dtufail/nuremberg-trials-corpus huggingface dataset:
HERR PELCKMANN: In the spring of 1938 Hitler moved into Austria amidst the acclamation-undeniable even today-of the overwhelming majority of the population In 1938 an open letter from Churchill to Hitler was published in The Times, in which there occurred sentences like this one: "Should England be overcome by a national misfortune comparable to the misfortune of Germany in 1918, 1 would pray to God to send us a man of your strength of will and spirit." How is it possible that in all these years foreign diplomats and leading men-accompanied respectfully by SS men with whom they had confidential conversations-at Party rallies, in the Reich Chancellery, and in the Ministries, shook hands with men who were guilty of murder and arson? What effect did that necessarily have on the SS men, who considered these hands pure and clean? The general situation in the years 1933 to.1939 is characterized by,R6pke in his book, The German Question, which was published in Switzerland. Owing to pressure of time I shall refrain from -giving the quotation and would request the High Tribunal to give it due consideration. "The present world catastrophe is the gigantic price which the world must pay for having been deaf to all alarm signals which, from 1930 to 1939, in increasingly shrill tones, proclaimed the hell which the satanic forces of National Socialism were to unleash, at first against Germany itself, and then against the rest of the world. The horrors of this war correspond exactly to the others which the world let pass in Germany while it even maintained normal relations with the National socialists and organized international celebrations and congresses with them." At that time the world still considered what happened in another state to be an affair which did not concern them.
HERR PELCKMANN: Only as a result of the experience with the Hitler regime and the second world conflagration does the solidarity of the great states and, we hope, one day that of the United Nations, see to it that dictatorship and undemocratic methods in all countries do not lay the foundation for new world conflicts. I cite the remonstrances of the United States because of the internal government conditions in Argentina a few months ago. Now, before I turn to the special criminal activities of the SS which the Prosecution have listed, I should like to, interrupt the consideration and evaluation of material with a few statements on the law of the Charter and on the rules of procedure. I did not want to tire the Tribunal with this at the beginning, but wished first to create a factual atmosphere in which the legal argument would gain strength. My arguments will be as brief as possible, for much bas already been said in this connection by my colleagues, and I fear that more will be said; and the Tribunal is also acquainted with the memorandum of my colleague Klefisch. I hope that my statements may clarify what I have already discussed, and I hope that they may afford insight into the underbrush of the small section of the voluminous factual material which I can offer in the remaining -period of the three hours which were granted me for my speech. The legal nature of the Indictment against the organizations and ,of the possible declaration of an organization as criminal must be determined. The general statements of the Defense regarding the -possibility of the organizations committing, offenses are known to the Tribunal. I consider them fitting and correct. And yet one must risk the question: Who is really indicted according to Article 9 of the Charter? Is it really the formations as former legal entities, or are not rather in reality the millions of individual members, merely represented by one of the principal defendants or the extinct formations, sitting in the dock? It is, after all the individual members who are accused.
HERR PELCKMANN: This follows from a thorough consideration of the whole complex of questions. The Trial will not decide the fate of the former organizations, which are no longer alive and can never again become dangerous, but merely the fate of the many members. A glance at Law Number 10 and the disastrous consequences of the declarations of criminality confirms this. Declaration of criminality constitutes an unassailable establishment of guilt in advance for possible charges under Law Number 10. It is true that for subsequent proceedings it will be for the Prosecution to decide whether they consider it expedient to indict the individual member. But this does not change the basic idea. The declaration of criminality thus bears the character of a declaration of guilt in advance for each individual member of the organization. If the individual is not indicted later, he will receive no punishment, it is true; but he is nevertheless a criminal according to legal decision. The character of criminality does not affect the organization as such, but in reality since the organization as such no longer exists-exclusively its former members. Your Honors, the main trial against each individual one of these members is taking place before you now. The issue is the establishment of his punishable action consisting of "membership." The most important declaration of guilt is made against each individual. The concept of guilt, however, in all civilized states of the world is always, within the meaning of the law, connected with the individual deed of a person. There has never been any guilt of organization. No one could object to declaring the aims and purposes of an organization criminal if individuals were not thereby affected. But as soon as the declaration of criminality of the organizations is to amount to the indirect condemnation of individuals, one must conscientiously examine and establish the personal guilt of each individual. This may be concluded for another reason as well: What does the concept of organization include? That an organization is a union of people is clear.
HERR PELCKMANN: That this union, at least in general outlines, pursues unified aims and purposes, and has a corresponding constitution, should also be clear. Whether it includes the characteristic of voluntary adherence is, on the other hand, extremely doubtful. No one will deny that the German Wehrmacht was an organization, although there can be no question of voluntary adherence, not even in the majority of cases. One may think further of occupational groups, schools, or even compulsory guilds, in which there is no voluntary membership, but which are certainly organizations. The Klefisch Memorandum as well as the basic ruling of the, Tribunal of 13 March 1946 (Paragraph 6, Number 2) introduced the characteristic of voluntary adherence into the terminology; in my opinion, quite correctly. But why? Fundamentally only because otherwise the act of declaring the organizations criminal would appear unjust in view of the consequences for the individual members. What follows from this? A great deal. One sees here quite clearly that in reality what is involved is not the organization, but the members. The ruling of 13 March 1946 considers relevant only the question of whether membership was in general voluntary; it therefore takes into consideration that involuntary members will be affected. In view of the consequences of Law Number 10, this is irreconcilable with the idea of justice. Constitution, aims or purposes, and activities of the organization whether on a voluntary basis or not-are criminal if they fulfill the conditions of Article 6; that is, if they were aimed at crimes against peace, war crimes, or crimes against humanity. In connection with Number 6 of the ruling of 13 March 1946 the individual characteristics of Article 6 of the Charter shall be carefully examined here. One should ask, for example: were the constitution, purposes, or activity of the SS aimed at the planning, preparation, initiation, or execution of a war of aggression, at the violation of the rules of warfare, or at murder, extermination, enslavement, and so forth?
HERR PELCKMANN: These latter crimes of Paragraph 10 of Article 6 of the Charter, however, are punishable only if they were committed in the execution of or in connection with another crime punishable under the Charter; that is, in connection with crimes against peace or war crimes. This is how the author of the Charter, Justice Jackson, explained it in his statement, which is added to the text of the Charter in the Department of State Bulletin of 12 August 1945, on Page 228. 1 ask you to read the English text: "We have taken another step forward in recognizing an international accountability for persecutions, exterminations, and crimes against humanity when associated with attacks on the peace of the international order." I have already explicitly shown that in the examination of the charges of the Prosecution in connection with Article 6 of the Charter, the judgment must adapt itself to the time of the program point in question or of the allegedly criminal act. After establishing that the crimes were without doubt committed, the question of whether the organization as such is to be designated as criminal will depend on how many or-in proportion to the millions of members-how few SS members took part in these crimes. Did an organization really act, or did only relatively few members act, who perhaps-paradoxically-frequently had not even joined the SS voluntarily? That it must not be overlooked at what period the individual crimes took place, the High Tribunal has already affirmed in its ruling of 14 January 1946. If the organization or a part of it was. at all criminal, then it would only be for certain periods of time. Designs and plans once made could perhaps appear criminal only through later misuse, although they were originally not calculated to be so. An axe when forged never knows upon leaving the anvil whether it will perform useful service for humanity or whether it, or even the wooden handle, let us say, will not one day be misused as an instrument of murder.
HERR PELCKMANN: That such limitations in regard to time and personnel are necessary is shown by the following example: the Indictment says on Page 5 that between 1933 and 1935 unsuitable members were expelled. I may add that these were about 50,000 or one-sixth of the membership; people who-this is shown by the most varied testimony and affidavits-on the basis of their previous political attitude had only sought camouflage, including previously convicted persons and other unreliable elements. Even these persons would not be excepted from the Indictment and the consequences of the declaration. Such a grotesque result cannot possibly be desired. Finally, according to Number 6 a (3) of the ruling of 13 March 1946, the evidence will have to be examined to discover the extent of the individual member's knowledge. This question will be decisive for the judgment on the masses of the SS. I said before that even if the SS organization, which no longer exists, is formally indicted, the Indictment is nevertheless, in effect, directed against each individual member. Now, if the criminal character of the organization is to be proved through criminal act& of the members, then the member who is supposed to have committed this specific crime must have an opportunity to answer to, you, Your Honors. If he cannot do this, then the Court will not be in a position to know whether the accusations are true. How then will the proceedings be carried out according to the Anglo-Saxon corporate penal law? The leaders and the members are heard in detail on the specific accusations made against them-the Court does not judge on the basis of unfavorable testimony of witnesses without giving the leaders and members of the organization who are personally affected by this testimony an opportunity to comment on it. How little the Court-this High Court-can base its judgment only on the testimony -of witnesses, without hearing the accused person or persons, is shown by the astonishing experiment which I undertook with the witness Izrael Eizenberg on 7 August 1946.
HERR PELCKMANN: 1 showed him two pictures from a Prosecution Document 867-PS in Polish, Exhibits Number SS-2 and 3, from which I cut off the captions under the pictures. The witness identified the two men pictured as SS men and named their SS ranks. He deduced these ranks exclusively on the grounds of the shoulder straps and, an insignia on the sleeves. The witness Morgen, whom I examined on 8 August 1946, immediately recognized as an expert that the men pictured were not wearing SS uniforms, and were not SS men. He pointed out that these photographs showed the shoulder straps of the Police, and on the sleeve the insignia of the Police. In the photograph, Exhibit Number SS-3, which is in the hands of the Tribunal, the police insignia can also be clearly seen on the cap: the eagle completely enclosed in an oval wreath of oak leaves. Nowhere, Your Honors, is the SS insignia to be seen. All other photos in this book also show only police uniforms and police insignia. But all of this did not strike the witness; he considered these men "SS men." That was only a minor example of the power of observation of the witnesses with regard to uniforms. Please consider further how slight the difference is between the uniform of the SD and that of the SS-only a small "SD" lozenge on the sleeve-and that nonmembers of the SS wore this uniform (compare the testimony of Dr. Best and Reinecke before the Commission); that precisely in the rear army area it was the Police who were employed, while the SS were at the front; that the mass suggestion of the guilt of the SS distorts the memory of the witnesses. Then, Your Honors, you will be able to realize the true value of the testimony of non-German witnesses who arbitrarily designate "the SS" as the perpetrators of any crimes committed in the occupied countries. The incompleteness of a collective indictment, which is raised here for the first time in the long history of law, is based particularly on the difficulty of taking testimony for the accused organization in a fair manner.
HERR PELCKMANN: This difficulty arises of necessity from the peculiar nature of the proceedings, particularly from the fact that it is technically hardly possible, unless through proceedings going on for years, to clear up every concrete charge in a satisfactory manner by hearing the members of the organization specifically affected, and to establish whether each charge is justified or not. As long as in such a trial it is impossible for the Defense to produce at once each individual member of the organization impeached by Prosecution witnesses or documents, and to have him make a concrete statement, as well as to hear further witnesses on this case, this trial remains incomplete and unsuited to render true justice. It follows of necessity that to a large extent the cases of the Prosecution and the Defense by-passed each other without being able to give the Court a picture of the true state of affairs in large parts of the Indictment. Only thus could the grotesque picture arise which we experienced repeatedly during the Defense case, that is, a Defense witness describing his activity and the u1iits and SS men under his command.This covered sectors and periods as large as possible, since the Court permitted only an infinitesimal number of witnesses in proportion to the total membership, and any individual testimony of a little man was inadmissible according to the ruling of 13 March 1946. The Prosecution would now have had to attempt to break down the testimony of the witness in cross-examination. The surest and simplest method for this would have been to throw doubt on the credibility of the witness by showing, for example, that he himself had committed a crime, or that something of the sort had been done by people under his command.
HERR PELCKMANN: Although the Prosecution had many weeks to examine its records and those of all the Allies, which records had existed for months, or even years, and although these 29 witnesses before the Commission and before the Tribunal had held medium, high, and supreme positions, the Prosecution could not prove any such thing against them. Is not this fact alone the-best refutation of the contention of the criminal character of the SS? Is it not symptomatic that the Prosecution did not succeed in convicting of crime one of the highest generals of the fighting Waffen-SS, a very high officer of the General SS, at the same time Higher SS and Police Leader and Police Commissioner-an extremely rare case-of the third-largest German city, a staff officer of the administration of the Waffen-SS who was repeatedly in service at the front, and two high SS judges? Later on I shall discuss the case of the witness Sievers, the only case which was different. Thus the Prosecution had only one recourse: it deliberately brought, forward documents or affidavits which were to prove that crimes had been committed, with which, however, even in the opinion of the Prosecution, these SS witnesses themselves had had nothing to do. Nevertheless, the Prosecution asked the witnesses whether they knew of the events described therein. Were they thus seeking to discover the truth for which this taking of evidence was intended, or was further evidence for the Prosecution merely to be introduced at a time when the case of the Prosecution had already been closed? These documents are for the most part Government reports on investigations which have not yet led to any trial or judgment-particularly in the partisan territory in Yugoslavia, which is very difficult to judge. Their evidential value should be very slight. Can the new documents and affidavits thus introduced in enormous numbers make it possible for the Court to answer objectively the question of whether the deeds actually took place, and thus as to whether the SS is criminal?
HERR PELCKMANN: Would not the Court have to hear the accused, that is, the SS men who were mentioned by name in the documents, or members or officers of the accused SS units? After the experience with the ability of the witness Eizenberg to distinguish uniforms, I ask: is it convincing when these people say, "They were SS men"? Or were they Police or SD and Gestapo members? In part such errors obviously arise from the documents. But I cannot and do not wish to deny that according to a few documents terrible crimes have been established, and that they are numerous. Should not the Defense have an ample opportunity to comment on these documents and affidavits with as much preparation as was expended on the evidence which the Prosecution presented in November, December, and January? Should it not be given a few months' time? I do not fail to realize that my demand would mean a prolongation of the trial for months, insofar as the ease against the organizations is concerned. But if for any reason ...
THE PRESIDENT: Dr. Pelckmann, the Tribunal has already -ruled again that the Trial has got to conclude now, and therefore any argument that you would have three more months is entirely irrelevant and can't be listened to. The Charter lays it down. It is for the Tribunal to say how the individual is to be represented, and we have laid it down to the best of our ability.
HERR PELCKMANN: If for these reasons judgment cannot be delayed so long, then it must be passed now; but since in my opinion the new evidence of the Prosecution can only be used with this -reservation, decision can consist only in the rejection of the application of the Prosecution. I must add something. I asked myself whether I should deal at all with the Erhardt affidavit, D-973, from the Neuengamme Camp. But it is necessary because it is typical of the evidence of the Prosecution in this last stage bf the Trial. It is necessary at this last minute when it is no longer possible for the Defense to carry on investigations on the spot. I refer you to the ruling of the Court of I August 1946, which does not permit visiting camps, in contrast to the Prosecution. Their administrative. machine...
THE PRESIDENT: Dr. Pelckmann, if you are proposing to deal with the rules which the Tribunal has made with reference to the hearing of individuals, the Tribunal will not hear that. The Tribunal has done the best it can to enable individuals to be heard, and the Tribunal does not propose to listen to you criticizing what the Tribunal has done.
HERR PELCKMANN: I believe there is a misunderstanding, Your Lordship. I am not criticizing. I am dealing with the Erhardt affidavit, with the evaluation of this testimony.
THE PRESID ENT: Very well. Go on. 587,
HERR PELCKMANN: This affidavit cannot affect the value of the affidavits of the SS members. It refers only to the interrogatory, which does not come from me, and the answers-there are altogether only 40,000-which I did not utilize. I submitted 135,000 detailed affidavits to the Tribunal, and I summarized them. The methods described by Erhardt cannot have been used in them. As evidence of this, I should like to ask you not only to read the summary but also a few of the very conscientious and descriptive affidavits themselves. The Erhardt affidavit itself is full of contradictions, improbabilities, and exaggerations. Erhardt was an SS man and is now in the service of the British authorities. Of course, he does not want to lose his position. Therefore, he has every reason to make himself popular. Can a single affidavit on the ostensible conditions in only one camp, the actual and psychological reasons for which are so doubtful, shake the value of 135,000 detailed statements? No, Your Honors. This attempt of the Prosecution to shake the value of the whole legal hearing guaranteed by the Charter can remain only an attempt. The Defense in this Trial is in the unfortunate position of not being able to ascertain the source of such mistakes in the mass material presented by the Prosecution, and of criticizing it. I am of the opinion that the result of the Prosecution's evidence, insofar as it can be considered in view of what has just been said, forces the Defense to the conclusion that crimes in considerable extent were committed by members of the SS, but not that the whole SS organization is criminal. Is it not striking-I should like to deal with one point of the Indictment immediately in this discussion of procedural and evidential questions-that there are only two judgments concerning the inhumane fighting methods of the SS, including for example the shooting of prisoners, one against SS General Kurt Meyer on the Normandy front, and the other against SS General Sepp Dietrich and 73 officers and men of - his army.
HERR PELCKMANN: That, Gentlemen of the Tribunal, is the result of the most painstaking efforts of the Prosecution, on the part of all the Allies, for more than a year. Must one not conclude therefrom that in spite of this long period it has not been possible for the Allied Prosecution to pass judgment on more crimes? The death sentence against Meyer, with which I am acquainted, was reprieved. The trial of Sepp Dietrich and his men, the record of which I was not able to obtain, ended with 43 death sentences, but it is striking that the highest leaders did not receive this punishment. This must force us to the conclusion that no such criminal orders were given by them, and consequently there was no criminal system. The Defense brings forward some -noteworthy objections against the methods of investigation and of accumulating evidence. I should ask you to note the following, High Tribunal: these happenings occurred in the final six months during the most violent part of the war, and concerned only very few members of the Waffen-SS. At the same time please remember the extensive counter-evidence given by witnesses and affidavits, which the Defense also procured for this particular point of the Indictment: the training for and the waging of fair warfare, and excesses committed by the enemy, -which were only meant to prove that from such occasional excesses in battle one cannot conclude the existence of a criminal system.