Here is the transcript of the closing argument of Dr. jur. Hans Gawlik, defense counsel for the German Security Service (Sicherheitsdienst - SD), at the International Military Tribunal (IMT) trial of major war criminals at Nuernberg. It is unusual in that it represents the contemporaneous collective viewpoint of many SD officers towards the war crimes charges leveled against the SD -- a viewpoint not often heard or discussed.
I have posted this defense in the same spirit in which other primary source documents on the Nuernberg trials have been posted -- to encourage reference to primary source materials in discussing the issues of WWII war crimes and the holocaust.
At the Nuernberg trials, the prosecution asked the IMT judges to declare the entire SSD a criminal organization. This is the SD response to the prosecution's charges:
The argument is taken from the IMT Proceedings, IMT Proceedings, vol. 21, pp. 316-340; 618-632; and vol. 22, pp. 2-43. The full IMT proceedings, as well as many other documents, are available on line at:
http://www.yale.edu/lawweb/avalon/imt/imt.htm#proc
from The Avalon Project at Yale Law School: Nuremberg Trial Proceedings
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THE PRESIDENT: * * * Dr. Gawlik.
DR. GAWLIK: Your Lordship, may I first of all apologize for my failure to be ready for the submission of my documents yesterday. I regret that this resulted in a delay of the proceedings, but defense counsel for the Organizations were informed that the sequence for the submission of documents would be different from that of the examination of witnesses, and the sequence of which we were informed was the following: Political Leaders, Gestapo, SS, and SD. I therefore assumed that I would follow the SS with the submission of documents. I ask the Tribunal to take into consideration that I am at present preparing my final speech and that I am therefore not able to participate in 411 the sessions.
THE PRESIDENT: Are you saying that you are not able now to participate in the session?
DR. GAWLIK: Now I am ready, your Lordship.
THE PRESIDENT: I do not know how any such misunderstanding as you indicate can have occurred, because no order was given by the Tribunal that there would be any alteration of the order, and counsel for the defendants and the defendant organizations must
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understand that they must be here when their case is called on, and the Tribunal can't be kept waiting as it was yesterday. This is the first occasion on which it has happened, and the Tribunal hopes it will not happen again.
DR. GAWLIK: Your Lordship, it is a notice dated 1 August which is posted on the blackboard in counsel's room.
THE PRESIDENT: Just what does it say?
DR. GAWLIK: It says that for the examination of witnesses, the sequence was altered and the SD witnesses were heard before the SS witnesses, but that for the submission of documents and the final speeches, the old sequence will be followed, and then the sequence is quoted: Political Leaders, Gestapo, SS, and SD.
THE PRESIDENT: The Tribunal will inquire into that matter.
DR. GAWLIK: First of all, may I submit the records with regard to the witnesses I have examined. I shall now begin with the submission of affidavits. On account of the pressure of work in- the Translation Division, only some of the affidavits have so far been translated. I request that those affidavits ...
THE PRESIDENT: Dr. Gawlik, as you weren't present the other day, perhaps I had better tell you what the Tribunal's wishes were and are with reference to these affidavits.
A large number of these affidavits, if not all, have been summarized and the summaries set out in the transcript before the Commissioners, and therefore for you to give a summary again of these affidavits merely creates on the transcript of the Tribunal a repetition of the summary which is already in the transcript before the Commissioners.
The Tribunal does not desire that. Therefore, if you will confine yourself to commenting on or summarizing the affidavits which have not been summarized before the Commissioners, that is all that is necessary, subject of course to offering them in evidence.
Is that clear? I wasn't suggesting that you should bring before us affidavits which haven't been brought before the Commissioners, but I was merely telling you that we don't want to have a repetition of summaries which were put before the Commissioners and which are set out in the transcript before the Commissioners.
DR. GAWLIK: That was not my intention, Your Lordship. I have only asked for some of these affidavits to be translated, and I was going to submit only those completely translated; but of those which I wanted to submit I have received only a part fully translated. Therefore I cannot at this moment submit the translation of all the affidavits I propose to use, and so I request that I may submit some of them later.
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THE PRESIDENT: Very well. Before you begin, this will be a convenient time to break off.
DR. GAWLIK: Very well.
[A recess was taken.]
DR. GAWLIK: I shall present my affidavits in the order of the points of the Indictment, as they appear in the trial brief against the Gestapo and SD; that, I believe, would be of aid to the Tribunal. This order will not agree with the sequence of the numbers, but I believe that can be put up with, because this method will enable the Tribunal to see that I have endeavored not to present cumulative evidence.
First, I come to the point of conspiracy, to the tasks, aims, and activities of the SD from its foundation to the establishment of the RSHA. On this, point I submitted Affidavit SD-27 by Dr. Albert; a summary appears in the transcript of 23 July 1946.
The next affidavit refers to the assertion of the Prosecution that it was a task of the SD to obtain secret information on actual and possible opponents of the Nazis. The reference is the trial brief against the Gestapo and SD, Statement of Evidence III b, Page 17 of the English version. In this connection I submitted Affidavit Number SD-28 by Dr. Albert; the summary of the contents is also shown in the records of the Commission on 23 July 1946.
Then on this point also I now submit Affidavit Number SD-1, by Ferdinand Sackmann.
THE PRESIDENT: Go on.
DR. GAWLIK: The next affidavit will prove that the reports of the SD to the Party Chancellery were not made for the purpose of supporting a conspiracy. On this topic I have submitted Affidavit Number SD-27. The short summary appears in the transcript of 3 August 1946.
The next affidavit was submitted to prove the aims, tasks and activities of Group III-D of the RSHA and in connection with the fact that Group III-D did not support a conspiracy. For this point, I have submitted Affidavit SD-40, by Ohlendorf. The summary appears in the transcript of 23 July 1946.
My next affidavits refer to the aims, tasks, and activities of the branch offices and the confidential agents, and to the fact that the tasks, aims, and activities of the branch offices and confidential agents were not to support a conspiracy. In this connection, I submit Affidavit SD-65, by Professor Ritter. I asked for the complete translation of this affidavit, but I have not yet received it since the Translation Division is overburdened with work. I particularly call
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the attention of the Court to this affidavit. It was deposed by one of the best-known German historians, and I should like to quote the following from it:
"Question One: 'Please give details of your profession.'
Answer: 'Since 1925 1 have been Professor of Modern History at the University of Freiburg."' I omit one sentence.
"Second question: 'Were you a member of the NSDAP or any of its branches?'
Answer: 'No.'
"Third question: 'Were you a member of a resistance group against the Hitler regime and were you persecuted by it?
Answer: 'Yes. I belonged to the circle of friends of Dr. Goerdeler who selected me as Minister of Education in his new Cabinet. In November 1944 1 was arrested in connection with the events of the 20th of July and was placed before the People's Court in Berlin. On the 25th of April 1945, 1 was liberated by the Russian Army."'
THE PRESIDENT: The translation came through to us as "November 1934." Was it 1944?
DR. GAWLIK: Yes, November 1944.
THE PRESIDENT: Very well.
DR. GAWLIK: "Fourth question: 'Do you know the activities of the SD Arbeitsgemeinschaft and where did you obtain your knowledge"
Answer: 'Yes. My knowledge originates from my activity as Chairman of the Purification Committee of the University at Freiburg.'
"Fifth question: 'What were the tasks of the SD Arbeitsgemeinschaft
Answer: 'First, to keep the supreme SD command - I do not know the exact term - informed of feelings among the population and the criticism expressed on Party measures.'
"To save time, I should like to omit the rest of this answer; I also omit the next question and come to Question Number 7:
"'What were the aims, tasks and activities of the confidential agents (Vertrauensmdnner)?'
Answer: 'The aims and tasks were essentially the same as in the case of the Arbeitsgemeinschaft to which the confidential agents belonged; but while the other members of the Arbeitsgemeinschaften were asked for information and requested to attend conferences with the SD only occasionally, the confidential agents were in constant contact with the SD.'
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"Eighth question: 'Was it the task of the confidential agents to collect and pass on remarks hostile to the State and to watch persons hostile to the State?'
Answer: 'I do not know of a task of this sort.'
"Ninth question: 'What was the purpose and what was the aim of the SD reports within Germany?'
Answer: 'In contrast to the frequently "rosy" official Party reports, the SD reports were to give a picture corresponding to the actual conditions and feelings of the people. In the field of cultural policy, in addition, inadequacies and deficiencies were to be pointed out.'
"Tenth question: 'Did the SD in Germany watch and report on your lectures and addresses?'
Answer: 'Yes. I know that in the branch of the SD in Karlsruhe or in Strasbourg a number of reports and stenographic notes on my lectures and addresses were found. I can also say that several scientists and high officials corresponded with me on the SD's activity..."'
THE PRESIDENT: Dr. Gawlik, I think it would be more convenient to the Tribunal or more easy for them to follow if you could summarize the affidavit rather than read it.
DR. GAWLIK: I have only a few more brief questions to read from this affidavit. I ask the Tribunal to take into consideration that this is the only affidavit which I want to read. I attach special importance to this affidavit because its author is not an SD member but a man who was himself watched by the SD.
THE PRESIDENT: Very well.
DR. GAWLIK: "I can also say that several scientists and high officials corresponded with me on the SD's activity and confirmed that my presentation of the facts agreed in all points with their experience.'
"Eleventh question: 'Did the SD cause Gestapo measures to be taken against you as a result of watching your lectures?'
Answer: 'I know of none.'
"Thirteenth question: 'Did the Gestapo arrest or warn you because of your lectures?'
Answer: 'No. I was warned once by the Gestapo but on the basis of a denunciation of which I knew and which did not come from the SD.'
"Fourteenth question: 'For what reason were you arrested?'
Answer: 'On account of my connections with some leading men of the 20th of July.'
"Fifteenth question: 'Did the examining officials in the case against you know the contents of your lectures?'
Answer: 'No, apparently not. They accepted without contradiction that
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as part of my defense I referred to the proper, "patriotic attitude of my lectures." I consider it out of the question that the Gestapo officials knew my lectures and the SD reports based on them.
"Sixteenth question: 'What was the attitude of the Political Science Faculty in Freiburg toward the Hitler Reich
Answer: 'Not only the Political Science Faculty of the university but the majority at least of the Liberal Arts professors were opponents of National Socialism. This was well known to Dr. Scheel, the head of the Reich Organization of University Teachers, and he had announced that after the war the whole university would be dissolved.'
"Seventeenth question: 'Did the SD know of this attitude
Answer: 'There can be no doubt of that.'
"Eighteenth question: 'Did the SD cause Gestapo measures to be taken against the Faculty of Political Science or any other members of the teaching staff?'
Answer: 'I know of none."'
I also submitted on this point an affidavit by Hans Timmermann, Number SD-29, which is in the transcript of the Commission of 23 July 1946. Then, by Dr. Horst Laube, SD-31, also recorded in the transcript of 23 July 1946. Furthermore, SD-26 by Dr. Zirnbauer. Of that there is no summary in the transcript; therefore, may I make a brief statement about it? Zirnbauer submitted two original reports which as an honorary agent he had sent to the SD, and he testified on oath that these were reports which he had prepared as confidential agent of the SD. I should like to state that these are the only two original reports which I was able to obtain. Annex I is a report stating that the publication of the Alsace Lorraine catalogue of the geographical economic section of the Saarbrucken Municipal Library was absolutely necessary.
Annex 2 is a report on Salzburg concert life.
I further submitted Number SD-30 by Zellern, also in the transcript of the 23d of July 1946.
The next affidavit refers to the assertion of the Prosecution that the SD was all the time a part of the SS; the reference is the introduction to the trial brief against the Gestapo and the SD, Page 12 of the English version and Page 67 of the English version. In this connection I submitted Number SD-32; the short summary is in the transcript of 23 July 1946.
The next affidavit refers to the assertion of the Prosecution that the SD played a role in the execution of one or more specific tasks, the reference being the Indictment against, the SS, Number II, Page 8
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of the German translation. In this connection I submitted an affidavit by Otto Ohlendorf, and the short summary is in the Commission transcript of 23 July 1946.
The next affidavits ...
THE PRESIDENT: You didn't give the number of that affidavit, I think.
DR. GAWLIK: Number SD-23, Your Lordship. No, I beg your pardon, it is Number 33.
The next affidavits refer to the assertion of the Prosecution that the SD and Gestapo together formed a unified police system; these are Statements of Evidence Numbers II B and III B of the trial brief against the Gestapo and the SD, Pages 9 and 17 of the English version. In this connection I have submitted SIM by Otto Ohlendorf; the short summary is in the transcript of 9 July 1946. Furthermore, Number SD-34; a short summary of the contents is in the transcript of 23 July 1946. SD-35 is by Dr. Hoffmann, and the short summary is in the transcript of 23 July 1946; SD-36 is by Otto Ohlendorf, and the short summary of the contents is in the transcript of 23 July 1946.
The next affidavit is to prove that the SD had no executive power. In this connection I have submitted Affidavit Number SD-20 by Alfred Kutter, and the short summary of the contents is in the transcript of 9 July 1946. The next two affidavits supplement the affidavit of Dr. Wilhelm Hoettl, Prosecution Document 2614-PS. I submit in this connection a supplementary Affidavit Number SD-37 by Dr. Wilhelm Hoettl.
THE PRESIDENT: That has been submitted to the Commissioner, has it?
DR. GAWLIK: Yes, your Lordship. The summary is in the transcript of 23 July 1946. 1 have asked that this affidavit be translated completely; and I am submitting the complete translations.
I further submitted on this point SD-38 by Theo Gahmann; the short summary of this affidavit is in the transcript of 23 July 1946.
The next affidavit proves that the SD had no influence on the selection of SA leaders.
The reference is Statement of Evidence Number III B, Page 18 of the trial brief against the Gestapo and SD. On this point I submit Affidavit SD-4 by Max Juttner. The short summary of the affidavit is in the transcript of 9 July 1946.
The next seven affidavits tend to prove that the SD had no influence on the selection of Party leaders. The reference is Statement of Evidence Number III B, Page 18 of the English trial brief. On this topic I submit Affidavit SD-5 by Otto Frehrer, for the former Gau Mainfranken, SD-6 by Otto Biedermann for the former Gau Thuringia, SD-7 by Siegfried Uiberreither for the former Gau
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Styria, SD-3 by Karl Wahl for the former Gau Schwaben, SD-9 by Paul Wegener for the former Gaue Mark Brandenburg and Weser-Ems, SD-10 by Albert Hoffmann for the former Gaue of Upper Silesia and Westphalia-South. SD-39 is by Adam Foertsch for the former Gau of Upper Bavaria. I do not yet have the translation of this, and I shall hand it in later.
The next affidavit refers to the assertion of the Prosecution that the SD scrutinized the loyalty and reliability of State officials. The reference is Statement of Evidence III B of the trial brief, Page 18 of the English version. In this connection I have submitted affidavit SD-3 by Dr. Werner May. The short summary of the contents -is in the transcript of 9 July 1946. I now come to Crimes against Peace. With the next affidavit I want to prove that the SD was not used in the border incidents of August 1939, and that the members of the SD had no knowledge of them. Statement of Evidence V, Page 23 of the English version.
In this connection I submitted Affidavit SD-11, by Dr. Marx. The short summary of the contents is in the transcript of 9 July 1946.
I now come to War Crimes, first of all to Statement of Evidence VI A of the trial brief against the Gestapo and SD, Page 25 of the English version. In this connection I submit Affidavit SD-41 by Karl Heinz Bendt. The summary of the contents is in the transcript of 23 July 1946.
I have also submitted on this point Affidavit SD-42 by Walter Schellenberg. The summary of the contents is in the transcript of 23 July 1946. I shall also later submit the complete Affidavit SD-43 by Heinz Wanninger, and SD-44 by Otto Ohlendorf. The summary of the contents is in the transcript of 23 July 1946.
I have also submitted on this point Affidavit SD-45 by Erwin Schulz, the summary of the contents being in the transcript of 23 July 1946; and SD-46 by Otto Ohlendorf, the summary of the contents being also in the transcript of 23 July 1946.
With the next three affidavits I want to prove that the members of the Leitabschnitte (the central regional authority), the Aussenstellen (branch offices) and the Vertrauensmdnner (confidential agents) had no knowledge of the activities of the Einsatzgruppen employed in the East. In this connection I have submitted SD-47 by Wilhelm Dilroff, which refers to the former Gaue South-Hanover and Brunswick. SD-48 by Karl Heinz Bendt refers to the former Oberabschnitte Neu-Stettin, Breslau, Dusseldorf. SD-49 by Adolf Rott refers to the former SD regional authority at Neustadt-Weinstrasse and at Saarbrucken. These three affidavits were submitted on 23 July 1946.
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The next affidavit refers to the assertion of the Prosecution that the SD Abschnitt Tilsit participated in the liquidation of Jews and Communists in the border areas, Statement of Evidence VI A of the trial brief. I shall submit a complete translation of my Affidavit SD-12 by Wilhelm Sieps later. The summary of the affidavit is in the transcript of 9 July 1946.
The next affidavit refers to Prosecution Document 1475-PS and Statement of Evidence VI A of the trial brief, Page 25 of the English version. In this connection I submit the affidavit of Gerti Breiter, Number SD-69. The next affidavit is intended to prove that the SS Major Piltz mentioned on Page 26 of the English trial brief against the Gestapo and SD did not belong to the SD but to the Gestapo.
In this connection I have submitted Affidavit SD-50 by Heinz Wanninger. The summary is in the transcript of 23 July 1946.
The next affidavits refer to Statement of Evidence VI F of the trial brief, Page 54 of the English text.
The first subject of evidence is this: in Prosecution Documents 553-PS, 498-PS, and 532-PS, SD does not mean Domestic Intelligence, Amt III, or Foreign Intelligence, Amt VI or Amt VII, but the Security Police. In this connection I submit Affidavit SD-52 by Wilhelm Keitel. The summary of the contents is in the transcript of 23 July 1946.
The next subject of evidence is that the SD did not participate in lynchings. In this connection I have submitted SD-51 by Walter Schellenberg; the summary of the contents is in the transcript of 23 July 1946.
Furthermore SD-68, by Hans Steiner. The summary of the contents is in the transcript of 3 August 1946.
The next two affidavits refer to the assertion of the Prosecution that the SD murdered prisoners in the prisons to prevent their being liberated by Allied troops, Statement of Evidence VI J, Page 56 of the English version of the trial brief.
On this subject, I have submitted SD-13 by Horst Laube. The summary of the contents is in the transcript of 9 July 1946. SD-14, by Fritz Wolfbrandt, is in the same transcript.
The next affidavit refers to the assertion of the Prosecution that the SD participated in the forcible confiscation and partitioning of public and private property; Statement of Evidence VI K, Page 67 of the English version. In this connection I have submitted SD-15 by Kurt Klauke. The summary of the contents is in the transcript of 9 July 1946.
The next affidavits refer to the assertion of the Prosecution that the SD persecuted Jews, Statement of Evidence VII A of the English
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text of the trial brief. I have submitted in this connection Affidavit SD-16, by Walter Keinz. The summary of the contents is in the transcript of 9 July 1946. SD-17, by Emil Hausmann, is in the same transcript. Also SD-53, by Emil Froeschel, in the transcript of 23 July 1946, and SD-54, by Dr. Laube, in the same transcript.
The next affidavits refer to the charge that the SD persecuted the Church: Statement of Evidence VII B, Page 63 of the English text of the trial brief. I have submitted in this connection SD-55, summary of the contents being in the transcript of 23 July 1946. Walter Keinz, SD-18, is in the transcript of 9 July 1946.
I shall submit later a complete translation of SD-19 by Helmut Fromm, summary of the contents being in the transcript of 9 July 1946. With the next affidavit I wish to show the methods, aims, activities, and tasks of the SD in the Government General. On this topic I shall later submit a complete translation of Affidavit SD-56 by Helmut Fromm, summary of contents being in the transcript of 23 July 1946.
The purpose of the next affidavit is to prove that the Police in France was called SD. I have submitted in this connection an affidavit by Dr. Laube, SD-23, with a summary of contents in the transcript of 9 July 1946. The next affidavit is submitted as proof that the members of the Gestapo and Kripo in Belgium and Northern France wore the SS uniform with the SD insignia. I have submitted SD-24 by Walter Hofmeister, and the summary of contents is in the transcript of 9 July 1946.
With the next affidavit I want to prove that the members of the SD employed in Belgium and Northern France did not belong to Amt III. For this point I have submitted SD-25 by Walter Hofmeister, summary of contents being in the transcript of 9 July 1946.
The next affidavit indicates that membership in the SD Amt III during the war was in general not voluntary, but was based on a legal order. In this connection I have submitted SD-57 by Bernhard Dilger, in the transcript of 23 July, 1946; SD-58 by Dr. Ehlich, in the same transcript; SD-59 by Karl Heinz Bendt, in the same transcript; SD-60 in the same transcript, and I shall submit later SD-21 by Oskar Eiseler, summary of the contents being in the transcript of 9 July 1946. With the next affidavit I want to prove that withdrawal from the SD was not possible for full-time and salaried members. I submit SD-22 by Werner May, summary of contents in the transcript of 9 July 1946.
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The next three affidavits refer to the tasks, aims, and activities of Amt VI. On this subject I shall submit later SD-61 by Walter Schellenberg; the summary of the contents is in the transcript of 23 July 1946. Furthermore, SD-62 by Walter Schellenberg; summary of contents is in the same transcript. Furthermore, on the tasks and activities of Amt VI, I submit Affidavit SD-66, by Otto Skorzeny. The next affidavit refers to the aims, tasks, and activities of Amt VII. I submit this affidavit provisionally, as the Commission did not decide whether Amt VII falls under the Indictment. The chairman of the Commission told me that the Tribunal would decide this question. The affidavit is SD-63 by Dr. Dietl, which I shall submit later.
The next affidavit refers to the assertion of the Prosecution that the immigration offices had the task of carrying out evacuations with the aim of permanent colonization of the occupied territories and the destruction of the national life of these territories, thus favoring constant expansion of the German borders. (Trial brief against the SS, III G, Pages 33 and 35 of the German translation.) I have submitted in this connection SD-64 by Martin Sandberger, summary of the contents being in the transcript of 23 July 1946.
Now I have an affidavit to refute Affidavit F-964, which was submitted by the Prosecution during the examination of the witness Dr. Hoffmann. I was not able to submit this affidavit to the Commission because the Commission had already concluded its session's when I received it. May I therefore submit it now under SD-65.
THE PRESIDENT: You have one 65 already, haven't you? It came through in the translation.
DR. GAVILIK: That should be SD-71, Your Lordship. From this affidavit I shall read the following, briefly:
"To establish my knowledge of the facts given, I, Georg Schrapel, state the following: From 1930 to 1939 1 was Government Councillor in Brunswick. In 1939 1 was temporarily in the Reich Criminal Police Office in Berlin, and from 1941 to 1945 1 was Section Chief of Personnel in the Main Office of the Security Police of the Reich Ministry of the Interior. From January 1944 on, I was also in charge of the Personnel Department of the Secret State Police, Gestapo. My last rank was Regierungsdirektor and SS Standartenfuehrer."
As to the facts:
"At no time during the existence' of the Gestapo and the SD were instructions or decrees issued by the Chief of the Security Police and the SD, or by the Reich Ministry of the Interior, ordering that the activities of the Gestapo, either at its headquarters or at its agencies throughout the Reich, were
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to be influenced or supervised by the SD. The agencies of the Gestapo were at all times completely independent. The independence and the special position of the State Police made all general influence of the SD impossible; supervision would not have been tolerated either by the Chief of Amt IV or the Chief of the Security Police, because such supervision would have been quite incompatible with the actual responsibility of the State Police itself." I ask that I may be allowed to submit this affidavit later when I have the translation.
Now I have a collective statement on 6,123 affidavits. I have not yet received the translations. I beg your pardon, I have the French translations; may I be allowed to submit those. I also submit the list of these affidavits. From my collective statement I ask only to be allowed to read Subject 18, concerning participation of SD members in executions in the areas of the Einsatzgruppen. On this subject I have 140 affidavits from agencies of the SD in all parts of Germany for the period from 1939 to 1945, which state the following:
"The agencies and members of the SD Amt III had no knowledge of the participation of SD members in executions carried out by the Einsatzkommandos in the East."
I now come to the presentation of my documents, which are also numbered according to the trial brief against the Gestapo and SD The first document refers to the charge of conspiracy.
I submitted as Document SD-1 an agreement between Himmler and Ribbentrop on the establishment of a uniform German Secret Intelligence Service. The document has already been submitted under USSR-120. I quote from this document the following:
"The Secret Intelligence Service has the task, as far as foreign countries are concerned, of gathering for the Reich information in the political, military, economic, and technical spheres." And the following paragraph: "Information received by the Secret Intelligence Service from foreign countries will be put at the disposal of the Foreign Office by the Reichssicherheitshauptamt."
SD-2 is an excerpt from the special alert procedure of the Security Police and the SD in case of escapes. I shall not read this document, but I would like to call the attention of the Tribunal to the fact that, although Amt III and Amt VI were united with Amt IV and Amt V in the Reichssicherheitshauptamt, Amt III and Amt VI had no police tasks, and there was a strict division between the offices of the Security Police and those of the SD; Amt III and VI were not entitled to institute alert proceedings.
The next six Documents SD-3, SD-4, SD-5, SD-6, SD-7, and SD-8 belong together.
They are excerpts from decrees by the Reich
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Minister of Justice, SD-3; by the Reich Traffic Authority, SD-4; by the Reich Food Estate, SD-5; by the Reich Forestry, SD-6; by the Reich Ministry for Armament and War Production, SD-7; and by the Reich Ministry for Food and Agriculture, SD-8: all concerning the co-operation of these agencies with the SD.
I particularly call the attention of the Tribunal to the tasks of the SD as shown in these documents: to inform the leading Reich' authorities of the effect of official measures on the population. I submit these documents also as evidence that it was the task of the SD to co-operate not only with the State Police, but with all agencies of the State.
The next document is SD-12. With this I want to prove that the SD, in the years around 1936, did not have the significance ascribed to it by the Prosecution.
The next document is SD-13. It is an excerpt from the circular decree of the Chief of the SIPO and the SD of 16 October 1941. This document shows that the SS and Police jurisdiction applied only to full-time and salaried members of the SD, but not to honorary members and not to those who were carrying out individual tasks. The majority of the members of the SD were honorary members, and were therefore not under the SS and Police jurisdiction.
The next document is SD-14. It is an excerpt from a decree of the Party Chancellery, from which I quote the following: "Only the Hoheitstrager of the Movement, from Kreisleiter up, are entitled to issue political appraisals or certifications of political reliability." This document refers to the trial brief against the Gestapo and the SD, Statements of Evidence III and IV.
The next document, SD-15, deals with the same subject of evidence. It is an excerpt from the circular decree of the RSHA, dated 12 June 1940. This decree shows that as from I July 1940 the information bureau of the Amt I, SD, was transferred to Amt IV, C 1; thus for political information of all kinds the Gestapo Amt became competent, and the Gestapo had no more support from the SD.
The next document is SD-15-a, which refutes 3385-PS submitted by the Prosecution, and shows that the SD was neither the only information service of the Party, nor the information service of the Party at all. Within its political organization, the Party had its own political situation reports, and from the Kreisleiter up, it has specific reports from all offices. Document SD-16 is an excerpt from the memorandum by Hitler about the problems of a Four Year Plan.
With SD-17 I want to prove that the activity of members of the SD in the occupied territories was not a voluntary one, but was based on a legal order. I quote from this document the following:
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"Refusal of departmental personnel to undertake employment in occupied territories.
"The order..." - I omit the details - "has approved on principle that personnel in public service can be compelled to undertake work in places other than the regular place of service. Since it is not intended to limit this order to apply only to Reich territory, a staff member provided the terms of the special service order have been complied with, especially no one in time of war may also be called upon and detached to fulfill a mission in the occupied territories."
With the next documents, SD-18 to SD-22, I want to refute the assertion of the Prosecution that the SD had special units in prisoner-of-war camps with the task of segregating and executing racially undesirable persons; the reference is the trial brief against the Gestapo and the SD Statement of Evidence III B.
Document SD-18 is an excerpt from the circular decree of the Chief of the Security Police and the SD. I call the attention of the Tribunal to the file note "IV A," which shows that the Gestapo was competent in this matter. Moreover, the decree is addressed to all State Police authorities and to the commander of the Security Police in Lublin.
I should also like to call the attention of the Tribunal to the file note "I"VA" of the next document, SD-19. I quote the following from this document. "The State Police directorates are again requested to speed up the current examinations which are still incomplete."
Document SD-20 concerns employment of Russian prisoners of war ...
THE PRESIDENT: Dr. Gawlik, what is the meaning of S15-19, Paragraph 2? The writing refers especially to various figures and then "Number 92/42 Top Secret," according to which the selection of all prisoners of war is to be made in the future in the General Government only. Why do you select prisoners of war? What does that mean?
DR. GAWLIK: That is the charge which the Prosecution has made, and I want to prove that this was done by the Gestapo alone. This decree orders that in future these selections are to be carried out only in the Government General. But that is not relevant in this connection, Your Lordship. I am only concerned with Paragraph 3.
THE PRESIDENT: But it is a document of the SD, is it not?
DR. GAWLIK: Yes.
THE PRESIDENT: It is an administrative ruling, is it not?
DR. GAWLIK: Your Lordship, the Chief of the Security Police and the SD had seven
Amter. It is, therefore, important which of
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the Amter acted. Amt IV was the Secret Police, the Gestapo. Amt III was the Inland SD, Amt VI was the Foreign Intelligence Service. Each of these offices had its own chief, and Amt IV was an organization different from that of Amt III and of Amt VI. Above these seven offices was the Chief of the Security Police and of the SD. This title does not in itself show that the SD had anything to do with any matter, but one must examine which of the offices acted: Amt IV, III, or VI. And for that reason I called your Lordship's' attention to the file note "IVA," that is Amt IV, the Secret State Police, Gestapo. This shows that Amt III and Amt VI had nothing to do with this matter, but that it concerned Amt IV only. This is also shown by the numeral "III," which expressly lists only the State Police directorates.
THE PRESIDENT: Very well, we will adjourn now.
[A recess was taken until 1400 hours.]
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Afternoon Session
DR. GAWLIK: In answer to the last question of Your Lordship I think it would assist the Tribunal if I were to indicate briefly the nature of my evidence and what I propose to establish by means of these documents. It is assumed by the Prosecution that the Gestapo, the Security Police, and the SD are independent organizations. The Gestapo is indicted separately, the Kripo (Criminal Police) is not indicted and the SD is indicted as a part of the SS. Over all of them was the Chief of the Security Police and the SD, so that in a small way it can be compared with the position of the Defendant Goering, who was the Commander-in-Chief of the Air Force, Prussian Minister President, and Reich Hunting Master.
Thus one cannot conclude from that which office it was; that only becomes apparent from the file numbers and the people who dealt with these files and I am trying to establish that by means of my documents. I now come to Document SD-20 which deals with the employment of Soviet Russian prisoners of war. One paragraph deals with the very questions which Your Lordship addressed to me with reference to the previous document, and I shall, therefore, read this paragraph.
"In order to avoid any delay in moving new arrivals of prisoners of war into the Reich, the sifting out of political commissars and 'politruks' by the Einsatzkommandos of the Security Police will in future be carried out in the Government General only.
"In the Government General the sifting will continue to be carried out by the Security Police."
By this I wish to establish that we are here purely concerned with a measure of the Security Police, not of the SD.
It then goes on to say:
"In order to insure a more rapid execution, the Security Police will reinforce its Einsatzkommandos in the Government General."
I then pass on to Document SD-21. In this connection I beg to draw the Tribunal's attention to where it expressly says:
"if occasion arises the request by the Kommandanturen to examine certain Arbeitskommandos through the Security Police is to be complied with." I beg to draw the attention of the Tribunal to the file reference, "IV," that is, measures by Amt IV. Amt IV was the Secret State
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Police, the Gestapo. Had it been the SD, then the file reference would have had to be III or VI. I now come to -
THE PRESIDENT: In the document you have just been dealing with you have got "2 A III E" at the top, and you have "III B" a little bit further down.
DR. GAWLIK: Your Lordship, the one at the top is the general collection of decrees of which there are several volumes, which I obtained from the library here; and "2 A III E" refers to this general collection of decrees. The fact that it was Amt IV can be seen from the file reference "IVA I C 2468 B/42 G."
THE PRESIDENT: Just by the first of April 1942, there is III B. What does that mean-OKW File Number 2 F 2473, Prisoner-of-War Organization III B?
DR. GAWLIK: I have not got that, Your Lordship, I have not got that here, I do not know.
THE PRESIDENT: Immediately under the words: "Re: labor detachments for agricultural work."
DR. GAWLIK: May I ask Your Lordship, did you refer to SD-21? That is a military file reference, Your Lordship. It says OKW, High Command of the Armed Forces, file reference of the Armed Forces, Chief of Prisoner-of-War Organization III B, and that III B has nothing to do with Amt III.
THE PRESIDENT: All right, go on.
DR. GAWLIK: I now come to Document SD-22. Here we are concerned with an extract from the directives for the Kommandos of the Chief of the Security Police and of the SD to be assigned to the prisoner of war camps. The date is 17 July 1941. I beg to draw the Tribunal's attention to the fact that the leaders of the Einsatzkommandos are ordered to get in touch with the chief of the nearest State Police office or the Commander of the Security Police and the SD. The commander can be compared on a small scale with the office of the Chief of the Security Police and the SD; he too had several subdepartments. III was SD, IV was State Police, V was Criminal Police; so that even the title of commander does not show which department issued it.
I should like to draw the attention of the Tribunal to the following sentence:
"As a matter of principle, such communications are to be passed to the RSHA IV A 1 by way of information."
From that it becomes evident that the measures were only dealt with in Amt IV, that is the State Police, and that Amt III had nothing to do with it.
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The following documents, SD-23 to SD-28 inclusive, refer to the allegation on the part of the Prosecution, according to which the SD had carried out the Bullet Decree; trial brief against the Gestapo and SD, Statement of Evidence VI C.
I shall first of all deal with Document SD-23. The document has already been presented by the Prosecution as Number 1650-PS. It concerns the teletype letter from the Gestapo, the Aussendienststelle Aachen, to all main Gestapo offices. I quote in order to prove that here, too, we are merely concerned with measures of the Secret State Police, the Gestapo.
"In this connection, I order the following:
"1. The main offices of the State Police are to take over the recaptured prisoner-of-war officers from the Stalag commandants and transfer them to Mauthausen Concentration Camp, according to the procedure customary up to now, unless circumstances make special transport necessary.
"2. The OKW has been requested to instruct the prisoner-of-war camps that for the purpose of camouflage the recaptured persons should not be delivered directly to Mauthausen but to the competent local office of the State Police."
I come to Document SD-24.
THE PRESIDENT: Why do you leave out the fact that those documents were addressed to Inspectors of the Sipo and the SD?
DR. GAWLIK: Your Lordship, the case of the Inspectors is the same as that of the Chief of the Security Police and SD and the commanders. The Inspector was over the Criminal Police, over the State Police, and over the SD, and therefore was exercising all three functions.
THE PRESIDENT: According to this he was an Inspector of the SD.
DR. GAWLIK: He was Inspector of the SD, but it does not follow that because the Inspector of the Sipo was the same person, that when carrying out that activity he was acting in the capacity of the Inspector of the Sipo. We are here concerned with several offices under one person. But the contents show that prisoners of war were only to be taken over by the main offices of the State Police and that the SD offices had nothing to do with it. It says expressly under Number 1: "The main offices of the State Police are to take over The Inspector of the Security Police and of the SD also had jurisdiction over these police offices. He had control of these measures of the State Police in his capacity as Inspector of the Security Police. The fact that he also simultaneously was Inspector of the
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SD does not mean that these things were to be carried out also by the SD offices.
THE PRESIDENT: Please continue, Dr. Gawlik.
DR. GAWLIK: I come to Document SD-24. It has already been presented under 1165-PS, and in this connection I beg to draw the attention of the Tribunal to the fact that this is signed by Mueller, who, as is known to the Tribunal, was the chief of Amt IV. This again shows that the Gestapo alone were competent. Document SD-25 is a circular decree from the Chief of the Security Police and the SD, dated 20 October 1942, which deals with the treatment of escaped Soviet prisoners of war, and again I beg to draw the attention of the Tribunal to the file reference, which is IV.
I will now quote:
"I request that the main offices of the State Police instruct all the police offices of the area, in the sense of Article 3 of the decree of the High Command of the Armed Forces of 5 May 1942, even if such has already been done." May I say to Your Lordship in this connection that if this had belonged to the tasks of the SD offices then the SD offices would also have had to be informed.
THE PRESIDENT: Dr. Gawlik, I don't think it is doing any good at all to argue upon each document. You must make your final speech at some time; and unless there is anything really very important in particular documents which you want to draw our attention to, so that we can really consider it before you make your final speech, you had much better leave the argument upon the documents until you get to your final speech. This is simply wasting our time without having any useful purpose at all.
DR. GAWLIK: Your Lordship, I have only ...
THE PRESIDENT: Well, up to the present you have commented upon each document as far as I can see, SD-22, SD-23, SD-24, SD-25, each one of them; and you are going through the book like that. Why don't you offer them all in evidence in bulk; and then if you want to draw our attention to any particular document for some particular purpose, as I say, because you think it is important and we should consider it before you come to make your final speech, do so. But don't spend time in just explaining what each document is. We have to hear all the other organizations before we come to hear your speech.
DR. GAWLIK: I only did it because I gathered from the question that there was some confusion with regard to the positions of the Chief of the Security Police and the SD and that of the commanders and of the inspectors.
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THE PRESIDENT: I only put a question to you because you were going through each document in turn and I couldn't understand what the documents were about.
DR. GAWLIK: Documents SD-27 and SD-28 also deal with the allegation on the part of the Prosecution regarding the "Bullet" decree. May I perhaps quote from Document Number SD-28:
"Insofar as escaped Soviet prisoners of war are brought bark to the camp according to this order, they are in every case to be turned over to the nearest office of the Gestapo."
The following documents, SD-29 to SD-42, deal with the accusation raised against the SD by the Prosecution, according to which the SD is to be held responsible for the setting up of concentration camps and determining their purpose, and for the transfer of politically and racially undesirable persons to concentration and extermination camps for the purpose of forced labor and mass extermination, Page 43 of the English trial brief. These documents show that the SD did not in any way participate in these measures; and, if I may, I should like to read one sentence of Document SD-29:
"In the future, restrictions of personal liberty" - I leave out what follows - "may be ordered only by the Secret State Police Office, to apply to the entire state territory, and by the Oberregierungspraesidenten, by the Police Commissioner in Berlin, and by the State Police branch offices, to apply to their respective jurisdiction."
From Document SD-31 I quote:
"Protective custody can be ordered for any person as a coercive measure of the Secret State Police in order to combat any activities hostile to the State and the people.... Only the Secret State Police is entitled to decree protective custody."
Document SD-37 deals with the allegation by the Prosecution according to which the SD also administered concentration camps. I shall, therefore, quote one sentence from the document:
"The camp commandant is in charge of the administration of a concentration camp and of all economic industries of the SS within its sphere of organization."
The administration of camps is also shown in Document SD-38.
THE PRESIDENT: I can't see any point in drawing our attention to that document at the present time.
DR. GAWLIK: Because in the trial brief the accusation has been raised against the SD that it also administered concentration camps.
THE PRESIDENT: But this document doesn't show that they did not.
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(Continued in part 2)
Defense of the SD
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Part 2:
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DR. GAWLIK: Document SD-37 is a decree, from the Chief of the SS Economic and Administration Main Office. That was a completely different office, which had nothing to do with the RSHA.
THE PRESIDENT: It seems to me to be quite vague as to who the camp commandants of concentration camps are. As I say, it doesn't seem to me to be a document which it is necessary to refer to at this stage.
DR. GAWLIK: I then refer to Document Number SD-39. There it says:
"The transfer of the Inspectorate of the concentration Camps to the Economic and Administration Main Office has been carried out with the full agreement of all the main offices concerned."
From this it becomes apparent that, first of all, concentration camps were under the jurisdiction of the Inspectorate of the Concentration Camps, and that this was then transferred to the SS Economic and administration Main Office. However, the SD belonged to the RSHA. The fact that concentration camps were under the jurisdiction of the Inspectorate of Concentration Camps also becomes apparent from the previous Document SD-38.
I beg to refer you to Document Number SD-40, in which it is explicitly stated ...
THE PRESIDENT: You are not taking the slightest notice of what I said to you. You are going through every document, or practically every document - not every document. You began this by saying that 29 to 42 dealt with concentration camps. Then you went to 37; then you went to 38; then you went to 39. They really don't help the Tribunal at all. You have told us that 29 to 42 referred to transfer to concentration camps. Well, that is quite enough. Unless there is a document which is really important, which we should study before we hear you make your speech, the summary that 29 to 42 deal with transfer to concentration camps is quite enough.
DR.GAWTLIK: I thought that I could assist the Tribunal by drawing their attention to the fact that concentration camps came under the SS Economic and Administration Main Office, not the RSHA. Only for that reason did I discuss these further documents.
Documents SD-43 to 49 deal with the accusation that the SD had participated in the deportation of citizens of the occupied territories for the purpose of forced labor, and that it had the task of supervising this forced labor. SD-43 shows the jurisdiction of the State Police.
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I quote from these documents only the following. From Document SD-43, under Figure 2:
"The tasks arising from the employment of Soviet Russians are to be comprised in a section attached to the State Police Main Offices. This section will be in charge of a criminal police official, who in turn will be under the constant personal supervision of the Chief of the State Police Main Offices."
I now quote one sentence from Appendix I to Document SD-43: "The recruitment of labor from the former Soviet Russian territory will be carried out by recruitment commissions from the Reich Ministry of Labor."
And:
"The recruitment commissions of the Reich Labor Ministry will set up reception camps."
Document SD-50 deals with the Commando Order. I beg to draw the tribunal's attention to the words "are to be handed over to the Security Police."
Documents SD-51 to 53 deal with the allegation on the part of the Prosecution that the SD had the task of protecting civilians if they had lynched airmen belonging to the United Nations.
Document SD-54 is already in evidence under USA-504 and 668-PS. It deals with the carrying out of the "Nacht und Nebel" Decree.
Documents SD-55 up to 57 deal with the assertion on the part of the Prosecution that the SD, in summary proceedings, had arrested citizens of occupied territories and sentenced them before the courts.
I beg to draw the attention of the Tribunal to Document SD-55, which is also L-316, and from that I shall quote one sentence: "These foreign nationals are in the future to be turned over to the Police."
I quote one regulation, one sentence, from Document SD-56: "Criminal actions by Jews will be punished by the Police."
Documents SD-58, 58a to c, deal with the assertion on the part of the Prosecution that the SD had participated in the confiscation by force and partitioning of public and private property.
I shall quote one sentence from Document SD-58: "The confiscation will be declared by the Main Offices of the State Police for the benefit of the Greater German Reich."
SD-9 and SD-60 deal with the third-degree methods during interrogations. In this connection I beg to draw the Tribunal's attention to filing reference Numeral IV, which deals with the jurisdiction of Amt IV, Secret State Police.
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In Document SD-60 the existing regulations applicable to the Security Police in the Government General are expressly specified.
Documents SD-60a up to 64 deal with the charge against the SD according to which crimes against humanity were committed. SD-60a to 63 deal with the persecution of Jews. In connection with Document SD-62 I beg to draw the attention of the Tribunal again to IV B and also to the signature "Mueller, Chief of the Secret State Police."
Document SD-64 refers to the charge against the SD in reference to the persecution of the Churches (Statement of Evidence VII B, Page 57). Documents SD-65 to 69 set forth the-legal regulations on the strength of which during the war a large portion of members of the SD Amt III and VI were called up for compulsory and emergency service; I should like to draw the attention of the Tribunal to the following sentence in Document SD-65:
"As employers of labor" - I omit a few words - "the SD sections can request the labor offices to place at their disposal replacement and supplementary manpower in accordance with the principles of allotment and use of the population during war."
SD-69 contains the punishment decreed for those who did not comply with such regulations.
I now come to Document SD-70, regarding which I have been unable to agree with the Prosecution. I ask, therefore, that first a decision be made as to whether or not I may introduce this document.
THE PRESIDENT: I have only got one document book.
DR. GAWLIK: It is in the appendix, Your Lordship. May I send up the original, Your Lordship?
THE PRESIDENT: Yes. Will you tell the Tribunal what it is about?
DR. GAWLIK: With this document I wish first of all to prove that the SD did not belong to the Police and did not belong to the SS. Furthermore, I wish to establish that the SD in the Reich and the organization of the Security Police and the SD outside the Reich were separate organizations, and I want to establish the tasks of Amt III. I beg to draw the Tribunal's attention to the fact that in Section IV the SD is mentioned under German Intelligence Service.
THE PRESIDENT: This is a book produced by the Allied Command, isn't it? Supreme Headquarters, Allied Expeditionary Forces, and you are offering that, is that it?
DR. GAWLIK: The General Secretary ...
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THE PRESIDENT: Has there been any formal application for this document?
DR. GAWLIK: Oh yes. The document is contained in the appendix to the document book. But I have not been able to reach an agreement with the Prosecution regarding this book.
THE PRESIDENT: We will hear the Prosecution about it.
LT. COMDR. HARRIS: May it please the Tribunal, we have no strong objection to this document. It is simply one of several which we discussed and we did not agree upon it.
Our objection is primarily to its value in so far as evidence is concerned. It is an intelligence book and therefore what is said in that book relates exclusively to matters of intelligence. It is dated April 1945. That is the date of its publication and quite obviously, as of that date, the information could not be available such as is now available to the Tribunal in a competent form.
DR. GAWIK: Your Lordship ...
THE PRESIDENT: The Tribunal will admit the book for what it is worth.
DR. GAWLIK: First of all, I beg to draw the Tribunal's attention to the fact that in this book the organization of the State and the Party is subdivided into four parts and the Intelligence Service is given a section of its own-Numeral IV. Numeral I is the State and Party; Numeral II is Para-Military Units; Numeral III is the German Police, and Numeral IV is the German Intelligence Service; the organization of Amter III and VI.
I then beg to draw the attention of the Tribunal to the fact that in the case of the SS it states that the SS consists of (1) Waffen SS, (2) the General SS, and (3) the Germanic SS. The SD Is not listed there. And I further beg to draw the Tribunal's attention to the fact that the Intelligence Service mentioned under Numeral IV is subdivided into SD Inland III, the organization of the Security Police and the SD outside of the Reich, and thirdly into Amter VI and VII. I And then I beg to draw the attention of the Tribunal particularly to the following statement regarding the activities of Amt III. There it say's:
"The information supplied by intelligence agents is digested into situation reports and" - and it goes on to say that "these reports are extraordinarily frank and sincere" - I translated that myself - "and contain a complete and unvarnished picture of the attitude and frame of mind in Germany."
I now pass on to my last document. That is a letter from an assistant teacher
(Studienassessor) Wolferts, and I submitted the
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letter because I had only just received it and I could not get an affidavit. The letter refers to Document 142. That is the well known document from Kochem, where the SD is supposed to have supervised the voting, and this letter mentions the evangelical clergyman, Alferich Wolferts, who voted "no," the vote being attached to the report. The daughter's letter shows that no measures were taken either by the Gestapo or the SD against the father, who has since died. I have now finished.
Your Lordship, should I read to the Tribunal a list of the documents or should I submit a written statement as to where the documents are to be found? Most of the documents have already been submitted.
THE PRESIDENT: I think we have got that. Haven't we got it at the beginning of your document book? We have an index.
DR. GAWLIK: Yes.
THE PRESIDENT: You mean to make a separate document of it?
DR. GAWLIK: I only have part of the documents, some of them are documents of the Prosecution, of course.
THE PRESIDENT: If you think it would serve a useful purpose, by all means submit your index under a separate number and deposit it with the Tribunal.
DR. GAWLIK: Very well.
* * * * *
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 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, 3,000 officially active persons and 30,000 purely honorary officeholders, who were collected under the designation SD in Amter 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 it 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 is divided 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
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investigate, (a); what prerequisites must be complied with in order that an organization or group can be declared criminal, (b), what conclusions can be drawn, from such findings. Finally I shall investigate, (c), whether the basis nulla poena, sine lege is opposed to a sentencing of the SD.
I start with the explanation of the word "SD," the Security Service. The word has no unequivocal meaning. The SD originally referred to:
(a) the SS Formation SD
(b) Amter III, VI, and VII
These were, as it is shown from the interrogations of the witness Hoeppner, two completely different groups of persons.
(a) The SS Formation SD included all persons who were members of the SS, or candidates, and were employed with the Security Police, or with other organizations of a police character (for instance, the 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 common service or at other general gatherings. They lacked any feeling of solidarity, since 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) Amter III, VI, and VII were the Domestic 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) Amter IV and V. Amt VI was merged on 12 November 1944 with the military Counter-Intelligence; both became the German Intelligence Service. I refer here to Document SD-1, and Schellenberg's affidavit, SD-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, nor was it part of the SS. The Reich Security Service was under the then Brigadefuehrer Rattenhuber, whose immediate superior was Himmler.
Amter III and VI of the Reich Security Main Office, the Domestic Intelligence Service and the Foreign Intelligence Service, are the ones indicted. Amt VII, although designated as SD together with
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Amter III and VI, is not indicted. I refer particularly to the minutes of the Commission of 23 July 1946. When speaking in my further statements of the SD, I mean by this only the indicted Amter III and VI. Amter 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 SD with reference to a period before that. Therefore, against the formal text of the Indictment, I shall also make the time before that the subject of my speech.
Amter III and VI were not indicted separately, but as 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 correct? To decide this question, a definition of the terms organization and group within the meaning of the Charter is required. The American and British Prosecutors, in their opening speeches of 28 February 1946, considered the following prerequisites to be 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.
On this definition, which is also in accord with German jurisprudence (Juristische Rundschau, 1928, Page 688), 1 shall base any 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 the beginning of 1934 this must be answered in the affirmative. I refer in particular to the witness Hoeppner. For this period, therefore, the arguments of 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. Nor is it true that the RSHA was a department of the SS. Here the Prosecution contradicts itself, since the Gestapo, which was Amt IV of the Reich Security Main Office, is not indicted as part of the SS, but separately.
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If the assertion is made in the trial brief against the SS, Page IX, that the SD was an espionage division of the SS, this is obviously, insofar 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 also have existed with the Police, and would have existed even with the Reserve Army, as from 1944. It is true that Himmler strove for the amalgamation of the SS, the SD, and the Police through the creation of a State Defense 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 disciplinary authority over the members of the Amter 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 percent of the regular and honorary members of the Organization SD were members of the SS; 90 percent 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 50 percent of the SD were women.
Aside from the required recognizable connection between the SS and the SD, a collective general purpose was also, lacking since 1934. 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 Charter. After this period the SS and SD were no longer united in one organization according to the Charter. Did the SS and the SD during the period after 1934 form a group according to Article 9 of the Charter? It may be doubtful whether the legislator really desired to establish a distinction from a legal point of view between, "group" and "organization." The wording of Article 9 of the Charter might indicate that none exists.
It says there that groups or organizations may be declared criminal organizations. A group, too, can therefore be declared a criminal organization. If, however, a distinction is assumed, I wish to state in this connection the following:
The Prosecution have stated that the concept of the group should be taken from ordinary parlance. When explaining this concept common sense should be used.
According to ordinary parlance a group is a numerically small community of persons. Of 15 to 20 persons we speak as a group, not, however, for larger unions. We speak of the fact that groups were formed within a party, or
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within an association. The group is part of the organization, according to ordinary parlance. A group, therefore, is a subdivision of an organization.
In this connection I should like to point to a finding of the Reich Supreme Court of 8 May 1922. This finding states that within a bigger association of persons following some general aims, a group may form in order 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 thereof - have united for activities which attempt to further the general aims in a forbidden manner. 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 have been a group, during the period since 1934, only if it had been part of the SS. This, however, as I already 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 Amter III and VI a centralized organization or group, or were they two separate organizations in the sense of the Charter?
The Amter III and VI had neither an identifiable relationship nor a collective general purpose. This held good for the time after 1939 when Amter 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. Amt III was the Domestic Intelligence Service, Amt 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 Amter III and VI were always completely different. The fusion of Amter III and VI in the Reich Security Main/Office does not suffice to prove a recognizable connection between both agencies, and to establish that they have a general task in common. The Secret State Police, Amt IV, and the Criminal Police, Amt 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 the Gestapo and the Criminal Police, through union within the RSHA, lose their character as independent organizations, the
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fusion of Amter III and VI failed to create a recognizable connection and common general task for both these 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, and Amter III and VI could really only have been two separate organizations, if one were further to establish voluntary membership. According to the speech of 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 voluntarily.
Let me point out in this respect that this juridical standpoint does not tally with German jurisdiction. In 1928 the Reich Supreme Court established that for an association, which would correspond to the Charter's concept of an organization, the voluntary contractual union of all members was required. I leave the question undecided as to whether an organization can be considered as existent even though a small percentage of the members did not belong to the society on the basis of a voluntary contractual union, because this point is not of importance as far as the SD is concerned.
The examination of evidence has revealed that during the war the membership of a considerable portion of the members of the SD was not voluntary, but based on a legal ordinance, in the form of compulsory service or emergency service. I refer to the deposition of the witness Hoeppner, who revealed that during the war an estimated 50 to 60 percent 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 a number of offices. Moreover I refer to the collective list of affidavits submitted by me on the subject.
The legal prescriptions on which, since 1939, compulsory service and emergency servic6 were based are to be found in Documents SD-65 to 69 submitted by me. I especially refer in this respect to Document SD-65, reproducing the circular of 16 October 1940, in the version issued on 1 July 1942. It is expressly stipulated in this circular that the SD regional agencies, as offices entitled to such claims, can ask for replacements of personnel. Likewise no withdrawal was possible during the war for those who joined the SD voluntarily. In this connection I refer to Affidavit SD-22. It is therefore not accurate for the Prosecution to maintain that membership in the SD was voluntary.
Consequently, on the basis of the juridical standpoint brought forward by the Prosecution, Amter III and VI cannot for the duration of the war be considered as organizations as conceived by the Charter. Neither- were they groups in the sense of the Charter,
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because a group, as part of the organization, requires the characteristics of an organization, including voluntary membership. As a result, the following can be concluded:
(1) Until 1934 or thereabouts the SD was part of the SS.
(2) In the period from 1934 to 1939, Domestic Intelligence and Foreign Intelligence were separate organizations.
(3) Ever since 1939 they were no organization or group 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 have 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 liable to punishment.
A further requirement, according to the Prosecution, is that the guilt of the members must be established. This means that 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 be declared criminal even though not all of its members knew about the punishable purposes. This contention I cannot accept.
Professor 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 there can be 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 Professor Exner, and I wish to point to the American Law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law expressly requires knowledge of illegitimate goals. In English law, too, it is a general practice that a person cannot be convicted unless it can be proven that guilty intent was involved. 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 Number 10 were drawn up differently; in other words, if by reason of Law Number 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.
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That is not the case, however. Law Number 10 provides for conviction of each member merely by reason 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 - which I previously referred to - according to which proof of objective facts is insufficient for conviction and 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 cognizance of illegality.
In this respect, too, I should like to refer to Professor Eimer's argument, whereby he established convincingly that not every serious crime - and only serious crimes are being tried here - must necessarily presuppose cognizance that something punishable is being done, but certainly, that it is wrong to act in that manner. The perpetrator must be cognizant of the fact that he commits an infraction of the law, or that he is acting in a manner considered naturally wrong. Professor Eimer has also established that these principles prevail not only in German penal law, but he also cited a number of examples from English law.
In other words, the members are not only required to know the goals or methods of the organizations, in accordance with Article 6, but must also be aware that these goals or these methods are illegal, or in any case contrary to law. In that connection the question arises whether all members must have such cognizance, or whether it suffices that only some of them have it. Because - for reasons which I already explained - only such a person is liable to punishment who was conscious of the illegality, and because such consciousness can no longer 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 Number 10, who did not have this consciousness. To renounce the requirement of cognizance of illegality would unduly raise the demands made on simple members.
The cognizance of illegality may equally be absent when a perpetrator executes an order given. The provision of Article 8 of the Charter merely eliminates superior orders as a general reason for
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(continued in part 3)
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DR. GAWLIK: Document SD-37 is a decree, from the Chief of the SS Economic and Administration Main Office. That was a completely different office, which had nothing to do with the RSHA.
THE PRESIDENT: It seems to me to be quite vague as to who the camp commandants of concentration camps are. As I say, it doesn't seem to me to be a document which it is necessary to refer to at this stage.
DR. GAWLIK: I then refer to Document Number SD-39. There it says:
"The transfer of the Inspectorate of the concentration Camps to the Economic and Administration Main Office has been carried out with the full agreement of all the main offices concerned."
From this it becomes apparent that, first of all, concentration camps were under the jurisdiction of the Inspectorate of the Concentration Camps, and that this was then transferred to the SS Economic and administration Main Office. However, the SD belonged to the RSHA. The fact that concentration camps were under the jurisdiction of the Inspectorate of Concentration Camps also becomes apparent from the previous Document SD-38.
I beg to refer you to Document Number SD-40, in which it is explicitly stated ...
THE PRESIDENT: You are not taking the slightest notice of what I said to you. You are going through every document, or practically every document - not every document. You began this by saying that 29 to 42 dealt with concentration camps. Then you went to 37; then you went to 38; then you went to 39. They really don't help the Tribunal at all. You have told us that 29 to 42 referred to transfer to concentration camps. Well, that is quite enough. Unless there is a document which is really important, which we should study before we hear you make your speech, the summary that 29 to 42 deal with transfer to concentration camps is quite enough.
DR.GAWTLIK: I thought that I could assist the Tribunal by drawing their attention to the fact that concentration camps came under the SS Economic and Administration Main Office, not the RSHA. Only for that reason did I discuss these further documents.
Documents SD-43 to 49 deal with the accusation that the SD had participated in the deportation of citizens of the occupied territories for the purpose of forced labor, and that it had the task of supervising this forced labor. SD-43 shows the jurisdiction of the State Police.
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I quote from these documents only the following. From Document SD-43, under Figure 2:
"The tasks arising from the employment of Soviet Russians are to be comprised in a section attached to the State Police Main Offices. This section will be in charge of a criminal police official, who in turn will be under the constant personal supervision of the Chief of the State Police Main Offices."
I now quote one sentence from Appendix I to Document SD-43: "The recruitment of labor from the former Soviet Russian territory will be carried out by recruitment commissions from the Reich Ministry of Labor."
And:
"The recruitment commissions of the Reich Labor Ministry will set up reception camps."
Document SD-50 deals with the Commando Order. I beg to draw the tribunal's attention to the words "are to be handed over to the Security Police."
Documents SD-51 to 53 deal with the allegation on the part of the Prosecution that the SD had the task of protecting civilians if they had lynched airmen belonging to the United Nations.
Document SD-54 is already in evidence under USA-504 and 668-PS. It deals with the carrying out of the "Nacht und Nebel" Decree.
Documents SD-55 up to 57 deal with the assertion on the part of the Prosecution that the SD, in summary proceedings, had arrested citizens of occupied territories and sentenced them before the courts.
I beg to draw the attention of the Tribunal to Document SD-55, which is also L-316, and from that I shall quote one sentence: "These foreign nationals are in the future to be turned over to the Police."
I quote one regulation, one sentence, from Document SD-56: "Criminal actions by Jews will be punished by the Police."
Documents SD-58, 58a to c, deal with the assertion on the part of the Prosecution that the SD had participated in the confiscation by force and partitioning of public and private property.
I shall quote one sentence from Document SD-58: "The confiscation will be declared by the Main Offices of the State Police for the benefit of the Greater German Reich."
SD-9 and SD-60 deal with the third-degree methods during interrogations. In this connection I beg to draw the Tribunal's attention to filing reference Numeral IV, which deals with the jurisdiction of Amt IV, Secret State Police.
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In Document SD-60 the existing regulations applicable to the Security Police in the Government General are expressly specified.
Documents SD-60a up to 64 deal with the charge against the SD according to which crimes against humanity were committed. SD-60a to 63 deal with the persecution of Jews. In connection with Document SD-62 I beg to draw the attention of the Tribunal again to IV B and also to the signature "Mueller, Chief of the Secret State Police."
Document SD-64 refers to the charge against the SD in reference to the persecution of the Churches (Statement of Evidence VII B, Page 57). Documents SD-65 to 69 set forth the-legal regulations on the strength of which during the war a large portion of members of the SD Amt III and VI were called up for compulsory and emergency service; I should like to draw the attention of the Tribunal to the following sentence in Document SD-65:
"As employers of labor" - I omit a few words - "the SD sections can request the labor offices to place at their disposal replacement and supplementary manpower in accordance with the principles of allotment and use of the population during war."
SD-69 contains the punishment decreed for those who did not comply with such regulations.
I now come to Document SD-70, regarding which I have been unable to agree with the Prosecution. I ask, therefore, that first a decision be made as to whether or not I may introduce this document.
THE PRESIDENT: I have only got one document book.
DR. GAWLIK: It is in the appendix, Your Lordship. May I send up the original, Your Lordship?
THE PRESIDENT: Yes. Will you tell the Tribunal what it is about?
DR. GAWLIK: With this document I wish first of all to prove that the SD did not belong to the Police and did not belong to the SS. Furthermore, I wish to establish that the SD in the Reich and the organization of the Security Police and the SD outside the Reich were separate organizations, and I want to establish the tasks of Amt III. I beg to draw the Tribunal's attention to the fact that in Section IV the SD is mentioned under German Intelligence Service.
THE PRESIDENT: This is a book produced by the Allied Command, isn't it? Supreme Headquarters, Allied Expeditionary Forces, and you are offering that, is that it?
DR. GAWLIK: The General Secretary ...
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THE PRESIDENT: Has there been any formal application for this document?
DR. GAWLIK: Oh yes. The document is contained in the appendix to the document book. But I have not been able to reach an agreement with the Prosecution regarding this book.
THE PRESIDENT: We will hear the Prosecution about it.
LT. COMDR. HARRIS: May it please the Tribunal, we have no strong objection to this document. It is simply one of several which we discussed and we did not agree upon it.
Our objection is primarily to its value in so far as evidence is concerned. It is an intelligence book and therefore what is said in that book relates exclusively to matters of intelligence. It is dated April 1945. That is the date of its publication and quite obviously, as of that date, the information could not be available such as is now available to the Tribunal in a competent form.
DR. GAWIK: Your Lordship ...
THE PRESIDENT: The Tribunal will admit the book for what it is worth.
DR. GAWLIK: First of all, I beg to draw the Tribunal's attention to the fact that in this book the organization of the State and the Party is subdivided into four parts and the Intelligence Service is given a section of its own-Numeral IV. Numeral I is the State and Party; Numeral II is Para-Military Units; Numeral III is the German Police, and Numeral IV is the German Intelligence Service; the organization of Amter III and VI.
I then beg to draw the attention of the Tribunal to the fact that in the case of the SS it states that the SS consists of (1) Waffen SS, (2) the General SS, and (3) the Germanic SS. The SD Is not listed there. And I further beg to draw the Tribunal's attention to the fact that the Intelligence Service mentioned under Numeral IV is subdivided into SD Inland III, the organization of the Security Police and the SD outside of the Reich, and thirdly into Amter VI and VII. I And then I beg to draw the attention of the Tribunal particularly to the following statement regarding the activities of Amt III. There it say's:
"The information supplied by intelligence agents is digested into situation reports and" - and it goes on to say that "these reports are extraordinarily frank and sincere" - I translated that myself - "and contain a complete and unvarnished picture of the attitude and frame of mind in Germany."
I now pass on to my last document. That is a letter from an assistant teacher
(Studienassessor) Wolferts, and I submitted the
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letter because I had only just received it and I could not get an affidavit. The letter refers to Document 142. That is the well known document from Kochem, where the SD is supposed to have supervised the voting, and this letter mentions the evangelical clergyman, Alferich Wolferts, who voted "no," the vote being attached to the report. The daughter's letter shows that no measures were taken either by the Gestapo or the SD against the father, who has since died. I have now finished.
Your Lordship, should I read to the Tribunal a list of the documents or should I submit a written statement as to where the documents are to be found? Most of the documents have already been submitted.
THE PRESIDENT: I think we have got that. Haven't we got it at the beginning of your document book? We have an index.
DR. GAWLIK: Yes.
THE PRESIDENT: You mean to make a separate document of it?
DR. GAWLIK: I only have part of the documents, some of them are documents of the Prosecution, of course.
THE PRESIDENT: If you think it would serve a useful purpose, by all means submit your index under a separate number and deposit it with the Tribunal.
DR. GAWLIK: Very well.
* * * * *
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 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, 3,000 officially active persons and 30,000 purely honorary officeholders, who were collected under the designation SD in Amter 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 it 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 is divided 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
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investigate, (a); what prerequisites must be complied with in order that an organization or group can be declared criminal, (b), what conclusions can be drawn, from such findings. Finally I shall investigate, (c), whether the basis nulla poena, sine lege is opposed to a sentencing of the SD.
I start with the explanation of the word "SD," the Security Service. The word has no unequivocal meaning. The SD originally referred to:
(a) the SS Formation SD
(b) Amter III, VI, and VII
These were, as it is shown from the interrogations of the witness Hoeppner, two completely different groups of persons.
(a) The SS Formation SD included all persons who were members of the SS, or candidates, and were employed with the Security Police, or with other organizations of a police character (for instance, the 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 common service or at other general gatherings. They lacked any feeling of solidarity, since 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) Amter III, VI, and VII were the Domestic 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) Amter IV and V. Amt VI was merged on 12 November 1944 with the military Counter-Intelligence; both became the German Intelligence Service. I refer here to Document SD-1, and Schellenberg's affidavit, SD-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, nor was it part of the SS. The Reich Security Service was under the then Brigadefuehrer Rattenhuber, whose immediate superior was Himmler.
Amter III and VI of the Reich Security Main Office, the Domestic Intelligence Service and the Foreign Intelligence Service, are the ones indicted. Amt VII, although designated as SD together with
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Amter III and VI, is not indicted. I refer particularly to the minutes of the Commission of 23 July 1946. When speaking in my further statements of the SD, I mean by this only the indicted Amter III and VI. Amter 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 SD with reference to a period before that. Therefore, against the formal text of the Indictment, I shall also make the time before that the subject of my speech.
Amter III and VI were not indicted separately, but as 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 correct? To decide this question, a definition of the terms organization and group within the meaning of the Charter is required. The American and British Prosecutors, in their opening speeches of 28 February 1946, considered the following prerequisites to be 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.
On this definition, which is also in accord with German jurisprudence (Juristische Rundschau, 1928, Page 688), 1 shall base any 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 the beginning of 1934 this must be answered in the affirmative. I refer in particular to the witness Hoeppner. For this period, therefore, the arguments of 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. Nor is it true that the RSHA was a department of the SS. Here the Prosecution contradicts itself, since the Gestapo, which was Amt IV of the Reich Security Main Office, is not indicted as part of the SS, but separately.
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If the assertion is made in the trial brief against the SS, Page IX, that the SD was an espionage division of the SS, this is obviously, insofar 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 also have existed with the Police, and would have existed even with the Reserve Army, as from 1944. It is true that Himmler strove for the amalgamation of the SS, the SD, and the Police through the creation of a State Defense 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 disciplinary authority over the members of the Amter 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 percent of the regular and honorary members of the Organization SD were members of the SS; 90 percent 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 50 percent of the SD were women.
Aside from the required recognizable connection between the SS and the SD, a collective general purpose was also, lacking since 1934. 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 Charter. After this period the SS and SD were no longer united in one organization according to the Charter. Did the SS and the SD during the period after 1934 form a group according to Article 9 of the Charter? It may be doubtful whether the legislator really desired to establish a distinction from a legal point of view between, "group" and "organization." The wording of Article 9 of the Charter might indicate that none exists.
It says there that groups or organizations may be declared criminal organizations. A group, too, can therefore be declared a criminal organization. If, however, a distinction is assumed, I wish to state in this connection the following:
The Prosecution have stated that the concept of the group should be taken from ordinary parlance. When explaining this concept common sense should be used.
According to ordinary parlance a group is a numerically small community of persons. Of 15 to 20 persons we speak as a group, not, however, for larger unions. We speak of the fact that groups were formed within a party, or
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within an association. The group is part of the organization, according to ordinary parlance. A group, therefore, is a subdivision of an organization.
In this connection I should like to point to a finding of the Reich Supreme Court of 8 May 1922. This finding states that within a bigger association of persons following some general aims, a group may form in order 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 thereof - have united for activities which attempt to further the general aims in a forbidden manner. 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 have been a group, during the period since 1934, only if it had been part of the SS. This, however, as I already 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 Amter III and VI a centralized organization or group, or were they two separate organizations in the sense of the Charter?
The Amter III and VI had neither an identifiable relationship nor a collective general purpose. This held good for the time after 1939 when Amter 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. Amt III was the Domestic Intelligence Service, Amt 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 Amter III and VI were always completely different. The fusion of Amter III and VI in the Reich Security Main/Office does not suffice to prove a recognizable connection between both agencies, and to establish that they have a general task in common. The Secret State Police, Amt IV, and the Criminal Police, Amt 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 the Gestapo and the Criminal Police, through union within the RSHA, lose their character as independent organizations, the
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fusion of Amter III and VI failed to create a recognizable connection and common general task for both these 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, and Amter III and VI could really only have been two separate organizations, if one were further to establish voluntary membership. According to the speech of 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 voluntarily.
Let me point out in this respect that this juridical standpoint does not tally with German jurisdiction. In 1928 the Reich Supreme Court established that for an association, which would correspond to the Charter's concept of an organization, the voluntary contractual union of all members was required. I leave the question undecided as to whether an organization can be considered as existent even though a small percentage of the members did not belong to the society on the basis of a voluntary contractual union, because this point is not of importance as far as the SD is concerned.
The examination of evidence has revealed that during the war the membership of a considerable portion of the members of the SD was not voluntary, but based on a legal ordinance, in the form of compulsory service or emergency service. I refer to the deposition of the witness Hoeppner, who revealed that during the war an estimated 50 to 60 percent 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 a number of offices. Moreover I refer to the collective list of affidavits submitted by me on the subject.
The legal prescriptions on which, since 1939, compulsory service and emergency servic6 were based are to be found in Documents SD-65 to 69 submitted by me. I especially refer in this respect to Document SD-65, reproducing the circular of 16 October 1940, in the version issued on 1 July 1942. It is expressly stipulated in this circular that the SD regional agencies, as offices entitled to such claims, can ask for replacements of personnel. Likewise no withdrawal was possible during the war for those who joined the SD voluntarily. In this connection I refer to Affidavit SD-22. It is therefore not accurate for the Prosecution to maintain that membership in the SD was voluntary.
Consequently, on the basis of the juridical standpoint brought forward by the Prosecution, Amter III and VI cannot for the duration of the war be considered as organizations as conceived by the Charter. Neither- were they groups in the sense of the Charter,
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because a group, as part of the organization, requires the characteristics of an organization, including voluntary membership. As a result, the following can be concluded:
(1) Until 1934 or thereabouts the SD was part of the SS.
(2) In the period from 1934 to 1939, Domestic Intelligence and Foreign Intelligence were separate organizations.
(3) Ever since 1939 they were no organization or group 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 have 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 liable to punishment.
A further requirement, according to the Prosecution, is that the guilt of the members must be established. This means that 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 be declared criminal even though not all of its members knew about the punishable purposes. This contention I cannot accept.
Professor 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 there can be 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 Professor Exner, and I wish to point to the American Law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law expressly requires knowledge of illegitimate goals. In English law, too, it is a general practice that a person cannot be convicted unless it can be proven that guilty intent was involved. 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 Number 10 were drawn up differently; in other words, if by reason of Law Number 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.
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That is not the case, however. Law Number 10 provides for conviction of each member merely by reason 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 - which I previously referred to - according to which proof of objective facts is insufficient for conviction and 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 cognizance of illegality.
In this respect, too, I should like to refer to Professor Eimer's argument, whereby he established convincingly that not every serious crime - and only serious crimes are being tried here - must necessarily presuppose cognizance that something punishable is being done, but certainly, that it is wrong to act in that manner. The perpetrator must be cognizant of the fact that he commits an infraction of the law, or that he is acting in a manner considered naturally wrong. Professor Eimer has also established that these principles prevail not only in German penal law, but he also cited a number of examples from English law.
In other words, the members are not only required to know the goals or methods of the organizations, in accordance with Article 6, but must also be aware that these goals or these methods are illegal, or in any case contrary to law. In that connection the question arises whether all members must have such cognizance, or whether it suffices that only some of them have it. Because - for reasons which I already explained - only such a person is liable to punishment who was conscious of the illegality, and because such consciousness can no longer 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 Number 10, who did not have this consciousness. To renounce the requirement of cognizance of illegality would unduly raise the demands made on simple members.
The cognizance of illegality may equally be absent when a perpetrator executes an order given. The provision of Article 8 of the Charter merely eliminates superior orders as a general reason for
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(continued in part 3)
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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 by 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 only have this sense and this meaning.
The question whether the plea of superior orders furnishes grounds for exoneration is not uncontested in international writings. Article 8 of the Charter rules on this controversial question that the perpetrator cannot plead superior orders. Therefore I do not need to discuss this controversial question in greater detail. All authors, however, who deal with this question assume that the subordinate knew that the order was illegal and unjust. They deal mainly with the question as to whether the subordinate, although he was aware of the illegality and unlawfulness of the order, had grounds for exemption from punishment. It is to be concluded here from that in the absence of such knowledge, which may also be founded on an order, the perpetrator is exempt from punishment.
The French Prosecutor also stated that superior orders do not cover the execution 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, however, he commits the same deed on the strength of an order, he would have to be punished, unless one were to agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. Orders can, however, place the perpetrator under a state of compulsion, and for that reason exclude guilt.
It is a general rule of English law that any person is protected against punishment who has committed crimes under the stress of force employed by other people, and not as a result of unhindered and deliberate intention. According to English law this protection also exists in the relationship between the state and society, such as between the supreme power and the subjects of the state, and obedience to the ruling powers will act as an excuse if bodily force is exercised or imminent. Thus I arrive at the following result: An organization could only be declared criminal if
(1) its purposes or expedients correspond with the requirements of Article 6 of the Charter;
(2) all members knew these purposes and expedients;
(3) all members were conscious of the fact that these purposes were illegal or unjust.
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This result gives rise to two further questions:
1. A legal one, namely, whether the conviction of an organization can be brought into harmony with the general rules*of international law and national law.
2. A factual one, namely, whether the necessary elements of the case can be established at all for all members of the SD, and whether a trial of this kind can be held at, all.
Before I begin to discuss the legal question I take the liberty of drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing so. It may be assumed that the legislators pursued a purpose in not prescribing the conviction of the organizations as compulsory even if all the necessary conditions were fulfilled. It may be presumed that the legislators who promulgated the Charter desired to submit Article 9 to an examination under the rules of international law.
By this the authors of the Charter apparently, with regard to Article 9, wished to transfer the judge's right of examination to the International Military Tribunal. I expressly emphasize, in order to avoid any misunderstandings, that this refers only to Article 9, because in other respects the Charter is a mandatory rule. The International Military Tribunal was to examine Article 9 to determine whether this rule constitutes a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law especially points to the existence of such an intention. The question as to whether a formal law is in contradiction to other laws cannot be immediately investigated when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars.
English constitutional law, with its special concept of the constitution, does not recognize the judge's right of examination. The Union of the Socialist Soviet Republics does not recognize the judge's right of examination either. In France the judge's right of examination is rejected by the courts, but is almost unanimously accepted by legal scholars. In the United States the judge's right of examination is generally recognized. The courts of the United States are required to compare the laws which have been issued with the Constitution, and to discover the true intentions of both.
I believe that the international community of nations comes close to the federal system of the United States, and that therefore the International Military Tribunal is justified in examining the relationship of Article 9 of the Charter to the generally recognized
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rules of international law and also the laws of individual nations which, according to the statements of Justice Jackson, are likewise to form the legal foundation for the decision.
Concerning Article 9 of the Charter, it must be added that it is a precept unknown to the previous laws. It can obviously be presumed, and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts of prevailing international law and bring it into legal form, and that in doing so they certainly had no intention of placing themselves in opposition to the rules of international law. All written law, however, requires careful and scholarly examination and revision, to allow a reasonable application in practice to become possible. Only in this way will the courts be placed in a position to reach verdicts which are really in accordance with the facts. The International Military Tribunal, therefore, on the basis of the judge's right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter to the general basic legal principles of international law and the national laws of civilized nations.
In this connection we have to start from the legal significance of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Article 9 varies basically from the corporate penal law as introduced, for example, into English law by Section 2 of the Interpretation Act of 1889. Punishment according to corporate penal law is directed at the organization. According to Article 9, the sentence can no longer affect the organizations, because they have been dissolved and no longer exist. The sentence is directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings according to Law Number 10.
Two other important differences must be mentioned:
(1) According to corporate penal law, especially English corp6rate penal law, no imprisonment sentence is permitted.
Article 9 is, nevertheless, intended as a basis for imprisonment sentences and even death sentences, as provided in Law Number 10.
(2) According to English corporate penal law, no crimes and offenses can be prosecuted.
If we examine English jurisdiction, we find that corporations have been condemned only on account of transgressions, especially on account of neglect of public obligations, such as failure to repair streets or bridges although such an obligation existed, blocking of a street by a railway company, or for publishing a lampoon.
Article 9, on the other hand, deals with major crimes. Article 9 of the Charter does not accordingly amount to the introduction of corporate penal law into international criminal law.
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A number of foreign laws have been quoted by the Prosecution according to which it should be permissible to declare an organization criminal: from American law, the Law of 28 June 1940 and the "California Act"; from English law, the "British India Act Number 30" of 14 November 1936; from French law, the Law of 18 December 1893, Section 265 of the French Penal Law Code; Section 1 of the Law of 26 August 1944; and two legal decisions from Russian law.
THE PRESIDENT: Dr. Gawlik, I believe you are reading too rapidly.
DR. GAWLIK: The following German laws were also cited:
(1) Articles 128 and 129 of the German Criminal Code of 1871,
(2) The Law of 22 March 1921,
(3) The Law of 21 July 1922.
In this connection it should be noted that according to all these laws only individual persons may be prosecuted, and that in the proceedings against such prosecuted individuals it may be established that the organization has a criminal character, without this having a legal effect upon the non-prosecuted members. It may thereby be established in proceedings against some members of the organization that the organization pursues aims contrary to law, while in subsequent proceedings against other members this may be denied. Non-applicability of sentence against members who are not accused is however the decisive factor which distinguishes these laws from Article 9 of the Charter. The decision according to Article 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before military tribunals, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective establishment of the objective facts in the case, but furthermore an effective establishment of guilt for all the members, including consciousness of illegality, that is to say, a legal effect of hitherto unique significance in penal law.
Thus a verdict based on Article 9 does not amount to a further development of corporate law, nor to the sentencing of individual persons because of the membership in a criminal community of persons, but to a conviction of the collective members of the organizations, because the essential facts, which shall form the basis for later judgments in subsequent proceedings according to Law Number 10, have been effectively established for the collective members. In subsequent proceedings the sole question of membership must be examined. In other words: we are here concerned with the collective judgment of all members of the organization.
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What is the attitude of international law scholars toward the question of collective conviction?
The majority of the American, English, and French international law scholars reject collective conviction as "arbitrary and contrary to the elementary principles of justice"
(Garner in International Law and the World War, Volume 1, Page -154). The well-known authority on international law, Garner, rightly states that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons, Garner goes on to explain that for that reason a collective conviction should never be employed as long as other just measures fulfill the same purpose. The French legal scholars Bonfils and de Martons have condemned the basic principle of collective punishment in detailed dissertations, expressing the hope that collective conviction would disappear altogether.
These statements should be fully concurred in.
In the proceedings against the organizations past crimes are to be atoned for. In order to achieve this aim, however, the indirect way of convicting the organizations is not necessary. That aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as has been done in a large number of cases.
On the basis of the general basic legal principles of international law and the national laws of civilized states, therefore, use should be made, of the optional rule of Article 9, by refraining from declaring the accused organizations to be criminal. The persons responsible for the crimes can be punished in individual proceedings.
There now arises the question whether it is at all possible in this Trial to establish all the required facts.
To do so would appear impossible. Even to furnish proof that all members of the SD were informed of certain criminal goals would appear impossible. Guilt can always be established for the individual only. All guilt is bound to a person. If many persons participate in some offense or crime, the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, or complicity in a concrete and well-defined manner. It seems entirely impossible, however, to determine whether all members were cognizant of the illegality and unrighteousness of the goals and tasks. In this connection we must also examine what was to be the standard for members of the SD in determining whether the goals or means were illegitimate or unrighteous.
According to the German law in force while the organization was in existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that
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the German legal measures conflicted in part with the provisions of international law, and that therefore goals and methods - while not illegal or wrong according to the law of the German State - can nevertheless be considered illegitimate and unrighteous according to the concepts of international law. But this is not the decisive point. What does count is whether the members, that is, all the members, recognized the illegality and unrighteousness of goals and methods which were legitimate according to German laws.
The well-known teacher of international law, Oppenheim, has stated that the law cannot demand that an individual be punished for a deed which he was forced to commit in virtue of the law. If the best-known authorities on international law cannot agree as to what is right and wrong, can one demand from ordinary members of the organizations that they recognize it?
The capital crimes which were discussed during the Trial, for instance, the extermination of the Jews, and the inhuman treatment in the concentration camps, require no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the question as to whether primarily the perpetrators, and furthermore all members, knew of the injustice and the illegality, cannot lightly be answered in the affirmative. Particularly where acts and deeds were committed during the war it is very difficult to decide whether they were recognized as illegal and unjust. In times of peace everybody knows that he must not kill, and that another's property is inviolable. Such acts are, however, partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain circumstances.
The individual who commits the deed, together with all the members, therefore has consciousness of illegal acts committed during the war only as long as he is aware of the limitations which are set by law. A strict examination of these points in the case of the organization is particularly necessary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of international law are unknown. I believe that this is also the opinion of the Chief Prosecutor for the United States who explained in his opening speech of 20 November 1945 that a soldier assigned to an execution squad could not hold an investigation as to whether the execution was legally admissible.
While examining the question concerning the knowledge of the members as to illegality and injustice, the mistake should not be made of assuming that the simple members of the organization had the same knowledge which we now have gained in this Trial on the basis of documents coming from secret archives.
Particularly in
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the proceedings against the SD a great number of secret papers, documents, and regulations have been produced, which were only intended for the internal administration of individual offices. The content of these papers, therefore, testifies that they had not been brought to the knowledge of all members, but only to that of a small definite circle. In this connection I wish to refer for example to the well-known Document L-180, the Stahlecker report, dealing with the activity of Einsatzgruppe A.
It can, therefore, already be said that a great part of the evidence produced by the Prosecution does not suffice for the collective conviction of the members of the SD. The documents do not even prove that the offenders themselves were conscious of illegality, because, in order to establish this, one would have to be familiar, with the particular circumstances of the act. And it must still be proved that the members of the SD knew of these acts and recognized that the acts were illegal, or at least wrong.
I do not consider it necessary to discuss this question in the second part of my statement with regard to each act with which the SD had been charged; in my opinion it is sufficient that I have described the problem in general, and I will leave the examination in individual cases to the Tribunal. In each individual case, however, with which the SD is charged, and with each document submitted against the SD, the Tribunal ...
THE PRESIDENT: Would that be a convenient point to break off?
[The Tribunal adjourned until 27 August 1946 at 1000 hours.]
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vol. 22
THE PRESIDENT: The Tribunal will await the communication from the Prosecution and they will consider the matter.
Dr. Gawlik.
DR. HANS GAWLIK (Counsel for the SD): May it please the High Tribunal: Yesterday I paused at the question whether it would be possible at all to determine those prerequisites which are necessary in order to declare an organization criminal. I shall continue.
My statements made hitherto should lead to the conclusion that the evidence of guilt cannot be summarily determined by drawing conclusions from the number of crimes and the type of crime committed, from the knowledge of all the members of these deeds, and from their consciousness of their illegality. It is, on the contrary, necessary that proof of the knowledge and consciousness of illegality should only be considered in special proceedings in the case of each individual member of the organizations; since everything depends on the circumstances, the individual members must be given the opportunity to reply to them. Even if the members might have had knowledge of the real facts of individual criminal acts, that does not prove that they also knew that their organizations were involved therein.
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Now I shall turn to the next section.
A condemnation of the organizations is furthermore in opposition with the principle of penal law: nulla poena sine lege. This principle has already been treated in detail by the defense counsel of the principal defendants. I shall not repeat these statements, but only point out briefly the following points of view.
In his Opening Statement, on 20 November 1945, the American Chief Prosecutor said that the defendants could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the organizations, because the members had no influence on the legislation but were themselves objects of the legislation.
The Prosecutor of the Union of Socialist Soviet Republics pointed out, in the discussion of this principle in his final speech on 29 July 1946, that the Charter of the International Military Tribunal was an inviolable law and absolutely had to be carried out.
The Charter is, however, in no way violated and will also be carried out if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, for Article 9 of the Charter is merely an optional regulation. The Chief Prosecutor of the Union of Socialist Soviet Republics further asserted that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples. International agreements and laws of civilized peoples only show that punishable offenses must be judged in individual proceedings. The principle of collective judgment of groups of persons was up to now unknown in international law.
On the contrary it is denied, as I said before, by the theory of international law. Until the first World War it was the custom to include in peace treaties amnesty clauses for war crimes committed. After the first World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of the laws of war. I refer to Fenwick in International Law, 1924, Page 578.
The declaration of the chiefs of state of the United States of America, Great Britain, and the Union of Socialist Soviet Republics of 2 November 1943, mentioned by the Prosecutor of the Socialist Soviet Republics, orders expressly that individuals shall be made responsible. This declaration contains no statement to the effect that the collective condemnation of groups of persons is permissible.
Article 9 of the Charter is therefore not the expression of an internationally recognized legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921, as proposed by the Chief
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Prosecutor of the United States, or even for the time from 1933 on, as proposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29 July 1946.
The condemnation of the organizations is therefore in opposition to the principle nulla poena sine lege.
In the second section of Part 1, I come to the discussion of the questions of procedure resulting from Article 9 of the Charter. In legal procedure, according to Article 9 of the Charter, an organization or group may be said to be criminal
(a) In the trial against a member of such organization or group, and
(b) in connection with any action by reason of which the accused is condemned.
Both these hypotheses must be realized. Of the principal defendants, only the Defendant Kaltenbrunner, Chief of the Security Police and SD, is involved as member of the SD.
It can be gathered from the words, "in connection with any action by reason of which the accused is sentenced," that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. This, however, cannot be the meaning and purpose of this definition, as I should like to illustrate by the law of the United States of 28 June 1940, already quoted.
When persons belonging to one of the associations mentioned in the act of 28 June 1940 are arraigned before a tribunal in several different proceedings, an admittedly extensive examination of evidence, though doubtful in its results, must be effected in each proceeding to determine whether the association to which the person belongs fulfills the primary conditions contained in the above legal stipulations. Then it could happen that in one trial it is established that the organization had pursued the purpose named in the law of 28 June 1940, while in other trials the result of the testimony is not considered sufficient. In order to avoid these difficulties it could be decreed by a provision of the law that the trial be held against one or several members of the organization, while the other members who have not yet been accused are given the possibility of a legal hearing, and if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940, the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfills the purpose mentioned in the decree of 28 June 1940. Such provisions would achieve the following:
(1) the testimony on the aims, tasks, and activities of the organization would be taken only once, and
(2) contradictory decisions on the objective tasks, aims, and activities of the organization would be avoided.
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This purpose is apparently also the intention of Article 9 of the Charter. The situation is to be avoided whereby the military tribunals in the individual occupation zones, in the proceedings against the members of the accused organizations, would have to examine the question of the character of the organization each time by lengthy examination of evidence and perhaps come to contradictory decisions. To be sure, it would ...
THE PRESIDENT: Dr. Gawlik, are you arguing that if any individual were tried under this act of June 1940, that the declaration of this Court under Article 9 would have any effect in the Trial under that act of June 1940? Is that your argument?
DR. GAWLIK: No, Your Lordship. I wanted to explain the stipulation laid down in Article 9 in line with the law of June 1940. The law of June 1940 is something quite different and has no connection with Article 9. 1 wanted to explain in connection with the law of June 1940, which was mentioned by the American Chief Prosecutor, what importance a stipulation would have such as is set down in Article 9.
THE PRESIDENT: What importance are you suggesting it would have?
DR. GAWLIK: Article 9, as I shall set forth, has the following significance:
One member must be accused because of his membership in an organization, an organization which pursues crimes according to Article 6 of this Charter. Then, in this trial against one member, all the facts must be cited against this member because of his membership in the organization, and then the facts that have been ascertained, about the aims, tasks, and activities of the organization, if a conviction is obtained, can be used in the trials against the other members; but only the objective facts, not the guilt, for guilt is an individual matter.
Your Lordship, may I cite an explanatory example. Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because the SD was part of an organization which permitted crimes against the peace, the laws of war, and against humanity. Now, if this member is punished because of his membership in an organization of that nature, you are objectively determining that the SD is an organization of that kind, therefore the objective findings concerning the aims, tasks, and activities of the SD can be used in the proceedings against the other members.
THE PRESIDENT: Well, I think I follow that argument, based upon the first paragraph of Article 9, is that right? It is based upon your construction or interpretation of the first paragraph of Article 9?
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DR. GAWLIK: Yes.
THE PRESIDENT: Are you saying that a decision of this Tribunal upon that would have any importance of effect upon a trial under the act of 1940?
DR. GAWLIK: No, that is only an example.
MR. FRANCIS BIDDLE (Member of the Tribunal for the United States): The law of 1940 is the Sedition Law, is it not? That is the Sedition Law of 1940?
DR. GAWLIK: Yes.
MR. BIDDLE: You say the Prosecution in their argument depended on that act to show that this type of group condemnation was used in other countries -- they made that analogy?
DR. GAWLIK: Yes, I know...
MR. BIDDLE: Yes, you say that is not a true analogy.
DR. GAWLIK: Yes.
MR. BIDDLE: And the reason you say that is that if one individual were tried under the act of 1940 -- do you follow?
DR. GAWLIK: Yes.
MR. BIDDLE: First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, the court then would have to decide first the purposes of the organization, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, you say also that, if a second individual were, at a later time, tried under that act, the Government would again have to prove ...
DR. GAWLIK: Yes.
MR. BIDDLE: ... that the purpose of the organization was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: And therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect...
DR. GAWLIK: Yes.
MR. BIDDLE: ... on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon law because the finding of a fact against one individual cannot affect the trial against the second individual, is that your argument?
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DR. GAWLIK: Yes. Certainly it would be sufficient for this purpose if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization, and the determination of guilt were left to the subsequent proceedings.
With regard to Law Number 10, as was pointed out already, the condemnation of the organizations according to Article 9 of the Charter contains not only the objective statement of the aims, tasks, and activities of the organizations, but beyond this purpose the confirmation of the guilt of the members. Consequently, Article 9 of the Charter, besides the legal material confirmation of objective and subjective factual evidence, also has a legal criminal meaning. This juridical aim, which is evidently pursued by Article 9 of the Charter, can, however, only be attained if this decision is so interpreted that the member is sentenced on account of membership in an organization whose aims or expedients are punishable according to Article 6 of the Charter, and not on account of any action. Any other interpretation would have no meaning and no purpose. Only a conviction of the Defendant Kaltenbrunner on account of membership in such an organization could, therefore, according to Article 9 of the Charter, justify the condemnation of the SD.
In consideration of these statements the formal hypotheses for the application of Article 9 of the Charter do not appear appropriate to me. It would be necessary for the Defendant Kaltenbrunner to have been charged on account of his membership in the SD as a criminal organization within the meaning of the Charter, and for the character of the SD to have been examined in this proceeding against the Defendant Kaltenbrunner. Only then would there be a case at hand -- as the Chief Prosecutor for the United States has stated -- on the basis of which the criminality of the SD could be examined. Such a charge has, however, not been made against the Defendant Kaltenbrunner. The Defendant Kaltenbrunner has not been accused of belonging to the SD as a criminal organization, but is to be sentenced for other punishable offenses. Therefore, taking the statement of the American Prosecutor as a basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced which has no connection with the criminal actions with which the Defendant Kaltenbrunner has been charged.
Finally, it will have to be examined what connection exists between the period during which the accused member belonged to the organization and the period for which the organization is to be declared criminal. This purely legal question is completely different from the question of the period during which an organization was criminally active. Here we are only concerned with this question:
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Can, in the proceedings against a defendant, the organization of which he was a member be declared criminal also for the period during which he did not belong to the organization?
According to the statements made by the American Prosecutor, the criminality of the organization is to be examined only on the strength of the defendant's action. Any action of the defendant limits the examination as to whether the organization can be declared criminal also in regard to time. The evidence in the proceedings against an accused member can only justify any decision regarding the organization for the period during which the defendant belonged to the organization.
This limit in time is justified for another reason: Whoever is to be sentenced has the right to be heard. This right to be heard is not met by the making of statements before the court, but includes the right to participate in the whole proceedings. According to Article 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but only restricted to a single person of the organization mentioned, in order to save time, on the principle that the depositions of further members as to the aims and tasks and activities of the organization would be cumulative. A member who did not belong to the organization during the whole period for which the organization is to be declared criminal, can define his attitude toward the question of the aims, tasks, and activities of the organization only for the duration of his membership. According to the principle of legal hearing it is, therefore, necessary that such a member should participate in the proceedings as a defendant, who was a member of the organization during the whole period for which the organization is to be declared criminal.
For these judicial reasons the organization can equally be declared criminal only for the period during which the defendant was a member of it. Should an organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period. For judicial reasons the SD, therefore, could be declared criminal only for the period during which the Defendant Kaltenbrunner was Chief of the Sipo and the SD, that is, since January 1943. The crimes with which Aemter III and VI are charged must, therefore, have been committed during this period. I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part, and first of all I shall deal with general statements.
The Prosecution has submitted a large number of documents in which the SD is mentioned, thus wishing to prove that the Aemter III and VI were those responsible for them. However, the Prosecution itself has said that in common usage, and even in orders and decrees,
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"SD" was used as an abbreviation for "Sipo and SD." I refer to the trial brief against the Gestapo and SD, Page 19 of the German text, and to the session of 3 January 1946. Even according to the Prosecution, a document mentioning the SD is no proof that this deed must have been committed by members of Aemter III and VI. These may just as well be deeds of the Sipo. That has been proved by the evidence.
The witness Von Manstein, one of the highest military leaders of the former German Wehrmacht, was heard before the Tribunal. This witness spoke repeatedly of the SD in his hearings before the Tribunal and the Commission. When I asked the witness what he understood by SD, he declared that he was not quite certain. My further question whether he believed this to mean Aemter III and VI he answered in the negative (Session of 10 August 1946). The shooting of a Commando in the north of Norway was mentioned in the examination of the Defendant Jodl on the witness stand. The Defendant Jodl was told that the prisoners had been shot by the SD. Thereupon the Defendant Jodl declared, and I refer to the record and quote (Session of 6 June): "Not by the SD; that is not correct, but by the Security Police."
I furthermore draw your attention to the affidavit of the Defendant Keitel -- SD-52 -- who declared under oath that he only realized during the Trial at Nuremberg that the opinion frequently prevailing also in military circles concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in military language and decrees the SD was often mentioned when the competent police organ with executive power was meant. Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which had led to the wrong interpretation of the abbreviation "SD."
In this connection I also refer to the affidavit of the former Chief of the General Staff of the Luftwaffe, Koller (Document Number Jodl-58, Pages 179 and following, in Document Book Jodl). In this affidavit Koller reports upon a situation conference with Hitler. At this conference Hitler gave the order to turn over all bomber crews of the various Allied forces to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation: "The Fuehrer's conceptions are quite erroneous. The tasks, too, of the SD are constantly being misinterpreted. Such things are no concern of the SD."
The French Prosecution has submitted a great number of documents in which the SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission.
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Knochen was the Commander of the Security Police and the SD in France. In connection with these documents he said that there had been a confusion in terminology, and that SD should be interpreted as "Field Police." To my question: "What does turning over to the SD mean?" the witness Knochen answered, and I quote: "that means transfer to the Executive Section IV of the Security Police."
I showed the witness Dr. Hoffmann Document 526-PS before the Commission. Hoffmann was an official of the Security Police and never belonged to the SD. Document 526-PS concerns the carrying out of a Commando order in a Norwegian fjord. This report states: "Fuehrer Order carried out by SD." To my question to the witness Hoffmann, what was to be understood by SD, he answered literally: "Since this seems to be an executive measure, SD must here be interpreted as Security Police; the Wehrmacht often mixed up the two ideas."
The Prosecution has furthermore submitted Document Number 1475-PS. This is a report of the commander of the prison at Minsk, dated 31 May 1943, in which he reports that Jews had been brought into the prison by the SD, through Hauptscharfuehrer Ruebe, and that the gold bridges, fillings, and crowns had been removed from their teeth. In this connection I have submitted Affidavit Number SD-69 of Gerty Breiter, a stenographer employed with the Commander of the Security Police and the SD in Minsk. Gerty Breiter states that Ruebe was an official of the Gestapo, and that the SD in Minsk had nothing to do with Jewish affairs. The sole activity of the SD in Minsk was to make reports upon the general attitude and opinions of the public. There were no SD prisons in Minsk. This confusion in terminology is apparently due to the fact that the members of the SS special formation "SD" which, as I said in the introduction, was something entirely different from the SD Intelligence Service, wore the SS uniform with the SD insignia.
In the territories occupied by Germany, all members of the RSHA, including all members of the Stapo and Kripo, even those who were not members of the SS or SS candidates, wore the SS uniform with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police were considered to be SD measures. I refer in particular to the Commission record and to the Court record (Session of 1 August 1946).
THE PRESIDENT: Did you say then that all members of the SS, including the Kripo and the Sipo, when they were working in the East were in the uniform of the SS with an SD badge on them?
DR. GAWLIK: Yes. The witness has given this in evidence, Your Lordship.
THE PRESIDENT: Go on.
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DR. GAWLIK: In this connection I would point out that about 90 percent of all members of Aemter III and VI were unpaid, and only a small part of them belonged to the SS or were SS candidates (Affidavit Number SD-32). During the war a large number of the members of the SD, Aemter III and VI, were women. These persons were not entitled to wear the uniform of the SS formation SD. According to the subdivisions of the trial brief against the Gestapo and the SD, I shall discuss:
a. The charge of Conspiracy
b. Crimes against Peace
c. War Crimes
d. Crimes against Humanity.
I shall now refer to the conspiracy charges. I still do not have Evidence III of the English trial brief against the Gestapo and SD.
Aemter III and VI are accused of having participated in a conspiracy to commit crimes against peace, war crimes, and crimes against humanity. There are three possibilities for an organization to be in contact with a circle of conspirators:
I. The organization can belong to the circle of conspirators. This presumes that all the members of the organization participated in the agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means. It must therefore be proved (a) that such a plan existed, and (b) that all members adopted this plan as their own (Archbold: Pleading, Evidence, Practice, Page 1426).
Second possibility: Organizations can have the aim and the purpose of supporting participants in a conspiracy. For this is required: (a) A secret plan or an agreement; (b) the organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan; (c) all members must have known of it and desired it.
Third possibility: The organization can be used objectively by conspirators to carry out the secret plan without the members realizing it. In this case there can be no question of punishable participation of the organization, because the characteristic of factual culpability is lacking. The organization is merely an unpunishable tool and cannot be declared criminal. On Case I the Prosecution has submitted that not all participated in the conspiracy, though all contributed to the offenses (Session of 20 December 1945). This indicates that the Prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question.
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The punishable support of a conspiracy, Case II, also requires (a) the existence of a secret plan, (b) knowledge on the part of the members. Therefore the existence of a secret plan and the members' knowledge thereof must also be proved.
Hitherto it has in no way been shown that such a plan for the commission, of crimes against peace, war crimes, and crimes against humanity actually existed. This has already been presented in detail by counsel for the principal defendants and I do not want to repeat these statements, but I should like briefly to point out the following:
A conspiracy cannot be considered proved until evidence is brought as to: time, place, persons among whom this common agreement was reached, and nature of the contents.
Even if such a plan should have existed, it has in no way been shown that it was known to members of the SD, and that therefore they had in mind the purpose of supporting such a conspiracy with their activity. The Prosecution has derived the fact that such a conspiracy existed in particular from facts mentioned in the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations which participated had no knowledge of these things; this can be assumed as being known to the Court. If the fact of a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity, arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity. The facts which the Prosecution produced to prove that members of the SD knew of a conspiracy cannot be regarded as "violent" assumptions, nor as "probable" assumptions, but at most as "light" or "rash" assumptions which are without significance (Archbold: Pleading, Evidence, Practice, 1938, Pages 404, 405).
Furthermore, I believe that the examination of witnesses and the affidavits has brought proof that members of the SD had no knowledge that a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity existed and that, therefore, there was no intention in the SD to support such a circle of conspirators with their activity.
It is, thus, impossible to pass sentence on the SD for participation in a conspiracy, because proof is lacking that (a) a circle of conspirators did in fact exist, and (b) the members of the SD had knowledge of this fact and intended to afford assistance to such a circle of conspirators by their activities.
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(continued in part 4)
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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 by 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 only have this sense and this meaning.
The question whether the plea of superior orders furnishes grounds for exoneration is not uncontested in international writings. Article 8 of the Charter rules on this controversial question that the perpetrator cannot plead superior orders. Therefore I do not need to discuss this controversial question in greater detail. All authors, however, who deal with this question assume that the subordinate knew that the order was illegal and unjust. They deal mainly with the question as to whether the subordinate, although he was aware of the illegality and unlawfulness of the order, had grounds for exemption from punishment. It is to be concluded here from that in the absence of such knowledge, which may also be founded on an order, the perpetrator is exempt from punishment.
The French Prosecutor also stated that superior orders do not cover the execution 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, however, he commits the same deed on the strength of an order, he would have to be punished, unless one were to agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. Orders can, however, place the perpetrator under a state of compulsion, and for that reason exclude guilt.
It is a general rule of English law that any person is protected against punishment who has committed crimes under the stress of force employed by other people, and not as a result of unhindered and deliberate intention. According to English law this protection also exists in the relationship between the state and society, such as between the supreme power and the subjects of the state, and obedience to the ruling powers will act as an excuse if bodily force is exercised or imminent. Thus I arrive at the following result: An organization could only be declared criminal if
(1) its purposes or expedients correspond with the requirements of Article 6 of the Charter;
(2) all members knew these purposes and expedients;
(3) all members were conscious of the fact that these purposes were illegal or unjust.
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This result gives rise to two further questions:
1. A legal one, namely, whether the conviction of an organization can be brought into harmony with the general rules*of international law and national law.
2. A factual one, namely, whether the necessary elements of the case can be established at all for all members of the SD, and whether a trial of this kind can be held at, all.
Before I begin to discuss the legal question I take the liberty of drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing so. It may be assumed that the legislators pursued a purpose in not prescribing the conviction of the organizations as compulsory even if all the necessary conditions were fulfilled. It may be presumed that the legislators who promulgated the Charter desired to submit Article 9 to an examination under the rules of international law.
By this the authors of the Charter apparently, with regard to Article 9, wished to transfer the judge's right of examination to the International Military Tribunal. I expressly emphasize, in order to avoid any misunderstandings, that this refers only to Article 9, because in other respects the Charter is a mandatory rule. The International Military Tribunal was to examine Article 9 to determine whether this rule constitutes a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law especially points to the existence of such an intention. The question as to whether a formal law is in contradiction to other laws cannot be immediately investigated when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars.
English constitutional law, with its special concept of the constitution, does not recognize the judge's right of examination. The Union of the Socialist Soviet Republics does not recognize the judge's right of examination either. In France the judge's right of examination is rejected by the courts, but is almost unanimously accepted by legal scholars. In the United States the judge's right of examination is generally recognized. The courts of the United States are required to compare the laws which have been issued with the Constitution, and to discover the true intentions of both.
I believe that the international community of nations comes close to the federal system of the United States, and that therefore the International Military Tribunal is justified in examining the relationship of Article 9 of the Charter to the generally recognized
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rules of international law and also the laws of individual nations which, according to the statements of Justice Jackson, are likewise to form the legal foundation for the decision.
Concerning Article 9 of the Charter, it must be added that it is a precept unknown to the previous laws. It can obviously be presumed, and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts of prevailing international law and bring it into legal form, and that in doing so they certainly had no intention of placing themselves in opposition to the rules of international law. All written law, however, requires careful and scholarly examination and revision, to allow a reasonable application in practice to become possible. Only in this way will the courts be placed in a position to reach verdicts which are really in accordance with the facts. The International Military Tribunal, therefore, on the basis of the judge's right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter to the general basic legal principles of international law and the national laws of civilized nations.
In this connection we have to start from the legal significance of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Article 9 varies basically from the corporate penal law as introduced, for example, into English law by Section 2 of the Interpretation Act of 1889. Punishment according to corporate penal law is directed at the organization. According to Article 9, the sentence can no longer affect the organizations, because they have been dissolved and no longer exist. The sentence is directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings according to Law Number 10.
Two other important differences must be mentioned:
(1) According to corporate penal law, especially English corp6rate penal law, no imprisonment sentence is permitted.
Article 9 is, nevertheless, intended as a basis for imprisonment sentences and even death sentences, as provided in Law Number 10.
(2) According to English corporate penal law, no crimes and offenses can be prosecuted.
If we examine English jurisdiction, we find that corporations have been condemned only on account of transgressions, especially on account of neglect of public obligations, such as failure to repair streets or bridges although such an obligation existed, blocking of a street by a railway company, or for publishing a lampoon.
Article 9, on the other hand, deals with major crimes. Article 9 of the Charter does not accordingly amount to the introduction of corporate penal law into international criminal law.
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A number of foreign laws have been quoted by the Prosecution according to which it should be permissible to declare an organization criminal: from American law, the Law of 28 June 1940 and the "California Act"; from English law, the "British India Act Number 30" of 14 November 1936; from French law, the Law of 18 December 1893, Section 265 of the French Penal Law Code; Section 1 of the Law of 26 August 1944; and two legal decisions from Russian law.
THE PRESIDENT: Dr. Gawlik, I believe you are reading too rapidly.
DR. GAWLIK: The following German laws were also cited:
(1) Articles 128 and 129 of the German Criminal Code of 1871,
(2) The Law of 22 March 1921,
(3) The Law of 21 July 1922.
In this connection it should be noted that according to all these laws only individual persons may be prosecuted, and that in the proceedings against such prosecuted individuals it may be established that the organization has a criminal character, without this having a legal effect upon the non-prosecuted members. It may thereby be established in proceedings against some members of the organization that the organization pursues aims contrary to law, while in subsequent proceedings against other members this may be denied. Non-applicability of sentence against members who are not accused is however the decisive factor which distinguishes these laws from Article 9 of the Charter. The decision according to Article 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before military tribunals, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective establishment of the objective facts in the case, but furthermore an effective establishment of guilt for all the members, including consciousness of illegality, that is to say, a legal effect of hitherto unique significance in penal law.
Thus a verdict based on Article 9 does not amount to a further development of corporate law, nor to the sentencing of individual persons because of the membership in a criminal community of persons, but to a conviction of the collective members of the organizations, because the essential facts, which shall form the basis for later judgments in subsequent proceedings according to Law Number 10, have been effectively established for the collective members. In subsequent proceedings the sole question of membership must be examined. In other words: we are here concerned with the collective judgment of all members of the organization.
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What is the attitude of international law scholars toward the question of collective conviction?
The majority of the American, English, and French international law scholars reject collective conviction as "arbitrary and contrary to the elementary principles of justice"
(Garner in International Law and the World War, Volume 1, Page -154). The well-known authority on international law, Garner, rightly states that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons, Garner goes on to explain that for that reason a collective conviction should never be employed as long as other just measures fulfill the same purpose. The French legal scholars Bonfils and de Martons have condemned the basic principle of collective punishment in detailed dissertations, expressing the hope that collective conviction would disappear altogether.
These statements should be fully concurred in.
In the proceedings against the organizations past crimes are to be atoned for. In order to achieve this aim, however, the indirect way of convicting the organizations is not necessary. That aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as has been done in a large number of cases.
On the basis of the general basic legal principles of international law and the national laws of civilized states, therefore, use should be made, of the optional rule of Article 9, by refraining from declaring the accused organizations to be criminal. The persons responsible for the crimes can be punished in individual proceedings.
There now arises the question whether it is at all possible in this Trial to establish all the required facts.
To do so would appear impossible. Even to furnish proof that all members of the SD were informed of certain criminal goals would appear impossible. Guilt can always be established for the individual only. All guilt is bound to a person. If many persons participate in some offense or crime, the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, or complicity in a concrete and well-defined manner. It seems entirely impossible, however, to determine whether all members were cognizant of the illegality and unrighteousness of the goals and tasks. In this connection we must also examine what was to be the standard for members of the SD in determining whether the goals or means were illegitimate or unrighteous.
According to the German law in force while the organization was in existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that
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the German legal measures conflicted in part with the provisions of international law, and that therefore goals and methods - while not illegal or wrong according to the law of the German State - can nevertheless be considered illegitimate and unrighteous according to the concepts of international law. But this is not the decisive point. What does count is whether the members, that is, all the members, recognized the illegality and unrighteousness of goals and methods which were legitimate according to German laws.
The well-known teacher of international law, Oppenheim, has stated that the law cannot demand that an individual be punished for a deed which he was forced to commit in virtue of the law. If the best-known authorities on international law cannot agree as to what is right and wrong, can one demand from ordinary members of the organizations that they recognize it?
The capital crimes which were discussed during the Trial, for instance, the extermination of the Jews, and the inhuman treatment in the concentration camps, require no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the question as to whether primarily the perpetrators, and furthermore all members, knew of the injustice and the illegality, cannot lightly be answered in the affirmative. Particularly where acts and deeds were committed during the war it is very difficult to decide whether they were recognized as illegal and unjust. In times of peace everybody knows that he must not kill, and that another's property is inviolable. Such acts are, however, partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain circumstances.
The individual who commits the deed, together with all the members, therefore has consciousness of illegal acts committed during the war only as long as he is aware of the limitations which are set by law. A strict examination of these points in the case of the organization is particularly necessary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of international law are unknown. I believe that this is also the opinion of the Chief Prosecutor for the United States who explained in his opening speech of 20 November 1945 that a soldier assigned to an execution squad could not hold an investigation as to whether the execution was legally admissible.
While examining the question concerning the knowledge of the members as to illegality and injustice, the mistake should not be made of assuming that the simple members of the organization had the same knowledge which we now have gained in this Trial on the basis of documents coming from secret archives.
Particularly in
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the proceedings against the SD a great number of secret papers, documents, and regulations have been produced, which were only intended for the internal administration of individual offices. The content of these papers, therefore, testifies that they had not been brought to the knowledge of all members, but only to that of a small definite circle. In this connection I wish to refer for example to the well-known Document L-180, the Stahlecker report, dealing with the activity of Einsatzgruppe A.
It can, therefore, already be said that a great part of the evidence produced by the Prosecution does not suffice for the collective conviction of the members of the SD. The documents do not even prove that the offenders themselves were conscious of illegality, because, in order to establish this, one would have to be familiar, with the particular circumstances of the act. And it must still be proved that the members of the SD knew of these acts and recognized that the acts were illegal, or at least wrong.
I do not consider it necessary to discuss this question in the second part of my statement with regard to each act with which the SD had been charged; in my opinion it is sufficient that I have described the problem in general, and I will leave the examination in individual cases to the Tribunal. In each individual case, however, with which the SD is charged, and with each document submitted against the SD, the Tribunal ...
THE PRESIDENT: Would that be a convenient point to break off?
[The Tribunal adjourned until 27 August 1946 at 1000 hours.]
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vol. 22
THE PRESIDENT: The Tribunal will await the communication from the Prosecution and they will consider the matter.
Dr. Gawlik.
DR. HANS GAWLIK (Counsel for the SD): May it please the High Tribunal: Yesterday I paused at the question whether it would be possible at all to determine those prerequisites which are necessary in order to declare an organization criminal. I shall continue.
My statements made hitherto should lead to the conclusion that the evidence of guilt cannot be summarily determined by drawing conclusions from the number of crimes and the type of crime committed, from the knowledge of all the members of these deeds, and from their consciousness of their illegality. It is, on the contrary, necessary that proof of the knowledge and consciousness of illegality should only be considered in special proceedings in the case of each individual member of the organizations; since everything depends on the circumstances, the individual members must be given the opportunity to reply to them. Even if the members might have had knowledge of the real facts of individual criminal acts, that does not prove that they also knew that their organizations were involved therein.
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Now I shall turn to the next section.
A condemnation of the organizations is furthermore in opposition with the principle of penal law: nulla poena sine lege. This principle has already been treated in detail by the defense counsel of the principal defendants. I shall not repeat these statements, but only point out briefly the following points of view.
In his Opening Statement, on 20 November 1945, the American Chief Prosecutor said that the defendants could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the organizations, because the members had no influence on the legislation but were themselves objects of the legislation.
The Prosecutor of the Union of Socialist Soviet Republics pointed out, in the discussion of this principle in his final speech on 29 July 1946, that the Charter of the International Military Tribunal was an inviolable law and absolutely had to be carried out.
The Charter is, however, in no way violated and will also be carried out if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, for Article 9 of the Charter is merely an optional regulation. The Chief Prosecutor of the Union of Socialist Soviet Republics further asserted that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples. International agreements and laws of civilized peoples only show that punishable offenses must be judged in individual proceedings. The principle of collective judgment of groups of persons was up to now unknown in international law.
On the contrary it is denied, as I said before, by the theory of international law. Until the first World War it was the custom to include in peace treaties amnesty clauses for war crimes committed. After the first World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of the laws of war. I refer to Fenwick in International Law, 1924, Page 578.
The declaration of the chiefs of state of the United States of America, Great Britain, and the Union of Socialist Soviet Republics of 2 November 1943, mentioned by the Prosecutor of the Socialist Soviet Republics, orders expressly that individuals shall be made responsible. This declaration contains no statement to the effect that the collective condemnation of groups of persons is permissible.
Article 9 of the Charter is therefore not the expression of an internationally recognized legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921, as proposed by the Chief
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Prosecutor of the United States, or even for the time from 1933 on, as proposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29 July 1946.
The condemnation of the organizations is therefore in opposition to the principle nulla poena sine lege.
In the second section of Part 1, I come to the discussion of the questions of procedure resulting from Article 9 of the Charter. In legal procedure, according to Article 9 of the Charter, an organization or group may be said to be criminal
(a) In the trial against a member of such organization or group, and
(b) in connection with any action by reason of which the accused is condemned.
Both these hypotheses must be realized. Of the principal defendants, only the Defendant Kaltenbrunner, Chief of the Security Police and SD, is involved as member of the SD.
It can be gathered from the words, "in connection with any action by reason of which the accused is sentenced," that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. This, however, cannot be the meaning and purpose of this definition, as I should like to illustrate by the law of the United States of 28 June 1940, already quoted.
When persons belonging to one of the associations mentioned in the act of 28 June 1940 are arraigned before a tribunal in several different proceedings, an admittedly extensive examination of evidence, though doubtful in its results, must be effected in each proceeding to determine whether the association to which the person belongs fulfills the primary conditions contained in the above legal stipulations. Then it could happen that in one trial it is established that the organization had pursued the purpose named in the law of 28 June 1940, while in other trials the result of the testimony is not considered sufficient. In order to avoid these difficulties it could be decreed by a provision of the law that the trial be held against one or several members of the organization, while the other members who have not yet been accused are given the possibility of a legal hearing, and if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940, the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfills the purpose mentioned in the decree of 28 June 1940. Such provisions would achieve the following:
(1) the testimony on the aims, tasks, and activities of the organization would be taken only once, and
(2) contradictory decisions on the objective tasks, aims, and activities of the organization would be avoided.
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This purpose is apparently also the intention of Article 9 of the Charter. The situation is to be avoided whereby the military tribunals in the individual occupation zones, in the proceedings against the members of the accused organizations, would have to examine the question of the character of the organization each time by lengthy examination of evidence and perhaps come to contradictory decisions. To be sure, it would ...
THE PRESIDENT: Dr. Gawlik, are you arguing that if any individual were tried under this act of June 1940, that the declaration of this Court under Article 9 would have any effect in the Trial under that act of June 1940? Is that your argument?
DR. GAWLIK: No, Your Lordship. I wanted to explain the stipulation laid down in Article 9 in line with the law of June 1940. The law of June 1940 is something quite different and has no connection with Article 9. 1 wanted to explain in connection with the law of June 1940, which was mentioned by the American Chief Prosecutor, what importance a stipulation would have such as is set down in Article 9.
THE PRESIDENT: What importance are you suggesting it would have?
DR. GAWLIK: Article 9, as I shall set forth, has the following significance:
One member must be accused because of his membership in an organization, an organization which pursues crimes according to Article 6 of this Charter. Then, in this trial against one member, all the facts must be cited against this member because of his membership in the organization, and then the facts that have been ascertained, about the aims, tasks, and activities of the organization, if a conviction is obtained, can be used in the trials against the other members; but only the objective facts, not the guilt, for guilt is an individual matter.
Your Lordship, may I cite an explanatory example. Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because the SD was part of an organization which permitted crimes against the peace, the laws of war, and against humanity. Now, if this member is punished because of his membership in an organization of that nature, you are objectively determining that the SD is an organization of that kind, therefore the objective findings concerning the aims, tasks, and activities of the SD can be used in the proceedings against the other members.
THE PRESIDENT: Well, I think I follow that argument, based upon the first paragraph of Article 9, is that right? It is based upon your construction or interpretation of the first paragraph of Article 9?
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DR. GAWLIK: Yes.
THE PRESIDENT: Are you saying that a decision of this Tribunal upon that would have any importance of effect upon a trial under the act of 1940?
DR. GAWLIK: No, that is only an example.
MR. FRANCIS BIDDLE (Member of the Tribunal for the United States): The law of 1940 is the Sedition Law, is it not? That is the Sedition Law of 1940?
DR. GAWLIK: Yes.
MR. BIDDLE: You say the Prosecution in their argument depended on that act to show that this type of group condemnation was used in other countries -- they made that analogy?
DR. GAWLIK: Yes, I know...
MR. BIDDLE: Yes, you say that is not a true analogy.
DR. GAWLIK: Yes.
MR. BIDDLE: And the reason you say that is that if one individual were tried under the act of 1940 -- do you follow?
DR. GAWLIK: Yes.
MR. BIDDLE: First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, the court then would have to decide first the purposes of the organization, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, you say also that, if a second individual were, at a later time, tried under that act, the Government would again have to prove ...
DR. GAWLIK: Yes.
MR. BIDDLE: ... that the purpose of the organization was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: And therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect...
DR. GAWLIK: Yes.
MR. BIDDLE: ... on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon law because the finding of a fact against one individual cannot affect the trial against the second individual, is that your argument?
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DR. GAWLIK: Yes. Certainly it would be sufficient for this purpose if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization, and the determination of guilt were left to the subsequent proceedings.
With regard to Law Number 10, as was pointed out already, the condemnation of the organizations according to Article 9 of the Charter contains not only the objective statement of the aims, tasks, and activities of the organizations, but beyond this purpose the confirmation of the guilt of the members. Consequently, Article 9 of the Charter, besides the legal material confirmation of objective and subjective factual evidence, also has a legal criminal meaning. This juridical aim, which is evidently pursued by Article 9 of the Charter, can, however, only be attained if this decision is so interpreted that the member is sentenced on account of membership in an organization whose aims or expedients are punishable according to Article 6 of the Charter, and not on account of any action. Any other interpretation would have no meaning and no purpose. Only a conviction of the Defendant Kaltenbrunner on account of membership in such an organization could, therefore, according to Article 9 of the Charter, justify the condemnation of the SD.
In consideration of these statements the formal hypotheses for the application of Article 9 of the Charter do not appear appropriate to me. It would be necessary for the Defendant Kaltenbrunner to have been charged on account of his membership in the SD as a criminal organization within the meaning of the Charter, and for the character of the SD to have been examined in this proceeding against the Defendant Kaltenbrunner. Only then would there be a case at hand -- as the Chief Prosecutor for the United States has stated -- on the basis of which the criminality of the SD could be examined. Such a charge has, however, not been made against the Defendant Kaltenbrunner. The Defendant Kaltenbrunner has not been accused of belonging to the SD as a criminal organization, but is to be sentenced for other punishable offenses. Therefore, taking the statement of the American Prosecutor as a basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced which has no connection with the criminal actions with which the Defendant Kaltenbrunner has been charged.
Finally, it will have to be examined what connection exists between the period during which the accused member belonged to the organization and the period for which the organization is to be declared criminal. This purely legal question is completely different from the question of the period during which an organization was criminally active. Here we are only concerned with this question:
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Can, in the proceedings against a defendant, the organization of which he was a member be declared criminal also for the period during which he did not belong to the organization?
According to the statements made by the American Prosecutor, the criminality of the organization is to be examined only on the strength of the defendant's action. Any action of the defendant limits the examination as to whether the organization can be declared criminal also in regard to time. The evidence in the proceedings against an accused member can only justify any decision regarding the organization for the period during which the defendant belonged to the organization.
This limit in time is justified for another reason: Whoever is to be sentenced has the right to be heard. This right to be heard is not met by the making of statements before the court, but includes the right to participate in the whole proceedings. According to Article 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but only restricted to a single person of the organization mentioned, in order to save time, on the principle that the depositions of further members as to the aims and tasks and activities of the organization would be cumulative. A member who did not belong to the organization during the whole period for which the organization is to be declared criminal, can define his attitude toward the question of the aims, tasks, and activities of the organization only for the duration of his membership. According to the principle of legal hearing it is, therefore, necessary that such a member should participate in the proceedings as a defendant, who was a member of the organization during the whole period for which the organization is to be declared criminal.
For these judicial reasons the organization can equally be declared criminal only for the period during which the defendant was a member of it. Should an organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period. For judicial reasons the SD, therefore, could be declared criminal only for the period during which the Defendant Kaltenbrunner was Chief of the Sipo and the SD, that is, since January 1943. The crimes with which Aemter III and VI are charged must, therefore, have been committed during this period. I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part, and first of all I shall deal with general statements.
The Prosecution has submitted a large number of documents in which the SD is mentioned, thus wishing to prove that the Aemter III and VI were those responsible for them. However, the Prosecution itself has said that in common usage, and even in orders and decrees,
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"SD" was used as an abbreviation for "Sipo and SD." I refer to the trial brief against the Gestapo and SD, Page 19 of the German text, and to the session of 3 January 1946. Even according to the Prosecution, a document mentioning the SD is no proof that this deed must have been committed by members of Aemter III and VI. These may just as well be deeds of the Sipo. That has been proved by the evidence.
The witness Von Manstein, one of the highest military leaders of the former German Wehrmacht, was heard before the Tribunal. This witness spoke repeatedly of the SD in his hearings before the Tribunal and the Commission. When I asked the witness what he understood by SD, he declared that he was not quite certain. My further question whether he believed this to mean Aemter III and VI he answered in the negative (Session of 10 August 1946). The shooting of a Commando in the north of Norway was mentioned in the examination of the Defendant Jodl on the witness stand. The Defendant Jodl was told that the prisoners had been shot by the SD. Thereupon the Defendant Jodl declared, and I refer to the record and quote (Session of 6 June): "Not by the SD; that is not correct, but by the Security Police."
I furthermore draw your attention to the affidavit of the Defendant Keitel -- SD-52 -- who declared under oath that he only realized during the Trial at Nuremberg that the opinion frequently prevailing also in military circles concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in military language and decrees the SD was often mentioned when the competent police organ with executive power was meant. Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which had led to the wrong interpretation of the abbreviation "SD."
In this connection I also refer to the affidavit of the former Chief of the General Staff of the Luftwaffe, Koller (Document Number Jodl-58, Pages 179 and following, in Document Book Jodl). In this affidavit Koller reports upon a situation conference with Hitler. At this conference Hitler gave the order to turn over all bomber crews of the various Allied forces to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation: "The Fuehrer's conceptions are quite erroneous. The tasks, too, of the SD are constantly being misinterpreted. Such things are no concern of the SD."
The French Prosecution has submitted a great number of documents in which the SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission.
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Knochen was the Commander of the Security Police and the SD in France. In connection with these documents he said that there had been a confusion in terminology, and that SD should be interpreted as "Field Police." To my question: "What does turning over to the SD mean?" the witness Knochen answered, and I quote: "that means transfer to the Executive Section IV of the Security Police."
I showed the witness Dr. Hoffmann Document 526-PS before the Commission. Hoffmann was an official of the Security Police and never belonged to the SD. Document 526-PS concerns the carrying out of a Commando order in a Norwegian fjord. This report states: "Fuehrer Order carried out by SD." To my question to the witness Hoffmann, what was to be understood by SD, he answered literally: "Since this seems to be an executive measure, SD must here be interpreted as Security Police; the Wehrmacht often mixed up the two ideas."
The Prosecution has furthermore submitted Document Number 1475-PS. This is a report of the commander of the prison at Minsk, dated 31 May 1943, in which he reports that Jews had been brought into the prison by the SD, through Hauptscharfuehrer Ruebe, and that the gold bridges, fillings, and crowns had been removed from their teeth. In this connection I have submitted Affidavit Number SD-69 of Gerty Breiter, a stenographer employed with the Commander of the Security Police and the SD in Minsk. Gerty Breiter states that Ruebe was an official of the Gestapo, and that the SD in Minsk had nothing to do with Jewish affairs. The sole activity of the SD in Minsk was to make reports upon the general attitude and opinions of the public. There were no SD prisons in Minsk. This confusion in terminology is apparently due to the fact that the members of the SS special formation "SD" which, as I said in the introduction, was something entirely different from the SD Intelligence Service, wore the SS uniform with the SD insignia.
In the territories occupied by Germany, all members of the RSHA, including all members of the Stapo and Kripo, even those who were not members of the SS or SS candidates, wore the SS uniform with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police were considered to be SD measures. I refer in particular to the Commission record and to the Court record (Session of 1 August 1946).
THE PRESIDENT: Did you say then that all members of the SS, including the Kripo and the Sipo, when they were working in the East were in the uniform of the SS with an SD badge on them?
DR. GAWLIK: Yes. The witness has given this in evidence, Your Lordship.
THE PRESIDENT: Go on.
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DR. GAWLIK: In this connection I would point out that about 90 percent of all members of Aemter III and VI were unpaid, and only a small part of them belonged to the SS or were SS candidates (Affidavit Number SD-32). During the war a large number of the members of the SD, Aemter III and VI, were women. These persons were not entitled to wear the uniform of the SS formation SD. According to the subdivisions of the trial brief against the Gestapo and the SD, I shall discuss:
a. The charge of Conspiracy
b. Crimes against Peace
c. War Crimes
d. Crimes against Humanity.
I shall now refer to the conspiracy charges. I still do not have Evidence III of the English trial brief against the Gestapo and SD.
Aemter III and VI are accused of having participated in a conspiracy to commit crimes against peace, war crimes, and crimes against humanity. There are three possibilities for an organization to be in contact with a circle of conspirators:
I. The organization can belong to the circle of conspirators. This presumes that all the members of the organization participated in the agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means. It must therefore be proved (a) that such a plan existed, and (b) that all members adopted this plan as their own (Archbold: Pleading, Evidence, Practice, Page 1426).
Second possibility: Organizations can have the aim and the purpose of supporting participants in a conspiracy. For this is required: (a) A secret plan or an agreement; (b) the organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan; (c) all members must have known of it and desired it.
Third possibility: The organization can be used objectively by conspirators to carry out the secret plan without the members realizing it. In this case there can be no question of punishable participation of the organization, because the characteristic of factual culpability is lacking. The organization is merely an unpunishable tool and cannot be declared criminal. On Case I the Prosecution has submitted that not all participated in the conspiracy, though all contributed to the offenses (Session of 20 December 1945). This indicates that the Prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question.
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The punishable support of a conspiracy, Case II, also requires (a) the existence of a secret plan, (b) knowledge on the part of the members. Therefore the existence of a secret plan and the members' knowledge thereof must also be proved.
Hitherto it has in no way been shown that such a plan for the commission, of crimes against peace, war crimes, and crimes against humanity actually existed. This has already been presented in detail by counsel for the principal defendants and I do not want to repeat these statements, but I should like briefly to point out the following:
A conspiracy cannot be considered proved until evidence is brought as to: time, place, persons among whom this common agreement was reached, and nature of the contents.
Even if such a plan should have existed, it has in no way been shown that it was known to members of the SD, and that therefore they had in mind the purpose of supporting such a conspiracy with their activity. The Prosecution has derived the fact that such a conspiracy existed in particular from facts mentioned in the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations which participated had no knowledge of these things; this can be assumed as being known to the Court. If the fact of a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity, arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity. The facts which the Prosecution produced to prove that members of the SD knew of a conspiracy cannot be regarded as "violent" assumptions, nor as "probable" assumptions, but at most as "light" or "rash" assumptions which are without significance (Archbold: Pleading, Evidence, Practice, 1938, Pages 404, 405).
Furthermore, I believe that the examination of witnesses and the affidavits has brought proof that members of the SD had no knowledge that a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity existed and that, therefore, there was no intention in the SD to support such a circle of conspirators with their activity.
It is, thus, impossible to pass sentence on the SD for participation in a conspiracy, because proof is lacking that (a) a circle of conspirators did in fact exist, and (b) the members of the SD had knowledge of this fact and intended to afford assistance to such a circle of conspirators by their activities.
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(continued in part 4)
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Part 4:
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Therefore, in this Trial before the International Military Tribunal it does not matter whether the SD supported the SS, the Gestapo, the Party, or individual persons of the State leadership, unless the Prosecution has brought proof of the prerequisites which I have indicated: (a) existence of a secret plan for the commission of crimes according to Article 6, and (b) knowledge on the part of the members of the SD.
Furthermore, the factual submission of the Prosecution concerning the co-operation of the SD with the SS, the Gestapo, or other persons, requires correction.
I have already explained that the SD did not form part of the SS, but that the Domestic Intelligence Service and the Foreign Intelligence Service were independent organizations. The question arises whether the independent organization of the SD aided the independent organization of the SS in pursuing its aims and tasks.
The Prosecution have claimed that this was the case. In refutation of this I wish to draw attention to the testimony of the witness Hoeppner and to the affidavit (Number SD-27) by Albert, who have stated that the SD could be considered an SS Intelligence Service only until the beginning of the year 1934, but that this task had been discontinued as from that date, so that the SD became the general Intelligence center for the State and the Party. These facts have been corroborated both by the witnesses Ohlendorf and Hoeppner and by the SS witnesses Pohl, Hausser, and Reinecke.
As regards the position of the SD in relation to the Police, the Prosecution have maintained that the SD formed part of a uniform police system and that the two sections had been merged into a powerful, politically centralized police system (Session of 19 December 1945). Specifically, the SD did not become part of the Police or of a police system either by the appointment of Himmler as Deputy Chief of the Gestapo in Prussia, or the appointment of Heydrich as Chief of the Security Police and the SD in June 1936, or by the institution of the Reich Security Main Office (RSHA) in September 1939. 1 refer to the, statements of the witnesses Hoeppner, Roessner Wisliceny, and Best in connection with this subject. In refutation of the Prosecution's claim it must be established that the SD never formed part of the Police (Affidavits SD-2, 27, 28, 33, 34, 35, 61, 63), nor did the SD ever have to undertake police work in any sphere of life (Statement by Hoeppner, SD-2, 18, 63).
As to organization, the position of the SD with regard to the Security Police within the Reich was different from that in the occupied territories. I refer to the Headquarters Manual of the United Nations, which I submitted as Document Number SD-70, where the organization of Aemter III and VI is correctly given, and also to the testimonies of the witnesses Best, K. H. Hoffmann, Hoeppner, Dr. Ehlich, Dr. Knochen, Straub and Affidavits Numbers SD-25 and 26. They all show that within the Reich the agencies of the SD, Aemter III and VI, were always independent with regard to the Security Police.
No connection between the SD and the Security Police was formed either by the Higher SS and Police Leaders or by the inspectors of the Security Police and the SD. The latter enjoyed personal privileges of inspection over the agencies of the Security Police and those of the, SD, and therefore they did have knowledge of some of the ordinances relating to any one of the agencies under their control. However, it is not permissible to conclude, from the simple fact that they issued or received some decree, that such decree was necessarily within the competence of the SD. The point is rather, as with all decrees of the Chief, the inspectors, and the commanders of the Security Police and the SD, whether they were dealt with by Aemter III and VI. This can be ascertained from the reference numbers. Only those decrees showing the reference numbers III and VI came within the scope of the Domestic Intelligence Service or the Foreign Intelligence Service and might be charged to the SD. As regards the Higher SS and Police Leaders I wish to refer to Affidavit Number SD-34, for the inspectors of the Security Police and the SD to Affidavit Number SD-35 and the testimony of Hoeppner.
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In the territories occupied by Germany the Security Police and the SD for purposes of organization were united under the commanders of the Security Police and the SD. The Domestic Intelligence Service was dealt with by Department III, the Foreign Intelligence Service by Department VI, while Department IV was the Gestapo and Department V the Criminal Police. Thus, one cannot speak of a uniform organization of Aemter III and VI in the Reich and abroad. The Domestic Intelligence Service in Germany, the Foreign Intelligence Service in Germany, and the activities of the Stapo, the Criminal Police, and the SD in the occupied territories, united for organizational purposes under the commanders of the Security Police and the SD, represented different organizations. It must be noted that, as to their tasks, the Independence of Aemter III and VI in foreign countries was ensured (Affidavit SD-56).
Special reference must be made to the relationship between the SD and the Gestapo. The Prosecution have suggested that the Gestapo was the executive organ, while the SD attended to espionage (Session of 19 December 1945). This description of the relationship between the Gestapo and the SD is not correct.
Actually, it is hardly possible to define clearly the relationship between the Gestapo and the SD for the entire period from 1931 until 1945. It varied according to time and place. As regards the period before 1934, I have already shown that presumably there were no relations between the Gestapo and the SD, since at that time the SD was the Intelligence service of the SS. The decree of 1938, defining the functions of the two bodies, whereby the Gestapo was entrusted both with combating and detecting enemy activities, must have been of primary importance.
As far as the SD Hauptamt was concerned, this concluded the activities of its former Central Department II/1, which had dealt with enemy detection, in contrast to Central Department II/2, which provided an analysis of the domestic scene. The Central Department II/1 of the SD Hauptamt was accordingly dissolved (Affidavit SD-27). The Amt III of the RSHA, which is indicted here, was the former Central Department II/2, dealing with the analysis of the domestic scene (Affidavit SD-27). The activity of Central Department II/1, consisting of enemy detection, cannot be charged to Amt III. The tasks and aims of Central Department II/1 were completely different from those of Amt III, and the former never was part of the latter; nor can it be regarded as the predecessor of Amt III, which had been the Department II/2 of the SD Hauptamt.
The contradictory statements of witnesses as to the co-operation between the SD and the Gestapo can undoubtedly be traced to this evolution of the SD and the change in the tasks allotted to it. Actually, co-operation between Amt III, which had developed out of Central Department II/2, and the Gestapo was never any closer or more extensive than In the case of other authorities. However, the Central Department II/1 had never been an intelligence center for the Gestapo either, but operated entirely independently of that institution (Affidavits SD-16, to 19, 27, 55).
Dr. Best, a witness for the Gestapo, has perhaps provided the best characterization of the relationship by stating that in those years experiments were continually being made with the SD. In trying to prove the close co-operation existing between the Stapo and the SD the Prosecution have mainly based their accusation on the book by Dr. Werner Best, Die Deutsche Polizei (Document Number PS-1852). In testifying, the author has explained that this was a private piece of work devoid of any official character; Best also stated that he had simply described a development with an eye to the future.
The Prosecution have also referred to Documents 1956-PS, Das Archiv, and 1680-PS, the article, 10 Jahre Sipo und SD, and also to a statement by Heydrich on occasion of the Day of the German Police. The Prosecution have further mentioned Document 1638-PS, the decree of the Reich Minister of the Interior, dated 11 November 1938, on the co-operation of all offices of general and interior administration with the SD.
In refutation of the interpretation of this decree, as given by the Prosecution, I wish to refer to the testimony of the witnesses Best and Hoeppner, and to Affidavit Number SD-36. With regard to the testimony of the witnesses Albath, Oldach, and Huelf I refer to Affidavit Number SD-71 by Schraepel to Affidavit Number SD-36, Figure 4c, and to Number SD-28. In establishing the relationship between the Stapo and the SD I refer to the testimony of Ehlich, Roessner, and Hoeppner, and to Affidavit Number SD-70, Section 6. In connection with Exhibit Number RF-1540 I refer to the testimony of the witness Roessner.
In substantiation of the fact that it may very well be correct that witnesses before the Tribunal, the Commission, or in their affidavits stated that the task of
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the SD had not consisted in supplying the Gestapo with material leading to the persecution of Political enemies, I am submitting two instances of evidence by persons who have not the slightest cause to give protection to the SD. The first concerns the affidavit given by Dr. Ritter, the well-known professor of modern history at the University of Freiburg. Dr. Ritter is an enemy of National Socialism and has never been a member of the Party or any of its organizations. He belonged to the Goerdeler Circle, and was to have been Minister of Culture in a cabinet to be formed by Goerdeler following 20 July 1944. Dr. Ritter's lectures were regularly recorded by the SD, Amt III. However, it is obvious from his affidavit that the SD failed to turn over the material collected against him to the Gestapo, although he was known to be an enemy of the regime. When Dr. Ritter was arrested in connection with 20 July 1944 his statements before the Gestapo could have been refuted by the material in the possession of Amt III, which however was not done.
Document Number SD-71, which I have also submitted, is a letter referring to the Prosecution Document R-142, which has repeatedly been mentioned during these proceedings. This is a letter by the local SD office in Kochem stating that the plebiscite of 10 April 1938 in Simmern had been checked and that It had been found that a clergyman, Wolferts, had voted "No." Wolferts has died in the meantime, but from a letter by his daughter it has been established that neither the SD nor the Gestapo took any steps against Wolferts on the grounds of his vote.
Such activities of the SD, therefore, were not intended to provide the Gestapo with material leading to the persecution of political enemies. In connection with this document I also refer to the testimony of the witnesses Hoeppner and Roessner. At the same time I wish to draw attention to the fact that it was the task of the SD to co-operate with all authorities, as can be seen from Documents Number SD-3 to 8, which I have submitted.
On the subject of the relationship between the SD and the Party the witness Hoeppner has spoken at considerable length. It is true that the SD was to keep the Party informed; a direct connection between the Party and the SD, however, has never existed (Document SD-15a, Affidavit SD-27). This has been established not only by the testimony of witnesses for the SD, but also from the statements of the witnesses interrogated on behalf of the Party; I refer to the testimony of Kuehl, Von Roedern, Biedermann, Schneider, Lauterbacher, Hirt, and Wolf. The witness Meyer-Wendeborn testified that the SD had developed on its own and had never received instructions. I also refer to the testimony of the witness Kaufmann, who was Gauleiter in Hamburg and stated that he was familiar with everything that occurred in his Gau with the exception of the activities of the Stapo and the SD.
In support of their claim that the SD had secretly marked ballot sups in order to be able to identify persons voting in the negative or turning in invalid ballot slips in a plebiscite, the Prosecution have put in another document emanating from the local SD office at Erfurt and dated May 1938 (Document GB-541). I would point to the fact that it was a local and therefore subordinate office, and by analogous reference to my Document Number SD-69 it may equally be assumed that nothing at all was undertaken with regard to persons voting in the negative. This, after all, is the essential criterion. These two documents are certainly not sufficient to provide proof for the fact that in general the SD was allotted the task of keeping a check on the plebiscites with a view to eliminating enemies of a conspiracy. As counter-evidence showing that these activities on the part of the local SD offices at Erfurt and Kochem were completely removed from the normal activity of the SD, I wish to refer to the Affidavit Number SD-27 by Albert, who was employed in the central office in Berlin. Albert has stated that the central office in Berlin never issued any instructions to affix secret markings to ballot slips in elections or plebiscites. As a matter of fact, there is no connection between the documents from Erfurt and Kochem. Erfurt calls for a report on probable negative voters before the election. Kochem reports after the election that persons belonging to the election committee in one small village of the area had marked ballot slips. This election committee had nothing to do with the local SD office. I also refer to the 196 affidavits for the entire territory of the Reich, which I have compiled in a list, and where it is stated that it was not the task of the SD to mark ballot slips or undertake similar action in order to detect negative voters. Such instructions or orders were never issued by the central office.
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The Prosecution have also suggested that the SD had exercised direct influence on the choice of Nazi leaders, and have submitted the affidavit by Dr. Hoettl (Document 2614-PS) in substantiation of their claim. In my supplementary affidavit, Number SD-27, Hoettl has declared that the SD did not exercise any direct influence on the choice of Nazi leaders, and I also refer to Affidavits Numbers SD-4 to 10, 39, 61, and 63, and to the affidavits compiled in the collective list, Number SD-70.
The Prosecution have furthermore alleged that the SD had checked the loyalty and reliability of civil servants. Here I refer to the testimony of the witnesses Hoengen and Roessner, and to Affidavits Numbers SD-3, 7, 8, 9, 61, 63, and Document Number SD-14, as well as to the affidavits compiled in the collective list, Number SD-70.
Concerning the aims, purposes, and methods of the indicted Amt III, I should like to refer to statements made in Document SD-70, the handbook of the Supreme Headquarters of the United Nations of April 1945. There it says:
"The SD maintained for its purposes a network of newsmen throughout all fields of life in Germany"--some words are missing--"who were recruited from all social strata and professions. The information gained through the newsmen was used in the situation reports....
"These reports are exceptionally frank and contain a complete and uncolored picture of the mood and attitude in Germany ...."
The correctness of this is proven by the 649 affidavits submitted in my summary and made by former full-time and honorary workers and Vertrauensmaenner (persons entrusted with special tasks) for the total area of the Reich and for parts of the Reich.
The aims, purposes, and-activities of Amt VI are shown by Affidavits SD-61, 62, and 66, also by Document SD-1.
In regard to Amt VI I refer particularly to Affidavit SD-66. I shall now turn to Section B: Crimes against Peace (Statement of Evidence V of the English trial brief against the Gestapo and SD).
As a crime against peace the SD is accused of having staged so-called border incidents before the outbreak of the war to give Hitler an excuse for starting the war. The Prosecution, however, referred to only one border incident in which the SD is alleged to have participated. That is the alleged attack on the Gleiwitz radio station.
In this connection the Prosecution made reference to the affidavit of Alfred Naujocks of 20 November 1945. This is Prosecution Document 2751-PS. The deponent of Document 2751-PS, Alfred Naujocks, was heard before the Commission. On that occasion he declared that the execution of the attack on the Gleiwitz radio station was not included in the aims and purposes of Aemter III and VI.
The witness further testified that no sections of Aemter III and VI were used for the execution of that border incident in Gleiwitz and
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that the men who with him attacked the Gleiwitz station did not belong to the SD, Amt III.
The witness also stated that by the term "SD men" in his affidavit of 20 November 1945 he did not mean the members of any definite office of the RSHA; but common usage of the term "SD men" referred to RSHA members of all offices which were subordinate to Heydrich.
The witness further stated that he was charged with the execution of the border incident at Gleiwitz, not because he belonged to Amt VI and worked there, but that exclusively personal reasons were responsible for that decision. The witness testified that on the basis of the conversation he had had with Heydrich he had gained the impression that Heydrich would have given him that assignment even if he had not been a member of Amt VI and the SS. The order for the execution of this assignment reached the witness Naujocks not through the official channels of the chiefs of Aemter III or VI. The chiefs of Aemter III and VI had no knowledge of this action.
The members of the SD, Amt III and Amt VI, had no knowledge that the attack was carried out by Naujocks, a member of Amt VI. Particularly the members of the SD-Leitabschnitt which was in charge of Gleiwitz, and the outpost of the SD, had no knowledge of this activity and could not have had, because Naujocks had been forbidden to get in touch with any members of the SD whatsoever in that territory.
The statements of this witness have been reaffirmed by the witness Somman and through Affidavit Number SD-11, deposed by Dr. Marx. I also submitted 215 affidavits for the office of the RSHA as well as for all territories of the SD-Leitabschnitte and the SD-Abschnitte, particularly for those situated in the regions of Katowice, Danzig, and Saxony. Those affidavits testify that the members of the SD during the critical time had no knowledge of the faked border incidents or the participation of the SD in them. The affidavit by the witness Dr. Mildner (2479-PS) is refuted by the testimony of the witness Naujocks and Affidavit Number SD-11, Dr. Marx. This subject matter does not provide sufficient grounds to declare the SD to have been criminal, since this would presuppose proof of the fact that the SD as an organization was employed in the aggression, and that its members had cognizance thereof.
The Prosecution have also submitted Document Number USSR-509 as proof of the fact that the SD had participated in the preparations for a solution by force of the Czechoslovakian problems. The first letter bearing the Number III 225 is a draft without reference number and date, which was signed only by the official who prepared it. His superiors failed to sign the draft and rejected it. The other letter should carry no weight as far as the organization of the SD is concerned, because no proof is forthcoming to show that such activities were known to all members. The letter indicates that this was clearly not the case. In the course of the session of 2 August 1946 the Prosecution have alleged that this document also contains a reference to the preparation of liquidations. As will be seen from Page 7 of the first letter this is not the case.
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In order to judge whether the SD can be declared criminal on the grounds of the activities of the Einsatzgruppen, the following questions must be examined:
1. Did the Einsatzgruppen A, B, C, and D, which were assigned in the East to the army groups, belong to the organization of Aemter III, VI, and VII?
2. Were parts of these office organizations used in these Einsatzgruppen?
3. Did the Aemter III, VI, or VII give orders to the Einsatzgruppen to commit crimes against the laws of war and against humanity?
4. Did the members of the Domestic Intelligence Service (Amt III), or of the Foreign Intelligence Service (Amt VI), have any knowledge of the activities of the Einsatzgruppen, which are crimes in the sense of the Charter? First I must rectify an error. In this Trial and before the Commission the Einsatzgruppen have repeatedly been designated as Einsatzgruppen of the SD, up to a short time ago. As an example, I refer in particular to the records of Keitel, Dr. Best, Hausser, and Von Manstein. This designation is wrong. The four Einsatzgruppen employed in the East were designated A, B, C, and D. They had under them the Einsatzkommandos, which were designated by the Numbers 1 to 12. Thus the word "SD" is mentioned neither in the designation of the Einsatzgruppen nor of the Einsatzkommandos. Furthermore, there was no reason for that since, according to the evidence submitted by the Prosecution, only 3 percent of their members were part of the SD Aemter III or VI. The members of the SD were in the eighth place, as far As membership was concerned. I refer you to the statistics found in Document L-180 submitted by the Prosecution and repeated in the record of 20 December 1945.
The designation of the Einsatzgruppen is also shown by the distribution list of Prosecution Document D-569. This shows the various relationships. The Einsatzkommandos 1-a, 1-b, 2, and 3 were under Einsatzgruppe A; Einsatzkommandos 7-a, 7-b, 8, and 9 -- Moscow -- were under Einsatzgruppe B; 4-a, 4-b, 5, and 6 were under Einsatzgruppe C; 10-a, 10-b, 11-a, 11-b, and 12 were under Einsatzgruppe D.
The setting up of the Einsatzgruppen was not ordered by Aemter III, VI, or VII, but by Himmler on the basis of an agreement with the High Command of the Army. I refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, to Document USA-557, and Affidavits Numbers SD-41 and 46. The evidence has shown further that the Einsatzgruppen and Einsatzkommandos were not under the orders of Aemter III, VI, and VIL I refer again to Document USA-557, Affidavits SD-41, 44, and 46, to the record of 3 January
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1946, to Prosecution Document L-180, Pages 2 and 3, to the record of 5 June 1946 and Document 2620-PS.
If one considers in particular the constitution of the Einsatzgruppen, which is set forth in the record of 20 December 1945, one will have to admit, as has been deposed by the witness Hoeppner and confirmed by the witness Bendt in Affidavit SD-41, that this concerns an affiliation of a special kind of persons who did not belong to the organizations of Aemter III, VI, or VII. The evidence has further shown that no parts of the organizations of Aemter III, VI, or VII were employed in the Einsatzgruppen and Einsatzkommandos, and that the Aemter III, VI, and VII did not issue any orders for -the mass destruction carried out by the Einsatzgruppen. I refer to Affidavit SD-61, Affidavit SD-41, particularly the answers to Questions Numbers 6 and 9, and to Affidavit SD-44, Numbers 4 and 5.
The Einsatzgruppen and the Einsatzkommandos are special units which deviated in their composition entirely from the structure of the Security Police and SD in the Reich itself. I refer in this connection to the statements of Ohlendorf and Hoeppner and to Affidavits SD-41 and SD-46. The witness Best testified (Record of 31 July 1946): "They were Security Police units of a special kind." It is of decisive significance for the question whether the organization can be declared criminal that no parts of the SD, Aemter III, VI, or VII, were employed in the Einsatzgruppen, but only individual members were assigned to these Einsatzgruppen as. a result of legal regulations. In this connection Hoettl's affidavit of 10 April 1946 seems especially important to me. I emphasize that this is a Prosecution document. Hoettl declared in the affidavit mentioned that the membership of the people in the SD was inactive during their affiliation with the Einsatzgruppen.
Insofar as members of Aemter III, VI, and VII were assigned by legal order to the Einsatzgruppen and Einsatzkommandos in the East, I refer for their tasks and activities to the testimony of Dr. Ehlich and Von Manstein, and to Affidavit SD-69.
The selection of the members of the Security Service for the Einsatzgruppen and Einsatzkommandos was not carried out on the basis of their position and duties in the Reich offices. For that point I refer to the testimony of Ohlendorf (Record of 3 January 1946) and Affidavits SD-41 and SD-45.
Thus I come to the conclusion:
(1) Einsatzgruppen A, B, C, and D did not belong to the Domestic Intelligence Service, Amt III, to the Foreign Intelligence Service, Amt VI, or to Amt VIL
(2) No parts of this organization were used for this purpose, but individual members were assigned to the Einsatzgruppen.
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(3) The legal position of these persons was the same as, for example, that of persons who had been called up for military service. Their affiliation with Aemter III, VI, or VII was inactive. They were no longer subject to instructions from their original offices. I skip the next pages, that is, 64, 65, 66, 67. Pages 68 to 71 deal with Einsatzkommandos in prisoner-of-war camps.
THE PRESIDENT: Dr. Gawlik, the Tribunal understands that the SS, the Gestapo, and the SD all disclaim responsibility for the Einsatzgruppen. Could you tell the Tribunal who is responsible for the Einsatzgruppen?
DR. GAWLIK: The Einsatzgruppen were subordinated to -- the responsibility may be seen from my statement on Page 61. I should like to refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, and to Document ...
THE PRESIDENT: Dr. Gawlik, the Tribunal would like to know who you say was responsible for the Einsatzgruppen. They do not want to be referred to a crowd of documents and a crowd of witnesses. They want to know what your contention is.
DR. GAWLIK: The Einsatzgruppen, in my opinion, were organizations of a special kind which were directly under Himmler, and for the rest, the testimony of the witnesses diverges as to how far they were subordinate to the commanders-in-chief. Some of the witnesses have stated that they were subordinate to the commanders-in-chief, and some disputed this. As far as this question is concerned, I cannot define my attitude.
THE PRESIDENT: Was it possible, according to your contention, for Himmler to control these Einsatzgruppen without any organization, and if it was not, what organization controlled it?
DR. GAWLIK: The Einsatzgruppen had their own head, as may be seen from Prosecution Document L-180, the Stahlecker report. Stahlecker was the Chief of the Einsatzgruppe A, and this man probably sent this report, which was found, directly to Himmler, and from that I may assume that the heads of the Einsatzgruppen were directly under Himmler. That was a subordinate organization along with the RSHA for occupied countries. Your Lordship, may I...
THE PRESIDENT: Can you tell the Tribunal who were the individual men who composed the Einsatzgruppen? Did they consist of SS or SA or SD or the Wehrmacht?
DR. GAWLIK: Your Lordship, the composition may be seen in the record of 20 December 1945. I do not remember them exactly, Your Lordship, but I do know that they included Waffen-SS, Criminal Police, Stapo, SD ...
THE PRESIDENT: You are too fast. Waffen-SS?
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DR. GAWLIK: Waffen-SS, Criminal Police, Stapo, SD, and on this page, as far as I can recall, drivers are mentioned, and I believe interpreters, but I cannot say for certain. The various groups are stated exactly on this page, Your Lordship, which is Page 17 ...
THE PRESIDENT: I have down Waffen-SS, Criminal Police ... The last one I have got here is NSKK. What did you give then?
DR. GAWLIK: No, Your Lordship, not NSKK.
THE PRESIDENT: Waffen-SS, Criminal Police ...
DR. GAWLIK: Yes.
THE PRESIDENT: State Police?
DR. GAWLIK: Yes.
THE PRESIDENT: SD?
DR. GAWLIK: Yes.
THE PRESIDENT: NSKK?
DR. GAWLIK: No, drivers.
THE PRESIDENT: Well, I have crossed out NSKK.
DR. GAWLIK: Your Lordship, it is an error. The NSKK is not involved.
THE PRESIDENT: I have crossed out NSKK. Is there anything else? Any Gestapo?
DR. GAWLIK: Yes, Gestapo, of course. Your Lordship, State Police and Gestapo are identical. Interpreters are enumerated in this document. I believe -- as far as I can remember--these were the main groups, but at the moment I cannot tell you for certain.
THE PRESIDENT: Thank you.
DR. GAWLIK: I beg your pardon, did Your Lordship wish to know the chiefs of the Einsatzgruppen or the members?
THE PRESIDENT: I meant the memberships.
DR. GAWLIK: Yes, that is quite correct. Your Lordship, I wanted to add that altogether there were 1,000 to 1,200 men in these four Einsatzgruppen.
THE PRESIDENT: How many did you say?
DR. GAWLIK: One thousand to approximately 1,200 men, and from the SD there were 3 percent. That may be seen from the document. It is Document L-180. The setup is shown there.
THE PRESIDENT: We will adjourn for a recess.
[A recess was taken.]
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DR. GAWLIK: Your Lordship, I shall have to correct my statement regarding the Einsatzgruppen on one point. I procured Document L-180 during the recess, and the total strength of Einsatzgruppe A was 990 men. It was composed as follows:
Waffen-SS, 34 percent; drivers, 17 percent; administration, 1.8 percent; SD 3.5 percent; Criminal Police 4.1 percent; Stapo, 9 percent; Auxiliary Police, 8.8 percent -- those, Your Lordship, were apparently indigenous police from the occupied territories -- Regular Police, 13.4 percent; female employees, 1.3 percent; interpreters, 5.1 percent; teletypists, 0.3 percent; wireless operators, 0.8 percent.
That is Einsatzgruppe A, as far as I know; no documents are available for Einsatzgruppen B, C, and D, but the witnesses have testified that Groups B, C, and D had about the same ratio.
THE PRESIDENT: Then the extent is nearly four times as large as you said?
DR. GAWLIK: Yes.
THE PRESIDENT: Can you give a date for that constitution of Group A? What date was that, that constitution of those percentages?
DR. GAWLIK: The Einsatzgruppe D was formed before the beginning of the campaign, before June 1941.
THE PRESIDENT: When you get down to 0.3 percent, that must have been at a certain time. It could not have remained 0.3 percent all the time, could it, or is that an establishment?
DR. GAWLIK: Your Lordship, I do not understand. Which 0.3 percent do you mean?
THE PRESIDENT: I meant teletypists, 0.3 percent; wireless, 0.8 percent--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?
DR. GAWLIK: They are average figures, Your Lordship. They may have changed slightly during the war, either more or less.
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
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Bullet Decree (Statement of Evidence VI-C). Pages 76 up to 79 deal with concentration camps (Statement of Evidence VI-D), Pages 80 to 83 deal with deportation (Statement of Evidence VI-E). Pages 84 to 89 deal with the Commando Order (Statement of Evidence VI-F) Pages 90 to 93 deal with the Nacht-und-Nebel Decree (Statement of Evidence VI-G). Pages 94 up to 96 deal with summary proceedings (Statement of Evidence VI-H). Pages 97 and 98 deal with liability of next of kin (Statement of Evidence VI-E). Pages 99 and 100 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 interrogations (Statement of Evidence VI-L); 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 tasks and activities, as indicted here as executive tasks, were not within the competence of Aemter III, VI, and VII (Affidavits SD-41, 42, 45, 46). In Document 3428-PS the head of the SD and the SD itself are constantly referred to, but this, as is apparent from the above-mentioned context, obviously refers to the office of the Security Police and the SD. I refer in particular to the Affidavit Number SD-69 of Breiter.
A number of documents, such as Exhibits Numbers USSR-1, USSR-6, and USSR-119, submitted by the Prosecution, mention the SD. Here too, however, the evidence can be taken to show that this cannot refer to the Aemter III and VI--Domestic Intelligence Service and Foreign Intelligence Service--or AmtVII of the SD, which are under indictment. In this context I also refer to Document 2992-PS, the statement by Graebe.
Graebe declared that during the shooting of Jewish men, women, and children at the airport at Rovno an SS man, wearing SS uniform with an SD badge on his left arm, had been sitting on top of the ditch. This fact is not sufficient to provide proof of the fact that this was really a member of Aemter III, VI or VII, for in the occupied territories members of the Einsatzgruppen and the units under the commander of the Security Police and the SD, in particular the officials of the Gestapo and the Criminal Police, all used to wear the same uniform with an SD badge. This was the uniform of the SS special formation SD, not the uniform of Aemter III and VI. The SS Sturmbannfuehrer Puetz, mentioned in Graebe's report, was not a member of the SD, but a Government Counsellor and an official of the Gestapo. For this I also refer to Affidavit Number SD-50 by Wanninger.
The Prosecution have also submitted Document Number 501-PS on the use of gas vans. I must point out that Amt III never issued instructions on the use of gas vans, as testified by the witness Dr. Ehlich. Document 501-PS submitted by the Prosecution shows by its reference Number II that the matter of gas vans was dealt with in Amt II of the RSHA.
The SS ObersturmbannFuehrer Rauff mentioned in the document was not a member of Aemter III and VI, but a group chief in Amt II of the RSHA. He was at that time in charge of motor transport. I refer in this connection to the testimony of the witnesses Ohlendorf and Hoeppner (Session of 3 January 1946) and to 60 affidavits from the entire Reich and the occupied territories for the period from 1941 to 1945, according to which the SD had nothing to do with the use of gas vans.
As regards the Prosecution Document 1475-PS I have already referred to Affidavit Number SD-69.
In the Prosecution Document L-180, the Stahlecker report, it is stated in enclosure Number 8 that the SD Section Tilsit had participated in liquidating Communists and Jews. For this I refer to Affidavit Number SD-12 by Ziebs. Ziebs belonged to the SD Main Section Koenigsberg, which received reports from the subsidiary SD Section Tilsit. Ziebs stated that the SD Main Section Koenigsberg never issued any such order and that no information was received there on the events described in the Stahlecker report. He, therefore, considers this
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statement to be a mistake as to the place or the subject-matter. If members of the SD Section Tilsit should have participated in the execution of Jews and Communists, which Ziebs himself considers quite impossible, such activity would have been outside the scope of the tasks of the SD Section Tilsit and would certainly not have become known.
The members of the Domestic Intelligence Service, the Foreign Intelligence Service, and Amt VII had no knowledge of the activities of the Einsatzgruppen, especially not of shootings.
Document 3867-PS, submitted by the Prosecution, shows that the distribution
contained no office of the SD (Amt: III, VI, or VII or subsidiary offices). The
reference Number IV A 1 indicates that the reports were compiled in an office of
Amt IV (Gestapo).
The witness Hoeppner stated before the Tribunal that the Einsatzgruppen reports were not forwarded to subsidiary offices in the Reich and that members of SD offices in the Reich could not have had cognizance of the contents of the reports, including shootings of Jews and Communists. These reports went to only a few members of Amt III who were concerned with intelligence from the Eastern territories. I refer to the Affidavits Numbers SD-44, 47, 41, 48, 49, and 61; also to Document 2752-PS and the testimony of the witnesses Ehlich and Hoeppner.
I have also submitted 127 affidavits from all parts of the Reich for the period between 1941 and the end of the war, which prove in the main that (1) an members of the Einsatzgruppen were usually referred to as "SD" owing to their uniform equipment with the SD badge; (2) the employment of members of the SD in mass killings was not known to SD members in the offices within the Reich; (3) the honorary assistants of the SD had- no knowledge of the activities of the Einsatzgruppen and Einsatzkommandos in the East.
II. Einsatzkommandos in prisoner-of-war camps. The SD is also charged with having formed special formations in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable persons. My Documents Number SD 18-22 prove that this was not the task of the SD, but solely of the Stapo. These documents also show in particular that these Kommandos were not designated "Einsatzkommandos of the SD," as stated by the witness Lahousen. The Defendant Jodl has confirmed the fact that prisoners of war were never turned over to the SD for special treatment, since the SD had entirely different tasks. The Defendant Jodl testified that prisoners of war were at the utmost turned over to the Security Police. It may thus be assumed to have been proved that the SD did not take part in these acts and was not employed for that purpose.
Although the witness Warlimont in his affidavit mentions that political functionaries were to be transferred to the SD (Document 2884-PS), this, in the light of the statement of the Defendant Jodl, may be taken to be a mistake in terminology, and presumably refers to the Gestapo. The documents submitted by the Prosecution fail to prove the contrary.
The witness Lahousen, in his affidavit of 14 November 1945 (Document 2846-PS), mentions the SD, although obviously he means the Security Police. This is clearly apparent from a statement he made before the Tribunal on 30 November 1945. According to the minutes of a conference which took place on the subject of the employment of these Kommandos between General Reinecke and Mueller during the summer of 1941, he mentions Obergruppenfuehrer Mueller of the SD (Session of 30 November 1945). The Tribunal is familiar with the fact that Mueller never belonged to the SD, Amt III or VI, and that he was the Chief of Amt IV, Gestapo, until the end. The witness Lahousen thus evidently was not referring to the SD, Amt III or VI, but to the Gestapo. The testimony of the witness Lahousen clearly indicates the competency of the Gestapo. He testified that Mueller had taken part in the conference because he was competent for the executions in prisoner-of-war camps.
Document 502-PS supplies no proof of any participation of the SD. On the contrary, it proves that the Gestapo alone was competent for such measures, for the fourth paragraph before the end specifies that the Chief of the Einsatzkommandos was to contact the chief of the nearest local Gestapo office in connection with any executions or other measures. The Prosecution Document 1165-PS also proves that only the Gestapo was competent for such action, because these instructions, which referred to the executions undertaken, are
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forwarded by Mueller, the Amtschef of the Gestapo, to all Gestapo offices. Had the SD, Amt III or VI, in any way participated in such action, these instructions would equally have been forwarded to all SD offices. Document R-178 consistently, though erroneously, speaks of Einsatzkommandos of the Chief of the Security Police and the SD employed for the purpose of selection. The fact is that--as the document shows--only the Gestapo offices Munich, Regensburg, and Nuernberg-Fuerth undertook selection with their own special Kommandos. Captain Dr. Woelzl, mentioned on Page 21 of Document R-178, gave an affidavit saying that the SD had not participated in these selection Kommandos. In this connection I would also refer to Document 2884-PS. This is a decree by Warlimont, formerly Deputy Chief of Staff of the Wehrmachtfuehrungsstab, dated 12 May 1941, on the uniform handling of executions of British prisoners of war. In this decree Warlimont correctly designates the Einsatzkommandos as "Einsatzkommandos of the Security Police." The fact that the Gestapo alone was competent for executions of prisoners of war is apparent from an affidavit by Lindow. Lindow states that Section IV A I had a subsection directed by the Regierungsoberinspektor, later Regierungsamtmann, and SS HauptsturmFuehrer Franz Koenigshaus. This dealt with prisoner-of-war matters.
This subsection also attended to the decrees and orders of Himmler during the years 1941 and 1942, according to which captured Soviet-Russian Political Commissars and Jewish soldiers were to be executed. Koenigshaus is stated to have prepared the orders for the executions and submitted them to Mueller, the Chief of Amt IV. Early in 1943 the subsection was dissolved and distributed among the sections of IV B, according to countries concerned. In particular Lindow stated that the Einsatzkommandos in the prisoner-of-war camps had been directed by members of the Gestapo (Figure 4 of the Lindow affidavit, Document 2542-PS).
In proving my contention that the SD, Amt III, had no hand in these measures, I also refer to the affidavit by Fromm (SD-56). In this affidavit Fromm declared that the SD had special formations in the Government General. As to the territory of France, the witness Knochen stated before the Commission that no such special formations of the SD were employed in prisoner-of-war camps in France. I also draw attention to the testimony of the witness Ehlich before the Commission, who stated that such measures were not the task and activity of the SD, Amt III.
As for Amt VI, I refer to Affidavit Number SD-61, where the Witness Schellenberg has testified that Amt VI was not competent either and was never employed in this connection. For Amt VII the witness Dittel made the same declaration (SD-63).
I also submitted 266 affidavits showing that in Russia, Poland, Alsace, Italy, Yugoslavia, Czechoslovakia, Lorraine, and the following regions of Germany: South Hanover-Brunswick, the Saar territory, the Palatinate, Munich-Upper Bavaria, Cologne, Wuerttemberg, East Prussia, Upper Danube, Vienna, Military District VII, Bavaria, West Prussia, Styria, the Sudetenland, Hamburg, Upper Silesia, the Tyrol, Central Germany, Eastern Bavaria, Westphalia, Magdeburg-Anhalt, Berlin-Brandenburg, Swabia, Silesia, Central Franconia, Wartheland, Thuringia, Bremen, Holstein, Hesse, Saxony, and in a large number of cities, the SD did not have Kommandos in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable prisoners of war. The declarations comprise the period between 1939 and 1945.
Bullet Decree. For the execution of the Bullet Decree the SD within the Reich, Amt III, was equally not competent, and it has never been employed for this purpose. The responsibility and competency for this decree has been correctly described by defense counsel for the Defendant Goering. It is stated that Hitler, in the absence of Keitel, gave the order for the shootings to Himmler, who directly transmitted it to Mueller and Nebe. Mueller was Amtschef of the Gestapo, Nebe Amtschef of the Criminal Police. This proves that the Stapo and the Criminal Police were competent for the execution of the order. This also becomes clear from Document D-569 with annex, the decree by the Chief of the Security Police and the SD dated 11 December 1941, embodying an ordinance from the OKW of 22 November 1941.
The decree of 11 December 1941 specifies that Soviet prisoners of war were to be transferred to the Stapo or the Einsatzkommandos. The ordinance by the OKW, dated 22 November 1941, provides that escaped Soviet prisoners of war
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were in every case to be turned over to the nearest office of the Gestapo, such transfer to be subsequently reported to the Wehrmacht Information Center. I also refer to the teletype by Mueller dated 4 March 1944 (Document 1650-PS, USA-246), which is addressed only to the Stapo offices and the inspectors of the Security Police and the SD. This teletype contains orders for the Stapo offices to report on the execution of the order. Paragraph 2 then goes on to state that the prisoners of war were to be turned over to the local police office. Paragraph 3 mentions that escaped and recaptured British and American officers and nonworking NCO's were to be held in police detention in the locality of the Stapo office. Paragraph 5 indicates that the local administrative and police authorities were advised of this decree. Aemter III and VI were not informed, which would have been indispensable had they had any part in these measures. Clearly the Prosecution have assumed participation of the SD from the fact that the Amtschef of the Gestapo, Mueller, signed the decree as Deputy Chief of the Security Police and the SD, and also forwarded it to the inspectors of the Security Police and the SD. These titles, however, give no indication of any participation on the part of the SD.
The Prosecution have also referred to a letter from the Military District Command VI, dated 27 July 1944 (Document 1514-PS), but this document equally shows no participation on the part of the SD. In the heading preceding Figure 1 transfer to the Gestapo is specifically mentioned, and Figure 1a states that the camp commander was to transfer the prisoners of war to the Gestapo, while Figure 1b says that the prisoners of war were to be turned over to the nearest police office. Figure 1c mentions that recaptured officers were to be turned over to the Gestapo and Figure 1d specifies that Soviet officers refusing to work were to be transferred to the nearest Stapo office. Figures e, g, 3 and 4 equally only mention that the prisoners of war should be turned over to the Gestapo. The Document contains no orders indicating any participation of the SD. Under Figure 1f mention is made of the selection Kommandos, which are here designated as Einsatzkommandos of the Security Police and the SD. I have already enlarged upon the fact that the SD took no part in these Einsatzkommandos either, so that this is obviously an error in terminology. The statement under oath by Willi Litzenberg (Document 2478-PS) also provides proof that only the Security Police had a hand in these measures. The SD, Amt III, VI, and VII, is not mentioned at all in this document.
The hearing of evidence for the Tribunal has shown that the Bullet Decree was executed by the Gestapo and the Criminal Police and that the SD did not participate. I refer in particular to the statements of General Westhoff (Session of 10 April 1946). I also refer to the testimony of a Senior Government Counsellor of the Criminal Police, Max Wielen, who was interrogated on the subject of the shooting of 50 RAF officers from the camp at Sagan. Wielen testified that the shooting was carried out by officials of the Gestapo (Session of 10 April 1946).
In this connection I also refer to the testimony of Keitel, who stated that Hitler had given orders that the prisoners of war were not to be returned to the Wehrmacht, but were to remain in the custody of the Police. The witnesses Roessner and Ehlich have also testified that the SD did not participate in the execution of the Bullet Decree and had no knowledge of this. As for Amt VI, the former Amtschef Schellenberg has made the same declaration in Affidavit Number SD-61, while Dittel, at the end Deputy Amtschef VII, has done the same for that Amt by Affidavit Number SD-63. I also refer to Affidavit 56, where Fromm made that declaration for the Government General, and the testimony of Knochen to the same effect for France.
I have submitted 288 affidavits showing that in the entire territory in the Reich, in the occupied Russian territory, and in the occupied territories of France, Lorraine, Italy, Czechoslovakia, Yugoslavia, and Poland the SD had nothing to do with the execution of the Bullet Decree. The statements cover the period between 1939 and 1945.
Concentration Camps. Under Figure VI D of the trial brief against the Gestapo and the SD the SD is further accused of having been responsible for the institution and distribution of concentration Camps and for the assignment of racially and politically undesirable persons to concentration and extermination camps for the purpose of forced labor and mass murder.
The trial brief against the SS charges the SD with having been employed by the conspirators for the purpose of safeguarding their power by means of the
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concentration camps, and thereby terrorizing any opponents. The Prosecutor for the United States on 19 December 1945 suggested that the SD and the Security Police had participated in the system of concentration camps when they detected and arrested victims.
Nothing however has been stated in substantiation of these allegations. The entire Section VI D of the trial brief does not even mention the SD, except in the heading. The Prosecution themselves, referring to Prosecution Documents 2108-PS--which is contained in my document book under Number SD-36a -- and 1723-PS, state in Section VID on Page 43 of the trial brief that the Gestapo alone had authority to place persons in protective custody and that the Gestapo possessed instructions to institute concentration camps, transform prisoner-of-war camps into concentration camps, set up corrective labor camps and to form special sections for female prisoners. I therefore believe that I can be very brief on this subject.
The statements by the Prosecution also prove that the Gestapo was competent for the institution and distribution of concentration camps and that the local Gestapo offices carried out arrests (Session of 2 January 1946). The proceedings have demonstrated that the entire administration of the concentration camps (food, accommodation, camp regulations) was the task of the WVHA, which was directed by Pohl. Here I refer in particular to the testimony of Kaltenbrunner (Session of 11 April 1946). The Inspector of Concentration Camps was immediately subordinated to Himmler. I also refer to the testimony of the witness Hoess, and the same is shown by the documents submitted by the Prosecution. The Prosecution Documents D-50 and D-46 also show the sole competency of the Gestapo. The documents were issued by Amt IV of the Reich Security Main Office and signed by Mueller, the Chief of that Amt. The Aemter III, VI and VII were not even informed of these decrees. The reference Number IV on Document 1063 A-PS also indicates that the Gestapo was exclusively competent, and it is irrelevant that the document was issued by Heydrich as Chief of the Security Police and the SD. This fact in itself does not indicate the competency of the SD, and from the distribution it can be seen that the SD In no way participated.
From none of the other documents mentioned on Pages 44 to 46 of the trial brief (2477-PS, 1531-PS, L-358, L-215, 1472-PS, 1063-D-PS, L-41, 1063-E-PS, 701-PS and 2615-PS) does any participation of the SD in the infliction of protective custody or assignment to a concentration or corrective labor camp result. The very statements of the Prosecution and the documents submitted by them thus go to show that the SD bad nothing to do with the institution and distribution of concentration camps and the transfer of racially and politically undesirable persons to extermination camps for the purpose of forced labor or mass murder. In Document 3012-PS mention is made of an escape of SD prisoners, but from the context of the document it is clear that this refers to prisoners of the Sonderkommando IV A which had no contact, as far as organization goes, with the SD, Amt III, VI or VII.
I also refer to the testimony of Kaltenbrunner (Session of 11 April 1946), the affidavit by Dr. Mildner (Document Book Kaltenbrunner, Page 1), the testimony of Knochen, and the testimony of Von Eberstein, which equally show that the SD had nothing to do with concentration camps. Schellenberg and Dittel have shown in their Affidavits Numbers SD-61 and 63 that the Aemter VI and VII had nothing to do with the institution, distribution, and assignment of concentration camps either. I also refer to the affidavit by Fromm (Affidavit SD-56) and the affidavit by Laube (Affidavit SD-54), who have affirmed, for the former Government General and for France respectively, that the SD had no part in the assignment of persons to concentration camps or in the administration of such camps. In the case of France this was confirmed by the witness Knochen. As to the documents submitted by the Prosecution I refer to the testimony of the witness Dr. Ehlich (R-112, USA-309).
I also submit 289 affidavits for the entire range of the SD Hauptamt, as well as for the whole territory of the Reich and numerous occupied territories. The authors of these affidavits, which cover the period between 1934 and 1945, have stated as regards these territories that the SD had nothing to do with the institution and guarding of concentration camps, or with the assignment of persons to such camps.
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Deportation. As a further charge against the SD the Prosecution have stated that the SD had participated in mass deportation of citizens of occupied countries for the purpose of forced labor. Furthermore, the Gestapo and the SD are alleged to have been in charge of punishment inflicted on forced laborers. The Prosecution have claimed that the important position which, besides the Gestapo, the SD had held on the subject of arrests for the purpose of forced labor, resulted from the following documents: L-61, 3012-PS, 1573-PS, 1063-B-PS. However, these very documents already provide proof of the fact that the SD was not competent for the entire subject-matter and did not become active in the execution.
Document L-61 is a letter by the Defendant Sauckel, dated 26 November 1942, to the presidents of the Provincial Labor Offices, in which it is mentioned that the Chief of the Security Police and the SD, In other words, Heydrich, had informed him that in the course of the month of November the Poles would be evacuated from the district of Lublin. This communication on the part of Heydrich, however, in no way shows that Heydrich made use of the Aemter III, VI, and VII for the purpose of this evacuation -- if it was carried out at all, which is by no means certain. Such a procedure is, on the contrary, unlikely, for evacuation did not feature among the tasks incumbent on these Aemter. Document 3012-PS is a letter from the Chief of the Sonderkommando IVa to the Kommando chiefs of his subsidiary Kommandos. I have already indicated that the Einsatzgruppen were entirely independent organizations from the Aemter III, VI, and VII, so that this document cannot be looked upon as incriminating any one of the Aemter named. Incidentally the document shows that the deportation was not carried out by the SD, but by the Security Police. It states literally:
"In view of the present political situation, particularly with regard to the armament industry within the Reich, Security Police measures must be largely subordinated to the problem of the mobilization of labor in Germany." In all other places this document also only mentions measures to be carried out by the Security Police.
The next Prosecution Document, 1573-PS, clearly demonstrates the competency for the execution of measures directed against foreign workers, and also indicates that such measures were applied by the State Police. This document bears the reference Number IV. It is signed by Mueller and addressed only to State Police offices, the SD not even being mentioned in the letter, if only for information. It would undoubtedly have had to have been addressed to the SD too, if, as the Prosecution alleges, that agency had been employed in applying these measures. As far as corrective labor camps are concerned, the Prosecution Document 1063 B-PS clearly shows that the Security Police was exclusively competent for them.
It says in this document:
"The Relchsfuehrer SS has authorized, apart from the concentration camps administered by the WVHA, the institution of labor corrective camps, which will be exclusively in the competence of the Security Police."
During the session of 12 December 1945 the Prosecution have submitted a secret order by Hitler of 20 February 1942 (Document 3040-PS), concerning Eastern Workers and measures of compulsion to be employed in connection with them, and have alleged that this order had been addressed to the SD police officers, who never existed. The SD had no officers; only the Police did. From the contents of this document it can be seen clearly and without any doubt that the Gestapo alone was competent. It says in this document:
"Lack of discipline, which includes refusal to work in disobedience to orders and slackness in work, will be combated only by the German State Police. Simple cases will be settled by the chief of the guard on the instructions of the State Police. In serious cases ... the Gestapo will intervene with the means at its disposal."
In connection with the Prosecution affidavit made by Dr. Wilhelm Hoettl (Document 2614-PS) I have submitted the supplementary Affidavit Number SD-37 and the affidavit Gahrmann Number SD-38. Beyond this, in proving that the SD took no part in deportations, I refer to the testimony of the witness Ehlich before the Commission, the affidavit by Fromm, Number SD-56, and by Laube,
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Number SD-54. The affidavit by Fromm, in particular, refutes the Prosecution Document L-61. As for France, the witness Knochen has testified that the SD did not participate in deportations.
The Prosecution Document 1063-PS also shows that the corrective labor camps were not subordinate to the SD, Amt III, VI, or VII. In, this document it says specifically that the corrective labor camps were solely the competence of the Security Police. In particular I wish to refer to the testimony of the witness Albath before the Commission, who confirms this fact. I have also submitted 276 affidavits by which members of the SD for the period between 1939 and 1945 have stated, as regards the territories formerly occupied by Germany of Alsace, Russia, Poland, France, Belgium, Italy, Yugoslavia, Czechoslovakia, and the entire territory of the Reich, that the SD was not employed in connection with the deportation for forced labor or in guarding forced labor camps.
As far as Aemter VI and VII are concerned, I refer to the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63), which show that these Aemter were not active in the deportation and did not guard forced labor either.
Furthermore, it is stated in the trial brief against the SS, III G, that immigration centers were organized for the purpose of conducting evacuations under the control of the Chief of the Security Police and the SD and the Chief of the Reich Security Main Office. In this connection the Prosecution cite Document L-49, an affidavit by Otto Hoffmann. For this I refer to the testimony by Dr. Ehlich and the affidavit by Sandberger (Affidavit SD-64). Commando Order. A further accusation brought against the SD of having participated in the execution of the Commando Order is due to the fact that the Wehrmacht agencies by mistake used the abbreviation "SD" for the Security Police. In this connection I would refer to my earlier statements in the second chapter. The fact that in documents and interrogations of witnesses the term SD has been used, although no reference to the Aemter III and VI was intended, can be traced to this repeated error in terminology.
In the first place this applies to Document 498-PS, Exhibit USA-501. The distribution on this document clearly shows that "SD" was not intended to mean the intelligence service, Amt III or VI, but the Security Police. According to this distribution the Reichsfuehrer SS and Chief of the German Police had received the 16th and 17th copy, one being for the Main Office Security Police. Aemter III and VI do not figure in the distribution. If the SD in the Reich, Amt III, or abroad, Amt VI, had been competent for this measure, this order would have had to have been transmitted to these two Aemter, since otherwise they would not have been able to comply with it.
That, in fact, the execution of this order was not the task of the SD, Amt III or Amt VI, but of the Security Police, is clear from the letter by Mueller, dated 17 June 1944 (Document 1276-PS, USA-520) and addressed to the OKW. This letter deals with Hitler's order of 18 October 1942 and the execution thereof.
Among other things it says:
"Transfer to the Security Police will only be considered when such members of Commandos ..."
The last paragraph mentions security measures. The reference Number IV and the fact that the letter was written by Mueller, and not by one of the Amtschefs III or VI, clearly indicates that these measures were carried out by the Security Police, and not by Amt III and VI.
This particular document evidences the repeated error as to SD and Security Police; it is quite clear from this letter that the term SD was employed as an abbreviation for the Security Police. Although the text of the letter contains only the term Security Police, and it is specified that the Commandos are to be turned over to the Security Police, and that Security Police agencies shall assist in interrogations conducted by the Wehrmacht units, the letter contains a handwritten annotation by the official in charge at the OKW saying: "Thus arrested by SD."
Another mistake in terminology common in Wehrmacht agencies occurred when Admiral Wagner during his interrogation before the Tribunal on 14 May 1946 persisted in speaking of the SD in connection with the Trondheim incident.
The same mistake in the application of the word SD is contained in Prosecution Document 532-PS (Exhibit Number RF-361), a letter from Commander-in-Chief West
dated 26 June 1944, and in Documents Numbers 531-PS, 551-PS,
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(continued in part 5)
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Therefore, in this Trial before the International Military Tribunal it does not matter whether the SD supported the SS, the Gestapo, the Party, or individual persons of the State leadership, unless the Prosecution has brought proof of the prerequisites which I have indicated: (a) existence of a secret plan for the commission of crimes according to Article 6, and (b) knowledge on the part of the members of the SD.
Furthermore, the factual submission of the Prosecution concerning the co-operation of the SD with the SS, the Gestapo, or other persons, requires correction.
I have already explained that the SD did not form part of the SS, but that the Domestic Intelligence Service and the Foreign Intelligence Service were independent organizations. The question arises whether the independent organization of the SD aided the independent organization of the SS in pursuing its aims and tasks.
The Prosecution have claimed that this was the case. In refutation of this I wish to draw attention to the testimony of the witness Hoeppner and to the affidavit (Number SD-27) by Albert, who have stated that the SD could be considered an SS Intelligence Service only until the beginning of the year 1934, but that this task had been discontinued as from that date, so that the SD became the general Intelligence center for the State and the Party. These facts have been corroborated both by the witnesses Ohlendorf and Hoeppner and by the SS witnesses Pohl, Hausser, and Reinecke.
As regards the position of the SD in relation to the Police, the Prosecution have maintained that the SD formed part of a uniform police system and that the two sections had been merged into a powerful, politically centralized police system (Session of 19 December 1945). Specifically, the SD did not become part of the Police or of a police system either by the appointment of Himmler as Deputy Chief of the Gestapo in Prussia, or the appointment of Heydrich as Chief of the Security Police and the SD in June 1936, or by the institution of the Reich Security Main Office (RSHA) in September 1939. 1 refer to the, statements of the witnesses Hoeppner, Roessner Wisliceny, and Best in connection with this subject. In refutation of the Prosecution's claim it must be established that the SD never formed part of the Police (Affidavits SD-2, 27, 28, 33, 34, 35, 61, 63), nor did the SD ever have to undertake police work in any sphere of life (Statement by Hoeppner, SD-2, 18, 63).
As to organization, the position of the SD with regard to the Security Police within the Reich was different from that in the occupied territories. I refer to the Headquarters Manual of the United Nations, which I submitted as Document Number SD-70, where the organization of Aemter III and VI is correctly given, and also to the testimonies of the witnesses Best, K. H. Hoffmann, Hoeppner, Dr. Ehlich, Dr. Knochen, Straub and Affidavits Numbers SD-25 and 26. They all show that within the Reich the agencies of the SD, Aemter III and VI, were always independent with regard to the Security Police.
No connection between the SD and the Security Police was formed either by the Higher SS and Police Leaders or by the inspectors of the Security Police and the SD. The latter enjoyed personal privileges of inspection over the agencies of the Security Police and those of the, SD, and therefore they did have knowledge of some of the ordinances relating to any one of the agencies under their control. However, it is not permissible to conclude, from the simple fact that they issued or received some decree, that such decree was necessarily within the competence of the SD. The point is rather, as with all decrees of the Chief, the inspectors, and the commanders of the Security Police and the SD, whether they were dealt with by Aemter III and VI. This can be ascertained from the reference numbers. Only those decrees showing the reference numbers III and VI came within the scope of the Domestic Intelligence Service or the Foreign Intelligence Service and might be charged to the SD. As regards the Higher SS and Police Leaders I wish to refer to Affidavit Number SD-34, for the inspectors of the Security Police and the SD to Affidavit Number SD-35 and the testimony of Hoeppner.
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In the territories occupied by Germany the Security Police and the SD for purposes of organization were united under the commanders of the Security Police and the SD. The Domestic Intelligence Service was dealt with by Department III, the Foreign Intelligence Service by Department VI, while Department IV was the Gestapo and Department V the Criminal Police. Thus, one cannot speak of a uniform organization of Aemter III and VI in the Reich and abroad. The Domestic Intelligence Service in Germany, the Foreign Intelligence Service in Germany, and the activities of the Stapo, the Criminal Police, and the SD in the occupied territories, united for organizational purposes under the commanders of the Security Police and the SD, represented different organizations. It must be noted that, as to their tasks, the Independence of Aemter III and VI in foreign countries was ensured (Affidavit SD-56).
Special reference must be made to the relationship between the SD and the Gestapo. The Prosecution have suggested that the Gestapo was the executive organ, while the SD attended to espionage (Session of 19 December 1945). This description of the relationship between the Gestapo and the SD is not correct.
Actually, it is hardly possible to define clearly the relationship between the Gestapo and the SD for the entire period from 1931 until 1945. It varied according to time and place. As regards the period before 1934, I have already shown that presumably there were no relations between the Gestapo and the SD, since at that time the SD was the Intelligence service of the SS. The decree of 1938, defining the functions of the two bodies, whereby the Gestapo was entrusted both with combating and detecting enemy activities, must have been of primary importance.
As far as the SD Hauptamt was concerned, this concluded the activities of its former Central Department II/1, which had dealt with enemy detection, in contrast to Central Department II/2, which provided an analysis of the domestic scene. The Central Department II/1 of the SD Hauptamt was accordingly dissolved (Affidavit SD-27). The Amt III of the RSHA, which is indicted here, was the former Central Department II/2, dealing with the analysis of the domestic scene (Affidavit SD-27). The activity of Central Department II/1, consisting of enemy detection, cannot be charged to Amt III. The tasks and aims of Central Department II/1 were completely different from those of Amt III, and the former never was part of the latter; nor can it be regarded as the predecessor of Amt III, which had been the Department II/2 of the SD Hauptamt.
The contradictory statements of witnesses as to the co-operation between the SD and the Gestapo can undoubtedly be traced to this evolution of the SD and the change in the tasks allotted to it. Actually, co-operation between Amt III, which had developed out of Central Department II/2, and the Gestapo was never any closer or more extensive than In the case of other authorities. However, the Central Department II/1 had never been an intelligence center for the Gestapo either, but operated entirely independently of that institution (Affidavits SD-16, to 19, 27, 55).
Dr. Best, a witness for the Gestapo, has perhaps provided the best characterization of the relationship by stating that in those years experiments were continually being made with the SD. In trying to prove the close co-operation existing between the Stapo and the SD the Prosecution have mainly based their accusation on the book by Dr. Werner Best, Die Deutsche Polizei (Document Number PS-1852). In testifying, the author has explained that this was a private piece of work devoid of any official character; Best also stated that he had simply described a development with an eye to the future.
The Prosecution have also referred to Documents 1956-PS, Das Archiv, and 1680-PS, the article, 10 Jahre Sipo und SD, and also to a statement by Heydrich on occasion of the Day of the German Police. The Prosecution have further mentioned Document 1638-PS, the decree of the Reich Minister of the Interior, dated 11 November 1938, on the co-operation of all offices of general and interior administration with the SD.
In refutation of the interpretation of this decree, as given by the Prosecution, I wish to refer to the testimony of the witnesses Best and Hoeppner, and to Affidavit Number SD-36. With regard to the testimony of the witnesses Albath, Oldach, and Huelf I refer to Affidavit Number SD-71 by Schraepel to Affidavit Number SD-36, Figure 4c, and to Number SD-28. In establishing the relationship between the Stapo and the SD I refer to the testimony of Ehlich, Roessner, and Hoeppner, and to Affidavit Number SD-70, Section 6. In connection with Exhibit Number RF-1540 I refer to the testimony of the witness Roessner.
In substantiation of the fact that it may very well be correct that witnesses before the Tribunal, the Commission, or in their affidavits stated that the task of
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the SD had not consisted in supplying the Gestapo with material leading to the persecution of Political enemies, I am submitting two instances of evidence by persons who have not the slightest cause to give protection to the SD. The first concerns the affidavit given by Dr. Ritter, the well-known professor of modern history at the University of Freiburg. Dr. Ritter is an enemy of National Socialism and has never been a member of the Party or any of its organizations. He belonged to the Goerdeler Circle, and was to have been Minister of Culture in a cabinet to be formed by Goerdeler following 20 July 1944. Dr. Ritter's lectures were regularly recorded by the SD, Amt III. However, it is obvious from his affidavit that the SD failed to turn over the material collected against him to the Gestapo, although he was known to be an enemy of the regime. When Dr. Ritter was arrested in connection with 20 July 1944 his statements before the Gestapo could have been refuted by the material in the possession of Amt III, which however was not done.
Document Number SD-71, which I have also submitted, is a letter referring to the Prosecution Document R-142, which has repeatedly been mentioned during these proceedings. This is a letter by the local SD office in Kochem stating that the plebiscite of 10 April 1938 in Simmern had been checked and that It had been found that a clergyman, Wolferts, had voted "No." Wolferts has died in the meantime, but from a letter by his daughter it has been established that neither the SD nor the Gestapo took any steps against Wolferts on the grounds of his vote.
Such activities of the SD, therefore, were not intended to provide the Gestapo with material leading to the persecution of political enemies. In connection with this document I also refer to the testimony of the witnesses Hoeppner and Roessner. At the same time I wish to draw attention to the fact that it was the task of the SD to co-operate with all authorities, as can be seen from Documents Number SD-3 to 8, which I have submitted.
On the subject of the relationship between the SD and the Party the witness Hoeppner has spoken at considerable length. It is true that the SD was to keep the Party informed; a direct connection between the Party and the SD, however, has never existed (Document SD-15a, Affidavit SD-27). This has been established not only by the testimony of witnesses for the SD, but also from the statements of the witnesses interrogated on behalf of the Party; I refer to the testimony of Kuehl, Von Roedern, Biedermann, Schneider, Lauterbacher, Hirt, and Wolf. The witness Meyer-Wendeborn testified that the SD had developed on its own and had never received instructions. I also refer to the testimony of the witness Kaufmann, who was Gauleiter in Hamburg and stated that he was familiar with everything that occurred in his Gau with the exception of the activities of the Stapo and the SD.
In support of their claim that the SD had secretly marked ballot sups in order to be able to identify persons voting in the negative or turning in invalid ballot slips in a plebiscite, the Prosecution have put in another document emanating from the local SD office at Erfurt and dated May 1938 (Document GB-541). I would point to the fact that it was a local and therefore subordinate office, and by analogous reference to my Document Number SD-69 it may equally be assumed that nothing at all was undertaken with regard to persons voting in the negative. This, after all, is the essential criterion. These two documents are certainly not sufficient to provide proof for the fact that in general the SD was allotted the task of keeping a check on the plebiscites with a view to eliminating enemies of a conspiracy. As counter-evidence showing that these activities on the part of the local SD offices at Erfurt and Kochem were completely removed from the normal activity of the SD, I wish to refer to the Affidavit Number SD-27 by Albert, who was employed in the central office in Berlin. Albert has stated that the central office in Berlin never issued any instructions to affix secret markings to ballot slips in elections or plebiscites. As a matter of fact, there is no connection between the documents from Erfurt and Kochem. Erfurt calls for a report on probable negative voters before the election. Kochem reports after the election that persons belonging to the election committee in one small village of the area had marked ballot slips. This election committee had nothing to do with the local SD office. I also refer to the 196 affidavits for the entire territory of the Reich, which I have compiled in a list, and where it is stated that it was not the task of the SD to mark ballot slips or undertake similar action in order to detect negative voters. Such instructions or orders were never issued by the central office.
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The Prosecution have also suggested that the SD had exercised direct influence on the choice of Nazi leaders, and have submitted the affidavit by Dr. Hoettl (Document 2614-PS) in substantiation of their claim. In my supplementary affidavit, Number SD-27, Hoettl has declared that the SD did not exercise any direct influence on the choice of Nazi leaders, and I also refer to Affidavits Numbers SD-4 to 10, 39, 61, and 63, and to the affidavits compiled in the collective list, Number SD-70.
The Prosecution have furthermore alleged that the SD had checked the loyalty and reliability of civil servants. Here I refer to the testimony of the witnesses Hoengen and Roessner, and to Affidavits Numbers SD-3, 7, 8, 9, 61, 63, and Document Number SD-14, as well as to the affidavits compiled in the collective list, Number SD-70.
Concerning the aims, purposes, and methods of the indicted Amt III, I should like to refer to statements made in Document SD-70, the handbook of the Supreme Headquarters of the United Nations of April 1945. There it says:
"The SD maintained for its purposes a network of newsmen throughout all fields of life in Germany"--some words are missing--"who were recruited from all social strata and professions. The information gained through the newsmen was used in the situation reports....
"These reports are exceptionally frank and contain a complete and uncolored picture of the mood and attitude in Germany ...."
The correctness of this is proven by the 649 affidavits submitted in my summary and made by former full-time and honorary workers and Vertrauensmaenner (persons entrusted with special tasks) for the total area of the Reich and for parts of the Reich.
The aims, purposes, and-activities of Amt VI are shown by Affidavits SD-61, 62, and 66, also by Document SD-1.
In regard to Amt VI I refer particularly to Affidavit SD-66. I shall now turn to Section B: Crimes against Peace (Statement of Evidence V of the English trial brief against the Gestapo and SD).
As a crime against peace the SD is accused of having staged so-called border incidents before the outbreak of the war to give Hitler an excuse for starting the war. The Prosecution, however, referred to only one border incident in which the SD is alleged to have participated. That is the alleged attack on the Gleiwitz radio station.
In this connection the Prosecution made reference to the affidavit of Alfred Naujocks of 20 November 1945. This is Prosecution Document 2751-PS. The deponent of Document 2751-PS, Alfred Naujocks, was heard before the Commission. On that occasion he declared that the execution of the attack on the Gleiwitz radio station was not included in the aims and purposes of Aemter III and VI.
The witness further testified that no sections of Aemter III and VI were used for the execution of that border incident in Gleiwitz and
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that the men who with him attacked the Gleiwitz station did not belong to the SD, Amt III.
The witness also stated that by the term "SD men" in his affidavit of 20 November 1945 he did not mean the members of any definite office of the RSHA; but common usage of the term "SD men" referred to RSHA members of all offices which were subordinate to Heydrich.
The witness further stated that he was charged with the execution of the border incident at Gleiwitz, not because he belonged to Amt VI and worked there, but that exclusively personal reasons were responsible for that decision. The witness testified that on the basis of the conversation he had had with Heydrich he had gained the impression that Heydrich would have given him that assignment even if he had not been a member of Amt VI and the SS. The order for the execution of this assignment reached the witness Naujocks not through the official channels of the chiefs of Aemter III or VI. The chiefs of Aemter III and VI had no knowledge of this action.
The members of the SD, Amt III and Amt VI, had no knowledge that the attack was carried out by Naujocks, a member of Amt VI. Particularly the members of the SD-Leitabschnitt which was in charge of Gleiwitz, and the outpost of the SD, had no knowledge of this activity and could not have had, because Naujocks had been forbidden to get in touch with any members of the SD whatsoever in that territory.
The statements of this witness have been reaffirmed by the witness Somman and through Affidavit Number SD-11, deposed by Dr. Marx. I also submitted 215 affidavits for the office of the RSHA as well as for all territories of the SD-Leitabschnitte and the SD-Abschnitte, particularly for those situated in the regions of Katowice, Danzig, and Saxony. Those affidavits testify that the members of the SD during the critical time had no knowledge of the faked border incidents or the participation of the SD in them. The affidavit by the witness Dr. Mildner (2479-PS) is refuted by the testimony of the witness Naujocks and Affidavit Number SD-11, Dr. Marx. This subject matter does not provide sufficient grounds to declare the SD to have been criminal, since this would presuppose proof of the fact that the SD as an organization was employed in the aggression, and that its members had cognizance thereof.
The Prosecution have also submitted Document Number USSR-509 as proof of the fact that the SD had participated in the preparations for a solution by force of the Czechoslovakian problems. The first letter bearing the Number III 225 is a draft without reference number and date, which was signed only by the official who prepared it. His superiors failed to sign the draft and rejected it. The other letter should carry no weight as far as the organization of the SD is concerned, because no proof is forthcoming to show that such activities were known to all members. The letter indicates that this was clearly not the case. In the course of the session of 2 August 1946 the Prosecution have alleged that this document also contains a reference to the preparation of liquidations. As will be seen from Page 7 of the first letter this is not the case.
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In order to judge whether the SD can be declared criminal on the grounds of the activities of the Einsatzgruppen, the following questions must be examined:
1. Did the Einsatzgruppen A, B, C, and D, which were assigned in the East to the army groups, belong to the organization of Aemter III, VI, and VII?
2. Were parts of these office organizations used in these Einsatzgruppen?
3. Did the Aemter III, VI, or VII give orders to the Einsatzgruppen to commit crimes against the laws of war and against humanity?
4. Did the members of the Domestic Intelligence Service (Amt III), or of the Foreign Intelligence Service (Amt VI), have any knowledge of the activities of the Einsatzgruppen, which are crimes in the sense of the Charter? First I must rectify an error. In this Trial and before the Commission the Einsatzgruppen have repeatedly been designated as Einsatzgruppen of the SD, up to a short time ago. As an example, I refer in particular to the records of Keitel, Dr. Best, Hausser, and Von Manstein. This designation is wrong. The four Einsatzgruppen employed in the East were designated A, B, C, and D. They had under them the Einsatzkommandos, which were designated by the Numbers 1 to 12. Thus the word "SD" is mentioned neither in the designation of the Einsatzgruppen nor of the Einsatzkommandos. Furthermore, there was no reason for that since, according to the evidence submitted by the Prosecution, only 3 percent of their members were part of the SD Aemter III or VI. The members of the SD were in the eighth place, as far As membership was concerned. I refer you to the statistics found in Document L-180 submitted by the Prosecution and repeated in the record of 20 December 1945.
The designation of the Einsatzgruppen is also shown by the distribution list of Prosecution Document D-569. This shows the various relationships. The Einsatzkommandos 1-a, 1-b, 2, and 3 were under Einsatzgruppe A; Einsatzkommandos 7-a, 7-b, 8, and 9 -- Moscow -- were under Einsatzgruppe B; 4-a, 4-b, 5, and 6 were under Einsatzgruppe C; 10-a, 10-b, 11-a, 11-b, and 12 were under Einsatzgruppe D.
The setting up of the Einsatzgruppen was not ordered by Aemter III, VI, or VII, but by Himmler on the basis of an agreement with the High Command of the Army. I refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, to Document USA-557, and Affidavits Numbers SD-41 and 46. The evidence has shown further that the Einsatzgruppen and Einsatzkommandos were not under the orders of Aemter III, VI, and VIL I refer again to Document USA-557, Affidavits SD-41, 44, and 46, to the record of 3 January
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1946, to Prosecution Document L-180, Pages 2 and 3, to the record of 5 June 1946 and Document 2620-PS.
If one considers in particular the constitution of the Einsatzgruppen, which is set forth in the record of 20 December 1945, one will have to admit, as has been deposed by the witness Hoeppner and confirmed by the witness Bendt in Affidavit SD-41, that this concerns an affiliation of a special kind of persons who did not belong to the organizations of Aemter III, VI, or VII. The evidence has further shown that no parts of the organizations of Aemter III, VI, or VII were employed in the Einsatzgruppen and Einsatzkommandos, and that the Aemter III, VI, and VII did not issue any orders for -the mass destruction carried out by the Einsatzgruppen. I refer to Affidavit SD-61, Affidavit SD-41, particularly the answers to Questions Numbers 6 and 9, and to Affidavit SD-44, Numbers 4 and 5.
The Einsatzgruppen and the Einsatzkommandos are special units which deviated in their composition entirely from the structure of the Security Police and SD in the Reich itself. I refer in this connection to the statements of Ohlendorf and Hoeppner and to Affidavits SD-41 and SD-46. The witness Best testified (Record of 31 July 1946): "They were Security Police units of a special kind." It is of decisive significance for the question whether the organization can be declared criminal that no parts of the SD, Aemter III, VI, or VII, were employed in the Einsatzgruppen, but only individual members were assigned to these Einsatzgruppen as. a result of legal regulations. In this connection Hoettl's affidavit of 10 April 1946 seems especially important to me. I emphasize that this is a Prosecution document. Hoettl declared in the affidavit mentioned that the membership of the people in the SD was inactive during their affiliation with the Einsatzgruppen.
Insofar as members of Aemter III, VI, and VII were assigned by legal order to the Einsatzgruppen and Einsatzkommandos in the East, I refer for their tasks and activities to the testimony of Dr. Ehlich and Von Manstein, and to Affidavit SD-69.
The selection of the members of the Security Service for the Einsatzgruppen and Einsatzkommandos was not carried out on the basis of their position and duties in the Reich offices. For that point I refer to the testimony of Ohlendorf (Record of 3 January 1946) and Affidavits SD-41 and SD-45.
Thus I come to the conclusion:
(1) Einsatzgruppen A, B, C, and D did not belong to the Domestic Intelligence Service, Amt III, to the Foreign Intelligence Service, Amt VI, or to Amt VIL
(2) No parts of this organization were used for this purpose, but individual members were assigned to the Einsatzgruppen.
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(3) The legal position of these persons was the same as, for example, that of persons who had been called up for military service. Their affiliation with Aemter III, VI, or VII was inactive. They were no longer subject to instructions from their original offices. I skip the next pages, that is, 64, 65, 66, 67. Pages 68 to 71 deal with Einsatzkommandos in prisoner-of-war camps.
THE PRESIDENT: Dr. Gawlik, the Tribunal understands that the SS, the Gestapo, and the SD all disclaim responsibility for the Einsatzgruppen. Could you tell the Tribunal who is responsible for the Einsatzgruppen?
DR. GAWLIK: The Einsatzgruppen were subordinated to -- the responsibility may be seen from my statement on Page 61. I should like to refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, and to Document ...
THE PRESIDENT: Dr. Gawlik, the Tribunal would like to know who you say was responsible for the Einsatzgruppen. They do not want to be referred to a crowd of documents and a crowd of witnesses. They want to know what your contention is.
DR. GAWLIK: The Einsatzgruppen, in my opinion, were organizations of a special kind which were directly under Himmler, and for the rest, the testimony of the witnesses diverges as to how far they were subordinate to the commanders-in-chief. Some of the witnesses have stated that they were subordinate to the commanders-in-chief, and some disputed this. As far as this question is concerned, I cannot define my attitude.
THE PRESIDENT: Was it possible, according to your contention, for Himmler to control these Einsatzgruppen without any organization, and if it was not, what organization controlled it?
DR. GAWLIK: The Einsatzgruppen had their own head, as may be seen from Prosecution Document L-180, the Stahlecker report. Stahlecker was the Chief of the Einsatzgruppe A, and this man probably sent this report, which was found, directly to Himmler, and from that I may assume that the heads of the Einsatzgruppen were directly under Himmler. That was a subordinate organization along with the RSHA for occupied countries. Your Lordship, may I...
THE PRESIDENT: Can you tell the Tribunal who were the individual men who composed the Einsatzgruppen? Did they consist of SS or SA or SD or the Wehrmacht?
DR. GAWLIK: Your Lordship, the composition may be seen in the record of 20 December 1945. I do not remember them exactly, Your Lordship, but I do know that they included Waffen-SS, Criminal Police, Stapo, SD ...
THE PRESIDENT: You are too fast. Waffen-SS?
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DR. GAWLIK: Waffen-SS, Criminal Police, Stapo, SD, and on this page, as far as I can recall, drivers are mentioned, and I believe interpreters, but I cannot say for certain. The various groups are stated exactly on this page, Your Lordship, which is Page 17 ...
THE PRESIDENT: I have down Waffen-SS, Criminal Police ... The last one I have got here is NSKK. What did you give then?
DR. GAWLIK: No, Your Lordship, not NSKK.
THE PRESIDENT: Waffen-SS, Criminal Police ...
DR. GAWLIK: Yes.
THE PRESIDENT: State Police?
DR. GAWLIK: Yes.
THE PRESIDENT: SD?
DR. GAWLIK: Yes.
THE PRESIDENT: NSKK?
DR. GAWLIK: No, drivers.
THE PRESIDENT: Well, I have crossed out NSKK.
DR. GAWLIK: Your Lordship, it is an error. The NSKK is not involved.
THE PRESIDENT: I have crossed out NSKK. Is there anything else? Any Gestapo?
DR. GAWLIK: Yes, Gestapo, of course. Your Lordship, State Police and Gestapo are identical. Interpreters are enumerated in this document. I believe -- as far as I can remember--these were the main groups, but at the moment I cannot tell you for certain.
THE PRESIDENT: Thank you.
DR. GAWLIK: I beg your pardon, did Your Lordship wish to know the chiefs of the Einsatzgruppen or the members?
THE PRESIDENT: I meant the memberships.
DR. GAWLIK: Yes, that is quite correct. Your Lordship, I wanted to add that altogether there were 1,000 to 1,200 men in these four Einsatzgruppen.
THE PRESIDENT: How many did you say?
DR. GAWLIK: One thousand to approximately 1,200 men, and from the SD there were 3 percent. That may be seen from the document. It is Document L-180. The setup is shown there.
THE PRESIDENT: We will adjourn for a recess.
[A recess was taken.]
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DR. GAWLIK: Your Lordship, I shall have to correct my statement regarding the Einsatzgruppen on one point. I procured Document L-180 during the recess, and the total strength of Einsatzgruppe A was 990 men. It was composed as follows:
Waffen-SS, 34 percent; drivers, 17 percent; administration, 1.8 percent; SD 3.5 percent; Criminal Police 4.1 percent; Stapo, 9 percent; Auxiliary Police, 8.8 percent -- those, Your Lordship, were apparently indigenous police from the occupied territories -- Regular Police, 13.4 percent; female employees, 1.3 percent; interpreters, 5.1 percent; teletypists, 0.3 percent; wireless operators, 0.8 percent.
That is Einsatzgruppe A, as far as I know; no documents are available for Einsatzgruppen B, C, and D, but the witnesses have testified that Groups B, C, and D had about the same ratio.
THE PRESIDENT: Then the extent is nearly four times as large as you said?
DR. GAWLIK: Yes.
THE PRESIDENT: Can you give a date for that constitution of Group A? What date was that, that constitution of those percentages?
DR. GAWLIK: The Einsatzgruppe D was formed before the beginning of the campaign, before June 1941.
THE PRESIDENT: When you get down to 0.3 percent, that must have been at a certain time. It could not have remained 0.3 percent all the time, could it, or is that an establishment?
DR. GAWLIK: Your Lordship, I do not understand. Which 0.3 percent do you mean?
THE PRESIDENT: I meant teletypists, 0.3 percent; wireless, 0.8 percent--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?
DR. GAWLIK: They are average figures, Your Lordship. They may have changed slightly during the war, either more or less.
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
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Bullet Decree (Statement of Evidence VI-C). Pages 76 up to 79 deal with concentration camps (Statement of Evidence VI-D), Pages 80 to 83 deal with deportation (Statement of Evidence VI-E). Pages 84 to 89 deal with the Commando Order (Statement of Evidence VI-F) Pages 90 to 93 deal with the Nacht-und-Nebel Decree (Statement of Evidence VI-G). Pages 94 up to 96 deal with summary proceedings (Statement of Evidence VI-H). Pages 97 and 98 deal with liability of next of kin (Statement of Evidence VI-E). Pages 99 and 100 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 interrogations (Statement of Evidence VI-L); 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 tasks and activities, as indicted here as executive tasks, were not within the competence of Aemter III, VI, and VII (Affidavits SD-41, 42, 45, 46). In Document 3428-PS the head of the SD and the SD itself are constantly referred to, but this, as is apparent from the above-mentioned context, obviously refers to the office of the Security Police and the SD. I refer in particular to the Affidavit Number SD-69 of Breiter.
A number of documents, such as Exhibits Numbers USSR-1, USSR-6, and USSR-119, submitted by the Prosecution, mention the SD. Here too, however, the evidence can be taken to show that this cannot refer to the Aemter III and VI--Domestic Intelligence Service and Foreign Intelligence Service--or AmtVII of the SD, which are under indictment. In this context I also refer to Document 2992-PS, the statement by Graebe.
Graebe declared that during the shooting of Jewish men, women, and children at the airport at Rovno an SS man, wearing SS uniform with an SD badge on his left arm, had been sitting on top of the ditch. This fact is not sufficient to provide proof of the fact that this was really a member of Aemter III, VI or VII, for in the occupied territories members of the Einsatzgruppen and the units under the commander of the Security Police and the SD, in particular the officials of the Gestapo and the Criminal Police, all used to wear the same uniform with an SD badge. This was the uniform of the SS special formation SD, not the uniform of Aemter III and VI. The SS Sturmbannfuehrer Puetz, mentioned in Graebe's report, was not a member of the SD, but a Government Counsellor and an official of the Gestapo. For this I also refer to Affidavit Number SD-50 by Wanninger.
The Prosecution have also submitted Document Number 501-PS on the use of gas vans. I must point out that Amt III never issued instructions on the use of gas vans, as testified by the witness Dr. Ehlich. Document 501-PS submitted by the Prosecution shows by its reference Number II that the matter of gas vans was dealt with in Amt II of the RSHA.
The SS ObersturmbannFuehrer Rauff mentioned in the document was not a member of Aemter III and VI, but a group chief in Amt II of the RSHA. He was at that time in charge of motor transport. I refer in this connection to the testimony of the witnesses Ohlendorf and Hoeppner (Session of 3 January 1946) and to 60 affidavits from the entire Reich and the occupied territories for the period from 1941 to 1945, according to which the SD had nothing to do with the use of gas vans.
As regards the Prosecution Document 1475-PS I have already referred to Affidavit Number SD-69.
In the Prosecution Document L-180, the Stahlecker report, it is stated in enclosure Number 8 that the SD Section Tilsit had participated in liquidating Communists and Jews. For this I refer to Affidavit Number SD-12 by Ziebs. Ziebs belonged to the SD Main Section Koenigsberg, which received reports from the subsidiary SD Section Tilsit. Ziebs stated that the SD Main Section Koenigsberg never issued any such order and that no information was received there on the events described in the Stahlecker report. He, therefore, considers this
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statement to be a mistake as to the place or the subject-matter. If members of the SD Section Tilsit should have participated in the execution of Jews and Communists, which Ziebs himself considers quite impossible, such activity would have been outside the scope of the tasks of the SD Section Tilsit and would certainly not have become known.
The members of the Domestic Intelligence Service, the Foreign Intelligence Service, and Amt VII had no knowledge of the activities of the Einsatzgruppen, especially not of shootings.
Document 3867-PS, submitted by the Prosecution, shows that the distribution
contained no office of the SD (Amt: III, VI, or VII or subsidiary offices). The
reference Number IV A 1 indicates that the reports were compiled in an office of
Amt IV (Gestapo).
The witness Hoeppner stated before the Tribunal that the Einsatzgruppen reports were not forwarded to subsidiary offices in the Reich and that members of SD offices in the Reich could not have had cognizance of the contents of the reports, including shootings of Jews and Communists. These reports went to only a few members of Amt III who were concerned with intelligence from the Eastern territories. I refer to the Affidavits Numbers SD-44, 47, 41, 48, 49, and 61; also to Document 2752-PS and the testimony of the witnesses Ehlich and Hoeppner.
I have also submitted 127 affidavits from all parts of the Reich for the period between 1941 and the end of the war, which prove in the main that (1) an members of the Einsatzgruppen were usually referred to as "SD" owing to their uniform equipment with the SD badge; (2) the employment of members of the SD in mass killings was not known to SD members in the offices within the Reich; (3) the honorary assistants of the SD had- no knowledge of the activities of the Einsatzgruppen and Einsatzkommandos in the East.
II. Einsatzkommandos in prisoner-of-war camps. The SD is also charged with having formed special formations in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable persons. My Documents Number SD 18-22 prove that this was not the task of the SD, but solely of the Stapo. These documents also show in particular that these Kommandos were not designated "Einsatzkommandos of the SD," as stated by the witness Lahousen. The Defendant Jodl has confirmed the fact that prisoners of war were never turned over to the SD for special treatment, since the SD had entirely different tasks. The Defendant Jodl testified that prisoners of war were at the utmost turned over to the Security Police. It may thus be assumed to have been proved that the SD did not take part in these acts and was not employed for that purpose.
Although the witness Warlimont in his affidavit mentions that political functionaries were to be transferred to the SD (Document 2884-PS), this, in the light of the statement of the Defendant Jodl, may be taken to be a mistake in terminology, and presumably refers to the Gestapo. The documents submitted by the Prosecution fail to prove the contrary.
The witness Lahousen, in his affidavit of 14 November 1945 (Document 2846-PS), mentions the SD, although obviously he means the Security Police. This is clearly apparent from a statement he made before the Tribunal on 30 November 1945. According to the minutes of a conference which took place on the subject of the employment of these Kommandos between General Reinecke and Mueller during the summer of 1941, he mentions Obergruppenfuehrer Mueller of the SD (Session of 30 November 1945). The Tribunal is familiar with the fact that Mueller never belonged to the SD, Amt III or VI, and that he was the Chief of Amt IV, Gestapo, until the end. The witness Lahousen thus evidently was not referring to the SD, Amt III or VI, but to the Gestapo. The testimony of the witness Lahousen clearly indicates the competency of the Gestapo. He testified that Mueller had taken part in the conference because he was competent for the executions in prisoner-of-war camps.
Document 502-PS supplies no proof of any participation of the SD. On the contrary, it proves that the Gestapo alone was competent for such measures, for the fourth paragraph before the end specifies that the Chief of the Einsatzkommandos was to contact the chief of the nearest local Gestapo office in connection with any executions or other measures. The Prosecution Document 1165-PS also proves that only the Gestapo was competent for such action, because these instructions, which referred to the executions undertaken, are
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forwarded by Mueller, the Amtschef of the Gestapo, to all Gestapo offices. Had the SD, Amt III or VI, in any way participated in such action, these instructions would equally have been forwarded to all SD offices. Document R-178 consistently, though erroneously, speaks of Einsatzkommandos of the Chief of the Security Police and the SD employed for the purpose of selection. The fact is that--as the document shows--only the Gestapo offices Munich, Regensburg, and Nuernberg-Fuerth undertook selection with their own special Kommandos. Captain Dr. Woelzl, mentioned on Page 21 of Document R-178, gave an affidavit saying that the SD had not participated in these selection Kommandos. In this connection I would also refer to Document 2884-PS. This is a decree by Warlimont, formerly Deputy Chief of Staff of the Wehrmachtfuehrungsstab, dated 12 May 1941, on the uniform handling of executions of British prisoners of war. In this decree Warlimont correctly designates the Einsatzkommandos as "Einsatzkommandos of the Security Police." The fact that the Gestapo alone was competent for executions of prisoners of war is apparent from an affidavit by Lindow. Lindow states that Section IV A I had a subsection directed by the Regierungsoberinspektor, later Regierungsamtmann, and SS HauptsturmFuehrer Franz Koenigshaus. This dealt with prisoner-of-war matters.
This subsection also attended to the decrees and orders of Himmler during the years 1941 and 1942, according to which captured Soviet-Russian Political Commissars and Jewish soldiers were to be executed. Koenigshaus is stated to have prepared the orders for the executions and submitted them to Mueller, the Chief of Amt IV. Early in 1943 the subsection was dissolved and distributed among the sections of IV B, according to countries concerned. In particular Lindow stated that the Einsatzkommandos in the prisoner-of-war camps had been directed by members of the Gestapo (Figure 4 of the Lindow affidavit, Document 2542-PS).
In proving my contention that the SD, Amt III, had no hand in these measures, I also refer to the affidavit by Fromm (SD-56). In this affidavit Fromm declared that the SD had special formations in the Government General. As to the territory of France, the witness Knochen stated before the Commission that no such special formations of the SD were employed in prisoner-of-war camps in France. I also draw attention to the testimony of the witness Ehlich before the Commission, who stated that such measures were not the task and activity of the SD, Amt III.
As for Amt VI, I refer to Affidavit Number SD-61, where the Witness Schellenberg has testified that Amt VI was not competent either and was never employed in this connection. For Amt VII the witness Dittel made the same declaration (SD-63).
I also submitted 266 affidavits showing that in Russia, Poland, Alsace, Italy, Yugoslavia, Czechoslovakia, Lorraine, and the following regions of Germany: South Hanover-Brunswick, the Saar territory, the Palatinate, Munich-Upper Bavaria, Cologne, Wuerttemberg, East Prussia, Upper Danube, Vienna, Military District VII, Bavaria, West Prussia, Styria, the Sudetenland, Hamburg, Upper Silesia, the Tyrol, Central Germany, Eastern Bavaria, Westphalia, Magdeburg-Anhalt, Berlin-Brandenburg, Swabia, Silesia, Central Franconia, Wartheland, Thuringia, Bremen, Holstein, Hesse, Saxony, and in a large number of cities, the SD did not have Kommandos in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable prisoners of war. The declarations comprise the period between 1939 and 1945.
Bullet Decree. For the execution of the Bullet Decree the SD within the Reich, Amt III, was equally not competent, and it has never been employed for this purpose. The responsibility and competency for this decree has been correctly described by defense counsel for the Defendant Goering. It is stated that Hitler, in the absence of Keitel, gave the order for the shootings to Himmler, who directly transmitted it to Mueller and Nebe. Mueller was Amtschef of the Gestapo, Nebe Amtschef of the Criminal Police. This proves that the Stapo and the Criminal Police were competent for the execution of the order. This also becomes clear from Document D-569 with annex, the decree by the Chief of the Security Police and the SD dated 11 December 1941, embodying an ordinance from the OKW of 22 November 1941.
The decree of 11 December 1941 specifies that Soviet prisoners of war were to be transferred to the Stapo or the Einsatzkommandos. The ordinance by the OKW, dated 22 November 1941, provides that escaped Soviet prisoners of war
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were in every case to be turned over to the nearest office of the Gestapo, such transfer to be subsequently reported to the Wehrmacht Information Center. I also refer to the teletype by Mueller dated 4 March 1944 (Document 1650-PS, USA-246), which is addressed only to the Stapo offices and the inspectors of the Security Police and the SD. This teletype contains orders for the Stapo offices to report on the execution of the order. Paragraph 2 then goes on to state that the prisoners of war were to be turned over to the local police office. Paragraph 3 mentions that escaped and recaptured British and American officers and nonworking NCO's were to be held in police detention in the locality of the Stapo office. Paragraph 5 indicates that the local administrative and police authorities were advised of this decree. Aemter III and VI were not informed, which would have been indispensable had they had any part in these measures. Clearly the Prosecution have assumed participation of the SD from the fact that the Amtschef of the Gestapo, Mueller, signed the decree as Deputy Chief of the Security Police and the SD, and also forwarded it to the inspectors of the Security Police and the SD. These titles, however, give no indication of any participation on the part of the SD.
The Prosecution have also referred to a letter from the Military District Command VI, dated 27 July 1944 (Document 1514-PS), but this document equally shows no participation on the part of the SD. In the heading preceding Figure 1 transfer to the Gestapo is specifically mentioned, and Figure 1a states that the camp commander was to transfer the prisoners of war to the Gestapo, while Figure 1b says that the prisoners of war were to be turned over to the nearest police office. Figure 1c mentions that recaptured officers were to be turned over to the Gestapo and Figure 1d specifies that Soviet officers refusing to work were to be transferred to the nearest Stapo office. Figures e, g, 3 and 4 equally only mention that the prisoners of war should be turned over to the Gestapo. The Document contains no orders indicating any participation of the SD. Under Figure 1f mention is made of the selection Kommandos, which are here designated as Einsatzkommandos of the Security Police and the SD. I have already enlarged upon the fact that the SD took no part in these Einsatzkommandos either, so that this is obviously an error in terminology. The statement under oath by Willi Litzenberg (Document 2478-PS) also provides proof that only the Security Police had a hand in these measures. The SD, Amt III, VI, and VII, is not mentioned at all in this document.
The hearing of evidence for the Tribunal has shown that the Bullet Decree was executed by the Gestapo and the Criminal Police and that the SD did not participate. I refer in particular to the statements of General Westhoff (Session of 10 April 1946). I also refer to the testimony of a Senior Government Counsellor of the Criminal Police, Max Wielen, who was interrogated on the subject of the shooting of 50 RAF officers from the camp at Sagan. Wielen testified that the shooting was carried out by officials of the Gestapo (Session of 10 April 1946).
In this connection I also refer to the testimony of Keitel, who stated that Hitler had given orders that the prisoners of war were not to be returned to the Wehrmacht, but were to remain in the custody of the Police. The witnesses Roessner and Ehlich have also testified that the SD did not participate in the execution of the Bullet Decree and had no knowledge of this. As for Amt VI, the former Amtschef Schellenberg has made the same declaration in Affidavit Number SD-61, while Dittel, at the end Deputy Amtschef VII, has done the same for that Amt by Affidavit Number SD-63. I also refer to Affidavit 56, where Fromm made that declaration for the Government General, and the testimony of Knochen to the same effect for France.
I have submitted 288 affidavits showing that in the entire territory in the Reich, in the occupied Russian territory, and in the occupied territories of France, Lorraine, Italy, Czechoslovakia, Yugoslavia, and Poland the SD had nothing to do with the execution of the Bullet Decree. The statements cover the period between 1939 and 1945.
Concentration Camps. Under Figure VI D of the trial brief against the Gestapo and the SD the SD is further accused of having been responsible for the institution and distribution of concentration Camps and for the assignment of racially and politically undesirable persons to concentration and extermination camps for the purpose of forced labor and mass murder.
The trial brief against the SS charges the SD with having been employed by the conspirators for the purpose of safeguarding their power by means of the
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concentration camps, and thereby terrorizing any opponents. The Prosecutor for the United States on 19 December 1945 suggested that the SD and the Security Police had participated in the system of concentration camps when they detected and arrested victims.
Nothing however has been stated in substantiation of these allegations. The entire Section VI D of the trial brief does not even mention the SD, except in the heading. The Prosecution themselves, referring to Prosecution Documents 2108-PS--which is contained in my document book under Number SD-36a -- and 1723-PS, state in Section VID on Page 43 of the trial brief that the Gestapo alone had authority to place persons in protective custody and that the Gestapo possessed instructions to institute concentration camps, transform prisoner-of-war camps into concentration camps, set up corrective labor camps and to form special sections for female prisoners. I therefore believe that I can be very brief on this subject.
The statements by the Prosecution also prove that the Gestapo was competent for the institution and distribution of concentration camps and that the local Gestapo offices carried out arrests (Session of 2 January 1946). The proceedings have demonstrated that the entire administration of the concentration camps (food, accommodation, camp regulations) was the task of the WVHA, which was directed by Pohl. Here I refer in particular to the testimony of Kaltenbrunner (Session of 11 April 1946). The Inspector of Concentration Camps was immediately subordinated to Himmler. I also refer to the testimony of the witness Hoess, and the same is shown by the documents submitted by the Prosecution. The Prosecution Documents D-50 and D-46 also show the sole competency of the Gestapo. The documents were issued by Amt IV of the Reich Security Main Office and signed by Mueller, the Chief of that Amt. The Aemter III, VI and VII were not even informed of these decrees. The reference Number IV on Document 1063 A-PS also indicates that the Gestapo was exclusively competent, and it is irrelevant that the document was issued by Heydrich as Chief of the Security Police and the SD. This fact in itself does not indicate the competency of the SD, and from the distribution it can be seen that the SD In no way participated.
From none of the other documents mentioned on Pages 44 to 46 of the trial brief (2477-PS, 1531-PS, L-358, L-215, 1472-PS, 1063-D-PS, L-41, 1063-E-PS, 701-PS and 2615-PS) does any participation of the SD in the infliction of protective custody or assignment to a concentration or corrective labor camp result. The very statements of the Prosecution and the documents submitted by them thus go to show that the SD bad nothing to do with the institution and distribution of concentration camps and the transfer of racially and politically undesirable persons to extermination camps for the purpose of forced labor or mass murder. In Document 3012-PS mention is made of an escape of SD prisoners, but from the context of the document it is clear that this refers to prisoners of the Sonderkommando IV A which had no contact, as far as organization goes, with the SD, Amt III, VI or VII.
I also refer to the testimony of Kaltenbrunner (Session of 11 April 1946), the affidavit by Dr. Mildner (Document Book Kaltenbrunner, Page 1), the testimony of Knochen, and the testimony of Von Eberstein, which equally show that the SD had nothing to do with concentration camps. Schellenberg and Dittel have shown in their Affidavits Numbers SD-61 and 63 that the Aemter VI and VII had nothing to do with the institution, distribution, and assignment of concentration camps either. I also refer to the affidavit by Fromm (Affidavit SD-56) and the affidavit by Laube (Affidavit SD-54), who have affirmed, for the former Government General and for France respectively, that the SD had no part in the assignment of persons to concentration camps or in the administration of such camps. In the case of France this was confirmed by the witness Knochen. As to the documents submitted by the Prosecution I refer to the testimony of the witness Dr. Ehlich (R-112, USA-309).
I also submit 289 affidavits for the entire range of the SD Hauptamt, as well as for the whole territory of the Reich and numerous occupied territories. The authors of these affidavits, which cover the period between 1934 and 1945, have stated as regards these territories that the SD had nothing to do with the institution and guarding of concentration camps, or with the assignment of persons to such camps.
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Deportation. As a further charge against the SD the Prosecution have stated that the SD had participated in mass deportation of citizens of occupied countries for the purpose of forced labor. Furthermore, the Gestapo and the SD are alleged to have been in charge of punishment inflicted on forced laborers. The Prosecution have claimed that the important position which, besides the Gestapo, the SD had held on the subject of arrests for the purpose of forced labor, resulted from the following documents: L-61, 3012-PS, 1573-PS, 1063-B-PS. However, these very documents already provide proof of the fact that the SD was not competent for the entire subject-matter and did not become active in the execution.
Document L-61 is a letter by the Defendant Sauckel, dated 26 November 1942, to the presidents of the Provincial Labor Offices, in which it is mentioned that the Chief of the Security Police and the SD, In other words, Heydrich, had informed him that in the course of the month of November the Poles would be evacuated from the district of Lublin. This communication on the part of Heydrich, however, in no way shows that Heydrich made use of the Aemter III, VI, and VII for the purpose of this evacuation -- if it was carried out at all, which is by no means certain. Such a procedure is, on the contrary, unlikely, for evacuation did not feature among the tasks incumbent on these Aemter. Document 3012-PS is a letter from the Chief of the Sonderkommando IVa to the Kommando chiefs of his subsidiary Kommandos. I have already indicated that the Einsatzgruppen were entirely independent organizations from the Aemter III, VI, and VII, so that this document cannot be looked upon as incriminating any one of the Aemter named. Incidentally the document shows that the deportation was not carried out by the SD, but by the Security Police. It states literally:
"In view of the present political situation, particularly with regard to the armament industry within the Reich, Security Police measures must be largely subordinated to the problem of the mobilization of labor in Germany." In all other places this document also only mentions measures to be carried out by the Security Police.
The next Prosecution Document, 1573-PS, clearly demonstrates the competency for the execution of measures directed against foreign workers, and also indicates that such measures were applied by the State Police. This document bears the reference Number IV. It is signed by Mueller and addressed only to State Police offices, the SD not even being mentioned in the letter, if only for information. It would undoubtedly have had to have been addressed to the SD too, if, as the Prosecution alleges, that agency had been employed in applying these measures. As far as corrective labor camps are concerned, the Prosecution Document 1063 B-PS clearly shows that the Security Police was exclusively competent for them.
It says in this document:
"The Relchsfuehrer SS has authorized, apart from the concentration camps administered by the WVHA, the institution of labor corrective camps, which will be exclusively in the competence of the Security Police."
During the session of 12 December 1945 the Prosecution have submitted a secret order by Hitler of 20 February 1942 (Document 3040-PS), concerning Eastern Workers and measures of compulsion to be employed in connection with them, and have alleged that this order had been addressed to the SD police officers, who never existed. The SD had no officers; only the Police did. From the contents of this document it can be seen clearly and without any doubt that the Gestapo alone was competent. It says in this document:
"Lack of discipline, which includes refusal to work in disobedience to orders and slackness in work, will be combated only by the German State Police. Simple cases will be settled by the chief of the guard on the instructions of the State Police. In serious cases ... the Gestapo will intervene with the means at its disposal."
In connection with the Prosecution affidavit made by Dr. Wilhelm Hoettl (Document 2614-PS) I have submitted the supplementary Affidavit Number SD-37 and the affidavit Gahrmann Number SD-38. Beyond this, in proving that the SD took no part in deportations, I refer to the testimony of the witness Ehlich before the Commission, the affidavit by Fromm, Number SD-56, and by Laube,
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Number SD-54. The affidavit by Fromm, in particular, refutes the Prosecution Document L-61. As for France, the witness Knochen has testified that the SD did not participate in deportations.
The Prosecution Document 1063-PS also shows that the corrective labor camps were not subordinate to the SD, Amt III, VI, or VII. In, this document it says specifically that the corrective labor camps were solely the competence of the Security Police. In particular I wish to refer to the testimony of the witness Albath before the Commission, who confirms this fact. I have also submitted 276 affidavits by which members of the SD for the period between 1939 and 1945 have stated, as regards the territories formerly occupied by Germany of Alsace, Russia, Poland, France, Belgium, Italy, Yugoslavia, Czechoslovakia, and the entire territory of the Reich, that the SD was not employed in connection with the deportation for forced labor or in guarding forced labor camps.
As far as Aemter VI and VII are concerned, I refer to the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63), which show that these Aemter were not active in the deportation and did not guard forced labor either.
Furthermore, it is stated in the trial brief against the SS, III G, that immigration centers were organized for the purpose of conducting evacuations under the control of the Chief of the Security Police and the SD and the Chief of the Reich Security Main Office. In this connection the Prosecution cite Document L-49, an affidavit by Otto Hoffmann. For this I refer to the testimony by Dr. Ehlich and the affidavit by Sandberger (Affidavit SD-64). Commando Order. A further accusation brought against the SD of having participated in the execution of the Commando Order is due to the fact that the Wehrmacht agencies by mistake used the abbreviation "SD" for the Security Police. In this connection I would refer to my earlier statements in the second chapter. The fact that in documents and interrogations of witnesses the term SD has been used, although no reference to the Aemter III and VI was intended, can be traced to this repeated error in terminology.
In the first place this applies to Document 498-PS, Exhibit USA-501. The distribution on this document clearly shows that "SD" was not intended to mean the intelligence service, Amt III or VI, but the Security Police. According to this distribution the Reichsfuehrer SS and Chief of the German Police had received the 16th and 17th copy, one being for the Main Office Security Police. Aemter III and VI do not figure in the distribution. If the SD in the Reich, Amt III, or abroad, Amt VI, had been competent for this measure, this order would have had to have been transmitted to these two Aemter, since otherwise they would not have been able to comply with it.
That, in fact, the execution of this order was not the task of the SD, Amt III or Amt VI, but of the Security Police, is clear from the letter by Mueller, dated 17 June 1944 (Document 1276-PS, USA-520) and addressed to the OKW. This letter deals with Hitler's order of 18 October 1942 and the execution thereof.
Among other things it says:
"Transfer to the Security Police will only be considered when such members of Commandos ..."
The last paragraph mentions security measures. The reference Number IV and the fact that the letter was written by Mueller, and not by one of the Amtschefs III or VI, clearly indicates that these measures were carried out by the Security Police, and not by Amt III and VI.
This particular document evidences the repeated error as to SD and Security Police; it is quite clear from this letter that the term SD was employed as an abbreviation for the Security Police. Although the text of the letter contains only the term Security Police, and it is specified that the Commandos are to be turned over to the Security Police, and that Security Police agencies shall assist in interrogations conducted by the Wehrmacht units, the letter contains a handwritten annotation by the official in charge at the OKW saying: "Thus arrested by SD."
Another mistake in terminology common in Wehrmacht agencies occurred when Admiral Wagner during his interrogation before the Tribunal on 14 May 1946 persisted in speaking of the SD in connection with the Trondheim incident.
The same mistake in the application of the word SD is contained in Prosecution Document 532-PS (Exhibit Number RF-361), a letter from Commander-in-Chief West
dated 26 June 1944, and in Documents Numbers 531-PS, 551-PS,
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(continued in part 5)
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Part 5:
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D-649, 727-PS, 735-PS, D-774, D-775, D-780 and Exhibit GB-26. This erroneous application of the term SD had apparently become the custom with the Wehrmacht and other offices to such an extent that even Raeder, Keitel and Doenitz speak of transfers to the SD, although the SD was not competent for such measures. The Prosecution have further referred to the Decree of 4 August 1942 (Document 553-PS, USA-500) which, however, shows clearly that the Security Police were competent for the execution of this order. The order does not say that parachutists were to be turned over to the SD, but it was specified that they were to be transferred to the offices of the Chief of the Security Police and the SD. The same applies to Document Number D-864, Exhibit Number GB-457, in which reference is exclusively made to the competent office of the commander of the Security Police and the SD. This is something entirely different. The Chief of the Security Police and the SD was identical with the Chief of the RSHA and superior to the Aemter I to VII. This term thus fails to furnish proof that Aemter III and VI were competent. Beyond this, the Decree of 4 August 1942 makes it clear that by these offices only Aemter IV and V, that is, Gestapo and Criminal Police, can be meant, because under I, Figure 1, it says:
"In all territories where the offices of the Security Police and the SD are established as executive, combating of individual parachutists is..." I draw attention to the words "as executive". Offices as executive agencies were only those of the State Police and the Criminal Police. The SD had no executive powers.
The hearing of evidence before the Commissions has clearly shown that such orders have been executed solely by the Security Police, although in numerous documents, owing to an error in terminology, the SD is mentioned in place of the Security Police. I refer primarily to the Prosecution Document 526-PS, Exhibit Number USA-502, a top-secret matter, dated 10 May 1943, where it says that the Fuehrer Order had been executed by the SD. The witness Dr. Hoffmann testified on 27 June 1946 before the Commission that here, since it was an executive measure, Security Police should be read instead of SD, because the Wehrmacht often mixed up the two terms. The correctness of the statements of the witness Dr. Hoffmann is corroborated by the testimony of the Defendant Jodl as a witness before the Tribunal.
The Prosecution have next referred to Document C-176, Exhibit Number GB-228. This concerns the Commando action at Bordeaux, where it says on Page 713 that the two captured Englishmen had been shot by order of the Fuehrer in the presence of an officer of the SD. According to the testimony of the witness Knochen, the term SD was meant to indicate an official of the Gestapo. The fact that the Security Police actually was competent for the execution of the Commando Order and that "Security Police" should be read instead of "SD" in the orders of 4 August 1942 and 18 October 1942, is also apparent from the affidavit by Dr. Mildner of 16 November 1945 (Document 2374-PS).
In this affidavit Mildner has stated that instructions had been issued to the Wehrmacht to turn over all members of British and American Commando units to the Security Police.
The Security Police was to have interrogated- and subsequently shot these men. Mildner has also stated that the decree had been transmitted, through the Chief of Amt IV, Mueller, to the commanders and inspectors of the Police. Had the SD, Amt III or Amt VI, been competent, the order would not have been transmitted by the Chief of Amt IV, Gestapo, but by the Chiefs of Aemter III and VI to the offices of these organizations.
I further refer to the affidavit by Walther Huppenkothen (Affidavit Gestapo-39), formerly a Government Director in Amt IV E, RSHA, who, in connection with the agreement between Amt IV and the OKW on the subject of treatment of enemy radio agents, stated that such persons were in all cases to be turned over to the Gestapo, and that the Gestapo had frequently though erroneously been designated SD by Wehrmacht agencies.
The Prosecution furthermore allege that the aims and tasks of the SD included affording protection to civilians who had lynched Allied airmen. In substantiation of this claim the Prosecution have submitted Document Numbers R-110 (Exhibit Number USA-333), 2990-PS, and 745-PS. Document R-110 is addressed only to the Police, not to the SD. According to the affidavit by Schellenberg of 18 November 1945 (Document 2990-PS) the Defendant Kaltenbrunner is stated to have said that all offices of the SD and the Security Police were to be informed
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that they were not to intervene in lynch actions against British and American airmen. In the supplementary affidavit submitted by me, Number SD-51, Schellenberg has stated that by this remark Kaltenbrunner did not refer to the SD but only to the Security Police. The letter from the SD Section Coblenz; to the Inspector of the Security Police and SD equally fails to show that the tasks of the SD included promotion of lynch justice, or that the SD had in any way taken part in such measures. The letter merely contains a communication from the SD Section Coblenz to the effect that the OKW had issued a similar order to Himmler's and Bormann's and that this order had been distributed down to company commanders for reading out to their units. It cannot, thus, be deduced from this letter that the SD had in any way taken part in such lynch justice, or had promoted it. I also refer to Document 057-PS, the order by Bormann, which is equally only addressed to the Police and the organizations of the Party. Kaltenbrunner's order, dated 5 April 1944 (Document 3855-PS, USA-806) is issued by Amt IV, Gestapo.
The witness Hoeppner declared on 1 August 1946 that the SD had received no instructions from Himmler not to interfere in clashes between the German population and Anglo-American airmen. Since the SD exercised no police functions, the problem of intervention did not arise in any case. The affidavits Schellenberg (Affidavit SD-60) and Dittel (Affidavit SD-63) show that Aemter VI and VII were also not competent for the execution of the Commando Order and lynch measures and have never been used to this end. I have also submitted 284 affidavits for the entire territory of the Reich and covering the period between 1939 and 1945, which prove that the SD was in no way involved in the execution or maltreatment of Allied parachutists.
Nacht und Nebel Decree. A further point in the indictment of the SD deals with participation in the execution of the Nacht und Nebel Decree. Competence for the execution of the Nacht und Nebel Decree was divided between the Wehrmacht offices and the Gestapo, as is shown by Document L-90. The Wehrmacht offices had received instructions to impose the death penalty for criminal acts against the Reich and the occupation army, undertaken by non-German civilians. However, if no such punishment was to be expected, these civilians were, according to Paragraph IV of the first supplementary regulations to the instructions contained in Document Number 91, to be taken to Germany by the Secret Field Police, there to be turned over to a Stapo office. I also refer to the ordinance by the OKW dated 2 February 1942 (Document L-90), which shows that the RSHA (Kriminaldirektor Dr. Fischer) was competent for the execution of the Nacht und Nebel Decree. From the Prosecution Document L-185, the plan showing the distribution of work in the RSHA, dated I March 1941, it can be seen that Kriminaldirektor Dr. Fischer was in charge of Subsection IV E 3, Counter-Intelligence West, in Amt IV.
This state of affairs is borne out by the second Prosecution Document 833-PS of 2 February 1942, signed by Canaris, Chief of the Amt Ausland Abwehr in the OKW. These instructions provide that subjects of foreign countries coming under the Nacht und Nebel Decree were to be sentenced by the competent military courts in the territories occupied by Germany, provided that (a) the sentence involves capital punishment, (b) sentence is passed within 8 days after arrest. In all other cases the counter-intelligence agencies were to determine the time of arrest. The counter-intelligence agencies were to communicate any arrests to the RSHA, attention of Kriminaldirektor Dr. Fischer. The RSHA would then name a Stapo office which was to take over the prisoners. The distribution too shows that Aemter III, VI, and VII were in no way involved. The next Prosecution Document 668-PS, a letter by the Chief of the Security Police and the SD, dated 24 June 1942, with equal clarity shows the sole Competence of the Gestapo. The letter was issued by Amt IV, specifically by Subsection IV D 4. Had the execution of the Nacht und Nebel Decree come within the competence of the SD, this letter would have had to have been issued by one of the Aemter III, VI, or VII.
I further refer to the testimony of the witness Dr. Ehlich before the Commission and to the testimony of the witness Knochen. Both have stated in conformity that the SD was not competent for the execution of the Nacht und Nebel Decree and did not take part therein.
As to the decree by the OKW, signed by Keitel on 18 August 1944, it is true that it says that civilians were to be turned over to the SD; however, in this
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respect I refer to the affidavit by Keitel (SD-52). The same applies to the decree issued by Westerkamp on 13 September 1944, where the reference can also only be taken to mean the Gestapo.
In Document D-762, Exhibit Number GB-892, under Figure 1, the SD is not mentioned, but only the Wehrmacht, the SS, and the Police. The method of expression used in Figure 2 is unclear. Instead of "the nearest local office of the Security Police and the SD" it should have stated "the Chief of the Security Police and the SD." Document D-764, Exhibit Number GB-299, under Figure 4 correctly mentions the office of the Security Police and the SD. According to the whole context, Figure 5a can thus be taken as referring by "SD" to the competent police body. The SD was not even kept informed, as can be seen from the distribution. Of Document D-764, 11 copies were prepared; copies 1 to 10 were sent out to the Wehrmacht commanders, while copy 11 was communicated to the Gestapo. Had the SD been competent, the decree would have to have been sent to them as well.
In connection with the decrees signed by Keitel (Session of 11 April 1946), in which it says that certain persons were to be turned over to the SD, I refer to the testimony of Keitel, according to which the designation "SD" has erroneously been used instead of "Security Police."
I also submitted 270 affidavits which show that in the occupied territories of Poland, Yugoslavia, Latvia, Czechoslovakia, Russia, Lorraine, Belgium, Eupen-Malmedy, and in the following regions of Germany: Munich-Upper Bavaria, Rhine Province, Wuerttemberg, Hamburg, Saar-Palatinate, Silesia, Berlin, Styria, Thuringia, Sudetenland, Upper Silesia, the Tyrol, Saxony, Baden, Central Germany, Westphalia, East Prussia, Hesse, Moselle District, Eastern Bavaria, Holstein, Swabia, West Prussia, the SD had nothing to do with the execution of the Nacht und Nebel Decree. These statements cover the period from 1941 to 1945.
From the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63) it is clear that Aemter VI and VII also had no hand in the execution of the Nacht und Nebel Decree.
Summary proceedings. Neither was the SD competent for the application of summary proceedings. In this connection I wish to draw attention to the following contradiction: In the heading of Section VI H the Prosecution allege that the SD, through summary proceedings, had arrested, brought to trial, and convicted subjects of occupied countries. In the text under this heading it is, however, shown that such special criminal proceedings were applied by the Police. All the documents submitted are concerned with the Gestapo. I refer to the German transcript (Session of 2 January 1946), where only police courts and Gestapo summary courts are mentioned.
The fact that the Police alone were competent is obvious from the documents submitted by the Prosecution. Document 654-PS repeats the contents of a preliminary discussion between Thierack and Himmler on their intention of turning over proceedings against Jews, Poles, Gypsies, Russians, and Ukrainians from the regular courts to the courts of the Reichsfuehrer SS. Another Prosecution Document, L-316, issued by the RSHA II on 5 November 1942, simply contains notice that such proceedings were to be transferred to the Police from the judicial authorities.
Criminal proceedings against Jews were, in fact, transferred to the Police from the judicial authorities, and I refer in this connection to my Document Number SD-56. With regard to proceedings against Poles, Gypsies, Russians, and Ukrainians, no instructions to that effect were given. This is confirmed by the statement of the witness Lammers before the Tribunal (Session of 9 April 1946). The fact that in practice the SD had nothing to do with sentences pronounced against such persons appears from the letter from the President of the Court of Appeal and the Chief Public Prosecutor at Katowice of 3 December 1941, addressed to the Reich Minister of Justice. This report mentions that 350 members of an organization involved in high treason had been hanged by the Police following instructions given by the Chief of the Stapo office in Katowice. I further refer to the answer to Question Number 5 in the affidavit by Mildner of 29 March 1946 (Session of 11 April 1946). Here Mildner stated that these punishments and executions were ordered by Himmler, the orders being transmitted, through Kaltenbrunner and Mueller, to the commandants of the concentration camps.
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On 1 August 1946 the witness Hoeppner testified before the Tribunal that it was not among the functions of the SD to set up summary courts. The affidavits by Schellenberg and Dittel (Affidavits SD-61 and 63) show that Aemter VI and VII were also not competent for the application of summary proceedings. Furthermore, covering the period from 1939 to 1945, I have submitted 209 affidavits for the RSHA, Amt III, and a number of regions within the Reich and in the occupied territory of Russia, Czechoslovakia, Italy, and Poland, which indicate that the SD was never in any way involved in summary proceedings for the purpose of convicting and executing subjects of occupied countries. Retaliation against next of kin (Sippenhaftung). In substantiation of the allegation that the SD had executed or imprisoned in concentration camps persons related to individuals accused of crimes, the Prosecution have referred to Document L-37, Exhibit Number USA-506. From the reference number of this document: IV B c -- 5/44 GRS, it is quite clear that this matter was attended to by the Gestapo.
The next Prosecution Document, L-215, the original file on the deportation of Luxembourg nationals in 1944, clearly shows that the Gestapo dealt with the matter. I would point to the reference Number IV indicated on the various letters. This volume also contains numerous letters from the Stapo offices IV. The whole volume contains no letter indicating any participation of the SD. The witness Hoeppner stated on 1 August 1946 that the SD had nothing to do with retaliatory measures against next of kin.
I also refer to the affidavit by Fromm (SD-56) who testified that the SD, Amt III and VI, had nothing to do with the measures indicated in Prosecution Document L-37.
Schellenberg and Dittel have also stated in their affidavits (SD-61 and 63) that Aemter VI and VII did not participate in retaliatory measures against next of kin. I also refer to 210 affidavits submitted by me, which show that the SD was not involved in any such measures in the territories formerly occupied by Germany of Russia, Italy, Czechoslovakia, Yugoslavia, and Poland between 1939 and 1945.
Shooting of prisoners in the Security Police and SD prison at Radom. In connection with this point, the Prosecution have submitted Document Number L-53, a letter by the commander of the security Police and the SD at Radom, dated 21 July 1944. The reference number of this letter also shows that this was purely a Gestapo affair. I also refer to the affidavit by Fromm (SD-56), who stated that the SD had no prisons in the Government General, that by Security Police and SD prisons the detention institutions of the Gestapo were meant, and that the matter treated in Document L-53 had not been dealt with by the SD. The fact that no SD prisons existed is also made clear by the testimony of Ehlich before the Commission.
I also refer to the affidavit by Dr. Laube, who testified that the SD never had or ran prisons or detention Institutions of its own. In particular, Dr. Laube has confirmed this in the case of France, and the statements of Dr. Laube, as far as they deal with France, are supported by the affidavit by Wollbrandt (SD-14). In the case of Minsk, this has been confirmed by Gerty Breiter (SD-69).
The affidavits by Schellenberg (SD-61) and Dittel (SD-63) show that Aemter VI and VII were not competent either. I have also submitted 189 affidavits for the entire territory of the Reich, Russia, Poland, and Czechoslovakia for the period covering 1939 to 1945, in which it is stated that by and to the SD no instructions were issued to murder prisoners in prisons in order to forestall their liberation by Allied troops, and that the SD never had a hand in such acts.
I have also submitted 22 collective affidavits covering the period between 1935 and 1945 which show, for the occupied territories of Russia, Eupen-Malmedy, Italy, Belgium, and Latvia, as well as for the territories of Brunswick, South Hanover, Aachen, West Prussia, East Prussia, Bavaria, the Saar Territory, the Palatinate, the Rhine Province, Wuerttemberg, Vienna, Upper Danube, Styria, the Tyrol, and the Sudetenland, that the SD at no time and in no place carried out arrests, and that there existed no SD prisons or prisoners.
Requisitioning by force. Document Number 1015-PS shows quite clearly that the Einsatzstab Rosenberg was competent for the requisitioning of public and private property in all occupied territories. The Prosecution have referred to the Documents R-101, 071-PS, and 2620-PS. Document R-101 shows that requisitioning was carried out and ordered by the Main Trustee Office "Ost." Document Number 2620-PS, concerning Einsatzgruppen A, B, C, D, and Einsatzkommandos,
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provides no indication of the fact that Aemter III or VI were in any way active in requisitioning public or private property.
Document 071-PS shows that requisitioning of works of art was to be conducted by the Police. "Requisitioning conducted by the Police" and "attention of the Police" are terms specifically mentioned. The document goes on to say that historical works and documents were demanded by the Police. Material is also mentioned which the Police justifiably requisitioned for purposes of their work. This document is simply another instance of the fact that the Police is meant by the term SD, for it says that requisitioning will be undertaken by the SD or the Police, although the text later shows that requisitioning was carried out exclusively by the Police. Thus, whenever this document mentions the SD, it presumably refers only to the Police. The evidence submitted by the Prosecution in itself already shows that the SD did not participate in the criminal acts alleged by the Prosecution. I also refer to the testimony of the witness Dr. Roessner. The witness Franz Straub and the witness Knochen have testified, for Belgium and France respectively, that requisitioning of art treasures was not carried out by the SD. I further refer to the affidavit by Klauke (Number SD-15) who testified that Amt III never requisitioned property of Jews, Communists, Free Masons, or other political opponents. Beyond this, Kutter, Number SD-20, stated under oath that the SD within the Reich had strict orders not to carry out any executive measures, which would have included requisitioning.
Schellenberg, in Number SD-61, and Dittel, in Number SD-63, have stated, as far as Aemter VI and VII are concerned, that neither of these two Aemter carried out any requisitioning of public or private property. I have 'also submitted 495 affidavits showing that during the period from 1934 to 1945 in the entire German territory as well as in the occupied territories of Alsace, France, Russia, Eupen-Malmedy, Poland, Italy, Lorraine, Luxembourg, and Czechoslovakia, the SD was never employed in requisitioning and distributing public or private property.
Third-degree interrogations. The SD was not competent to conduct third-degree interrogations. In trying to prove their allegation to that effect, the Prosecution have referred to Document 1531-PS. From the testimonies and the documents submitted by me it is clear that the SD had no executive powers and was, therefore, unable to conduct any interrogations, including those involving third-degree methods. The Prosecution Documents 1531-PS and L-89 show that the Stapo alone were competent to conduct third-degree interrogations. The decrees contained in Document 1531-PS and dated 26 October 1939 and 12 June 1942 bear the reference Number IV and are signed by Mueller. Aemter III, VI, and VII were not even informed of this letter. The letter from the commander of the Security Police and the SD for the district of Radom, dated 24 February 1944, was also sent by Section IV A. The regulations contained in this letter, referring to the application of third-degree methods, were addressed only to the Security Police in the Government General, as is clearly apparent from the text of the letter. The letter furthermore specifies that the matter and extent of third-degree interrogations is conferred on the Chiefs of Sections IV and V, the Stapo and the Criminal Police.
The witness Hoeppner has testified that the SD never conducted any interrogations, so that it could not do so with regard to third-degree methods either. The affidavit by Kutter, Number SD-20, shows that all SD members had strict orders to refrain from any executive interrogations within the territory of the Reich. As for France, I draw attention to the minutes on the interrogation of the witness Knochen, who declared that the SD in France was not entitled to conduct interrogations or questionings. Schellenberg and Dittel, by their Affidavits Numbers SD-61 and 63, have also stated that Aemter VI and VII were not authorized to carry out interrogations.
I have also submitted 76 collective affidavits covering the period from 1934 to 1945, showing that the SD did not conduct any interrogations, thus none involving third-degree methods either, within the entire territory of the Reich, Poland, Czechoslovakia, Yugoslavia, and Russia.
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: assign-
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ment 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.
And, secondly, the administration of concentration camps: concentration camps were under the jurisdiction of the SS 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 SS Economic and Administrative Main Office. The SS 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 Einsatzgruppen 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.
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?
DR. GAWLIK: No SD men were working in the Economic and Administrative Main Office, at least no SD men from Amt III; neither from Amt III nor from Amt VI. As far as I am informed, there were also a few Gestapo men.
THE PRESIDENT: Didn't any men work with the "SD" on their arms 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 commandant was an SD man; but that must be an error, because Aemter 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 "SD," but I
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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 offices, Amt I; Amt II; Amt III, SD Inland; Amt IV, Gestapo; Amt V, Kripo; Amt VI, Foreign Intelligence Service; and Amt VII. Those 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 service in the local units of the SS.
THE PRESIDENT: As far as I can understand what you say, you are saying that in the branches of the RSHA all 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. 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 a right to intervention. As an example I mention the intervention of Britain, 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 (Fenwick: International Law, 1924, Page 154 following).
This right to intervention for crimes against humanity was not generally recognized. Oppenheim, International Law, Volume 1, 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 to Article 6(c) of the Charter, persecution
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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 that 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 Central Department II/1, a department for Jewish questions. This department for Jewish questions allegedly did not have the task of preparing the extermination of the Jews.
Dr. Ehlich furthermore testified that in Amt III no department concerned itself with the Jewish question, and especially not Department III B 3. As a result of the regulations defining the tasks of Amt III and Amt 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 Aemter VI and VII that these offices had nothing to do with the persecution of the Jews either. 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-70. For their allegation that the SD had participated in the persecution of Jews in 1938 the Prosecution have submitted three teletypes dealing with anti-Semitic measures, of 10 November 1938, as Document 3051-PS. In this connection I draw attention to the affidavits I have submitted as Numbers SD-27, 16, and 53, according to which the SD took no part whatever in the pogrom of November 1938. 1 also refer to 107 affidavits for the entire territory of the Reich, stating that the SD had not participated in the pogrom.
Although the affidavit Gestapo 14 mentions that members of the SD office Magdeburg were arrested, punished, and sent to a concentration camp for participation in the outrages, this only shows, firstly, that the SD had no orders to take part in the pogrom, and secondly, that wherever this did occur, the SD members involved were punished.
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The evidence has not shown that the SD Aemter III and VI of the RSHA participated in the extermination of the millions of Jews. All Jewish affairs were dealt with by Amt IV, by 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 I January 1941 and 1 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, Mueller, Eichmann. Not one of the witnesses has indicated that Aemter 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, according to which there was no connection between the department of Eichmann and Aemter III, VI, and VII, and further to the evidence of Dr. Hoffmann. 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 all Jewish affairs were also handled by Amt IV, the 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 and by the Laube Affidavit, SD-54, which I submitted. They show that Hauptsturmfuehrer Dannecker, who was sent to France by Eichmann, also belonged to Amt IV and received his instructions directly from Eichmann himself. Thus, no connection existed between Aemter 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 3 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 Aemter III, VI, or VII in any way 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. That is the Eichmann organization.
DR. GAWLIK: The legal position is not the same as in those three organizations which I cited. Eichmann was really in Amt IV, but probably it would be better if my colleague, Mr. Merkel, were
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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 were 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.
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 Aemter 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 Aemter 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. 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 maneuvers 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 criminal for persecution of the Church. Article 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. 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
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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 honor, of life, of health, of liberty, of property, and of religious freedom. I refer in this connection to Oppenheim's International Law, Volume I, Page 461. Only a violation of this right ...
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 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 of Germany. Outside of 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 1815-PS, which is a document from Aachen, that it had persecuted the Churches inside Germany. There, in my opinion, you have to draw a distinct dividing line, and what I had been saying referred only to conditions inside Germany. Only a violation of this 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 religious life, were dealt with in such a manner that the religious tendencies, wishes, and preoccupations of all sections of the population were registered, without assessing 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 12 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.
For the period before 1939 I refer to the affidavit of Fromm (Affidavit SD-19), and particularly to SD-55, by Theo Gahmann. I draw your attention to the fact that the English Document Book H, which deals with the persecution of the Churches, contains no evidence against the SD. Documents D-75, D-101, D-145, 848-PS, 1164-PS, 1481-PS, and 1521-PS contained in this document book were purely police affairs.
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THE PRESIDENT: Go on.
Dr. GAWLIK: The Prosecution have submitted Document 1815-PS. First of all it should be noted that this simply deals with a local occurrence from the area of the Stapo office in Aachen. All grounds are lacking for any assumption that these happenings can be generalized to apply to the entire Reich. All the facts contained in this letter emanate from the local Stapo office or from Amt IV in Berlin. The file contains no letter addressed to or by the SD. This fact in itself contradicts the theory of co-operation between the SD and the Gestapo, for in that case this large file would have had to have contained some documents showing orders or instructions for the SD. Individual cases are not referred to at all in the document. From the fact that certain SD members were transferred to Amt IV to deal with Church matters, the strict separation of tasks is clearly apparent. The decree of 12 March 1941, contained in Document 1815-PS, according to which, after the SD had transferred Church matters to the Gestapo, numerous Stapo offices were ordered to start on the organization of a suitable intelligence system, shows quite clearly that the SD, Amt III, was not permitted to deal with Church matters, that the intelligence service for police matters, as turned over from the SD to the Gestapo, was useless from the point of view of persecution of the Churches, and that neither before nor after this time did the SD ever give assistance to the Gestapo. I have also submitted 259 affidavits by SD members from the entire territory of the Reich and covering the period from 1935 to 1945, showing that the SD did not persecute any Churches. I believe I have shown that a collective sentencing of all members of Aemter III and VI, which is the intention of the Prosecution, would not do justice to the tasks and activities of Aemter III and VI.
If, however, the Tribunal should pass sentence on the SD against my explanations, then the number of persons affected by this decision ought to be strictly limited, especially in view of Law Number 10. The general designation "SD" should not suffice, because of the manifold meaning of this word.
It will have to be clarified whether the decision affects:
1. Only members of Aemter III and VI, which were not founded until September 1939, or also members of Central Department II/I of the SD Main Office;
2. only the full-time members or also the honorary members;
3. from among the honorary members, only the collaborators, or also the Vertrauensmaenner (confidential agents);
4. from among the Vertrauensmaenner, only the permanent employees, or also those who furnished occasional reports;
5. also the technical personnel, secretaries, drivers, telephone operators, et cetera.
High Tribunal, your decision will be a milestone in the history of law, but it could also be a milestone in the history of humanity. The striving of the people is toward peace. Influential politicians as well as representatives of legal science agree that this wish of humanity can only be fulfilled by an independent jurisdiction unbounded by state sovereignty.
James Brown Scott, the President of the American Institute for International Law, established in a speech, delivered in the year
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1926, that the history of mankind is but the history of the individual upon a larger scale. In the history of the individual the right to take justice into one's own hands has given way to an arbitration by the parties concerned ...
THE PRESIDENT: Go on.
DR. GAWLIK: ... and out of this developed the juridical procedure of nominating judges and ensuring the execution of their judgments. Violence is violence; whether between armed individuals or entire peoples, who in the case of war have at their disposal the last resources of their governments.
Today the peoples in their development, as compared with the development of the individual, are in a state of transit from the arbitration system to a regular juridical system. Nature repeats herself from day to day, from generation to generation, whether in individuals or in such groups of individuals as we call state or nation. The international arbitration system will be the basis for the regular juridical system of the United Nations, which is unbounded by state sovereignty, just as among the peoples the regular juridical system has developed out of the arbitration system.
We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in world history.
THE PRESIDENT: Dr. Gawlik, I have before me the English translation of your speech, and on Page 113 of the speech there appears to be a reference, in the paragraph which has Number 1, to the Main Office of the SD. I would like to know, for the benefit of the Tribunal, what you mean by the Main Office of the SD. Do your pages correspond?
DR. GAWLIK: Yes, My Lord. The SD Main Office existed until 1939. It. had the following departments: II-1 "Gegnerforschung" (Enemy Investigation), and when the RSHA was founded that department was transferred to the Gestapo.
THE PRESIDENT: The Main Office of the SD was transferred to the Gestapo?
DR. GAWLIK: No, not the entire main office, My Lord. Until 1939 there was an SD Main Office, and in September 1939 the RSHA was founded. The RSHA only existed since September 1939. Before that there was the SD Main Office, which had various subdepartments, and one department of that SD Main Office was transferred to the Gestapo when the RSHA was founded. That department was called II-1.
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THE PRESIDENT: Did the Main Office of the SD cease to exist in September 1939?
DR. GAWLIK: Yes, it then ceased to exist. And Department 11-2 then became Amt III of the RSHA.
THE PRESIDENT: You are saying, are you not, that II-I, which was a branch of the Main Office of the SD, was transferred to the RSHA and became Amt II in the RSHA?
DR. GAWLIK: No, My Lord, Amt II-1 came into Department IV of the RSHA, that is, the Gestapo. Department II-2 became Amt III in the RSHA.
THE PRESIDENT: At any rate, the SD Main Office ceased to exist, and all passed into the various Aemter of the RSHA?
DR. GAWLIK: Yes.
THE PRESIDENT: Yes.
DR. GAWLIK: We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles, and would thus fulfill the deep wish of all the peoples.
The International Military Tribunal could fulfill this task in the history of the world if by its decision it were to indicate that it intends to be the Court above all nations, which is the aim of politicians and of representatives of legal science. The collective condemnation of the members of the organizations, however, is not the way to fulfill this aim because this would punish the innocent as well. This Tribunal can only be built up on the principle: no punishment without the establishment of the guilt of the individual.
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D-649, 727-PS, 735-PS, D-774, D-775, D-780 and Exhibit GB-26. This erroneous application of the term SD had apparently become the custom with the Wehrmacht and other offices to such an extent that even Raeder, Keitel and Doenitz speak of transfers to the SD, although the SD was not competent for such measures. The Prosecution have further referred to the Decree of 4 August 1942 (Document 553-PS, USA-500) which, however, shows clearly that the Security Police were competent for the execution of this order. The order does not say that parachutists were to be turned over to the SD, but it was specified that they were to be transferred to the offices of the Chief of the Security Police and the SD. The same applies to Document Number D-864, Exhibit Number GB-457, in which reference is exclusively made to the competent office of the commander of the Security Police and the SD. This is something entirely different. The Chief of the Security Police and the SD was identical with the Chief of the RSHA and superior to the Aemter I to VII. This term thus fails to furnish proof that Aemter III and VI were competent. Beyond this, the Decree of 4 August 1942 makes it clear that by these offices only Aemter IV and V, that is, Gestapo and Criminal Police, can be meant, because under I, Figure 1, it says:
"In all territories where the offices of the Security Police and the SD are established as executive, combating of individual parachutists is..." I draw attention to the words "as executive". Offices as executive agencies were only those of the State Police and the Criminal Police. The SD had no executive powers.
The hearing of evidence before the Commissions has clearly shown that such orders have been executed solely by the Security Police, although in numerous documents, owing to an error in terminology, the SD is mentioned in place of the Security Police. I refer primarily to the Prosecution Document 526-PS, Exhibit Number USA-502, a top-secret matter, dated 10 May 1943, where it says that the Fuehrer Order had been executed by the SD. The witness Dr. Hoffmann testified on 27 June 1946 before the Commission that here, since it was an executive measure, Security Police should be read instead of SD, because the Wehrmacht often mixed up the two terms. The correctness of the statements of the witness Dr. Hoffmann is corroborated by the testimony of the Defendant Jodl as a witness before the Tribunal.
The Prosecution have next referred to Document C-176, Exhibit Number GB-228. This concerns the Commando action at Bordeaux, where it says on Page 713 that the two captured Englishmen had been shot by order of the Fuehrer in the presence of an officer of the SD. According to the testimony of the witness Knochen, the term SD was meant to indicate an official of the Gestapo. The fact that the Security Police actually was competent for the execution of the Commando Order and that "Security Police" should be read instead of "SD" in the orders of 4 August 1942 and 18 October 1942, is also apparent from the affidavit by Dr. Mildner of 16 November 1945 (Document 2374-PS).
In this affidavit Mildner has stated that instructions had been issued to the Wehrmacht to turn over all members of British and American Commando units to the Security Police.
The Security Police was to have interrogated- and subsequently shot these men. Mildner has also stated that the decree had been transmitted, through the Chief of Amt IV, Mueller, to the commanders and inspectors of the Police. Had the SD, Amt III or Amt VI, been competent, the order would not have been transmitted by the Chief of Amt IV, Gestapo, but by the Chiefs of Aemter III and VI to the offices of these organizations.
I further refer to the affidavit by Walther Huppenkothen (Affidavit Gestapo-39), formerly a Government Director in Amt IV E, RSHA, who, in connection with the agreement between Amt IV and the OKW on the subject of treatment of enemy radio agents, stated that such persons were in all cases to be turned over to the Gestapo, and that the Gestapo had frequently though erroneously been designated SD by Wehrmacht agencies.
The Prosecution furthermore allege that the aims and tasks of the SD included affording protection to civilians who had lynched Allied airmen. In substantiation of this claim the Prosecution have submitted Document Numbers R-110 (Exhibit Number USA-333), 2990-PS, and 745-PS. Document R-110 is addressed only to the Police, not to the SD. According to the affidavit by Schellenberg of 18 November 1945 (Document 2990-PS) the Defendant Kaltenbrunner is stated to have said that all offices of the SD and the Security Police were to be informed
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that they were not to intervene in lynch actions against British and American airmen. In the supplementary affidavit submitted by me, Number SD-51, Schellenberg has stated that by this remark Kaltenbrunner did not refer to the SD but only to the Security Police. The letter from the SD Section Coblenz; to the Inspector of the Security Police and SD equally fails to show that the tasks of the SD included promotion of lynch justice, or that the SD had in any way taken part in such measures. The letter merely contains a communication from the SD Section Coblenz to the effect that the OKW had issued a similar order to Himmler's and Bormann's and that this order had been distributed down to company commanders for reading out to their units. It cannot, thus, be deduced from this letter that the SD had in any way taken part in such lynch justice, or had promoted it. I also refer to Document 057-PS, the order by Bormann, which is equally only addressed to the Police and the organizations of the Party. Kaltenbrunner's order, dated 5 April 1944 (Document 3855-PS, USA-806) is issued by Amt IV, Gestapo.
The witness Hoeppner declared on 1 August 1946 that the SD had received no instructions from Himmler not to interfere in clashes between the German population and Anglo-American airmen. Since the SD exercised no police functions, the problem of intervention did not arise in any case. The affidavits Schellenberg (Affidavit SD-60) and Dittel (Affidavit SD-63) show that Aemter VI and VII were also not competent for the execution of the Commando Order and lynch measures and have never been used to this end. I have also submitted 284 affidavits for the entire territory of the Reich and covering the period between 1939 and 1945, which prove that the SD was in no way involved in the execution or maltreatment of Allied parachutists.
Nacht und Nebel Decree. A further point in the indictment of the SD deals with participation in the execution of the Nacht und Nebel Decree. Competence for the execution of the Nacht und Nebel Decree was divided between the Wehrmacht offices and the Gestapo, as is shown by Document L-90. The Wehrmacht offices had received instructions to impose the death penalty for criminal acts against the Reich and the occupation army, undertaken by non-German civilians. However, if no such punishment was to be expected, these civilians were, according to Paragraph IV of the first supplementary regulations to the instructions contained in Document Number 91, to be taken to Germany by the Secret Field Police, there to be turned over to a Stapo office. I also refer to the ordinance by the OKW dated 2 February 1942 (Document L-90), which shows that the RSHA (Kriminaldirektor Dr. Fischer) was competent for the execution of the Nacht und Nebel Decree. From the Prosecution Document L-185, the plan showing the distribution of work in the RSHA, dated I March 1941, it can be seen that Kriminaldirektor Dr. Fischer was in charge of Subsection IV E 3, Counter-Intelligence West, in Amt IV.
This state of affairs is borne out by the second Prosecution Document 833-PS of 2 February 1942, signed by Canaris, Chief of the Amt Ausland Abwehr in the OKW. These instructions provide that subjects of foreign countries coming under the Nacht und Nebel Decree were to be sentenced by the competent military courts in the territories occupied by Germany, provided that (a) the sentence involves capital punishment, (b) sentence is passed within 8 days after arrest. In all other cases the counter-intelligence agencies were to determine the time of arrest. The counter-intelligence agencies were to communicate any arrests to the RSHA, attention of Kriminaldirektor Dr. Fischer. The RSHA would then name a Stapo office which was to take over the prisoners. The distribution too shows that Aemter III, VI, and VII were in no way involved. The next Prosecution Document 668-PS, a letter by the Chief of the Security Police and the SD, dated 24 June 1942, with equal clarity shows the sole Competence of the Gestapo. The letter was issued by Amt IV, specifically by Subsection IV D 4. Had the execution of the Nacht und Nebel Decree come within the competence of the SD, this letter would have had to have been issued by one of the Aemter III, VI, or VII.
I further refer to the testimony of the witness Dr. Ehlich before the Commission and to the testimony of the witness Knochen. Both have stated in conformity that the SD was not competent for the execution of the Nacht und Nebel Decree and did not take part therein.
As to the decree by the OKW, signed by Keitel on 18 August 1944, it is true that it says that civilians were to be turned over to the SD; however, in this
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respect I refer to the affidavit by Keitel (SD-52). The same applies to the decree issued by Westerkamp on 13 September 1944, where the reference can also only be taken to mean the Gestapo.
In Document D-762, Exhibit Number GB-892, under Figure 1, the SD is not mentioned, but only the Wehrmacht, the SS, and the Police. The method of expression used in Figure 2 is unclear. Instead of "the nearest local office of the Security Police and the SD" it should have stated "the Chief of the Security Police and the SD." Document D-764, Exhibit Number GB-299, under Figure 4 correctly mentions the office of the Security Police and the SD. According to the whole context, Figure 5a can thus be taken as referring by "SD" to the competent police body. The SD was not even kept informed, as can be seen from the distribution. Of Document D-764, 11 copies were prepared; copies 1 to 10 were sent out to the Wehrmacht commanders, while copy 11 was communicated to the Gestapo. Had the SD been competent, the decree would have to have been sent to them as well.
In connection with the decrees signed by Keitel (Session of 11 April 1946), in which it says that certain persons were to be turned over to the SD, I refer to the testimony of Keitel, according to which the designation "SD" has erroneously been used instead of "Security Police."
I also submitted 270 affidavits which show that in the occupied territories of Poland, Yugoslavia, Latvia, Czechoslovakia, Russia, Lorraine, Belgium, Eupen-Malmedy, and in the following regions of Germany: Munich-Upper Bavaria, Rhine Province, Wuerttemberg, Hamburg, Saar-Palatinate, Silesia, Berlin, Styria, Thuringia, Sudetenland, Upper Silesia, the Tyrol, Saxony, Baden, Central Germany, Westphalia, East Prussia, Hesse, Moselle District, Eastern Bavaria, Holstein, Swabia, West Prussia, the SD had nothing to do with the execution of the Nacht und Nebel Decree. These statements cover the period from 1941 to 1945.
From the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63) it is clear that Aemter VI and VII also had no hand in the execution of the Nacht und Nebel Decree.
Summary proceedings. Neither was the SD competent for the application of summary proceedings. In this connection I wish to draw attention to the following contradiction: In the heading of Section VI H the Prosecution allege that the SD, through summary proceedings, had arrested, brought to trial, and convicted subjects of occupied countries. In the text under this heading it is, however, shown that such special criminal proceedings were applied by the Police. All the documents submitted are concerned with the Gestapo. I refer to the German transcript (Session of 2 January 1946), where only police courts and Gestapo summary courts are mentioned.
The fact that the Police alone were competent is obvious from the documents submitted by the Prosecution. Document 654-PS repeats the contents of a preliminary discussion between Thierack and Himmler on their intention of turning over proceedings against Jews, Poles, Gypsies, Russians, and Ukrainians from the regular courts to the courts of the Reichsfuehrer SS. Another Prosecution Document, L-316, issued by the RSHA II on 5 November 1942, simply contains notice that such proceedings were to be transferred to the Police from the judicial authorities.
Criminal proceedings against Jews were, in fact, transferred to the Police from the judicial authorities, and I refer in this connection to my Document Number SD-56. With regard to proceedings against Poles, Gypsies, Russians, and Ukrainians, no instructions to that effect were given. This is confirmed by the statement of the witness Lammers before the Tribunal (Session of 9 April 1946). The fact that in practice the SD had nothing to do with sentences pronounced against such persons appears from the letter from the President of the Court of Appeal and the Chief Public Prosecutor at Katowice of 3 December 1941, addressed to the Reich Minister of Justice. This report mentions that 350 members of an organization involved in high treason had been hanged by the Police following instructions given by the Chief of the Stapo office in Katowice. I further refer to the answer to Question Number 5 in the affidavit by Mildner of 29 March 1946 (Session of 11 April 1946). Here Mildner stated that these punishments and executions were ordered by Himmler, the orders being transmitted, through Kaltenbrunner and Mueller, to the commandants of the concentration camps.
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On 1 August 1946 the witness Hoeppner testified before the Tribunal that it was not among the functions of the SD to set up summary courts. The affidavits by Schellenberg and Dittel (Affidavits SD-61 and 63) show that Aemter VI and VII were also not competent for the application of summary proceedings. Furthermore, covering the period from 1939 to 1945, I have submitted 209 affidavits for the RSHA, Amt III, and a number of regions within the Reich and in the occupied territory of Russia, Czechoslovakia, Italy, and Poland, which indicate that the SD was never in any way involved in summary proceedings for the purpose of convicting and executing subjects of occupied countries. Retaliation against next of kin (Sippenhaftung). In substantiation of the allegation that the SD had executed or imprisoned in concentration camps persons related to individuals accused of crimes, the Prosecution have referred to Document L-37, Exhibit Number USA-506. From the reference number of this document: IV B c -- 5/44 GRS, it is quite clear that this matter was attended to by the Gestapo.
The next Prosecution Document, L-215, the original file on the deportation of Luxembourg nationals in 1944, clearly shows that the Gestapo dealt with the matter. I would point to the reference Number IV indicated on the various letters. This volume also contains numerous letters from the Stapo offices IV. The whole volume contains no letter indicating any participation of the SD. The witness Hoeppner stated on 1 August 1946 that the SD had nothing to do with retaliatory measures against next of kin.
I also refer to the affidavit by Fromm (SD-56) who testified that the SD, Amt III and VI, had nothing to do with the measures indicated in Prosecution Document L-37.
Schellenberg and Dittel have also stated in their affidavits (SD-61 and 63) that Aemter VI and VII did not participate in retaliatory measures against next of kin. I also refer to 210 affidavits submitted by me, which show that the SD was not involved in any such measures in the territories formerly occupied by Germany of Russia, Italy, Czechoslovakia, Yugoslavia, and Poland between 1939 and 1945.
Shooting of prisoners in the Security Police and SD prison at Radom. In connection with this point, the Prosecution have submitted Document Number L-53, a letter by the commander of the security Police and the SD at Radom, dated 21 July 1944. The reference number of this letter also shows that this was purely a Gestapo affair. I also refer to the affidavit by Fromm (SD-56), who stated that the SD had no prisons in the Government General, that by Security Police and SD prisons the detention institutions of the Gestapo were meant, and that the matter treated in Document L-53 had not been dealt with by the SD. The fact that no SD prisons existed is also made clear by the testimony of Ehlich before the Commission.
I also refer to the affidavit by Dr. Laube, who testified that the SD never had or ran prisons or detention Institutions of its own. In particular, Dr. Laube has confirmed this in the case of France, and the statements of Dr. Laube, as far as they deal with France, are supported by the affidavit by Wollbrandt (SD-14). In the case of Minsk, this has been confirmed by Gerty Breiter (SD-69).
The affidavits by Schellenberg (SD-61) and Dittel (SD-63) show that Aemter VI and VII were not competent either. I have also submitted 189 affidavits for the entire territory of the Reich, Russia, Poland, and Czechoslovakia for the period covering 1939 to 1945, in which it is stated that by and to the SD no instructions were issued to murder prisoners in prisons in order to forestall their liberation by Allied troops, and that the SD never had a hand in such acts.
I have also submitted 22 collective affidavits covering the period between 1935 and 1945 which show, for the occupied territories of Russia, Eupen-Malmedy, Italy, Belgium, and Latvia, as well as for the territories of Brunswick, South Hanover, Aachen, West Prussia, East Prussia, Bavaria, the Saar Territory, the Palatinate, the Rhine Province, Wuerttemberg, Vienna, Upper Danube, Styria, the Tyrol, and the Sudetenland, that the SD at no time and in no place carried out arrests, and that there existed no SD prisons or prisoners.
Requisitioning by force. Document Number 1015-PS shows quite clearly that the Einsatzstab Rosenberg was competent for the requisitioning of public and private property in all occupied territories. The Prosecution have referred to the Documents R-101, 071-PS, and 2620-PS. Document R-101 shows that requisitioning was carried out and ordered by the Main Trustee Office "Ost." Document Number 2620-PS, concerning Einsatzgruppen A, B, C, D, and Einsatzkommandos,
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provides no indication of the fact that Aemter III or VI were in any way active in requisitioning public or private property.
Document 071-PS shows that requisitioning of works of art was to be conducted by the Police. "Requisitioning conducted by the Police" and "attention of the Police" are terms specifically mentioned. The document goes on to say that historical works and documents were demanded by the Police. Material is also mentioned which the Police justifiably requisitioned for purposes of their work. This document is simply another instance of the fact that the Police is meant by the term SD, for it says that requisitioning will be undertaken by the SD or the Police, although the text later shows that requisitioning was carried out exclusively by the Police. Thus, whenever this document mentions the SD, it presumably refers only to the Police. The evidence submitted by the Prosecution in itself already shows that the SD did not participate in the criminal acts alleged by the Prosecution. I also refer to the testimony of the witness Dr. Roessner. The witness Franz Straub and the witness Knochen have testified, for Belgium and France respectively, that requisitioning of art treasures was not carried out by the SD. I further refer to the affidavit by Klauke (Number SD-15) who testified that Amt III never requisitioned property of Jews, Communists, Free Masons, or other political opponents. Beyond this, Kutter, Number SD-20, stated under oath that the SD within the Reich had strict orders not to carry out any executive measures, which would have included requisitioning.
Schellenberg, in Number SD-61, and Dittel, in Number SD-63, have stated, as far as Aemter VI and VII are concerned, that neither of these two Aemter carried out any requisitioning of public or private property. I have 'also submitted 495 affidavits showing that during the period from 1934 to 1945 in the entire German territory as well as in the occupied territories of Alsace, France, Russia, Eupen-Malmedy, Poland, Italy, Lorraine, Luxembourg, and Czechoslovakia, the SD was never employed in requisitioning and distributing public or private property.
Third-degree interrogations. The SD was not competent to conduct third-degree interrogations. In trying to prove their allegation to that effect, the Prosecution have referred to Document 1531-PS. From the testimonies and the documents submitted by me it is clear that the SD had no executive powers and was, therefore, unable to conduct any interrogations, including those involving third-degree methods. The Prosecution Documents 1531-PS and L-89 show that the Stapo alone were competent to conduct third-degree interrogations. The decrees contained in Document 1531-PS and dated 26 October 1939 and 12 June 1942 bear the reference Number IV and are signed by Mueller. Aemter III, VI, and VII were not even informed of this letter. The letter from the commander of the Security Police and the SD for the district of Radom, dated 24 February 1944, was also sent by Section IV A. The regulations contained in this letter, referring to the application of third-degree methods, were addressed only to the Security Police in the Government General, as is clearly apparent from the text of the letter. The letter furthermore specifies that the matter and extent of third-degree interrogations is conferred on the Chiefs of Sections IV and V, the Stapo and the Criminal Police.
The witness Hoeppner has testified that the SD never conducted any interrogations, so that it could not do so with regard to third-degree methods either. The affidavit by Kutter, Number SD-20, shows that all SD members had strict orders to refrain from any executive interrogations within the territory of the Reich. As for France, I draw attention to the minutes on the interrogation of the witness Knochen, who declared that the SD in France was not entitled to conduct interrogations or questionings. Schellenberg and Dittel, by their Affidavits Numbers SD-61 and 63, have also stated that Aemter VI and VII were not authorized to carry out interrogations.
I have also submitted 76 collective affidavits covering the period from 1934 to 1945, showing that the SD did not conduct any interrogations, thus none involving third-degree methods either, within the entire territory of the Reich, Poland, Czechoslovakia, Yugoslavia, and Russia.
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: assign-
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ment 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.
And, secondly, the administration of concentration camps: concentration camps were under the jurisdiction of the SS 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 SS Economic and Administrative Main Office. The SS 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 Einsatzgruppen 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.
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?
DR. GAWLIK: No SD men were working in the Economic and Administrative Main Office, at least no SD men from Amt III; neither from Amt III nor from Amt VI. As far as I am informed, there were also a few Gestapo men.
THE PRESIDENT: Didn't any men work with the "SD" on their arms 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 commandant was an SD man; but that must be an error, because Aemter 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 "SD," but I
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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 offices, Amt I; Amt II; Amt III, SD Inland; Amt IV, Gestapo; Amt V, Kripo; Amt VI, Foreign Intelligence Service; and Amt VII. Those 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 service in the local units of the SS.
THE PRESIDENT: As far as I can understand what you say, you are saying that in the branches of the RSHA all 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. 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 a right to intervention. As an example I mention the intervention of Britain, 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 (Fenwick: International Law, 1924, Page 154 following).
This right to intervention for crimes against humanity was not generally recognized. Oppenheim, International Law, Volume 1, 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 to Article 6(c) of the Charter, persecution
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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 that 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 Central Department II/1, a department for Jewish questions. This department for Jewish questions allegedly did not have the task of preparing the extermination of the Jews.
Dr. Ehlich furthermore testified that in Amt III no department concerned itself with the Jewish question, and especially not Department III B 3. As a result of the regulations defining the tasks of Amt III and Amt 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 Aemter VI and VII that these offices had nothing to do with the persecution of the Jews either. 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-70. For their allegation that the SD had participated in the persecution of Jews in 1938 the Prosecution have submitted three teletypes dealing with anti-Semitic measures, of 10 November 1938, as Document 3051-PS. In this connection I draw attention to the affidavits I have submitted as Numbers SD-27, 16, and 53, according to which the SD took no part whatever in the pogrom of November 1938. 1 also refer to 107 affidavits for the entire territory of the Reich, stating that the SD had not participated in the pogrom.
Although the affidavit Gestapo 14 mentions that members of the SD office Magdeburg were arrested, punished, and sent to a concentration camp for participation in the outrages, this only shows, firstly, that the SD had no orders to take part in the pogrom, and secondly, that wherever this did occur, the SD members involved were punished.
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The evidence has not shown that the SD Aemter III and VI of the RSHA participated in the extermination of the millions of Jews. All Jewish affairs were dealt with by Amt IV, by 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 I January 1941 and 1 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, Mueller, Eichmann. Not one of the witnesses has indicated that Aemter 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, according to which there was no connection between the department of Eichmann and Aemter III, VI, and VII, and further to the evidence of Dr. Hoffmann. 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 all Jewish affairs were also handled by Amt IV, the 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 and by the Laube Affidavit, SD-54, which I submitted. They show that Hauptsturmfuehrer Dannecker, who was sent to France by Eichmann, also belonged to Amt IV and received his instructions directly from Eichmann himself. Thus, no connection existed between Aemter 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 3 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 Aemter III, VI, or VII in any way 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. That is the Eichmann organization.
DR. GAWLIK: The legal position is not the same as in those three organizations which I cited. Eichmann was really in Amt IV, but probably it would be better if my colleague, Mr. Merkel, were
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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 were 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.
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 Aemter 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 Aemter 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. 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 maneuvers 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 criminal for persecution of the Church. Article 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. 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
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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 honor, of life, of health, of liberty, of property, and of religious freedom. I refer in this connection to Oppenheim's International Law, Volume I, Page 461. Only a violation of this right ...
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 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 of Germany. Outside of 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 1815-PS, which is a document from Aachen, that it had persecuted the Churches inside Germany. There, in my opinion, you have to draw a distinct dividing line, and what I had been saying referred only to conditions inside Germany. Only a violation of this 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 religious life, were dealt with in such a manner that the religious tendencies, wishes, and preoccupations of all sections of the population were registered, without assessing 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 12 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.
For the period before 1939 I refer to the affidavit of Fromm (Affidavit SD-19), and particularly to SD-55, by Theo Gahmann. I draw your attention to the fact that the English Document Book H, which deals with the persecution of the Churches, contains no evidence against the SD. Documents D-75, D-101, D-145, 848-PS, 1164-PS, 1481-PS, and 1521-PS contained in this document book were purely police affairs.
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THE PRESIDENT: Go on.
Dr. GAWLIK: The Prosecution have submitted Document 1815-PS. First of all it should be noted that this simply deals with a local occurrence from the area of the Stapo office in Aachen. All grounds are lacking for any assumption that these happenings can be generalized to apply to the entire Reich. All the facts contained in this letter emanate from the local Stapo office or from Amt IV in Berlin. The file contains no letter addressed to or by the SD. This fact in itself contradicts the theory of co-operation between the SD and the Gestapo, for in that case this large file would have had to have contained some documents showing orders or instructions for the SD. Individual cases are not referred to at all in the document. From the fact that certain SD members were transferred to Amt IV to deal with Church matters, the strict separation of tasks is clearly apparent. The decree of 12 March 1941, contained in Document 1815-PS, according to which, after the SD had transferred Church matters to the Gestapo, numerous Stapo offices were ordered to start on the organization of a suitable intelligence system, shows quite clearly that the SD, Amt III, was not permitted to deal with Church matters, that the intelligence service for police matters, as turned over from the SD to the Gestapo, was useless from the point of view of persecution of the Churches, and that neither before nor after this time did the SD ever give assistance to the Gestapo. I have also submitted 259 affidavits by SD members from the entire territory of the Reich and covering the period from 1935 to 1945, showing that the SD did not persecute any Churches. I believe I have shown that a collective sentencing of all members of Aemter III and VI, which is the intention of the Prosecution, would not do justice to the tasks and activities of Aemter III and VI.
If, however, the Tribunal should pass sentence on the SD against my explanations, then the number of persons affected by this decision ought to be strictly limited, especially in view of Law Number 10. The general designation "SD" should not suffice, because of the manifold meaning of this word.
It will have to be clarified whether the decision affects:
1. Only members of Aemter III and VI, which were not founded until September 1939, or also members of Central Department II/I of the SD Main Office;
2. only the full-time members or also the honorary members;
3. from among the honorary members, only the collaborators, or also the Vertrauensmaenner (confidential agents);
4. from among the Vertrauensmaenner, only the permanent employees, or also those who furnished occasional reports;
5. also the technical personnel, secretaries, drivers, telephone operators, et cetera.
High Tribunal, your decision will be a milestone in the history of law, but it could also be a milestone in the history of humanity. The striving of the people is toward peace. Influential politicians as well as representatives of legal science agree that this wish of humanity can only be fulfilled by an independent jurisdiction unbounded by state sovereignty.
James Brown Scott, the President of the American Institute for International Law, established in a speech, delivered in the year
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1926, that the history of mankind is but the history of the individual upon a larger scale. In the history of the individual the right to take justice into one's own hands has given way to an arbitration by the parties concerned ...
THE PRESIDENT: Go on.
DR. GAWLIK: ... and out of this developed the juridical procedure of nominating judges and ensuring the execution of their judgments. Violence is violence; whether between armed individuals or entire peoples, who in the case of war have at their disposal the last resources of their governments.
Today the peoples in their development, as compared with the development of the individual, are in a state of transit from the arbitration system to a regular juridical system. Nature repeats herself from day to day, from generation to generation, whether in individuals or in such groups of individuals as we call state or nation. The international arbitration system will be the basis for the regular juridical system of the United Nations, which is unbounded by state sovereignty, just as among the peoples the regular juridical system has developed out of the arbitration system.
We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in world history.
THE PRESIDENT: Dr. Gawlik, I have before me the English translation of your speech, and on Page 113 of the speech there appears to be a reference, in the paragraph which has Number 1, to the Main Office of the SD. I would like to know, for the benefit of the Tribunal, what you mean by the Main Office of the SD. Do your pages correspond?
DR. GAWLIK: Yes, My Lord. The SD Main Office existed until 1939. It. had the following departments: II-1 "Gegnerforschung" (Enemy Investigation), and when the RSHA was founded that department was transferred to the Gestapo.
THE PRESIDENT: The Main Office of the SD was transferred to the Gestapo?
DR. GAWLIK: No, not the entire main office, My Lord. Until 1939 there was an SD Main Office, and in September 1939 the RSHA was founded. The RSHA only existed since September 1939. Before that there was the SD Main Office, which had various subdepartments, and one department of that SD Main Office was transferred to the Gestapo when the RSHA was founded. That department was called II-1.
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THE PRESIDENT: Did the Main Office of the SD cease to exist in September 1939?
DR. GAWLIK: Yes, it then ceased to exist. And Department 11-2 then became Amt III of the RSHA.
THE PRESIDENT: You are saying, are you not, that II-I, which was a branch of the Main Office of the SD, was transferred to the RSHA and became Amt II in the RSHA?
DR. GAWLIK: No, My Lord, Amt II-1 came into Department IV of the RSHA, that is, the Gestapo. Department II-2 became Amt III in the RSHA.
THE PRESIDENT: At any rate, the SD Main Office ceased to exist, and all passed into the various Aemter of the RSHA?
DR. GAWLIK: Yes.
THE PRESIDENT: Yes.
DR. GAWLIK: We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles, and would thus fulfill the deep wish of all the peoples.
The International Military Tribunal could fulfill this task in the history of the world if by its decision it were to indicate that it intends to be the Court above all nations, which is the aim of politicians and of representatives of legal science. The collective condemnation of the members of the organizations, however, is not the way to fulfill this aim because this would punish the innocent as well. This Tribunal can only be built up on the principle: no punishment without the establishment of the guilt of the individual.