dtufail/nuremberg-trials-corpus huggingface dataset:
HERR PELCKMANN: From the Party, the Political Leaders only, and from the executives of the German State, the Reich Cabinet members only, are to be put on trial. As for the limitation of responsibility, a line must be drawn between moral and legal responsibility. The question must be asked, what ought each individual in his respective office to have done if asked to commit a crime upon order, or if he only heard of such a crime? What could reasonably be expected of him? As for a limitation according to the subdivisions of the whole organization, this can be justified by the fact, which I have thoroughly explained, that these groups had very definite and separated spheres of activity and differed very much as to their knowledge of other activities, and perhaps crimes. A subdivision as to beginning and end of membership, too, would be conceivable and would permit a collective exception of drafted members. But even for a sentence limited in such a way it seems to me absolutely necessary, in view of the grave consequences brought about by Law Number 10, to insert in the text of the verdict, or to add to the reasons given for the verdict, that each individual member would have an opportunity to object, except as provided under Law Number 10. Lastly, I want to draw attention to a procedural obstacle to the conviction sought: the meaning of the accessorial sentencing of a member of an organization as an accused individual belonging to this organization seems to me the following, according to Article 9: An organization shall be held responsible for the acts of an individual defendant, who is a member, only if between the acts of this individual defendant and his organization such a connection exists. that for legal reasons accessorial liability of the organization is deemed necessary. Such causal connection exists only if the individual defendant committed the deed as a member of the organization, be it that he thereby accomplished the aims of the organization, or that he used the organization for its commitment.
HERR PELCKMANN: On 28 February 1946 Justice Jackson stated: "Individual defendants, at least one of them, must have been members of the organization, and must have been sentenced for a deed by which the criminality of the organization has been ascertained." In the case of the organization of the SS, which I represent, this means: An SS organization can be declared criminal only if at least one of the defendants belonged to it, and was sentenced for a crime which he carried out either through the organization, or which must be considered a result of the aims of the organization and was committed in their realization. With one exception, about which I am still going to speak, all the defendants stand before this High- Tribunal for acts which they have performed as the chiefs of important State or Party offices, but not of the SS, and which they carried out in the fulfillment of their tasks. The fact that a few of the defendants held honorary- ranks in any one of the SS organizations is not enough to consider the SS organizations co-responsible for deeds for which they were not responsible and in which they did not share. The Defendant Kaltenbrunner might be an exception. He is indicted in his capacity as Chief of the Security Police, that is, the Criminal Police and Gestapo, and the SD, including those deeds which were carried out by the SD. But the SS organization cannot be incriminated by that. The Criminal Police is not indicted. The Gestapo is indicted as such. The indictment of the SD must also be considered as an independent one. It is true that it was originally connected with that against the SS, but the SD was later given its own defense counsel and throughout the whole proceedings it was treated independently. Since 1934 SD and SS were separated. The sentencing of Kaltenbrunner therefore would, if at all, give only a formal basis for the sentencing of the organizations of the Gestapo and the SD, but certainly not of the SS.
HERR PELCKMANN: As far as the method of the proceedings is concerned, I might point out that none of the defendants concerned was ever asked whether and to what extent he committed his deeds for the SS, or as a member of the SS. This appears to me to be a shortcoming. I have come to the end, Gentlemen of the High Tribunal. I said in the beginning that this Trial was a most gigantic criminal trial but nonetheless a criminal trial. And therefore I venture to ask: what purpose, from the standpoint of legal policy, could and would a conviction serve? And I hear the traditional answer-retaliation and deterrence. Certainly it is necessary to deter, not only the German people and especially the former Nazi formations, but also all those everywhere who might ever be tempted to bow to dictators, or accept anti-democratic methods, and to make them face the severe consequences of the violation of international law, the new universal law now incorporated within the Charter. This Trial should be the last warning to those who do not heed the demands voiced by the world and all its peace-loving citizens, for freedom of speech and religion, for freedom from want and freedom from fear. The, war, the terrible consequences of the defeat, the detention of hundreds of thousands of prisoners of war, the painful months of the proceedings here, the political investigations and occupational limitations-all these carry such impressive and deterrent effects that they will have for all of them the result we hope for. But, Gentlemen of the High Tribunal, one thing above all: your armies have freed Germany from the tyranny of Nazism; now free the world from the curse of retaliation! The world can recover only when an end is made to the hateful slogans directed against races, nations, classes, or parties. I say this, though I know that there will be many SS men, just as there will be many on the side of he Allies, who will fail to understand the meaning of my words.
HERR PELCKMANN: But they, too, sometime, will come to recognize the eternal truth of the word: "We are here to love, n6t to hate." And thus I would like to summarize my defense of the SS. I indict every one of the murderers and criminals -who belonged to that organization or one of its units-and there are more than a few of them. I acquit the thousands and hundreds of thousands of those who served in good faith, and who therefore share only morally and metaphysically, not criminally, the guilt which the German people must bitterly bear. But I warn the world and its judges against the commitment of mass injustice in legal form, against the creation of a mass of condemned and outlawed individuals in the heart of Europe; I warn, so that the longing of all peoples and men may be fulfilled. May God bless your judgment!
THE PRESIDENT: Now, I think the SD will come next.
DR. GAWLIK: I will adhere strictly to the ruling of the Court and only read parts of my statement. May it please the Tribunal-, I do not regard it as my task as 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 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 VIL These were, as it is shown from the interrogations of the witness Hoeppner, two completely different groups of persons.
DR. GAWLIK: (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 Amter III and VI, is not indicted. I refer particularly to the minutes of the Commission of 23 July 1946.
DR. GAWLIK: 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 Germ-an 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.
DR. GAWLIK: 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. 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.
DR. GAWLIK: 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 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.
DR. GAWLIK: 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 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 r6fer 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.
DR. GAWLIK: 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.
DR. GAWLIK: 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, 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.