Afternoon Session
SIR DAVID MAXWELL-FYFE: If the Tribunal please, before the Tribunal adjourned, I was about to mention again the bodies on the fringe of the SA, which the Prosecution did not seek to have included in the organizations:
First, wearers of the SA Sports Badge. The Tribunal may remember that Colonel Storey explained that they were not strictly members. He wanted to have that point quite clear. Secondly, SA Wehrmannschaften, who were internal defense or home-guard units, controlled by the SA but not members of the SA. Thirdly, SA members who were never in any part of the SA other than the reserve. Fourthly, the NSKOV, the National Socialist League for Disabled Veterans, who were apparently incorporated in the SA; but from the names that have been given—and the membership—we do not ask for their inclusion.
In Appendix B the Tribunal will find the eight defendants alleged to be connected with the SA, and it is alleged by the Prosecution that the connection of the SA with the conspiracy was so intimate that all the acts of the Defendant Göring would justify the declaration asked for.
I now pass to the sixth and last group or organization, the General Staff and High Command of the German Armed Forces. As in this case the Prosecution has drawn an arbitrary line, I may perhaps be allowed to recall briefly its constitution.
If the Tribunal will be good enough to look at Appendix B of the Indictment, under this heading, Page 37 of the English text (Volume I, Page 84), they will see that the first nine positions enumerated are special command or chief-of-staff positions. There were 22 holders of these positions between February 1938 and May 1945, of whom 18 are living. The 10th position, of Oberbefehlshaber, includes 110 individual officers who held it. The whole group varied from a membership of 20 at the beginning of the war to about 50 in 1944 or 1945—that is, at any one time.
I remind the Tribunal, however, that the conjoining of these positions is not artificial in reality, because on Page 2115 (Volume IV, Page 399) and the following pages of Colonel Telford Taylor’s presentation—and I refer especially to Pages 2125 and 2126 (Volume IV, Pages 407, 408)—it will be seen how the holders of the positions enumerated met in fact and in the flesh. This, in our submission, clearly comes within the interpretation of “group” in the Charter which, as Mr. Justice Jackson pointed out, has a wider connotation than “organization”; and we submit that you cannot hold men in the top command against their will. It would be impossible for them to carry on such work on such a condition.
Under Section F of my Appendix A, read with the first addendum, there will be found not only the references in the transcript but the references to the captured documents which prove, out of the mouths of the members of this group, the criminality alleged against them under each part of Article 6 of the Charter. These documents also show their actual knowledge and therefore, a priori, their constructive knowledge of the nature of the act.
In my Appendix B the five defendants involved are set out; and in the latter part of that appendix the connection of the group, and especially of the Defendants Keitel and Jodl, is emphasized. It is submitted that these facts prevent any difficulty being encountered with regard to this group on any of the five criteria which we say should guide the Tribunal.
Finally, may I repeat that, in our respectful submission, the facts contained in Appendices A and B, which are before the Tribunal in writing, clearly indicate the findings of fact for which the Prosecution ask.
My friend, M. Champetier de Ribes, will address the Tribunal.
M. CHAMPETIER DE RIBES: May it please the Tribunal, Mr. President and Gentlemen, I shall be careful not to add anything to the very complete statements of Mr. Justice Jackson and Sir David Maxwell-Fyfe.
In agreement with my fellow prosecutors, I should like respectfully to draw the Tribunal’s attention only to two clauses of French domestic law which deal with questions comparable to those which we are considering today—and in connection with which I believe the French legislature has had to solve some of the problems with which the Tribunal is concerned—and especially to reply to the question put by the Tribunal, namely, the definition of the criminal organizations.
I shall merely mention Article 265 of the French Penal Code which lays down the general principle of the association of criminals by enacting that:
“Any organized association, whatever its structure or the number of its members, any understanding made with the object of preparing or committing crimes against persons or against property, constitutes a crime against public peace.”
But I should like to draw the attention of the Tribunal to this fact, that in the course of the last few years France has had occasion to apply this general principle to organizations which greatly resemble those which we are asking you to declare criminal.
It is known indeed, Gentlemen, that Nazism is a contagious disease, the ravages of which threaten to go beyond the borders of the countries which it has definitely contaminated. Thus, during the years 1934 to 1936 diverse groups had been formed in France which, following the example of their German and Italian models, were organized with the intention of substituting themselves for the legal government in order to impose in the country what they called “order” but which was in reality only disorder.
The French Republic in 1936 did what the Weimar Republic ought to have done. The law of 10 January 1936, promulgated on 12 January in the Official Gazette, which I submit to the Tribunal, and a translation of which was given to the Defense, decreed the dissolution of these groups and enacted severe penalties against their members. With the Tribunal’s permission, I shall read the first two clauses of this law:
“Article I. By decree of the President of the Republic in session with the Cabinet all associations or de facto groups shall be dissolved which:
“1. Might provoke armed demonstrations in public thoroughfares;
“2. Or which, with the exception of societies for military preparation sanctioned by the Government and societies for physical education and sport, might by their structure and their military organization have the character of a fighting group or a private militia;
“3. Or which might aim at jeopardizing the integrity of the national territory or at attempting to alter by force the republican form of government.
“Article II. Any person who has taken part in the maintenance or the reconstitution, direct or indirect, of the association or group as defined in Article I, will be punished by a term of 6 months’ to 2 years’ imprisonment and a fine of 16 to 5,000 francs.”
The Tribunal will observe, in the first place, that by imposing severe penalties on members of these associations for the mere fact of having taken part “in the maintenance or the reconstitution, direct or indirect, of the association,” the law of 10 January 1936 has recognized and proclaimed the criminal character of the association.
The Tribunal will observe, in the second place, that neither the Penal Code nor the law of 10 January 1936 is concerned with giving an exact definition of the association nor with the question as to whether the incriminated association constitutes a moral entity or a legal entity having a legal existence. Article 265 of the Penal Code includes in its condemnation not only any association, which means a legal entity, but also condemns any agreement entered into with the object of preparing or committing crimes. And the law of 10 January also mentions any association, or any de facto group. Thus the law of 10 January in the same way as Article 265 of the Penal Code, speaking of agreements entered into or de facto groups, does not seek to define criminal organizations by law and refers to the commonly accepted meaning and implication of the words “group” or “organization” as we today ask you to define them.
In the same way, after the liberation of our country, the French Government concerned itself with pursuing and punishing bad citizens who, even without offending against an existing penal statute, had been guilty of definite antinational activity; and issued the decree of 26 August 1944, promulgated in the Official Gazette of 28 August. This decree, after having given a very general definition of the offense, defined its extent by enumerating the essential facts which it comprises.
Thus, Article I of the decree of 26 August 1944 states that the crime of national unworthiness is constituted by the fact of having participated in a collaborationist organization of any kind, and more especially one of the following: le Service d’Ordre Legionnaire (Legion of Order), la Milice (Militia), the group called “Collaboration,” la Phalange Africaine (African Phalanx), and so on.
The decree of 26 August 1944 is much less concerned with defining the punishable offense than with enumerating the criminal organizations to which the fact of having adhered voluntarily constitutes the crime of national unworthiness; and whether these organizations or these groups are legally constituted organizations or simply agreements entered into, as mentioned in Article 265 of the Penal Code, or merely de facto groups, as stated in the law of 1936, the decree does not define, it enumerates, the organizations which are considered to be criminal. That is what we are asking you to do with respect to the German organizations mentioned in the Indictment.
We are not asking you to condemn without having heard these men who, on the contrary, will be able to put forward their personal means of defense before a competent tribunal. We are asking you only to declare criminal, as was allowed by the French laws of 1936 and 1944, de facto groups without which it would have been impossible for one man in a few years to cause a great civilized nation to sink to the lowest depths of barbarity, the more hateful because it was scientific. It is the shame of our time that the mastery of technique should have placed new methods at the disposal of ancient barbarity, so true is it that technical progress is of no avail unless accompanied by moral progress.
Your sentence will signify for all nations in the world, and for the good of Germany herself, that above human liberties there exists a moral law which imposes itself upon nations just as well as upon individuals whether they be isolated or in groups and that it is criminal to violate that moral law.
GEN. RUDENKO: Your Honors, let me tell you first of all that I accept the principle which has been expressed by my respected colleagues Justice Jackson and Sir David Maxwell-Fyfe, the principle with regard to the criminality of the organizations. It seems to me that to clarify this question it is necessary to distinguish clearly two interwoven problems: First, the problem of the material law, just what organizations and what individual members or groups of individual members can be considered criminal; and also the problem of objective law, what evidence, what documents, what witnesses, and in what order these can be presented to agree, to declare, or to deny the criminality of this or that organization.
First of all, as to the question of material law, it is necessary to emphasize that the question of the criminal responsibility of an organization does not stand before the Tribunal and never did; neither does the question of the individual responsibility of the various members of an organization, except those who are among the defendants today or the various groups of these organizations, stand before the Tribunal. The Charter of the Tribunal provides as follows: According to Article 9, the examination or the trial of any individual member of this or that group or of any organization is within the jurisdiction of the Tribunal. It is within the jurisdiction of the Tribunal to declare this or that organization criminal if one of the defendants belongs to the organization.
Thus, we speak here about declaring an organization criminal, and the Charter definitely provides the legal consequences of declaring an organization criminal. As the Tribunal declares this or that group or organization criminal, then the competent national authorities of the signatory powers have a right to bring to trial before the national military tribunals and occupational tribunals members of organizations. In this case the criminal nature of the organizations is considered clear and cannot be contradicted. (Article 10 of the Charter.)
Consequently the Charter provides two legal results of declaring an organization criminal: First, the right, but not the obligation, of the various national tribunals to bring to trial members or organizations which the Tribunal declared criminal; and second, the obligation of the national tribunals to consider an organization criminal if such an organization was so declared by the International Military Tribunal.
In such a manner, the result of declaring an organization criminal by the International Military Tribunal does not automatically mean that all members of the organization will also be declared criminal by the national tribunals; neither does it mean that without exception all members of such an organization must be brought to trial. The question of individual guilt and of individual responsibility of the separate members of the criminal organizations is wholly, and without exception, within the jurisdiction of the national tribunal.
As has already been pointed out, in Article 10 of the Charter, the Tribunal limits the jurisdiction of the national tribunal in just one way. The national tribunal cannot deny or cannot argue the criminality of any organizations which have already been declared criminal.
My colleague, Justice Jackson, has already tendered valuable information about the legal codes of the respective countries concerning the question of responsibility. Under English-American law, French law, and also the Soviet legal code, it is provided that membership in an organization which has criminal aims makes an individual liable. There are two legal decrees on the subject—in U.S.S.R. penal code, Articles 58-11 and 59-3. These laws provide for the responsibility of members of criminal organizations. They are considered criminals, not only for committing crimes, but also for belonging to an organization which is considered criminal. The very fact of belonging to an organization, the law states, makes a person liable to prosecution. The law does not require formal proofs to decide if a person is a member of a criminal organization. A person can be a member of a criminal organization even though he does not formally belong to the organization. The evidence is all the more exhaustive if a person is formally put on the list of the membership of a criminal organization. However, the formal membership of a criminal organization is not the only basis of criminal responsibility of a person. A member of the organization should know what is the nature of the organization, what are its objectives. It is immaterial whether an individual member knew all directives, all acts of the organization or whether he knew personally all other members.
One cannot help noting that on the basis of the general principles of the law, especially in connection with the practice of fascist Germany, where a whole network of criminal organizations functioned, established by the usurpers of the supreme powers, the responsibility of individual members of the organization does not necessarily imply that they were aware of the penalties attaching to the acts committed by the organization.
On the basis of the legal code, especially in fascist Germany, where there existed a whole series of organizations established by the usurpers of powers now considered criminal, it is impossible to demand that every member be acquainted with all the actions and all the members and all the directives of the organization.
May I now pass on to the next problem. It appears to me that there is a certain degree of complexity attached to the problem of the criminal organizations. There is very extensive correspondence by members of various organizations, that has been submitted to the Tribunal on the subject of these organizations. Such abundance of discussion comes from an incorrect interpretation of legal proceedings if an organization is declared criminal. As long as we know the fact that the question of the individual responsibility of the individual members is fully within the jurisdiction of the various national courts, the general question of whether the organization is declared criminal or not is much easier to follow.
According to the Charter, on the question of declaring an organization criminal the Tribunal will decide in connection with individual defendants. Article 9 states that in examining the materials with regard to each defendant the Tribunal can have the right to declare—and so on. Therefore, the conclusion is that the facts which decide the solution of the question as to whether an organization is or is not criminal, consist of whether there is before us today among the defendants a representative of this or that organization. It is well known in the present Trial that all the organizations which the Prosecution want to be declared criminal are represented on the bench of the defendants. For that reason alone there has passed through the hands of the Tribunal a great deal of material and evidence relating to the criminal nature of the organizations which these defendants have represented that can be used by the Tribunal to draw a conclusion as to the criminal character of various organizations. Under such conditions the necessity of calling special witnesses to testify about this or that organization can take place only as a source of supplementary and even eventual evidence. And even then the Tribunal has stated in Article 9 that it is up to the Tribunal to acquiesce in or to refuse the calling of witnesses or the introduction of supplementary evidence. It is impossible to deny the possibility or the necessity of supplementary evidence with regard to any criminal organization. The Charter of the Tribunal states very definitely that after the indictment has been made, the Tribunal will do that which it considers necessary with regard to the Prosecution’s request for declaring this or that organization criminal. Any member of an organization has a right to request that the Tribunal permit him to be heard on whether the organization was criminal. However, this was introduced into the Charter of the Tribunal for the sake of justice. It now appears that this article is used for other purposes. If what has been provided for in Article 9 extends widely enough and if it already provides for calling witnesses with regard to the criminality of this or that organization, in substance the evidence submitted by the prosecutors of the four countries has already given enough exhaustive reasons for the Tribunal to recognize the organizations indicated in the Indictment as criminal. At the same time it seems expedient that the Tribunal should publish Article 10 of the Charter explaining that to declare an organization criminal does not necessarily lead to an automatic bringing to trial of all members of that organization without exception. It means that all questions about bringing any member to trial and about the responsibility of individual members will be decided by the national tribunals.
This is all I wanted to state, in addition to what has been stated by my colleagues.
THE PRESIDENT: Have the defendants’ counsel arranged among themselves in what order they wish to be heard?
DR. KUBUSCHOK: As counsel for the Reichsregierung, which has first place in the Indictment as a “criminal organization,” I have, according to the decision of the Court, the duty of presenting my opinion in regard to the presentation of evidence. Since, in so doing, I have to discuss general points of view which affect in the same way all the six organizations under Indictment, it is probable that my statements will in the main constitute the opinion of other defendants’ counsel. However, they reserve for themselves the right to express particular and supplementary opinion.
The Defense understand the decision of the Court of 14 January 1946 to mean that at this stage of the procedure the Defense should not produce detailed arguments against the Indictment as it has been lodged by the Prosecution and as it has been explained today, also against the concept of criminal organizations in the sense of the Charter or against other hypotheses of a declaration of criminality, but should only express their opinion on the question of what evidence is relevant and how the evidence shall be presented. Therefore, I shall speak about the basic questions only insofar as this seems necessary today in this particular connection. First of all, I shall speak about the contents and the effect of the requested verdict.
The six organizations under Indictment are, according to the request of the Prosecution, to be declared criminal organizations in their entirety. A request of that kind and the proceedings pertaining to it would represent something unprecedented in the jurisprudence of all states.
As we know, this request is not uninfluenced by the fact that, contrary to other nations, in England and even more so in the United States, even companies and corporations as such can be prosecuted in some cases for reasons of expediency. This is a legal development called for by the dominant position which companies and corporations have acquired, above all, in economic life. This position made their punishment seem desirable in certain cases. They were affected by this punishment, however, only to the extent to which they could be affected in their economic sphere, that is to say, by the imposition of fines. This also concerns only definite offenses, mostly in the field of administrative law.
The American Chief Prosecutor and the other chief prosecutors have cited a large number of precedents, even from German jurisprudence, in which organizations are said to have been declared criminal. In these precedents—and that is the decisive factor—the defendants convicted as criminals were always individual persons, never organizations as such. But a criminal procedure such as this one would have to deal most seriously with the organizations as such, as well as with all the members who are not indicted personally that is—I now refer to Law Number 10 of the Allied Control Council—would have to pronounce the most severe sentence, the sentence of death; such a procedure has never before in the history of jurisprudence been either discussed or applied.
The organizations under Indictment are organizations which differ greatly in their structure. I do not have to discuss further today whether they always represented an organically constructed unit. For this Trial the essential thing is that the organizations under Indictment have been dissolved by a law of the Military Government, and therefore, no longer exist. What still exists are only the individual former members who, therefore, in reality are the actual defendants and have simply been brought together under the name of the former organization as a collective designation.
But independent of this question of the nonexistence of the organizations, it can be seen from the outcome of the procedure that this is indeed a collective procedure against the individual members of the organization, and this for the following reasons:
First, to declare an organization criminal means the outlawing and branding as criminal, not only of the organization as such, but, above all, of each individual member. Such a declaration, therefore, means a final sentencing of each individual member to a general loss of honor. This effect of the outlawing and branding is unavoidable and ineradicable, especially if that verdict is spoken by so important a court as the International Military Tribunal before the forum of the world public. The effect of the outlawing would apply to each member of the organization and would cling to him, regardless of whether the subsequent proceedings, as provided for in Article 10 of the Charter, were carried out against the individual members or not.
Second, in respect to legal procedure, the verdict that has been asked for provides the possibility of a criminal penalty for each individual member of the organization. In the subsequent proceedings, according to Article 10 of the Charter, the criminal character of the organization will be considered conclusively determined.
In execution of this, Law Number 10 of the Allied Control Council, of 20 December 1945, has in the meantime been issued. According to this law the mere fact of having been a member of an organization which has been declared criminal by the International Military Tribunal renders liable to punishment as a criminal each individual member. Penalties ranging from the highest fines to compulsory labor for life and the death penalty are provided.
The proceedings according to Law Number 10 are concerned only with determining membership and bases the punishment on this. In these proceedings only grounds for personal exoneration, such as irresponsibility, error, or coercion can be discussed. But these concern only the membership as such and will apply only in a very few cases.
Whatever concerns the character of the organization, the criminal aims and actions of members of the organization, especially the individual member’s knowledge of these—all these are matters which will not be discussed in the proceedings any more according to Law Number 10. In the proceedings against the organizations a binding declaration has been made. Therefore, the proceedings against the organizations anticipate the biggest and most important part of the proceedings against every individual member, while the subsequent proceedings, according to Law Number 10, to all intents and purposes only draw conclusions.
In connection with the question of the effect of the verdict, the numerical aspect should also be touched upon.
The SA at the beginning of the war in 1939 had about 2.5 million active members, to which should be added, let us say, 1 to 2 million, representing those who during the preceding 18 years, either quit the SA or had to leave because of their military service; therefore, in all, up to 4.5 million.
As far as the SS is concerned, my colleagues have not yet been able to give a final estimate. It will have to be considered that the Waffen-SS alone had an active membership of several hundred thousand men at any given time. If we take into account the losses due to the war, which were very considerable but which to a certain extent were assessed in the proceedings, we find in the case of the SS as well that the figure runs into millions.
The Leadership Corps always had, after 1933, a fixed membership of about 600,000 to 700,000 members. Changes in the official personnel were very frequent. We have to take into account that the membership changed at least twice during the entire period, so that here also the complete figure will be about 2 million.
The entire figure covered by these proceedings is therefore very large. The reduction which the Tribunal has today thought fit to make would not reduce that number to any very large extent. Basically, it will certainly make no difference whether this very large number which I have just mentioned will include a half, a third, or a quarter of the adult male population of Germany. If we consider the war losses among these age groups, we can say with great certainty that the Indictment will actually include a very considerable part of the adult male German population.
I shall speak now about the concept “criminal organization.” The necessary condition for an organization’s being declared criminal is the criminal character, as appears in Article 9, Paragraph 2, of the Charter. The Charter does not interpret either the concept “criminal character” or that of “criminal organization.” If we ask by means of which legal system this gap in the Charter should be filled, then, according to the general principle of lex loci, German law first of all has to be considered. But that is of no avail, because these two concepts, according to every legal code in the world, also represent a terra nova in criminal law. Here, too, the Defense reserve for themselves the right to express their considered opinion at the time of the final pleadings.
In any case, we are of the opinion that because of its already-mentioned, far-reaching consequences the declaration asked for can be made justly and fairly within the framework of the validity of the Charter only if: (1) the original purpose—that is, the constitution or the Charter of the organization—was directed to the commission of crimes in the sense of Article 6 of the Charter, and if this purpose was known to all members; or (2) in case the original purpose of the organization was not criminal, if all members during a certain period of time knowingly participated in the planning and perpetration of crimes in the sense of Article 6 of the Charter. Here, also, it is necessary that the development should have been such that these crimes represent typical actions of the organization, for only then can we speak of a criminal nature as applicable to an organization as well as to an individual human being.
According to this interpretation, the concept “criminal organization” in the sense of Articles 9 to 11 of the Charter is in large part identical with the concept “criminal conspiracy” which plays an important role in the former German and Italian criminal law; also with the concept “conspiracy,” with or without action for its execution, in English or American common law; also with the concept “Mordkomplott” (conspiracy for the purpose of committing murder) in the sense of Paragraph 49-b of the German Penal Code; and, finally, with the concept of a “Common Plan or Conspiracy” in the sense of Article 6 of the Charter, here also with or without action for its execution.
All these penal codes have in common that judgment can be delivered only against those persons who have taken part in the criminal organization knowing its purpose.
In my opinion, negligence cannot be sufficient when passing judgment subjectively because of the general principle that in cases of serious crimes—and in this case the penalty may be death—there must always be full proof, and that negligence cannot be sufficient. Therefore, as a matter of principle, it has to be required in these present proceedings that an organization under Indictment can be declared criminal only if it has been ascertained that: Firstly, the aims of the organization were criminal in the sense of Article 6 of the Charter, and, furthermore, that all members at least knew of these criminal aims. This is also necessary for the reason that, as has just been said, this Trial before the International Military Tribunal represents the essential main part of the criminal proceedings which will ascertain the guilt of each individual member of the organizations.
Justice does not permit that those members who did not possess the aforementioned knowledge and who are therefore innocent be included in a verdict. And this will not lead to that consequence mentioned by Justice Jackson, namely, that a rejection of the verdict would mean a triumph for those who are guilty. I am of the opinion that the guilty ones, regardless of their number, should be brought to punishment. Despite all considerations of expediency, the issue should not be that along with the guilty ones an enormous number of innocent persons also be punished.
Therefore, to come to the core of the question, this is to be regarded as relevant. The relevancy and admissibility of evidence depends on a definition of the criminal organization and of its criminal character. On the basis of my definition I contend that the following points are relevant:
(a) That the organizations, according to their constitution or statutes, did not have a criminal composition and did not pursue any criminal aims in the sense of Article 6 of the Charter.
(b) That within the organization, or in connection with it, crimes in the sense of Article 6 were not, or at least not continuously, committed during a certain period of time.
(c) That a certain number of members had no knowledge of any possible criminal constitution or criminal purpose, or the continuous commission of crimes according to Article 6, and that they also did not approve of these facts.
(d) That a certain number of members or certain closed independent groups joined these organizations under compulsion, or pressure, or as the result of deception, or by order from higher authorities.
(e) That a certain number of members without any action on their part became members of these organizations through the bestowal of honorary membership.
Since I know that the questions to be decided represent a terra nova in the field of criminal law, I believe that in the course of the presentation of evidence we shall receive many other suggestions. Therefore it will be expedient if the Tribunal at the present stage of the Trial do not bind and limit themselves by a final definition. I ask rather that evidence be admitted to the greatest extent. In conclusion I come to the question of how the presentation of evidence can be carried out in practice and how the legal hearing of the member can be made possible according to Article 9, Paragraph 2, of the Charter.
The principles valid in criminal procedure in all countries allow every defendant before the court certain rights. The most important principles are the principle of direct oral proceedings and the right to defense and to a legal hearing. Since, according to my statements, the real defendants are the members of the organizations, these rights must be accorded to every member of the organization. In spite of this basic point of view, which will be discussed in still greater detail in our final pleadings, and with all legal reservations, the Defense do not overlook the fact that for all practical purposes that is impossible within the framework of this Trial. A solution must be found, since the Prosecution have lodged the Indictment of the organizations on the basis of the Charter in its present form.
This leads to the necessity of carrying out the proceedings, whereby the aim of all people taking part in the Trial can be only that of finding the best possible solution by getting as close as possible to the universal and, in our opinion, inviolable points of view. In this connection the Defense in the same way as the Prosecution are gladly aware of their duty to work constructively towards a decision by the Tribunal.
If, now, the enormous number of people who are affected by the Indictment gives rise to tremendous difficulties which prevent a reasonable solution of this problem, an adequate basis for judgment of the aims of the organizations, as well as of the actions and the subjective attitude of the individual member of the organization, must nevertheless be found.
In order to make any headway in these proceedings, an attempt must be made to attain a result in respect to the collective membership by fixing certain types. We do not fail to recognize the great difficulties which confront the passing of a just sentence when a typical aspect is taken as the basis for judgment. Every attempt to attain, on the basis of a large number of individual witnesses to be brought before the Court, a clear picture of that which is typical would be unavailing. The only way, in our opinion, is to separate the presentation of individual evidence, in respect to time and place, from this Tribunal.
One way of achieving this would be an exact interrogation of the individual members at the places where—this would apply to most of the organizations—at present large numbers of them are being kept in internment in the various camps. We believe that the best way to investigate individual cases, and the one most suitable to the Court, would be to assign this work to one or more suitable spokesmen in each camp, that is to say, of course, under the supervision and with the assistance of the Defense Counsel or their assistants, and then bring these spokesmen before the Court as witnesses so that they may give a picture of the activity and attitude of the individual members.
We believe that the way to get as clearly and conscientiously presented a picture as possible would be for these spokesmen to get from the inmates of the camps affidavits about the main points of Indictment which have been specified by the Prosecution. The spokesmen could then, as witnesses, say under oath what percentage, on the basis of these affidavits of the individual inmates of the camps, had taken part in the criminal actions mentioned in the Indictment or had known anything about them. Certainly there are certain difficulties connected with this which will also have to be considered.
In order to get a true picture, one will have to relieve the individual inmates of the suspicion that through a truthful testimony submitted to the Prosecution they might be offering material which could be used against them personally.
We consider it therefore necessary that insofar as these affidavits are to be presented to the Court as documentary evidence, the Prosecution should make a statement that this material will not be used for the purpose of criminal proceedings against persons. This statement would naturally not involve any immunity for individual members; but the individual inmate of the camp would be assured that the affidavit made by him under oath does not establish his guilt as far as future criminal proceedings are concerned.
If the Prosecution do not want to accept this proposal, there would still be the possibility, without submitting these documents, of using the testimony of the spokesmen, who could give information as to the percentage of the people who took part or did not take part in criminal activities or plans.
THE PRESIDENT: Since you have not finished, I think we had better adjourn for 10 minutes.
[A recess was taken.]
DR. KUBUSCHOK: Before the recess I referred to a suggestion for getting information about the actions and the attitude of the members by means of typical facts. I continue.
This taking of evidence would have, for practical purposes, to extend to a sufficient number of camps in all the zones of occupation. From the results of this taking of evidence a conclusion could then be drawn, on the basis of what is found to be typical, as to the criminal activity and attitude of the individual member of the organization, and at the same time, a conclusion as to whether or not the organization had a criminal nature.
If the Prosecution are in agreement with the Defense so far, I believe that I have perhaps found in this way a means of collecting the relevant evidence, including all positive and negative elements.
To whatever extent the hearing of inmates of camps does not suffice, which might be true of the one organization or the other, the hearing of members of the organization who are not in custody might have to be considered. Here, too, a proper way could probably be found which would likewise make possible and easier the execution of the tasks of the Tribunal.
DR. SERVATIUS: I, too, should like to take a stand on the questions now being discussed before the Court. I am not at present in a position to take a stand on the profound and well-presented statements which Justice Jackson has made here. I should not like to make a brief and less carefully thought-out answer, but the Court will understand that I and a number of my colleagues desire to put our case after studying the material and the laws. Perhaps the Tribunal will give us the opportunity to do this very shortly.
I should like now to take a stand on these questions along more technical lines, in order to fulfill my duty and on behalf of the Defense to take a clear stand on these clear questions.
In the first question it was asked what evidence is to be admitted and what particular evidence should be presented here in the main trial before this Tribunal.
The answer is this, that all evidence is relevant which is of significance for the determination of criminality. If one examines the concept “criminal” it is seen that there is no factual situation as defined by criminal law, nor can there be any, for it is not a question of determining the factual elements but rather of a judgment as to whether an act is criminal in the same way as judgment as to whether something is good or bad. Consequently, the Charter does not oblige the Tribunal to pass sentence and declare such-and-such to be criminal, but rather it states that the Tribunal “may” pass such a sentence, but not that it “must” reach such a decision.
It can thus be seen that the Tribunal is here confronted with a task which is basically different from the activity of a judge. A judge is obliged, when certain facts determined by law are put before him, to pass sentence, but this Tribunal is to determine the culpability of a set of facts, on the basis of which the judge will later pass sentence.
Such a task is, however, that of a legislator and not of a judge. The Tribunal here determines what is deserving of punishment and thereby creates a law. In this way the Tribunal also creates that basis for the procedure which Justice Jackson mentioned in a former address of his—the basis for procedure in the subsequent individual trials.
It is this basis for procedure which the legislator gives to the judge who is to deliver judgment. In such a case the burden of proof is likewise reversed, as Mr. Justice Jackson also has constantly mentioned. It is as if a thief were before the court—his objection that theft is not punishable, that “possession is theft,” would be questioned.
That the activity of this Tribunal is legislative can also be seen from the fact that, without setting up the Tribunal, the signatory powers could just as successfully have determined that all members of organizations could be brought before a court because of their membership.
Law Number 10 of the Allied Control Council, that has often been mentioned today, corroborates this interpretation, since it constitutes the law for carrying out the skeleton law expected of this Tribunal. The examples of the criminal nature of the organizations that have been given here in Mr. Justice Jackson’s address today show again and again that it is a question of laws and not of judgments.
It is also characteristic of the legislative function, that in all discussions considerations of expediency take first place and Justice Jackson asked in a previous statement that the verdict should provide the means to proceed against the members of the organizations.
It is seen that the Court must deal with de lege ferenda considerations on an ethical basis. But it must be proved that the members of the organizations are punishable, and “punishable” is equivalent to “criminal.”
In order to determine the factual elements, the judge brings evidence. As legislator, the Tribunal must collect the material for legislation. The judge can, on the basis of the legally proscribed criteria, easily determine what is relevant as proof of these criteria and what he therefore must admit as proof.
It is characteristic that such a determination here in this matter makes for difficulties. The legislator proceeds differently from the judge. He studies the facts to see if they deserve punishment, and for him all those facts are relevant which are of significance for the contents of his law.
In this matter he must have an over-all picture of the entire problem and must take into consideration both the good and bad aspect of the matter to be judged.
The basic principle of justice is that only the guilty be punished. If the legislator wishes to achieve this, he must examine whether only guilty people will be affected by his laws. He must therefore also investigate the objections which any person affected by his law might make. The innocent person is protected in this way, that in the individual case the guilt of the individual must be proved unless the legislator actually has in mind responsibility without guilt.
Every killing of a human being is punishable, but whether the person is guilty has to be proved. He can avail himself of the so-called objection that the death was not intentional. If the legislator does not want to permit such an objection, then he must himself examine the material that leads to such an extraordinary measure. The extent of the material to be examined, that is, the taking of evidence, depends on the contents of the law that is to be passed. Inasmuch as in the subsequent individual trials all objections remain open, the Tribunal does not have to concern itself with them. But the Tribunal must consider to what extent the innocent person in the individual trial will have legal guarantees which protect him from an unjust punishment.
It is absolutely necessary for the Tribunal also to examine every submission which the individual member cannot bring in the subsequent proceedings.
In anticipation of these powers of the Tribunal, it has already been determined by Law Number 10 mentioned above that every member can be punished. Thereby these punishments, of which we have heard in the previous speeches, have already been determined. It thus appears as if the Tribunal could only pass a judgment en bloc without having any right to modify it, and consequently without possessing any influence on the legal effect of its verdict. But such a concept is in contradiction to the basic idea of the Yalta Conference, which was that of transferring to the Tribunal the legislative powers of the signatories, with the express purpose of vindicating this principle of justice, namely, that only the guilty be punished, on the basis of examination of the facts through the hearing of the members in question. Consequently the Tribunal must have a right to determine in individual cases the basic conditions for punishability, and to determine the objections which should remain open to the individual, and the Tribunal must also be able to limit the effect of its judgment by regulation of the punishments.
I believe that Mr. Justice Jackson expressed an opinion today which does not contradict this.
According to the sense of the Charter, the Tribunal is not permitted to transfer its responsibility to the individual courts by simply leaving for all practical purposes the decision to these courts which because of their composition may have quite different legal views.
The members of the organizations have been granted that very right to be heard here before the International Military Tribunal and particularly because of the significance of the judgment, which in all cases contains a grave moral condemnation. To what extent then should the Tribunal concern itself with the material for this taking of evidence? I believe that the Tribunal, in order to determine what is deserving of punishment, must investigate that which is typical, while the purely individual can be left to the subsequent proceedings.
This separation of the typical from the individual, however, is not easy, for the submission of the members often has a double significance. Thus the submission of a member that he did not know about the criminal nature of the organization could mean, on the one hand, that such purpose never existed, or, on the other hand, that the member had no knowledge of that purpose which was really there. The first is an objection which concerns the organization, the second a purely personal objection.
On the basis of these arguments I should like to answer the Tribunal’s first question as follows:
The factual elements of criminality as defined by criminal law cannot be found here; the determination of criminality is the determination of punishability as a legislative task of the Tribunal. Examination of evidence in the procedural sense is in reality the examination of the legislative material including the objections of the members of the groups and organizations. To what extent the Tribunal itself must examine the material depends on the scope and the effect which it intends to give and which it is able to give to the verdict. Only that which is not typical and which is not of importance as far as de lege ferenda considerations are concerned, only that can be left to the individual trials.
To Questions 2 and 3: Under Point 2 and 3 the Tribunal puts a question regarding the limiting of the groups of members and the limiting of the length of time of the criminality. Both questions touch the same problem, namely, whether such a limitation is dependent on a motion on the part of the Prosecution, or whether the Tribunal itself can limit the contents of its verdict.
I believe Mr. Justice Jackson today expressed the opinion that the Tribunal has the power to make such a limitation. But, as regards the political leaders, the Prosecution reserve to themselves the right, in the case of a limitation of the groups of members as proposed by them, later to introduce other trials against these members who are now being excluded or to take other measures.
However, such a right is not given to the Prosecution in the Charter. It also stands in contradiction to the natural powers of the Tribunal of including in its decision an acquittal—a power which cannot be eliminated by reservation made by the Prosecution. The evidence material to be examined also cannot be limited through such a limitation as proposed, for the judgment delivered on the indicted organizations must include these organizations as a whole. It is not permissible to seize upon merely the unhealthy elements of groups during a period which was not typical and still declare the organization criminal.
That which is to be considered a group or an organization does not depend on the discretion of the Prosecution, as is also seen in Article 9, Paragraph 1, of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants. This can only be understood to mean that the membership of the organization must be influenced by the actions of one of the major defendants at a given time. However, this is not for the Prosecution but for the Tribunal to decide.
Accordingly, I should like to answer Questions 2 and 3 as follows:
Question 2: A limiting of the incriminating period does not depend on a motion of the Prosecution. The Tribunal itself can and must limit the length of time, if the organizations or groups were not deserving of punishment throughout the whole period of their existence. If the actions of the main defendant, as a member of the organization, were not incriminating during the whole period of the existence of the organization, then such a limitation must follow.
Question 3: For the limiting of the groups of members the same applies as for the limiting of the period of time.
The Tribunal can, on the basis of its own powers, limit the effect that its verdict will have in the case of all groups and organizations. It must undertake this limitation, if the actions of the main defendant in his capacity as a member of the organization are not to incriminate certain groups of members. A limitation of the Indictment or of the effect of the verdict does not limit the evidence material which is the basis of the judgment.
These were the remarks I wanted to make in answer to the questions of the Tribunal. I should like now merely to take a stand on a question that has also been brought up today, namely, the application for a legal hearing, if the Tribunal permit me to discuss this question. According to Article 10 of the Charter, every member of an organization can be brought to trial, if the organization has been declared criminal. The decision is left up to the Tribunal. The essential task of the Tribunal is the hearing of the members. Without this hearing a sentence is not possible. That is the basic condition without which the proceedings cannot be carried out. So far, the Defense has about 50,000 applications from the millions of members. In order that the Tribunal should not draw the false conclusion that the overwhelming majority of those affected admit their guilt by remaining silent, I must emphasize that such guilt will be most passionately denied by all those affected.
I shall therefore go into the reasons why so few applications have been submitted, and I shall show that this is not the fault of those affected or the result of negligence. Not a lack of interest or disrespect of the Court but rather certain clear facts are responsible for this lack of response.
The announcement in the press and over the radio at the beginning of the proceedings regarding the right to be heard was made at a time when there were practically no newspapers in the destroyed cities and radios were a rarity.
In addition, because of the paper shortage, it was made in small print and for the most part was simply not understood. The Tribunal ordered an announcement to be made in the internment camps, where a great number of the people affected are concentrated. To what extent this announcement actually was made, I have not yet been able to determine. Mr. Justice Jackson showed various documents this morning and from them I shall be able to inform myself. The fact that so few applications have been made gives cause for concern. But even those people who have obtained knowledge of their right have apparently not been able as yet to make applications to the Court. At the time of the announcement there was no postal service between the various zones, and there are still no postal connections with Austria, where there are probably tens of thousands of men in custody.
In the announcement to the organizations, because of the lack of postal facilities, two additional ways were provided for submitting these applications. Both of them proved to be insufficient and are the main reason why we have so few applications. Those members who are not in custody were to submit their applications through the nearest military office.
I know of no case in which an application was made in this way. The attempt to use this procedure failed because of the lack of co-operation on the part of the offices. I could give an example of this.
The interned members were to submit their applications through the commanding officer of their camp. Only in the case of a few camps, weeks and months after the beginning of the Trial, were applications, which had been made in November, received, and even then only from some of the camps in the American and British zones and from a camp in the United States. From the Soviet, Polish, and French zones, as well as from Austria and other camps in foreign countries where there are camps, no applications have as yet been received, so far as I know. I shall leave it to the Tribunal to form its opinion of these facts.
The uniformity of the circumstances shows, however, that it cannot be the fault of the members of the organizations. Of the many difficulties I should like to give only one striking example, which will give an insight into the situation. In one camp about 4,000 members of various organizations asked in November 1945 to be permitted to make use of their right. A few days ago I was told in the camp by a guard officer that at that time no applications were permitted since those in custody, according to the rules of the camp, could not communicate with anyone outside the camp. An army order would have been necessary for transmissions of the applications, but there was no such order and present restrictions were strictly adhered to.
Another reason for the nonarrival of applications is the fact that those concerned feared certain disadvantages. There was the fear that the CIC would take action against the applicants because of their applications. This fear was inspired particularly by the fact that the announcement of the right to make applications was accompanied by the notice that the applicants would not be granted immunity of any kind. The effect of this is seen particularly in the case of those members not in custody, from whom only very few applications have been received, and these very often submitted anonymously or under false names.
It would be welcome if the Tribunal could inform the public that such fears are without foundation, and that the participation of all is sought so that a false decision can be avoided. Thereby the inadequacy of the present procedure for making applications would be remedied.
From all this it can be seen that the first stage of the making of applications has already shown itself to be so inadequate that the legal hearing is a mere illusion. But even those applications that have been received are, with a few exceptions, worthless, and for the following reasons: On the basis of the applications the Tribunal is to decide whether persons should be heard. But for practical purposes this can happen only if these applications state the reasons. Such reasons are either entirely lacking in the applications or they are useless. An application without contents or an application which contains in the main mere asseverations and figures of speech can form no basis for a decision.
Some of the applications do not even mention the official function of the member in the organization or his civilian profession. This faulty sort of application can obviously be traced back in the case of the men in custody to an order issued by the camp commander which permitted only collective or group applications or prescribed certain forms to be followed. All those affected, whether in custody or not, were not able to set out their reasons intelligently, because those accused know only that their organization is said to have been criminal, but they do not know in what this criminality consists. Insofar as detailed statements were made, in single cases, they are based on assumptions.
In order to relieve the situation, Defense Counsel have visited various camps known to them to clear up the matter and to get practical information. I shall not go into the difficulties which had to be overcome. I do not want to discuss the limitation placed on the length of time that we could stay in the camp and similar things; but I must mention that the visits to the camps have been without success insofar as I have not yet received the sworn affidavits and the other written statements of the members made subsequent to our visit, although I know that in one case they were handed over to the camp commander.
In these circumstances the fact is that today, 3 months after the beginning of the Trial, the technical basis for the procedure for hearing the members is not yet in existence. Defense Counsel for the large organizations are also hardly in a position to make up for this delay in a short period of time. On the other hand, the actual material is extremely comprehensive, as in the case of the political leaders, where there are about fifteen to twenty categories, such as the Workers’ Front, Propaganda Section, Organization Section, and so forth, which must be examined as to their functions and as to their criminal character. None of this can be neglected, and even the appearance of a less careful treatment must be avoided. I shall not discuss the difficulties which confront the Defense Counsel as a result of the fact that Defense Counsel now for the first time learn from the Prosecution of certain legal questions.
The members in custody are particularly interested that their case be decided quickly. Nevertheless, I am compelled by prevailing conditions to make a motion, namely, that the proceedings against the groups and organizations that are to be declared criminal be separated from the main trial and be carried out as a special subsequent trial. This motion is also compatible with the particular nature of the trial as I discussed it at the beginning of my remarks.
I should like to add to my motion a suggestion as to how the legal hearing might be made possible. This proposal of mine is occasioned by the proposal made this morning for carrying out the hearing by means of a “master,” that is, I assume, a legal officer of the Allied armies.
I cannot object too energetically to this suggestion. In my opinion, it is one of the main rights of a Defense Counsel to collect his own information, and it is the right of every defendant to speak with his counsel. It would be incomprehensible that the Allies, who are concerned with the prosecution, should at the same time work for the Defense. One cannot expect that an officer, despite any amount of objectivity, could be so objective in his feelings that he would give information to the defendant and have an understanding of the latter and his feelings.
My proposal is this: That each camp should have a German lawyer who receives his information from the main Defense Counsel and instructs the members interned in the camp and collects information. Then, in a relatively short period of time, a selection of material can be made by the Defense Counsel—a selection of the persons who can appear here as well as of the material that can be submitted of the latter and his feelings.
In the proposal made here this morning by the Prosecution I see an elimination of the Defense Counsel, and I should have to ponder a long while as to what stand I, on behalf of the Defense, would take to such a proposal.
DR. RUDOLF MERKEL (Counsel for the Gestapo): Regarding the general questions concerning the admissibility of declaring an organization criminal, the technical procedure for the submission of evidence, and the criminal character of the organizations in general, I refer to what my colleagues Dr. Kubuschok and Dr. Servatius have said. I have just a few additional statements to make.
Regarding the question of applications, I can say from my own experience that it has seemed strange to me, too, that the length of time between the formulation of applications in the individual camps and the arrival of these applications in the hands of the Defense is so extremely long.
To mention one example, a few days ago we received applications from a camp in Schleswig-Holstein, some of which were drawn up in November and December. I, myself, in order to get information, sent letters to the camps. I sent them 5, 6, and 7 weeks ago and I have so far received no answer.
In Camp Hersbruck, for example, I know that in November an application for a hearing, with reasons given in detail, is said to have been sent by members of the SS and Gestapo to the Defense Counsel—this has been confirmed to me by reliable sources. Neither the Defense Counsel of the SS nor I have received this application.
Very few applications have been received from members of the Gestapo. In my opinion one of the reasons is that the far greater number of internees doubtless do not know that they are being represented and defended in this Trial, for the announcement sent to the camps was made in November of last year. Defense Counsel for the organizations were not appointed until the decision of 17 December 1945. The correctness of my opinion can be seen conclusively, I believe, from the following: About three weeks ago in a German newspaper, the Neue Zeitung, an article appeared regarding this question of the organizations and in this article it states, word for word: “The organizations, as is, of course, well-known, are not represented in the Nuremberg Trial.” Thus, if not even the press knows of the fact that Defense Counsel for the organizations have been sitting here in the front row for months and have often spoken here from the lectern, what can one expect the individual internees, who are living in camps hermetically shut off from contact with the rest of the world, to know about the facts of the Defense? That is what has to be said on this point.
I, also, by the way take the point of view that the question whether the organizations in their entirety can be indicted here is an absolute terra nova in the history of jurisprudence and that it is something which in its extent and its scope and in its effects shakes the very foundations of jurisprudence. In addition, as has been mentioned, organizations are to be judged which ceased to exist almost a year ago. In the criminal procedure of all civilized countries it is a basic condition that the defendant still be alive; proceedings cannot take place against a dead defendant.
According to Mr. Justice Jackson’s statements today, the organizations of the Gestapo and SS, for example, are to be held responsible for the liquidation of the Jews in the East; and it is pointed out that because of the death of millions of Jews and the impossibility of determining who the individual perpetrators were, the organizations as such must be judged in order that the guilty be punished. Of course, the Defense holds the conviction and takes the point of view that the guilty must be punished, but only the guilty. It is a fact, for example, that an Einsatzgruppe of the SD, whose task it was to solve the Jewish problem in the East, contained on the average only about 250 members of the Gestapo. Considering the total number of 45,000 to 50,000 members of the Gestapo, this figure is thus a very small one. In the case of a general verdict against, for instance, the Gestapo, more than 45,000 people would be affected who had absolutely nothing to do with this matter. I refer to the example of a mass murderer who cannot be captured, and whose whole family is taken into custody in his stead and condemned.
In view of the very important statements which have been made today by the Prosecution regarding the question of the organizations, I ask the Tribunal for permission, after the record has been received, to state my attitude, if necessary, to just a few other points today; first of all, to the question of the time during which the Gestapo is to be considered criminal. In this connection I must assert that at least until the year 1939 the Gestapo was a lawful, legally established institution. It is also true that the Indictment refers to crimes which can be charged to the Gestapo only after the autumn of 1939, that is, after the beginning of the war.
Today the Prosecution have furthermore excluded secretarial and office workers from the Indictment. I am in agreement with this. It is in accordance with the motion made by me already in December. I submit further that not only the secretarial and office personnel but also all other employees be excepted, because the reason for dropping the charges against the office personnel is doubtless that the Prosecution are convinced that this office personnel had nothing to do with the crimes of which the Gestapo is accused.
It should also be considered whether the administrative officials of the Gestapo, who represented about 70 percent of the personnel of the Gestapo, should be excluded from the Indictment. All of the 500 applications received so far are from such administrative officials. These officials were trained only in the field of administration. They had neither the training nor the knowledge for the making of criminal investigators. They could not be used for the execution of any criminal actions, because they had no executive power. They were active only in matters of personnel and finance—personnel matters such as the appointment of officials, promotions, dismissals, and so forth; matters of finance such as the administering of budget funds, figuring out and compiling salary and wage lists, renting of offices, et cetera. These are all things which have nothing to do with executive power, and especially not with the crimes imputed to the Gestapo by the Prosecution. In my opinion these people are just as entitled to exemption as the secretarial and office personnel, who have already been exempted by the Prosecution.
I should like to touch briefly on one other point of view, that is, the question of voluntary joining of an organization—a question which has played an important role. On 7 June 1945 Mr. Justice Jackson, in his statement to the President of the United States, said, among other things, the following: Units such as the Gestapo and SS were fighting units and consisted of volunteers—people especially suited for and fanatically inclined to the plans of violence of these units. To what extent that is true of the SS, I do not know. As far as the Gestapo is concerned, it certainly is not true, for the Gestapo was a State organization founded by the Defendant Göring on the basis of the law of 23 April 1933. It was a police authority just as was the Criminal Police whose duty it was to track down crimes or the Regular Police who were responsible for controlling traffic. The personnel consisted mostly of life-long career officials, some of whom had been in the police service many years before the creation of the Gestapo, and who, when this police organization was created and in the ensuing years, were ordered to, detailed to, or transferred to this police authority. According to the German law affecting civil servants these officials were obliged to follow such orders. They had never come voluntarily to the Gestapo. At the most there might perhaps have been 1 percent who were voluntary members; but 99 percent of the members were forcibly ordered on the basis of this law.
That is what I have to say at the moment. I should like, however, to reserve for myself the right to speak some time later about today’s discussions.
THE PRESIDENT: Yes, certainly. We will adjourn now.
[The Tribunal adjourned until 1 March 1946 at 1000 hours.]