[Page 107]

And what I shall now discuss does not serve to declare others guilty, and to distract from one's own guilt if it exists. No - these statements are intended to clarify how we all, the whole world - in part, likewise deceived about the true danger, in part in the hope that we would thus best master this danger - did something which, in its effects on the whole German people, Hitler's followers, and his SS men, had to be interpreted as confirmation of the correctness, the legality of his intentions and his deeds.

I can understand that this evidence was declared irrelevant for the defence of the individual defendants, for they are being charged precisely with having deceived the world consciously. Then, one cannot take the conduct of the world as an index for its credulity. In the case of the organizations this problem is different.

The prosecution will not seriously charge the mass of their members, even the mass of their leaders, with having known of the criminal aims and intentions of Hitler and still less will they be able to prove this. I have just shown how the events up to about 1934/35 had to appear to the SS man. Thus, the objections of the prosecution, which are worthy of consideration for the principal defendants, do not apply to the organization which I am defending.

What was the situation at that time? (I quote essentially from Jasper's The Question of Guilt [Die Schuldfrage] Pages 82-83.)

In the early summer of 1933 the Vatican concluded a Concordat with Hitler. Papen conducted the negotiations. It was the first great confirmation of the Hitler regime; a mighty gain in prestige for Hitler.

All States recognized the Hitler regime. One heard voices of admiration.

In 1935 England concluded the Fleet Pact with Hitler through Ribbentrop.

In 1936 the Olympic Games were held in Berlin. The whole world flocked there.

In 1936 the Rhineland was occupied by Hitler. France tolerated it.

In the spring of 1938 Hitler moved into Austria amidst the acclamation - still undeniable today - of the overwhelming part of the population.

In 1938 an open letter from Churchill to Hitler was published in The Times, in which there occurred sentences like this one:

"Should England be overcome by a national misfortune comparable to the misfortune of Germany in 1918, I would ask God to send us a man of your strength of will and of spirit."

The general situation in the years 1933 to 1939 is characterized by Roepke in his book, The German Question (Die Deutsche Frage), which was published in Switzerland. Because of the lack of time I will not read the quotation, and I ask the Tribunal to read it for themselves.

At that time the world still considered what happened in another State as an affair which did not concern it. Only as a result of the experience with the Hitler regime and the second world conflagration is the solidarity of the great States, and we hope one day that of the United Nations, seeing to it that dictatorship and undemocratic methods in all countries do not lay the cornerstone to new world

[Page 108]

Now, before I turn to the particularly criminal activities of the SS which the prosecution have listed, I should like to interrupt the consideration and evaluation of material with a few statements on the law of the Charter and on the rules of procedure. I did not want to bore the Tribunal with this at the beginning, first I wanted to create a factual atmosphere in which the legal argument would gain strength. My arguments will be as brief as possible, for much has already been said in this connection by my colleagues, and I fear that more will be said, and the Tribunal is also acquainted with the memorandum of my colleague Kleefisch. I hope that my statements may clarify what I have already discussed, and I hope that they may give insight into the undergrowth of the small part of the voluminous factual material which I can offer in the remaining period of the three hours which were granted me for my speech.

The legal nature of the Indictment against the organizations and the possible finding of an organization as criminal must be cleared up. The general statements of the defence regarding the possibility of the organizations' committing offences are known to the Tribunal. I consider them fitting and correct. And yet one must ask the question: Who is really indicted according to Article 9 of the Charter? Are these really the formations as former legal entities or are they not rather, in reality, the millions of individual members who, merely represented by one of the principal defendants and represented by the dead formations, are sitting in the dock? It is, after all, the individual members who are accused. This follows from a thorough consideration of the whole complex of questions. The Trial will not decide on the fate of the former organizations which are not alive and can never become dangerous but only on the fate of the many members. A glance at Article 10 and the disastrous consequences of the declarations of criminality confirms this. Declaration of criminality constitutes an unassailable decision of guilt in advance for possible charges under Article 10.

It is true that for subsequent proceedings, it will be up to the prosecution whether they consider it expedient to indict the individual member. But this does not change the basic idea.

The declaration of criminality thus bears the character of a declaration of guilt in advance for each individual member of the organization. If the individual is not indicted later, he receives no punishment, it is true; but he is nevertheless a criminal according to legal decision. The character of criminality does not affect the organization as such, but in reality - since the organization as such no longer exists - exclusively its former members. Before you, your Honours, the main trial against each individual one of these members is proceeding. The issue is the establishment of his punishable action, "membership." The most important declaration of guilt is made against each individual. The concept of guilt, however, in all civilized States of the world, is always, within the meaning of the law, connected with the individual deed of a person. There has never been guilt of organizations. No one could object to declaring the aims and purposes of an organization criminal if individuals were not affected thereby. But as soon as the declaration of criminality of the organizations is to be the indirect condemnation of individuals, one must conscientiously examine and establish the individual guilt of each individual.

This conclusion is reached for another reason as well: What does the concept of organization include? That an organization is a union of people is clear. That this union, at least in general outlines, pursues unified aims and purposes and has a corresponding constitution should also be clear. Whether it includes the characteristic of voluntariness is, on the other hand, extremely doubtful. No one will deny that the German Wehrmacht was an organization although there can be no question of voluntariness, not even in the majority of the cases. One may think further of occupational groups, schools, or even compulsory guilds, in which

[Page 109]

Constitution, aims or purposes, and activities of the organization - whether on a voluntary basis or not - are criminal if they fulfil the conditions of Article 6; that is, if they were aimed at Crimes Against Peace, War Crimes, or Crimes Against Humanity. In connection with No. 6 of the decision of 13th March, 1946, the individual characteristics of Article 6 of the Charter are to be carefully examined here. One should ask, for example: were the constitution, aims, purposes, or activity of the SS aimed at the planning, preparation, starting or execution of a war of aggression, at the violation of the rules of warfare, or at murder, extermination, enslavement, and so forth?

These latter crimes of Paragraph 10 of Article 6 of the Charter, however, are punishable only if they were committed in execution of or in connection with another crime punishable under the Charter; that is, in connection with Crimes Against Peace or War Crimes. This is how one of the authors of the Charter, Mr. Justice Jackson, explained it in his statement, which is added to the text of the Charter in the Department of State Bulletin of 12th August, 1945, on Page 228.

I ask you to read the English text:

"We have taken another (step forward) in recognizing an international accountability for persecutions, exterminations, and Crimes Against Humanity when associated with attacks on the peace of the international order."

After establishing that the crimes were without doubt committed, the question of whether the organization as such is to be designated as criminal will depend on how many or - in proportion to the millions of members - how few SS members took part in these crimes. Did an organization really act or did only relatively few members act who perhaps - paradoxically - frequently had not even joined the SS voluntarily?

That it must not be overlooked at what period the individual crimes took place the High Tribunal has already affirmed in its decision of 14th January, 1946. If at all, then it is quite possible that the organization or a part of it was criminal only at certain periods of time. Designs and plans once made could perhaps appear criminal only through later misuse, although they were originally not destined to be so. An axe, when forged, never knows upon leaving the anvil whether it will perform useful service for humanity or will one day be misused, as an instrument of murder, if only - to follow the metaphor through - with its detached wooden handle.

That such limitations in regard to time and personnel are necessary is shown by the following examples: The Indictment says on Page 5 that between 1933 and 1935 unsuitable members were expelled. I may add that these were about 50,000, or one-sixth of the membership; people, who - this is shown by the most varied testimony and affidavits - on the basis of their previous political attitude had only

[Page 110]

Even these persons would not be excepted from the Indictment and the, consequences of the declaration. Such a grotesque result cannot possibly be desired.

Finally, according to No. 6a (3) of the decision of 13th March, 1946, the evidence will have to be examined to see how far the knowledge of the individual members reached. This question will be decisive for the judgment on the masses of the SS.

I said before that even if the SS organization, the no longer existing organization, is formally indicted, the Indictment is nevertheless, in effect, directed against each individual member. If now the criminal character of the organization is to be proved through criminal acts of the members, then the member who is supposed to have committed this specific crime must have an opportunity to answer to you, your Honours.

If he cannot do this, then the Court will not be in a position to know whether the accusations are true. Then how will the proceedings be carried out according to the Anglo- Saxon corporate penal law? The leaders and the members are heard in detail on the specific accusations made against them - the Court doe not judge on the basis of unfavourable testimony of witnesses without the leaders and members of the organization who are personally affected by this testimony having an opportunity to comment on it.

How little the Court can base its judgment only on the testimony of witnesses, without hearing the accused person or persons, is shown by the astonishing experiment which I undertook with the witness Israel Eisenberg on 7th August, 1946 (see the English Transcript, pp. 15283, 15284). I showed him two pictures from a document, PS-867 in Polish, Exhibits SS Nos. 2 and 3, from which I cut off the captions under the pictures. The witness called the two men pictured SS men and named their SS ranks. He deduced these ranks exclusively on the basis of the epaulettes and insignia on the sleeves.

The witness Morgen, whom I examined on 8th August, 1946, immediately recognized as an expert that the men pictured were not wearing SS uniforms, and were not SS men. He pointed out that these photographs showed the epaulettes of the police, and on the sleeve the insignia of the police. In the photograph Exhibit SS No. 3, which is in the hands of the Tribunal, the police insignia can also be clearly seen on the cap: the eagle completely enclosed in an oval wreath of oak leaves. Nowhere, your Honours, is the SS insignia to be seen. All other photos in this book also show only police uniforms and police insignia. But all of this did not strike the witness; he considered these men "SS men." That was only a minor example of the power of observation of the witnesses with regard to uniforms.

Please consider further how slight the difference is between the uniform of the SD and that of the SS - only a small SD rectangle on the sleeve - and that non-members of the SS wore this uniform (compare the testimony of Dr. Best and Reinecke before the Commission); that it was precisely in the rear army area that the police were employed, while the SS were at the front, that the mass suggestion of the guilt of the SS distorts the memory of the witnesses; then, your Honours, you will be able to realize the true value of the testimony of non-German witnesses who arbitrarily designate "the SS" as the perpetrators of any crimes committed in the occupied countries.

The incompleteness of a collective indictment, which is raised here for the first time in the long history of law, is based particularly on the difficulty of taking testimony for the accused organization in a fair manner. This difficulty arises of necessity from the peculiar nature of the proceedings, particularly from the fact that it is technically hardly possible, or possible only through proceedings lasting for years, to clear up every concrete charge in a satisfactory manner by hearing

[Page 111]

As long as in such a trial it is impossible for the defence immediately to produce each individual member of the organization who is impeached by prosecution witnesses or documents, and to get him to make a concrete statement, as well as to hear further witnesses on this case, this trial remains incomplete and unsuited for true justice.

It follows of necessity that to a large extent the cases of the prosecution and the defence by-passed each other without being able to give the Court a picture of the true state of affairs in large parts of the Indictment. Only thus could the grotesque picture arise that we experienced repeatedly during the defence case; that is, a defence witness describing his activity and the units and SS men under his command. It covers sectors as large as possible in regard to subject matter and territorial extent, since the Court permitted only a minimum number of witnesses in proportion to the total membership, and any individual testimony of a little man was inadmissible according to the decision of 13th March, 1946. The prosecution would now have had to attempt to break down the testimony of the witness in cross- examination. The surest and simplest method for this would have been to throw doubt on the credibility of the witness by showing, for example, that he himself had committed a crime or that something of the sort had been done by people under his command.

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