The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/nca/nca-02//nca-02-15-criminality-01-05

Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-05
Last-Modified: 1996/12/28

With respect to the Gestapo, the United States consents to
exclude persons employed in purely clerical, stenographic,
janitorial or similar unofficial routine tasks. As to the
Nazi Leadership Corps we abide by the position taken at the
time of submission of the evidence, that the following
should be included: the Fuehrer, the Reichsleitung (i.e.,
the Reichsleiters, main departments and officeholders), the
Gauleiters and their staff officers, the Kreisleiters and
their staff officers, the Ortsgruppenleiters, the
Zellenleiters, and the Blockleters, but not members of the
staff of the last three officials. As regards the SA, it is
considered advisable that the Declaration expressly exclude
(1) wearers of the SA Sports Badge; (2) SA controlled Home
Guard Units

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(SA Wehrmannschaften) which were not strictly part of the
SA; (3) The Marchabteilungen of the N.S.K.O.V. (National
Socialist League for Disabled Veterans); and (4) the SA
Reserve, so as to include only the active part of the
organization, and that members who were never in any part of
that organization other than the Reserve should be excluded.

The Prosecution does not feel that there is evidence of the
severability of any class or classes of persons within the
organizations accused which would justify any further
concessions and feels that no other part of the named groups
should be excluded. In this connection, we would again
stress the principles of conspiracy. The fact that a section
of an organization itself admitted no criminal act, or may
have been occupied in technical or administrative functions,
does not relieve that section of criminal responsibility if
its activities contributed to the accomplishment of the
criminal enterprise.

E. Further Steps Before This Tribunal.

Over 45,000 persons have joined in communications to this
Tribunal asking to be heard in connection with the
accusations against organizations. The volume of these
applications has caused apprehension as to further
proceedings. No doubt there are difficulties yet to be
overcome, but my study indicates that the difficulties are
greatly exaggerated.

The Tribunal is vested with wide discretion as to whether it
ill entertain an application to be heard. The Prosecution
would be anxious, of course, to have every application
granted that is necessary, not only to do justice but to
avoid the appearance of doing anything less than justice.
And we do not consider that expediting this trial is so
important as affording a fair Opportunity to present all
really pertinent facts.

Analysis of the conditions which have brought about this
flood of applications indicates that their significance is
not proportionate to their numbers. The Tribunal sent out
200,000 printed notices of the right to appear before it and
defend. They ere sent to Allied prisoner of war and
internment camps. The notice was published in all German
language papers and was repeatedly broadcast over the radio.
The 45,000 persons who responded with applications to be
heard came principally from out 15 prisoner of war and
internment camps in British or United States control. Those
received included an approximate 2000 from Dachau, 10,000
from Langwasser, 7,500 from Auer-

                                                   [Page 20]
bach, 4,000 from Staumuehle, 2,500 from Garmisch, and
several hundred from each of the others.

We undertook investigation of these applications from
Auerbach camp as probably typical of all. The camp is for
prisoners of war, predominantly SS members, and its
prisoners number 16,964 enlisted men and 923 officers. The
notice of the International Tribunal was posted in each
barracks and was read to all inmates. The applications to
the Tribunal were forwarded without censorship. Applications
to defend were made by 7,509 SS members.

Investigation indicates that these were filed in direct
response to the notice and that no action was directed or
inspired from any other source within the camp. All who were
interrogated professed no knowledge of any SS crimes or of
SS criminal purpose, but expressed interest only in their
individual fate. Our investigators report no indication that
the SS members had additional evidence or information to
submit 'on the general question of the criminality of the SS
as an organization. They seemed to think it necessary to
make the application to this Tribunal in order to protect

Examination of the applications made to the Tribunal
indicates that most members do not profess to have evidence
on the general issue triable here. They assert that the
writer has neither committed, witnessed, nor known of the
crimes charged against the organization. On a proper
definition of the issues such an application is insufficient
on its face.

A careful examination of the Tribunal's notice to which
these applications respond will indicate that the notice
contains no word which would inform a member, particularly
if a layman, of the narrowness of the issues here, or of the
later opportunity of each member, if and when prosecuted, to
present personal defenses. On the other hand, I think the
notice creates the impression that every member may be
convicted and punished by this Tribunal and that his only
chance to be heard is here.

In view of these facts we suggest consideration of the
following program for completion of this trial as to

1. That the Tribunal formulate and express in an order the
scope of the issues and the limitations on the issues to be
heard by it.

2. That a notice adequately informing members as to the
limitation on issues and the opportunity for later,
individual trial, be sent to all applicants and published as
was the original notice.

3. That a panel of masters be appointed as authorized in

                                                   [Page 21]
Article 17(e) of the Charter to examine applications and
report those insufficient on their own statements, and to go
to the camps and' supervise the taking of any relevant
evidence. Defense counsel and prosecution representatives
should of course attend and be heard before the masters. The
masters should reduce any evidence to deposition form and
report the whole to the Tribunal to be introduced as a part
of its record.

4. The representative principle may also be employed to
simplify this task. Members of particular organizations in
particular camps might well be invited to choose one or more
to represent them in presenting evidence.

It may not be untimely to remind the Tribunal and defense
counsel that the prosecution has omitted from evidence many
relevant documents which show repetition of crimes by these
organizations in order to save time by avoiding cumulative
evidence. It is not too much to expect that cumulative
evidence of a negative character will likewise be limited.

Some concern has been expressed as to the number of persons
who might be affected by the declarations of criminality we
have asked. Some people seem more susceptible to the shock
of a million punishments than to the shock of 5 million
murders. At most the number of punishments will never catch
up with the number of crimes. However, it is impossible to
state even with approximate accuracy the number of persons
who might be affected. Figures from German sources seriously
exaggerate the number, because they do not take account of
heavy casualties in the latter part of the war, and make no
allowances for duplication of membership, which was large.
For example, the evidence is to the effect that 75 percent
of the Gestapo men also were members of the SS. We know that
the United States forces have in detention a roughly
estimated 130,000 persons who appear to be members of
accused organizations. I have no figures from other Allied
forces. But how many of these actually would be prosecuted,
instead of being dealt with under the denazification
program, no one can foretell. Whatever the number, of one
thing we may be sure: it is so large that a thorough inquiry
by this Tribunal, into each case, would prolong its session
beyond endurance. All questions as to whether individuals or
sub-groups of accused organizations should be excepted from
the Declaration of Criminality, should be left for local
courts, located near the me of the accused and near sources
of evidence. These courts an work in one or at most in two
languages, instead of four, and ear evidence which both
parties direct to the specific issues.

                                                   [Page 22]
F. Conclusion.

This is not the time to review the evidence against
particular organizations which, we take it, should be
reserved for summation after all the evidence is presented.
But it is timely to say that the selection of the six
organizations named in the Indictment was not a matter of
chance. The chief reasons they were chosen are these:
collectively they were the ultimate repositories of all
power in the Nazi regime; they were not only the most
powerful, but the most vicious organizations in the regime;
and they were organizations in which membership was
generally voluntary.

The Nazi Leadership Corps consisted of the directors and
principal executors of the Nazi Party, which was the force
lying behind and dominating the whole German state. The
Reichs Cabinet was the facade through which the Nazi Party
translated its will into legislative, administrative, and
executive acts. The two pillars on which the security of the
regime rested were the armed forces, directed and controlled
by the General Staff and High Command, and the police forces
-- the Gestapo, the SA, the SD, and the SS. These
organizations exemplify all the evil forces of the Nazi

These organizations were also selected because, while
representative, they were not so large or extensive as to
make it probable that innocent, passive, or indifferent
Germans might be caught up in the same net with the guilty.
State officialdom is represented, but not all administrative
officials or department heads or civil servants; only the
Reichsregierung, the very heart of Nazidom within the
Government, is named. The armed forces are accused, but not
the average soldier or officer, no matter how high ranking.
Only the top policy-makers -- the General Staff and High
Command -- are named. The police forces are accused, but not
every policeman: not the ordinary police, which performed
only normal police functions. Only the most terroristic and
repressive police elements -- the Gestapo and SD -- are
named. The Nazi Party is accused, but not every Nazi voter,
not even every member; only the leaders, the Politische
Leiter. (See Chart No. 14.) And not even every Party
official or worker is included; only "the bearers of
sovereignty," in the metaphysical jargon of the Party, who
were the actual commanding officers and their staff officers
on the highest levels, are accused. The formations or strong
arms of the Party are accused, but not every one of the
seven formations, nor any of the twenty or more supervised
or affiliated groups. Nazi organizations in which membership

                                                   [Page 23]
was compulsory either legally or in practice (like the
Hitler Youth and the Deutsche Studentschaft); Nazi
professional organizations (like the Civil Servants
Organization, the National Socialist Teachers Organization,
and the National Socialist Lawyers Organization); Nazi
organizations having some legitimate purpose -(like the
welfare organizations), have not been indicted. Only two
formations are named, the SA and the SS, the oldest of the
Nazi organization, groups which had no purpose other than
carrying out the Nazi schemes and which actively
participated in every crime denounced in the Charter.

In administering preventive justice with a view to
forestalling repetition of these crimes against peace,
crimes against humanity, and war crimes, it would be a
greater catastrophe to acquit these organizations than it
would be to acquit the entire 22 individual defendants in
the box. These defendants' power for harm is spent That of
these organizations goes on. If they are exonerated here,
the German people will infer that they did no wrong and will
easily be regimented in reconstituted organizations under
new name behind the same program.

In administering retributive justice it would be possible to
exonerate these organizations only by concluding that no
crimes have been committed by the Nazi regime. Their
sponsorship of every Nazi purpose and their confederation to
execute every measure to attain those ends is beyond denial.
A failure to condemn these organizations under the terms of
the Charter can only mean that such Nazi ends and means
cannot be considered criminal and that the Charter of the
Tribunal is considered a nullity.

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