[Page 150]

DR. GAWLIK: I assume so, your Lordship. We do not have records on that.

THE PRESIDENT: The percentages are then matters of what in English would be called establishment?

[Page 151]

THE PRESIDENT: Very well.

DR. GAWLIK: I beg to apologize, my Lord, but I did not remember the first figure which I mentioned before the recess. I based my statement on the Einsatzkommandos and that is how I arrived at my figures.

Pages 68 to 71 deal with the Einsatzkommandos in prisoner-of- war camps (Statement of Evidence VI-B of the English Trial Brief against the Gestapo and the SD). Pages 72 to 75 deal with the "Kugel" Decree (Statement of Evidence VI-C of the English Trial Brief against the Gestapo and the SD). Pages 76 up to 79 deal with concentration camps (Statement of Evidence VI-D of the English Trial Brief against the Gestapo and the SD). Pages 80 to 83 deal with deportation (Statement of Evidence VI-E of the Trial Brief against the Gestapo and the SD). Pages 84 to 89 deal with the Commando order (Statement of Evidence VI-F). Pages 90 to 93 deal with Nacht and Nebel Decree (Statement of Evidence VI-G of the Trial Brief). Pages 94 to 96 deal with Summary Proceedings (Statement of Evidence, VI-H). Pages 97 and 98 deal with responsibility of kinsfolk (Statement of Evidence VI-E). Pages 99 and l00 deal with the shooting of prisoners in the Sipo and SD prisons in Radom (Statement of Evidence VI-J). Pages 101 and 102 deal with the employment of force in confiscations (Statement of Evidence VI-K). Pages 103 and 104 deal with Third Degree examination (Statement of Evidence VI-L of the Trial Brief), and I continue on Page 105, Section D, which deals with Crimes Against Humanity (Statement of Evidence VII of the English Trial Brief against the Gestapo and the SD).

THE PRESIDENT: Can you tell the Tribunal what, according to your contention, the SD did in the concentration camps?

DR. GAWLIK: The SD had nothing to do with concentration camps, my Lord. One must differentiate between two facts: Firstly, assignment to concentration camps by means of a protective custody order; the protective custody order was always issued by the Gestapo, the SD was not competent for that. Secondly, the administration of concentration camps: concentration camps were under the jurisdiction of the Economic and Administrative Main Office, Obergruppenfuehrer Pohl. This was an independent organization, which operated alongside the RSHA. Thus, if the Gestapo issued a protective custody order, then the detainee came under the jurisdiction of the Economic and Administrative Main Office. The Economic and Administrative Main Office was directly under Himmler, just as was the RSHA.

THE PRESIDENT: So that you say that the RSHA and Pohl's organization and the Einsatz groups were all three entirely separate organizations under Himmler? Is that right?

DR. GAWLIK: Yes.

THE PRESIDENT: What name was given to Pohl's organization?

DR. GAWLIK: Economic and Administrative Main Office. (Wirtschafts and Verwaltungshauptamt.)

THE PRESIDENT: Economic and what?

DR. GAWLIK: Economic and Administrative Main Office. The chain of command in the concentration camps, my Lord, was Himmler down to Pohl, and then to the Commandants of the concentration camps.

THE PRESIDENT: And do you say that the Economic and Administrative Main Office employed no SS, or SD, or Gestapo, or Sipo?

[Page 152]

THE PRESIDENT: Did any men with the SD on their arms work in concentration camps?

DR. GAWLIK: That I cannot say for certain, my Lord. I believe so; I cannot say.

THE PRESIDENT: You will recollect that there was a good deal of evidence which indicates that SD men were working in concentration camps; and the Tribunal would like to know what your explanation of that evidence is.

DR. GAWLIK: I can only recollect, my Lord, what the witness Milch said: as far as I can remember he said the following: The Commandant was an SD man; but that must be an error, because Amter III and VI had nothing to do with this. It may be that these men in the concentration camps belonged to the SS special formation of the SD, but I cannot answer that question with any certainty, your Lordship. I can only -

THE PRESIDENT: What was this special formation of the SS which was called SD?

DR. GAWLIK: They were all members of the RSHA, of all seven Amter of the RSHA, Amt I, Amt II, Amt III-the SD Inland, Amt IV-Gestapo, Amt V-Kripo, Amt VI-Intelligence Service, Foreign Branch (Auslandsnachrichtendienst) and Amt VII. These members who were members of the SS or candidates for membership in the SS were united under the SS formation SD, so that they did not need to do duty with the local units of the SS.

THE PRESIDENT: As far as I can understand what you say, you are saying that, in the branch of the RSHA, SS were called SD?

DR. GAWLIK: The members as far as they were members of the SS - for instance, if a Gestapo employee was a member of the SS - then he belonged to the SS special formation SD.

THE PRESIDENT: Go on, Dr. Gawlik.

DR. GAWLIK: Your Lordship, I should like to say the following with reference to this subject: It is something which refers to service abroad. In the eastern territories all members of the Security Police, even if they were not members of the SS wore this SS uniform with the SD badge.

And now I come to Crimes Against Humanity, persecution of Jews. (Statement of Evidence VII of the English Trial Brief against the Gestapo and SD.)

The prosecution of individuals for Crimes Against Humanity was unknown in International Law until now. It was merely admitted that if a State violated any principle of humanity, other States had the right to intervene. As an example, I mention the intervention of England, France and Russia against Turkey in 1827; against the Balkan States in 1878; and the intervention brought about by the atrocities committed in Armenia and Crete in 1891 and 1896.

This right to intervene in cases of Crimes Against Humanity was not generally recognized. Oppenheim, International Law, Vol. I, Pages 229-237, for instance, considers an intervention to end religious persecution and continued cruelty in war and peace in the interest of humanity as questionable. According to Oppenheim, it should be a rule that interventions in the interest of humanity be admissible; they must, however, be of a collective nature. In accordance with the general fundamental rule of International Law, that only the States are subject to International Law, this intervention is directed only against the State in which Crimes Against Humanity have been committed.

The Charter introduces an entirely new element by decreeing the prosecution of individuals for Crimes Against Humanity. That is probably why, according ,

[Page 153]

The witnesses Wisliceny and Dr. Ehlich have been examined before the Commission on the work of the SD in Jewish affairs, Wisliceny declared that Amt III of the RSHA had no department for Jewish questions. From 1936 until 1939 there was in the SD in the Central Department II/1 a department for Jewish questions.

This department for Jewish questions allegedly did not have the purpose to prepare the extermination of the Jews.

DR . EHLICH furthermore testified that even in Amt. III, no department concerned itself with the Jewish question, and especially not Department III-B 3. As a result of the regulation defining the tasks of Amter III and IV, it had been determined that all Jewish questions were only to be dealt with by Amt. IV.

I refer further to Affidavits SD 27, SD 16, and SD 17. Schellenberg SD 61 and Dittel SD 63 have stated with regard to Amter VI and VII that even these offices had nothing to do with the persecution of the Jews.

Furthermore, there are 259 collective statements available from former SD members for the entire area of the Reich, and for the time from 1933 until 1945.

THE PRESIDENT: Have any of these affidavits to which you are referring been translated?

DR. GAWLIK: No, my Lord. Only the summary affidavit has been translated.

THE PRESIDENT: Well, some of your affidavits have been translated, have they not?

DR. GAWLIK: Some of them, my Lord, yes, but not those 259; they have not been translated, my Lord. They are contained in my summary, SD No. 70.

I shall omit the following two paragraphs which deal with the events of the 10th November, 1938, and I shall continue on Page 107.

The evidence has not shown that the SD Amter III and VI of the RSHA participated in the extermination of the millions of Jews. All Jewish affairs were dealt with by Amt IVm, Eichmann's section. Eichmann belonged to Amt IV and was the Head of Section IV B 4. This is shown by the organizational plans of the RSHA of 1st January, 1941, and 1st October, 1942, Document L-185 and Document L-219 submitted by the prosecution.

The chain of command for the mass murder of Jews was Hitler, Himmler, Muller and Eichmann. Not one of the witnesses has indicated that Amter III, VI and VII, or any of the local branches of these offices co-operated in the extermination of Jews. In this connection I refer in particular to the testimony of Wisliceny, Page 751 of the record of the Commission, according to which there was no connection between the department of Eichmann and the Amter III, VI and VII, and further, to the record of Dr. Hoffmann (German text of Commission record Page 1793). Hoffmann stated that Amt IV was competent for deportations and that Eichmann was responsible for the final solution of the Jewish question.

In the occupied territories, also, all Jewish affairs were handled by Amt IV, Eichmann Department. The initial IV J on Document RF 1210, submitted by the prosecution shows that a department of Amt IV dealt with the Jewish questions in France. This is confirmed by the testimony of the witness Knochen (Pages 475, 476, 1105, 1113 of the Commission Record), and by the Laube Affidavit SD 54 which I submitted. They show that Hauptsturmfuehrer Dannecker, who was sent

[Page 154]

Referring to Denmark and Holland, the witness Dr. Hoffmann testified that the deportation of Jews from these countries was carried out solely by the Eichmann agency. Moreover, on the 3rd January, 1946, Wisliceny made an extensive statement on this subject before the Tribunal, saying that the deportation of Jews in the Balkan countries was also carried out by the Eichmann Department.

The Trial has in no way established that the SD Amter III, VI or VII in any supported the Eichmann agency.

THE PRESIDENT: One moment. Then that is another organization which is directly responsible to Himmler, is it, the Eichmann Department? You gave us the RSHA, the Pohl organization, and another organization which I forget for the moment - oh, the Einsatzgruppen; that was three organizations which were entirely outside the SS or the SD or the SA, and now you have got another one. This is the Eichmann organization.

DR. GAWLIK: The legal position is not the same as in those three organizations which I cited. Eichmann was in Amt IV, but probably it would be better if my colleague, Dr. Merkel, were to answer that question. I do not want to encroach on the material of my colleague Merkel who represents the Gestapo. Eichmann had an office in Amt IV - the Gestapo.

THE PRESIDENT: Go on.

DR. GAWLIK: It is true, however, that Eichmann and a number of other persons who worked in his department in Amt IV were formerly employed in the SD.

In this connection, Wisliceny has testified before the Tribunal that these persons in part assigned to Amt IV, and in part transferred there. They received their orders exclusively from Amt IV. The witness Hoffmann has declared that Eichmann was transferred from the SD to the Gestapo. (Record of the Commission, Page 14458.)

The fact that persons had worked in the SD before they worked in Eichmann's section is in no way sufficient to declare the SD a criminal organization. These persons were completely eliminated from the activity of the SD when they were taken over by Amt IV or when they were assigned to Amt IV.

The decisive question is whether the extermination of the Jews was one of the aims and duties of Amter III, VI, or VII. The fact alone that these people resigned their activity in the SD and were taken over into Amt IV proves incontestably that this activity was not among the aims and duties of the SD. Moreover, the majority of the members of Amter III, VI, and VII did not know that individual persons who had formerly been employed in the SD were now occupied in Amt IV with the final solution of the Jewish question.

I now come to the persecution of the Churches (Statement of Evidence VII-B of the Trial Brief).

The prosecution has asserted in this connection that the Gestapo and the SD had been the main departments for the persecution of the Churches; that the SD had pursued secret ends with deceptive manoeuvres against the Church; that the SD had collaborated with the Gestapo; that the SD had dealt with the opposition of the Church against the Nazi State; that the persecution of the Church had been one of the fundamental purposes of the SD.

I am of the opinion that these general allegations do not suffice to declare the SD as guilty of persecution of the Church, paragraph 6-C of the Charter does not speak of persecution of the Churches but of persecution for religious reasons.

The documents submitted by the prosecution which merely contain the general allegation that the Churches had been persecuted therefore do not suffice.

[Page 155]

The concept "persecution" will, moreover, need to be explained. Not every measure can be understood as "persecution" which was undertaken against members of denominations by the State. Here, rather, we have to start from the concept of human rights. The Charter does not define what is to be understood as violation of human rights from a religious viewpoint.

A number of writers on International Law, for instance, Bluntschli, Martens, Bonfils, and others, take this to be the right for existence; the right for protection of honour, of life, of health, of liberty, of property and of religious freedom.

THE PRESIDENT: Is it your contention that Germany had the right, outside the territory of the Reich, to treat the Church which existed there in any way they thought right. Take, for instance, in Russia; in the Soviet Union. Is it your contention that there Germany could treat the Church and the Church property in any way they thought right, if that is not in accordance with International Law?

DR. GAWLIK: You have to differentiate between conditions inside and conditions outside Germany. Outside Germany, the general principles of International Law applied. My statements deal with conditions in Germany. The SD has also been accused by the prosecution, in Document PS-1815, which is a document from Aachen, that it had persecuted the Churches inside Germany. In my opinion, you have to draw a distinct dividing line, and what I have been saying referred only to conditions inside Germany.

Only a violation of the right for religious reasons will therefore fall under this penal code.

The evidence on this point of the Indictment has established the following:

The witness Roessner has testified that since the existence of Amt III, no Church questions, but only general questions of the religious life, were dealt with in such a manner that the religious tendencies, wishes and preoccupations of all sections of the population were affected without judging their confessional adherence in the sense of a persecution of the Church, or causing or supporting police measures. The witness has also stated, in particular, that the SD carried on no sham proceedings in order to persecute the Church. The witness Dr. Best (a witness for the Gestapo) has testified that any police intervention in individual Church cases was the task of the Stapo. According to the statements of the witness Roessner, the decree of the 12th of November, 1941, which ordered that Amt IV should take over entirely all Church affairs from Amt III, was but the formal confirmation of an already existing state of affairs.

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