At any rate, however, in considering the element of negligence one should also not overlook the fact that the obligation to exercise attention differs in the case of ex post facto laws from what it would be in the case of existing laws.
In this connection I should like to refer to the fact that the question of whether the statutes of the Party organizations were illegal or not has often been examined already, even earlier, at the time of the Weimar Republic. Political considerations definitely favored such a declaration. Apparently, legal considerations at that time did not let the carrying out of such a procedure seem practical. What measure should we then apply to the individual member’s ability to judge such matters, if the legal problem is so difficult and lends itself so very much to discussion?
The Prosecution has restricted the motion so as to exclude the auxiliary workers in the case of the Gestapo. The reason for this can only have been that in the case of these members knowledge cannot be assumed to be self-evident. I ask that the conclusions drawn in this individual case be applied to the members of other organizations. Should not the individual member of an organization comprising millions who had far less contact with the executive organ than did an auxiliary worker of the Gestapo—should not this member be judged much more favorably, as far as knowledge is concerned, than this group which has been excepted?
Are we not in particular obliged to use the best methods possible to inform ourselves as to the knowledge or lack of knowledge of the individual member? Sir David, in discussing the problem of negligence, suddenly spoke of an ostrich policy. But here we have to consider that the person who sticks his head into the sand in order not to see has actually seen something and therefore does not want to see any more. It is quite different in the case of this member who from the sources at his disposal can gain no knowledge of individual actions; who, in particular, has no knowledge of whether possibly only. . .
THE PRESIDENT: Forgive my interrupting you, but the Tribunal have already heard and listened with attention to your interesting argument, and the argument that they now are prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, it seems to me that the greater part of what you are now saying is what you have already said. We cannot go on hearing these arguments at great length.
DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should like in conclusion just to introduce one point of view which concerns the defense of the Reich Cabinet. The number of members of the Reich Cabinet is very limited. One half are in the defendants’ dock. Is it really necessary to consider the other half cumulatively as an organization, since the small number of those concerned makes possible an individual trial, with all the legal guarantees given therein? To this extent I should like to refer to the remarks made by my colleague, Dr. Laternser, who mentioned the provision of the Charter that the Tribunal is not compelled to reach a decision but that for reasons of expediency it can refrain from doing so.
THE PRESIDENT: Mr. Biddle wants to ask you some questions.
THE TRIBUNAL (Mr. Biddle): I have just one question. Will you listen to this very carefully?
If the Tribunal find that an organization was being used for a criminal purpose, and certainly, with respect to some organizations, there is ample evidence that might justify such a finding, why, then, would the Tribunal not be justified in holding that organization as a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.
DR. KUBUSCHOK: The organization cannot be separated from the total number of its members. The declaration of criminality in connection with Law Number 10 is to affect each individual member. The task of the Tribunal would not be fulfilled if it limited that task and excluded from the organization unspecified individuals. In the task which I have mentioned we cannot overlook the practical purpose, and that will not be guaranteed if such a limitation is made.