DR. LÖFFLER: I ask the Tribunal that I be permitted to make one more remark.
In my previous request I did not ask for the exemption of one particular group, namely, the Stahlhelm; this was only because, according to my information, the Stahlhelm was transferred in its entirety to the SA Reserve after the seizure of power and therefore, in my opinion, is included in the declaration made yesterday by Justice Jackson exempting the SA Reserve.
HERR BABEL: May it please the Tribunal, I should have considered it appropriate in the interest of a speedy trial that the Defense not answer the inquiries of the Tribunal and reply to the arguments of the Prosecution until they have received in writing the extensive and important arguments of the Prosecution and are thereby in a position to deal with the whole complex of problems comprehensively and conclusively.
Since a number of Defense Counsel for the organizations have already spoken, I feel prompted to do the same, insofar as I am in a position to do so at this time and consider it necessary and appropriate.
The Tribunal desire to have a discussion in order to define the legal concept of the criminal organization and desire in particular to examine the question of which qualifying elements of a factual nature are necessary in order to declare an organization criminal. The Defense believe that a final and basic definition of this concept, which is entirely new to any legal system, can be given only at the end of the proceedings by means of a special hearing of evidence after all necessary factual information has been collected and examined.
The Prosecution have already presented a definition, which, however, raises very serious objections, because it is derived from legal ideas which have grown in countries other than Germany, under different conditions and circumstances, and which involve far less important legal consequences than those now considered by the Tribunal, the public opinion of the world, the German people and jurisprudence, and jurisdiction in general.
The organizations now indicted are mostly large mass organizations, without aims and ideas of their own, organizations whose Party-political aims and purposes and Party activities developed to national dimensions.
A just and pertinent definition can be found for these organizations only on the basis of the evidence to be presented concerning the nature and aims of these organizations and the knowledge, intentions, and activities of their members. Considering the basic difference of the organizations which have been and are now being investigated, it is more than questionable whether it will be possible to take the legal basis applied so far to single cases as a basis for proceedings against political organizations comprising millions of people.
The Prosecution and the Defense are probably agreed that the Indictment is actually not directed against the organizations, which do not exist any more anyhow, but in fact against the former membership. Likewise the opinion seems to be held unanimously that the Tribunal as a matter of principle will give the members an actual opportunity, not only a theoretical one, to be heard on the question of the criminal character of the organizations; that follows all the more since, according to Law Number 10, the possibility seems to be excluded that the members may make essential objections in regard to the organizations and their own person during the subsequent individual trials. If the Tribunal does not measure the responsibility of the entire organization on the basis of the responsibility of the individuals comprising it, the danger of collective liability arises, which would create such a degree of injustice affecting individuals in such a way that it would be much worse than the justly attacked Sippenhaftung of the Third Reich, which in a criminal way aimed at involving innocent members of the family in proceedings taken against any one of its members.
In order to define a criminal organization, evidence and information as to the knowledge, intentions, and actions of the members of the organizations must be provided; similarly, before convicting individuals, either singly or in the mass, justice and human dignity alike demand that they should each be informed of the indictment and should each have an opportunity to be heard in his own defense. This requirement is imperative in view of the serious legal consequence threatening the members of the organizations in case of a verdict against them, such as loss of property, long-term imprisonment, and even the death penalty.