COL. POKROVSKY: Mr. President, would you allow me to inform the Tribunal that in conformity with the ruling given by the Tribunal during the morning session of 12 August 1946 concerning the witness Schreiber, this witness has been brought to Nuremberg and is here and can be examined today or at any other time, as the Tribunal may decide.

THE PRESIDENT: Colonel Pokrovsky, could he be examine6 now, at once?

COL. POKROVSKY: He could be examined at once, Mr. President.

THE PRESIDENT: I think that would be the most convenient, before we go on with the organizations' speeches.

COL. POKROVSKY: Very well, Mr. President; General Alexandrov will therefore examine him at once.

DR. LATERNSER: Mr. President, I object to the examination of this witness for the following reasons: for the trial of the organizations it was decided by the Court that all witnesses should first be examined before the Commission. What is valid for the Defense must, according to general legal principles, be valid for the Prosecution as well. For these reasons the examination of this witness is inadmissible.

THE PRESIDENT: I have before me the order of the Court o the 12th of August 1946, which is termed as follows:

"With reference to the objection of Dr. Laternser to the use of the statement made by Major General Walter Schreiber, the Tribunal is not inclined to admit any evidence so late as this, or to reopen questions which have been gone into fully before the Tribunal; but, on the other hand, in view of the importance of the statement of Major General Schreiber and its particular relevance, not only to the case of certain of the individual defendants but also, to the case of the High Command, the Tribunal will allow Major General Schreiber to be heard as a witness if he is produced before the end of the

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hearing of the case. Otherwise no use can be made of this statement."

Dr. Laternser's present objection is, therefore, overruled.

[The witness Schreiber took the stand.]

THE PRESIDENT: Will you state your full name, please?

WALTE R. SCHREIBER (Witness): Walter Schreiber.

THE PRESIDENT: Will you repeat this oath after me:

I swear by God-the Almighty and Omniscient-that I will speak the pure truth-and will withhold land add nothing.

[The witness repeated the oath.]

THE PRESIDENT: You may sit down.

MAJOR GENERAL ALEXANDROV: Witness, will you kindly give the Tribunal some brief particulars about yourself, about your career, and about your scientific and educational activities?

SCHREIBER: I am 53 years of age. I was born in Berlin and am a Professor of Medicine. I studied medicine at the Universities of Berlin, Tubingen, and Greifswald. I passed the State medical examination at Greifswald in 1920. 1 received my degree and was made a Doctor of Medicine.

In 1940 1 became teacher of Hygiene and Bacteriology at the University of Berlin and in 1942 Professor at the Military Medical Academy. I have been an active military physician since 1921. 1 have held various positions as a garrison physician, and have been a division physician since 1929, although I only did scientific work as a hygienist and bacteriologist.

I carried out my work as a scientist and a professor at the Universities of Berlin and Freiburg in Breisgau. After 1929 1 was first in Freiburg, later hygienist at the Wehrkreiskommando, in Berlin, and finally during the second World War hygienist and bacteriologist at the headquarters of the High Command of the Army. I then became section chief in the High Command of the Army and was in charge of the science and health departments in the Army Medical Inspectorate and finally head of the Scientific Department, Group C, of the Military Medical Academy. In this capacity I was in charge of the scientific institutes of the Academy in Berlin.

MAJOR GENERAL ALEXANDROV: What was the last military rank you, held, and what position did you occupy in the German Army?

SCHREIBER: I was Generalarzt, that is Major General in the Medical Service. My last position was that of medical officer in charge of the military and civilian sector of Berlin, but only from 20 to 3,0 April 1945.

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MAJOR GENERAL ALEXANDROV: When and in what circumstances were you taken prisoner by the Soviet Army?

SCHREIBER: On 30 April I was in the large hospital in the air-raid shelter of the Reichstag building in Berlin. Since most of the city of Berlin was already in the hands of the Russian troops, there was no more supervisory work for me to do. I therefore opened a large military hospital there and took care of several hundred wounded.

MAJOR GENERAL ALEXANDROV: You are now going to be shown your statement of 10 April 1946, which you addressed to the Soviet Government.

[A document was handed to the witness.]

MAJOR GENERAL ALEXANDROV: Do you remember that statement?

SCHREIBER: Yes; that is a report ...

THE PRESIDENT [Interposing]: Wait a minute.

General Alexandrov, the Tribunal would prefer that you should get the evidence orally and not by a document. Therefore, if you question him upon the subjects which are contained in it ...

MAJOR GENERAL ALEXANDROV: Mr. President, that is -what ...

THE PRESIDENT [Interposing]: Wait a moment.

MAJOR GENERAL ALEXANDROV: That is what I was going to do.

THE PRESIDENT: Yes, General, the Tribunal would prefer that you get the evidence from the witness and do not use the document. Go on.

MAJOR GENERAL ALEXANDROV: That is what I intend to do, Mr. President, but I wish to have the witness tell us about a few circumstances, in connection with this document.

THE PRESIDENT: Very well.

MAJOR GENERAL ALEXANDROV: The substance will be obtained orally from the witness.

[Turning to the witness.] Do you confirm the facts set forth in that statement?

SCHREIBER: Yes, I confirm them.

MAJOR GENERAL ALEXANDROV: What was the reason for your making the statement to the Soviet Government?

SCHREIBER: In the second World War things occurred on the German side which were against the unchangeable laws of medical ethics. In the interests of the German people, of medical science in

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Germany, and the training of the younger generation of physicians in the future, I consider it necessary that these things should be thoroughly cleared up. The matters in question are the preparations for bacteriological warfare, and they give rise to epidemics and experiments on human beings.

MAJOR GENERAL ALEXANDROV: Why did you make this statement only on 10 April 1946 and not before that date?

SCHREIBER: I had to wait and see whether this Court itself might not raise the question of bacteriological warfare. When I saw that it did not raise this question I decided in April to make this statement.

MAJOR GENERAL ALEXANDROV: Thus, as a prisoner of war, you had the opportunity of following the Trial at Nuremberg?

SCHREIBER: Yes, in the prison camp German newspapers were available in the club room. In addition, there was the Prisoner-of-War News printed in Soviet Russia, which reported regularly on the Trial.

MAJOR GENERAL ALEXANDROV: Witness, will you kindly tell us what you know about the preparations by the German High Command for bacteriological warfare?

SCHREIBER: In July 1943, the High Command of the Wehrmacht called a secret conference, in which I took part as representative of the Army Medical Inspectorate. This conference took place in the rooms of the General Wehrmacht Office in Berlin, in the Bendler Strasse, and was presided over by the Chief of Staff of the General Wehrmacht Office, a colonel. I do not remember the name of this colonel. The colonel said by way of introduction that as a result of the war situation the High Command authorities now had to take a different view of the question of the use of bacteria as a weapon in warfare from the one held up till now by the Army Medical Inspectorate. Consequently, the Fuehrer, Adolf Hitler, had charged Reich Marshal Hermann Goering to direct the carrying out of all preparations for bacteriological warfare, and had given him the necessary powers.

A bacteriological warfare group was formed at this meeting. The members of this group were essentially the same gentlemen who had been taking part in the conference, that is, Ministerial Director Professor Schuhmann of the science section of the Army Armaments Office; Ministerial Councillor Stantin of the Army Armaments Office, Weapons Examination Section; Veterinary General Professor Richter, as representative of the Veterinary Inspectorate, and another younger veterinary officer of the Army Veterinary Inspectorate; and from the Army Medical Inspectorate, Chief Medical Officer Klieve; the latter only as an observer, however. In addition, there was a staff officer of the Luftwaffe as representative of the High Command of

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the Luftwaffe, a staff officer of the Armaments Office as its representative, a well-known zoologist, and a botanist. But I do not know the names of these gentlemen.

At a secret conference it was decided that an institute should be created for the production of bacterial cultures on a large scale, and the carrying out of scientific experiments to examine the possibilities of using bacteria. The institute was also to be used for experim6nting with pests which could be used against domestic animals and crops, and which were to be made available if they were found practicable. That is the substance of what was discussed at the conference in July 1943.

MAJOR GENERAL ALEXANDROV: And what was done after that? What do you know about that?

SCHREIBER: A few days later, I learned from the Chief of Staff of the Army Medical Inspectorate, Generalarzt Schmidt-Bruecken, who was my direct superior, that Reich Marshal Goering had appointed the Deputy Chief of the Reich Physicians' League, Blome, to carry out the work, and had told him to found the institute as quickly as possible in or near Posen. Among the people who worked at this institute in Posen were Ministerialdirektor Schuhmann, Ministerial Councillor Stantin, and a number of other doctors and scientists whom I do not know. I myself made a report of this secret conference on the same day to the Chief of Staff, and a few days later to the Army Medical Inspector, Generaloberstabsarzt Professor Handloser, since he was not in Berlin at the time.

MAJOR GENERAL ALEXANDROV, And what do you know about the experiments which were being carried out for the purpose of bacteriological warfare?

SCHREIBER: Experiments were carried out at the institute in Posen. I do not know any details about them. I only know that aircraft were used for spraying tests with bacteria emulsion, and that insects harmful to plants, such as beetles, were experimented with, but I cannot give any details. I did not make experiments myself and do not know any details.

MAJOR GENERAL ALEXANDROV: You testified that the first secret conference devoted to these questions was presided over by a colonel belonging to the General Staff of the OKW. In whose name did he do so?

SCHREIBER: In the name of Field Marshal Keitel and the chief of- the General Wehrmacht Office, General Reinecke.

MAJOR GENERAL ALEXANDROV: Who ordered you to take part in this conference?

SCHREIBER: The Chief of Staff, Generalarzt Schmidt-Bruecken, commissioned me to attend.

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MAJOR GENERAL ALEXANDROV: Was the Army High Command informed about it and did they know about the preparations for bacteriological warfare?

SCHREIBER: I assume so, for Generaloberstabsarzt Handloser, the medical chief, to whom I had reported the results of the conference was, in his capacity as army physician, that is, as Chief Medical Officer of the Army, directly subordinate to the Chief of the General Staff of the Field Army and had to report to him about it.

MAJOR GENERAL ALEXANDROV: What do you know about the participation of the Defendant Jodl in the carrying out of these measures?

SCHREIBER: I know nothing about any co-operation by Generaloberst Jodl.

MAJOR GENERAL ALEXANDROV: Will you kindly tell us precisely what the reason was for the decision of the OKW to prepare for bacteriological warfare?

SCHREIBER: That was implied by the words of the president of the secret conference. The defeat at Stalingrad which, in contrast to the heavy fighting around Moscow in the winter of 1941 to 1942, was a severe blow for Germany, inevitably led to a reassessment of the situation, and consequently to new decisions. It was no doubt considered whether new weapons could be used which might still turn the tide of war in our favor.

MAJOR GENERAL ALEXANDROV: How do you explain that the German High Command did not put into effect these plans for the waging of bacteriological warfare?

SCHREIBER: The High Command probably did not carry out the plans for the following reasons: in March 1945, Professor Blome visited me at my office at the Military Medical Academy. He had come from Posen and was very excited. He asked me whether I could accommodate him and his men in the laboratories at Sachsenburg so that they could continue their work there; he had been forced out of his institute at Posen by the advance of the Red Army. He had had to flee from the institute and he had not even been able to blow it up. He was very worried at the f act that the installations for experiments on human beings at this institute, the purpose of which was obvious, might be easily recognized by the Russians for what they were. He had tried to have the institute destroyed by a Stuka bomb but that, too, was not possible. Therefore, he asked me to see to it that he be permitted to continue work at Sachsenburg on his plague cultures, which he had saved.

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I told Herr Blome that Sachsenburg was no longer under my command and for that reason I could not give him my consent, and I referred him to the Chief of the Army Medical Service, Generaloberstabsarzt Handloser. The next day Generaloberstabsarzt Handloser called me up and said that Blome had come to him and that he had an order from the Commander of the Reserve Army, Heinrich Himmler, and that on the strength of this order he was unfortunately compelled to give Blome a place in which to work at Sachsenburg. I took note of this but I had nothing more to do with it. Thus Blome had had to leave the Posen Institute. It is difficult to imagine what the work of such an institute entails. If one wants to cultivate plague bacteria on a large scale, one must have an adequate laboratory with appropriate precautionary measures. The personnel must be trained, for no German, not even an expert bacteriologist, has any experience with plague cultures. That takes time, and after its founding had been decreed a considerable interval elapsed before the institute at Posen began its work. Now it had suffered a severe blow; it was to carry on at Sachsenburg. During his visit Blome told me that he could continue his work at an alternative laboratory in Thuringia, but that this was not yet completed. It would take a few days or even a few weeks to complete it, and that he had to have accommodation until then. He added that if the plague bacteria were to be used when the military operations were so near to the borders of Germany, when units of the Red Army were already on German soil, it would, of course, be necessary to provide special protection for the troops and the civilian population. A serum had to be produced. Here again time had been lost, and as a result of all these delays it had never been possible to put the idea into effect.

MAJOR GENERAL ALEXANDROV: Witness, will you kindly tell us now what you know about the illegal experiments carried out on human beings by German doctors?, I would ask you to testify very briefly as to, these questions, because they have already been sufficiently gone into in the Trial.

SCHREIBER: In the course of my duty I learned of a few things. In 1943, 1 believe it was in October, we had at the Military Medical Academy a scientific meeting of qualified doctors, so-called advisory doctors, and Obersturmbannfuehrer Dr. Ding lectured to the bacteriology section, which comprised about 30 gentlemen, on tests with typhus vaccine. The lecture showed that this Dr. Ding had inoculated prisoners with vaccines against typhus in the Buchenwald concentration camp, and that some while after, I do not know how long it was, he had artificially infected them with typhus by typhus-infected lice, and that according to whether these people contracted typhus or not, he based his conclusions on the protection

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which the vaccine had or had not given to the people in question. Since vaccines of various qualities had been given there were cases of death to be deplored.

MAJOR GENERAL ALEXANDROV: Now, what was the scientific value of the experiments carried out by this Dr. Ding?

SCHREIBER: In my opinion they had no scientific value at all. In the course of the war, we had gained much knowledge in this field by empirical means and collected a great deal of experience. We knew our vaccines very well, and there was no need for these further tests. A number of the vaccines with which Ding experimented were not used at all in the Wehrmacht and were rejected.

MAJOR GENERAL ALEXANDROV: Please continue your statements regarding this question.

SCHREIBER: There was a second matter which came to my notice in the course of my duties: the head of the hospital in Hohenlychen, SS-Gruppenfuehrer Professor Gebhardt, a talented surgeon, had carried out cranium operations on Russian prisoners of war and had killed the prisoners at certain intervals in order to observe the pathological changes, the progress of the bone changes on the basis of trepanation, the results of the operations, and so forth. And thirdly I attended, here in Nuremberg, a scientific meeting held by the High Command of the Luftwaffe.

MAJOR GENERAL ALEXANDROV: When did this take place?

SCHREIBER: The meeting was in 1943, 1 cannot say exactly when it was. I believe it was the autumn of 1943, but it may have been in the summer. At this meeting, which was held in the hotel near the station, two doctors, Dr. Kramer and Professor Holzlehner, director of the Psychological Institute at the University of Kiel, reported on experiments which they had carried out on behalf of the High Command of the Luftwaffe in Dachau on the inmates of the concentration camp. The purpose of the experiments had been to obtain data for the production of a new protective suit for airmen for use over the English Channel. Many German airmen had been sh6t down in the Channel and had, in a short time, met their death in the cold water before the rescue plane could reach them. Now, it was proposed to make a suit which would have some kind of insulating effect and protect the body against cold. For this purpose the persons on whom the experiments -were carried out had to be placed in water of varying low temperatures-ice cold water, water at zero, water of more than five degrees-I do not know exactly what all the temperatures were; and measurements were taken showing the decline of body temperature; they indicated the falling-off of body temperature by a graph-the temperature

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at the point between life and death. The subjects of the experiments wore various suits, the ordinary ones which were worn at that time, and others. I recall one special suit which developed a foam between the suit and the skin, that is, a layer of air which had an immediate insulating effect, and death from freezing could be postponed for a considerable time by this suit. Of course, these experiments, which were undertaken under, anaesthetics, cost a number of subjects their lives.

MAJOR GENERAL ALEXANDROV: Please tell us what the Defendant Goering had to do with the experiments carried out at Dachau?

SCHREIBER: Stabsarzt Kramer said at the beginning of his lecture that the Defendant Goering had ordered these experiments, and that the Reichsfuehrer SS Himmler had kindly made available the subjects for the experiments.

MAJOR GENERAL ALEXANDROV: Do you yourself admit the possibility that similar experiments could -have been carried out without the knowledge of the Defendant Goering?

SCHREIBER: I cannot imagine that.

MAJOR GENERAL ALEXANDROV: Mr. President, I have no further questions to put to this witness.

DR. LATERNSER: Witness, you are in a Russian prisoner-of-war camp?

SCHREIBER: Yes.

DR. LATERNSER: Where?

SCHREIBER: Near Moscow.

DR.LATERNSER: Do you hold any office in this camp?

SCHREIBER: No. I hold no office in the prisoner-of-war camp.

DR. LATERNSER: How did it come about that you made your statement on 10 April? Did you yourself take the initiative or were you asked to do so?

SCHREIBER: I myself took the initiative. When I heard the report of Dr. Kramer and Professor Holzlehner here in Nuremberg I was deeply shocked at the obviously perverted conceptions of some of the German doctors. Even at that time I already spoke about it to the Chief of the Army Medical Service, Generaloberstabsarzt Handloser, who shared my opinion; and when more and more such things were reported in the papers, I considered it my duty-I refer to what I said before-in the interest of the future of the German medical profession, and future generations, to clear these things up once and for all.

DR. LATERNSER: What did you learn about such things?

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SCHREIBER: What I said before.

DR. LATERNSER: No, I mean what you learned in the prisoner-of-war camp.

SCHREIBER: From the papers which we received.

DR. LATERNSER: Well, what did you learn from the papers?

SCHREIBER: I learned...

DR. LATERNSER: One moment, Witness. Have you a piece of paper before you?

SCHREIBER: Yes.

DR. LATERNSER: What does it say?

SCHREIBER: "You can speak faster."

DR.LATERNSER: One question: Your testimony in answer to the questions of the Russian Prosecutor today-was it prepared?

SCHREIBER: I was interrogated, and what I said is in this statement.

DR.LATERNSER: I ask you, Witness, whether before the examination today, you were informed by the Russian Prosecutor on what you were to testify about? Was your testimony previously determined?

SCHREIBER: No, my statement was not previously determined, but I knew that I would be asked about bacteriological warfare and experiments on human beings.

DR. LATERNSER: Now, as to the statement: you have the statement before you?

SCHREIBER: Yes, here it is.

DR. LATERNSER: At the end of that statement there is a note. Would you please look at it?

SCHREIBER: Yes.

DR.LATERNSER: Was this note put on this document in your presence?

SCHREIBER: No, I received this document here in this room a little while ago.

DR. LATERNSER: I mean something else; was your signature certified on the original? Or did you send off the original before this note, which now appears at the end, was added?

SCHREIBER: I made my statement. No note was written on it in my presence.

DR. LATERNSER: Was any advantage promised to you for making this report?

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SCHREIBER: No, nothing was promised me. I would refuse to allow anybody to hold out advantages to me.

DR. LATERNSER: I do not know. That is why I asked you. Was the German Army Medical Service at any time afraid that the Soviet Union might use bacteria as a means of combat?

SCHREIBER: Not the Army Medical Inspectorate, but the General Staff. In 1942 the General Staff inquired of the Army Medical Inspectorate whether the enemy in the East might be expected to use bacteria as a weapon. I, myself, wrote the answer. On the basis of intelligence reports and reports of the army physicians on the Eastern front, and in view of the situation regarding epidemics among our troops, we were able to say that this fear was not justified. That opinion was given by me in 1942. It was a comprehensive opinion and was prepared by me and signed by Generaloberstabsarzt Handloser. Already in 1939 an opinion about the same matter had been asked for, and was drawn up on similar lines and signed by Generaloberstabsarzt Dr. Waldmann.

DR. LATERNSER: You stated that in 1943, after Stalingrad, an order to make preparations for this bacteriological warfare against Russia was issued. Do you know who issued the order to prepare for this warfare?

SCHREIBER: Well, I...

DR.LATERNSER: I ask you, do you know who issued this order? It is a clear question. I ask you to answer it equally clearly.

SCHREIBER: It, was not said at the conference who issued it.

DR. LATERNSER: You do not know who issued the order?

SCHREIBER: No.

DR.LATERNSER: Then, you do not know-or do you know the exact contents of the order?

SCHREIBER: No. I did not receive any written order. The Chief of Staff of the General Wehrmacht Office said that the Fuhrer had given the Reichsmarschall full powers, and so forth, for carrying out all the preparations.

DR.LATERNSER: So what you said about it is hearsay? You do not know it yourself?

SCHREIBER: I was told so officially at the conference. Therefore, I did not learn it from hearsay, but officially, at an official conference; we who were assembled there were told that.

DR. LATERNSER: When you were told that at this conference, what was your capacity?

SCHREIBER: As I said before, I was a representative of the Army Medical Inspectorate.

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DR. LATERNSER: When this proposal was made known, what did you do-you yourself?

SCHREIBER: I pointed out that bacteria were an unreliable and dangerous weapon. I did nothing else.

DR. LATERNSER: You were an expert. Since 1942 you had been a professor?

SCHREIBER: Yes.

DR.LATERNSER: And you said nothing else?

SCHREIBER: No, nothing else.

DR.LATERNSER: Why did you not say anything else?

SCHREIBER: Because we were confronted with a fait accompli.

DR. LATERNSER: A fait accompli? But you say the matter was to be discussed.

SCHREIBER: We were told it. It was not discussed. We were told, "This decision has been taken."

DR. LATERNSER: But it was a fait accompli only if these bacteria were actually to be used. It was only proposed to start the preparations. A strong objection by a professor in such a high position might have had some effect. You should at least have tried it. Might it not have changed this opinion?

SCHREIBER: According to our experience, nothing could be done against such a decision. As an expert I pointed out that it was a dangerous and unreliable weapon.

DR. LATERNSER: You could have got up and left the room or made some strong protest.

SCHREIBER: It would have been b6tter if I had done it.

DR. LATERNSER: That is enough on that point. The working group was to meet once a month in the rooms of the General Wehrmacht Office in Berlin. Do you know how many meetings took place?

SCHREIBER: No. I cannot tell you.

DR. LATERNSER: Do you know when the last meeting was?

SCHREIBER: I cannot say that either.

DR. LATERNSER: Were any meetings held?

SCHREIBER: Yes. Meetings were held.

DR. LATERNSER: Do you know whether there are records of these meetings?

SCHREIBER: I assume so, certainly. Professor Klieve informed me from time to time.

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DR. LATERNSER: Did you yourself belong to this working group?

SCHREIBER: No.

DR. LATERNSER: When and in what way did Professor Blome receive powers from Goering to make immediate arrangements for the medical and technical side of these preparations?

SCHREIBER: Immediately after this conference, perhaps on the very same day or even previously, because Blome's name was mentioned at the conference. At least, it was said he had been proposed, and two days later Herr Schmidt-Bruecken told me "Blome is the man."

DR. LATERNSER: And how do you know that?

SCHREIBER: From my immediate superior, Generalarzt Schmidt-Bruecken.

DR. LATERNSER: At what time did the spraying experiments from airplanes take place?

SCHREIBER: I cannot tell you.

DR. LATERNSER: What do you know about these spraying experiments?

SCHREIBER: The following: Bacterial emulsions with non-pathogenic bacteria which could be easily traced again-easily determined culturally were sprayed from planes on an experimental field near the institute at Posen.

DR. LATERNSER: Did you yourself see such experiments?

SCHREIBER: No.

DR.LATERNSER: How do you know that these experiments took place?

SCHREIBER: Klieve spoke to me about these spraying experiments and said that first a dye stuff was used which had more or less the same specific density as a bacterial emulsion. This had been poured over the land, and then experiments were made on models.

DR.LATERNSER: Did Klieve see these experiments himself?

SCHREIBER: I believe so.

DR.LATERNSER: You cannot say for sure?

SCHREIBER: I would not like to swear to it, but it is extremely probable.

DR. LATERNSER: You say that at this conference in July 1943 the colonel was acting for Field Marshal Keitel and General Reinecke?

SCHREIBER: Yes.

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DR. LATERNSER: How do you know that?

SCHREIBER: First of all, the meeting took place in General Reineeke7s office. The colonel who was presiding was his chief of staff, and we had been ordered to come to a meeting at the General Wehrmacht Office at such and such a time, and the colonel also mentioned Field Marshal Keitel's name.

DR. LATERNSER: But you cannot say whether it was actually ordered by him?

SCHREIBER: No, I did not see the order.

DR. LATERNSER: Well, then you do not know it?

SCHREIBER: No, I only know what the colonel told us officially.

DR. LATERNSER: You also said you supposed the High Command of the Army had been informed, namely, by Professor Handloser.

SCHREIBER: Yes.

DR.LATERNSER: What facts made you assume this?

SCHREIBER: I personally made a report to Generaloberstabsarzt Handloser, and Handloser expressed his opinion about the matter to me. It was an extremely serious matter for us physicians, for if there really should be a plague epidemic it was clear that it would not stop at the fronts, but would come over to us too. We had to bear a very grave responsibility.

DR.LATERNSER: You have deviated a little. We will come back to this point. I wanted to know whether you can give any facts to prove that the High Command of the Army was informed?

SCHREIBER: No. I cannot.

DR. LATERNSER: It is a pure assumption, then?

SCHREIBER: Yes. But it is quite obvious ...

DR. LATERNSER: Never mind if it is obvious or not, I want to know whether you know of any facts.

SCHREIBER: No, I cannot give any facts.

DR.LATERNSER: Do you know to whom Professor Handloser was subordinate?

SCHREIBER: His subordination was threefold. He was Chief of the Wehrmacht Medical Department, and in that capacity was under Field Marshal Keitel of the OKW. He was Army Medical Inspector, and in that capacity was under the Commander of the Reserve Army, Generaloberst Fromm, and later Reichsfuehrer SS Himmler and Juttner; thirdly, he was Army Physician, that is, Chief Medical Officer of the Field Army, and in this capacity was subordinate to the Chief of the General Staff of the Field Army.

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DR. LATERNSER: You were also questioned about the reasons why this bacteriological warfare was not carried out. What actual reasons are known to you?

SCHREIBER: The head of the institute at Posen, Professor Blome, reported the destruction and total loss of the Posen Institute to me when he visited me. He told me of his plight.

DR. LATERNSER: Do you yourself know whether a military command authority gave the positive order that this bacteriological warfare was not only to be prepared but was also to be carried out?

SCHREIBER: No, I did not see any order.

DR. LATERNSER: Then these were merely preparations?

SCHREIBER: Preparations for bacteriological warfare was what I said.

DR.LATERNSER: With which high-ranking general did you yourself speak about this bacteriological warfare?

SCHREIBER: I did not speak to any general.

DR.LATERNSER: Do you know from your own knowledge whether any high-ranking general was informed of these intentions? I am asking you whether you know it?

SCHREIBER: I was not present when a general was informed about them.

DR.LATERNSER: Then you do not know it?

SCHREIBER: No.

DR. LATERNSER: Do you know how far apart the enemy troops and our troops usually were at the front?

SCHREIBER: That differed a great deal.

DR. LATERNSER: What was the normal distance?

SCHREIBER: I am not a front-line soldier. I would not like to speak of a subject of which I know nothing.

DR. LATERNSER: We will assume that the enemy troops were normally at a distance of 600 to 1,000 meters from our own troops.

Would you, as a physician, consider the use of plague bacteria safe and not dangerous for our own troops?

SCHREIBER: I would always consider the use of plague bacteria as dangerous, no matter what the distance was.

DR. LATERNSER: Well, let us assume that such a devilish idea as actually to use bacteria did exist. Would that not have involved our troops in serious danger?

SCHREIBER: Not only our troops, but the whole German people; for the refugees were moving from East to West. The plague would have spread very swiftly to Germany.

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THE PRESIDENT: Dr. Laternser, it is useless to ask the same question over again. The witness has already said so.

DR. LATERNSER: May that not have been one of the reasons why this warfare was not used?

SCHREIBER: According to the statements made to me by Herr Blome, who was head of the institute and who had been appointed by the Reichsmarschall, no. He was using all his efforts trying to cultivate his cultures somewhere else.

DR. LATERNSER: Mr. President, may I ask for the recess now and ask a few more questions of the witness later?

THE PRESIDENT: No, Dr. Laternser, the Tribunal thinks you should finish now.

DR.,LATERNSER: You say, on Page 7 of your written statement, that in Norway 400 Yugoslav prisoners of war were shot out of hand because an epidemic had broken out among them. You say that this was a labor camp of the Waffen-SS ...

THE PRESIDENT: Go on.

DR.LATERNSER: This incident was reported to you?

SCHREIBER: Yes.

DR.LATERNSER: Did you report it to your superior?

SCHREIBER: Yes.

DR.LATERNSER: What was done?

SCHREIBER: A letter was immediately sent to the Chief Medical Officer of the SS and Police, Professor Grawitz, and through these official channels the affair was reported to the office which was the supervisory agency for this camp.

DR. LATERNSER: Do you know whether any legal steps were taken?

SCHREIBER: I do not know how the SS courts work. I do not know.

DR. LATERNSER: Then you write on Page 7: "Specially cruel treatment was meted out to the Russian prisoners of war by the High Command of the Wehrmacht."

SCHREIBER: Yes.

DR. LATERNSER: Then you write that the Russian prisoners of war were given inadequate food.

SCHREIBER: Yes.

DR. LATERNSER: Now I ask you, when were those observations made concerning the inadequate food? Immediately after capture in the reception camps behind the front, or in prisoner-of-war camps in Germany?

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SCHREIBER: I am not speaking of what happened in the reception camps immediately after the fighting. There, even with the best intentions, the state which has taken the prisoners is not always able to care for them as might be necessary. I am speaking of a later period when the prisoners had been in the hands of the Germans for weeks, and I am speaking of camps which were in the Baltic. countries. They were not taken to Germany. The Russian prisoners were brought to Germany only later. The conditions in these camps were extremely poor.

DR. LATERNSER: Were these bad conditions due to bad intentions?

SCHREIBER: I assume that these bad conditions were due to basic ideological problems ...

THE PRESIDENT: Dr. Laternser, the Tribunal did not allow the statement to be put in and you are now cross-examining upon a subject which is totally distinct from the subjects upon which the witness has given evidence.

DR. LATERNSER: These statements are in the written statement of the witness.

THE PRESIDENT: Well, you must have heard that we did not allow the written statement to be put in evidence. We asked that the witness should be examined orally and he was examined orally and the written statement is not yet in evidence.

DR. LATERNSER: I have one more question, Witness. Did you ever write down your objections to this bacteriological warfare?

SCHREIBER: Yes, in the memorandum which I mentioned before.

DR. LATERNSER: When did you submit that memorandum?

SCHREIBER: In 1942; may I now ...

DR. LATERNSER: That is enough. The conference took place in July 1943. Afterwards did you put your divergent views on this point into writing?

SCHREIBER: No, I did not put anything into writing.

DR. LATERNSER: After you reported to him, did your superior put his objections in writing?

SCHREIBER: Not that I know of. Generaloberstabsarzt Handloser was at headquarters and I in Berlin. He came once a week or once every fortnight. We reported to him and then he went back to headquarters.

DR. LATERNSER: I have no further questions.

THE PRESIDENT: The Tribunal will adjourn.

[A recess was taken.]

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THE PRESIDENT: Before we continue I will deal with three applications. First of all, the application of Dr. Kauffmann of the 20th of August, 1946. It appears originally to have been dated the 15th of August. That application will be granted, and an affidavit by the witness Panzinger may be put in evidence, provided it is put in evidence before the end of the Trial.

With reference to the application by Dr. Pelckmann, dated originally the 22d of August, 1946, the application is denied.

The two applications by Dr. Dix dated the 20th and the 21st of August; both applications are denied.

Now, is there any further cross-examination on behalf of the Defense?

Does the Soviet Prosecution desire to re-examine?

COL. POKROVSKY: The questioning by the Soviet Prosecution is finished, Mr. President. We have no more questions.

THE PRESEDENT: The witness may retire.

Now, Dr. Pelckmann.

HERR PELCKMANN: First, I should like to refer to two points. In my letter of 23 August I announced that my final speech cannot be translated. Secondly, I should like to remind the Tribunal that the ...

THE PRESIDENT: Dr. Pelckmann, 60 pages of it have already been translated, I understand.

HERR PELCKMANN: Yes. The French translation, however, has not been made yet. Furthermore, I beg to point out to the Tribunal that the answers to the interrogatory which I sent to the witness Rauschning have apparently not been received yet.

Your Lordship, Gentlemen of the Tribunal: when on 27 February 1933 the German Reichstag was destroyed by fire,, the Nazis willed that out of those flames the Third Reich, to last a thousand years, should be born. When, a little more than twelve years later, the whole of Germany was engulfed in a sea of flames, that Reich went down in rubble -and ruins.

Both of those historic events were followed by trials. Their meaning was and is to determine who was responsible for those two crimes of human history.

The German Supreme Court did not solve that task. It is true that it acquitted with remarkable courage, as Mr. Jackson has stated, the indicted Communists, but it failed to determine and certainly to sentence those who were really guilty, who hired the unfortunate tool, Van der Lubbe, and who performed the deed with him. Thus, under the impact of public opinion, the truth has been muzzled and has been concealed by the Nazi Government. Formal justice has

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been satisfied. The culprit had been sentenced, but Truth, that divine power and profoundest human insight, remained hidden. It alone would have been able to open the eyes of the German people at that time and have had the power to hold it back from the abyss.

Now this High Tribunal, this Court of the World, faces the task of passing judgment. Whose guilt was that world conflagration? Who was responsible for the destruction of foreign lands, and finally for the infernal downfall of our German Fatherland? And again there exists the danger that this Court too might pass merely a formal verdict naming guilty men, while the deepest and final truth would remain unfound by the influence of a psychosis which, in accordance with the laws of psychology and psychoanalysis, is the natural consequence of the many years of struggle between the Hitler regime and the free peoples of the world. Will this Tribunal be in a position to save, by its verdict, Germany and all the world from an abyss deeper and more horrible than anything experienced before?

This Trial is a criminal trial. It is truly the greatest as far as the number of defendants and people concerned goes, and above all, the most important which ever was recorded by legal history-but still, in all its characteristics, it remains a typical criminal trial. Therefore, it follows the Anglo-Saxon legal principle governing the Charter, which was reaffirmed during these public proceedings, namely, that the Prosecution must collect and present only those factors which could incriminate the accused, never those that could excuse them. The Prosecution is being effectively supported by the mass psychosis to which all the witnesses of the greatest causes c6Mbres of World history are subject, for reasons which international scientists, particularly Le Bon, have given in detail. Openly and gladly do I proclaim that in the course of the defense which I have conducted, I did not use the principle of painting everything in black and white. I, too, was endangered by the possible mass suggestion exerted by those hundreds of thousands of voices which reached me from the internment camps, and I was tempted to defend at any price-thereby losing the sound basis of facts as they actually were. This effect in itself shows the dangerous reaction brought about by such a mass accusation and its political consequences.

I am most thoroughly convinced that by such black and white painting the High Tribunal would have been led astray in its search for the real truth. I did not conceive this to be my task, although the principles of the Charter would have given me the right to do so. In such a trial, concerned with the very basis of humanity, with the fate of the German people and the future of the world, it cannot be left to the cleverness of methods in voicing the conflicting conceptions of Prosecution and Defense to bring the Tribunal to consider that the truth must lie halfway between. It is not the task

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of the Defense to gain tactical successes by emphasizing the one and suppressing the other argument. Incorruptibly we have to find clarity-Clart6, as demanded by that fanatic seeker of truth, Henry Barbusse. That is the rule in accordance with which I selected my witnesses. I particularly remind you of Reinecke and Morgen, whose evidence I shall evaluate later.

It was my endeavor to assist the Tribunal in ascertaining the historic truth.

In doing so I was inspired by the simple and therefore all the more beautiful German medieval proverb, "Geschehenes hat kein Umkehr," that is to say, "What is done cannot be undone." Those words imply not only all the tragedy of the fact that there is no undoing what is done; those words have a deeper meaning: Past events do not permit or tolerate a retrospective study; this means that no deed can be correctly grasped and understood if speculated upon ex post. No, one must look at it as it appeared to the contemporaries at the time of its performance, from the beginning to the end.

One must examine all the circumstances surrounding the deed and the person who performed it, as well as his psychological situation at the time of its performance. The judges must familiarize themselves most thoroughly with the personality of the perpetrator to measure the extent of his guilt.

This is equally true of this Trial. One nation judges another nation; the family of peoples judges one people which has brought deep suffering to the world, a State which has committed crimes against humanity. In the organizations there have been indicted huge formations; large sectors of the German people have been put in the dock and, therefore, it seems necessary that the judges of these millions of people should acquaint themselves most thoroughly with the lives, the knowledge, the hopes, and the beliefs of these masses as they were at the moment when the ideas and ai2complishments of National Socialism were becoming effective, and its criminal excesses were beginning. Hence, the judges of the four largest and, for the outcome of this World War, most important nations of all the world, will have to make the endeavor to decide-just as in a case before any normal jury-"How did the deed come about?" In what situation did the defendant find himself at that time? What speculations and sentiments drove him to commit the act? Did he have any intention of doing anything illegal? Is it possible that he himself was deceived? Was he at all able to recognize the illegal nature of his doing, and if he learned of it only gradually, was he in a position to adjust his action in accordance with that insight? It is extremely difficult for the judge even in normal criminal proceedings to free himself from the ex post reflection and to evaluate correctly the circumstances of the deed, the milieu of the deed, and

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the personality of the one who performed it. How exorbitant are the demands for justice upon the judge when he has to pass sentence on a man who has transgressed against a member of his, the judge's family! Every one of the four nations sitting in this Court has suffered tremendous damage by the crimes of the Nazi regime, for which millions of members of the organizations have to account now. But in accordance with the statements made by Justice Jackson in his opening speech, I venture to hope that you, High Tribunal, will succeed in this titanic undertaking in being free of feelings of revenge, and will seek justice and nothing but justice. Will you, as non-Germans, who have not yourselves lived through the unique historic phenomenon of a mass psychosis and a tyranny of continental proportions-will you indeed be able to grasp and to picture to yourselves how such things could happen? Can you conceive that crimes were not committed by the bulk of, the members, that they were not consciously organized by them-that they were not even known to them?

The Charter rightly states, and the Tribunal has acted accordingly, that it is not the task of this Court to ascertain what inner causes-whether justified or not-led to this war. The decisive question is only: was it an aggressive war? Nevertheless, already in the cases of the individual defendants evidence was allowed to be admitted as to how the historical development psychologically conducted them from the first World War to this new murder of nations. How infinitely more is one justified, when endeavoring to establish the guilt and the crime of the organizations in their very incipiency, in examining the historical background, the political situation as a whole, in and around Germany. The masses have no clear thoughts or sentiments. They are moved by vague emotions, emanations of a phenomenon which the scientists have called "mass soul." They are moulded by the pictures and promises offered by their leaders.

One of the prosecutors in his final speech against the individual defendants stressed how enormous was their guilt and how disastrous the consequences of their acts because of the clever use made of the masses, the seducing of the soul of the people by the glittering magic of slogans and the promise of Utopian development. Do not these very words give the best. proof that the bulk of the members desired only the good and the noncriminal?

Already in its very beginnings, even before 1933, the principles of the SS were identical with the program of the NSDA-P. Not only before this Tribunal has the question been discussed whether that program and the means and methods of its realization were criminal. This question stirred the public, the authorities of the German Republic, and the best heads and hearts of our people for many years before 1933. Were the motives criminal if the masses followed

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a politician who did not promise them easy predatory incursions at home and abroad, but rather work and bread; when he rallied them to national unity as contrasted to the p6le-ra&e of a parliamentary system turned to ridicule by 41 parties, and a democracy which brought about its own death by weakness and half measures?

It is the German peoples deep tragedy that it could not turn its efforts, having come too late when the material riches of the world were distributed, towards strengthening and improving its recognized position in the world of intellect and applied sciences. Germans are romantics-particularly in the field of politics. This romanticism circles around vague concepts of fate and doom and the dream of power once held in the "Holy Roman Empire of the German Nation" of a thousand years ago. This belief in destiny has been fostered by an absolutely incorrect presentation of German history for more than a hundred years, so that it needed only a skilful sorcerer to send once more millions of German youth to death and destruction by suppressing the real facts.

But the great seducer, Hitler, had not yet reached that point. The protestations of peaceful intentions towards the opponents among his own people were as yet more important than those towards foreign countries, which did not yet enter into the picture. As a result of shortcomings of all the large political parties and their formations and because of the weakness of the republican government, the issues of domestic politics were more and more being decided by street brawls. Nevertheless, the secret parliamentary elections were carried through without terror or deceit. Through these elections the citizen could observe a steady increase of strength of the extreme parties of the Right and of the Left. He could not consider it a crime to join the extreme party of the Right, the NSDAP, or its SS, which in contrast to the SX which ruled the streets, was mainly concerned with the protection of the speakers during the guerilla warfare among the political adversaries of those days.

Every German who lived through those days knows with what tension the question was discussed whether the NSDA-P and its formations were planning undertakings which signified high treason or aimed at overthrowing the Government by force. In 1923, in the early days of the Party, Hitler had attempted a coup d'etat which had failed. Now, for many years he had been advocating "legality." When in September 1930, three young officers of the 100,000-man Army were indicted before the German Supreme Court for high treason for having attempted to found National Socialist cells in the Army, Hitler as a witness testified under oath his revolution was -one of the spirit and that his aim was to come to power by legal

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means. This appeared in all the papers in huge headlines and impressed itself on the enemies and the followers of Hitler alike. Professor Dr. Kempner, then Oberregierungsrat in the Prussian Ministry of the Interior, now a member of the American Prosecution, was one of the few who considered that oath perjury. He submitted to his Ministry a detailed report which ended with the conclusion that the NSDAP was guilty of high treason. But even that seeker after truth had to admit in his description of the situation as it existed then (Volume XIII, Number 2, June 1945, Research Studies of the State College of Washington, Page 120) that even ministerial officials of the German Republic did not consider Hitler a liar at that time, 1930. That was how Hitler's clever propaganda influenced such critical and hostile circles. Should one be surprised that the masses of the SS put their trust in him? Incidentally, at that time they numbered only a few thousand. Well, matters went even farther. When Dr. Kempner denounced the Nazi Party in 1930, after a thorough investigation before the Supreme Court, the Chief Public Prosecutor ruled in August 1932 that there existed no reason to prosecute or dissolve it. (Compare Kempner's study, Page 133.) What other effect could such statements, voiced by the highest authorities of the Republic, have had on the masses? The effects were reflected in ever-increasing election returns for the Nazis.

But the most striking feature is-and that is of decisive importance for the inner attitude of those thousands who joined the SS immediately after 30 January 1933-that Hitler actually did not break his oath. Although it is quite true that Dr. Kempner's prophecies in regard to the further development were correct in general-this was not recognized until much later-he was mistaken in his early predictions. The Nazi Party in fact remained a legal one; it did not seize power by a coup d'etat, but Hitler was asked by Hindenburg to form a cabinet in accordance with parliamentary rules.

What is it that those ministerial officials who had refused to believe the -pessimist, Dr. Kempner, were able to say? Is it not likely that they could triumph at the fact that they had been right? Was their conscience not set at rest? After all, that man Hitler was not as bad as people had said. Now that he had entered the Government he would become a moderate-like every opposition after gaining power. And was it not true, too, that the bulk of Hitler's followers were proud that they had succeeded in coming to power by peaceful means after an election fight whose propaganda machine was almost of American proportions?

In viewing that period of time one question inevitably arises: were the mass of Hitler's followers, the mass of SS men, at that time able to recognize that that point of the Party Program which-

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probably was the most clear-cut, namely, anti-Semitism, contained a criminal element?

Anti-Semitism is not a new phenomenon; neither is it, if one studies its spiritual basis, something typically German. In my opinion it is based on the inferiority complex of the average man, on his mistrust of the Jews' superiority in certain intellectual fields. Neither is the refutation of anti-Semitism by all civilized nations and individuals anything new. It culminates in the Pope's statement, "He who discriminates between Jews and other human beings does not believe in God and is in conflict with the divine commands." But the enigma which we cannot pass by when discussing the question of criminality is that there should exist at all a Jewish -problem which is not based on religious differences, but on race. The enigma is that there still exists a race problem which leads continuously to conflicts in our modern world which has grown so small. Is it not puzzling that the Polish Cardinal Mond, who went through all the horrors of the Nazi regime, only a few weeks ago tried to justify to some extent Polish anti-Semitism by referring to the leading role played by Jews in the Polish Government? Is it not puzzling that even today, after the horrible experiences of the Hitler regime, the Arabs take action against the Jews in their traditional homeland, Palestine, and particularly against their influx, and that mutual acts of violence are committed? The situation is similar in Europe. Race problems, not only anti-Semitism, still exist in all other corners of the globe.

All of them cry out for a just solution, and that can be found only in the granting of equal rights to all races. Some progressive nations have made anti-Semitism a criminal offense. But was it criminal when society, the State, under the influence of those false ideas, sought the solution by prohibiting the races from mixing and influencing public life? Here again much can be explained by what was happening in those days. The bad example of a few Jewish immigrants from Eastern European countries, such as the notorious swindlers Barmat and Kutisker, was in sharp contrast to that of the great German Jew and unforgettable statesman, Walter Rathenau, who long ago had appealed to his brethren for a reawakening of their moral consciousness. This situation offered the basis for a collective attitude, for a mass psychosis against the Jews, aided by external economic distress, as always happens in the course of great political and social upheavals, just as in this present Trial it is about to happen again by creating collective injustice against certain categories of people. The demand to put this anti-,Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and personal revenge. In a way

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it was merely another version and anachronistic aggravation of the American legal principle of ...

THE PRESIDENT: Dr. Pelckmann, I do not want to interrupt you, but you will not lose sight of the fact that you are only going to be allowed half a day for the speech, and I observe that it is said to occupy 100 pages; and I 6nly interrupt you at the present stage to point out to you that the matters which you are dealing with now are matters of a general nature, to which our attention has been drawn throughout the course of this Trial, and it may be in your interest to shorten this part of your speech rather than other parts of it. That's the only reason why I interrupt you now.

HERR PELCKMANN: Yes, Your Lordship, I have already considered abbreviating the speech.

The demand to put this anti-Semitic principle into practice by legal means could not have been a crime, because the State appeared to be the guarantor that the principle would be applied without hatred and revenge. That in all this Hitler was inwardly moved by hatred-this is revealed by his most trusted mouthpiece, Rauschning, in his book Hitler Speaks, Page 91-was not known to the masses. That hatred which sprang from the -feeling of inferiority of him who recognized the superiority of the penetrating intellect over dark impulses remained concealed; for anti-Semitism was preached to the SS men merely as the other side of race eugenics on which emphasis , was laid. By skilful use of those race emotions which spring from a country's history, so difficult for the non-European to understand, and which were bound up with such conceptions as "Ordensprinzip," "Mannerbunde," and "Sippengemeinschaft"-I refer to Documents Numbers SS-1, 2, and 3 with all their twisted romanticism dressed up in modern clothes-Hitler endeavored to create in the SS a breed of men who by their bearing and self-discipline would represent an Mite for purposes of raising his own people to a high level. This tendency, though very alien to modern Europeans or cosmopolitans, can hardly be called criminal-I am referring to the pertinent questions asked by the High Tribunal-and it did exclude automatically an anti-Semitic tendency of the nature of the Sturmer, or even of the brand of the less vulgar SA-Mann. It is also significant that the Prosecution has not charged the SS with one single case of brutality towards Jews before 1933. The Leithefte, the monthly publication of the SS, and the evidence given before the Commission by the witness Schwalm concerning the training of the SS, testify to the reserved attitude of the SS towards the Jewish question. Later it was reaffirmed by the nonparticipation of the SS in the anti-Jewish pogroms of 1938, which I shall describe in another connection. I shall also demonstrate how the atrocities committed during the war against Jews, and the mass killings, were in conflict with the original tendency of the SS and how they were made possible by direct

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secret orders from Hitler and Himmler through criminal individuals and groups, and how they were kept secret from the masses of SS members.

Of the many points of the Party Program, which the SS accepted as a matter of course, I would like to pick out only the rejection of the Versailles Treaty and the demand for living space, because those two things might be important factors for the alleged preparation of an aggressive war. Nowhere has the Prosecution said how at that stage the bulk of SS members could assume that those demands were criminal, that is, that they should be accomplished by an aggressive war.

I have shown how Hitler by his legal assumption of power not only strengthened the confidence of his SS men, but how he gained the trust of new men who never would have started with him on the road to crime. May I respectfully request the High Tribunal to read the testimony of State Secretary Grauert before the Commission and learn how a man with the best intentions entered the Hitler administration and the SS, and did not leave it until 1936 when he, an experienced legal administrator, realized that the suspension of the historic principle of the separation of powers ...

THE PRESIDENT: Will you spell the name?

HERR PELCKMANN: G-r-a-u-e-r-t, Grauert.

THE PRESIDENT: All right.

HERR PELCKMANN: ... which he, an expert, realized only in 1936-remained hidden from the masses. In this connection I ask you to read the summary of approximately 136,000 affidavits which show why the membership of the General SS increased within a few months from 50,000 on 30 January 1933 to approximately 300,000.

Hitler's great gamble for power, and with it the tremendous betrayal of the German people, only begins-however paradoxical that may sound-after the so-called seizure of power. After one month of triumph over the Chancellery and this parliamentary revolution, in the course of which, no doubt, the Right did commit excesses, which cannot, however, be laid to the charge of the masses as premeditated planning, the pretext was created for the final elimination of all opponents, the burning of the German Reichstag. The Prosecution does not assert that the German people, the members of the organizations, the SS men, knew or even suspected that this fire had been planned by the Nazis and carried through by the Brown Shirts by using the tool Van der Lubbe. Such an assertion would, of course, be absurd.

In order to understand the mentality of the SS men who after January 1933 filled the ranks of the BS and formed four-fifths of their strength, one must recall Hitler's Reichstag speech of 17 March

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1933. When the new Reichstag was elected, a large part of the opposition was eliminated after -the fire by the banning of the Communist Party and the arrest of many of their members, and this with the approbation of the enraged population, because they had committed high treason by their alleged participation in the crime of arson.

When Hitler, while observing all parliamentary forms, asked for an Enabling Law, the Social Democrat members of the Reichstag asserted that this law would undermine legal security.

In view of the true background as portrayed above, it could only be the act of a daring trickster -when Hitler answered in reply: "I really must say that had we not had an understanding of what is legal, then we would not be sitting here and you would not be sitting here-Gentlemen, it would not have been necessary for us to embark on this election or summon the Reichstag." (Reichstag Records, 1933, Pages 65 and 66.)

But- who, Gentlemen of the Tribunal, among the mass of the people, among the old and new members of the General SS, knew at the time how audaciously Hitler was lying? These men were misled by the cloak of legality under which Hitler concealed his true self. And this speech is not all. Just consider how the Supreme Court, made up of old experienced former Republican judges, with scrupulous precision during many months of the trial until 1934, sought to establish who was guilty of the Reichstag fire. They acquitted the Communists Torgler, Dimitroff, and others, but sentenced the Communist Van der Lubbe and established publicly the complicity of Communist circles who remained unknown. Must not the mass of SS members, as well as the rank and file of the German people, have thought that Hitler had really saved the people and the State from a violent revolution for which the Communists were blamed at that time? Who, at that time, knew-as I knew, being a defense counsel-that the charge which had been prepared for months, even years, against Thalmann had to be withdrawn because of insufficient evidence? These few who then, or soon after, learned or guessed the truth and who, in spite of the ever-increasing danger of being arrested, in discussions with friends and acquaintances expressed doubts regarding the authenticity of the official and popular thesis, these few knew that, as against the semblance of legality supported by unceasing propaganda, they would not be believed by the masses.

The masses appreciated that in view of this threat to the State the so-called "enemies of the State" were to be rendered harmless in time. Seen from this angle, even the concentration camps appeared justified. But I shall come back to that later. All these were harsh and in many cases even criminal measures which partly also, incriminate SS members, but not the entire mass of the SS.

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However, we must not lose sight of one thing. There was no use of force, such as occurs in a revolution, until after Hitler had assumed power. The cunning thing about it was that these excesses, such as arrests and bodily injuries; which were committed by members of Nazi formations-in very few cases by members of the SS-were committed in the belief, created through deceiving the masses, that they were necessary in order to safeguard and def6nd the power, which was legally acquired, against attacks or threats.

Coming after the acquisition of power, this revolutionary attitude, created by the deception of the masses regarding the true events, a unique phenomenon in history, is typical of all revolutionary excesses: under cover of factual or alleged idealistic motives, such as love of the Fatherland, love of humanity, crimes were committed. Just consider, Gentlemen of the Tribunal-since we have not yet sufficient perspective of the many revolutions of the modern age-just consider the French Revolution: what crimes were committed under the slogan of "Equality, Liberty, and Fraternity." In the light of the experience of modem psychology it seems to me to be quite out of the question that mass movements can be unleashed or incited by inferior moral aims. The masses cannot consciously be led to crime. Gustave Le Bon also inclines to this opinion. In the shadow of the high ideals of the masses it frequently happens that crimes are committed; but then they are only instigated or perpetrated by the few who deceive the masses about the true reasons and events. This thought seems to me to be a decisive factor when dealing later with the question of concentration camps and the atrocities committed there, and establishing whether the mass of the SS were responsible or not for these.

The concept of loyalty, too, belongs to those ideals which inspire the masses. One must be acquainted with the German mentality in order to be able to gauge what immense possibilities this concept afforded the psychopathological seducer of a people, Adolf Hitler, ignominiously to deceive hundreds of thousands. We know how much the word "loyalty" means to a German, educated as he is, and influenced by romantic and retrospective contemplation of history. Even Tacitus praised these qualities in the ancestors of the Germans. Hitler exploited this weakness of the Germans, and in that way was able to cause hundreds of thousands, even millions, to link themselves with him and his destiny. We know that what is permissible and understandable in private life is fundamentally wrong for the State. By that I mean unconditional devotion to a human being. In his work, The Question of Guilt, the Heidelberg philosopher Karl Jaspers says in regard to this question:

"The loyalty of followers in narrow circles and in primitive conditions is a feeling which has nothing to do with politics. In a free State all people are subject to control and change."

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The German Socialist Bebel once expressed it in the following manner:

"Mistrust is a virtue of Democracy."

These views are taken for granted by the free peoples of the world. But for a people who wanted to create a modern state according to retrospective historical dreams they are a new revelation. Quite justifiably Jaspers sees a twofold guilt.

"First, because of the very fact of submitting oneself politicaly and without reservation to a leader, and secondly, the esteem of the leader to whom one subjects oneself. Even the atmosphere created by such subjection is a collective guilt."

Actually Jaspers means by that a moral and political, but not a criminal guilt.

In certain individual cases, however, this loyalty can render the individual perpetrator criminally guilty. That becomes clear when we listen to the secret speech of Himmler at Posen, when he addressed SS Obergruppenfuehrer of the home country and of the rear army area. That was late in the war-October 1943 (1919-PS, Document SS-98). After various statements concerning obedience and the possibility of refusing to execute orders, he says quite clearly:

"But he who proves unfaithful, be it only in his thoughts, will be thrown out of the SS and I, Himmler, would see to it that he disappears from among the living."

This, Gentlemen of the Tribunal, is an important fact when considering the question of guilt in the individual case and the question as to the extent to which coercion and obedience to order during the war eliminate the guilt and thereby the criminality of certain individual persons or subordinated groups. This is supplementary to the question of refusal of military service and its consequences according to military law.

The supernatural, and I can even say devilish, power of this bond of loyalty was exemplified by Himmler himself in his relations to Hitler during the last days of the war.

The Swede, Count Bernadotte, describes, from his own experience, in his book, The Curtain Falls, how Himmler could not make the decision to save the German people from destruction by calling a halt to hostilities, in spite of his very clear realization of the consequences, because-and Bernadotte admits this-even in this hopeless situation he dared not violate his loyalty to Hitler. We also know how in all times and with all peoples it has always been this loyalty that made soldiers fight to the last drop of blood in the gravest battles, just as the Waffen-SS did, and in so doing won the respect of their opponents in this war. And from these two examples

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we see how this hypnotic word, "loyalty," embraces alike criminal madness and the highest virtue of the soldier.

So much for the question of how far the SS man had knowledge of the points of the Party Program-if indeed he knew them sufficiently, which from the affidavits of 136,000 SS men is doubtful and how he viewed the ideals of his organization. But did not the Nazi leaders plot war from the very beginning? Mr. Justice Jackson asserts this, and I answer: According to the knowledge that we have today, I admit it, yes. But how could the SS man know it?

The Prosecution does not say why the conversion of an army of professional soldiers into a people's army should signify the planning of an aggressive war. Switzerland, the best example of a country with a people's army, has not been engaged in a war for a long time. Was the sponsoring of physical training and sports activities of youth a camouflaged plan for military training? In my opinion Mr. Justice Jackson failed to give us the proof for that assertion. The training of the General SS was nonmilitary. Field sports as practiced by the SA were completely lacking, and a typical example-the cavalry units of the SS which were numerically smaller than those of the SA, did not even give their members the right to hold a horsemanship certificate, as was the case with the SA. (Compare the testimony of Weikowsky-Biedau before the Commission.)

We know today that Hitler wanted war; it is particularly clear from the intimate conversations with Rauschning and when we consider the events as a whole. But, Gentlemen of the Tribunal, please note: it is ex post.

It would have been a fruitless undertaking, especially in view of the position in which the German people found themselves after the first World War, to present a new war as less shocking or bad, or even as a noble and necessary undertaking, to use Justice Jackson's own expression. Hitler, whom one can accuse of anything else, but certainly not of not knowing the facts of mass psychology, stressed again and again before and after 1933 that he wanted peace, peace, and nothing but peace. He pointed out that he had experienced the horrors of war on his own body, that war always meant a selection detrimental to the most valuable elements in any nation. And only by these means was he able to win over ever-increasing numbers of the German people to himself and to his ideas. With propaganda for war, however carefully conducted, he would never have achieved it.

Rearmament was represented to the German people as being merely a confirmation of the will for peace, as a defensive measure against the nondisarmament of other nations, and to, counter any

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attempts to interfere with the peaceful rebuilding of Germany. The building of the West Wall confirms it, and so do many utterances of foreign military experts. The high-ranking major defendants and many witnesses, including such a reliable witness as Gisevius, have confirmed that not even in the leading circles was any planning of aggressive war discussed. This applies to the SS to an even greater degree. The entire training with the organizations always centered around the idea that the Party Program would be carried through in a legal and peaceful manner, that peace was absolutely necessary and should be preserved at all costs. Not only was there no psychological preparation for war in all the SS organizations, but on the contrary, the peaceful aims of the Reich were continually stressed.

In this connection, I would like to ask the High Tribunal to read Documents SS-70, 71, 73, 75, 76, 77, 78, 79, 80, 81, 82 from the years 1933 to 1935, particularly an article from the Schwarzes Korps entitled "The SS Does Not Like War," written in 1937, and other documents which I am not quoting. That psychological preparations for war were lacking among the German people, and also among the SS, was never more clearly demonstrated to observers at home and abroad than by the reaction of the masses to the Munich Pact in 1938. The jubilation of the masses, including the SS who formed the cordons, was not meant for the Adolf Hitler who had enforced the cession of the Sudetenland, but rather the Hitler, and to an even greater degree those foreign statesmen, who had saved the peace.

For the German people and the soldiers did not want war and this must be stated in this historical place for the sake of historical truth-when war came in 1939 they accepted this fate not with loud rejoicing as in 1914, but in solemn silence, most of them in the erroneous belief that their leaders did not desire this war, that it was not a war of aggression.

However, it would be unworthy of me and I should lose face if I attempted to deny that the young Germans, particularly in the SS, saw their ideals in the manly virtues, those same virtues of self-assertion and refusal to take it lying down as are cherished by other nations too. It may be that the SS men overemphasized those virtues in a manner which was not always good or wise. But none of the old soldiers, students, and farmers who had joined the SS imagined that war was for a purpose even remotely akin to what Hitler had in mind. If Hitler had ever dared to speak to those men of attacks on other peoples with whom he had just concluded solemn pacts of friendship, or of Einsatzkommandos in -foreign lands, he. would never have found any followers, apart from a handful of desperadoes, The war which the tall, blond, and

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perhaps intellectually not always very alert, typical SS man imagined-and I must admit that he did not shrink from it-was the kind of war which his ancestors before him had waged during many centuries and which, in the last resort, always amounted to an appeal to destiny, the great gamble of the gods. It is true that we have to wean the Germans, and particularly the younger Germans, from this atavistic longing-and in this respect I am now more optimistic for my fellow countrymen than for many other peoples. But war, which at present it does not appear possible to extirpate-the Kellogg Pact and modern international law do not ban war as a means of defense and self-preservation-is essentially different from that high treason, that betrayal of world peace, that attack and robbery for the purpose of extermination, which was invented by Hitler.

In addition to its general aims and tendencies with which the Prosecution charges the SS since the very beginning of its activities, and on the basis of Which it seeks to declare it to be a criminal organization, there is one outstanding event which, it is alleged, -discloses its criminal character in a striking manner-the killings which took place on 30 June 1934.

Owing to lack of time, Your Lordship, I shall have to skip three pages dealing with the evidence in connection with these events.

In regard to the happenings which took place in Germany on June 30, 1934, and the following days, the taking of evidence has rounded out the following picture (witnesses Hinderfeld, Grauert, Johnk, Reinecke, Eberstein; Affidavit SS-70, Kampp-Franz, Affidavit SS-3, Schmalfeld, and Affidavits SS-119 to 122; summary of the mass declarations): In the morning of 30 June, the General SS was alerted practically everywhere in the Reich. Wherever there were Police or army barracks they were assembled there or in other buildings such as schools, et cetera, on 30 June, and sometimes even I July. In most cases, they remained entirely inactive; only in some places the Police used them to assist in the confiscation of arms in SA offices. In Berlin this task was carried through by the Police Division for Special Purposes Wecke by itself, while the majority of the General SS, which was concentrated in the barracks of the Leibstandarte at Lichterfelde, was used during the course of 3o June to form cordons at the Tempelhof Airfield. For that purpose, the General SS, which as a rule was unarmed, was furnished weapons by the Police or Army. After Hitler's arrival by plane from Munich the units of the General SS marched back to the barracks and immediately had to surrender their arms (Affidavit SS-3, Schmalfeld).

Nowhere were arrests or executions carried out by units of the General SS (witness Eberstein). In Munich, one of the hot spots of the so-called Rohm-Putsch, Hitler himself arrested the participating SA leaders. In the same manner he arrested R61un and his inner circle at Wiessee on the Tegernsee. Rohm and the other SA leaders subsequently were transferred to the Stadelheim, Prison and were executed there the same day by members of the Leibstandarte (witness J6hnk).

The arrests in Berlin, the other center of the revolt, were carried out in accordance with orders given by G6ring through the Gestapo. To sentence the arrestees there was formed a court martial in which the Reichswehr was also represented through the Wehrkreisbefehlshaber or the Stadtkommandant. Before the execution was performed through a Kommando of the Leibstandarte, the verdict of the court martial was rendered. The executions were performed on the grounds of the barracks of the Leibstandarte at Lichterfelde. From the apartments on the Finckensteinallee one could view the execution ground. Not all

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members of the SA who came before the court martial were executed. However, 2 number of SS members who had maltreated arrestees were shot (witness.161ink, Affidavit SS-3 by Schmalfeld). The members of the General SS were only subsequently acquainted with the reasons for their being called out. The same applied to the members of the Leibstandarte. During the days before 30 -June, however, there were various rumors circulating which largely dealt with the attitude of the SA. But the mass of the SS was only informed through the announcements of the press and radio on 30 June. They thereby received the same official picture as the German people and the whole world (witness Hinderfeld).

Doubt as to the accuracy of this description could not arise in the General SS then or in the following years. Even highly placed SS leaders, as the testimony under oath of SS Obergruppenfuehrer Von Eberstein and of SS Brigadefuehrer Grauert proved, were informed by Himmler or Goering himself to the effect that R6hm had made an attempt of a putsch with the SA. The just mentioned manner of the commitment of the General SS on 30 June further excludes the possibility that the SS participated in the violations which were carried through outside the judicial framework.

As to the forming of opinion of the mass of members of the SS, apart from their knowledge regarding the complete insignificance of their own commitment, the telegram of thanks of Reich President Von Hindenburg (Document SS-74), and Hitler's statement before the Reichstag on 13 July 1934, were of decisive importance. There the Chancellor of the German Reich gave a justification for the declaration of the state of emergency and determined numerically the circle of conspirators executed. In particular, it is essential to point out Hitler's statement where he says that the excesses committed, going beyond the necessary measures for the squashing of the revolt, would be sentenced by regular courts. No misgivings regarding the legality of the executions could arise with the members of the SS and the men of the Leibstandarte, nor any doubts about the seriousness of the announcement that illegal violations were to be punished by the courts. The details which Hitler issued regarding this alleged high and state treason, especially the description of the conspirators' connection with foreign countries and the attempts against his own life, were absolutely astonishing (Document SS-106). They were not senseless at all, since it Is a historical fact, even valid in modem times, that new governments before their consolidation are often vitally threatened, especially by opponents and counterrevolutionaries who might even come from the rank of their old friends; and therefore have to safeguard themselves by brutal action.

The fact that as little as possible was talked among the SS regarding the events of 30 June, as Himmler stated in Posen, cannot be considered as a sign of bad conscience. It was a question of tact that one did not unnecessarily speak of happenings in one's own house, that is, quarrels between Party formations-which might have a defamatory effect on one part-so as not to break open an old wound.

Finally, as far as the gaining of independence of the SS and their separation from the SA is concerned, one can only see therein an appreciation of the loyal attitude of the SS and their uncompromising rejection of Rohm's plans, and, at the same time, an intended weakening of the position of power to be given to the Chief of Staff of the SA.

The events of 30 June, according to my presentation of the facts, are by no means as significant as the Prosecution would seek to assert. The members of the SS did not see in them the beginnings of a criminal development.

I have reached a point in my review of the ideas held by the SS and its activities where we should pause to consider what the other factors were which led to the holding of these opinions. We must look the true facts in the face. The SS man, unlike an opponent or an intellectual of our kind, so ridiculed at that time, did not examine with a critical eye everything that was said about

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his Fi1hrer, about his country. He felt the need to believe in something-I will give proof of this-his belief was not shaken by what was being said in the world around him. Unfortunately, the world around him did nothing to shake his belief.

Your Lordship, I have just come to the end of a chapter. Would it be in order to adjourn now?

[A recess was taken until 1400 hours.]

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Afternoon Session

HERR PELCKMANN: I have said, Your Honor, that the surrounding world, unfortunately, did nothing to shake this belief in Hitler.

What I shall now discuss shall not serve to declare others guilty, or to detract from personal guilt if it exists. No; these statements are intended to clarify how we all, the whole world-in part likewise deceived about the true danger, in part hoping thus to avert this danger-did something which, in its effects on the whole German people, on Hitler's followers, and on his SS men, had to be interpreted as confirmation of the correctness and legality of his intentions and deeds.

I can understand that this evidence was declared irrelevant for the defense of the individual defendants, for they are being4charged precisely with having consciously deceived the world. In that case one cannot take the conduct of the world as an index for its credulity. In the case of the organizations this problem is different.

The Prosecution will not seriously charge the bulk of their members, even the bulk of their leaders, with having known of the criminal aims and intentions of Hitler; still less will they be able to prove it. I have just shown how the events up to about 1934-35 had to appear to the SS man. Thus the objection of the Prosecution that they could not have become confirmed in their error, which is worthy of consideration in the case of the principal defendants, does not apply to the organization which I am defending.

What was the situation at that time? I shall quote essentially from Jasper's The Question of Guilt, Pages 82-83.

In the early summer of 19.33 the Vatican concluded a Concordat with Hitler. Papen conducted the negotiations. It was the first great confirmation of the Hitler regime; a mighty gain in prestige for Hitler.

All states recognized the Hitler regime. Voices of admiration were heard. In 1935 Britain concluded the Naval Agreement with Hitler through Ribbentrop. In 1936 the Olympic Games were held in Berlin. The whole world flocked there. In 1936 the Rhineland was occupied by Hitler. France tolerated it. 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

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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. 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

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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. 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. 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

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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?

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?

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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.

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. 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

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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. 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

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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.

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? Would not the Court have

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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.

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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. 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

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-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.

In this connection allow me to develop another principle governing the evidence which to my mind must serve as the basis for the proper evaluation of the evidence in these proceedings: where any doubts may arise as to whether the individual charges are proven by the evidence, the weakness of which I have just made apparent, particularly also where doubts arise as to whether proved individual crimes may be said to be typical so that the entire organization, that is, all its members, can be considered criminal; where one counter-proof or one piece of circumstantial evidence is given as against ten or a hundred proofs of circumstantial evidence of the Prosecution, I believe that the Tribunal -cannot draw any conclusions which are sufficient to warrant a condemnation in the meaning of the Indictment.

This is a fair and logical conclusion arising from the nature of these proceedings. From the huge mass of evidence at their disposal, the Prosecution have chosen some incriminating facts, and then made the assertion that these were typical cases, that they were the same everywhere, that these actions were typical of the SS, et cetera. As already stated, it is the sole responsibility of the Defense to furnish exonerating evidence. And this is where the difficulties for the defense of the organizations, particularly of the SS, begin. The organizations have been dissolved; they no longer exist. When we accumulated the evidence most of the members of the organizations, and all their leaders, were in custody, and many of them still are.

The occupational authorities have secured the entire written evidence, all personal files, correspondence, decrees, and orders. It is true that we have been able to speak to most of the prisoners; but after so many years, and particularly on questions of detail, the information was bound to be incomplete, and was not given until April or May, since it depended on the progress of the Trial. -We could not always reach the competent persons. In connection with the question of the legal hearing, I would ask you to consider that

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we, have no evidence at all from SS men from Austria and the Soviet-Russian Zone of Germany. For reasons of security we could not be granted permission to conduct a research in the, Allied document centers in which the confiscated documents are classified .according to subject matter, and thus we were not able to obtain some valuable documentary information. We could not counter this deficiency by an approximate indication of the documents based upon certain assumptions, because a specified indication was demanded. As things stand, the counter-proof must be considered successful if the Defense succeeds in establishing but a shadow of a proof for their counter-evidence.

And now for lack of time I shall skip two pages, Your Honors, for the interpreters 32 and 33, and I shall deal with the charge of the participation of the SS in the pogrom of 9 November 1938. The next four pages deal with that, which I must also skip for lack of time, Pages 33 to 36. 1 ask you to read them.

Before I began with my considerations upon the Charter and the law of procedure, I endeavored to refute the charge of the Prosecution that the members of the SS were incriminated by the happenings of 30 June 1934. Not even the few members of the Leibstandarte directly concerned could have felt that they were committing a crime in killing men who were presumably guilty of high treason. That was how it appeared to the Germans and the bulk of SS men, -who had been fooled in such a masterly manner. A further and final confirmation of the legality of his intentions came when Hitler, after the elections in the summer of 1934 (nobody knew then that th6y had been falsified), declared that the struggle for power had now come to an end (Document SS-106). And it really seemed to be so. Even the issuing of the Nurnberg Laws, which came as a surprise to the SS as well as to most Germans, seemed to be merely a confirmation of the Party Program, branded above as absurd, though not as criminal in the sense of the Charter; in particular, a confirmation of the policy which Frick had declared publicly already in 1934, and which formally denied the idea of compulsory transfer of population (Document SS-93).

It is significant that, apart from the concentration camp system until 1938that is, 3 to 4 years-the Prosecution cannot raise any concrete charges against the General SS. The underhand anti-Semitic measures taken by the Party itself, or by other organizations, found no echo in the General SS. Only in November 1938 did anti-Semitism receive new official criminal impulse.

The Prosecution charges the SS with having taken part in the planning and execution of the measures against the Jews in the Reich on 9 and 10 November 1938. This charge is based upon Documents US-240, 3051-PS, and 374-PS, which, however, if they are brought into connection with the evidence of the witnesses, prove the contrary. Many Germans who were indignant witnesses of those happenings know that other Party organizations-partly in civilian clothes-took part in these excesses. That Is why I am concerned with establishing historical truth: on the evening of 9 November 1938, Goebbels made a speech in the Ceremonial Hall of the old Munich Townhall, following upon the murder of the German Legation Secretary Vom Rath. It was an aggressive speech against the Jews, which led to anti-Jewish demonstrations and excesses throughout the entire Reich that same night, obviously not only spontaneously but through preparatory measures of the Reich Propaganda Minister, as has been shown in the course of the Trial. According to Affidavit Number SS-5 by Schallermeier, together with the testimony of Von Eberstein, neither Hitler nor Himmler heard Goebbels' speech. Hitler retired early to his apartments, Himmler was with him. Considering the evidence it does not seem Impossible to me that Himmler at least was surprised by this action. The testimony of Eberstein and Schallermeier, Affidavit Number SS-5, makes clear beyond doubt that Heydrich was informed of the action already taking place in Munich only towards 11:15 p.m. by the office of the

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Gestapo in Munich; that Himmler could be informed only shortly before the beginning of the swearing-in ceremony at midnight; and that Himmler could come, and indeed did come, to some decision only after this ceremony, toward one o'clock.

What was the situation at this time? After the ceremony in Munich and other places where the swearing-in of the SS men had taken place, the SS marched of] and had-as every year-general orders to return directly to their homes in vie of the special solemnity of the preceding ceremony. In the meantime the action against the Jews had been afoot for several hours. We know from Document US-332, the report of the Party judge Buch, that this action was started oral instructions of the Reich Propaganda Chief, which were given by telephone immediately, that is, sometime before the first telegram of the Gestapo, by a large part of the Party members present to the agencies of their Gaue.

The Party leaders present understood Goebbels' instructions to mean that the Party should not appear as the instigator of these demonstrations, but in reality, should organize and carry them out. It is clear beyond doubt that purely reasons of time the SS until then could not have taken part in these horrible happenings. In the meantime Himmler had arrived towards one o'clock at the Hotel Vier Jahreszeiten in Munich. According to the aforementioned affidavit o Schallermeier, the truth of which is established by other evidence, such as Affidavit Von Bassewitz-Behr, Number 8S-9, and the testimony of the witness Vo Eberstein, Himmler gave two orders. The first was transmitted at 1:20 a.m. b Heydrich to all Gestapo agencies. This order was issued after the disaster ha already occurred. For reasons of security it demanded that political agencies be contacted concerning the carrying out of the demonstrations, ordered unconditional protection for German property and life, and furthermore, made provisions for the taking into custody of Jews. The contents of this order, and the agencies to which it was given, clearly established that these were merely police measures.

The SS organizations which I am defending are certainly not incriminated connection with these police instructions, since Heydrich, who held no office either in the General SS or the Verfugungstruppe, could not give them an. order (Witness Norbert Pohl). Himmler's second order was given orally to the leaders of the chief sections of the General SS who were assembled at the Hotel Vier Jahreszeiten. It contained definite instructions to the agencies of the General SS to help, if necessary, the Gestapo in safeguarding Jewish property, against all manner of plundering. He was obviously taking into consideration, the opinion that this was an unworthy and despicable action, from which the S should on principle stay away upon the definite instructions of Hitler. The task of the General SS was only to alleviate the consequences of this action if this should become necessary. This order was immediately telegraphed by the Oberabschnittsfuehrer from Munich to their local agencies.

This is established without doubt in Affidavit Number SS-5, Schallermeier The contents of the notes which, according to Schallermeler's affidavit, Himmler made of this occurrence, gain in credibility if considered from this aspect. In n event can the assertion of the Prosecution, that Himmler and Heydrich ha deliberately assigned the SS for the action of 9 and 10 November 1938, be considered proven. The contrary would seem to me more probable.

In this connection let us consider the actual participation of the SS in the Reich. The witness Von Eberstein has described the occurrences in the Munich district. Throughout the Reich the SS was never ordered to participate in the excesses, nor did units of the General SS participate out of their own initiative Their nonparticipation has been proved by numerous affidavits for all parts o the Reich (for instance, Von Roedern, Kaufmann, Lott, Enzner, Eschholdt, Fischer and Kampp-Pranz, Numbers 7, 8, 104, 6, 105, 10, 70). According to the affidavit of Kampp-Franz, approximately 200 affidavits have been submitted in proof 0 the nonparticipation of the SS in-the whole Reich territory in Camp 73.

According to these affidavits the units of the General SS, and most member of the SS in barracks, had come to be sworn. in in Munich, as everywhere in Germany. They all agree in saying that after the ceremony the members 0 the SS returned to their homes, without knowing anything about this action Also, according to the affidavit of Kampp-Franz, participation was strictly forbidden as far as this action became known during the swearing-in. Most 0 the SS members only heard of this action on the morning of 10 November 1938

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on their way to work or through an alarm given. Those units of the General SS who had been alerted upon the order of Himmler to the Oberabschnittsfuehrer were assigned in several places in the course of 10 November to safeguard synagogues, for instance at Offenburg in Baden (Affidavit SS-104, Lott); see also 4407 affidavits summarized and collected in Affidavits Number SS-119-122.

These affidavits prove that the General SS in many cases prevented further excesses, and that within the SS this disgraceful action was disapproved of from the very beginning. Document USA-332, a report upon the juridical party proceedings, in which four or six SS men are named, does not contradict this, for in such excesses, committed by the masses throughout the whole Reich, the participation of individuals against express supreme orders cannot be avoided entirely. But that cannot be considered as symptomatic for the criminal nature of the SS without further proofs.

THE PRESIDENT: Dr. Pelckmann, you say that you have only got to Pages 32 and 33?

HERR PELCKMANN: I want to start on Page 36 now. But as far as I am informed, Your Lordship's copy is longer. I am farther on.

THE PRESIDENT:- I do not have a copy at all; but I do not understand how you are proposing to finish your speech, if your speech is, as I am told, about 100 pages long.

I tried to point out to you at an earlier stage that the sort of general topics which are very familiar to us were topics which you might just as well pass over, and you said "Very well; I am going to shorten my speech. I have taken steps to shorten it."

Now we find that when you have been speaking for nearly two hours, you have not got any farther than Page 33. All I want you to understand is that you will not be allowed more than a half day.

Now will you go on, please?

HERR PELCKMANN: In the pages which I am skipping I have dealt with the events of November 1938. 1 will add that if in connection with the arrests, which were purely a political matter and were up to the Gestapo, some officials may have worn black uniforms, this did not make it an SS action. Gestapo officials also wore black unifor