THE PRESIDENT: At the conclusion of the argument on the organizations, which the Tribunal anticipates will finish before the end of today's session, the Tribunal will adjourn into closed session. Tomorrow morning at 10 o'clock the Tribunal will sit in open session for consideration of the applications for witnesses and documents by the second four defendants. Will the defendant's counsel who was in the middle of his argument now continue? Dr. Merkel, had you finished?
DR. MERKEL: Yes, Sir.
DR. MARTIN LOFFLER (Counsel for the SA): May it please the Tribunal: The objections and misgivings expressed yesterday by the Defense regarding the criminal proceedings against the six accused organizations are particularly applicable when judging the SA.
No other organization is so much exposed to the danger of a sentence contrary to our sense of justice as is the SA. I ask the Tribunal's permission to submit the reasons for this fact.
The demand of the Prosecution that the SA should be declared a criminal organization affects at least 4 million people at a conservative estimate. The limitation according to groups approved yesterday by Justice Jackson was gratifying and welcome; but it will have no appreciable effect on the numbers since the groups eliminated yesterday, the armed SA units and the bearers of the SA Sports Badge, were not full members of the SA. The only persons so far eliminated, therefore, are the SA Reserves. As no limitation according to time was made, these criminal proceedings will include everyone who ever belonged to the SA, even for a very short time, during the 24 years between its establishment in 1921 and its dissolution in 1945, that is to say, during a period of almost a quarter of a century.
We heard yesterday from the Prosecution that the criminal acts charged to the organizations are the same as those charged to the main defendants, namely, Crimes against Peace, crimes against the laws or customs of war, and Crimes against Humanity, as well as participation in the common conspiracy.
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If we now contemplate the possible participation of these 4 million former SA men in these four important categories of crime, we get the following picture:
Crimes against the laws or customs of war are not charged to the SA. It is true that the Prosecution presented an affidavit saying that the SA also took part in guarding concentration camps and prisoner-of-war camps and in supervising forced labor; but, according to the presentation of the Prosecution, this did not occur until 1944 within the framework of the total war raging at that time, and it has not been charged that this activity of the SA involved any excesses or ill-treatment.
In none of the atrocities reported here by witnesses and documents did the SA with its 4 million members participate. The few offenses against humanity charged to the SA by the Prosecution and committed by individual members in the course of almost a quarter of a century can in no way be compared with the serious crimes against humanity of which we have heard here.
The occupation of the trade-union buildings by the SA, adduced by the Prosecution as another point, took place on the order of Reichsleiter Ley, who used the SA for this operation, and this happened after the seizure of power.
Even the Prosecution did not assert that any outrages, ill-treatment, or excesses occurred when this operation was carried out. The fact that in connection with the seizure of power in the spring of 1933 individual excesses occurred, and that the American citizens Rosemann and Klauber, according to the affidavits submitted by the Prosecution, were beaten on this occasion is certainly regrettable. However, such excesses on the part of individual persons are unavoidable in organizations comprising millions of people and, considered by themselves, are hardly proper grounds for declaring the entire organization criminal.
The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the Prosecution, restricted to single exceptions and ended anyway in 1934. The commandant of the Concentration Camp Oranienburg, according to the presentation of the Prosecution, was an SA Fuehrer. However it is not asserted that he committed any atrocities.
The second case, the ill-treatment of prisoners in the camp of Hohnstein by SA and SS members in 1934 led to criminal proceedings and the SA men guilty were sentenced to imprisonment of up to 6 years.
As a last individual act there remains the participation of the SA in the excesses during the night of 10 and 11 November 1938, when the windows of Jewish stores were broken and the synagogues were burned. Here, too, the plan and the order did not originate with the
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SA. The SA was simply commissioned by the highest Party leadership to carry out this order. Finally if we consider that during the political struggles of 1921 to 1933 the old SA was involved in brawls -- often purely defensive -- with political opponents and that it did not develop into an organization with millions of members until after the seizure of power, we arrive at the following conclusion, expressed in figures:
On the basis of the presentation of the Prosecution at most 2 percent of all the indicted former SA members participated in punishable individual actions; 98 percent of the 4 millions, according to their conviction, kept their hands clean of any such punishable individual acts.
Here, too, the Prosecution will not want to insist that the excesses of these 2 percent considered by themselves should brand the entire organization as criminal. These 98 percent, that is in round numbers 3,900,000 former SA members, must nevertheless defend themselves here against the charge of having participated in the preparation of the war of aggression or in the planning or execution of the common conspiracy, or, formulated more strongly, against the charge of having belonged to organizations which pursued these criminal purposes.
What is the result if we apply the definition of the criminal nature of an organization as formulated yesterday by Justice Jackson and Sir David Maxwell-Fyfe?
The SA members will acknowledge that the criteria under Points 1 and 2 as defined yesterday are also true for the SA, namely, that the SA was an aggregation of numerous persons with collective aims and a membership which was voluntary in principle. However, they will strenuously deny the application of the Criteria 3, 4, and 5. Point 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. The millions of members, if testifying here, would state that neither in the programs nor in the speeches of their leaders had they been called upon to pursue such criminal aims or methods. Whether the leaders of the SA pursued such criminal aims in secret or not these people are not in a position to judge. Whether such criminal aims were pursued secretly by the leadership of the SA can be determined only by the Tribunal, and only now when the archives have been opened, witnesses can testify, and the documents are laid open to the Court.
Now, Point 4 of the Prosecution's definition, if I understood Justice Jackson correctly yesterday, requires, beyond this, as an element of crime involving subjective guilt, that the aims and methods of this organization were of such character that a reasonable, normal man may properly be charged with knowledge of them.
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I should like at this point to emphasize particularly that I, in agreement with my colleagues, do not consider this definition an adequate protection, since it means that a member may be punished even if he did not recognize the criminal nature of the organization but ought to have recognized it by application of reasonable care. I know of no system of penal law in any modern civilized state which holds that negligence, even of a gross or serious nature, is sufficient to constitute guilt of an infamous common crime, that is, of a crime belonging to the group of severest offenses. A crime of this category can be committed only with intention. Perhaps the Prosecution can later discuss this question on the basis of their knowledge of the particulars of Anglo-Saxon and other foreign legal systems.
This point seems of particular importance to me because -- if it is neglected -- there is the danger that the judges, particularly the Anglo-Saxon judges, will apply the political standards of their countries to German conditions. The sober political instinct that is characteristic of the citizens of England and America is nonexistent in the Germans. We are a politically immature people, credulous, and consequently especially susceptible to political misguidance. The Court should not overlook this dissimilarity when passing its judgment on the good faith of the individual members of the organizations. According to the impressions which the Defense of the SA has received to date from its visits to camps and from numerous letters, the majority of SA members are convinced that they did not belong to any criminal organization. Among other reasons are the following subjective ones:
It was generally known and has been specifically stated in the Organization Book of the Party -- Document 1893-PS, Page 365 -- that only a person whose character was unobjectionable could join the SA. It is further stated verbatim, and I quote: "Unobjectionable reputation and no criminal record." The members of the SA maintain that they know of no case in which a gang of criminals or conspirators required in their statutes similar conditions for membership.
Part of the essence of a conspiracy is the idea that its criminal aims be kept secret from its opponents. An organization of several millions is, by its very nature, not suited to carrying out a plot. The leaders of the SA emphasized in numerous addresses that they wanted to maintain peace under all circumstances. They pointed out that Germany would be rather a danger to European peace if she were without defense and arms in the heart of Europe and that being in a state of preparedness was the best guarantee for securing future peace in Europe. The simple members point again and again to the fact that foreign powers gave diplomatic recognition to the
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leaders of National Socialism. They consider this fact not simply an act of "international courtesy" but are convinced that foreign governments would not have entered into relation with the German Government if that German Government had consisted of open criminals.
I might mention a particularly characteristic example: the Indictment against the SA is substantiated by a number of documents. These are Documents 2822- and 2823-PS. According to these documents, as early as May 1933 Lieutenant Colonel Auleb, a deputy of the Reich War Ministry of that time, was detailed to the high command of the SA in order to assure liaison between the heads of the two organizations. But the whole affair is treated as strictly secret, and it is ordered that Auleb should wear the SA uniform for the purpose of "camouflage." How, I ask, should or could a simple SA member have known anything of such affairs? I have mentioned here only a few points put forward by SA members which, in the opinion of the Defense, do not constitute unfounded subterfuges, but which show that the majority of these people never thought of participating in a criminal conspiracy.
Also the fifth criterion set up yesterday by the Prosecution to define a criminal organization the close connection between the main defendants and the SA -- is in the case of no organization so difficult to prove as in the case of the SA. This may, at first, sound surprising; of the main defendants here, six were high-ranking members of the SA. Nevertheless, a closer scrutiny shows that there were no close connections at all. Except for Goering, none of the main defendants ever exercised command authority over the entire SA. The rank which these main defendants had in the SA was an honorary rank; and, so to speak, merely decorative. Consequently, the Prosecution has mentioned only Goering's connection with the SA in its recent list of the criminal elements. But even Goering's connection with the SA curiously enough is very slight and is actually confined to a period of three quarters of a year -- that is -- 9 months, namely, from February 1923 to 9 November 1923, that is to say, 23 years ago. Goering was never, as stated in Appendix A of the Indictment, ReichsFuehrer of the SA. That is an error. Rather, in February 1923 Goering was commissioned to take over the command OI the then existing Party group for the protection of meetings -- the so-called Sturmabteilung. Goering led the SA until the November Putsch of 9 November 1923. On that day his command power over the SA came to an end and was never revived. Later Goering was given by Hitler honorary command of the unit Feldherrnhalle. He was the honorary commander, not the active commander of this unit. I believe the difference between honorary and active command of a regiment is known in all states. I do not have
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to give any further explanation. Honorary command has a purely decorative significance.
The task which the SA had to carry out under Goering in the year 1923 was the protection of meetings. Anyway, it cannot be charged that at that time the SA, in co-operation with Goering already planned the crimes stated in Article 6 of the Charter or that these aims could have been anticipated at that time in any tangible form. Neither can it be charged that Goering ever made use of the SA after 1923 for carrying out any criminal plan. The man who led the SA from 1930 to 1934, Ernst Rohm, was an embittered opponent of Goering's. After his death the SA was led by Victor Lutze from 1934 to 1943 and from 1943 until its dissolution, by Wilhelm Schepmann.
According to Article 9, Paragraph 1, of the Charter, an organization can be declared criminal only in connection with any act of which a main defendant may be convicted. From a legal and factual point of view I have the gravest doubts as to whether the facts of the case in 1923, as described by me, are sufficient to comply with the requirements of the Charter as far as the SA is concerned. This could be done only if the Tribunal had reason now to pass sentence on Goering's activity as leader of the SA group for protecting meetings 23 years ago, including the November Putsch, as a special crime. This, however, would be at variance with the fact that this entire action was settled with legal effect by the amnesty of the democratic Reich Government, whereby the matter was, at the time, disposed of in this fashion.
May it please the Tribunal, if it is a fact in the case of any organization, then certainly it is a fact in the case of the SA, that its being listed among the criminal organizations is contrary to the real picture. Large circles abroad, particularly those who were forced to leave Germany in 1933, knew nothing of the complete change of structure which the SA underwent during the following years. The foreign countries heard at every Reichstag session the traditional song, "The SA Marches," while, as a matter of fact, the SA had long since lost all political influence and had been transformed en masse into an association with a huge membership, the very size of which rendered it harmless as far as conspiracy was concerned and which showed all the characteristics of the so-called German club-mindedness. I refer in full here to the statements made by Colonel Storey, himself, in his speech for the Prosecution. This is on Page 1546 of the Court's Record (Volume IV, Page 138). The organization through which the SA was then eliminated from political life was, as is well known, the SS, and this happened on the occasion of the so-called Rohm Putsch in 1934. That, indeed, the SA and SS always confronted each other like rival brothers is a fact which, in the interest of truth, should not remain unmentioned.
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For all these reasons the SA is judged on a completely different basis, even by German opponents of National Socialism; and this has already to contradictory results, the speedy elimination of which by the Prosecution or the Court would be highly desirable.
At this opportunity the following facts should be pointed out: The SA, up to the higher ranks, is not, as a matter of principle, subject to arrest, which is at variance with probably all the other organizations. The new denazification law which recently came into force after thorough consultation between German circles and the Military Government and which is now the law in force throughout the entire American Zone, regards all SA members of a rank lower than that of SturmFuehrer neither as active Nazis nor much less as criminals. According to the electoral procedure now in force in the American Zone of Occupation, which recently was the basis for elections in thousands of German communities under the directives of the Military Government, the ordinary SA members, insofar as they were not Party members, were not only permitted to vote, but were also eligible for election. The same people who are before the Court accused of serious crimes may at the same time, according to the law in force, be elected as community councillors, and, in fact, are being so elected.
I talked personally about two weeks ago to an SA man and asked him whether, following the notice of the Court, he had reported here for interrogation. He declared that he saw no reason for doing that, because in the meantime he had been elected and approved as community councillor.
The regulations of Law Number 30, regarding the application of the German community order of 20 December 1945, namely, Articles 36 and 37, which show that SA men are eligible for election, also confirm the fact, which is known in Germany, but apparently not in foreign countries, that an ordinary Party member had -- only by comparison, naturally -- a more active political position than the completely uninfluential SA member. Whoever was a Party member before 1937 cannot vote, and whoever at any time was a Party member cannot be elected.
A comparison of Party members, who are not indicted here, and SA members, who are indicted here, shows the following facts:
If at the time of National Socialism one was politically incriminated or suspected one could, without difficulty, become an SA member but under no circumstances a Party member, because in regard to Party membership -- and even ordinary Party membership -- much higher political qualifications were required than in the case of SA members. There were certainly many SA members who joined this organization only to escape to some extent the persecution they had to expect because of their incriminating political record in the past.
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May it please the Tribunal, I have tried by means of these examples to show the extraordinary danger existing in the particular case of the SA, if all its members, including its millions of ordinary SA men, are legally declared criminal; by the Tribunal. I am sorry I cannot share the opinion expressed yesterday by Justice Jackson that the verdict sought from this Court would be a purely declaratory one with no penalties involved. On the contrary I know that hundreds and thousands of SA members, who were simple followers and were not even Party members, have been dismissed from their positions, and their future and their existence will depend on the verdict of this Court. A declaratory judgment of this Court is sufficient to make them outlaws and to exclude them from positions and professions in the future. Therefore the members of the SA are correct in pointing out that they are denied the right of judicial hearing. There is no direct evidence and no direct trial. A court does not decide the fate of lifeless creatures of the law or formal organizations that have long since ceased to exist; it passes judgment on living human beings, and no court should forego the opportunity of seeing in person those whom it is trying. A good judge is always a good psychologist and soon can tell what kind of person is on trial -- whether he is a criminal or somebody who has been deceived and misled.
No law on earth since time immemorial ever allowed the passing of judgment against an organization instead of against its single members. The laws and precedents quoted yesterday by the Prosecution regarding criminal gangs and conspiracy certainly recognize to a large extent the collective responsibility for acts of accomplices, but two requirements must be fulfilled there too: Firstly, the member must know that he is party to a criminal conspiracy or criminal association; secondly, the indictment is not directed against the conspiracy as such, and the conspiracy will not be judged, but the persons of the individual participants. It is the conviction of the Defense that the Charter did not intend to stand in contradiction to these legal principles of all states.
The late President Roosevelt, whom Justice Jackson named the spiritual father of the Charter, has in his great speeches, particularly in those of 25 October 1941 and 7 October 1942, stated clearly that the leaders and instigators shall be called to account. Permit me, Mr. President, to read two sentences from the speech by President Roosevelt taken from the official collection, Speeches and Essays by President Roosevelt, published on order of the government of the United States.
I quote from the speech of 25 October 1941:
"Civilized peoples long ago adopted the basic principle that no man should be punished for the deed of another."
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The second quotation is from the speech of President Roosevelt on 7 October 1942, and I quote:
"The number of persons eventually found guilty will undoubtedly be extremely small compared to the total enemy populations. It is not the intention of this Government or of the Governments associated with us to resort to mass reprisals. It is our intention that lust and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons and the commission of atrocities which have violated every tenet of the Christian faith."
In addition to these fundamental objections to such a separation of the proceedings there is also an important technical objection. If the Tribunal passes a declaratory judgment against the organizations, as requested, all these millions of members of the organizations will automatically become outlaws pending the definite legal decision in the subsequent trials. Until that date every individual is under serious suspicion of being a criminal, since it is questionable whether he will succeed in exonerating himself in the subsequent trial. Since, however, an individual person, without such exoneration will probably not be able to return to his profession -- and will also be excluded from the ranks of honorable citizens until he is exonerated -- the right to have such a subsequent trial should not be denied to him. I believe that Justice Jackson will agree with me in this. But if, as desired by the Prosecution, 7 million members of organizations, according to a conservative estimate, are affected by the declaratory judgment of the Tribunal and thus temporarily become outlaws, then millions of subsequent trials will have to take place. We shall have to assume that in the course of 1 year, perhaps 100,000 trials can be completed. I believe that this is a very optimistic estimate, as our German courts will not be able to participate; it is well known that they are completely overworked since they have now only a small portion of their former personnel. Of these millions of cases, the courts will probably have to deal first with those of the most criminal nature. The accused, whose existence is at stake, will defend themselves during the subsequent trials with all legal means at their disposal. There is the danger that the really innocent people will have to wait for many years, even for decades, before they will have an opportunity to rehabilitate themselves through a process of exoneration. I believe that it would have been possible to find some sort of solution. For instance, if the Control Council had passed a law to the effect that, since there is the suspicion that offenses and crimes against peace and humanity have been committed with the aid of these organizations, the courts have the right and the duty
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to try those of whom it can be proved that they participated in these crimes as principals or accessories in some way or other -- if such a formula could be found, then I believe that both the Prosecution and the Defense would consider that a just solution. The effect would be limited to those who are actually guilty. The Defense objects in no way to the punishment of those who are actually guilty, provided that their guilt is determined in regular unobjectionable proceedings.
Should the Court, however, adhere to a verdict against the organizations, as requested by the Prosecution, then I request for all the reasons adduced, arising as they do from the presentation of the Prosecution and from the impressions made by those applications which have been filed, that judgment not be passed against the entire SA. The point of view brought forward by Justice Jackson in the case of the other organizations, namely, that in the face of so many murders and atrocities the individual members of an organization can no longer be determined as perpetrators, this point of view, noteworthy as it is, does not apply to the SA. The few excesses which, according to the presentation of the Prosecution, took place here, happened in Germany in public. The perpetrators are known. Some regional courts have already opened proceedings of this kind. I have heard, for example, that the city of Bamberg has opened proceedings against the destroyers of the synagogue there and against the perpetrators of the action of 10 and 11 November 1938.
But should the Tribunal be of the opinion that judgment is nevertheless to be passed against the SA as an organization, then I ask the Tribunal as far as possible to make use of the right to provide certain limitations in regard to periods of time and categories of members, as both the Prosecution and the Defense agree that the Tribunal has the power to make such limitations.
Very important distinctions are to be made here, first as to the different periods of time. The SA men who joined the SA after the seizure of power in 1933 joined an organization that on its face bore the stamp of approval by the state. Admittedly not even a state authority can declare crimes against humanity legal; but when weighing the degree of guilt and the severity of the penalty it is, nevertheless, of considerable importance whether the perpetrator acted outside the bounds of the laws in force and committed offenses against the positive law, or whether his acts, although they may offend a higher moral order, are not contrary to the laws of his country. Therefore an exemption should be made at any rate of all those SA members who joined after 1933, and who can be proved to have had no part in the events of 10 and 11 November 1938.
In regard to categories, I urgently request, in the interest of justice, a double limitation:
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1. Simple SA members up to the rank of SturmFuehrer should be exempted at any rate and, if possible, very soon. I mentioned previously why this appears imperative in the interests of justice, at least in the American Zone. Perhaps -- and I should welcome this tremendously -- Justice Jackson would have the kindness to pay special attention to this matter once more. The idea of such limitation is also supported by the fact that it would considerably reduce the numbers by eliminating the simple followers; and in this way the technical difficulties, which seem almost insurmountable, would also be considerably simplified.
2. It was gratifying that the Prosecution yesterday agreed to separate proceedings against the SA Wehrmannschaften, the bearers of the SA Sports Badge, and the members of the SA Reserve -- or rather, to exempt them altogether. In the interest of equality and justice as recognized by the law and by this Tribunal, it would be fair to separate from the SA all those special sport units which had only a loose organizational connection with the SA. These are the Navy SA (Marine-SA) and the Cavalry SA (Reiter-SA).
There are a number of applications before the Court, and it is well known in Germany to everybody involved that these particular units were exclusively devoted to their respective sports, namely, sailing and rowing on the one hand, and horsemanship and holding of tournaments on the other hand. When in 1933 the Party came to power, it attempted to take charge of all sport activities in Germany. Consequently, the various navy clubs and the so-called country riding clubs became affiliated with the Party, but both clubs had hardly anything to do with the political SA, even after their regrouping. Only their chiefs were, according to the organizational system, subordinate to the SA. They are very well suited for separate proceedings because they constituted a completely closed group within the SA.
None of the main defendants present here was ever a member of one of these sport groups. Members of the Cavalry SA feel that they are at a particular disadvantage because the Prosecution has not indicted the NS Kraftfahrkorps (National Socialist Motor Corps) and the NS Fliegerkorps (National Socialist Flier Corps), which is perfectly justified, since it is known that they were by nature sport organizations. The NS Kraftfahrkorps and the NS Fliegerkorps were, however, until the year 1934, exactly like the Reiterkorps, sport divisions of the SA. The NS Kraftfahrkorps succeeded in gaining organizational independence since 1934 or 1935, due to the political influence of its leader Huhnlein. The NS Fliegerkorps also succeeded in doing so. The NS Reiterkorps, however, did not have such influence and merely succeeded in 1936 in being recognized as an independent NS Reiterkorps; but it still remained formally
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connected through its leadership with the SA, since Litzmann, the Chief of the Reiterkorps, was subordinate to the Chief of the SA. For this purely formal reason about 100,000 farmers and farmhands who enjoyed education in horsemanship through these country riding clubs are indicted here. It can be proved that they never took part in politics or in any activities against Jews or people of other beliefs. Likewise a pursuit of militaristic aims is out of question in the case of the Cavalry SA. Already after the First World War it was evident that the horse had no further role in war. This charge would rather be in point as far as the Kraftfahrkorps and the Fliegerkorps are concerned. The Prosecution stated correctly that these organizations whereby nature predominantly sport organizations.
For this reason I should be grateful to the Prosecution if they would once more examine the cases I have mentioned in order to find out whether or not the same conditions exist in this case as in the case of the SA Reserve and the armed SA units.
As the last group I mention the SA university units (SA Hochschulsturme), because they were almost without exception obligatory organizations for those students who would not have been admitted to the state examinations without a record of activity in such organizations. The same thing applies to the SA health units (SA Sanitatssturme), which represented an obligatory activity for many physicians who were applying for positions.
I should like to correct myself on one point, because it has been called to my attention that I wanted to set a time limit for those SA members joining after 1933. I should have said, "after 30 January 1933," the day of the seizure of power.
In conclusion, I should like to say a few words about the hearing of SA members. Most of the members of the SA are free. If only a few so far have written to the Court, this is almost exclusively due to the fact that, since the SA in this country is generally considered inoffensive, they can hardly imagine that a Court with the experience and the high standing of this Tribunal could reach a decision which would differ from public opinion. Should the Court, however, adhere to its conception of the SA, then I should like to support the suggestion made yesterday by the Prosecution to the effect that the notice be published once more for the members to make an effort to defend their interests. However, I share the opinion of counsel for the Leadership Corps, that it would not serve the interests of the proceedings if the direct contact between the Defense Counsel and his client were destroyed. In the case of the SA men who are free, a technically simple method could be used by having the main Defense Counsel in Nuremberg appoint deputies, preferably lawyers, in every province, for example, Baden, Bavaria, and Wurttemberg. The provincial press should make mention of
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these men. Every individual member of an organization could, with the help of these lawyers, answer by means of an affidavit those questions which the Court has found to be relevant.
In a very gratifying manner the American Chief Prosecutor stated yesterday, if I understood him correctly, that in the trial of the organizations, because of its fateful importance for millions of people, the principle of justice is much more important than the question of speedy proceedings. I should therefore like to join in the request made by Counsel for the Leadership Corps, that the trial of the organizations, which is to be regarded from different points of view, be separated from the trial of the main defendants.
Members of the Tribunal, I am at the conclusion of my remarks. I should like, however, to reply to the words, words worth heeding, spoken by Justice Jackson yesterday at the beginning of his address. He said that for the first time in history a modern state had completely collapsed, and that this surrender created for the victorious nations completely novel problems; that one of the most important tasks was to destroy the structure of those organizations and to prevent this country forever from waging wars of aggression or carrying out pogroms. All people of good will must sincerely welcome this elm and support Justice Jackson. It is, however, questionable whether the right way toward that end is to defame all members of organizations as such, involving millions of people.
I ask the Tribunal to consider that there is hardly a family in this country which did not have near relatives in some one of these organizations at some time. The organizations are dead, the system of terror and falsehood has disintegrated, millions of misled and deceived people have turned away from their leaders and seducers. But if they find themselves ostracized and stigmatized along with them the effect might easily be the opposite of that which we all hope for.
Justice Jackson correctly pointed out in his speech yesterday that the Control Council will possibly change the method of denazification used so far, which has been rather mechanical, and make it more individual. Present experience that mechanical treatment evokes the feeling of injustice and thereby a false solidarity, might contribute to this. The millions of simple misled camp followers of the organizations would consider such a verdict an act of revenge rather than a manifestation of justice. The ringleaders, however, could conceal their actual guilt behind the backs of millions of people. The educational and corrective effect of a verdict as well as the idea of just atonement would consequently be weakened.
THE PRESIDENT: The Tribunal will adjourn now for 10 minutes.
[A recess was taken.]
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DR. LOFFLER: I ask the Tribunal that I be permitted to make one more remark.
In my previous request I did not ask for the exemption of one particular group, namely, the Stahlhelm; this was only because, according to my information, the Stahlhelm was transferred in its entirety to the SA Reserve after the seizure of power and therefore, in my opinion, is included in the declaration made yesterday by Justice Jackson exempting the SA Reserve.
HERR BABEL: May it please the Tribunal, I should have considered it appropriate in the interest of a speedy trial that the Defense not answer the inquiries of the Tribunal and reply to the arguments of the Prosecution until they have received in writing the extensive and important arguments of the Prosecution and are thereby in a position to deal with the whole complex of problems comprehensively and conclusively.
Since a number of Defense Counsel for the organizations have already spoken, I feel prompted to do the same, insofar as I am in a position to do so at this time and consider it necessary and appropriate.
The Tribunal desire to have a discussion in order to define the legal concept of the criminal organization and desire in particular to examine the question of which qualifying elements of a factual nature are necessary in order to declare an organization criminal. The Defense believe that a final and basic definition of this concept, which is entirely new to any legal system, can be given only at the end of the proceedings by means of a special hearing of evidence after all necessary factual information has been collected and examined.
The Prosecution have already presented a definition, which, however, raises very serious objections, because it is derived from legal ideas which have grown in countries other than Germany, under different conditions and circumstances, and which involve far less important legal consequences than those now considered by the Tribunal, the public opinion of the world, the German people and jurisprudence, and jurisdiction in general.
The organizations now indicted are mostly large mass organizations, without aims and ideas of their own, organizations whose Party-political aims and purposes and Party activities developed to national dimensions.
A just and pertinent definition can be found for these organizations only on the basis of the evidence to be presented concerning the nature and aims of these organizations and the knowledge, intentions, and activities of their members. Considering the basic difference of the organizations which have been and are now being investigated, it is more than questionable whether it will be possible
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to take the legal basis applied so far to single cases as a basis for proceedings against political organizations comprising millions of people.
The Prosecution and the Defense are probably agreed that the Indictment is actually not directed against the organizations, which do not exist any more anyhow, but in fact against the former membership. Likewise the opinion seems to be held unanimously that the Tribunal as a matter of principle will give the members an actual opportunity, not only a theoretical one, to be heard on the question of the criminal character of the organizations; that follows all the more since, according to Law Number 10, the possibility seems to be excluded that the members may make essential objections in regard to the organizations and their own person during the subsequent individual trials. If the Tribunal does not measure the responsibility of the entire organization on the basis of the responsibility of the individuals comprising it, the danger of collective liability arises, which would create such a degree of injustice affecting individuals in such a way that it would be much worse than the justly attacked Sippenhaftung of the Third Reich, which in a criminal way aimed at involving innocent members of the family in proceedings taken against any one of its members.
In order to define a criminal organization, evidence and information as to the knowledge, intentions, and actions of the members of the organizations must be provided; similarly, before convicting individuals, either singly or in the mass, justice and human dignity alike demand that they should each be informed of the indictment and should each have an opportunity to be heard in his own defense. This requirement is imperative in view of the serious legal consequence threatening the members of the organizations in case of a verdict against them, such as loss of property, long-term imprisonment, and even the death penalty.
Last but not least, the hearing of all members of the organizations is also necessary because the unrestricted compilation of judicial evidence appears to be inevitable in order to work out the legal definition of criminal character.
The Defense do not ignore the fact that, considering the scope of the Trial, these basic demands are confronted with tremendous difficulties. The scope of the Trial, however, should not reduce the thoroughness of the procedure but, on the contrary, should increase it.
May it please the Tribunal, there are businessmen who are owners of several firms. If, now, the owner uses one of these firms to commit criminal acts, can we say that the other firms and their employees are also criminal? On the basis of this principle, I consider it necessary to point out which organizations, according to
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the reasons given by the Prosecution so far, are affected by the Indictment as units of the SS. They are:
1. The General SS -- strength at the beginning of the war, about 350,000 men. This number includes the variety of special units like cavalry, motor, information, music, and medical units.
2. The Waffen-SS, of which, at the end of the war, there were still under arms about 600,000 men. In the over-all number of Waffen-SS must be included about 36 divisions of the combat troops and a large number of reserve units of the reserve of the Armed Forces, as well as all those who were discharged from the Waffen-SS or who left in some other way. The verdict in this Trial would also affect the honor of the dead and the fate of their surviving relatives, so that the dead also will have to be included in this number which demonstrates the far-reaching significance of this Trial. Consequently, the total number of members of the Waffen-SS, especially when including those discharged as unfit for war service, would be many times larger than the figure representing the final strength.
On the basis of investigations under way the Defense will submit still more accurate figures, unless this is to be done by the Prosecution, which in my opinion ought to submit to the Court the information necessary for a verdict.
3. The Death's-Head Units -- before 1939, about 6,000 men.
4. SS troops for special employment, including the Adolf Hitler Bodyguard -- before 1939, about 9,000 men.
5. Honorary Fuehrer of the SS, whose number will probably turn out to be very large, as, for instance, the Farmer Leaders (BauernFuehrer) of the Reich Food Estate down to the District Farmer Leaders (KreisbauernFuehrer) were for the most part appointed honorary Fuehrer of the SS. Similar conditions prevail with respect to the chiefs of several branches of the state administration, who were often made honorary Fuehrer of the SS without any initiative on their part and without being able to do anything about it. Likewise many leaders of the Reich Veterans' League received honorary ranks in the SS.
6. The "supporting members" of the SS, among whom were also many non-Party members; their number is not yet known but it is certainly very considerable.
7. SS Front Line Auxiliaries of the Reich Post Office.
8. SS Construction Units.
9. SS Front laborers.
10. The entire Regular Police, to which belonged:
(a) The Municipal Police of the Reich with several special units, such as traffic squads, accident squads, information, cavalry, police
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dog squads, radio, and medical units; (b) the Gendarmerie with innumerable stations and posts, distributed all over the country, even in the smallest villages, which had rendered service without essential changes since Napoleon's time -- the motorized Gendarmerie supervised traffic; (c) the Municipal Police of smaller communities; (d) the Water Police; (e) the Fire Police; (I) the Technical Auxiliary Police Units, the Technical Emergency Service...
THE PRESIDENT: Dr. Babel, you are going rather fast if you want us to take down these categories.
HERR BABEL: Mr. President, I shall submit a copy to the Tribunal.
THE PRESIDENT: Personally, I prefer to understand the argument when I hear it.
HERR BABEL: I repeat: (f) the Technical Emergency Service, the Compulsory, Industrial, and Voluntary Fire Brigades; (g) Police and Gendarmerie Reserves; (h) the Air Raid Police, with security and auxiliary service; (i) the Town and Country Guard.
Further, there belonged to the Regular Police a great many central institutions, such as the State Hospital for Police, the Police Officers' Schools, the Technical Police School, the Police Sports and Cavalry Schools, Police and Gendarmerie Schools, the Water Police School and the Reich Fire Brigade School, the Driving and Traffic Schools, the Air Raid Precautions Teaching Staff, the School and Experimental Station for Police Dogs, and the Horse Depot of the Police.
In 1942 all the above-named units of the Regular Police, including the police troop units, totaled about 570,000 men. If we follow the presentation of the Prosecution, then all the groups, institutions, and organizations enumerated so far belong to the SS.
11. All those units of the Security Police which did not belong to the separately indicted Gestapo and SD, that is, offices and officials of the Criminal Police.
12. The Volksdeutsche Mittelstelle.
13. The offices of the Reich Commissioner for the Preservation of German Nationality.
14. National Political Institutes.
15. The Lebensborn Association.
16. The SS women auxiliaries.
All these groups, institutions, and suborganizations were under the administration and jurisdiction of the SS.
By way of summary, the Defense estimate the group of persons indicted as SS members at several millions. The verdict, however, will also affect the members of the families of all SS members, at
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least indirectly, so that additional millions will be affected personally, morally, and financially. Since, besides the SS, the mass organizations of the SA and the Leadership Corps are also indicted, a verdict against the indicted organizations would amount to a considerable part of the German nation's being considered criminal.
According to Law Number 10 of the Control Council, of 20 December 1945, every member may be subject to any penalty, including the death penalty, merely because he was a member of an organization which has been declared criminal.
The question put to discussion by the Court as to what objections can be made in this collective Trial and what objections can be made later in the individual trials has, in my opinion, been decided already by Law Number 10 to the effect that in the individual objections of a defendant, for example, ignorance of the criminal aims of the organization, cannot be given any consideration.
It is, therefore, necessary that evidence in this present Trial should be admitted to the widest extent possible. It should be made possible for the Defense to rebut, by means of evidence of the factual situation at the date of the respective act, the conclusions drawn by the Prosecution retrospectively from individual acts and facts.
When evidence on behalf of the individual defendants was submitted, the Tribunal declared its readiness to admit evidence if there is only the slightest degree of relevancy. Considering the significance of the decision of this Court for the millions of people affected and for their families, it appears to be an absolutely necessary condition that evidence be admitted to the largest extent possible in order to permit a just verdict, to clarify the facts, and especially to find out to what extent members of the SS participated in any criminal acts according to Article 6 of the Charter.
To clarify the question of whether it is permissible to conclude from the fact of the extent of the indicted actions, as maintained by the Prosecution, that the members of the SS had knowledge of these actions, it will also be necessary to admit evidence to the widest extent possible about the question as to whether or not and, if so, to what extent the members of the SS knew of these actions, as well as evidence of the facts which prove that the members of the SS, like the majority of the German people, did not know anything about these matters, owing to the precautions taken to keep them secret.
The discussions initiated by the Tribunal make it necessary to anticipate essential parts of the final pleadings. A ruling by the Tribunal on the question of evidence would at this time signify a ruling by the Tribunal on an essential part of its future decisions without any hearing of the evidence on the objections of the Defense
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having taken place. The Charter has a gap, insofar as it has not defined the facts which qualify an organization as criminal This gap cannot be filled by admitting evidence only in a certain direction. By doing so the Tribunal would anticipate an essential part of its final verdict.
According to what I have said, I believe that it will be necessary for the evidence to include all elements which might influence the decision of the question as to whether the organization of the SS was criminal. This, however, would hardly be possible within the framework of this Trial which, according to the Charter, is to be conducted as expeditiously as feasible. Therefore, I consider it necessary to separate the procedure against the SS and the SD from the trial of the individual defendants.
On 15 January 1946, partly for other reasons, I made a motion for separation. As far as I know, no ruling has yet been given. I repeat this motion as follows:
Judging from the course of the Trial and the procedure up to now, I have come to the opinion that the Indictment against the organizations of the SS and the SD -- for which I have been appointed Defense Counsel by an order of the International Military Tribunal of 22 November 1945 -- and probably against the other indicted organizations also, cannot be dealt with within the framework of this Trial for factual and legal reasons.
1. So far as the legal aspect is concerned, I restrict myself to a few brief points reserving for myself the right to present additional arguments at a later date:
(a) The International Military Tribunal has no jurisdiction. To this point I should like to remark that a few days ago I learned from a newspaper article that the objection of lack of jurisdiction has already been raised during the session of 20 November 1945 and has been overruled by the Court. I asked for a copy of the record of 20 November 1945 -- and also of the following days -- but I have not received it to date. Therefore, I could not take note either of the motion and the reasons given or of the decision of the Tribunal and its reasons.
(b) A criminal procedure against an organization is not possible or permissible, especially against an organization which has been dissolved.
(c) To appoint a Defense Counsel for a dissolved organization, that is, for something non-existing, is not possible and admissible.
2. As to the facts, I am compelled to makes more detailed statements in support of my motion.
On 19 November 1945 I was told orally that the International Military Tribunal intended my nomination as counsel for the
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organization of the Leadership Corps. After discussion I declared in writing my agreement to take over the obligatory defense. On 20 November 1945 I was told orally that I should take over the defense of the organizations of the SS and SD. On 21 November 1945 I was told orally that I had been appointed counsel for the SS and SD, and that I would receive the written appointment very soon. On 23 November 1945 I received the letter of appointment, dated 22 November 1945, and in the English language, and a few days later I received the German translation which I had requested. This letter, in the translation which I received, reads as follows:
"Pursuant to the direction of the International Military Tribunal you are hereby appointed to serve as counsel in the case of United States et al. v. Goering et al. for the members of the defendant organizations, the Schutzstaffeln der Nationalsozialistischen Arbeiterpartei (commonly known as the SS) and the Sicherheitsdienst (commonly known as the SD), who may make application to the General Secretary under the order of the International Military Tribunal attached hereto."
A few days later a file was handed to me with about 25 letters addressed to the General Secretary of the International Military Tribunal, partly from members of the SS and partly from relatives of such members. When I asked about my position and the position of these applicants in the Trial, I was told orally that these applications were to be submitted by me to the Tribunal in proper form.
On 23 November 1945 there was a conference, during which a number of questions and suggestions were brought up concerning the position and rights of these members of the indicted organizations, who had applied for and been granted leave to be heard, and of the defense counsel provided for them.
From 28 November 1945 until 11 December 1945 I was not able to obtain the applications filed by members of the SS and SD although I asked for them several times each day. At that time about 25 applications were handed to me each day, upon request, and I had to return them in the evening of the same day. I was told every time that the Tribunal needed them and that they had not yet been returned. When I received the folder again on 11 December 1945 the number of petitions had increased considerably.
By notice of 10 December 1945, according to the German translation which I received on 11 December 1945, the Tribunal made known its view that a member of an indicted organization who has applied to be heard on the question of the criminal character of the organization is not to be considered a defendant but will have the individual status of a witness only, although he will be permitted to give evidence; furthermore, that counsel representing any group or
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organization may, for this group or organization, exercise the rights accorded by the Charter to counsel for individual defendants.
After a closed session of the Court on 11 December 1945, in which counsel for the indicted organizations also took part, the Tribunal by notice of 17 December 1945 -- of which I did not receive a German translation until a few days later -- directed that the respective counsel, that is, counsel for the organizations, should represent only the indicted groups and organizations and not individual applicants.
Not until this date was the extent of my duties unambiguously stated and defined.
THE PRESIDENT: The Tribunal would like to know what your application now is. The object of this session is to have an argument from Counsel for the Prosecution and Counsel for the Defense in order that the legal questions with reference to these organizations should be clear, and what your personal experience during November and December of 1945 has to do with it the Tribunal is unable to see.
HERR BABEL: Mr. President, before I started reading this motion, I pointed out that already on 15 January of this year I made a motion to separate the procedure, and to my knowledge no ruling has yet been given. I have tried to repeat in part the reasons for this motion which I made at the time. If the Court does not think it desirable or necessary, I shall refrain from doing so.
THE PRESIDENT: I don't see any relevance in what you have been reading to us now, either to the question of whether there should be a separate trial or to any other questions with reference to the criminal organizations.
HERR BABEL: Mr. President, under these circumstances I shall not read those further arguments, which may be known to the Court from my written motion, and I shall come to the conclusion of what I still wish to say.
THE PRESIDENT: Dr. Babel, the Court will, of course, consider the suggestion which has been made, I think, by other counsel for the organizations as well as the suggestion which I understand you are now making, that it is necessary to have a separate trial. The Court will consider that. But what you have been saying to us does not appear to me to have any relevance to that.
HERR BABEL: Mr. President, in my former motion I merely wanted to point out the difficulties I had -- since I was still alone and had no assistance -- before I was in a position to devote myself to my real assignment; for that reason also, in my opinion, my motion for separating the trial was well founded at that time. Part, or the greater part, of what I said then has been repeated now. What I have read just now, and the remainder of my motion, might have
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more significance today, but I shall refrain from reading it, since the question of the separation of the trial has already been brought up and argued by others. Therefore, for the rest, I can also join in the arguments brought forward by my colleagues in this regard. In this connection I should like to point out that on 19 January 1946 I made a motion to be relieved of the defense of the SD because of conflicting interests.
I believe I ought to call this to your attention as I do not plead today for the SD, because I have been waiting for a ruling on my motion. I reserve for myself the right to make further statements after I receive a copy of the record of 28 February, in particular on the question of the membership of individuals and groups of persons in the SS, on the definition of the lines of demarcation between the SS and the governmental sector, on limitations as to periods and organizations, on the question of voluntary membership, on limitation of responsibility for other reasons according to criminal law, and on the jurisdiction of the SS courts.
In view of the tremendous amount of work which I had to do so far, I have to this date not yet been able to take a stand on all these points. I wish to make the remark that the suggestions made by the Prosecution and several of the Defense Counsel as to the presentation of evidence seem untenable to me. They would entail a considerable restricting of the Defense. To carry them out seems to be impossible also for reasons of time.
This concludes my argument.
THE PRESIDENT: The Tribunal will now adjourn.
[The Tribunal recessed until 1400 hours.]
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THE PRESIDENT: The Tribunal has decided to alter the order of procedure, and they will therefore not sit in open session tomorrow but sit in closed session tomorrow, Saturday; and sit on Monday in order to hear the applications for witnesses and documents by the next four defendants in order.
Now, there is another counsel for the organizations to be heard, is there not?
DR. LATERNSER: The main subject of the discussion which, by request of the Tribunal, has taken place today and yesterday is the question as to what is relevant evidence in the case against the indicted organizations.
As a preliminary question the concept of the criminal organization in particular must be clarified. Consequently it is not the task of counsel for the organizations to plead in detail; that should be reserved for the later final address by Defense Counsel, but rather the subject of discussion is definitely limited, as far as the Defense is concerned, to the above-mentioned question of the relevancy of evidence and also to certain fundamental issues which must be touched upon in order to judge the relevancy of evidence.
According to the sequence provided by the Indictment, our colleague Dr. Kubuschok spoke first as defense counsel for the Reich Government. In his address he dealt with the general issues in compliance with Point Number 1 of the decision of the Tribunal of 14 January 1946. In order to avoid unnecessary repetition, I should like to make the legal arguments of my colleague Kubuschok, to their full extent, part of my own argument. At the same time I submit the request that the Tribunal pay particular attention to the contents of these arguments presented yesterday.
With regard to the definition of the concept "criminal organization," I should like to make a few short remarks and additional statements. It is obviously a well-considered provision of the Charter that the Tribunal can declare the indicted organizations criminal; it is thus not obliged to do so but can exercise its free and conscientious judgment.
If the Tribunal comes to the conclusion that the declaration of the group as criminal can or has to lead to impossible, untenable, and unjust consequences, then the rejection of the Prosecution's demand would as a matter of course be mandatory.
It has already been stated by those who have just spoken what grave legal consequences would result, as far as the members are concerned, from a declaration of the criminality of the groups and how the undoubtedly vast number of innocent members would also
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be affected by that declaration. As far as these consequences for the members are concerned, it cannot be emphasized strongly enough that all the members of the groups and organizations will be affected directly by a declaration of criminality, insofar as by the verdict of the Tribunal it would irrefutably be established that they are accused of a crime, namely, the crime of having belonged to a group or organization which has been declared criminal. That this membership is a crime already follows clearly from Articles 10 and 11 of the Charter. In Article 10 it is stated that the competent courts of the individual occupation zones have the right to put all members on trial because of their membership in groups or organizations which have been declared criminal.
It is further enacted that in those trials the criminal nature of the group or organization shall not be questioned. Thus, the members can be indicted because of membership in the group or organization; and, if every indictment before a court can, of course, deal only with a crime, then it is already established that membership in the group or organization is a crime. Furthermore, in Article 11 of the Charter membership in a group or organization declared criminal is specifically designated a crime. That follows from the very words of the article, which reads: ". . . with a crime other than of membership in a criminal group or organization...."
In the same way in the law of 20 December 1945, issued to implement the Charter, membership in a group or organization declared criminal is specifically declared a crime. Consequently the finding of the criminal character of the group or organization by the Tribunal will state with immediate effect that all members, because of their membership in the group or organization, have committed a crime, and this must necessarily lead to untenable consequences.
It is not correct to say that these members can exculpate themselves in the subsequent trials before the individual military courts. If mere membership in the organization is defined as a crime, they can take exception to the charged guilt only by declaring that they were not members of the group or organization.
If Justice Jackson is of the opinion that in the subsequent trials they could plead that they had become members under duress or by fraud, the admissibility of this plea nevertheless seems to be highly questionable.
Justice Jackson himself pointed out that a plea of personal or economic disadvantages cannot serve as grounds for duress. What other kind of duress could be considered relevant? According to German criminal law only physical coercion would be left for consideration, and that only for the period of its duration. In this case also fear of personal or economic disadvantage is no ground for
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exculpation as far as remaining in the group or organization later on is concerned.
Thus a member of a group or organization declared criminal has in the subsequent trial only the possibility of pleading certain extenuating circumstances which might influence the degree of penalty. The question is now whether, according to the principles of justice, these inevitable consequences are tolerable; so far as innocent members are concerned, this question can be definitely answered only in the negative.
Justice Jackson is further of the opinion that there probably are no innocent members of the organizations concerned, because it is simply incomprehensible to sound common sense that anyone joined the indicted groups or organizations without having known from the very beginning, or at least very soon after, what aims and methods these groups and organizations were pursuing.
This point of view may appear comprehensible to the retrospective observer, after the crimes charged to the groups and organizations have collectively been brought to light. That the mental attitude of the members to the aims and tasks was or could have been entirely different at that time cannot be doubted by anyone.
If one were to subscribe to Justice Jackson's interpretation, then the provision of Article 9 of the Charter providing for a hearing of members on the question of the criminal character of the organizations would make no sense at all. It would then be entirely superfluous to admit any sort of evidence in respect to this, and it would furthermore be unnecessary to discuss the criminal character, as the Tribunal itself has suggested.
If we follow the Prosecutor's line of thought that, according to sound common sense, it is obvious that all the members took part in the crimes mentioned in Article 6 of the Charter, then the provisions regarding the Common Plan or Conspiracy would suffice altogether as grounds for prosecuting and punishing these members who, without exception, are to be considered guilty. In this case the structure of the declaration of criminality and the stipulation of its consequences would in no way have been necessary.
From the following deliberation it is to be inferred that the declaration of the criminality of the organizations is not necessary and can be dispensed with altogether.
Justice Jackson declared that, of course, no one intended an indictment of the innumerable members of the groups and organizations, which would result in a flood of trials which could not possibly be dealt with in one generation. What will be done is to seek out and find only those who are actually guilty and have them brought to trial.
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Thus it is not in any way necessary to create such a large circle of members through the declaration of criminality and to select the guilty from this circle. This selection can take place without creating this circle. That in a group or organization of many members there were obviously a number of innocent members is a fact of common experience which cannot be disputed, and this thought is taken into consideration not only by the Charter, but also by the Prosecution in that they want to exempt from one of the organizations the category of those with low-grade routine tasks, obviously because of the conviction that these had nothing to do with crimes, for otherwise they would have been members of or participants in the criminal conspiracy.
Besides this category, however, a number of other members come into consideration whom one cannot speak of as guilty in the legal sense of the term; for instance, those people who did not give any thought at all to the aims of the group. All these people would of necessity not only be dishonored by a declaration of the criminality of the group or organization but, if indicted, would also be punishable because of mere membership. Incidentally it might be mentioned that eventually their economic existence would be menaced or destroyed because of their membership in the group or organization and the defamation brought about by the declaration of criminality.
But again it must be asked whether all these consequences have been weighed and can be justified in view of the basic principle of all criminal law systems, according to which only the guilty are to be punished, and in view of the principle of substantive justice. That ought to be answered in the negative all the more if these members who would necessarily be affected by the verdict of the Tribunal were not granted any legal hearing in this Trial.
It has already been pointed out that granting a legal hearing to the vast majority of the members is unfeasible for technical reasons. Thus the unique situation arises that the Tribunal would pass verdict on all those members without knowing whether or not numerous innocent members would be affected thereby.
If Justice Jackson further pointed out that the issue under dispute is nothing new, but can be found in the penal codes of all other states and in particular also in Germany, this view likewise can in no wise be supported. The German laws and precedents quoted are of a character entirely different from the structure of the Charter.
In Germany, as in almost all other states, the punishment of groups and organizations is not known at all, only the punishment of individuals is known. No German judgment has yet been passed by which a group or organization as such was subjected to penalty or was declared criminal. It is very well possible, though, that in
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the trials against members of criminal organizations the criminal character of the organization was stated in the opinion. This statement, however, had effect only on the convicted members and not on other members who were neither indicted nor convicted.
The provisions quoted of Articles 128 and 129 of the German Penal Code are provisions which corroborate exactly the view of the Defense, because they threaten only the participants in an illegal association with penalties and not the association itself. Also, the French laws quoted deal merely with the threat of punishment for participation and membership in certain associations with punishable pursuits. A possibility for declaring the association itself criminal is not to be found in these legal sources either.
The French Prosecutor quoted, first of all, Articles 265 and 266 of the Penal Code. The first provision forbids the forming of associations with a punishable pursuit; the second subjects only the participants to penalty. Likewise, the French law concerning armed groups and private militia, of 10 January 1936, provides only for the punishment of the participants. The same is true of the other law quoted, that of 26 August 1944, which provides only for individual responsibility. None of the above-mentioned laws allows the punishment of organizations. Consequently, they can support only the legal view of the Defense.
If in England and America -- as exceptions -- associations as such can be punished, that can be done only on account of certain groups of offenses and only to the effect that either the dissolution of the corporation may be pronounced or fines imposed. Naturally in such proceedings it is a necessary condition for the Prosecution and the Defense that the corporation as such be represented during the proceedings by its functionaries and representatives and be able to defend itself; whereas in this Trial the groups and organizations as such are summoned before the Court, although they do not exist any longer and although their functionaries are absent.
It has never been the case in any country that groups and organizations are declared guilty or criminal and that on the basis of this declaration of the Court all members of the groups or organizations can be or must be indicted and punished because of their mere membership. This is the completely novel and odd feature which stands in contrast to the existing law of any country.
I believe it is permissible to say that neither England nor America would ever be willing to pass such a law for their own population. If all this proves that the declaration of criminality demanded must automatically result in grave and completely untenable consequences as demonstrated, then the demand of the Prosecution should be denied in the name of justice. The Charter, which in no way obliges the Tribunal to make such a declaration,
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would also not be violated thereby. In this way an injustice which could only injure integrity of the judgment of the Tribunal in the eyes of our contemporaries and of posterity would be avoided.
My arguments lead to the following conclusion:
1. The Tribunal should, because of the legal arguments presented, as a matter of principle, refuse to declare any group or organization criminal; it is within the Tribunal's power to do so.
2. If this is not done, the concept of the criminal organization must be so defined that the innocent members are protected from serious consequences. This can be done only by means of a definition, as suggested yesterday by my colleague, Kubuschok. Accordingly, those subjects of evidence proposed by him should also be admitted if they are not a priori irrelevant because of the fact that, for legal reasons, the Prosecution's demand of a verdict against the groups and organizations cannot be granted. It is necessary that the following additional evidence be admitted for the group of the General Staff and the OKW, which I represent:
(1) The group included under the designation "General Staff and OKW" is not such a group and is not an organization. My explanation of this subject of proof is as follows:
(a) Justice Jackson is of the opinion that the concept of "group" is more comprehensive than that of "organization," that it does not have to be defined but can be understood by common sense. To this I must object that those who occupied the highest and the higher command posts represent the heads of a military hierarchy as it is to be found in every army in the world. There was no relationship whatsoever evident among the members of this group. Nor can such relations be assumed merely because of the official connections between the various offices or because of the channels which actually existed. Moreover, since the circle of people whom the Prosecution wish to include in this group is admittedly composed in a completely arbitrary way, simply on the basis of official positions occupied within a period of 8 years, there is no evident tie which could justify the assumption of the existence of a group. But to form a group it is absolutely necessary to have some connecting element in addition to the purely official contact between offices.
(b) Aside from the Chiefs of the General Staffs of the Army and the Air Force, none of the individual persons in the group belonged to the General Staff. The German General Staff of the Army and the Air Force -- the Navy had no admiral staff -- was headed by the Chief of the General Staff and consisted of the General Staff officers who acted as operational assistants to the higher military leaders. For these reasons the designation or name given by the Prosecution to this fictitious group under indictment is false and misleading as well.
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(2) The following subject of evidence, in addition to those advanced by my colleague, Kubuschok, should be admitted for the group of the General Staff and OKW: The holders of the offices forming the group did not join a group voluntarily, nor did they remain in it voluntarily. The admission of this subject of evidence is necessary for the following reasons: Justice Jackson stated yesterday that joining a group, or membership in it, must be voluntary. This condition is not present in the case of the group which I represent. The vast majority of the indicted higher military leaders had come from the Imperial Army and Navy; all of them had served in the Reichswehr long before 1933. They did not join any group, but were officers of the Armed Forces and got their positions, which they were not at liberty to choose, only on the basis of their military achievements. They also were not at liberty to withdraw from these positions without violating their duty of military obedience.
(3) All evidence is to be admitted which refers to the charge against the group of the General Staff and the OKW as contained in the summary of arguments. Evidence on these points could be presented in the following way:
(1) A number of people concerned should make sworn affidavits from the contents of which conclusions could be drawn regarding the typical attitude of a certain number of those involved. (2) Some typical representatives of the group ought to testify before this Court about the subjects of evidence submitted. (3) Every other sort of evidence having some probative value should be admitted to the extent necessary.
We request that this evidence should be admitted at present to a full extent for the time being without prejudice to a subsequent decision on the weight of this evidence, just as Justice Jackson suggested the same thing on 14 December 1945 with regard to the evidence offered by the Prosecution, for at present a binding decision on the relevancy of the evidence offered cannot be reached.
Whether this evidence is necessary at all and whether or not and to what extent it is relevant depends on the following: (1) Whether the Tribunal, following the arguments of justice and fairness as submitted and by authority of the power given it, will decline to declare these groups and organizations criminal. (2) Or, if this is not done, in what way it defines the concept of criminal groups and organizations. These two points cannot be definitely decided at present, since there is still a great deal to be said about these thoroughly difficult and significant and completely novel problems, as well as about the impressive address delivered by Justice Jackson. One of my colleagues has undertaken to work out a comprehensive memorandum on all these problems and questions
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which will be ready in about two or three weeks. I request that additional argument pertaining thereto be reserved for me and my colleagues at that time.
One last point: The Tribunal ought also to reach a ruling as to what is to be done about the last word for the organizations.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear you in reply.
MR. JUSTICE JACKSON: I think there is not much that I care to say in reply, but there are one or two points which I would like to cover. It has been suggested that there be a separation of the trial of the issues as to the organizations from the Trial now pending. I think that is impossible under the Charter. I think the Trial must proceed as a unit. Of course, it is possible to take up at separate times different parts of the Trial, but the jurisdiction conferred by Article 9 for the trial of organizations is limited.
It is at the trial of any individual member, of any group, et cetera, that this decision must be reached and it must be in connection with any act of which the individual may be convicted. So I think that any separation, in anything more than a mere separation of days or separation of weeks of our time, is impossible.
I find some difficulty in understanding the argument which has been advanced by several of the representatives of the organizations that there would be some great injustice in dishonoring the members of these organizations or branding the members of these organizations with the declaration of criminality. I should have thought that if they were not already dishonored by the evidence that has been produced here, dishonor would be difficult to achieve by mere words of the declaration. It isn't we who are dishonoring the members of those organizations. It is the evidence in this case, originating largely with these defendants, that may well bring dishonor to the members of these organizations. But the very purpose of this organizational investigation is to determine that part of German society which did actively participate in the promulgation of these offenses and that those elements may be condemned; and, of course, if it carries some discredit with it, I think we must say that the discredit was not originated by any of our countries; the dishonor originated mainly with those in this dock, together with those whom the fortunes of war have removed from our reach.
There seems to be some misunderstanding as to just what we mean, or at least we do not agree as to what is to be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure.
Now let us contrast the Wehrmacht and the SS to get at what I mean by regarding an organization as generally voluntary. The
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Wehrmacht was generally a conscript organization, but it may have had a good many volunteers in it. I do not think we would be justified, because there were volunteers, in calling the Wehrmacht a voluntary organization. The SS, on the other hand, was generally a voluntary organization, but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations because of a few members than it would to classify the Wehrmacht as voluntary because of a few members. In other words, in neither case would we be justified in avowing, as we might say, the "tail to wag the dog." It is a question of the general character of the over-all organization that decides what these organizations are.
Now, of course, if the Tribunal saw fit to say that its declaration was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that of course we were not trying to reach conscripts. But if you sit here week after week determining who is a conscript and just where that principle leads, that, I think, would be quite apart from what we ought to do here.
A great deal of argument is addressed to the fact that proof is lacking -- or that here should be stronger proof -- that these organizations' real criminality was known to the members; and the inference seems to be that we must prove that every member -- or, at least -- that we cannot hold members who did not know this criminal program on the part of these organizations. I think this gets into a question, perhaps, of the sufficiency of proof rather than one of principle, but it seems to me again that we have the common sense division.
If some one organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to a criminal purpose, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held unless we proved actual knowledge. Or, if a labor union, ostensibly for the purpose of improving the welfare of its members, has its funds or properties or the prestige of its name diverted by those who happened to gain control of it to criminal purposes, then you have a situation where the members might not be chargeable with knowledge.
But when I speak of knowledge sufficient to charge members, as I did, I do not mean the state of mind of each individual member. That would be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore the state of mind of an individual; and, in the second place, it is impossible to explore
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the state of mind of a million individuals. So we might as well drop this from consideration, if that were to be the test.
But let us look at this over all program. How did these few men who were the heads of this Nazi regime kill 5 million Jews, as they boast they did? Now, they didn't do it with their hands; and it took disciplined, organized, systematic manpower to do it. That manpower wasn't casually assembled. It was organized, directed, and used. Can the killing of 5 million Jews in Europe be a secret? Weren't the concentration camps known in every one of our countries? Were they not a byword in every land in the world -- the German concentration camps -- and yet we have to hear that the German people themselves had no knowledge about it.
Our public officials were protesting against the slaughter of Jews diplomatically and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there isn't a man among counsel who would not have turned white if, in the night at his door, someone rapped and said he was representing the Gestapo. The name of that organization was known -- unless we are to assume that it was singularly secret in Germany, but known to the rest of the world.
That sort of thing bears on this question of what men who joined these organizations ought to know. There was no declared and ostensible purpose of the SS, SA, and several of these organizations, except to carry into effect the Nazi program. They would make themselves masters of the streets.
The story is all in the evidence, and I won't go on to repeat it. The program was an open, notorious program, and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the United States on a somewhat similar question: "We as judges are not obliged to close our eyes to things that all other men can see." And this was notorious and open.
It is a little hard, if Your Honors please, for an American patiently to listen to the arguments made here again and again, that there is some plan here to punish with death penalties or extremely severe penalties people who innocently got caught in this web of organizations. If there were the slightest purpose to go through Germany with death we wouldn't have bothered to set up this Tribunal and stand here openly before the world with our evidence. We were not out of ammunition when the surrender took place, and the physical power to execute anyone was present.
These powers have voluntarily, in their hour of victory, submitted to the judgment of this Tribunal the question of the criminality of these organizations. And it seems to me a little trying on the patience of representatives of those powers to be told that back of
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this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the state of mind that survived this Nazi regime, rather than upon us.
Control Council Act Number 10 -- I don't know whether Your Honors have copies of that -- Control Council Act Number 10, does make membership in the categories which may be convicted a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual any individual as a member, and that is all that we have here in a declaration, in substance, an indictment which enables you to put the individual on trial.
It is true that the punishment may include a death penalty, and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases; the SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they did not actually participate.
But I call your attention to the fact that in Provision Number 3 of Act Number 10 the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. And during this period of reconstruction of German society, those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi program, first on the German people and then on the world, are treated exactly the same as the German who was the victim of it. Now, isn't it our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe and those who were passive and helpless in the face of overwhelming power?
Counsel for one of the defendants has already shown that, in administering the affairs, an SA man has been made a councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labor for life. There is a purpose to have the basis for bringing these people in for what the military people call a "screening" and find out what kind of people they are and what they have been up to.
This Control Council Act -- while I am frank enough to say I would not have drafted it in the language it is drafted in -- this Control Council Act leaves, in the first place, discretion as to whether
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prosecutions will take place, in the hands of the occupying powers. I do not share the fears of counsel that millions -- I have forgotten how many millions it was estimated -- would be brought to trial. I know that the United States has worries enough over manpower to bring to trial 130,000, so we do not want to bring to trial millions. And it is for that reason that we have consented to the exclusion of some of these categories where it seemed we could exclude them very safely without jeopardizing the over-all program of dealing with these people.
Now, I want to make clear why it is that we do not want to go, in this Trial, into this question of each of these many subdivisions of these Nazi organizations and the functions of each. You have heard some of them named. They are innumerable. Some of them existed a short time and then disappeared.
The trial of each of these subdivisions would take -- I would not venture to say how long. We do not want to see this Court trivialized. This is not a police court. This was not set up to be a police court; and this is a police court function, after this Court has laid down the general principles, to take up the case of individuals or of many individuals and to determine whether they are within or outside the definition.
I do not know whether a mounted group of SS men are any less dangerous than an unmounted group. I had always associated the equestrian art with warfare, but I do know it will take a long time to determine it.
I do not know whether SS motorcycle mounted traffic officers are less dangerous than those who do not have motorcycles, or were less criminal, but I should have a suspicion that the greater the mobility, the more active the group was in carrying out these widespread offenses.
I do not know about the physicians. I do not think it is up to us to try it in this case, but I suspect that a medical corps meant there might be some casualties; and this thing isn't innocent on its face, as it appears. This will require a great deal of evidence, if we go into each of these things, and it seems to me that it would be out of keeping with the character of this Tribunal to go into that kind of question.
It is not necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you should not go into the individual, because if the group is within the general contour, each one member of that group is entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group is not worth prosecuting. We have no illusions about this thing. We are never going to catch up with all the people who are guilty, let alone
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prosecuting the innocent. If they are prosecuted, however, it may very well be that the group would be treated together in some way, so that there could be a single determination as to each group.
In any event, since each individual has to have a hearing, there can be no point in having a hearing for subgroups between the individual and the principal organization that we ask to have declared guilty.
If there were any point in our fully trying this question and deciding just who is in and who is out of the circle of guilt, there would be no reason why the Charter would not have given you power to sentence. There would be no reason for further trials.
It seems to me that we must look at this matter somewhat in the light of an indictment. It is true it is an accusation against all members of the group. It has no effect unless it is followed by a trial and a conviction, any more than an indictment that is never followed by a trial would have effect. The effect of the declaration is that the occupying power may bring these individual members to trial. Administrative considerations will enter into it -- the degree of connection. It may very well be that it will be decided that those who were mere members and not of officer rank of any capacity should not be punished. We cannot say just what will be necessary.
Frankly, I do not know just what manpower is going to be available for the United States' part in the follow-up of these trials. There are difficulties which I do not underestimate, but I do know that the idea that this means a wholesale slaughter or a wholesale punishment of people in Germany is a figment of imagination and is not in accordance with either the spirit of this Trial or the purpose of the Charter.
I think that is all that I care to say unless the Tribunal has some question, which I will be glad to answer.
THE PRESIDENT: Mr. Justice Jackson, there are one or two questions I should like to put up to you.
First of all, in your submission, do the words in Article 11 have any bearing, the words at the end of Article 11, where it is provided that "such court" -- in the last three lines -- "may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations." Do the words "for participation in the criminal activity of such groups or organizations" add anything to the definition of the word "membership" in Article 10?
MR. JUSTICE JACKSON: I do not think they add anything. Frankly, the wording of this article has bothered me as to just what it does mean, since no punishment is imposed by this Tribunal
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at all for participation in the activities of the group. The purpose of the language was to make clear that the punishment for an individual crime, if one committed a murder individually or was guilty of aggressive warfare planning, is not to interfere with the punishment for being a member of a criminal organization or vice versa, to make clear that they are not mutually exclusive. But the language I am not proud of.
THE PRESIDENT: Secondly, would an individual who was being tried before a national court be heard on the question whether, in fact, he knew of the criminal objects of those groups?
MR. JUSTICE- JACKSON: Well, I think he would be heard on that subject, but I do not think it would be what we in the United States would call a complete defense. It would perhaps be a partial defense or mitigation. I should think that the tribunal might well -- the court trying it -- might well have felt that he should have known under the circumstances what his organization was, despite his denial that he did not; and that his denial, if believed, will weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make as a decisive criterion of guilt the state of mind of one of these members where you have no power whatever, no ability whatever, to controvert his statement of that state of mind. I think you have to have some more objective test than his mere declaration.
THE PRESIDENT: Then I understood you to say that it was not for the Tribunal to limit or define the groups which were to be declared criminal; but, as the Charter does not define them, isn't it necessary for the Tribunal to define what the group is?
MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the groups which it is condemning, sufficiently so that it would afford a basis for bringing the members to trial for membership. I do not think it is necessary to define the exact contours of guilt. It is defined in reference to membership rather than in terms of guilt or innocence. That is to say, it may be that there is some little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization. I do not think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all, to separate out those elements. The SS is a well-known organization. Its contour is easily defined by membership, and within those contours it does not seem to me necessary to make exceptions.
THE PRESIDENT: But if there were to be an essential distinction on the question of criminality between the main body of the SS and, for instance, the Waffen-SS, would it not be the duty of the Tribunal to make that distinction?
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MR. JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial -- one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I do not think it is necessary at this stage of the proceeding, where the individual is not here, to eliminate him. I do think that the principle that acts performed under conscription are not within the condemnation of the Tribunal is quite a different thing.
THE PRESIDENT: Is it possible for this Tribunal to limit the powers of the national courts under Article 10 by either defining the group or giving a definition of the word "membership" in Article 10?
MR. JUSTICE JACKSON: Well, if Your Honor please, I think every tribunal in its judgment has a right to include, in its judgment, provisions which will prevent its abuse. And I do not think this Tribunal is lacking in power to protect its decision against distortion or abuse. I take it that is the question rather than the question of if the national courts brought these persons to trial and paid no attention to the declaration -- I do not suppose that there would be any power in this Tribunal to stop them from doing it. But I assume you mean as a consequence of this declaration, and I think that the declaration can be circumscribed or limited. I certainly would insist that the Court had inherent power to protect its judgment against abuse.
THE PRESIDENT: Do you think this Court could direct the national court to take any particular defenses into consideration?
MR. JUSTICE JACKSON: I do not know that it could put it in just that way, but I suppose it could define the categories in a way that the declaration would not reach any except those included within it. In other words, I think the declaration that this Tribunal will make is within this Tribunal's control. When you get away from the declaration, I think you would have no control over the national courts. But insofar as they relied on the declaration, you would have power to control the effect of the declaration, provided the effect was not inconsistent with the provisions of the Charter.
THE PRESIDENT: You did, I think, make some suggestions for obtaining such evidence as you thought was necessary. Do you wish to add anything to that?
MR. JUSTICE JACKSON: I have nothing to add to that, Your Lordship. I realize that the defendants' counsel have great difficulty in getting evidence, great difficulty in communication. I have it myself -- great difficulty in getting letters delivered, great difficulty in all of these things. But I will state to this Tribunal categorically -- I do not know what camp it is that was referred to yesterday as
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substantially refusing counsels' application to see their clients -- but so far as the American Zone is concerned, counsel, if they are properly cleared to go there, will be given every facility to get every kind of evidence that is available in that camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered. We will put everything in their way to help them that is possible.
Of course, there are security problems involved, and counsel cannot just walk into a camp and make himself at home. He will have to be cleared in advance so that he meets the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.
THE PRESIDENT: Thank you.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to ask you a few questions. Some of them will be somewhat repetitious of what the President has already said. You will excuse me if I repeat one or two of those. Most of them are directed for the purposes of this argument, which, I take it, is to form some kind of definition of the organizations, which may, of course, not be final but will at least give us a view of what should be relevant to the defendants' making up their cases. So the questions are addressed to that, rather than any ultimate theory of definition.
You said that you would suggest excluding clerks, stenographers, and janitors in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?
MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a difference between a concession by the Prosecution and the necessity for the Tribunal's making a decision.
It might appear logical that if we conceded clerks, stenographers, and janitors of the Gestapo were not to be included, that no clerks, stenographers, or janitors should be included. It does not follow. The relationships in different organizations differ.
From what we know about the Gestapo situation, we are satisfied that clerks, stenographers, and janitors in that organization ought not to be included, and we do not want to waste any time on it.
THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those clerks would not have had knowledge of what was going on in the Gestapo?
MR.JUSTICE JACKSON: I do not think either that they had sufficient knowledge, in general, to be held or that they had sufficient power to do anything about it if they did.
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Now, this question of dealing with minor people -- and it is one of the questions that the Court inevitably gets into, if it undertakes to draw these dines itself rather than letting them be drawn administratively by what we choose to prosecute -- is illustrated by just this sort of thing.
One of the difficulties with the Court is that it tries to be logical, and ought to be logical perhaps. I have always thought that was the great merit of the jury system, that juries do not have to be, and in prosecuting we do not have to be. It may look illogical to exempt small people in one organization and not in another, but there were differences in them.
For example -- I think it is in evidence; if not, it will be -- it was pointed out at one meeting by the Defendant Goering that chauffeurs to certain officers had profited to the extent of half a million Reichsmark from Jewish property that they had gotten their hands on. Now, I suppose ordinarily you would say that a chauffeur for an official was not a man who had much discretion and not a man who was expected to know much about what his employer was doing, but you have a great deal of difference in their relations to these men.
So far as I am concerned, I want to make perfectly clear -- and I think it will be assumed -- the United States is not interested in coming over here 3,500 miles to prosecute clerks and stenographers and janitors. That is not the class of crime, even if they did have some knowledge, that we are after, because that is not the class of offender that affects the peace of the world. I think there is little reason to fear that that sort of person -- unless there is some reason to feel that some guilty connection exists beyond merely performing routine tasks -- will be prosecuted in as big a problem as we have on hand here.
THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them in the SS, let us say?
MR. JUSTICE JACKSON: I would not exclude them.
THE TRIBUNAL (Mr. Biddle): I take it that would include them.
MR. JUSTICE JACKSON: If they were members, they would be included; if they were merely employees, that is something different; but if they took the oath and became a part of the SS organization, I think they stand in a different relation to the employed clerks of a government agency.
THE TRIBUNAL (Mr. Biddle): Now, somewhat along those same lines, you stated, in trying to define what a criminal organization was, that its membership must have been -- I am quoting your words -- "generally voluntary" and its criminal purpose or methods open
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and notorious and "of such character that its membership in general may properly be charged with knowledge of them."
Now I am going to ask you a question which is somewhat repetitious of what the President asked you, but perhaps you can specify a little. Would it not be inconsistent with that test which you suggest for criminality, if we decline to consider whether any substantial segment of the organization -- I mean a section or segment might comprise a third of the whole organization or even more, like the Waffen-SS within the general SS -- was either conscripted, which is one test, or ignorant of the criminal purpose? Because if such a substantial segment could be shown to be innocent under these tests, would it not be necessary either to decline a declaration on that ground -- that the criteria were not generally satisfied as to the accused organization -- or else to exclude the innocent segments from the deposition of the criminal organization?
Now, that is a rather involved question but it seems to me, if the test is the knowledge or assumed knowledge, that evidence that a very large segment did not and probably could not have had knowledge would be relevant and would be relevant not only for the purposes of evidence, but for the purposes of definition?
MR. JUSTICE JACKSON: Well, I think you have at least two ideas in the question that must be dealt with separately. The first is that conscription and knowledge, to my way of thinking, present a very different problem.
As to conscription, as I said before, I think, if the Tribunal saw fit to condition its judgment not to apply to conscripted members of any organization, I shall have no quarrel with it. I have always conceded we did not seek to reach conscripted men. If the overwhelming power of the state puts them in that position, I do not think we should pursue them for it.
If the Tribunal says that the Waffen-SS must be excluded because it was conscripted, that raises a question of fact.
THE TRIBUNAL (Mr. Biddle): Yes.
MR. JUSTICE JACKSON: And it raises a question of fact that we would be 3 weeks trying and that is what I want to avoid, because there were Waffen-SS and other Waffen-SS and there were different periods of time and there were different conditions; and we get into a great deal of difficulty if we undertake to apply the principle that the conscript is not to be punished; and that, it seems to me, is what is properly left to the future course, the question as to whether an individual or a number of individuals comes within that principle. In other words, I think this Court should lay down principles and not undertake what I call "police court administration" of those principles as applied to individuals.
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THE TRIBUNAL (Mr. Biddle): May I interrupt you for a moment on the first point? I take it, then, that you would think it appropriate to express a general limitation with respect to conscription in the declaration, but not to designate to whom that applies?
MR. JUSTICE JACKSON: I would have no objection to such a designation as far as I am concerned. Now, the other question is a question of knowledge, which is infinitely more difficult. We do not want to set up a trap for innocent people. We are not so hard up for somebody to try that we have to seek and to catch people who had no criminal purpose in their hearts; but there can be no doubt that every person affiliated with this movement at any point knew that it was aimed at war and aggressive war. There can be no doubt that they knew that these formations under the Nazi Party were maintaining concentration camps to beat down their political opposition and to imprison Jews and the terrible things that were going on in these camps.
To ask us to prove individual knowledge or to ask us to accept the man's own statement of his state of mind is to say that there can be no convictions, of course. It seems to me that the scale of this crime and the universality of it, going on all over Germany, concentration camps dotting the landscape, and the vast population, is sufficient to charge with knowledge the principal organizations of the Nazi Party which were responsible for those things. The test that I think applies as to knowledge is not what some member now on the witness stand may say he knew or did not know; but what, in the light of the conditions of the times, he ought to have known -- what he is chargeable with.
THE TRIBUNAL (Mr. Biddle): Wouldn't it follow from that that there was no taking of any evidence on what was generally known?
MR. JUSTICE JACKSON: Well, I think the proof of what was going on establishes the point as to chargeability with knowledge.
THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants should not be permitted to give any evidence as to that which was generally known with respect to what was going on?
MR.JUSTICE JACKSON: To what was generally known, I do not think the defendant's denial that he knew what was going on has any materiality.
THE TRIBUNAL (Mr. Biddle): That was not my question. My question was whether a witness could be permitted to testify that the acts of the particular organizations were not generally known to its members. Would you exclude that evidence?
MR. JUSTICE JACKSON: I certainly would, and if I heard it I would not believe it; but perhaps my...
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THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of knowledge, you wouldn't permit the defendants to meet that test?
MR. JUSTICE JACKSON: I should say that that is just exactly the situation, that the Court would take judicial notice, from the evidence that is in, that this was a thing that must have been known in Germany; and I would not think that it would be permissible for a citizen of the United States to testify that he did not know the United States was at war, a fact of which he is chargeable with knowledge; and it seems to me that the magnitude of these things is so equally established and the repeated daily connection between the organizations and this criminal program is so equally clear.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two or three more questions. One is directed to the General Staff. Does the particular date when an individual accused -- I beg your pardon -- when an individual assumed one of the commands listed in Appendix B of the Indictment have any bearing on whether he is a member of the organization? Now, I am going to bring that question down to the General Staff.
MR. JUSTICE JACKSON: Perhaps I should warn you of this -- that I am not a military man. I have not specialized on that subject and I shall want to refer your question to someone whose knowledge is more reliable than mine.
THE TRIBUNAL (Mr. Biddle): I shall ask the question directed to you as a lawyer and not an expert in military matters. Assume that one of these individuals became an army group commander after the wars of aggression had been planned, proposed, initiated -- roughly, that would be after 1942; let us say, after Pearl Harbor -- and had reached the stage when Germany was on the defensive; is his acceptance of a command at that date sufficient to make him a member of the organization?
MR. JUSTICE JACKSON: I should think it would.
THE TRIBUNAL (Mr. Biddle): The reason I asked you that, Mr. Jackson, is that I thought you had rather indicated in your opening address that the starting of the war was the essence of the crime rather than the waging of war, and I was wondering whether in that case there would be any difference which we should consider?
MR. JUSTICE JACKSON: Well, I think when one joins, he ratifies what has gone before, and it would seem to me that when he came into the picture at that point, it was a ratification of all that had gone before on the ordinary principles of conspiracy.
Now I think it is a difficult question, whether a man had not had any prior connection with the Nazi Party -- if you take the
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example of a man who disapproved all that the Nazi Party had done, who never became a member of it, who stood out against it and publicly his position was clear, and he took no part in the war until the day his country was being invaded and he said, "I don't care what happened before; my country is being invaded and I shall now go to its defense," I would have difficulty convicting that man. I do not know such a man.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only one more question I should like to address in connection with Law Number 10. I am a little puzzled myself on Law Number 10, the Control Council Law of December 20 -- I think that was the date. You spoke of one reason for declaring the organizations criminal and bringing persons into the Control Council for screening. I take it they can do that easily without any help on our part.
MR. JUSTICE JACKSON: That is right.
THE TRIBUNAL (Mr. Biddle): Now, you said something very interesting. You said the act would not have been so, if you would have drafted it. How would you have drafted it, if that is not an improper question?
MR. JUSTICE JACKSON: Well, I think I would not have made these penalties of this act apply to all of the crones. You have one lumping of a whole list of crimes which, to my mind, range from the very serious to the very minor. Then you have applicable to all of those crimes, penalties from death down to deprivation of the right to vote in the next election.
THE TRIBUNAL (Mr. Biddle): For instance, you would not have made the death penalty applicable to the members of the SA who might have resigned in 1922?
MR. JUSTICE JACKSON: I would not; and I think that in that way I would have been more explicit with the penalties. Like the Mikado, I would try to make the punishment fit the crime, rather than leave it wide open.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, what defenses do you think are expressly permitted under the Control Council Law? Don't we have to assume that the members of the Tribunal will permit certain defenses or are any defenses expressly permitted?
MR. JUSTICE JACKSON: No; no defense is expressly permitted. I take it that any defense which goes to the genuineness of membership, as the volition of the individual, duress, fraud -- and by duress I mean legal duress -- I do not think that the fact that it is good business, that the man's customers may leave him if he does not join the Party -- that is not duress; but anything which goes to the genuineness of his membership.
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THE TRIBUNAL (Mr. Biddle): Only one more question. If the Tribunal were of the view that a declaration of criminality of the organization is an essentially legislative matter, as suggested by some of the defense lawyers, rather than a judicial one -- if we were of that view, would it be appropriate for the Tribunal to consider the legislative authority of the Control Council, to make such a declaration, which undoubtedly we could do in exercising that discretion which is conferred on us under Article 9 of the Charter?
MR. JUSTICE JACKSON: I would not think so, Your Honor. I think that this Tribunal was constituted by the powers for the purpose of determining on the record -- after hearing the evidence, after knowing the facts -- determining what organizations were of such a character that the members ought to be put to trial for membership.
The fact that some other group which does not have hearing processes and which is not constituted as this might, either administratively or some other way, reach that same result, I do not think is a proper consideration. I should think it was rather a way of avoiding the duty -- there are other ways of doing it, but this is the way our governments have agreed upon. I should think it would not be a proper consideration.
Of course, you could punish these members without anything. We have them in our power and in our camps. But our governments have decided they want this thing done after a full consideration of the record, and in this matter I think that...
THE TRIBUNAL (Mr. Biddle): But you have no doubt of the power of the Control Council to do it, irrespective of what we do, do you?
MR. JUSTICE JACKSON: I do not know of any limitations on the power of the Control Council. There is no constitution. It is a case of the victor and the vanquished, and I think that is one of the reasons why, however, we should be very careful to observe the request of our governments to proceed in this way. In a position where there was no restraint on their power except their physical power, and mighty little of that today, they have voluntarily submitted to this process of trial and hearing, and it seems to me that nothing should be done, by us as members of the legal profession at least, to discredit that process or to avoid it.
THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to ask.
THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for the French Republic): I would like to ask Mr. Jackson a few details on the consequences of the declaration of the criminality of an organization. Suppose an individual belonging to one of the organizations classified as criminal -- for instance, an SS man or a member
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of the Gestapo -- is brought before the military jurisdiction of an occupying power. According to what has been said so far, he will be able to justify himself by proving that his membership in the group was a forced membership. He was not a volunteer and if I have understood correctly, he will also be able to justify himself by proving that he never knew of the criminal purpose of the association. That, at least, is the interpretation which has been adopted and defended by the Prosecution, and which we consider exact.
But I suppose that the tribunal in question has a different conception. I suppose that it considers the condemnation of the individual who was a member of the criminal organization, obligatory and automatic. Strictly speaking, the interpretation which has been advocated by Mr. Jackson is not written in any text. It does not appear in the Charter. Consequently, by virtue of what texts would the tribunal in question be obliged to conform to this interpretation?
MR.JUSTICE JACKSON: The control of the future tribunal is the control of the effect of the declaration of this Tribunal. This Tribunal's effect, when brought before a subsequent tribunal, is defined by the Charter, and it has only the effect that the issue as to whether the organization is criminal cannot be retried. There could be no such thing as automatic condemnations, because the authority given in the Charter is to bring persons to trial for membership.
It would, of course, be incumbent on the prosecutor on ordinary principles of jurisprudence to prove membership. I think proof that one had joined would be sufficient to discharge that burden, but then the question could be raised by the defendant that he had defenses, such as duress, force against his person, threats of force, and would have to be tried; but the Charter does not authorize any use of the declaration of this Tribunal except as a basis for bringing members to trial.
THE TRIBUNAL (M. De Vabres): If I am not mistaken, the authority of the International Military Tribunal will be imposed on the respective jurisdictions of the states, and will oblige them to adopt the interpretation in question. But in that case I conclude that, in the opinion of the Chief Prosecutor, Mr. Jackson, the judgment of the International Military Tribunal, the judgment which we shall pass, will have to contain a precise definition of this subject. Mr. Jackson said, however, a few moments ago, in agreement I think with Mr. Biddle, that the statute of the Charter permits us to define a criminal organization. Our judgment would not only contain a determination of the groups which we consider criminal, but also a definition of a criminal organization; and in the same way there would be precise definitions concerning the cases of irresponsibility, for example, the case of forced membership. There would be precise
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definitions which the tribunals of the respective states would be forced to respect. Do I understand Mr. Jackson's thought correctly?
But, in that case, the question I ask is the following, and it is somewhat similar to that of Mr. Biddle: Briefly, would it not mean conferring on our judgment a certain legislative character? We are not an ordinary court, since we are adopting provisions, such as the definition of a criminal organization, which are generally included in a law, and at the same time our judgment contains provisions which limit the cases of individual responsibility. That is to say, in brief, we are to a certain extent legislators, as it was argued yesterday.
MR. JUSTICE JACKSON: I think that is true, that there is in this something in the nature of legislation or of the nature of an indictment. You may draw either analogy. But I do not see anything about that, as I understand it, which complicates the problem. In the United States we have a strict separation of legislative from judicial power, but there is nothing in that matter which controls this Tribunal, and whether you draw the analogy of an indictment in which you are accusing by your finding, your declaration, or whether you draw the analogy of legislation, it would be equally valid as the act of the Four Powers, since they are not required to withhold any power from the Tribunal.
THE TRIBUNAL (M. De Vabres): Yes, yes. The question which I have just asked seems to be of theoretical interest only. This is, however, the practical consequence which I should consider, which I should be tempted to draw, and on which I would like to hear your opinion:
If we have some legislative power, in that we are able to limit the indicting of persons and admit causes of irresponsibility or excuses, does this absolutely exclude our limiting at the same time the punishment?
Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr. Jackson expressed some criticism concerning the penalties, which are not individualized penalties, since they can extend as far as the death penalty, as far as capital punishment.
There are, of course, some crimes for which capital punishment seems justified, such as Crimes against Humanity. But is it not going too far, to consider imposing the death penalty as the maximum for a crime which in France would perhaps be considered purely "material" -- the crime of belonging to a criminal organization? Would it not be too severe for us to impose the death penalty? And might not the International Military Tribunal be forced to reduce unduly the notion of a criminal organization, precisely because we consider the possibility of this penalty being too
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severe? In other words, does Mr. Jackson absolutely exclude for the International Military Tribunal the power to fix a penalty, or at least a maximum penalty, for the crime of belonging to a criminal organization?
MR. JUSTICE JACKSON: I should not think that it was within the proper sphere of the Tribunal to deal with the question of penalties, for the reason that no power to sentence anyone other than the defendants on trial is given to this Tribunal; I mean, no power to sentence for membership in the organizations. Therefore, I think no incidental power to control penalties is given, but the power to declare an organization criminal does, incidentally, confer power to determine what that organization is, and I have not been disposed to question the power of the Tribunal to carry that definition to great detail, although I would question the wisdom of it.
The power, however, of sentence for membership is not even remotely conferred upon the Tribunal, and I would think that that would be a rather drastic expansion of its power.
THE TRIBUNAL (M. De Vabres): Those were the only questions I wished to ask.
THE PRESIDENT: We will adjourn for 10 minutes.
[A recess was taken.]
THE PRESIDENT: Sir David, did you want to add a reply or did you come in order that we might ask you some questions?
SIR DAVID MAXWELL-FYFE: First, if the Tribunal will allow me, there are three or four points on which I should like to add a word.
The first point that Dr. Kubuschok made was that the procedure of asking for a declaration against the organizations was objectionable for two reasons: First, because it was founded on the limited phenomenon in Anglo-Saxon jurisprudence, that a corporation may be convicted in certain limited spheres; and secondly, that the organizations were in fact dissolved some time ago.
I think it is important to stress that that is not the legal conception which underlies this portion of the Charter. It is really based, in my submission, on a doctrine found in most systems of law, either res adjudicata or the conception of the judgment in rem as opposed to the judgment in personam. That is, that it is in the general and public interest that litigation on a particular point should not be interminable, and that, if the appropriate tribunal has come to a decision on a point of general interest and importance, that point should not thereafter be litigated many times.
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It is the essential view of the Prosecution here that this Tribunal, having had the advantage of evidence dealing with the whole period and functioning of the Nazi conspiracy, is the appropriate and, indeed, the only suitable tribunal for deciding the question of criminality. It is a prospect which would be quite impracticable and beggars the imagination as to time to consider that every military government or military court should decide one after the other the question of criminality of great organizations like these. And therefore we have in the Charter adopted the procedure that that preliminary question will be decided once and for all by this Tribunal.
The fact that the organizations have been administratively dissolved is irrelevant. What is important is, what was the nature of the organizations when they did function? And that is the issue which the Tribunal has to determine. And we submit and indeed say that it is a clear implication, if not indeed expressly within the words of Article 9, that it must be at the trial of the individual defendants that the question of this criminality should be decided, and we say that apart from considerations of practicality the wording of Article 9 is a clear guide against separation of these issues as suggested by two or three of the Defense Counsel.
I only want to add one word about what has been said on the argument on Law Number 10. Dr. Kubuschok made the point that this procedure really acted entirely against the individual. There are at least two answers: The first, which I have endeavored to give, as to the legal concept behind the idea of a declaration, and the second, the one which has been canvassed before the Tribunal, as to the rights of defense. May I say that, in my submission, membership in an organization is a question of fact and therefore these defenses of duress, fraud, or mistake -- to take three examples -- must clearly be permissible and good defenses on that question of fact. The third is that every document such as the Charter -- the same would apply to every piece of legislation -- always contemplates intelligent and reasonable administration in carrying out its requirements, and it would be, in my submission, idle to take the view that where you have a permissive enactment like Law Number 10 -- and it is clearly permissive as to prosecution -- intelligent administration should prosecute every one who could be prosecuted under the act.
In our candid proverb, hard cases make bad law; and in my submission, it would be wrong to decide or interpret on an extremely unlikely hard case.
I want, if I may, to say just one or two words on the argument so interestingly put forward by Dr. Servatius and mentioned a few moments ago by the learned French judge.
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In my submission there is no legislative function for this Tribunal whatsoever. There is a clearly judicial function, and I want to make it quite clear; I do not qualify it by "quasi-judicial," or any qualification at all. It is a simple judicial duty. The first portion of that duty is to define what is criminal. In my submission, as Mr. Justice Jackson argued yesterday, that presents no difficulties. It occurs in Article 9, three articles after Article 6, and "criminal" in that context means an organization whose aims, objects, methods, or activities involved the committing of the crimes set out in Article 6.
When "criminal" has been defined, it is a matter of judicial weighing of evidence to decide whether there is evidence of these crimes being committed by the organization or being the aim or object of the organization, as I have stated. But I respectfully ask the Tribunal to hesitate long before it accepts the argument of Dr. Servatius that this Tribunal should decide the interpretation of "criminal', on its own a priori basis, to use Dr. Servatius' own words, of politics and ethics. That would be introducing a new, dangerous, and unchartered factor into the trial. There is, in my submission, a clear line of guidance for the judicial approach, and nothing in the Charter to support the prima facie, unexpected idea that a body established as a tribunal should delegate to itself legislative powers.
Again, if I may add just one word as to the conclusions which Dr. Kubuschok drew on the question of criminality as a ground for deciding the relevancy of evidence, his first conclusion was that the organization in question, according to its constitution or charter, did or did not have a criminal aim or purpose.
I accept, of course, the test of aim and purpose, but I do not accept the limitation as to charter or constitution. The criminal aim or purpose may be shown by the declarations or publications of the leaders of the organizations, and also, as I submitted, by its course of conduct in method and action. I agree with Dr. Kubuschok that aim or purpose is the first test, but I do not agree with his limitation as to establishing it.
His second point was that crimes under Article 6 were not committed within or in connection with the organization or were not committed continuously over a period. The first part of that would seem fairly clear, that, if the crimes were not committed within or in connection with the organization, the organization is obviously in a very favorable position. But I first answer the second part by saying that it does not come into the picture of this case that there is any instance of isolated crimes with regard to every organization. The crimes alleged are, in fact, spread over the period alleged in the Indictment, but I suggest that the adoption of such
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a criterion does not really help. One comes back to the first point of Dr. Kubuschok, that aims or purposes, as disclosed by declarations, methods, or activities, are the primary and most important tests.
Then, the third point that Dr. Kubuschok made was that an appreciable number of members had no knowledge of the criminal aims or of the continuous commission of crimes. I endeavored to stress, as did Mr. Justice Jackson, that the Prosecution's test is constructive knowledge. That is, ought a reasonable person in the position of a member to have known of these crimes? And that really is the answer, in my respectful submission, to the relevancy of individual knowledge of one particular member.
It is only too true that during the period under discussion a very large number of people made a habit of sticking their heads in the sand and endeavoring to abstain from acquiring knowledge of things that were unpleasant. In my respectful submission, that sort of conduct on the part of a member would not help him at all, and the only answer to that is to adopt the test which we have suggested: Ought a person in that position reasonably to have known of the commission of the crimes?
Dr. Kubuschok's fourth point is that an appreciable number of members or certain independent groups joined the organization under compulsion or illusion or superior orders. Shortly we answer that by saying that that is only relevant to the defense of an individual member in the subsequent proceedings, and, of course, it is only a defense where he can show that he has taken no personal part in the criminal acts.
Then, the last point which Dr. Kubuschok made was that an appreciable number of members were honorary members. Again we say that that is only relevant to the defense of the individual member, and it does not really alter or increase the defenses open to him.
The only other point of Dr. Kubuschok's which I do think requires mention is that in considering how evidence could be presented, he said that certain rights of defense are universal. The first of these which he claimed was direct oral testimony, and he said that each individual defendant should have this right. He then admitted that that was practically impossible and suggested as a solution that we must typify, that is, that representatives of groups in the various camps should make affidavits showing what percentage took part in criminal actions or knew about them.
I want to point out to the Tribunal that it is expressly laid down in the Charter that members of the organization are entitled to apply to the Tribunal for leave to be heard, but the Tribunal shall have power to allow or reject the application. As a point of construction no less than of sense, there would have been no point
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in giving the Tribunal the power to reject the application, if it were implicit that everyone should have the right to be heard.
The answer is that the Tribunal has complete discretion to decide what line and what course shall be taken to procure the evidence. The Prosecution, through Mr. Justice Jackson, has indicated that it makes no objection to any reasonable form of collecting relevant evidence. What the Prosecution objects to is evidence being tendered on the issue before the Tribunal which is only relevant to the question of individual innocence or guilt of the member.
My Lord, I could have dealt, and indeed was prepared to deal, with a number of points raised by the other Counsel for the Defense. I hope they would not think that it is any disrespect to their arguments that I have not dealt with them, but I know that the Tribunal wishes to ask certain questions, and I do not want to trespass on that time. I only want to deal with one point, because it kills with one stone two birds that have flown against our argument in this case.
It will be remembered that when I dealt with the SA yesterday, Dr. Seidl -- and I am sorry he is not here -- raised the question that the Defendant Frank was not a member of the SA; and Dr. Loffler, in dealing with the SA today, raised the question that its activities no doubt did not really extend after 1939, and not importantly after the purge in 1934.
I find an interesting quotation from the semi-official publication, Das Archiv, for April 1942, and as it is very short and deals with these points I venture to read it to the Tribunal, so that it may appear on the record. At Page 54 it says:
"SA Unit, Government General. At the order of the Chief of Stall: of the SA, there took place the foundation of the SA unit, Government General, whose command Governor General SA ObergruppenFuehrer Dr. Frank took over."
I only quote that to finish my argument to show, as indeed all the evidence shows, that with regard to the SA, no less than any other of the organizations, the Prosecution have provided evidence of crimes reaching over the period which they have stated.
I deliberately have cut out anything further that I might say, My Lord, because I do not want to shorten unduly the time, if the Tribunal wishes to ask me any questions.
THE PRESIDENT: I think there is only one question that I should like to ask you. As I understand it, you say that the Prosecution have proved facts from which one must conclude that every reasonable person who joined any of these organizations would know that they were criminal.
SIR DAVID MAXWELL-FYFE: Yes.
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THE PRESIDENT: You would agree, would you not, that proof of any fact which went to contradict the facts from which you have presumed knowledge of criminality could be proved by the Defense?
SIR DAVID MAXWELL-FYFE: Certainly. If the Defense sought to prove, to take an extreme example, that the conduct of the SS with regard to, first of all, concentration camps and, secondly, killing Jews and political commissars on the Russian front, was done in such a way, despite the vast territory over which these crimes have been proved to have been carried on, was done in such a way that nobody knew about it -- if there was relevant evidence on that point, then they could call it, on the general point that it was not a matter of imparted constructive knowledge, but of memory.
THE PRESIDENT: I only asked you that question because there were certain observations by Mr. Justice Jackson, which did not seem altogether to accord with the answer which you have just given.
SIR DAVID MAXWELL-FYFE: I think that, as I understood Mr. Justice Jackson, he was saying that it might not be relevant to prove that one member did not know of the crimes, and I thought that our two approaches really did fit in with each other.
THE PRESIDENT: Yes.
THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that you would say that evidence with respect to general knowledge by any very substantial segment of an organization would be relevant, would it not?
SIR DAVID MAXWELL-FYFE: Well, I think it would be relevant if it were not absurd. I mean, a disclaimer of knowledge of certain acts may be so absurd that the Tribunal should not take the time of inquiring into it.
THE TRIBUNAL (Mr. Biddle): That would apply to any evidence, of course. But my point was: You have said that evidence with respect to general knowledge over a whole organization would clearly be relevant.
SIR DAVID MAXWELL-FYFE: Certainly.
THE TRIBUNAL (Mr. Biddle): And now I ask you whether that would be true with respect to any substantial segment of an organization such as the Waffen-SS.
SIR DAVID MAXWELL-FYFE: I am trying to relate it to the practical position. That is where I find it very difficult.
Now, to take your example, it is difficult to imagine. Let us take four divisions that were very well known: the Totenkopf, the
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Polizei, Das Reich, or the 12th Panzer Division. I should have thought that, as a matter of discretion, if it were sought to show that these divisions, about which there is so much evidence as to their participation in crime, did not know of the crimes, the Tribunal would be right in rejecting that.
THE TRIBUNAL (Mr. Biddle): Well, the question would come up more whether the acts of the members of certain divisions were known generally throughout the whole Waffen-SS, would it not?
SIR DAVID MAXWELL-FYFE: With the greatest respect, I find it very difficult to see how the knowledge or absence of knowledge of a particular division in the Waffen-SS could affect the question of criminality of the SS as a whole.
THE TRIBUNAL (Mr. Biddle): Well, again, I am not asking you as to knowledge in a particular division; I am asking you as to general knowledge, throughout the entire Waffen-SS, of the acts of a particular unit.
SIR DAVID MAXWELL-FYFE: Well, if someone is prepared to say, "I knew every division of the Waffen-SS, and in my opinion no one in the Waffen-SS had any knowledge or had any opportunity of knowing of the crimes," then the evidence would be admissible. Its weight would be so negligible that, I should submit, it would not detain the Tribunal long.
But I concede that if someone is prepared, laying the proper ground for his evidence, to say, "I can speak; I have the grounds for and the opportunity of speaking on the general position," then I do not see how the Tribunal could exclude it.
THE TRIBUNAL (Mr. Biddle): The matter is very practical because we have to advise Counsel for the Defendants what material they can introduce, and do that very soon.
SIR DAVID MAXWELL-FYFE: Certainly.
THE TRIBUNAL (Mr. Biddle): Now let me ask you a few other questions.
On what basis, Sir David, do you contend that the Reich Cabinet was a criminal organization as of January 30, 1933, when, if I remember correctly, there were only three members of the Nazi Party who were in the Cabinet: Goering, Hitler, and Frick? Do you think that if three out of a very much larger number, some twenty odd, could be said to be part of a criminal organization, that makes the entire Cabinet criminal?
SIR DAVID MAXWELL-FYFE: Certainly, on the facts. It must be remembered that Hitler had refused to take office as vice chancellor during the months before that, before the date that you put to me. He had refused on the ground that, as vice chancellor,
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he would not be in a position to carry out his Party program. On that basis the Defendant Von Papen and Hitler negotiated, and Hitler came into power on the 30th of January. It is the case for the Prosecution that those who formed part of that Cabinet knew that they were forming part of a cabinet in which Hitler was going to work out his program, as has been declared on so many occasions. That is the first point. Secondly, it is the case for the Prosecution that the Defendant Von Papen did join in introducing the Nazi conspirators into the Government with that knowledge and with the purpose of letting them have their way in Germany. And the same must apply -- it has not been investigated to the same extent, because they are not defendants -- to the industrialists and the Party, who were acting with them in the Cabinet. They must be taken to have known, just as Gustav Krupp knew and supported, just as Kurt von Schroder knew and supported, the aims of the Nazis whom they introduced and co-operated with in the Government.
Thirdly, the personalities of the Nazis in the Government -- Hitler himself, and the Defendants Goering, Brick, and Dr. Goebbels, who I think became Propaganda Minister either at the same time or very shortly afterwards -- show that these people, they have shown it by their acts, were not persons to take second place. They introduced at once the Fuehrerprinzip into operation in the states, and these other people in the Cabinet at that time accepted the Fuehrerprinzip and united in placing Hitler and the Defendant Goering and the other conspirators in the position of power and authority which enabled them to carry out their monstrous crimes that are charged against them.
I will give you one other reference. It was within a few months of that period that the Defendant Schacht became Plenipotentiary for War Economy and began the preparations for the economic side of the creation of Germany's war potential.
For all these reasons I submit that the actions of the Reich Cabinet at that date were deliberate. The same applies to the Defendant Von Neurath; it is the whole case of the Prosecution, as to the case against Von Neurath, that he sold his respectability and reputation to the Nazis in order to help them buy with that reputation and respectability a position of power in Germany, with the conservative circles in Germany, and with the diplomatic circles in Europe with whom he came in touch. For all these reasons, Your Honor, I submit that the Reichsregierung at that time was thoroughly infected with the criminality which we suggest in this case.
THE TRIBUNAL (Mr. Biddle): In relation to the political leaders, let me ask you this, Sir David:
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In your opinion, would it be necessary to establish the responsibility of political leaders of lower grades to show that, as a group, they were informed of plans to wage aggressive war or to commit War Crimes or Crimes against Humanity? In other words, I take it there is some obligation to show that information. Does that rest simply on the fact that these crimes were being perpetrated, or is there any evidence of that information?
SIR DAVID MAXWELL-FYFE: There is evidence -- and if I might just indicate the kind of evidence there is -- on the first stage of the acquisition of totalitarian control in Germany, which is the first stage in the conspiracy, that is, apart from the Party program, there are the extracts from the Hoheitstrager magazine. You remember, Hoheitstrager are all the political leaders. On the anti-Semitic part of that there are documents, which are Exhibit USA-240 (Document Number 3051-PS) and Exhibit USA-332 (Document Number 3063-PS), which are shown in the transcript at Pages 1621 and 1649 (Volume IV, Pages 47 and 66). On the question of war crimes against Allied airmen you will remember that a document was circulated to Reichsleiter, Gauleiter, Kreisleiter, with instructions that Ortsgruppenleiter were to be informed verbally with regard to the lynching of Allied airmen. That document is Document Number 057-PS, shown in the transcript at Page 1627 (Volume IV, Page 50). And that the hint was taken by at least one Gauleiter is shown by Document L-154, Exhibit USA-325, at Page 1628 (Volume IV, Page 51).
Then, there is a Himmler order to senior SS officers, to be passed orally to the Gauleiter, that the police are not to interfere in the clashes between Germans and aviators. That is Document Number R-110, Exhibit USA-333, shown at Page 1624 (Volume IV, Page 49). Then there is a declaration by Goebbels inciting the people to murder Allied airmen, which is shown at Page 1625 (Volume IV, Page 50). Similarly, with regard to foreign labor, there is a telegram from Rosenberg to the Gauleiter asking them not to interfere with the confiscation of certain companies and banks.
There is Jodl's lecture to Reichsleiter and Gauleiter at a later stage. There is an undated letter from Bormann to all Reichsleiter and Gauleiter, informing them that the OKW had instructed guards to enforce obedience of prisoners of war refusing to obey orders, if necessary, with weapons.
THE TRIBUNAL (Mr.Biddle): Sir David, if I may interrupt you for a moment. I was familiar with the evidence with respect to the Gauleiter and Reichsleiter. My question, you will remember, was addressed to the lower levels, the Blockleiter.
SIR DAVID MAXWELL-FYFE: Well, I think one can summarize it that even as far as lower levels are concerned you have
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the four points: You have Mein Kampf, the Party Program, Der Hoheitstrager, and the fact that conferences were constantly held throughout the organization.
As I say, I have dealt with the evidence on the Jews, the lynching of Allied airmen, and I think I mentioned the letter from Bormann to the Reichsleiter, Gauleiter, and Kreisleiter about assisting in increasing the output of prisoners of war. And there is an instruction from Bormann down to the Kreisleiter about the burial of Russian prisoners of war. There is a decree for insuring the output of foreign workers that goes down towards the Gruppenleiter.
All these matters are in evidence, and we submit that there is particular evidence on practically every point. And on the general point, as I said, you have these publications, coupled with the evidence that conferences were held, apart from the general Fuehrerprinzip which would, and did, make the Zellenleiter and the Blockleiter the final weapon in order to ensure that the people acted in accordance with the leader's wishes.
TIIE TRIBUNAL (Mr. Biddle): Let me ask you just two questions, and then I will finish with regard to the SA. Would you say that a member of the SA who had joined, let us say, in 1921, and resigned the next year, was guilty of conspiring to wage aggressive war and guilty of War Crimes?
SIR DAVID MAXWELL-FYFE: Yes, in this sense. If I may recall, I answered a question that you were good enough to put to me a day or two ago as to when the conspiracy started. A man who took an active and voluntary part as a member of the SA in 1921 certainly, in supporting the Nazi Party, was supporting the published program of the Party which had the aims which you have just put to me.
That is certainly put clearly in Article 2 of the Party Program as the getting rid of the dictate of Versailles and the Anschluss, getting the Germans back to the Reich, which, of course, is only a polite way of saying destroying Austria and Czechoslovakia.
Therefore, that man had these aims in view.
With regard to War Crimes, I respectfully repeat the answer that I put to you the other day, that it was an essential tenet of the Nazi Party that they should disregard the life and safety of any other people who stood in the way of the securing of their ambitions. A person who deliberately joins an organization with that aim, and with that aim getting more and more clearly related to practical problems as week succeeded week, was taking part in a first essential step of involving mankind in the miseries that we have seen; because it is that tenet, applied to every facet of human
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life and human suffering, which has caused the crimes which this Tribunal is investigating.
THE TRIBUNAL (Mr. Biddle): Well, I can see how you might say that with respect to conspiracy in War Crimes, but I want to be perfectly clear also that you say, on the substantive crime of committing War Crimes, that a man joining the SA in 1921 and leaving in 1922 would have committed those War Crimes in the beginning of 1939.
SIR DAVID MAXWELL-FYFE: If you put to me the substantive War Crimes, I respectfully remind you that under Article 6 the last words are:
"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 person in the execution of such a plan."
Under the Charter, in my respectful submission, that is enough to make them responsible for the crimes.
THE TRIBUNAL (Mr. Biddle): Now only one other question. What do you contend was the function of the SA after the Rohm purge?
SIR DAVID MAXWELL-FYFE: The function was still to support all Nazi manifestations in the life of Germany. You remember that Dr. Loffler was careful to except -- very frankly and fairly he excepted the 10th of November 1938. The SA -- and I gave another example how they were formed in the Government General -- we have also given examples, which I think you will find in my appendix, of the participation -- limited participation, but still a participation -- in the War Crimes and Crimes against Humanity. But the main point of the SA after that time was to show that here were 3 million people who had come into the organization which had provided the force to bring the Nazis into power, and it had the forceful size needed to bring the Nazis into power in those days. They were then joined by 2 1/2 million people, which brought their numbers up at that time very high. They went down again later on, but they were high in 1939, and they provided a great immoral force behind the Nazi Party. They provided strong support and were ready on all occasions; whenever a demonstration had to be staged, the SA were there to give their support. They were an essential instrument for maintaining the Nazi control over the German Reich.
THE TRIBUNAL (Mr. Biddle): I take it, then, that the function, in your opinion, did not change in substance after the purge? Would you say that?
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SIR DAVID MAXWELL-FYFE: The aim did not change. It did not need to do half as much, because, of course, by the end of 1933 all the other political parties were broken. Part of the SA's original task, as I think Dr. Loffler put it, had been to safeguard the Defendant Goering when he was making a speech -- I should have put it that it was to prevent the other people from having a free run when they made speeches -- and to deal with the clashes between the various groups. That was unnecessary, because all political opposition had been destroyed. Therefore they became rather -- I forget the exact term -- a sort of cheer leader or a collection of people who would always be ready to give vociferous support.
You must have heard, Your Honor, of the meetings coming over the wireless with regulated cheers. It became more supporting, rather than dealing with opposition, but essentially the aim was the same, to keep the grip.
THE PRESIDENT: Dr. Dix, it is now nearly quarter past 5. Do you think that this discussion can be closed this evening before 6 o'clock?
DR. RUDOLPH DIX (Counsel for Defendant Schacht): Mr. President, I believe I can finish in 5 minutes.
THE PRESIDENT: All right. Do the other prosecutors wish to add anything?
GEN. RUDENKO: I would like to make a few short remarks, Mr. President.
THE PRESIDENT: How long do you think you will be, General Rudenko?
GEN. RUDENKO: I think about 10 minutes; no more.
THE PRESIDENT: Does the French prosecutor wish to add anything?
THE TRIBUNAL (M. De Ribes): I have nothing to add.
THE PRESIDENT: Dr. Dix, what I really want to know is whether there is any prospect of our finishing this discussion tonight. General Rudenko wishes to speak for about 10 minutes, and if the defendant's counsel -- of course, you will understand that a discussion of this sort, an argument of this sort, cannot go on forever; and in the ordinary course one hears counsel on one side and counsel on the other side, and then a reply; one does not go on after that. Do you know how many of the defendants' counsel want to speak?
DR. DIX: Mr. President, I know that.
THE PRESIDENT: I think probably the best thing would be if we were to adjourn now and to sit in open session tomorrow,
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and then we shall probably be, able to conclude this argument in about an hour tomorrow. Do you agree with that, General Rudenko?
GEN. RUDENKO: I agree.
THE PRESIDENT: Do defendants' counsel think we shall be able to conclude it in about an hour tomorrow morning?
[Several counsel nodded assent.]
THE PRESIDENT: Very well; we will adjourn now and sit at 10 o'clock tomorrow morning.
[The Tribunal adjourned until 2 March 1946 at 1000 hours.]
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