Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-212.04
Last-Modified: 2001/01/21

THE PRESIDENT: I mean teleprinter, 3 per cent; wireless, 8
per cent - did it remain at that exact figure throughout the
whole war?

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]

DR. GAWLIK: They are average figures, your Lordship. They
may have altered slightly during the war.

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]

DR. GAWLIK: SD men were not working in the Economic and
Administrative Main Office, not from Amt III or Amt VI. As
far as I am informed, there were a few Gestapo men -

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]

to Paragraph 6-C of the Charter, persecution for political,
racial or religious reasons is not in itself a crime. It is
on the contrary necessary that this persecution be carried
out in executing a crime or in connection with a crime for
which this Tribunal is competent. It is therefore not
sufficient if the prosecution alleges, on page 53 of the
Trial Brief against the Gestapo and SD, that it had been one
of the tasks of the SD to keep the Gestapo informed about
the Jews. On the contrary, it is necessary to prove for what
purpose this information was rendered.

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.

D R . 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]

to France by Eichmann, also belonged to Amt IV and received
his instructions directly from Eichmann himself. Thus, no
connection existed between Amter III and VI and Eichmann's
department.

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]

On the contrary, it should have been shown that this
persecution was carried out for religious reasons.

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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