret.

The discussions initiated by the Tribunal make it necessary to anticipate essential parts of the final pleadings. A ruling by the Tribunal on the question of evidence would at this time signify a ruling by the Tribunal on an essential part of its future decisions, without any hearing of the evidence on the objections of the defence. The Charter has not defined the acts which qualify an organization as criminal. This lack of definition cannot be met by admitting evidence only in a certain direction. By doing so the Tribunal would anticipate an essential part of its final verdict.

According to what I have said, I believe that it will be necessary for the evidence to include all elements which might influence the decision of the question as to whether the organization of the SS was criminal. This, however, would hardly be possible within the frame-work of this trial which, according to the Charter, is to be conducted as expeditiously as is reasonably possible. Therefore, I consider it necessary to separate the procedure against the SS and the SD from the trial of the individual defendants.

On 15th January, 1946, partly for other reasons, I made a motion for separation. As far as I know, no ruling has yet been given. I repeat this motion:-

Judging from the course of the trial and the procedure up to now I have come to the opinion that the Indictment against the organizations of the SS and the SD - for which I have been appointed defence counsel by order of the International Military Tribunal of 22nd November, 1945 - and probably against the other indicted organizations also - cannot be dealt with within the framework of this trial for factual and legal reasons.

1. As far as the legal aspect is concerned, I restrict myself to a few brief points reserving for myself the right to present additional arguments at a later date:

(a) The International Military Tribunal has no jurisdiction.
On this point I should like to remark that a few days ago I learned from a news-paper article that the objection of lack of jurisdiction has already been raised during the session of 20th November, 1945, and has been overruled by the Tribunal. I asked for a copy of the record of 20th November,1945 - and also of the following days - but I have not received it as yet. Therefore, I could not take note either of the motion or of the reasons given for the decision of the Tribunal.
(b) A criminal procedure against an organization is not possible or permissible, especially against an organization which has been dissolved.

(c) To appoint a defence counsel for a dissolved organization, i.e., for something non-existing, is not possible or permissible.

2. As to the facts I am compelled to make more detailed statements in support of my motion.

On 19th November, 1945, I was told that the International Military Tribunal proposed my nomination as counsel for the organization of the Leadership Corps. After discussion I declared in writing my agreement to take over the defence.

On 20th November, 1945, I was told that I should take over the defence of the organizations of the SS and SD. On 21st November, 1945, I was told

[Page 87]

that I had been appointed counsel for the SS and SD, and that I would receive the written appointment very soon. On 23rd November, 19945, I received the letter of appointment dated 22nd November, 1945, in the English language, and a few days later I received the German translation which I had requested.

This letter, in the translation which I received, read as follows:-

"Pursuant to the Direction of the International Military Tribunal you are hereby appointed to serve as counsel in the case of United States et al. v. Goering et al. for the members of the defendant organizations Die Schutzstaffeln der Nationalsozialistischen Arbeiterpartei (commonly known as the SS) and including the Sicherdienst (commonly known as the SD) who may make application to the General Secretary under the order of the International Military Tribunal attached hereto."
A few days later a file was handed to me with about twenty-five letters addressed to the General Secretary of the International Military Tribunal, partly from members of the SS and partly from relatives of such members.

When I asked about my position and the position of these applicants in the trial, I was told that these applications were to be submitted by me to the Tribunal in proper form.

On 23rd November, 1945, there was a conference, during which a number of questions and suggestions were brought up concerning the position and rights of these members of the indicted organizations, who had applied for and been granted leave to be heard, and of the defence counsel provided for them.

From 28th November, 1945, until 11th December, 1945, I was not able to obtain the applications filed by members of the SS and SD, although I asked for them several times each day. At that time about twenty-five applications were handed to me each day, upon request, and I had to return them in the evening of the same day. I was told every time that the Tribunal needed them and that they had not yet been returned.

When I received the folder again on 11th December, 1945, the number of petitions had increased considerably.

By a ruling of 10th December, 1945, according to the German translation which I received on 11th December, 1945, the Tribunal made known its view that a member of an indicted organization, who has applied to be heard on the question of the criminal character of the organization, is not to be considered a defendant, but will have the individual status of a witness only, although he will be permitted to give evidence; furthermore, that counsel representing any group or organization may, for this group or organization, exercise the rights accorded by the Charter to counsel for individual defendants.

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