dtufail/nuremberg-trials-corpus huggingface dataset:
DR KUBUSCHOK: However, even if this intention could be carried out in full in all zones of occupation, still in spite of this method, however desirable, the fact remains that the verdict in itself establishes the legal precept and provides the legal possibility for prosecuting the mere fact of membership. Even if one does not agree with the legal aspect of the possibility I have developed, the legal question concerning material and procedure is of so problematic a nature that for the individual innocent member there is no absolute legal guarantee that he will not be prosecuted. The result would be that a situation would be created in which a great number of people would live in a state of suspense without knowing whether they will ever be prosecuted and sentenced on the basis of legal possibilities. This applies more especially to the minor cases which in any case would probably be sent back to the national tribunals in order of procedure. The number of members and their relatives affected by the trial of the organizations is so vast that a situation would be created which would make it impossible for millions to achieve that high purpose which we have set: to regain the feeling of judicial and legal security.
THE PRESIDENT: The Tribunal will adjourn until 2:00 o'clock. [ A recess was taken until 1400 hours .] Afternoon Session
THE PRESIDENT: The Tribunal has just received an application, dated 18 August, from Dr. Berges; that application is denied. I now call upon Dr. Boehm
HERR GEORG BOEHM (Counsel for the SA): Mr. President, High Tribunal: It is in contradiction to the fundamental right of every man to be made responsible only in accordance with the degree of his own guilt if he is subjected, by the possible result of the collective indictment against the organizations, to Law Number 10 of the Allied Control Council. Atonement without guilt has been considered unjust since the beginning of human history. He who desires to punish therefore has to establish the guilt of each individual, if more than one have participated in a crime. If the planning of a crime is considered punishable as an act of preparation, then only those can be punished who, in accordance with hitherto prevailing legal and moral principles, participated in the plan -- that is to say, who joined together in deliberate and conscious co-operation for just that purpose. At no time have the legal principles which I have just explained and which have evolved from fundamental human rights been replaced in the criminal law of any nation by the legal concept of a "conspiracy." Guilt arises within the meaning of the legal conception of the conspiracy advanced by the Chief Prosecutor if: (1) an association existed with a joint and common aim, (2) these aims were criminal, (3) the pursuance of these aims definitely involved the criminal deed, meaning that the latter was foreseeable, and finally, (4) the manner of carrying out the deed was in accordance with means either agreed upon at the time of joining, or else subsequently approved. We must, therefore, examine the following: (A) to what extent the collective elements of a conspiracy indicated here correspond to the legal concept advanced by the Prosecution; and (B) to what extent these collective elements were brought to realization by the members of the organizations.
HERR GEORG BOEHM (Counsel for the SA): Thus viewed, the foregoing elements of a conspiracy as defined not only by German concepts of law, but also in accordance with well-known penal laws of other civilized countries, seem to agree completely with the definition established by the Prosecution in the Court session of 28 February 1946; so that, if we recognize the soundness of this argument, we have only to examine the aforementioned second question, namely, to what extent members of the SA became criminally involved in the commission of such acts as have now been defined in accordance with the elements of the crime in question. This question touches upon a judgment of import and a question of fact. Primarily, it is a judgment of import, inasmuch as the concept "criminal," which is used in connection with the aims of the organizations, requires a clear definition. For German subjects, actions committed within the German power sphere can be criminal actions only if they are punishable by the German penal laws. According to hitherto recognized principles of international law, one nation is not bound to consider criminal what other nations consider criminal, but only what this nation has adopted as "criminal" in its own moral and legal consciousness. At any rate, after conscientious investigation of this question we find that the German people without exception -- that includes also the mass of the members of the SA indicted in Nuremberg -- has never differed in its basic moral and legal attitude from the fundamental laws of the rest of the civilized world. Millions of its members, too, consider a war of aggression a crime as defined in Article 6 of the Charter. Furthermore, no SA members, without exception, would ever argue the point that actions such as defined in Article 6 of the Charter as crimes against humanity have always been contradictory to their principles, too, and will, therefore, from their standpoint deserve to be judged criminal.
HERR GEORG BOEHM (Counsel for the SA): Accordingly, apart from the foundation for the Trial which is contested, it only remains for the Defense to investigate the question of fact as to whether the accused organization, the SA, at any time endeavored to realize such criminal aims, or endeavored to realize permissible aims containing methods of a criminal character. This has been alleged by the Prosecution. The aims of the accused organizations were clearly outlined by the Party program and its statutes. The means for the realization of these aims found their visible limitation in the Reich laws and regulations published in the Reichsgesetzblatt . As an accused organization, the SA can be considered only as an association of persons whose common and general endeavor was exclusively directed towards realizing the aims pointed out to. them with means which were permissible under German law. Thus, the aims and the legally restricted means for the realization of these aims, which were openly known not only to the members of the accused organizations but to the entire world, cannot have been considered criminal by the world which not only formally recognized the National Socialist Government even after the union of Party and State was emphasized, despite their knowledge of the aims and legally restricted methods for which this National Socialist Government was responsible, but also gave repeated and visible expression to this recognition before the German people by concluding a whole series of international treaties ending with the Munich Agreement of 29 September 1938, and the Russo-German Non-Aggression Pact and the Secret Amendment of 24 August 1939. The criminal character of the SA alleged by the Prosecution therefore must be proved differently than by merely referring to a criminal character of the National Socialist idea in itself.
HERR GEORG BOEHM (Counsel for the SA): If the idea itself is not already criminal, then the criminal character of an organization serving to carry out this idea can be derived, if at all, only from the criminal methods which, to use a phrase of the Tribunal, "were so completely evident, or had become, so generally known to the members of the accused organization in some other way, that it can be generally assumed with justice that the members had been informed of these purposes and activities." Thus the Tribunal itself has defined with unequivocal clarity the objective and subjective characteristic elements in the case which must be fulfilled if the International Military Tribunal is to characterize the SA as a criminal organization. For the purpose of describing an organization or an individual, only typical characteristics may be used. Characteristics which we find in other countries also, without their hitherto having given occasion to designate the persons displaying these characteristics as criminal, cannot, in all fairness, be used in the proceedings before the International Military Tribunal in order to prove the criminal character of the accused organizations. Thus it does not appear just to the Defense if the Prosecution attempts to deduce the criminal character of the accused organizations, for instance, by stating that the Party and their organizations effectively controlled the machinery of the State, quite apart from the fact that the SA never had any power to do this. Even if we assume the use of such methods by the SA, they are not unique in the world, and do not belong to the past. But as long as these methods are not regarded and treated as criminal all over the world, they should not justly be used as a typical manifestation of the criminal character of the indicted National Socialist organizations. The allegation of the Prosecution to this effect must, therefore, be dismissed with this statement on the establishment of proof of a criminal quality.
HERR GEORG BOEHM (Counsel for the SA): Just as little can one, to prove the criminal character of the SA, use occurrences which took place entirely outside of the organization, occurrences about which "in general it can no longer be justly assumed that members were informed." Accordingly, the Defense of the SA has to prove that, (1) there did not exist at any time a common and joint plan of the SA members to commit crimes of the nature indicated in Article 6 of the Charter; (2) that neither at the time of their joining, nor during any other subsequent period of time, were the majority of SA members trained to carry out the Party program, or the special objectives of the SA, by the use of illegal means, particularly, by the employment of terrorism and violence; (3) that if illegal actions have been established, the result of the examination and interrogation of many thousands of members showed that these happenings lack the characteristics of a plan involving the majority of the members, and that therefore-since they were entirely outside of any common or joint plan-they can be charged only to certain individuals, or very narrowly defined categories or groups of persons within the SA. It is not true that behind those horrible and shameful events there existed, from the very beginning, a general and common plan by a mass organization to commit actions of this type, or that these actions really "were so completely open, or had otherwise so generally come to the knowledge of the members that the members as a whole can rightly be charged with knowledge in a criminal respect." As for the crimes against peace presented by the Prosecution, it must be made clear first of all that preparations for a war of aggression, if they are to lead to the desired goal, must under all circumstances remain secret.
HERR GEORG BOEHM (Counsel for the SA): Even if it were true that the Reich Cabinet or the General Staff had prepared a war of aggression, there is an almost irrefutable assumption that they not only did not inform the indifferent majority of millions of SA members, but on the contrary took particular pains to have these preparations remain secret. But if such preparation was unknown, then the millions comprising the majority could at no time have become aware that the defensive war begun by the Reich leadership was in reality, as the Prosecution contends, a war of aggression, participation in which might perhaps be considered as a crime against the peace. Crimes against the customs and rules of warfare are by nature individual actions of highly restricted groups of persons or formations, which are likewise kept secret by the higher leadership in order to prevent the international legal principle of retaliation from being applied. Even if it were possible to see a punishable participation in the mere approval of such violations of the recognized rules and laws of warfare, the Prosecution would still be confronted by the hitherto unsolved, and seemingly insoluble, problem of first proving that at least the overwhelming majority of SA members knew about such a planned commission of crimes against the customs and rules of warfare. Quite aside from these assumptions, which are contrary to substantial contentions of the SA, however, evidence can be introduced by the Defense, after questioning many thousands of SA members, that if violations of the law occurred they turned out to be, according to a legally necessary analysis as to time and place, on the whole only mutually independent actions by individual persons or highly restricted groups of persons lacking any common goal; therefore there is no justification for treating them as "typical manifestations" of a uniform plan which might justify characterizing the SA as criminal.
HERR GEORG BOEHM (Counsel for the SA): It will not be possible, in the face of this evidence of the Defense, to advance the objection that the conclusions drawn by the latter cannot be accepted without reservation because the investigation extended, to only a part, of the millions of members comprised in the indictment against the organizations and that, therefore, a generalization of the result such as expressed in the conclusions drawn by the Defense does not appear justified. It is not the fault of the Defense, Your Honors, that part of the members could not be heard, for in co-operation with the General Secretary's Office, the Defense did everything possible to have the witnesses brought from the Russian Zone with whom, up to the time when they were named as witnesses, they were still able to correspond. I furthermore declare that the members of the SA who live in the Russian Zone could not be given the hearing to which they were entitled, since, according to my information, most of them were kept in ignorance of the charge against the organizations. This is one of the most serious objections against the Trial which will always remain in history.
THE PRESIDENT: Dr. Boehm, that is a most improper observation of you to have made. There is no evidence that members of the SA have been kept in ignorance. On the contrary, the same notices have been posted in the camps in the Russian Zone as in other zones and, moreover, the Defense Counsel Dr. Servatius, who has been in the Russian Zone, has made no complaint to the Tribunal. We consider that as an observation which no counsel ought to have made.
HERR BOEHM: Yes, Mr. President, but it -was precisely from the mouth of my colleague, Dr. Servatius, that I received this information.
THE PRESIDENT: Dr. Boehm, Dr. Servatius said no such thing to this Tribunal. On the contrary, he said that he had been properly treated in the Russian Zone.
DR. ROBERT SERVATIUS (Counsel for the Leadership Corps of the Nazi Party): Mr. President, I have been in the Russian Zone and in accordance with my wishes was able to visit two camps. In- my final plea I have pointed out and declared that, according to the information placed at my disposal, the announcement was made in all camps. I myself had only had time to visit two camps, which I picked out personally. Indeed, I have also stated that here in court.
THE PRESIDENT: Thank you.
HERR BOEHM: In that case, I must have completely misunderstood the information which was given me, Mr. President. Moreover, I should like to stress the limitations imposed on the Defense by the fact that, in spite of all our efforts and the most exact indication of the addresses, some of the witnesses who live in other zones did not show up. In particular, the witnesses Fust, Lucke, Alvensleben, and Wallenhoefer are missing. Because of the absence of these witnesses, we also lack the statistics about the SA and the relief fund that are necessary to form a true judgment of the events before the year 1933, which would have shown the terrorism employed against the SA. Moreover, part of the documents which had been requested and were approved by the Court did not reach the hands of the Defense. Accordingly, the International Military Tribunal when passing judgment can only proceed from the premise that illegal acts were committed only by a limited number of persons, or numerically restricted groups of persons, whose activities can no more place the stamp of "criminality" on the organizations as a whole than a number of crimes, such as are found in any nation, could characterize that nation as a criminal nation. To sum up, from the point of view of the Defense, one may state that the charge raised against the SA organization as a whole, which in its effects includes even the war dead, lacks those basic, theoretical, and material prerequisites the neglect of which, implicit in any unfavorable decision of the Court, cannot be reconciled with "healthy popular sentiment" any more than with the aspirations of the United Nations, born of such painful experience, to restore confidence in fundamental human rights, and to create conditions under which justice and respect for international law can be maintained.
HERR BOEHM: The Prosecution state that the declaration of criminality is necessary in order to create the necessary conditions for convicting a large part of the direct perpetrators who cannot be convicted individually, as well as to punish their moral accomplices. According to the charges of the Prosecution, the Supreme SA Leadership to cite the main charges-must have done or tolerated the following: (a) prepared or planned, that is, ordered, a war of aggression; (b) tolerated or carried out atrocities or other crimes in the concentration camps. The presentation of evidence has clearly established that no orders were given to that effect by the Supreme SA Leadership, and that no misdeeds were tolerated. Moreover, the assertion that in most cases the real perpetrators are not to be found is not true. If a war of aggression really was planned, only a few people, but never 4,000,000, could have been concerned in this planning. The perpetrators of the Jewish persecutions, which were limited as to place and time, are known or can be ascertained. Since the localities of the Jewish persecutions in November 1938 are known and the perpetrators can be convicted by witnesses or else by documents, as is proven by the present trials for the Jewish pogroms in 1938, for instance in Weissenburg and Hof, it is unnecessary to create an assumption through a declaration of criminality, especially since these deeds were repudiated by the majority of SA members. In the same way, the. localities where concentrations camps were situated and the names of those responsible for the deeds committed there are well known. This is borne out by the numerous trials against concentration camp commanders and guard units. Are millions of SA members, 70 percent of whom were at the front during the second World War when these terrible happenings took place in the concentration camps, to be made responsible for them, when even former ministers claim that they had no knowledge of these events? Let the actual perpetrators be seized!
HERR BOEHM: A collective arrest, however, of 4,000,000 men, is unprecedented and unique in the history of penal law. It is inhuman and based upon an extension of the concept of "accomplice" which disregards all the legal security and the principles of all criminal codes. The basic idea in the conspiracy is that it is punishable to join an organized group of persons which, at the moment of joining, is already prohibited. The persons joining, therefore, must be aware upon their admission that they are committing an unlawful action. A retroactive declaration of criminality, the aim of which is to make proceedings possible against individual members retroactively, violates the principle nulla poena sine lege . The International Control Council expressly established this principle in its first law on the administration of justice in Germany. The International Tribunal cannot disregard a general legal principle of the interallied legislative organ which is authoritative for Germany. In case of a declaration of criminality, still another principle would be violated. By their recognition of the German State and thus of its leadership, by the constant participation of representatives at noteworthy occasions, such as at SA maneuvers, and also by different agreements, the Allied powers gave evidence that they recognized the German leadership and its organizations as legal. The document which I quoted, SA-229, "The Political Ordinances of the Interallied Rhineland Commission and their Application in the Years 1920-1924," established that on 21 March 1925 the Rhineland Commission revoked the ban on the German Liberty Party (Freiheitspartei) and the National Socialist Party. An affidavit from the Palatinate (Affidavit Number General SA-42), which was submitted by the Defense, shows that all social functions organized by the NSDAP and the SA were approved by the French occupation Authorities before the year 1930.
HERR BOEHM: The foreign offices of the Allied nations must have had better insight into the over-all political situation than millions of ordinary SA men, who, considering the political situation, could not have been aware that they were committing an illegal act by entering or remaining in the SA. The present prosecution of an organization which was recognized at that time contradicts the universally accepted legal principle nemo in factum proprium venire potest ; that is, "Nobody may belie his previous conduct." This principle of Roman law, which is used as a rule of interpretation in the League of Nations, can command universal validity. Concerning the SA, the Prosecution employ a number of oversimplifications regarding purpose, place, time, and assisting groups of persons, which alone enable the Prosecution to provide a basis for the declaration of criminality. In other words: the Prosecution act as if throughout the entire time there had existed a uniform personality, "the SA," with a uniform leadership, responsibility, common purpose, intention, membership, and uniform conduct. Without such generalizations the Prosecution would never accomplish their aim; for instance, in the question of aggressive warfare and the persecution of the Jews. By doing so they ignore the real problem of mass liability, which can be solved justly only by a great number of individual statements, and which requires the investigation of the agreement of action and aim in a majority of the members. In contrast to such an opinion we cannot stress too strongly the actual schism among the SA concerning the objectives of the leadership circles, as well as the members generally, and the limitation in time and space of the deeds which stamp everything which happened within an organization of four minions merely as occurrences, restricted as to time, locality, and persons, which took place during a period lasting over 20 years.