Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08

by Various

The question put to discussion by the Court as to what objections can be made in this collective Trial and what objections can be made later in the individual trials has, in my opinion, been decided already by Law Number 10 to the effect that in the individual objections of a defendant, for example, ignorance of the criminal aims of the organization, cannot be given any consideration.

It is, therefore, necessary that evidence in this present Trial should be admitted to the widest extent possible. It should be made possible for the Defense to rebut, by means of evidence of the factual situation at the date of the respective act, the conclusions drawn by the Prosecution retrospectively from individual acts and facts.

When evidence on behalf of the individual defendants was submitted, the Tribunal declared its readiness to admit evidence if there is only the slightest degree of relevancy. Considering the significance of the decision of this Court for the millions of people affected and for their families, it appears to be an absolutely necessary condition that evidence be admitted to the largest extent possible in order to permit a just verdict, to clarify the facts, and especially to find out to what extent members of the SS participated in any criminal acts according to Article 6 of the Charter.

To clarify the question of whether it is permissible to conclude from the fact of the extent of the indicted actions, as maintained by the Prosecution, that the members of the SS had knowledge of these actions, it will also be necessary to admit evidence to the widest extent possible about the question as to whether or not and, if so, to what extent the members of the SS knew of these actions, as well as evidence of the facts which prove that the members of the SS, like the majority of the German people, did not know anything about these matters, owing to the precautions taken to keep them secret.

The discussions initiated by the Tribunal make it necessary to anticipate essential parts of the final pleadings. A ruling by the Tribunal on the question of evidence would at this time signify a ruling by the Tribunal on an essential part of its future decisions, without any hearing of the evidence on the objections of the Defense having taken place. The Charter has a gap, insofar as it has not defined the facts which qualify an organization as criminal. This gap cannot be filled by admitting evidence only in a certain direction. By doing so the Tribunal would anticipate an essential part of its final verdict.

According to what I have said, I believe that it will be necessary for the evidence to include all elements which might influence the decision of the question as to whether the organization of the SS was criminal. This, however, would hardly be possible within the framework of this Trial which, according to the Charter, is to be conducted as expeditiously as feasible. Therefore, I consider it necessary to separate the procedure against the SS and the SD from the trial of the individual defendants.

On 15 January 1946, partly for other reasons, I made a motion for separation. As far as I know, no ruling has yet been given. I repeat this motion as follows:

Judging from the course of the Trial and the procedure up to now, I have come to the opinion that the Indictment against the organizations of the SS and the SD—for which I have been appointed Defense Counsel by an order of the International Military Tribunal of 22 November 1945—and probably against the other indicted organizations also, cannot be dealt with within the framework of this Trial for factual and legal reasons.

1. So far as the legal aspect is concerned, I restrict myself to a few brief points reserving for myself the right to present additional arguments at a later date:

(a) The International Military Tribunal has no jurisdiction. To this point I should like to remark that a few days ago I learned from a newspaper article that the objection of lack of jurisdiction has already been raised during the session of 20 November 1945 and has been overruled by the Court. I asked for a copy of the record of 20 November 1945—and also of the following days—but I have not received it to date. Therefore, I could not take note either of the motion and the reasons given or of the decision of the Tribunal and its reasons.