dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SERVATIUS: A few days ago I was told in the camp by a guard officer that at that time no applications were permitted since those in custody, according to the rules of the camp, could not communicate with anyone outside the camp. An army order would have been necessary for transmissions of the applications, but there was no such order and present restrictions were strictly adhered to. Another reason for the nonarrival of applications is the fact that those concerned feared certain disadvantages. There was the fear that the CIC would take action against the applicants because of their applications. This fear was inspired particularly by the fact that the announcement of the right to make applications was accompanied by the notice that the applicants would not be granted immunity of any kind. The effect of this is seen particularly in the case of those members not in custody, from whom only very few applications have been received, and these very often submitted anonymously or under false names. It would be welcome if the Tribunal could inform the public that such fears are without foundation, and that the participation of all is sought so that a false decision can be avoided. Thereby the inadequacy of the present procedure for making applications would be remedied. From all this it can be seen that the first stage of the making of applications has already shown itself to be so inadequate that the legal hearing is a mere illusion. But even those applications that have been received are, with a few exceptions, worthless, and for the following reasons: On the basis of the applications the Tribunal is to decide whether persons should he heard. But for practical purposes this can happen only if these applications state the reasons. Such reasons are either entirely lacking in the applications or they are useless. An application without contents or an application which contains in the main mere asseverations and figures of speech can form no basis for a decision.
DR. SERVATIUS: Some of the applications do not even mention the official function of the member in the organization or his civilian profession. This faulty sort of application can obviously be traced back in the case of the men in custody to an order issued by the camp commander which permitted only collective or group applications or prescribed certain forms to be followed. All those affected, whether in custody or not, were not able to set out their reasons intelligently, because those accused know only that their organization is said to have been criminal, but they do not know in what this criminality consists. Insofar as detailed statements were made, in single case,, they are based on assumptions. In order to relieve the situation, Defense Counsel have visited various camps known to them to clear up the matter and to get practical information. I shall not go into the difficulties which had to be overcome. I do not want to discuss the limitation placed on the length of time that we could stay in the camp and similar things; but I must mention that the visits to the camps have been without success insofar as I have not yet received the sworn affidavits and the other written statements of the members made subsequent to our visit, although I know that in one case they were handed over to the camp commander. In these circumstances the fact is that today, 3 months after the beginning of the Trial, the technical basis for the procedure for hearing the members is not yet in existence. Defense Counsel for the large organizations are also hardly in a position to make up for this delay in a short period of time. On the other hand, the actual material is extremely comprehensive, as in the case of the political leaders, where there are about fifteen to twenty categories, such as the Workers' Front, Propaganda Section, Organization Section, and so forth, which must be examined as to their functions and as to their criminal character. None of this can be neglected, and even the appearance of a less careful treatment must be avoided.
DR. SERVATIUS: I shall not discuss the difficulties which confront the Defense Counsel as a result of the fact that Defense Counsel now for the first time learn from the Prosecution of certain legal questions. The members in custody are particularly interested that their case be decided quickly. Nevertheless, I am compelled by prevailing conditions to make a motion, namely, that the proceedings against the groups and organizations that are to be declared criminal be separated from the main trial and be carried out as a special subsequent trial. This motion is also compatible with the particular nature of the trial as I discussed it at the beginning of my remarks. I should like to add to my motion a suggestion as to how the legal hearing might be made possible. This proposal of mine is occasioned by the proposal made this morning for carrying out the hearing by means of a "master," that is, I assume, a legal officer of the Allied armies. I cannot object too energetically to this suggestion. In my opinion, it is one of the main rights of a Defense Counsel to collect his own information, and it is the right of every defendant to speak with his counsel. It would be incomprehensible that the Allies, who are concerned with the prosecution, should at the same time work for the Defense. One cannot expect that an officer, despite any amount of objectivity, could be so objective in his feelings that he would give information to the defendant and have an understanding of the latter and his feelings. My proposal is this: That each camp should have a German lawyer who receives his information from the main Defense Counsel and instructs the members interned in the camp and collects information. Then, in a relatively short period of time, a selection of material can be made by the Defense Counsel -- a selection of the persons who can appear here as well as of the material that can be submitted of the latter and his feelings.
DR. SERVATIUS: In the proposal made here this morning by the Prosecution I see an elimination of the Defense Counsel, and I should have to ponder a long while as to what stand I, on behalf of the Defense, would take to such a proposal.
DR. RUDOLF MERKEL (Counsel for the Gestapo): Regarding the general questions concerning the admissibility of declaring an organization criminal, the technical procedure for the submission of evidence, and the criminal character of the organizations in general, I refer to what my colleagues Dr. Kubuschok and Dr. Servatius have said. I have just a few additional statements to make. Regarding the question of applications, I can say from my own experience that it has seemed strange to me, too, that the length of time between the formulation of applications in the individual camps and the arrival of these applications in the hands of the Defense is so extremely long. To mention one example, a few days ago we received applications from a camp in Schleswig-Holstein, some of which were drawn up in November and December. I, myself, in order to get information, sent letters to the camps. I sent them 5, 6, and 7 weeks ago and I have so far received no answer. In Camp Hersbruck, for example, I know that in November an application for a hearing, with reasons given in detail, is said to have been sent by members of the SS and Gestapo to the Defense Counsel -- this has been confirmed to me by reliable sources. Neither the Defense Counsel of the SS nor I have received this application. Very few applications have been received from members of the Gestapo. In my opinion one of the reasons is that the far greater number of internees doubtless do not know that they are being represented and defended in this Trial for the announcement sent to the camps was made in November of last year. Defense Counsel for the organizations were not appointed until the decision of 17 December 1945.
DR. RUDOLF MERKEL (Counsel for the Gestapo): The correctness of my opinion can be seen conclusively, I believe, from the following: About three weeks ago in a German newspaper, the Neue Zeitung , an article appeared regarding this question of the organizations and in this article it states, word for word: "The organizations, as is, of course, well-known, are not represented in the Nuremberg Trial." Thus, if not even the press knows of the fact that Defense Counsel for the organizations have been sitting here in the front row for months and have often spoken here from the lectern, what can one expect the individual internees, who are living in camps hermetically shut off from contact with the rest of the world, to know about the facts of the Defense? That is what has to be said on this point. I, also, by the way take the point of view that the question whether the organizations in their entirety can be indicted here is an absolute terra nova in the history of jurisprudence and that it is something which in its extent and its scope and in its effects shakes the very foundations of jurisprudence. In addition, as has been mentioned, organizations are to be judged which ceased to exist almost a year ago. In the criminal procedure of all civilized countries it is a basic condition that the defendant still be alive; proceedings cannot take place against a dead defendant. According to Mr. Justice Jackson's statements today, the organizations of the Gestapo and SS, for example, are to be held responsible for the liquidation of the Jews in the East; and it is pointed out that because of the death of millions of Jews and the impossibility of determining who the individual perpetrators were' the organizations as such must be judged in order that the guilty be punished. Of course, the Defense holds the conviction and takes the point of view that the guilty must be punished, but only the guilty. It is a fact, for example, that an Einsatzgruppe of the SD, whose task it was to solve the Jewish problem in the East, contained on the average only about 250 members of the Gestapo.
DR. RUDOLF MERKEL (Counsel for the Gestapo): Considering the total number of 45,000 to 50,000 members of the Gestapo, this figure is thus a very small one. In the case of a general verdict against, for instance, the Gestapo, more than 45,000 people would be affected who had absolutely nothing to do with this matter. I refer to the example of a mass murderer who cannot be captured, and whose whole family is taken into custody in his stead and condemned. In view of the very important statements which have been made today by the Prosecution regarding the question of the organizations, I ask the Tribunal for permission, after the record has been received, to state my attitude, if necessary, to just a few other points today; first of all, to the question of the time during which the Gestapo is to be considered criminal. In this connection I must assert that at least until the year 1939 the Gestapo was a lawful, legacy established institution. It is also true that the Indictment refers to crimes which can be charged to the Gestapo only after the autumn of 1939, that is, after the beginning of the war. Today the Prosecution have furthermore excluded secretarial and office workers from the Indictment. I am in agreement with this. It is in accordance with the motion made by me already in December. I submit further that not only the secretarial and office personnel but also all other employees be excepted, because the reason for dropping the charges against the office personnel is doubtless that the Prosecution are convinced that this of lice personnel had nothing to do with the crimes of which the Gestapo is accused. It should also be considered whether the administrative officials of the Gestapo, who represented about 70 percent of the personnel of the Gestapo, should be excluded from the Indictment. All of the 5OO applications received so far are from such administrative officials. These officials were trained only in the field of administration. They had neither the training nor the knowledge for the making of criminal investigators.
DR. RUDOLF MERKEL (Counsel for the Gestapo): They could not be used for the execution of any criminal actions, because they had no executive power. They were active only in matters of personnel and finance -- personnel matters such as the appointment of officials, promotions, dismissals, and so forth; matters of finance such as the administering of budget funds, figuring out and compiling salary and wage lists, renting of offices, et cetera. These are all things which have nothing to do with executive power, and especially not with the crimes imputed to the Gestapo by the Prosecution. In my opinion these people are just as entitled to exemption as the secretarial and office personnel, who have already been exempted by the Prosecution. I should like to touch briefly on one other point of view, that is, the question of voluntary joining of an organization -- a question which has played an important role. On 7 June 1945 Mr. Justice Jackson, in his statement to the President of the United States, said, among other things, the following: Units such as the Gestapo and SS were fighting units and consisted of volunteers -- people especially suited for and fanatically inclined to the plans of violence of these units. To what extent that is true of the SS, I do not know. As far as the Gestapo is concerned, it certainly is not true, for the Gestapo was a State organization founded by the Defendant Goering on the basis of the law of 23 April 1933. It was a police authority just as was the Criminal Police whose duty it was to track down crimes or the Regular Police who were responsible for controlling traffic. The personnel consisted mostly of life-long career officials, some of whom had been in the police service many years before the creation of the Gestapo, and who, when this police organization was created and in the ensuing years, were ordered to, detailed to, or transferred to this police authority. According to the German law affecting civil servants these officials were obliged to follow such orders. They had never come voluntarily to the Gestapo.
DR. RUDOLF MERKEL (Counsel for the Gestapo): At the most there might perhaps have been 1 percent who were voluntary members; but 99 percent of the members were forcibly ordered on the basis of this law. That is what I have to say at the moment. I should like, however, to reserve for myself the right to speak some time later about today's discussions.
THE PRESIDENT: Yes, certainly. We will adjourn now. [The Tribunal adjourned until 1 March 1946 at 1000 hours.]
THE PRESIDENT: At the conclusion of the argument on the organizations, which the Tribunal anticipates will finish before the end of today's session, the Tribunal will adjourn into closed session. Tomorrow morning at 10 o'clock the Tribunal will sit in open session for consideration of the applications for witnesses and documents by the second four defendants. Will the defendant's counsel who was in the middle of his argument now continue? Dr. Merkel, had you finished?
DR. MERKEL: Yes, Sir.
DR. MARTIN LOFFLER (Counsel for the SA): May it please the Tribunal: The objections and misgivings expressed yesterday by the Defense regarding the criminal proceedings against the six accused organizations are particularly applicable when judging the SA. No other organization is so much exposed to the danger of a sentence contrary to our sense of justice as is the SA. I ask the Tribunal's permission to submit the reasons for this fact. The demand of the Prosecution that the SA should be declared a criminal organization affects at least 4 million people at a conservative estimate. The limitation according to groups approved yesterday by Justice Jackson was gratifying and welcome; but it will have no appreciable effect on the numbers since the groups eliminated yesterday, the armed SA units and the bearers of the SA Sports Badge, were not full members of the SA. The only persons so far eliminated, therefore, are the SA Reserves. As no limitation according to time was made, these criminal proceedings will include everyone who ever belonged to the SA, even for a very short time, during the 24 years between its establishment in 1921 and its dissolution in 1945, that is to say, during a period of almost a quarter of a century. We heard yesterday from the Prosecution that the criminal acts charged to the organizations are the same as those charged to the main defendants, namely, Crimes against Peace, crimes against the laws or customs of war, and Crimes against Humanity, as well as participation in the common conspiracy. If we now contemplate the possible participation of these 4 million former SA men in these four important categories of crime, we get the following picture: Crimes against the laws or customs of war are not charged to the SA.
DR. MARTIN LOFFLER (Counsel for the SA): It is true that the Prosecution presented an affidavit saying that the SA also took part in guarding concentration camps and prisoner-of-war camps and in supervising forced labor; but, according to the presentation of the Prosecution, this did not occur until 1944 within the framework of the total war raging at that time, and it has not been charged that this activity of the SA involved any excesses or ill-treatment. In none of the atrocities reported here by witnesses and documents did the SA with its 4 million members participate. The few offenses against humanity charged to the SA by the Prosecution and committed by individual members in the course of almost a quarter of a century can in no way be compared with the serious crimes against humanity of which we have heard here. The occupation of the trade-union buildings by the SA, adduced by the Prosecution as another point, took place on the order of Reichsleiter Ley, who used the SA for this operation, and this happened after the seizure of power. Even the Prosecution did not assert that any outrages, ill-treatment, or excesses occurred when this operation was carried out. The fact that in connection with the seizure of power in the spring of 1933 individual excesses occurred, and that the American citizens Rosemann and Klauber, according to the affidavits submitted by the Prosecution, were beaten on this occasion is certainly regrettable. However, such excesses on the part of individual persons are unavoidable in organizations comprising millions of people and, considered by themselves, are hardly proper grounds for declaring the entire organization criminal. The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the Prosecution, restricted to single exceptions and ended anyway in 1934. The commandant of the Concentration Camp Oranienburg, according to the presentation of the Prosecution, was an SA Fuehrer. However it is not asserted that he committed any atrocities.
DR. MARTIN LOFFLER (Counsel for the SA): The second case, the ill-treatment of prisoners in the camp of Hohnstein by SA and SS members in 1934 led to criminal proceedings and the SA men guilty were sentenced to imprisonment of up to 6 years. As a last individual act there remains the participation of the SA in the excesses during the night of 10 and 11 November 1938, when the windows of Jewish stores were broken and the synagogues were burned. Here, too, the plan and the order did not originate with the SA. The SA was simply commissioned by the highest Party leadership to carry out this order. Finally if we consider that during the political struggles of 1921 to 1933 the old SA was involved in brawls -- often purely defensive -- with political opponents and that it did not develop into an organization with millions of members until after the seizure of power, we arrive at the following conclusion, expressed in figures: On the basis of the presentation of the Prosecution at most 2 percent of all the indicted former SA members participated in punishable individual actions; 98 percent of the 4 millions, according to their conviction, kept their hands clean of any such punishable individual acts. Here, too, the Prosecution will not want to insist that the excesses of these 2 percent considered by themselves should brand the entire organization as criminal. These 98 percent, that is in round numbers 3,900,000 former SA members, must nevertheless defend themselves here against the charge of having participated in the preparation of the war of aggression or in the planning or execution of the common conspiracy, or, formulated more strongly, against the charge of having belonged to organizations which pursued these criminal purposes. What is the result if we apply the definition of the criminal nature of an organization as formulated yesterday by Justice Jackson and Sir David Maxwell-Fyfe?
DR. MARTIN LOFFLER (Counsel for the SA): The SA members will acknowledge that the criteria under Points 1 and 2 as defined yesterday are also true for the SA, namely, that the SA was an aggregation of numerous persons with collective aims and a membership which was voluntary in principle. However, they will strenuously deny the application of the Criteria 3, 4, and 5. Point 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. The millions of members, if testifying here, would state that neither in the programs nor in the speeches of their leaders had they been called upon to pursue such criminal aims or methods. Whether the leaders of the SA pursued such criminal aims in secret or not these people are not in a position to judge. Whether such criminal aims were pursued secretly by the leadership of the SA can be determined only by the Tribunal, and only now when the archives have been opened, witnesses can testify, and the documents are laid open to the Court. Now, Point 4 of the Prosecution's definition, if I understood Justice Jackson correctly yesterday, requires, beyond this, as an element of crime involving subjective guilt, that the aims and methods of this organization were of such character that a reasonable, normal man may properly be charged with knowledge of them. I should like at this point to emphasize particularly that I, in agreement with my colleagues, do not consider this definition an adequate protection, since it means that a member may be punished even if he did not recognize the criminal nature of the organization but ought to have recognized it by application of reasonable care. I know of no system of penal law in any modern civilized state which holds that negligence, even of a gross or serious nature, is sufficient to constitute guilt of an infamous common crime, that is, of a crime belonging to the group of severest offenses. A crime of this category can be committed only with intention.