DR. HORN: Mr. President, on Monday, when I wished to give my reasons for the application to call Winston Churchill as witness, the Tribunal asked me to submit this in writing so that the Tribunal could make a decision.
The decision that Winston Churchill should not be called as witness was, however, made already on the 26th of February, before the Tribunal received my written application. I assume a mistake has been made, and I ask The Tribunal to reconsider the question in the light of the reasons set out in my written application.
THE PRESIDENT: The Tribunal will reconsider the matter.
Mr. Justice Jackson: Did you propose, Mr. Justice Jackson, to argue first on the question of the organizations?
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): If that is agreeable to the Tribunal, that's definitely our...
We are taking up, as I understand it, the deferred subject of the rules which should guide in determining the criminality of organizations, partly upon our initiative partly in response to the questions propounded by the Tribunal.
The unconditional surrender of Germany created for the victors novel and difficult problems of law and administration. Being the first such surrender of an entire and modernly organized society, precedents and past experiences are of little help in guiding our policy toward the vanquished. The responsibility implicit in demanding and accepting capitulation of a whole people certainly must include a duty to discriminate justly and intelligently between the opposing elements of that population, which bore dissimilar relations to the policies and conduct which led to the catastrophe. This differentiation is the objective of those provisions of the Charter which authorize this Tribunal to declare organizations or groups to be criminal. Understanding of the problem with which the instrument attempts to deal is essential to its interpretation and application.
One of the sinister peculiarities of German society at the time of the surrender was that the state itself played only a subordinate role in the exercise of political power, while the really drastic
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controls over German society were organized outside of the nominal government. This was accomplished through an elaborate network of closely knit and exclusive organizations of selected volunteers, both bound to execute without delay and without question the commands of the Nazi leaders.
These organizations penetrated the whole German life. The country was subdivided into little Nazi principalities of about 50 households each, and every such community had its recognized Party leaders, Party police, and its undercover, planted spies. These were combined into larger units with higher ranking leaders, executioners, and spies, the whole forming a pyramid of power outside of the law, with the Fuehrer at its apex, the local Party officials constituting its broad base, which rested heavily on the German population.
The Nazi despotism, therefore, did not consist of these individual defendants alone. A thousand little Fuehrer dictated; a thousand imitation Goerings strutted; a thousand Schirachs incited the youth; a thousand Sauckels worked slaves; a thousand Streichers and Rosenbergs stirred up hate; a thousand Kaltenbrunners and Franks tortured and killed; a thousand Schachts and Speers and Funks administered and supported and financed this movement.
The Nazi movement was an integrated force in every city and county and hamlet. The party power resulting from this system of organizations first rivaled and then dominated the power of the state itself. The primary vice of this web of organizations was that they were used to transfer the power of coercing men from the government and the law to the Nazi leaders. Liberty, self-government, and security of person and property do not exist except where the power of coercion is possessed only by the state and is exercised only in obedience to law. The Nazis, however, set up this private system of coercion outside of and immune from the law, with Party-controlled concentration camps and firing squads to administer privately decreed sanctions.
Without responsibility to law and without warrant from any court, they were enabled to seize property and take away liberty and even take life itself. These organizations had a calculated part -- and a decisive part -- in the barbaric extremes of the Nazi movement. They served primarily to exploit mob psychology and to manipulate the mob. Multiplying the number of persons in a common enterprise always tends to diminish the individual's sense of moral responsibility and to increase his sense of security. The Nazi leaders were masters of that technique. They manipulated these organizations to make before the German populace impressive exhibitions of numbers and of power, which have already been shown on the screen. They were used to incite a mob spirit and
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then riotously to gratify the popular hates they had inflamed and the Germanic ambition they had inflated.
These organizations indoctrinated and practiced violence and terrorism. They provided the systematized, aggressive, and disciplined execution throughout Germany and the occupied countries of the plan for crimes which we have proven. The flowering of this system is represented in the fanatical SS General Ohlendorf, who told this Tribunal without shame or trace of pity how he personally directed the putting to death of 90,000 men, women, and children. No tribunal ever listened to a recital of such wholesale murder as this Tribunal heard from him and from Wisliceny, a fellow officer of the SS. Their own testimony shows the SS responsibility for the extermination program which took the lives of 5 million Jews -- a responsibility that that organization welcomed and discharged methodically, remorselessly, and thoroughly. These crimes with which we deal are unprecedented, first because of the shocking number of victims. They are even more shocking and unprecedented because of the large number of people who united their efforts to perpetrate them. All scruple or conscience of a very large segment of the German people was committed to the keeping of these organizations, and their devotees felt no personal sense of guilt as they went from one extreme to another. On the other hand, they developed a contest in cruelty and a competition in crime. Ohlendorf, from the witness stand, accused other SS commanders whose killings exceeded his of "exaggerating" their figures.
There could be no justice and no wisdom in an occupation policy of Germany which imposed upon passive, unorganized, and inarticulate Germans the same burdens as upon those who voluntarily banded themselves together in these powerful and notorious gangs. One of the basic requirements both of justice and of successful administration of the occupation responsibility of our four countries is a segregation of the organized elements from the masses of Germans for separate treatment. That is the fundamental task with which we must deal here. It seems beyond controversy that to punish a few top leaders but to leave this web of organized bodies in the midst of post-war society would be to foster the nucleus of a new Nazidom. These members are accustomed to an established chain of centralized command. They have formed a habit and developed a technique of both secret and open co-operation. They still nourish a blind devotion to the suspended, but not abandoned, Nazi program. They will keep alive the hates and ambitions which generated the orgy of crime we have proven. These organizations are the carriers from this generation to the next of the infection of aggressive and ruthless war. The Tribunal has seen on the screen how easily an assemblage that ostensibly is only a common labor force can in fact be a military outfit training with shovels. The
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next war and the next pogroms will be hatched in the nests of these organizations as surely as we leave their membership with its prestige and influence undiminished by condemnation and punishment.
The menace of these organizations is the more impressive when we consider the demoralized state of German society. It will be years before there can be established in the German State any political authority that is not inexperienced and provisional. It cannot quickly acquire the stability of a government aided by long habit of obedience and traditional respect. The intrigue, obstruction, and possible overthrow which older and established governments always fear from conspiratorial groups is a real and present danger to any stable social order in the Germany of today and of tomorrow.
Insofar as the Charter of this Tribunal contemplates a justice of retribution, it is obvious that it could not overlook these organized instruments and instigators of past crimes. In opening this case I said that the United States does not seek to convict the whole German people of crime. But it is equally important that this Trial shall not serve to absolve the whole German people except 21 men in the dock. The wrongs that have been done to the world by these defendants and their top confederates were not done by their will and their strength alone. The success of their designs was made possible because great numbers of Germans organized themselves to become the fulcrum and the lever by which the power of these leaders was extended and magnified. If this Trial fails to condemn these organized confederates for their share of the responsibility for this catastrophe, it will be construed as their exoneration.
But the Charter was not concerned with retributive justice alone. It manifests a constructive policy influenced by exemplary and preventive considerations.
The primary objective of requiring that the surrender of Germany be unconditional was to clear the way for a reconstruction of German society on such a basis that it will not again threaten the peace of Europe and of the world. Temporary measures of the occupation authorities may by necessity, and I mean no criticism of them, have been more arbitrary and applied with less discrimination than befits a permanent policy. For example, under existing denazification policy, no member of the Nazi Party or its formations may be employed in any position -- other than ordinary labor -- in any business enterprise, unless he is found to have been only a nominal Nazi. Persons in certain categories whose standing in the community is one of prominence or influence are required to be, and others may be, denied further participation in their businesses or professions. It is mandatory to remove or exclude from public office and from positions of importance in quasi-public and private
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enterprises persons falling within about 90 specified categories, deemed to consist of either active Nazis, Nazi supporters, or militarists. Property of such persons is blocked.
Now, it is recognized by the Control Council, as it was by the framers of this Charter, that a permanent long-term program should be based on a more careful and more individual discrimination than was possible with sweeping temporary measures. There is a movement now within the Control Council for reconsideration of its whole denazification policy and procedure. The action of this Tribunal in declaring, or in failing to declare, an accused organization criminal has a vital bearing on this future occupation policy.
It was the intent of the Charter to utilize the hearing processes of this Tribunal and its judgment to identify and condemn those Nazi and militaristic forces that were so strongly organized as to constitute a continuing menace to the long-term objectives for which our respective countries have spent their young lives. It is in the light of this great purpose that we must examine the provisions of this Charter.
It was obvious that the conventional litigation procedures could not, without some modification, be adapted to this task. No system of jurisprudence has yet evolved any satisfactory technique for handling a great number of common charges against a great multitude of accused persons. The number of individual defendants that fairly can be tried in a single proceeding probably does not greatly exceed the number now in your dock. Also, the number of separate trials in which the same voluminous evidence as to a common plan must be repeated is very limited in actual practice. Yet, adversary proceedings of the type in which we are engaged are the best assurance the law has ever evolved that decisions will be well-considered and just. The task of the framers of the Charter was to find some way to overcome the obstacles to practicable and early decision without sacrificing the fairness implicit in hearings. The solution prescribed by the Charter is certainly not faultless, but not one of its critics has ever proposed an alternative that would not either deprive the individual of all hearing or contemplate such a multitude of long trials that it would break down and be impracticable. In any case, this Charter is the plan adopted by our respective governments and our duty here is to make it work.
The plan which was adopted in the Charter essentially is a severance of the general issues which would be common to all individual trials from the particular issues which would differ in each trial. The plan is comparable to that employed in certain wartime legislation of the United States, dealt with in the case of Yakus versus United States, in which questions as to the due process quality of the order must be determined in a separate tribunal and
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cannot be raised by a defendant when he is defending on indictment. Those countries which do not have written constitutions and constitutional issues may find it difficult to follow the logic of that decision, but essentially the plan was to separate general issues relative to the order as a whole from specific issues which would arise when an individual was confronted with a charge of guilt.
The general issues under this Charter are to be determined with finality in one trial before the International Tribunal, and in that trial every accused organization must be defended by counsel and must be represented by at least one leading member, and other individuals may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to a declaratory judgment. It does not decree any punishment either against the organization or against individual members.
The only specification as to the effect of this Tribunal's declaration that an organization is criminal is contained in Article 10, which, if you will bear with me, I will read:
"In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts.
"In any such case the criminal nature of the group or organization is considered proved and shall not be questioned."
Unquestionably, it would have been competent for the Charter to have declared flatly that membership in any of these named organizations is criminal and should be punished accordingly. If there had been such an enactment, it would not have been open to an individual, who was being tried for membership, to contend that the organization was not in fact, criminal. But the framers of the Charter, acting last summer at a time before the evidence which has been adduced here was even available to us, did not care to find organizations criminal by fiat. They left that issue to determination after relevant facts were developed by adversary proceedings. Plainly, the individual is better off because of the procedure of the Charter, which leaves that finding of criminality to this body after hearings at which the organization must, and the individual may, be represented. It is at least the best assurance that we could devise, that no mistake would be made in dealing with these organizations.
Under the Charter, the groups and organizations named in the Indictment are not on trial in the conventional sense of that term. They are more nearly under investigation as they might be before a grand jury in Anglo-American practice. Article 9 recognizes a
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distinction between the declaration of a group or organization as criminal and "the trial of any individual member thereof." The power of the Tribunal to try is confined to "persons," and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose any sentence upon them as entities. For example, it may not levy a fine upon them even though they have property of the organization, nor convict any person because of membership.
It is also to be observed that the Charter does not require subsequent proceedings against anyone. It provides only that the competent national authorities shall have the right to bring individuals to trial for membership therein.
The Charter is silent as to the form that these subsequent trials should take. It was not deemed wise, on the information then available, that the Charter should regulate subsequent proceedings. Nor was it necessary to do so. There is a continuing legislative authority, representing all four signatory nations, competent to take over where the Charter leaves off. Legislative supplementation of the Charter, of course, would be necessary in any event to confer jurisdiction on local courts, to define their procedures, and to prescribe different penalties for different forms of activity.
Fear has been expressed, however, that the Charter's silence as to future proceedings means that great numbers of members will be rounded up and automatically punished as a result of a declaration that an organization is criminal. It also has been suggested that this is, or may be, the consequence of Article II, l(d) of Control Council Act Number 10, which defines as a crime "membership in categories of a criminal group or organization declared criminal by the International Military Tribunal." A purpose to inflict punishment without a right of hearing cannot be spelled out of this Charter and would be offensive to both its letter and its spirit. And I do not find in Control Council Act Number 10 any inconsistency with the Charter. Of course, to reach all individual members would require numerous hearings, but they will involve only narrow issues. Many persons will have no answers to charges if they are carefully prepared; and the proceedings should be expeditious, nontechnical, and held in the locality where the person accused resides and, incidentally, may be conducted in two languages at most.
And I think it is clear that before any person is punishable for membership in a criminal organization, he is entitled to a hearing on the facts of his case. The Charter does not authorize the national authorities to punish membership without hearing -- it
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gives them only the right to "bring individuals to trial." That means what it says. A trial means there is something to try.
The Charter denies only one of the possible defenses of an accused; he may not relitigate the question in a subsequent trial whether the organization itself was a criminal one. Nothing precludes him from denying that his participation was voluntary and proving that he acted under duress; he may prove that he was deceived or tricked into membership; he may show that he had withdrawn or he may prove that his name on the rolls is a case of mistaken identity.
The membership which the Charter and the Control Council Act make criminal, of course, implies a genuine membership involving the volition of the member. The act of affiliation with the organization must have been intentional and voluntary. Legal compulsion or illegal duress, actual fraud or trick of which one is a victim has never been thought to be the victim's crime, and such an unjust result is not to be implied now. The extent of the member's knowledge of the criminal character of the organization is, however, another matter. He may not have known on the day he joined but may have remained a member after learning the facts. And he is chargeable not only with what he knew but with all of which he was reasonably put on notice.
There are safeguards to assure that this program will be carried out in good faith. Prosecution under this declaration is discretionary. If there were purpose on the part of the Allied Powers to punish these persons without trial, it would have been already done before this Tribunal was set up, and without waiting for its declaration. We think that the Tribunal will presume that the signatory powers which have voluntarily submitted to this process will carry it out faithfully.
The Control Council Act applies only to categories of membership declared criminal. This language on the part of the Control Council recognizes a power in this Tribunal to limit the effect of its declaration. I do not think, for reasons which I will later state, that this should be construed or availed of to try any issue here as to subgroups or sections or individuals which can be tried in later proceedings. It should, I think, be construed to mean, not the sort of limitation which must be defined by evidence of details, but limitations of principle such as those I have already outlined, such as duress, involuntary membership, or matters of that kind, which the Tribunal can recognize and deal with without taking detailed evidence. It does not require this Tribunal to delve into evidence to condition its judgment to apply only to intentional and voluntary membership. This does not supplant later trials by the declaration of this Tribunal but guides them.
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It certainly cannot be said that such a plan -- such as we have here for severance of the general issues common to many cases from the particular issues applicable only to individual defendants for litigation in separate tribunals specially adapted for the different kinds of issues -- is lacking in reasonableness or fair play. And while it presents unusual procedural difficulties, I do not think it presents any insurmountable ones. I will discuss the question of the criteria and the principles and the precedents for declaring collective criminality before coming to the procedural questions involved. The substantive law which governs the inquiry into criminality of organizations is, in its large outline, old and well settled and fairly uniform in all systems of law. It is true that we are dealing here with a procedure which would be easy to abuse and one that is often feared as an interference with liberty of assembly or as an imposition of guilt by association. It also is true that proceedings against organizations are closely akin to the conspiracy charge, which is the great dragnet of the law and rightly watched by courts lest it be abused.
The fact is, however, that every form of government has considered it necessary to treat some organizations as criminal. Not even the most tolerant of governments can permit an accumulation of private power in organizations to a point where it rivals, obstructs, or dominates the government itself. To do so would be to grant designing men a liberty to destroy liberty. The very complacency and tolerance, as well as the impotence, of the Weimar Republic towards the growing organization of Nazi power spelled the death of German freedom.
Protection of the citizen's liberty has required even free governments to enact laws making criminal those aggregations of power which threaten to impose their will on unwilling citizens. Every one of the nations signatory to this Charter has laws making certain types of organizations criminal. The Ku Klux Klan in the United States flourished at about the same time as the Nazi movement in Germany. It appealed to the same hates, practiced the same extralegal coercions, and likewise terrorized by the same sort of weird nighttime ceremonials. Like the Nazi Party it was composed of a core of fanatics, but it enlisted the support of respectabilities who knew it was wrong but thought it was winning. It eventually provoked a variety of legislative acts directed against such organizations as organizations.
The Congress of the United States also has enacted legislation outlawing certain organizations. A recent example was on the 28th of June 1940, when the Congress provided that it shall be unlawful for any person, among other things, to organize or help to organize any society, group, or assembly of persons to teach,
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advocate, or encourage the overthrow or destruction of any government in the United States by force or violence, or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.
There is much legislation by states of the American Union creating analogous offenses. An example is to be found in the act of California dealing with criminal syndicalism, which, after defining it, makes criminal any person who organizes, assists in organizing, or is, or knowingly becomes, a member of such organization.
Precedents in English law for outlawing organizations and punishing membership therein are old and consistent with the Charter.
One of the first is the British India Act Number 30, enacted in 1836, which, among other things, provides:
"It is hereby enacted that whoever shall be proved to have belonged, either before or after the passing of this Act, to any gang of thugs, either within or without the territories of the East India Company, shall be punished with imprisonment for life with hard labor."
And the history is that this was a successful act in suppressing violence.
Other precedents in English legislation are the Unlawful Societies Act of 1799, the Seditious Meetings Act of 1817, the Seditious Meetings Act of 1846, the Public Order Act of 1936, and Defense Regulations 18(b). The latter, not without opposition, was intended to protect the integrity of the British Government against the fifth-column activities of this same Nazi conspiracy.
Soviet Russia punishes as a crime the formation of and membership in a criminal gang. Criminologists of the Soviet Union call this crime the "crime of banditry," a term altogether appropriate to these German organizations. General Rudenko will advise this Tribunal more in detail as to the Soviet law.
French criminal law makes membership in subversive organizations a crime. Membership of the criminal gang is a crime in itself. My distinguished French colleague will present you more detail on that.
Of course, I would not contend that the law of a single country, even one of the signatory powers, was governing here, but it is clear that this is not an act or a concept of a single system of law, that all systems of law agree that there are points at which organizations become intolerable in a free society.
For German precedents, it is neither seemly nor necessary to go to the Nazi regime, which, of course, suppressed all their adversaries ruthlessly. However, under the Empire and the Weimar Republic
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German jurisprudence deserved respect, and it presents both statutory and juridical examples of declaring organizations to be criminal. Statutory examples are: The German Criminal Code enacted in 1871. Section 128 was aimed against secret associations, and 129 against organizations inimical to the State. A law of March 22, 1921, against paramilitary organizations. A law of July 1922 against organizations aimed at overthrowing the constitution of the Reich.
Section 128 of the Criminal Code of 1871 is especially pertinent. It reads:
"The participation in an organization, the existence, constitution, or purposes of which are to be kept secret from the government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment."
It would be difficult to draw an act that would more definitely condemn the organizations with which we are dealing here than this German Criminal Code of 1871. I recall to your attention that it condemns organizations in which obedience to unknown superiors or unconditional obedience to known superiors is pledged. It is exactly the sort of danger and menace with which we are dealing.
Under the Empire various Polish national unions were the subject of criminal prosecutions. Under the Republic, in 1927 and 1928, judgments held criminal the entire Communist Party of Germany. In 1922 and 1928, judgments of the courts ran against the political leadership corps of the Communist Party, which included all of its so-called body of functionaries. This body of functionaries in that organization corresponded somewhat in their powers to the Leadership Corps of the Nazi Party, which we have accused here. The judgment against the Communist Party rendered by the German courts included every cashier, every employee, every delivery boy and messenger, and every district leader. In 1930 a judgment of criminality against what was called "The Union of Red Front Fighters" of the Communist Party made no distinction between leaders and ordinary members.
Most significant of all is the fact that on the 30th of May 1924 judgment of the German courts was rendered that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgment, or we might not have been here. This decision referred not only to the Leadership Corps, which we are indicting here, but to all other members as well. The whole rise of the Nazi Party to power was in the shadow of this judgment of illegality by the German courts themselves.
The German courts, in dealing with criminal organizations, proceeded on the theory that all members ware held together by a
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common plan in which each one participated, even though at different levels. Moreover, fundamental principles of responsibility of members as stated by the German Supreme Court are strikingly like the principles that govern our Anglo-American law of conspiracy. Among the statements by the German courts are these:
That it is a matter of indifference whether all the members pursued the forbidden aims. It is enough if a part exercised the forbidden activity.
And again, that it is a matter of indifference whether the members of the group or association agree with the aims, tasks, means of working, and means of fighting.
And again, that the real attitude of mind of the participants is a matter of indifference. Even if they had the intention of not participating in criminal efforts, or hindering them, this cannot eliminate their responsibility from real membership.
Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by application of conspiracy principles. The reason why they are offensive to law-governed people has been succinctly stated by an American legal authority as follows, and I quote from Miller on Criminal Law:
"The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of the people."
The Charter in Article 6 provides that:
"Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."
That, of course, is a statement of the ordinary law of conspiracy. The individual defendants are arraigned at your bar on this charge of conspiracy which, if proved, makes them responsible for the acts of others in execution of the common plan.
The Charter did not define responsibility for the acts of others in terms of "conspiracy" alone. The crimes were defined in nontechnical but inclusive terms, and embraced formulating and
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executing a common plan, as well as participating in a conspiracy. It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term "conspiracy." There are some divergencies between the Anglo-American concept of a conspiracy and that of either French, Soviet, or German jurisprudence. It was desired that concrete cases be guided by the broader considerations inherent in the nature of the problem I have outlined, rather than to be controlled by refinements of any local law.
Now, except for procedural difficulties arising from their multitude, there is no reason why every member of any Nazi organization accused here could not have been indicted and convicted as a part of the conspiracy under Article 6, even if the Charter had never mentioned organizations at all. To become voluntarily affiliated was an act of adherence to some common plan or purpose.
These organizations did not pretend to be merely social or cultural groups; admittedly, the members were united for action. In the case of several of the Nazi organizations, the fact of confederation was evidenced by formal induction into membership, the taking of an oath, the wearing of a distinctive uniform, the submission to a discipline. That all members of each Nazi organization did combine under a common plan to achieve some end by combined efforts is abundantly established.
The criteria for determining whether these ends were guilty ends are obviously those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or purpose illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in the courts of the United States against business men who combine in violation of the anti-trust laws, or other defendants accused under narcotic drugs acts, sedition acts, or other Federal penal enactments.
Among the principles every day enforced in courts of Great Britain and the United States in dealing with conspiracy are these sweeping principles:
No formal meeting or agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action and working together understandingly with a common design to accomplish a common purpose.
Secondly, one may be liable even though he may not have known who his fellow conspirators were or just what part they were to take or what acts they committed, and though he did not take personal part in them or was absent when the criminal acts occurred.
Third, there may be liability for acts of fellow conspirators although the particular acts were not intended or anticipated, if
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they were done in execution of the common plan. One in effect makes a fellow conspirator his agent with blanket authority to accomplish the ends of the conspiracy.
Fourth, it is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of the criminal acts. When one becomes a party to a conspiracy, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators.
Now, those are sweeping principles, but no society has been able to do without these defenses against the accumulation of power through aggregations of individuals.
Members of criminal organizations or conspiracies who personally commit crimes, of course, are individually punishable for those crimes exactly as are those who commit the same offenses without organizational backing. The very essence of the crime of conspiracy or membership in a criminal association is liability for acts one did not personally commit, but which his acts facilitated or abetted. The crime is to combine with others and to participate in the unlawful common effort, however innocent the personal acts of the participants, considered by themselves.
The very innocent act of mailing a letter is enough to tie one into a conspiracy if the purpose of the letter is to advance a criminal plan. And we have multitudinous examples in the jurisprudence of the United States where the mailing of a letter brought one not only within the orbit of the definition of crime, but within Federal jurisdiction.
There are countless examples of this doctrine that innocent acts in the performance of a common purpose render one liable for the criminal acts of others performed to that same end.
This sweep of the law of conspiracy is an important consideration in determining the criteria of guilt for organizations. Certainly the vicarious liability imposed in consequence of voluntary membership, formalized by oath, dedicated to a common organizational purpose and submission to discipline and chain of command, cannot be less than that vicarious liability which follows from informal co-operation with a nebulous group, as is sufficient in case of a conspiracy.
This meets the suggestions that the Prosecution is required to prove every member, or every part, fraction, or division of the membership to be guilty of criminal acts. That suggestion ignores the conspiratorial nature of the charge against organizations. Such an interpretation also would reduce the Charter to an unworkable absurdity. To concentrate in one International Tribunal inquiries requiring such detailed evidence as to each member or as to each subsection would set a task not possible of completion within the lives of living men.
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It is easy to toss about such a plausible but superficial cliche as that "one should be convicted for his activities and not for his membership." But this ignores the fact that membership in Nazi bodies was an activity. It was not something passed out to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly.
Does anyone believe that the picture of Hjalmar Schacht sitting in the front row of the Nazi Party Congress, which you have seen, wearing the insignia of the Nazi Party, was included in the propaganda film of the Nazi Party merely for artistic effect? The great banker's mere loan of his name to this shady enterprise gave it a lift and a respectability in the eyes of every hesitating German. There may be instances in which membership did not aid and abet organizational ends and means, but individual situations of that kind are for appraisal in the later hearings and not by this Tribunal.
By and large, the use of organizational affiliation is a quick and simple, but at the same time fairly accurate, outline of the contours of a conspiracy to do what the organization actually did. It is the only workable one at this stage of the Trial. It can work no injustice because before any individual can be punished, he can submit the facts of his own case to further and more detailed judicial scrutiny.
While the Charter does not so provide, we think that on ordinary legal principles the burden of proof to justify a declaration of criminality is, of course, upon the Prosecution. It is discharged, we think, when we establish the following:
1. The organization or group in question must be some aggregation of persons associated in identifiable relationship with a collective, general purpose.
2. While the Charter does not so declare, we think it implied that membership in such an organization must be generally voluntary. This does not require proof that every member was a volunteer. Nor does it mean that an organization is not to be considered voluntary if the Defense proves that some minor fraction or small percentage of its membership was compelled to join. The test is a common-sense one: Was the organization on the whole one which persons were free to join or to stay out of? Membership is not made involuntary by the fact that it was good business or good politics to identify one's self with the movement. Any compulsion must be of the kind which the law normally recognizes, and threats of political or economic retaliation would be of no consequence.
3. The aims of the organization must be criminal in that it was designed to perform acts denounced as crimes in Article 6 of the Charter. No other act would authorize conviction of an individual
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and no other act would authorize conviction of the organization in connection with the conviction of the individual.
4. The criminal aims or methods of the organization must have been of such a character that its membership in general may properly be charged with knowledge of them. This again is not specifically required by the Charter. Of course, it is not incumbent on the Prosecution to establish the individual knowledge of every member of the organization or to rebut the possibility that some may have joined in ignorance of its true character.
5. Some individual defendant must have been a member of the organization and must be convicted of some act on the basis of which the organization was declared to be criminal.
I shall now take up the subject of the issues, as we see it, which are for trial before this Tribunal, and some discussion of those which seem to us not to be for trial before this Tribunal.
Progress of this Trial will be expedited by a clear definition of the issues to be tried. I have indicated what we consider to be proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal.
Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter that would be exculpating for some members but not for all is, as we see it, irrelevant here.
We think it is not relevant to this proceeding at this stage that one or many members were conscripted if in general the membership was voluntary. It may be conceded that conscription is a good defense for an individual charged with membership in a criminal organization, but an organization can have criminal purpose and commit criminal acts even if a portion of its membership consists of persons who were compelled to join it. The issue of conscription is not pertinent to this proceeding, but it is pertinent to the trials of individuals for membership in organizations declared to be criminal.
Also, we think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods if its purposes or methods were open or notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If a person joined what he thought was a social club, but what in fact turned out to be a gang of cutthroats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly
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be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization. Even then, the test would be not what the man actually knew, but what, as a person of common understanding he should have known.
It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic in the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, is punishment for aiding crimes, although the precise perpetrators can never be found or identified.
We know that the Gestapo and the SS, as organizations, were given principal responsibility for the extermination of the Jewish people in Europe, but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders. Most of them were concealed by the anonymity of the uniform, committed their crimes, and passed on. Witnesses know that it was an SS man or a Gestapo man, but to identify him is impossible. Any member guilty of direct participation in such crimes, if we can find and identify him, can be tried on the charge of having committed the specific crimes in addition to the general charge of membership in a criminal organization.
Therefore, it is wholly immaterial that one or more members of the organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials, and therefore such considerations are irrelevant here.
Another question raised by the Tribunal is the period of time during which the groups or organizations named in the Indictment are claimed by the Prosecution to have been criminal. The Prosecution believes that each organization should be declared criminal for the period stated in the Indictment. We do not contend that the Tribunal is without power to condition its declaration so as to cover a lesser period of time than that set forth in the Indictment. The Indictment is specific as to each organization. We think that the record at this time affords adequate evidence to support the charge of criminality with respect to each of the organizations during the full time set forth in the Indictment.
Another question raised by the Tribunal is whether any classes of persons included within the accused groups or organizations should be excluded from the declaration of criminality. It is, of course, necessary that the Tribunal relate its declaration to some identifiable group or organization. The Tribunal, however, is not expected or required to be bound by formalities of organization. In framing the Charter, the use was deliberately avoided of terms or
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Concepts which would involve this Trial in legal technicalities about juristic persons or entities.
Systems of jurisprudence are not uniform in the refinements of these fictions. The concept of the Charter, therefore, is a nontechnical one. "Group" or "organization" should be given no artificial or sophistical meaning. The word "group" was used in the Charter as a broader term, implying a looser and less formal structure or relationship than is implied in the term "organization." The terms mean in the context of the Charter what they mean in the ordinary speech of people. The test to identify a group or organization is a natural and commonsense one.
It is important to bear in mind that while the Tribunal has, no doubt, power to make its own definition of the groups it will declare criminal, the precise composition and membership of groups and organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a group or organization with such particularity that its precise composition or membership is thereby determined.
The creation of a mechanism for later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions and is likely to be so general as to comprehend persons who, on more detailed inquiry, will prove to be outside of it.
Any effort by this Tribunal to try questions of exculpation of individuals, be they few or many, would unduly protract the Trial, transgress the limitations of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose.
THE PRESIDENT: Would this be a convenient time for you to break off for a few moments?
MR. JUSTICE JACKSON: Yes, Sir.
[A recess was taken.]
MR. JUSTICE JACKSON: The Prosecution stands upon the language of the Indictment and contends that each group or organization should be declared criminal as an entity and that no inquiry should be entered upon and no evidence entertained as to the exculpation of any class or classes of persons within such descriptions. Practical reasons of conserving the Tribunal's time combine with practical considerations for defendants. A single trial held in one city to deal with the question of excluding thousands of defendants living all over Germany could not be expected to do justice to each member unless it was expected to endure indefinitely. Provision for later local trials of individual relationships protects the rights of
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members better than possibly can be done in proceedings before this Tribunal.
With respect to the Gestapo, the United States and, I believe all of my colleagues consent to exclude persons employed in purely clerical, stenographic, janitorial, or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: The Fuehrer, the Reichsleiter, main departments and office holders, the Gauleiter and their staff officers, the Kreisleiter and their staff officers, the Ortsgruppenleiter, the Zellenleiter, and the Blockleiter, but not members of the staff of the last three officials.
As regards the SA, it is considered advisable that the declaration expressly exclude: (1) Wearers of the SA Sports Badge; (2) the SA-controlled home guard units, which were not, as we view it on the evidence, strictly a part of the SA, and there also be excluded the National Socialist League for Disabled Veterans and the SA Reserve, so as to include only the active parts of that organization.
The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions, and that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself committed no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the over-all accomplishment of the criminal enterprise. I should like to discuss the question of the further steps to be taken procedurally before this Tribunal.
Over 45,000 persons have joined in communications to the Tribunal asking to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but my study indicates that the difficulties are greatly exaggerated.
The Tribunal is vested with wide discretion as to whether it will entertain an application to be heard. The Prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice, but to avoid appearance of doing anything less than justice. And we do not consider that expediting this Trial is so important as affording a fair opportunity to present all really pertinent facts.
Analysis of the conditions which have brought about this flood of applications indicated that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of
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the right to appear before it and defend. They were sent to Allied prisoner-of-war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. Investigation shows that the notice was posted in all barracks of the camps, and it also shows that in many camps it was read to the prisoners, in addition. The 45,000 persons who responded with applications to be heard came principally from about 15 prisoner-of-war and internment camps in British or United States control. Those received included an approximate 12,000 from Dachau, 10,000 from Langwasser, 7,500 from Auerbach, 4,000 from Staumuhle, 2,500 from Garmisch and several hundred from each of the others.
We have made some investigation of these applications, as well as of the sending out of the notices, and we would be glad to place any information that we have at the disposal of the Tribunal.
An investigation was made of the Auerbach Camp in the United States zone, principally to determine the reason for these applications and the method by which they came. That investigation was conducted by Lieutenant Colonel Smith Brookhart, Captain Drexel Sprecher, and Captain Krieger, all of whom are known to this Tribunal.
The Auerbach camp is for prisoners of war, predominantly SS members. Its prisoners number 16,964 enlisted men and 923 officers. The notice of the International Military Tribunal was posted in each of the barracks and was read to all inmates. All applications to the Tribunal were forwarded without censorship of any kind. Applications to defend were made by 7,500 SS members.
Investigation indicates that these were filed in direct response to the notice, and that no action was directed or inspired from any other source within or without the camp. All who were interrogated professed that they had no knowledge of any SS crimes or of SS criminal purpose, but they expressed interest only in their individual fate, rather than any concern to defend the organization.
Our investigators report no indication that they had any additional evidence or information to submit on the general question of the criminality of the SS as an organization. They seemed to think it was necessary to protect themselves to make the application here.
Turning then to examination of the applications, these, on their face, indicate that most of the members do not profess to have evidence on the general issue triable here. They assert almost without exception that the writer has neither committed nor witnessed nor known of the crimes charged against the organization. On a proper definition of the issues such an application is insufficient, on its face, to warrant a personal intervention.
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A careful examination of the notice to which these applications respond will indicate, I believe, that the notice contains no word which would inform a member, particularly if he were a layman, of the narrowness of the issues which are to be considered here, or that he will have a later opportunity, if and when prosecuted, to present personal defenses. On the other hand the notice, it seems to me, creates the impression, particularly to a layman, that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. I think a careful examination of these notices will bear out that impression and a careful examination of the applications will show that they are in response to that impression.
Now, among lawyers there is usually a difference of opinion as to how best to proceed and this case presents no exception to that; there are different ideas. But I shall advance certain views as to how we should proceed from here to obtain a fair and proper adjudication of these questions. In view of these facts we suggest a consideration of the following program for completion of this Trial as to organizations:
1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it.
2. That a notice adequately informing members as to the limitation of the issues and the opportunity later to be individually tried be sent to all applicants and published in the same manner as the original notice.
3. That a panel of masters be appointed, as authorized in Article 17(e) of the Charter, to examine applications and to report those that are insufficient on their own statements and to go to the camps and supervise the taking of any relevant evidence. Defense Counsel and Prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal, to be introduced as a part of its record.
4. The representative principle may also be employed to simplify the task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence.
It may not be untimely to remind the Tribunal and the Defense Counsel that the Prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited.
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Some concern has been expressed as to the number of persons who might be affected by the declarations of criminality which we have asked.
Some people seem more susceptible to the shock of a million punishments than to shock from 5 million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the declaration of criminality which we have asked.
Figures from the German sources seriously exaggerate the number, because they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large. For example, evidence is to the effect that 75 percent of the Gestapo men also were members of the SS. We know that the United States forces have a roughly estimated 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the denazification program, no one can foretell. Whatever the number, of one thing we may be sure: It is so large that a thorough inquiry by this Tribunal into each case would prolong its session beyond endurance. All questions as to whether individuals or subgroups of accused organizations should be excepted from the declaration of criminality should be left for local courts, located near the home of the accused and near the source of evidence. The courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific issues.
This is not the time to review the evidence against each particular organization which, we take it, should be reserved for summation after the evidence is all presented. But it is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: Collectively they were the ultimate repositories of all power in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary.
The Nazi Leadership Corps consisted of the directors and principal executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German State. The Reich Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the Armed Forces, directed and controlled by the General Staff and High Command,
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and the police forces -- the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime.
These organizations were also selected because, while representative, they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty. State officialdom is represented, but not all the administrative officials or department heads or civil servants; only the Reich Cabinet, the very heart of Nazidom within the government, is named. The Armed Forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers -- the General Staff and the High Command -- are named. The police forces are accused -- but not every policeman, not the ordinary police which performed only the normal police functions. Only the most terroristic and repressive police elements -- the Gestapo and SD -- are named. The Nazi Party is accused -- but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only "the bearers of sovereignty," in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels.
I think it is important that we observe, in reference to the Nazi Party, just what it is that we are doing here and compare it with the denazification program in effect without any declaration of criminality, in order to see in its true perspective the indictment which we bring against the Nazi Party.
Some charts have been prepared. This is a mere graphic representation of the proportions of persons that we have accused, and which we ask this Tribunal to declare as constituting criminal organizations.
In the first column are the 79 million German citizens. We make no accusation against the citizenry of Germany. The next is the 48 million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the denazification program the supporters are included. Then come the 5 million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fealty. But we do not attempt to reach that entire 5 million persons, although I have no hesitation in saying that there would be good grounds for doing so; but as a mere matter of practicality of this situation it is not possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy. So the voters are disregarded, the 48 million, the 5 million members are disregarded, and the first that we propose to reach are the Nazi leaders, starting with Blockleiter, which are
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shown in the last small block, and piled together, amounting to the fourth block on the diagram.
It is true that we start with the local block leader, but he had responsibilities -- responsibilities for herding into the fold his 50 households, responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these block leaders were the essential elements in making this program effective among the masses of the people and in terrorizing them into submission.
I submit that on this diagram the accusation which we bring here is a moderate one reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion.
We have also accused the formations, Party formations, such as the SA and the SS. These were the strong arms of the Party. These were the formations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of 50 houses.
But we do not accuse every one of the formations of the Party, nor do we accuse any of the 20 or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the civil servants' organization, the teachers' organization, and the National Socialist lawyers' organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations. Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes, and which actively participated in every crime denounced by the Charter and furnished the manpower for most of the crimes which we have proved.
In administering preventive justice with a view to forestalling repetition of the Crimes against Peace, Crimes against Humanity, and War Crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire 22 individual defendants in the box. These defendants' power for harm is past. They are discredited men. That of these organizations goes on. If these organizations are exonerated here, the German people will infer that they did no wrong, and they will easily be regimented in reconstituted organizations under new names, behind the same program.
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In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity.
I think my colleagues, who have somewhat different aspects of the case to deal with, would like to be heard on this subject.
THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such of the defendants' counsel as wish to be heard, and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.
MR. JUSTICE JACKSON: That will be very agreeable to us.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the Prosecution, be dealt with. It is not my purpose to repeat or even to underline his arguments. My endeavor is to comply with Paragraph 4 of the statement of the Tribunal made on the 14th of January of this year. This involves:
(a) Summarizing, in respect of each named organization, the elements which, in our opinion, justify the charge of their being criminal organizations. For convenience I shall refer to these as the elements of criminality.
(b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants.
(c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal's third point.
May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the Defense Counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants.
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For the convenience of the Tribunal and of counsel, I have circulated two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and, although they are in English, should be readily usable by Counsel for the Defense. The result is that there is the summary in Appendices (A) and (B), which I put in, and full reference in all the points in the summary to the transcript and in some cases to documents.
It is my intention not to read in full all the matters contained in my Appendix (A) and Appendix (B) but to indicate how they fit in with the conception of the Prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal.
I think it would be best to start from the essential probanda which Mr. Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points:
1. The organization or group in question must be some aggregation of persons, (a) in some identifiable relationship, (b) with a collective general purpose. That was Mr. Justice Jackson's first test.
2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position.
3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article 6 of the Charter.
4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining.
5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made.
I do not think that I can avoid applying these tests to each of the organizations, but I conceive that this can be done with brevity, and I therefore propose to deal with the organizations seriatim.
I take first the Reichsregierung. Under Appendix B of the Indictment this group is defined as consisting of three classes:
1. Members of the ordinary cabinet after the 30th of January 1933. The term "ordinary cabinet" is in turn used as meaning: (a) Reich ministers that is, heads of departments; (b) Reich ministers
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without portfolio; (c) State ministers acting as Reich ministers, (d) other officials entitled to take part in meetings of the cabinet.
The second division is members of the Council of Ministers for the Defense of the Reich.
The third division, members of the Secret Cabinet Council.
It is submitted that, on the evidence placed before the Tribunal, there is no doubt that the first of Mr. Justice Jackson's points, Point 1, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary, within Point 2.
The aims of the organization are set out in Paragraph 4 of Section A of my Appendix A and the broad submission of the Prosecution is shown in Paragraph 2. Perhaps, as that is short, I might be allowed to read it:
"Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspirators."
The Prosecution apply that general submission to the crimes constituted by Article 6 of the Charter in Paragraphs 5, 6, 7, and 8 of that appendix. If the Tribunal would like me to deal further with these paragraphs I should be pleased to read and comment on any that are desired.
When it is remembered that the Reichsregierung possessed policymaking, legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. As I said, the Reichsregierung implemented and gave statutory effect to the program of the conspirators.
If the Tribunal will be good enough to turn to my Appendix B they will see that 17 of the 21 defendants before the Court were members of the Reichsregierung. The Prosecution have submitted an enormous body of evidence against these 17 defendants, and they now submit that it is sufficient to say that these 17 defendants should be convicted under each Count of the Indictment, and therefore under each portion of Article 6 of the Charter, and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson's Point Number 5.
The acts which I have mentioned and which are set out in Paragraph 4 of my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent.
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I now pass to the Leadership Corps of the Nazi Party.
Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internally and externally, by the National Socialist Party.
In the Nazi Party, based on the Fuehrerprinzip, its policies and operations were determined not by the membership as a whole but by the corps of bearers of sovereignty and their staff. These leaders were all political deputies, obliged to support and carry out the doctrines of the Party. At every level regular and frequent conferences were held to discuss questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders.
The Prosecution submit that all these leaders are within the organization which they claim to be criminal, and as Mr. Justice Jackson pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in these positions.
The Tribunal will note that we have omitted the staffs of the more junior Hoheitstrager, as Mr. Justice Jackson has pointed out. On that the Prosecution again says that there is no doubt that Points 1 and 2 of Mr. Justice Jackson's criteria are complied with, and they indicate in Paragraphs 1, 2, 3, and 4 of Section B of my Appendix A the elements of criminality; they indicate in my Appendix B the defendants who are involved; and in a latter portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the Government and the Nazi Party, and further, from the close interconnection between the Government of the Reich and the Party, it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps and elaborated before the Tribunal in the individual presentations.
The Nazi Party is the core of the conspiracy and criminality alleged, and the defendants are the core of the Nazi Party. Again the Prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Party, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a different position from even the best-informed opinion outside Germany.
I now pass to the SS, including the SD. The Prosecution respectfully remind the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B
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of the Indictment, on Page 36 (Volume I, Page 81) of the English text. The Prosecution stands by these statements, which it submits are clear. I do not intend to read them at the present moment.
The Tribunal has heard in the case regarding the SS -- the transcript Pages 1787 to 1889 (Volume IV, Pages 161-230) -- and the case regarding concentration camps -- Pages 1399 to 1432 (Volume III, Pages 496-518) -- and also the evidence as to the Defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted that there is no difficulty on the first three of Mr. Justice Jackson's points, and that the criminality of the SS has been proved several times over.
On the fourth point I venture to submit the submission in Paragraph 4 of Section C of my Appendix A, that the crimes of the SS were committed, first, on such a vast scale, and, secondly, over such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this Trial opened, must have been known to its members. It was difficult to drive from one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and, in the second part, a summary of the crimes of the Defendant Kaltenbrunner. The Prosecution gives to him a sinister particularity, while relying also on the crimes of the other defendants who were members.
DR. OTTO PANNENBECKER (Counsel for Defendant Frick): May I point out that in the appendix the Defendant Frick has apparently been included by mistake; among the offices held by the Defendant Frick this is not listed as one of them.
THE PRESIDENT: What do you mean? Do you mean not a member of the SS?
DR.PANNENBECKER: The appendix says that Frick was a member of the SS. This is not the case, and he has also made a statement to this effect in his affidavit.
DR.SEIDL: In the appendix just read out by the prosecutor the Defendant Frank too is included as a member of the SS. Already earlier in the Trial the-American prosecutor submitted Document 2979-PS as Exhibit Number USA-7. This document shows that at no time was Frank a member of the SS or, as is asserted in the Indictment, an SS general.
Furthermore I should like to point out to the Tribunal that several months ago, when the Indictment was lodged against the SS as a criminal organization, the name of the Defendant Frank was
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not mentioned. May I therefore take it that in the drawing up of this appendix a mistake has been made?
DR. THOMA: I should like to make the same statement as that made by my colleague Doctor Seidl on behalf of the Defendant Rosenberg. In Appendix A, which lists the indicted elements Rosenberg is shown as a member of the SA. He was never a member of the SA, and he has already made a statement to this effect in the course of an interrogation.
SIR DAVID MAXWELL-FYFE: The defendants will have the opportunity of disproving these allegations, which are all container in the Indictment; but in view of what has been said, I shall personally check the matter myself.
I proceed to deal with the Gestapo. Again, the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in Paragraphs 1, 2, and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. And the Prosecution submit that from these points which are mentioned it is clear that the first four of Mr. Justice Jackson's points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the Prosecution, make it impossible for the Defense to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Mr. Justice Jackson's points. If the Tribunal will refer to my Appendix B they will see that the Defendants Goering, Frick, and Kaltenbrunner are alleged to be members, and in the latter part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization.
Then we come to the SA. I again refer to Paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that, apart from the correct statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript where these matters are proved. I remind the Tribunal of Mr. Justice Jackson's statement, which shows that the Prosecution have omitted ail connected bodies -- even including those who had only been members of the reserve -- about which there can be any argument, even a sentimental argument, as to their full connection.
It might be convenient if I reminded the Tribunal of these sections.
THE PRESIDENT: We will adjourn now.
[The Tribunal recessed until 1400 hours.]
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SIR DAVID MAYWELL-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 Goering 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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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 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
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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 lea 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
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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.
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(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
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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
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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 dike 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
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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
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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.
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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
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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.
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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
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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 end 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.
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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 he 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 case,, 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
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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.
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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.
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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, legacy 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 of lice 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 5OO 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.
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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 Goering 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.]
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