Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-213.13
Last-Modified: 2001/02/21

[DR. BOEHM, Continued]

Besides that, there was no reason to refuse to work for
the national community, since criminal aims, methods
and activities of any kind were unknown. This was
clearly shown by the collective summarization of 17,089
affidavits. Moreover, the conduct of persons who were
enrolled by virtue of orders, that is, by legal
coercion, cannot constitute a legal charge if the
involuntary character of their enlistment has been
proved. To sum up once more, in conclusion I might say:

  1. It has been proved that if illegalities occurred,
  these acts were only acts by individuals and
  consequently cannot be charged against the
  organization.
  
  2. That the SA Leadership neither ordered nor
  tolerated those abuses, and is therefore free from
  guilt.
  
  3. That these excesses are in no way to be traced
  back to a criminal education or in any way to a
  conspiracy with criminal aims.

Truth and justice demand that an organization of
millions, or its leadership, should not be declared
criminal on account of these abuses by individual
members of the organization, after it has been
established that the leadership at no time aimed at
criminal actions, and that the bulk of the members of
the organization never committed any criminal acts. The
fact that several of the principal defendants were
honorary leaders of the SA in no way alters the
evidence presented in regard to the SA. When for a
short time Hermann Goering headed the SA it numbered
only a few thousand men. At that time it was no
different from the Reichsbanner of the SPD.

The Leadership Corps of the SA was composed neither of
ruffians nor political flotsam. A few leaders - five
altogether - who had not proved satisfactory were
eliminated during the events of 30th June, 1934. This
is the only criticism which can be made against Roehm,
the Chief of Staff at that time, that although he aimed
at order and legality in his political actions and
dealings, he did not expel these five persons at the
right time and thereby played into the hands of his
opponents. This involved four per cent of the Senior
Leadership Corps, and therefore a small fraction which
never could justify a conviction. Among the salaried
Obergruppenfuehrer, and Gruppenfuehrer of the period
from 1934 to 1945 there was not a single one who had
been previously convicted. The Supreme SA Leadership
had to require this of its members because there was
also a regulation that the ordinary SA member had to
furnish a certificate of good conduct from the police
upon his admission. None of them was one of the so-
called failures in life. They all had been trained for
a definite profession, with good opportunities for
advancement, before they entered the Leadership Corps
of the SA as a salaried member.

That the political objective of the SA was based on
patriotism alone has been conclusively shown by the
evidence. Roehm did everything to strengthen the idea

                                             [Page 241]

of community among the German people. His aim was to
strengthen the confidence already won. He fought
against the abuses which occurred during the political
revolution. He wished to win over the trade unions and
not to crush them. Lutze, a weak personality in
himself, repeatedly challenged occurrences and measures
within the Party. He put himself in opposition to the
leading Party line. In an affidavit which I have
submitted in evidence it is stated that he condemned
the so-called "Nazism" of the NSDAP. This is also the
chief explanation of his universally known and
implacable opposition to Himmler and Bormann. There was
hardly a question on which he, as SA Chief of Staff,
agreed with either of these men. This applies
especially to the question of the "master race" and the
attitude towards the Jews; to the Church question, as
well as to the attitude towards political opponents.

If the Tribunal is seeking objectively for the ones
guilty of the unspeakable disaster which has befallen
the whole world, then they might proceed from the point
of view of the individual. We also find this point of
view in a speech of Pope Pius XII, which he made on
20th February, 1946. I quote:

  "Erroneous ideas are circulating in the world which
  declare a man guilty and responsible solely because
  he was a member of or belonged to a specific
  community, without making any effort to examine or
  to investigate whether there really exists a
  personal responsibility on his part for certain acts
  of commission or omission.
  
  "That implies the arrogation of the rights of God,
  the Creator and Redeemer, who alone, in the
  mysterious planning of His always loving Providence,
  is the absolute Master of events, and as such, when
  He so decides in His eternal wisdom, links together
  the destinies of the guilty and the innocent, the
  responsible and the irresponsible."

DR. PELCKMANN: May I claim the attention of the
Tribunal for just a few minutes. In my plea on Monday,
I omitted important statements, for example, those
concerning Germanisation, the Einsatzgruppen, the
concentration camps, and mass exterminations. Instead
of discussing these I referred them to my written plea.
The President has repeatedly declared that the Tribunal
is willing to study these written statements by all the
defence counsel. Yesterday the Tribunal ...

THE PRESIDENT: When did they receive them? I say, we
will study them when we receive them; we have not yet
received them.

DR. PELCKMANN: That is just what I meant, your
Lordship. Today I learned through the General Secretary
and the translation section that an English translation
will not be prepared for the judges. I do not know
whether there is a Russian or French translation
available for the judges. Without the parts I omitted,
and, particularly without the appendix, which I often
quoted, my final speech is incomplete and cannot be
understood. Therefore, I shall give the Tribunal a
complete copy of my plea with the appendix in German
and ask respectively for a translation.

THE PRESIDENT: That will be done in every case. Dr.
Gawlik?

DR. GAWLIK: Your Lordship, I also ask permission to
submit a complete copy of my plea for translation as I
have omitted important parts, too.

THE PRESIDENT: Certainly, certainly. Would the
prosecution like to begin today?

SIR DAVID MAXWELL FYFE: May it please the Tribunal.

                                             [Page 242]

ORGANIZATIONS

In 1938 Hitler spoke in the Reichstag, and I quote his
words:

  "National Socialism has given the German people that
  leadership which as a party not only mobilizes the
  nation but also organizes it. National Socialism
  possesses Germany entirely and completely .... There
  is no institution in this State which is not
  National Socialist."

We know now the kind of leadership that National
Socialism did give the German people. We know how and
for what purposes the Nazi Party mobilized and
organized the German nation - for world dominion at the
cost of war and murder. The entire and complete
possession of Germany by National Socialism meant the
possession of the people, body and soul, by the
organizations of the National Socialist Party and
Government.

For what purpose were the Nazis seeking this possession
of the people? Their aims were to have a controlled but
fanatical police State geared for military aggression.
If one imagines an "ersatz" Machiavelli adumbrating
what this required, he well might have considered
necessary:

  (1) A quick method of registering your laws and
  decrees. For this you need a pliant and complacent
  Cabinet with full legislative powers - the
  Reichsregierung.
  
  (2) Quick suppression of any signs of opposition or
  freedom of thought. Here you want an espionage
  service and a police which will strike at once - the
  SD and the Gestapo.
  
  (3) A complete check and control of public opinion.
  This is provided by the pressure of a fanatical
  Corps of Political Leaders on a propaganda-soaked
  public.
  
  (4) A Praetorian Guard who will rid you not only of
  any "turbulent priest" but of any person with a
  creed of their own, and so you have the SS.
  
  (5) A spreading executive hand which will grasp the
  population in its clutch for physical training and
  mental preparation for war; which will thrust that
  population forward and downward when general
  violence is necessary; which will hold it firm in
  the ideologies of terror at home and abroad. What
  could be more suitable than the SA who had just won
  "the battle of the streets."
  
  (6) An instrument to turn your existing military
  forces to your purposes; to make them ready to
  commit any act even if it is contrary to military
  tradition and repugnant to soldier-like qualities;
  to give unquestioning assent to the enslavement of
  other nations. To co-operate and hold the ring for
  the agencies of oppression to destroy national life
  and the dignity of the human spirit. This was the
  function which the General Staff and High Command
  must perform.

Ruthlessness in government, delation, absence of free
thought and speech, internal suppression, external
trained and calculated force. These are the eternal
interlocked weapons without which tyranny cannot
flourish. These are but other names for the
organizations which we have indicted as criminal, and
by which these defendants and their colleagues were
able to lead and organize and possess a nation.

When Mr. Justice Jackson addressed this Tribunal on
28th February, he emphasized that it was not our
purpose to convict the whole German people of crime. I
say again that we do not seek to convict the people of
Germany. Our purpose now is to protect them and to give
them opportunity to rehabilitate themselves in the
esteem and friendship of the world. But how can this be
done if we leave amongst them unpunished and
uncondemned those elements of Nazidom which were most
responsible for the Nazi tyranny and crimes and which,
as this Tribunal may well believe, are beyond
conversion to the ways of freedom and righteousness?

Nor is it only the German people that we seek to
protect. All Europe needs protection. Consider the
position of Europe today. Among the Germans who

                                             [Page 243]

were Hitlerites there are many thousands of men and
women who, with their own hands, have done murder -
murder not only of single persons, but of many.
Hundreds of thousands, nay, millions more, became
disciples of their Fuehrer's creed of hate and cruelty.
Amongst them are those whose profession and training
was to command and lead, militarily and politically,
men who are still as fanatical and ruthless in their
lust for power as at any time during the last twenty-
five years. You remember the words:

  "Fight? Why do you always talk of fighting? You have
  conquered the State and if something does not please
  you then just make a law and regulate it
  differently! Why must you always talk of fighting?
  For you have every power! For what are you still
  fighting? Foreign policy? You have the Wehrmacht -
  it will fight the battle if it is required. Domestic
  policy? You have the law and the police which can
  change everything which does not agree with you."

Such were the precepts of "Hoheitstrager" - bearers of
National Socialist sovereignty. They are not forgotten
in a day.

Should these men be let loose amongst the German people
and amongst the people of Europe? Already the
difficulties of this unhappy continent are
overwhelming. Apart from those who come within the
definition of these organizations, a vast number of
fanatical adherents of Nazidom must in any event remain
at large. We have a whole generation of the German
people who know no other ways than those prescribed for
them by their Nazi rulers - young men and women whose
first lessons were taught by Nazi teachers, whose
education was obtained in Nazi schools, and whose sport
and recreation were found in the military exercises of
the SA. Are the leaders of Nazi Germany - in the shape
of the members of these organizations - to be let loose
to work their influence upon such fertile ground?

The law is a living thing. It is not rigid and
unalterable. Its purpose is to serve mankind, and it
must grow and change to meet the changing needs of
society. The needs of Europe today have no parallel in
history. Never before has the society of Europe faced
the problem or the danger of having in their midst
millions of ruthless, fanatical men, trained and
educated in murder and racial hatred - and in war. It
is a situation which, were there or were there not
precedents from the past, would justify and indeed
compel unusual legal provision. In fact, as the
Tribunal will remember from the speech of Mr. Justice
Jackson, there are ample precedents for the procedure
which we are asking you to institute. If you are
satisfied that these organizations as a whole are
criminal, that the great majority of the members of
these organizations knowingly and voluntarily supported
the criminal policies and participated in the criminal
activities of the leaders of the Nazi Party, then it is
your duty under the Charter to declare them criminal.
You may well think that your duty under the Charter is
only commensurate with your duty to Germany, to Europe
and the world.

The principle on which their condemnation is asked for
is clear. It is a practical application of the sound
theory of punishment which we learnt in our youth -
from, among others, that great German thinker Kant. If
men use society merely as a means to their own ends,
then society is justified in putting them outside
society. The immensity of the problem does not excuse
its non-solution. The failure to perform this legal
duty may well spell terror and racial persecution
throughout a continent, and, for the third time in our
adult lives, world war.

The Tribunal and the prosecution have had the advantage
of reading what is, if you will allow me to say so, a
careful and learned argument from Dr. Klefisch. The
criticism, however, which I should venture to make is
that it is remote from the essential fact-finding
function of this stage of the trial. The first thirty
pages are in reality an attack on Articles 9 and 10 of
the Charter, and the conclusion which is drawn that the
Tribunal should use the word "may" in Article 9 as a
basis for saying on purely a priori reasoning that no
organization can be criminal is,

                                             [Page 244]

in our submission, to make nonsense of Articles 9 and
10, and to fly in the face of their connotation as well
as their intent.

In the succeeding parts of the argument Dr. Klefisch
makes certain particular submissions to which attention
might be drawn.

The question is posed by him to what extent in number,
how and by whom must crimes be committed in order to be
imputed to the organization? To this we say that the
practical answer presents no difficulties. No one can
lay down categorically how many grains make a heap, but
equally, no one can deny that he knows a heap when he
sees one. Again, it is easy to decide on sensible
grounds what crimes are within the general aims of the
organization. The prosecution not only accept but adopt
the proposition that in the case of each organization
certain crimes can be said to be typical and
repetitive, and they draw attention to the number of
such typical and repetitive crimes which occur in the
evidence.

Similarly, no difficulty is found in the words "in
connection with an individual defendant." To say that
if an individual defendant committed his crime in a
capacity other than that of a member of the
organization, Article 9 is not complied with, is to
view this case in a non-existent vacuum. It is the
whole burden of the prosecution's case that individuals
and organizations are so interlocked that the common
end of internal and external domination is omnipresent.

Equally, we strongly contest the suggestion that a
number of members were not aware of the criminal
purpose of the organizations. Let us once and for all
tear aside the artificial suggestion that large
sections of the adherents to the Nazi Party were going
about in blinkers. It is a travesty of the facts and an
insult to their intelligence.

We agree with Dr. Klefisch that non-participating in
crimes under Article 6 of the Charter, and a lack of
will to support the policies and activities of the
organization, are the preconditions of innocence. It is
the basis of our whole submission that, to use Dr.
Klefisch's own words, "The members did subordinate and
work continually for the aims of the organizations and
the Nazis."

THE PRESIDENT: Sir David, would it be convenient to
break off there or do you want to go on a little
further?

(The Tribunal adjourned until 29th August, 1946, at
10.00 hours.)

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