Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-211.10
Last-Modified: 2001/01/10

[DR. PELCKMANN, CONTINUED]

Your Honours, President Roosevelt declared in his speech of
25th October, 1941, on the occasion of the shooting of
hostages by German forces of occupation: "Civilized nations
for a long time upheld the principle that none should be
punished for the deeds of another person." Justice Jackson
has declared on 28th February. 1946, that: "The aim of
declaring the organizations criminal is to punish assistance
in these crimes, though the real authors could never be
found, nor identified."

Can they really not be found? Is the contrary not proved by
the great number of trials, which I just mentioned before,
for concentration camp crimes before Allied military courts,
which pronounced 153 death sentences, out of 241 defendants?
Does the prosecution still maintain that it has not yet
found the real authors, though for more than a year all
persons who had anything to do with the concentration camps
have been under arrest, and though all detainees are today
grouped in organizations and are at any time at the disposal
of the Tribunal as witnesses? All files and documents, too,
are in the hands of the Allies.

Despite that, and despite the discrepancy of these two
quotations by Roosevelt and Jackson, I shall assume for a
moment the point of view of the prosecution that such a
collective criminality exists.

Then within its framework the principle still stands that
none shall be held responsible for a crime which he did not
commit. It means that in this case, too, the number of
accused should be held as low as possible.

This limitation can be made in two ways, either separately
or combined according to:

  1. The degree of responsibility, that is, the position or
  the rank held in office;
  
  2. The subdivisions of the whole organization known as
  SS.

The prosecution has to my knowledge already made this first
limitation in its charge against the Party and the
Government. From the Party, the Political Leaders only, and
from the executives of the German State, the Reich Cabinet
members only are to be put on trial.

As for the limitation of responsibility, a line must be
drawn between moral and legal responsibility. The question
must be asked, what each individual in his respective office
should have done if he committed a crime upon order or only
if he came to know about it, and what could reasonably be
expected from him.

As for the limitation according to the subdivisions of the
whole organization, it can be justified by the fact, which I
have thoroughly explained, that these groups had very
definite and separated spheres of activity and differed very
much as to their knowledge of activities, and perhaps
crimes. (Since I had to omit these passages, I ask again
that the Tribunal read them.)

A sub-division as to beginning and end of membership, too,
would be conceivable and would permit a collective exception
of the mobilized members.

But even for a sentence limited in such a way, it seems to
me absolutely necessary, in view of the heavy consequences
brought about by Law No. 10, to insert in the formula of the
verdict or to add to the reasons given for the verdict that
each

                                                  [Page 125]

individual member would have the possibility of appeal,
except against provisions of Law No. 10.

At last I want to draw attention to a procedural obstacle to
the verdict which has been demanded: The meaning of the
additional sentencing of a member of an organization as an
accused individual belonging to this organization seems to
me the following, according to Article 9: An organization
shall be held responsible for the acts of an individual
defendant who is its member only if between the acts of this
individual defendant and his organization a connection
exists so that for legal reasons joint liability of the
organization is considered necessary. Such a connection
exists only if the individual defendant committed the deed
as a member of the organization, whether it be that by doing
so he fulfilled the aim of the organization, or that he used
the organization for its commitment. On 28th February, 1946,
Justice Jackson stated: "Individual defendants, at least one
of them, must have been members of the organization, and
must have been sentenced for a deed by which the criminality
of the organization has been ascertained."

In the case of the organization of the SS, which I
represent, this means:

An SS organization can be declared criminal only if at least
one of the defendants belonged to it, and was sentenced for
a crime which he has carried out either through the
organization, or which is to be considered a result of the
aims of the organization, and has been committed in their
realization.

With one exception, about which I am going to speak, all the
defendants stand before this High Tribunal for acts which
they have performed as the chiefs of important State or
Party offices, but not of the SS, and which they carried out
there in the fulfillment of their tasks.

The fact that a few of the defendants were holding honorary
ranks in either one of the SS organizations is not enough to
consider the SS organizations co-responsible for deeds for
the carrying out of which they were not responsible and in
which they did not share.

The defendant, Kaltenbrunner, might be an exception. He is
indicted in his capacity as chief of the Security Police,
that is, the Criminal Police and Gestapo, and the SS, also
for those deeds which were carried out by the SD. But the SS
organization cannot be incriminated by that. The Criminal
Police is not indicted. The Gestapo is indicted as such. The
indictment of the SD also must be considered as an
independent one. It is true that it was connected originally
with that against the SS, but soon the SD got its own
defence counsel and throughout the whole proceedings it was
treated independently. Since 1934 SD and SS were separated.
A sentencing of Kaltenbrunner, therefore, would, if at all,
give only formal basis for the sentencing of the
organizations of the Gestapo and the SD, but not all of the
SS.

As far as the method of the proceedings is concerned, I
might point out that none of the defendants concerned was
ever asked whether and to what extent he committed his deeds
for the SS or as a member of the SS. This appears to me as a
shortcoming.

I come to the end, gentlemen of the High Tribunal. I said in
the beginning that this trial was a most gigantic criminal
trial - but still a criminal trial. And therefore I venture
to ask now, what purpose from the standpoint of legal policy
could and would a sentencing serve? And I receive the
traditional answer - retaliation and intimidation.

Certainly it is necessary to put a threat before the German
people, and especially before the former Nazi formations,
but also before the peoples of all the world which might
ever be tempted to bow to dictators, or accept anti-
democratic methods, and to make them face the severe
consequences of the violations of International Law, the new
universal law now incorporated within the Charter. This
trial should be the last warning to those who do not heed
these demands of the world, and of all their peace-loving
citizens, for freedom of speech and religion, for freedom
from want and freedom from fear. The war, the terrible
consequences

                                                  [Page 126]

of the defeat, the detention of hundreds of thousands of
prisoners of war, the painful months of the proceedings
here, the political investigations and occupational
limitations - all these are such impressive and threatening
effects that they should produce the consequences which we
hope for.

But, gentlemen of the High Tribunal, one thing above all:
Your armies have freed Germany from the tyranny of Nazism;
now will you free the world from the curse of retaliation.
The world can recover only when once there shall be once and
for all an end to the hateful slogans directed against
races, nations, classes, or parties.

I say this, though I know that there will be. many SS men,
just as there will be many on the side of the Allies, who
will not understand the meaning of my words.

But they, too, sometime will come to recognize the eternal
truth of the words: "I am here to love and not to hate."

And thus I would like to summarize my defence of the SS.

I accuse every one of the murderers and criminals who
belonged to that organization, or one of its units - and
there are more than a few of them.

I acquit the thousands and hundreds of thousands of those
who served in good faith, and who therefore share only the
moral and metaphysical, not the criminal, guilt the German
people must bitterly bear.

But I warn - I warn the world and its judges against the
commitment of mass injustice in legal form, against the
creation of a mass of condemned and degraded wretches in the
heart of Europe, I warn so that the longing of all peoples
and men might be fulfilled.

May God bless your judgment!

THE PRESIDENT: Now, I think, the SD will come next.

DR. GAWLIK: I will adhere strictly to the ruling of the
Court and only read parts of my statement.

May it please the Tribunal, I do not regard it as my task as
defence counsel for the SD to palliate injustice or to avoid
punishment for the people who are responsible.

In the proceedings against the SD, we are not concerned with
the question whether individual persons must be punished for
crimes committed. It is much more important to determine
whether, according to the outcome of the evidence submitted,
three thousand officially active persons and thirty thousand
purely honorary office-holders, who were collected under the
designation SD in offices III and VI, can be declared
criminal.

I have to deal with this question alone. I have to prove
whether the charge made against the SD by the prosecution is
justified on the basis of the Charter, and so far as this is
admissible according to the Charter, justified on the, basis
of International Law, of national laws, and of legal
principles developed by jurisprudence.

I shall first of all take a stand on the legal problem, in
order to discuss in the second part of my presentation the
factual circumstances under consideration of the result of
the evidence.

The first part divides itself into two sections:

In the first section I shall discuss the questions arising
from the law itself; in the second, the questions of
procedure.

In the material legal part I shall first investigate the
question of the organizations and groups in relation to the
SD. Then I shall investigate (a) what prerequisites must be
complied with in order that an organization or group can be
declared as criminal, (b) what conclusions can be drawn from
these confirmations. Finally I shall investigate whether the
basis nulla poena sine lege is opposed to a sentencing of
the SD.

I start with the explanation of the term "SD," the Security
Service. This term has no unequivocal meaning. The SD was
first considered to be:

                                                  [Page 127]

  (a) the SS Formation SD
  
  (b) Offices III, VI and VII.

These were, as is shown from the interrogations of the
witness Hoeppner, two completely different unions of
persons.

(a) To the SS Formation SD belonged all persons who were
members of or candidates for the SS, and who were employed
with the Security Police or with other organizations of a
police character (e.g., customs frontier protection) or with
the SD Intelligence Service. This SS Formation SD had no
task and no aims. It exercised no activity for a common
general purpose. Its members never met for a common service
or at other general gatherings. They lacked any feeling of
solidarity, as they served independently of each other in
different organizations. I refer particularly to the
testimony of the witness Hoeppner before the Commission and
before the Tribunal.

It was purely a matter of a registered compilation of SS
members and SS candidates of certain professional groups.

The members of this SS Special Formation SD wore the SS
uniform with the badge "SD" on the left sleeve. The
different branches were thus not outwardly distinguishable.

(b) Regarding offices. 1. Offices III, VI and VII were the
Home Intelligence Service, the Foreign Intelligence Service
and the Scientific Research Service. They were the SD
offices in the Reich Security Main Office (RSHA) which was
founded in 1939, in contrast to the Security Police (Sipo)
Offices IV and V. Office VI was united on 12th November,
1944, to the Military Counter-Intelligence to become the
united German Intelligence Service. I refer here to Document
SD No. 1 and Schellenberg's affidavit, SD No. 62.

There was, moreover, the Reich Security Service, but that
was something else. The Reich Security Service provided the
guard for leading personalities of the State. This
organization did not belong to the Reich Security Main
Office and it was also not part of the SS. The Reich
Security Service was under the then Brigade Leader
Rattenhuber, whose immediate superior was Himmler.

2. Offices III and VI of the Reich Security Main Office, the
Home Intelligence Service and the Foreign Intelligence
Service, are the ones indicted.

Office VII, although designated as SD together with Offices
III and VI, is not indicted. I refer particularly to the
minutes of the Commission of 23rd July, 1946.

When speaking in my further statements of the SD, I only
mean by this the indicted Offices III and VI.

Offices III and VI of the RSHA were not organized until
September, 1939.

In a formal sense, therefore, the prosecution can only refer
to the period which has elapsed since that date. In
contradiction to this, however, accusations have also been
made against the SS relating to a time before that.
Therefore, against the formal text of the Indictment, I
shall also make the time before that the subject of my
speech.

3. Offices III and VI were not indicted separately, but as a
part of the SS.

The prosecution, therefore, considers the SS as an
organization or group within the meaning of Article 6 of the
Charter and the SD merely as a part thereof.

Is this right?

To decide this question, a definition of the terms
organization and group within the meaning of the Charter is
required.

The American and the British Prosecutors in their
fundamental speech of 28th February, 1946, considered the
following prerequisites as necessary for an organization:

  1. an alliance of persons with an identifiable
  relationship.
  
  2. a common, general purpose.
  
  3. the voluntary character of the alliance.

                                                  [Page 128]

On this definition, which is also in accord with German
jurisprudence (Juristische Rundschau 1928, page 688), I
shall base my further arguments.

The decision, therefore, hinges upon the questions as to
whether there existed between SS and SD:

  (a) an identifiable relationship,
  
  (b) a common, general purpose.

For the period up to the end of 1933 and beginning of 1934
this must be answered in the affirmative. I refer in
particular to the statement of the witness Hoeppner.

For this period, therefore, the arguments of the defence
counsel for the SS are applicable to the SD, and I shall in
consequence make no fundamental statements for this period.

For the later period the question as to whether an
identifiable relationship existed between the SS and SD
must, however, be answered in the negative.

The Reich Security Main Office was not one of the offices of
the SS Supreme. Command, as has been asserted by the
prosecution. It is also not true that the RSHA was a
department of the SS. In so far the prosecution contradicts
itself, since the Secret State Police, which was Office IV
of the Reich Security Main Office, is not indicted as part
of the SS, but separately.

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