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

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 7 of 13)

[Page 214]

[DR. KUBUSCHOK, Continued]

Just as little can one, to prove the criminal character of the SA, use occurrences which took place entirely outside the organization, occurrences about which "in general it can no longer be justly assumed that members were informed."

Accordingly, the defence of the SA has to prove that:

1. There did not exist at any time a common and joint plan of the SA members to commit crimes of the nature indicated in Article 6 of the Charter.

2. That neither at the time of their joining, nor during any other subsequent period of time, were the majority of SA members trained to establish the Party Programme or the special objectives of the SA by the use of illegal means, particularly by the employment of terrorism and violence.

3. That if illegal actions have been established, the result of the examination and interrogation of many thousands of members showed that these happenings lack the characteristics of a plan involving the majority of the members, and that, therefore - since they were entirely outside any common, joint plan they can be charged only to certain individuals, or very narrowly defined categories or groups of persons within the SA.

It is not true that behind those horrible and shameful events there existed, from the very beginning, a general and common plan by a mass organization to commit actions of this type, or that these actions really "were so completely evident, or had become so generally known to the members of the accused organization in some other way, that it can be generally assumed with justice that the members had been informed of these purposes and activities."

As for the Crimes Against Peace presented by the prosecution, it must be made clear first of all that preparations for a war of aggression, if they are to lead to the desired goal, must under all circumstances remain secret. Even if it were true that the Reich Cabinet or the General Staff had prepared a war of aggression, there is an almost irrefutable assumption that they not only did not inform the indifferent majority of millions of SA members, but, on the contrary, took particular pains to keep these preparations secret. But if such preparations were unknown, then the millions comprising the majority could at no time have become aware that the defensive war begun by the Reich leadership, was in reality, as the prosecution contends, a war of aggression, participation in which might perhaps be considered as a crime against the peace.

Crimes against the customs and rules of warfare are by nature individual actions of narrowly restricted groups of persons or formations, which are likewise kept secret by the higher leadership in order to prevent the international legal principle of retaliation from being applied. Even if it were possible to see a punishable participation in the mere approval of such violations of the recognized rules and laws of warfare, the prosecution would still be confronted by the hitherto unsolved, and probably also insoluble, problem of first proving that at least the overwhelming majority of SA members knew about such a planned commission of crimes against

[Page 215]

the customs and rules of warfare. Quite apart from these assumptions, which are contrary to substantial contentions of the SA, however, evidence can be introduced by the defence, after questioning many thousands of SA members, that if violations of the law occurred, they turned out to be, according to a legally necessary analysis by time and place, on the whole, only independent actions by individual persons or closely restricted groups of persons, lacking any common goal; therefore, there is no justification for treating them as "typical manifestations" of a uniform plan which might justify characterizing the SA as criminal.

It will not be possible, in the face of this evidence of the defence, to advance the objection that the conclusions drawn by the latter cannot be accepted without reservation, because the investigation extended to only a part of the millions of members comprised in the Indictment against the organizations, and that, therefore, a generalization of the result, such as expressed in the conclusions drawn by the defence, does not appear justified.

It is not the fault of the defence, your Honours, that part of the members could not he heard, for in co- operation with the General Secretary's Office, the defence did everything possible to have the witnesses brought from the Russian Zone and with whom, up to the time when they were named as witnesses, it was still able to correspond. I furthermore declare that the members of the SA who live in the Russian Zone could not be given the hearing to which they were entitled, since, according to my information, most of them were kept in ignorance of the charge against the organizations. This is one of the most serious objections against the trial, and will always remain in history.

THE PRESIDENT: Dr. Boehm, that is a most improper observation. There is no evidence that members of the SA have been kept in ignorance. On the contrary, the same notices have been posted in the camps in the Russian Zone as in the other zones, and, moreover, the defence counsel, Dr. Servatius, who has been in the Russian Zone, has made no complaint to the Tribunal. We consider that as an observation which no counsel ought to have made.

DR. BOEHM: Yes, Mr. President, but it was precisely from the mouth of my colleague, Dr. Servatius, that I received this information.

THE PRESIDENT: Dr. Boehm, Dr. Servatius said no such thing to this Tribunal. On the contrary, he said that he had been properly treated in the Russian Zone.

DR. SERVATIUS: Mr. President, I have been in the Russian Zone, and, in accordance with my wishes, was able to visit two camps. In my final plea I have pointed out and declared that, according to the information placed at my disposal, the announcement was made in all camps. I myself only had time to visit two camps, which I picked out personally. Indeed, I have also stated that here in Court.


DR. BOEHM: In that case, I must have completely misunderstood the information which was given me, Mr. President.

(Going on with document). Moreover, I should like to stress the limitations imposed on the defence by the fact that, in spite of all our efforts and the most exact indication of the addresses, some of the witnesses who live in other zones did not show up. In particular, the witnesses Fust, Lucke, Alvensleben and Wallenhoefer are missing. Because of the absence of these witnesses, we also lack the statistics about the SA and the relief fund that are necessary to form a true judgment of the events before the year 1933, which would have shown the terrorism employed against the SA. Moreover, a part of the documents, which had been requested and were approved by the Tribunal, did not reach the hands of the defence.

Accordingly, the International Military Tribunal when passing judgment can only proceed from the premise that illegal acts were committed only by a limited

[Page 216]

number of persons, or numerically restricted groups of persons, whose activities can no more place the stamp of "criminality" on the organizations as a whole than a number of crimes, such as are found in any nation, could characterize that nation as a criminal nation.

To sum up, from the point of view of the defence, one may state that the charge raised against the SA organization as a whole, and which in its effects includes even the war dead, lacks those basic, theoretical and material prerequisites the neglect of which, implicit in any unfavourable decision of the Tribunal, cannot be reconciled with "healthy popular sentiment," any more than with the aspirations of the United Nations, born from such painful experience, to restore confidence in fundamental human rights, and to create conditions under which justice and respect for International Law can be maintained.

The prosecution states that the declaration of criminality is necessary in order to create the necessary conditions for convicting a large part of the direct perpetrators who cannot be convicted individually, as well as to punish their accomplices. According to the charges of the prosecution, the Supreme SA Leadership - to cite the main charges - must have done or tolerated the following:

(a) Prepared or planned, that is, ordered a war of aggression.

(b) Tolerated or carried out atrocities or other crimes in the concentration camps.

The presentation of evidence has clearly established that no orders were given to this effect by the Supreme SA Leadership, and that no misdeeds were tolerated.

Moreover, the assertion that in most cases the real perpetrators are not to be found is not true.

If a war of aggression really was planned, only a few people, never 4,000,000, could have been concerned in this planning. The perpetrators of the Jewish persecutions, which were limited as to place and time, are known, or can be ascertained. Since the localities of the Jewish persecutions in November, 1938, are known and the perpetrators can be convicted by witnesses or else by documents, as is proven by the present trials for the Jewish pogroms in 1938, for instance, in Weissenburg and Hof, it is unnecessary to create an assumption through a declaration of criminality, especially since these deeds were repudiated by the majority of SA members. In the same way, the localities where concentration camps were situated and the names of those responsible for the deeds committed there are well known. This is borne out by the numerous trials against concentration camp commanders and guard units. Are millions of SA members, 70 per cent of whom were at the front during the Second World War when these terrible happenings took place in the concentration camps, to be made responsible for them, when even former ministers claim that they had no knowledge of these events? Let the actual perpetrators be seized! A collective arrest, however, of 4,000,000 men is unprecedented and unique in the history of penal law. It is inhuman and is based upon an extension of the concept of "accomplice," which disregards all the legal security and the principles of all criminal codes.

The basic idea in the conspiracy is that it is punishable to join an organized group of persons which, at the moment of joining, is already prohibited. The persons joining, therefore, must be aware upon their admission that they are committing an unlawful action.

A retroactive declaration of criminality, the aim of which is to make proceedings possible against individual members, violates the principle "nulla poena sine lege." The International Control Council expressly established this principle in its first law on the administration of justice in Germany. The International Tribunal cannot disregard a general legal principle of the inter-Allied legislative organ, which is authoritative for Germany.

In case of a declaration of criminality, still another principle would be violated. By their recognition of the German State and thus of its leadership, by their constant participation through representatives at noteworthy occasions, such as at SA manoeuvres, also by different agreements, the Allied Powers gave evidence

[Page 217]

that they recognized the German leadership and its organizations as legal. The document which I quoted, SA 229, "The Political Ordinances of the Inter-Allied Rhineland Commission and their Application in the years 1920-1924," established that on the 21st of March, 1925, the Rhineland Commission revoked the ban on the German Liberty Party (Freiheitspartei) and the National Socialist Party. An affidavit from the Palatinate (Affidavit General SA No. 42), which was submitted by the defence, shows that all social functions organized by the NSDAP and the SA were approved by the French occupational authorities before the year 1930. The foreign offices of the Allied nations must have had a better insight into the overall political situation than millions of ordinary SA men who, considering the political situation, could not have been aware that they were committing an illegal act by entering or remaining in the SA.

The present prosecution of an organization which was recognized at that time contradicts the universally accepted legal principle: "Nemo an factum proprium venire potest," that is "Nobody may act in contradiction to his previous conduct." This principle of Roman law, which is used as a rule of interpretation in the League of Nations, claims universal validity.

Concerning the SA, the prosecution employs a number of over-simplifications regarding purpose, place, time, and assisting-groups of persons which alone enables it to provide a basis for the declaration of criminality. In other words: the prosecution acts as if throughout the entire time there had existed a uniform personality, "the SA," with uniform leadership, responsibility, common purpose, intention, membership, and uniform conduct. Without such generalizations the prosecution would never accomplish its aim; for instance, in the question of aggressive warfare and the persecution of the Jews. By doing so it ignores the real problem of mass liability which can be solved justly only by a great number of individual statements, and which requires the investigation of the agreement of action and aim in a majority of the members. In contrast to such an opinion, we cannot stress too strongly the actual schism among the SA concerning the objectives of the leadership circles, as well as of the membership, and the limitation in time and space of the deeds which stamp the things which happened, within an organization of four millions, as nothing but occurrences restricted to time, locality and persons which took place during a period lasting over twenty years. It would have been necessary for the prosecution to prove that the majority of the members of the SA had the intention, the inner will, and the knowledge of the criminal purpose and its component elements, as well as that they were generally aware of its unlawfulness. As this is impossible, they put forward the theory that the facts of the case and the objectives were so obvious that anyone could have recognized them. If all this was so clear to millions of ordinary people why did the Allies maintain relations and make agreements until 1939 with this nation which was governed and controlled by bands of criminals? The theory that with this state of affairs the members could have known and ought to have known the criminal aims and deeds involves the abandonment of any real examination of the knowledge of the majority of the members.

Practically speaking, the prosecution content themselves with the fiction of premeditation. In doing so it overlooks innumerable speeches which were made in order to deceive the German people, it forgets:

(1) that quotations from foreign sources concerning the value of the National Socialist State were reprinted in the Press;

(2) that in the course of these twelve years the actual events were presented to the German people and to the majority of SA members in a veiled or cleverly justified form.

That, furthermore, premeditation can only be considered in conjunction with concrete facts, to which I propose to refer later, is so obvious that it is unnecessary for me to say anything further. I merely want to point out that innumerable affidavits contained in the collective summarization which I have submitted prove

[Page 218]

the ignorance of, and icon-participation in, the following crimes: persecution of the Jews, the planning of a war of aggression, or the commission of atrocities of all kinds.

But above all I should also like to point out that there is no connection between the main defendants and their actions and the membership in the SA. The SA can - if at all - be rendered responsible only for actions committed by persons in their capacity as members or leaders of the SA, but not for those committed by them, for instance, in their capacity as Reich Ministers, Reich Leaders, Gauleiter, Regional Commissioners, or other functions. Apart from his brief guest appearance in the SA before the 9th November, 1923, Goering played no part at all in this organization. Later on, his rank was only that of an honorary leader. The same applies to the defendant Frank; the SA cannot be rendered responsible for his alleged deeds as Governor-General of Poland. He was not the leader of the SA formations, which were composed of the German nationals and racial Germans employed in Poland. Rosenberg, Bormann, Schirach, Streicher, Hess and Sauckel had no relationship with the SA. As the witness Juettner emphasized in his evidence, Bormann was one of the bitterest opponents of the SA. Streicher was the man who removed SA Obergruppenfuehrer Stegmann.

The propaganda, to which the prosecution has also fallen victim, shows a National Socialist State in which the Party, the State and the armed forces on the one hand, and the Party and its organizations on the other, represent one uniform whole. In relaity [sic], there existed profound divergencies. It was just these divergencies that gave Adolf Hitler an unheard-of power over people and an unheard-of independence, which he only availed himself of with a few confidential friends, as is now becoming evident for the first time. In this connection I shall only recall the divergent views held within the Party, as well as among the leading men such as Goering Goebbels, Himmler and Lutze on the Church question and the Jewish problem. For the average man and the average member of an organization it was no simple thing to perceive and find a clear line leading through this diversity of tendencies.

However, none of the problems, especially these of war and peace, were of such a kind, as regards their solution, that they could be the object of a conspiracy.

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