The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Two Hundred and Eleventh Day: Monday, 26th August, 1946
(Part 11 of 12)

[Page 128]


Page IX, that the SD was an espionage division of the SS, If the assertion is made in the Trial Brief against the SS, this is obviously, in as far as a division of the SS is meant, a confusion with the SS Special Formation SD.

There was no supreme common command over both the SS and SD after 1934.

The connection between the SS and the SD required for the conception of organization was not established through Himmler's person; for in that case this obvious connection must have existed with the police and would have existed even with the Reserve Army since 1944.

It is true that Himmler strove for the amalgamation of the SS, SD and the police through the creation of a State Defence Corps. This, however, was a plan for the future which had as yet not materialized.

Neither was this required union created by the Higher SS and Police Leaders as they had, as a matter of principle, no essential nor disciplinary authority over the members of the Offices III and VI.

The recognizable association necessary for the conception of an organization could not have existed since 1934 if only for the reason that only 10 per cent of the chief and honorary members of the Organization SD were members of the SS; ninety per cent were not members of the SS and did not wear the uniform of the SS Special Formation SD with the insignia SD. During the war about fifty per cent of the SD were women.

Apart from the required recognizable connection between the SS and the SD there was also missing since 1934 a collective general purpose. For this I refer to the testimony of the witness Hoeppner.

The SD, therefore, was part of the SS only until the year 1934 as an organization according to Article 9 of the Statute. After this period the SS and SD were no longer united in one organization according to the Statute.

Did the SS and the SD form a group during the period after 1934 according to Article 9 of the Statute?

It may be doubtful whether the legislator really wanted to make an important distinction from a legal point of view between "group" and "organization." The wording of Article 9 of the Charter could speak against a distinction. It says there that groups or organizations can be declared criminal organizations. The group also, therefore, is to be declared a criminal organization. If, however, a distinction is assumed, I wish to state in this connection the following:

The prosecution has stated that the concept of the group is to be taken from common usage. When explaining this concept common sense should be used. According to common usage the group is a numerically small community of persons. For fifteen to twenty persons we speak of a group, not, however, for larger unions.

[Page 129]

We speak of the fact that groups were formed within a party or within an association. The group is part of the organization according to common usage. The group, therefore, is subordinate to the organization.

In this connection I should like to point out a resolution of the German Supreme Court of the Reich of 8th May, 1922. This resolution states that within a bigger association of persons following some general aims, a group may form itself to pursue a definite individual aim.

This may occur particularly if the larger association pursues approved aims with approved means; part of the members, however - perhaps without the others being informed of it - united themselves for activities which attempt to further the general aims in a prohibitive way.

Article 9 of the Charter, therefore, might be explained as follows: We can declare as criminal:

1. an organization or

2. a group as part of an organization.

The SD could only then have been a group during the period since 1934 if it had been part of the SS. This, however, as has already been stated, is not the case.

Result: Since 1934 the SD was not part of the SS as an organization or group according to Article 9 of the Charter.

I come to a further question:

Were the Offices III and VI a centralized organization or group, or were they two separate organizations in the sense of the Charter?

The Offices III and VI had neither an identifiable relationship nor a collective general purpose. This held good for the time after 1939 when the Offices III and VI belonged to the Reich Security Main Office (RSHA), as well as for the period prior to 1939, when they were united in the SD Main Office. Office III was the Home Intelligence Service, Office VI the Foreign Intelligence Service.

On the basis of the presentation of evidence it can be considered as proved that the aims, tasks, activities and methods of Offices III and VI were always completely different. The fusion of Offices III and VI in the Reich Security Main Office does not suffice to prove a recognizable connection between the two agencies, or that they have a common task. Office IV and the Criminal Police, Office V, also belonged to the Reich Security Main Office. The Gestapo is rightly considered by the prosecution as an independent organization and has been charged as such. The prosecution has evidently the same opinion regarding the Criminal Police, against which no charge was made. Just as little as the Gestapo and the Criminal Police, through union in the RSHA, have lost their character as independent organizations, so little could the fusion of Offices III and VI create a recognizable connection and common task for these two offices. The Reich Security Main Office was only the designation of an administrative agency. I refer here to a statement made by the witness Best.

The SD, therefore, was no uniform organization within the meaning of the Charter, but Offices III and VI could really only have been two separate organizations if one were further to suppose voluntary membership.

According to the prosecution it should not be necessary for each member to be a voluntary one. The prosecution considers it unimportant if a small part or small percentage did not join it voluntarily.

Let me point out in this respect that this juridical standpoint does not tally with German jurisdiction. In 1928, the German National Court decided that a society, which corresponds to the Charter's concept of an organization, must require the voluntary, contractual union of all members.

I leave the question undecided as to whether an organization can be considered as existent when a small percentage of the members did not belong to the society on the basis of a voluntary contractual union, because such is not the case with the SD.

[Page 130]

The examination of evidence has revealed that during the war the membership of a considerable portion of the SD was not voluntary but was based on a legal ordinance, either on compulsory service or emergency service. I refer to the deposition of the witness Hoeppner, who revealed that during the war an estimated fifty to sixty per cent of the members belonged to the SD by virtue of a legal ordinance.

These statements are supported by the affidavits which disclose on an average the same percentages for various offices. I, moreover, refer to the collective list of affidavits submitted by me on the subject.

The legal prescription on which compulsory service and emergency service were based since 1939 are to be found in Documents SD 65-69, submitted by me. I especially refer in this respect to Document SD 65, reproducing the circular of 16th October, 1940, in the text of that of 1st July, 1942. It is expressly stipulated in this circular that as emergency headquarters the SD commands can demand that replacements and reinforcements be put in readiness for them.

Likewise, withdrawal was not possible during the war for those who joined the SD voluntarily. In this connection I refer to Affidavit SD 22.

The prosecution, therefore, is not accurate in saying that membership of the SD was voluntary.

Consequently, on the basis of the juridical standpoint brought forward by the prosecution, Offices III and VI cannot, for the time of war, be considered as organizations as conceived by the Charter.

Neither were they groups in the sense of the Charter, because for the group, as part of the organization, the characteristics of an organization, including voluntary membership, are necessary.

As a result, the following can therefore be concluded:

1. Until 1934 or thereabouts, the SD was part of the SS.

2. In the period from 1934 to 1939 the Home Intelligence and the Foreign Intelligence were separate organizations.

3. During the time after 1939, they were not organizations or groups in the sense of the Charter because the membership of a large part of the members was based on legal ordinance.

I now come to the question of what characteristics an organization must have to be called criminal.

1. The prosecution has submitted that the organization

(a) must pursue a purpose which, according to the definition of Article 6 of the Charter, is punishable, or

(b) pursue legitimate purposes through means which, according to Article 6, are punishable.

A further requirement, according to the prosecution, is that the guilt of the members must be established. This means the members must have known that the organizations pursued goals termed punishable according to Article 6, or legitimate goals by punishable means.

However, in the submission of the prosecution, an organization can also be declared criminal when not all of its members knew about the punishable purposes.

This opinion cannot be agreed to.

Professor Dr. Exner established in detail and convincingly, in his final pleadings for the defendant Jodl, that the action per se is not a crime but that guilt must be there also. Without guilt no punishment. Going further, Professor Dr. Exner has established that this principle can also be found in decisions of foreign countries. I refer to the statement made by Dr. Exner, and I wish to point to the American law of 28th June, 1940, previously mentioned, which the prosecution cited as an illustration of the fact that organizations can be declared criminal. This law demands explicitly the knowledge of illegitimate goals.

Also, in English law, it is a general practice that a person cannot be convicted unless it can be proven that guilty intent was involved.

[Page 131]

The argument of the prosecution that knowledge on the part of some of the members is sufficient for sentencing the organization could be upheld if Law No. 10 were drawn up differently, in other words, if by reason of Law No. 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.

This is not the case, however. Law No. 10 provides conviction of each member only because of the fact that he belonged to an organization which has been declared criminal. The members can no longer argue in subsequent proceedings that they did not know of the criminal goals and purposes. The opinion held by the prosecution would thus mean that in subsequent proceedings persons will be convicted who had no knowledge of the criminal goals or activities. This would be contrary to the fundamental principle known to penal law in the entire world - previously referred to by me - according to which the proof of objective facts is insufficient for conviction and that the presence of guilt must also be proven. In view of this, and since guilt can no longer be established in subsequent proceedings, it is imperative that the guilt of all members be established in this trial before the International Military Tribunal. Only to the extent that this guilt has been established could the organization, or individual groups as a part of the organization, be declared criminal.

Guilt also includes knowledge of illegality. Also in this respect I should like to refer to Professor Dr. Exner's argument whereby he established convincingly that every serious crime - and only serious crimes are being tried here - does not necessarily presuppose the knowledge that something punishable is being done but that it is wrong to act in that manner. The perpetrator must be cognizant of the fact that he commits an infraction of law, or that he is acting in a manner considered naturally wrong. Professor Dr. Exner also has established that these principles prevail not only in the German penal law; he also cited a number of examples from English law.

In other words, the members not only are required to know the goals or methods of the organizations, in accordance with Article 6, but the members must also be aware that these goals or these methods are illegal or in any case contrary to law. In that connection the question then arises whether all members must have this cognizance or whether it suffices that only some of them have it. Because - for reasons which I already explained - only he is liable to punishment who was conscious of the illegality and because this consciousness can no more be examined in subsequent proceedings, it must be established in the present proceedings for all members, for otherwise those members might be punished by virtue of Law No. 10 who did not have this consciousness. To renounce the factual criterion of the cognizance of illegality would mean that the demands made on the ordinary members are unduly high. The cognizance of illegality may be absent even in the case where a perpetrator executes an order given him.

The provision of Article 8 of the Charter merely eliminates the order as a general reason for exclusion from punishment; but it is possible for an order to exclude the cognizance of illegality in individual cases. He who has recognized the illegality of his action cannot, according to Article 8, justify himself through reference to an order.

In a case, however, where a person considers his action right and legal by virtue of an order given him, he must be exonerated. The provisions of Article 8 of the Charter can have only this sense and this meaning.

The question whether appeal by virtue of an order received from superiors furnishes ground for exoneration is not left uncontested in international writings. Article 8 of the Charter ruled on this controversial question that the perpetrator cannot make appeal because of an order obeyed. This explains why I need not discuss this controversial question in greater detail. All authors, however, who deal with this question presuppose that the subordinate knew that the order was illegal and unjust.

[Page 132]

They deal mainly with the question as to whether the subordinate, by knowing the illegality and unlawfulness of the order, had grounds for exemption from punishment.

It is to be concluded herefrom that with this lack of knowledge, which can also be founded on an order, the perpetrator is exempt from punishment.

The French Prosecutor also stated that the order of a superior does not protect the perpetrator of a deed which was obviously punishable.

It would lead to an illogical result, if one considered it inadmissible to cite an order as proof of the lack of illegality.

He who carried out an act without an order, would not be punished if he lacked the knowledge of its illegality. If he, however, commits the same deed on the strength of an order, he would have to be punished, if one does not agree with my point of view. Such a misinterpretation would contradict the meaning and purposes of the Charter.

Orders can, however, put the perpetrator into a state of compulsion, and for this reason exclude the guilt.

It is a general rule of English law that he is protected from punishment who has committed crimes under the authoritative influence of other people and not a as result of an unchecked and deliberate intention.

According to English law this protection also exists in the relationship between the State or the supreme power and the subjects of the State, and excuses obedience to the existing authority if bodily force is exercised or is imminent.

Thus I arrive at the following result:

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