THE PRESIDENT: General Rudenko.
GEN. RUDENKO: Your Honors, permit me to make a few supplementary remarks concerning the criminal organizations, a problem to which the Tribunal has devoted much attention in the last few days.
I consider it essential, in the first instance, to clarify completely the legal aspect of this problem. There is in the Charter of the Tribunal a marked absence of any statement to the effect that the recognition of an organization as being of a criminal nature would automatically entail the bringing to trial and, further, the condemning of all the members of these organizations. On the contrary, the Charter contains a definite indication of an opposite nature. Article 10 of the Charter, repeatedly quoted at this Trial, states that the national courts have the right, though not the obligation, to bring to trial members of organizations declared as criminal. Consequently, the question of the problem of the trial and the punishment of individual members of criminal organizations lies exclusively within the scope of the national tribunals.
The legal sovereignty of every country that has adopted the Charter of the Tribunal is thus limited in one respect only: The national courts cannot deny the criminal character of an organization, once it has been declared to be criminal. The Tribunal can impose no further limitation on the legal sovereignty of the contracting parties.
Therefore, Justice Jackson has stated here -- and with reason -- that the recognition of an organization as being of a criminal nature and therefore automatically entailing the mass condemnation of all its members, is a mere figment of the imagination; I would add, that has not sprung from legal grounds but from some entirely different source.
It appears to me that this legal problem is also based on a definite misunderstanding. One of the Counsel for the Defense, Dr. Servatius, was speaking here of the legislative authority of the Tribunal. The authority of the International Military Tribunal, organized by four states in the interests of all freedom-loving peoples, is enormous;
468
2 March 46
but, of course, this Tribunal, as a legal organization, does not and cannot possess any legislative authority. When solving the problem of the criminal character of an organization, the Tribunal is only exercising the right entrusted to it by the Charter, that is, to solve independently the question of the criminality of the organizations. Of course, the verdict of this Tribunal, when coming into force, acquires the value of a law, but that is the value attached to any of the verdicts of the courts once it has been delivered.
Counsel for the Defense Kubuschok has stated here that the decision of the Charter with regard to the criminal organizations is a legal innovation. This, to a certain extent, is true. The innovation consists in the Charter of the International Military Tribunal and all its articles, whose creation, per se, is an innovation in the first instance. But should the Defense consider it possible to deplore this fact, I would consider it opportune to remind them of the causes of these legal innovations.
The very evil deeds committed by the defendants and their associates, deeds hitherto unknown in the history of mankind, have, of necessity, imposed new legislative measures for protecting the peace, the liberty, and the lives of the nations against criminal attempts. Moreover, the states which created this Tribunal and all peace-loving people remain invariably faithful to the ideals of law and to the principles of justice. Therefore, responsibility for participation in criminal organizations will be established only when personal guilt has been proved. In reality, the national courts will decide the problems of individual responsibility.
A few words now on the tactical side of the problem: It has been stated here that several detachments of the SS did not follow any criminal objective. It is difficult, Your Honors, to find within the fascist machinery neutral organizations which did not follow criminal objectives. Thus, the Defense Counsel for the SS, Mr. Babel, mentioned the existence of a research department for dog breeding within the SS. It would appear that this was an organization of general utility. It seems, however, that the learned dog breeders in this organization were engaged in training hounds to attack human beings and to tear their appointed victims to pieces. Can we isolate these dog breeders from the SS?
In Danzig another scientific research institute was engaged in the preparation of soap from human fat. Perhaps we should exonerate these soap boilers as well from all criminal responsibility?
At this point two practical suggestions have been put forward by the Defense Counsel: The isolation, as a separate activity, of the case of the criminal organizations and the establishment in the various camps of a Defense organization having as its purpose the collection of information and evidence. In practice, however, both
469
2 March 46
proposals would create insoluble difficulties for the Tribunal in the execution of the immense task imposed upon it by the nations.
This task is precisely formulated in the Charter which instructs the Tribunal to solve the problem of the investigation of concrete facts concerning members of these organizations. Therefore an appeal to the Tribunal to isolate and consider the case of the criminal organizations as an independent activity is tantamount to an appeal to the Tribunal to infringe the articles of the Charter.
Article 9 of the Charter decides the problem of the criminal organizations when investigating the case of any one particular member, but it also has one other meaning for the Trial. It shows, as I have already mentioned, that the fact on which the statements and the solution of the question of the criminality of the organization are based is the presence in the dock of the accused representatives from the corresponding organizations. As is known, in the present case all the organizations which the Prosecution suggests should be considered as criminal are represented in the dock.
There is evidence in this case which amply suffices to admit the criminality of these organizations. Therefore the calling of special witnesses, capable of giving evidence on these organizations, can appear only as a supplementary source of evidence. I am bringing these matters to a close, Your Honors, and in closing I cannot omit one argument of the Defense. It was stated here by the Defense that as a result of the admission of the criminality of these organizations millions of Germans, members of these organizations, would be brought to trial. Together with my colleagues of the Prosecution I am not of this opinion, but there is something more I would like to say.
By this reference to hypothetical millions the Defense is attempting to hinder the progress of justice. However, before us, the representatives of the nations who have borne the burden and the suffering of the struggle against Hitlerite aggression, before the conscience and consciousness of all freedom-loving people, appear other figures, other millions of victims irrevocably lost, tortured to death in Treblinka, Auschwitz, Dachau, Buchenwald, Maidanek and Kiev. It is our duty to spare no effort to crush the criminal system directed by the fascist organizations against humanity. Your Honors, the extent of the crimes committed by the Hitlerite brigands cannot be imagined. However, we are not blinded by sentiments of revenge and have no intention of destroying the entire German people in retaliation. But justice does not permit us to swerve and thus give free play to the committing of new crimes.
We are deeply convinced that the Tribunal will unswervingly follow the path towards a just and rapid verdict and that it will, in full measure, chastise those whose crimes have shattered the earth.
470
2 March 46
THE TRIBUNAL (Mr. Biddle): General Rudenko, may I ask you a few questions?
General Rudenko, you remember that Mr. Justice Jackson suggested certain tests that we should use before we found an organization criminal, whether the tasks and the purpose of the organization were open and notorious, in order to show that the members knew what they were doing.
Now, if we find that any organization is criminal we would necessarily find, I presume, on that test, that its actions were open and notorious. Now, if a member of that organization found to be criminal was then tried by one of the national courts, I suppose under that finding he would not have any right to show that he did not know about it, because we would have found that the knowledge was so open and notorious that he must have known, so he could not raise as a defense that he had no knowledge of the criminal acts, could he?
GEN. RUDENKO: That is quite true. But we are bearing in mind the fact that the national courts investigating the problem of the individual responsibility of individual members of the organizations will, of course, proceed from the principle of individual guilt, since, naturally, we cannot exclude the possibility that in the organization of the SA, which fundamentally and in an overwhelming majority was aware of its criminal purpose, there might yet be individual members who might have been lured into the organization, either by deception or by some other reasons, and have been unaware of its criminal purpose.
THE TRIBUNAL (Mr. Biddle): But that would not be any defense to him, would it? He could not say he had no knowledge, because we would have already found that the knowledge was so open and notorious that he must have known.
GEN. RUDENKO: Why? I personally proceed from the standpoint that if the national court investigates the case of members who plead ignorance of the criminal purpose of the organization to which they belonged, the national court must examine these arguments submitted in their defense and estimate them accordingly.
THE TRIBUNAL (Mr. Biddle): How could they consider that, if we make a rule that the activities of the organization are so notorious that he must have known? How can he then say he did not know?
GEN. RUDENKO: I still maintain the point of view, and I still interpret and understand the Charter to mean that the judgment of the International Military Tribunal should determine and decide the question of the criminal character of the organizations, but where the question of individual responsibility and guilt of every member
471
2 March 46
of this organization is concerned, the decision falls exclusively within the competence of the national courts. It is therefore extremely difficult to foresee all the possible individual cases and the eventualities which might arise when investigating a category of individual defendants.
You yesterday submitted a question to Sir David Maxwell-Fyfe concerning a member of the SA who had joined the organization in 1921 and left a year later. These, of course, are special cases and I cannot state how numerous they are; they are unavoidable, and when we come to the question of the extent of his information, the reasons for his entering and the reasons for his leaving this organization, when we come to estimate the value of his actions, it seems to me that it should be done by a national court which will examine the findings of the defense and appreciate them accordingly.
THE TRIBUNAL (Mr. Biddle): Can you say now what defense he would have before the national court, except the defense that he was never a member? Does he have any other defenses so far as we know? Does the Law Number 10 permit him any other defenses?
GEN.RUDENKO: It is difficult for me, at the present moment, to say what arguments the members of these organizations may put forward, for were I to speak, it would be on assumption. But I, for instance, consider, that the argument produced -- if produced -- which might be considered sufficient to exonerate this member of the organization would be that he had been coerced into joining.
THE TRIBUNAL (Mr. Biddle): May I ask you two more questions.
You used the expression that any evidence given by the defendants would be merely supplementary. That expression is not known to our law, and I would be very interested in your telling us what you meant by supplementary evidence. I do not know what the term means.
GEN. RUDENKO: I did not put it that way. This is perhaps an inaccuracy of translation. What I did say, speaking of questions connected with further investigations of the matter of the criminal organizations, was that this investigation should be carried out together with the investigation of the case of any one member of this organization, inasmuch as representatives of those criminal institutions are now in the dock. But I do say that this is already conclusive material for the recognition, or the denial, of the criminal nature of this organization.
But the Tribunal can, of course, consider this evidence as inadequate, or, shall we say, the Defense may consider that further supplementary evidence may be needed. In this connection, I consider that the calling of witnesses capable of submitting special evidence on the problem of the criminal or non-criminal character of these
472
2 March 46
organizations may be presented to the Tribunal as supplementary evidence.
THE TRIBUNAL (Mr. Biddle): One other question on the SA, which I asked Sir David yesterday.
What do you consider was the function of the SA after the Rohm Purge, or, to put it a little differently, what criminal act do you believe the SA was engaged in?
GEN. RUDENKO: I consider that the SA after the Rohm incident committed the same criminal acts as the other organizations of Hitlerite Germany. I wish in confirmation of this evidence to refer to facts like the seizure of the Sudeten territory. As is well known, detachments of the SA played an active part in this affair.
All the subsequent events which occurred in Germany in connection with the Jews and, later, in the territories seized by Germany -- Czechoslovakia and others -- these criminal events took place with the connivance of this organization -- the SA.
THE TRIBUNAL (Mr. Biddle): Thank you.
THE PRESIDENT: Does the Prosecutor for the French Republic wish to say anything?
THE FRENCH PROSECUTOR: No.
DR. DIX: I have, as counsel for the Defendant Schacht, an indirect interest in the question of the criminality of the group Reich Cabinet (Reichsregierung) because Schacht was a member of the Reich Cabinet. I want to point out, however, at the very beginning that I do not want to make detailed statements now either of a legal nature or in regard to the facts of the case. I shall do that rather at the time of my concluding speech.
What I want and seek now, and for which I ask the support of the Tribunal, is a clarification and amplification of those answers vhich Mr. Justice Jackson and Sir David Maxwell-Fyfe gave yesterday to your questions, Mr. Biddle.
I should like to point out that it is, of course, clear to me that I have no right to ask any questions of the members of the Prosecution. Formally speaking, I could at the most ask the Tribunal to supplement the questions which were put yesterday by the Tribunal. I believe, however, that this formal objection has no practical significance, because I am convinced that Sir David, who will see the pertinence of my request to have his answer extended, will be prepared to amplify the answer given to the question by Mr. Biddle without discussing the theoretical question, whether he is under any obligation to do so.
Sir David Maxwell-Fyfe was asked yesterday whether he considers the Reichsregierung, that is to say, the Reich Cabinet, as it
473
2 March 46
was composed on 30 January 1933, in view of the then relatively small number of National Socialist cabinet members, criminal ever at that time and if so, whether he is of the opinion that this hypothetic criminal character was at that time discernible to other people.
Sir David answered this question of Mr. Biddle's in the affirmative and based this answer (1) on the contents of the Party program and (2) on the fact that already at that time the Leadership Principle had been set forth in the program.
I should like to ask if Sir David would supplement his answers along the following lines: Does Sir David really mean to say that the Leadership Principle as such, that is to say, purely as an abstract theory, is not only to be rejected politically or for other reasons but is also to be considered criminal? I want to make it understood that I am speaking about the abstract principle, without considering any factual developments in the ensuing period of time.
Concerning his second answer, that the Party program occasions him to declare that even at that time the Reich Cabinet is to be considered criminal and was recognizable as such, this answer -- not directly in response to Mr. Biddle's first question put in the course of further questions addressed to him by the Tribunal -- he added to and substantiated by declaring that the aim expressed in the Party program of eliminating the Treaty of Versailles and the announcement therein of the desire for the annexation of Austria were the criminal points in this program.
May I ask Sir David to state, first, whether these two points of the Party program, that is to say, the abrogation of the Treaty of Versailles and the Anschluss, were with the exception of the Leadership Principle, the only points of the Party program which caused him to consider that program criminal, that is, to consider a government criminal which knew that program? Secondly, I should like to ask whether he really wants to put forward the opinion that an attempt to attain a revision or an abrogation in a peaceful fashion, that is, by way of negotiations, of a treaty found to be oppressive, very oppressive, by a nation, can be considered criminal.
Furthermore, I should like to ask him to state whether, considering the great democratic principle of the right of self-determination of nations and considering the history of the annexation movement in Austria itself -- and I remind him of the plebiscite of 1919 when this Anschluss was demanded by, one may safely say 100 percent of the Austrian population -- he as a politician would consider a political party or a political program criminal which aimed at reaching this goal in a peaceful fashion. And here I should like to stress again in order not to be misunderstood, that the later
474
2 March 46
development and everything which actually happened and anything which might not have happened in accordance with the Party program is to be left out of consideration and only the Party program as such taken into consideration. Upon that, of course, the sense of his answer depended when he said, "Yes, the Party program is the basis of the criminal character."
Now, finally, to come to the end, it would be consistent with the logical course of my explanations, to wait until Sir David has decided on this question, an answer to which I should like to request from Sir David and also from Mr. Justice Jackson, who is not here today...
THE PRESIDENT: [Interposing.] Dr. Dix, the Tribunal will, of course, consider anything that you have said insofar as it refers to matters of principle, but they do not think that this is the proper time for Counsel for the Defense to pose questions to counsel for the Prosecution. The matter has already been fully dealt with, and the Tribunal do not propose to ask any further questions of the Prosecution unless the Prosecution wish to say anything in answer to what you have to say.
DR. DIX: Your Lordship, that was what I took the liberty of saying at the beginning. I realize that it is Sir David's free will and decision as to whether he cares to comply with my request to add to his answer to the questions posed by Mr. Justice Jackson. That I have to leave to him.
I have only a short question, which is intended to prevent our misunderstanding each other. It is always well not to be misunderstood.
I remember -- but I may be mistaken, and that is why I wish to ask Sir David what Mr. Justice Jackson declared as his opinion -- that he did not consider the Party program, as such, criminal. As I have said, this is what I remember. I did not take any notes on it, because it did not strike me particularly at that time, since I considered it self-evident. Therefore I may be mistaken. But if my memory is correct, I should like to ask Sir David to state whether there is any uniform attitude on the part of the Prosecution toward this point.
THE PRESIDENT: Dr. Dix, the Tribunal asked the Prosecution to present their arguments in principle on the question of these Organizations, and they wished also to hear counsel for the organizations in order that these matters should be cleared up, with a view to any possible evidence which might have to be given. They have heard counsel for all four prosecutors. They have asked them questions which they thought right to ask them in order to clear up any points. They have heard counsel for all the organizations
475
and they have heard Counsel for the Prosecution in reply. They do not propose to ask any further questions of the Prosecution at this stage. Of course Counsel for the Prosecution and Counsel for the Defense will be fully heard at a later stage.
DR. DIX: I have come to the end of my statement. I leave it to the Court and Sir David as to whether he wants to answer these questions now.
DR. SEIDL: Mr. President, I should like to give a short explanation to the question as to which of the indicted organizations the Defendant Frank belonged. Is that possible at this moment?
THE PRESIDENT: Dr. Seidl, the Tribunal do not think this is an appropriate time for any of the counsel for individual defendants to go into matters connected with the charges against the organizations. They will, of course, be heard in the course of their own defense, but this is not the appropriate time. This is only a preliminary discussion for the purpose of clarifying the issues which relate to the organizations.
DR. SEIDL: Yes, but I should like to use this opportunity to clarify a mistake which slipped in the day before yesterday. The day before yesterday I protested against the statement that the Defendant Frank was a member of the SS and this seems to have been translated incorrectly.
THE PRESIDENT: But Dr. Seidl, won't it appear in the shorthand notes? You have not seen the shorthand notes yet?
DR. SEIDL: I have not seen the transcript yet, but I believe that by error "SS" was translated as "SA." The Defendant Frank has never denied that he was an SA ObergruppenFuehrer. What I wanted to point out is only that the statement in the Indictment that he was an SS general is not correct and also that the statement in Annex B about the nature of the criminal element is not pertinent, because it is said there that he was an SS general. But I attach importance to the fact that the Defendant Frank has never denied that he was an SA ObergruppenFuehrer.
THE PRESIDENT: Very well, but you will have an opportunity to develop the whole case of Frank when your turn comes.
DR. SEIDL: Yes, but the question is merely this, as to whether the Defendant Frank was a member of the SS or not. As long as the Prosecution do not present any definite proof of the membership of the Defendant Frank in the SS, I have to contradict this statement. I do not believe that it is the task of the Defense to prove that the Defendant Frank was not a member of the SS. I am convinced that, on the other hand, this is one of the tasks of the Prosecution.
476
2 March 46
THE PRESIDENT: Very well; I have heard what you said.
DR. SERVATIUS: Dr. Servatius, for the Leadership Corps. . .
THE PRESIDENT: Dr. Servatius, the Tribunal are prepared to hear counsel for the organizations very shortly in the rebuttal, but only very shortly, as otherwise the may go on interminably.
DR. SERVATIUS: I do not want to make a speech, but merely to speak for about 5 minutes, in order to define my attitude towards a few matters of evidence. First, I have two questions to ask concerning the limitation of the proceedings to certain groups of members. I should be grateful if the Prosecution could give a statement as to whether the exception of certain parts of the organizations, as has taken place, is a final one or whether other procedures and steps are being held in reserve. This was stated originally in reference to the Leadership Corps. Concerning the limitation of the proceedings to certain groups of members in reference to the Leadership Corps, I do not wish to make any further motion inasmuch as that limitation has already been effected. I should be glad, however, if a decision could still be reached concerning the women. The female technical aides who were employed in the offices cannot, in my opinion, be included in the staffs. At any rate, they do not belong to the Leadership Corps, although they worked with the staffs. These women themselves are of this opinion, and also the officers in the camps shared this opinion. Accordingly not a single application for leave to be heard has been made by any woman in the British zone.
I presume it is known that women, as a matter of principle, were kept away from politics in the National Socialist State; and therefore, they can hardly be connected with the crimes stated in Article 6.
Now I should like to speak about two points concerning questions of evidence. As every profession creates the tools which it needs, so the jurist creates concepts to solve his problems. These concepts are not created for their own sake; thus the concept of the criminal organization shall serve to call guilty persons to account who would otherwise possibly evade this responsibility of theirs. In establishing the Charter the procedure was this, that one did away with the traditional structure of the state in order to reach the individual organs. But in order to be able to seize these organs, one brought them together again through the concept of the guilt of conspiracy. In this way, however, only a relatively small circle can be reached, since its members would have to be bound to each other by means of an agreement. In order to enlarge this circle by means of legal technique, the concept of a criminal group or organization was created. This organization is involved in the agreement of conspiracy only at the very top, while the members automatically,
477
2 March 46
without their own knowledge, are included in the conspiracy. Such a definition of the concept of a criminal organization is justifiable only insofar as it is useful fin getting hold of the really guilty persons and only the guilty ones.
In order to define the limits of this concept, I should like to discuss two further points concerning the determination of guilt and therefore necessarily relevant to the question of admissibility of evidence. First, there is the question of the members' lack of knowledge of this criminality -- the lack of knowledge resulting from secrecy -- and then the attitude of the members after they had recognized the offenses being committed. In my opinion, the examination of guilt cannot be dismissed by pointing to the alleged knowledge of foreign countries about the real conditions. In foreign countries a propaganda was effective which exaggeratedly brought these things to light. In Germany all these facts remained secret, since because of their very nature they had to be secret -- for instance, what was going on in the extermination camps -- and because they had to be kept secret for political reasons. Moreover, the things which have become known here were so unimaginable that even in Germany one could not have believed them, had they become known during the war. It must be relevant to determine not whether a single individual member had no knowledge, but that 99 percent of the individual members acted in good faith. In this case, the organization is not criminal, but there could have keen a criminal in it. If this is determined, then the legal construction of the criminal organization is superfluous and thereby false. The legal concepts existing until now will then be sufficient for bringing the guilty to trial.
The next viewpoint: The criminal nature or the criminal character of which the Charter speaks shows that that must be something which concerns the entire organization, and that it must be a continuous state of affairs. Individual acts which were rejected as wrong by the organization or the overwhelming majority of its members cannot establish the criminal character of the organization. The attitude of all the members to the incriminating acts is therefore of decisive importance and thus of evidentiary relevancy.
We do not need the concept of the criminal organization in order to punish individual criminals whose acts were rejected by the majority. Among such individual cases, in organizations which comprise millions of members, there may be cases in which smaller or even larger groups or merely certain local districts took part.
I believe that it is really a major task of the Tribunal to define, with the objectivity of the judge, the nature of this guilt as applied to the entire organization. I am of the opinion that the points I have mentioned, the secrecy of these facts and the attitude of the
478
2 March 46
members after gaining knowledge, must form the basis for the collecting of evidence.
THE TRIBUNAL (Mr. Biddle): I want to ask some questions.
Dr. Servatius, I would like to ask you -- and I will ask other counsel for the organizations -- whether in general you accept the definition of criminal organizations suggested by Mr. Justice Jackson, which is found on Pages 19 and 20 of his statement? You will remember that he made five general tests. Now, in order to determine what evidence should be taken, we must determine what is relevant. Now, the test of what is relevant depends on a general definition of what is common to all organizations for that purpose. Now, do you or could you now say whether in a general way you accept those tests for the purpose of taking evidence?
DR. SERVATIUS: I have not yet thought about that and have not had a chance to discuss it with my colleagues. I should be grateful if we would be given such an opportunity. Perhaps this afternoon a representative of the Defense Counsel for the organizations could report to the Court about this.
THE TRIBUNAL (Mr. Biddle): Let me ask you another question. What, in your mind, are the tests that should be applied for the purpose of taking evidence?
DR. SERVATIUS: I did not quite understand the question.
THE TRIBUNAL (Mr. Biddle): I said that Mr. Justice Jackson had suggested a definition from which the relevancy of certain evidence could be established. Now, have you got any suggestion to offer for that same purpose?
DR. SERVATIUS: I should not like to commit myself without having spoken to my colleagues. It is a question of great importance which I should not like to deal with by myself.
THE TRIBUNAL (Mr. Biddle): Yes, but it is the basis of this entire argument. The very purpose of the argument was to develop that.
DR. KUBUSCHOK: In the course of yesterday's debate the problem was discussed as to whether the task set before the Tribunal by the Charter can be considered a legislative act. The question was brought up as to whether, if we answer the preliminary question in the affirmative, the Court has the possibility of giving any binding instructions to the national court which has to try individuals, according to Law Number 10. That concerns, above all, the extent of the examination of the guilt of the individual member and the limitation of the scope of punishment for minor cases. I believe that if we follow up this deliberation we shall be led from a play upon words into a labyrinth when it comes to the
479
2 March 46
practical application. Actually the task given the Court is not a legislative act. It is not a procedural innovation, if the national court in subsequent proceedings is bound by the previous decision of this Tribunal. Such cases are quite plausible and legally admissible. If elsewhere in criminal procedure a criminal court is bound by a previous decision, say of an administrative court, we consider these cases quite in order and unobjectionable. Likewise a criminal court could, for instance, be bound in judging a case of embezzlement to wait for the previous decision of the civil court as to whether the object embezzled was the property of somebody else.
Here, too, nobody would think that the civil judge was undertaking an act of legislation. That another court's decision is binding on the criminal court and is the premise for its sentence does not in any way mean that the author of the criminal code has not completed his legislative task and that this has now to be done by the court which takes the preceding decision. In my opinion we therefore do not have to consider this point any further, for Article 9, Paragraph 1, of the Charter demands of the Tribunal a clear and unequivocal decision of the question whether the organization is criminal or not.
More cannot be read either into the Charter or into Law Number 10. Yesterday Sir David defined his attitude to the five points which were submitted by me for consideration as to relevancy of evidence. In regard to the two last points he raised the objection that they were to be dealt with in the subsequent trials envisaged by Law Number 10. It was a question of the grounds for exonerating persons -- for instance, coercion, deception, et cetera. I want to avoid repetition and point out only the following: It is quite correct that the question of coercion and deception and other reasons for the exoneration of persons be discussed in subsequent trials. In connection with this, Sir David also called the attention of the Court to a really noteworthy problem -- that is, the problem of a deception by the state, that is, a problem of mass suggestion. This is really a very important problem. It affects many members, as far as their joining is concerned. But it leads to the broadest deduction as to the guilt of the entire membership and the character of the total organization.
We have therefore to pay particular attention as to how the problem of deception on the part of the state affected the member and thereby was characteristic of the organization. All grounds for the exoneration of persons are therefore also to be examined by the Tribunal in judging the question of the character of the organization. Furthermore, evidence must be taken on the broadest basis.
If the Tribunal were to make any limitation now, there would be the possibility that later, at the end of the Trial, in contrast to
480
2 March 46
its present opinion, it might consider as relevant material now excluded.
In yesterday's debate the importance of the question was discussed, in regard to the proposed declaration of criminality, as to what should be considered as constituting knowledge on the part of the single member. Sir David here applied the standard of a person of average intelligence and wants to consider as guilty anybody who was above that standard.
I have already recently explained that in regard to laws threatening such a severe punishment as in this case, all systems of penal law require that willful intent on the part of the perpetrator be proved. Offenses of negligence are punishable only in exceptional cases, and then only with minor penalties. At any rate in a case of an offense by negligence it must be clear to the offender that he is under an obligation to examine his action from the point of view of penal law. Law Number 10 -- and now in connection with it the proposed verdict of this Court -- represents an ex post facto law.
In the case of the main defendants the Prosecution have justified the deviation from the generally recognized principle nulla poena sine lege on the ground that they themselves did not act in accordance with this principle and cannot, therefore, base themselves on it now. This, however, does not in any way apply to the organizations, quite apart from the question whether this argument can be accepted at all.
At any rate, however, in considering the element of negligence one should also not overlook the fact that the obligation to exercise attention differs in the case of ex post facto laws from what it should be in the case of existing laws.
In this connection I should like to refer to the fact that the question of whether the statutes of the Party organizations were illegal or not has often been examined already, even earlier, at the time of the Weimar Republic. Political considerations definitely favored such a declaration. Apparently, legal considerations at that time did not let the carrying out of such a procedure seem practical. What measure should we then apply to the individual member's ability to judge such matters, if the legal problem is so difficult and lends itself so very much to discussion?
The Prosecution has restricted the motion so as to exclude the auxiliary workers in the case of the Gestapo. The reason for this can only have been that in the case of these members knowledge cannot be assumed to be self-evident. I ask that the conclusions drawn in this individual case be applied to the members of other organizations. Should not the individual member of an organization comprising millions who had far less contact with the executive
481
2 March 46
organ than did an auxiliary worker of the Gestapo -- should not this member be judged much more favorably, as far as knowledge is concerned, than this group which has been excepted?
Are we not in particular obliged to use the best methods possible to inform ourselves as to the knowledge or lack of knowledge of the individual member? Sir David, in discussing the problem of negligence, suddenly spoke of an ostrich policy. But here we have to consider that the person who sticks his head into the sand in order not to see has actually seen something and therefore does not want to see any more. It is quite different in the case of this member who from the sources at his disposal can gain no knowledge of individual actions; who, in particular, has no knowledge of whether possibly only...
THE PRESIDENT: Forgive my interrupting you, but the Tribunal have already heard and listened with attention to your interesting argument, and the argument that they now are prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, it seems to me that the greater part of what you are now saying is what you have already said. We cannot go on hearing these arguments at great length.
DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should like in conclusion just to introduce one point of view which concerns the defense of the Reich Cabinet. The number of members of the Reich Cabinet is very limited. One half are in the defendants' dock. Is it really necessary to consider the other half cumulatively as an organization, since the small number of those concerned makes possible an individual trial, with all the legal guarantees given therein? To this extent I should like to refer to the remarks made by my colleague, Dr. Laternser, who mentioned the provision of the Charter that the Tribunal is not compelled to reach a decision but that for reasons of expediency it can refrain from doing so.
THE PRESIDENT: Mr. Biddle wants to ask you some questions
THE TRIBUNAL (Mr. Biddle): I have just one question. Will you listen to this very carefully?
If the Tribunal find that an organization was being used for a criminal purpose, and certainly, with respect to some organizations' there is ample evidence that might justify such a finding, why, then, would the Tribunal not be justified in holding that organization as a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.
482
2 March 46
DR. KUBUSCHOK: The organization cannot be separated from the total number of its members. The declaration of criminality in connection with Law Number 10 is to affect each individual member. The task of the Tribunal would not be fulfilled if it limited that task and excluded from the organization unspecified individuals. In the task which I have mentioned we cannot overlook the practical purpose, and that will not be guaranteed if such a limitation is made.
THE TRIBUNAL (Mr. Biddle): I will ask just one more question. I do not think you have answered my question. I will put it very simply again.
How would that definition be unfair to any individual?
DR. KUBUSCHOK: If only a limited circle of persons in connection with the organization is branded as criminal, this necessarily results in an injustice to the other members of the organization. The declaration naturally affects the name of the entire organization, and, therefore, the declaration of criminality affects each individual member, even if one tries to limit the definition.
THE TRIBUNAL (Mr. Biddle): Thank you.
THE PRESIDENT: I think in view of the time we had better adjourn for 10 minutes.
[A recess was taken.]
DR. LATERNSER: Mr. President, it was not my intention to make statements today about the concept of the criminal organizations, because I believe that my statements of yesterday on this point were comprehensive. I should merely like to state briefly my attitude to the second question put by Mr. Biddle to my colleague, Kubuschok.
The second question, if I understood it correctly, was as follows: Why is it unfair to the individuals who were members of an organization, or why can it be unfair to them, if this organization is declared criminal? This declaration of the criminality of an organization is certainly unfair to all those members who had no knowledge of any supposedly criminal purpose and aims. For in this question one has to...
THE TRIBUNAL (Mr. Biddle): You misunderstood the question, I think; so, to save time -- the question was a very simple one. I do not want to go into it unless you want to. I will repeat it again. I said this: If an organization was being used for criminal purposes -- and I added that there was very great evidence that such was the case in certain instances -- why would it not be proper to hold it
483
2 March 46
a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained. members? Of course, that would exclude from the organization everybody who did not have knowledge that it was engaged in criminal purposes.
DR. LATER1NSER: Then I did not understand the question quite correctly, and further statements in regard to these questions, which have now been settled, are unnecessary.
DR. LOFFLER: I should like first of all to correct a misunderstanding. Sir David stated yesterday in his reply that I had admitted that the SA had participated in the 10th and 11th of November 1938. I emphasize expressly that I stated that only 2 percent of the SA at the most were involved in individual actions, and that obviously applies to this event as well. This example occasions me to underscore what my colleague, Servatius, has previously stated about taking into consideration the so-called mistake of an organization, in a case where an organization deviates from its path and commits an error -- which should be avoided. The 98 percent who did not participate, as well as the 2 percent who did participate there, with few exceptions, all regarded this action with aversion and disgust and were not inwardly in agreement with it.
It is therefore an error on the part of the Indictment if on the basis of this single event, on the basis of this exceptional case, general conclusions are drawn as to the general character of the organization. For it is rightfully protested that the very rejection of this action is a proof that this is an exception to the general tendency of the organization.
If, then, it is asserted as a second point that the SA visas also concerned with concentration camps, that is also a further typical proof of the false conclusion to which one can come in the case of Judgment against the organizations. Of 4 millions there were 1,000 men at the most, that is, only 0.5 percent. The remaining 3,999,000 had no knowledge of this, and this can be proved. No one will wish to claim that the fact that 0.5 percent were involved in something about which the others knew nothing at all allows a conclusion to be drawn as to the question of criminal character. But this small percentage, as such, is not an answer to the question which is being raised at this point. Rather we are, as before, of the opinion that the explanation which divas made by attorney Kubuschok absolutely covers the criminal character as formulated by the Defense, if the basic conditions are met, as set down by attorney Kubuschok in agreement with all defense counsel for the organizations. On the basis of this formulation, that question which Justice Biddle previously put to counsel for the various organizations can readily be answered.
484
2 March 46
I should like to emphasize that yesterday Mr. Justice Jackson made the suggestion that, instead of having countless witnesses, experts be heard on the subject of what willful intent can be assumed in the case of the single organizations. I should like to oppose this emphatically. One cannot hear any witness or any expert who can tell the Court what, so to speak, that "common sense" was on the basis of which the question is to be judged -- what knowledge the single members had.
The members, as far as intelligence is concerned, vary greatly. There are those of average intelligence and there are less intelligent members of the organizations. If a judgment is to be passed here which also affects less intelligent members of the organizations and condemns them, then it is a basic principle of law that this should not be done on the basis of what the intelligent members of the organizations might and could have known; that would be an injustice to the average persons and the less intelligent. Not even the average persons can be taken as a basis, since this would be an injustice to the still less intelligent, who would be included in and affected by this judgment.
In conclusion I should like to point out that yesterday's debate on the question of the effect of the judgment which this Court is to pass confirmed in full measure the fears of the Defense Counsel. Mr. Justice Jackson declared that this judgment would have the character of a declaration. This is not compatible with the statement which Lieutenant General Clay, the Deputy Military Governor of the American occupied zone, made yesterday in an interview for the Neue Zeitung, the American paper for the German population. I should like to quote a sentence from the latest issue which refutes Justice Jackson's opinion. Lieutenant General Clay declares in regard to the question of the fate of these interned in the United States zone of occupation:
"The decision of the Nuremberg Tribunal will decide what will happen to them. Their number is at present 280,000 to 300,000. Should the International Tribunal at Nuremberg, however, consider all the members of the indicted National Socialist organizations war criminals, then the number will be increased to 500,000 or 600,000."
The declaration made by Justice Jackson yesterday that no mass retribution is intended could be made only in reference to the present standpoint of his Government. But there is no guarantee that other governments will not take another stand or that his Government, which is not bound to Justice Jackson's opinion, will not alter its stand.
I should like to conclude with this remark: Justice Jackson mentioned the shock which the combination of the Charter and decision
485
2 March 46
desired by the Prosecution -- in connection with Law Number 10 -- has been to the Defense. I believe that the effect of this shock is not confined to the Defense alone but affects all people who are interested in justice, for if the combination of these various laws gives the national courts the opportunity to call millions of members of organizations to account -- among whom, as Justice Jackson also could not deny yesterday, there are innocent people -- and if punishments for mere membership ranging from a fine to the death sentence are provided, then it is the duty of the Defense to point out that the procedure here obviously threatens to deviate from the basis of law and will necessarily lead to arbitrary action.
If Justice Jackson then in answer to this refers to the effect of shock in connection with the death of many Jews, one can say that those things happened outside the law and in the name of force. This Charter and this Tribunal, however, want to do away with force and put justice in its place. But justice must be clear and it must be sure.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desire their time to be occupied by my so doing.
THE PRESIDENT: I don't think the Tribunal wish to hear any further arguments unless you particularly want to answer anything.
SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions to me on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution are not prepared to answer the questions.
THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.
SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Fuehrerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that, in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Fuehrerprinzip they entrusted their consciences and wills to him and adopted completely his points of view.
In order that Dr. Dix may be under no misapprehension with regard to his client, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in conversation with Dr. Schacht:
"I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Fuehrer's position entirely."
486
2 March 46
The second point was on the question of the Party program in relation to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the alms 'of the Party program in a peaceful way. The Prosecution say that does not arise, that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western Powers and also of treaty obligation to Austria and Czechoslovakia.
The third question that was put to me was by Dr. Servatius, about the Leadership Corps. You will remember, My Lord, that in the statement of the Tribunal the Prosecution were asked, if' they revere making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made -- that is, only including the staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter -- is the view to which the Prosecution adhere and which has been agreed upon by the different delegations. I wanted Dr. Servatius to know that that was the position. I don't intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.
THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also of certain judgments of the German court if you have copies available.
SIR DAVID MAXWELL BYTE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.
THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which you wish to put in with reference to the High Command?
MR. DODD: Yes, we do have it. We located this affidavit on Thursday; the Tribunal had inquired about it on the afternoon of the day before -- on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix B. The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit, as we intended to submit it this morning to the Tribunal; and the affidavit describes the source from which this information was obtained and
487
2 March 46
it points out that the list does not purport to be exhaustive or necessarily correct in every detail. It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit, as Exhibit Number IJSA-778 (Document Number 3739-PS). I ask that it be accepted without reading. However, of course, if the Tribunal would like it read over the public address system, I should be glad to do so.
THE PRESIDENT: No, I do not think you need read it over. Copies have been given to the Defense?
MR. DODD: Yes, they have, Your Honor. They have been given to the Defense.
THE PRESIDENT: Very well. Thank you.
MR. DODD: Colonel Smirnov, if Your Honor pleases, is prepared to read the document with reference to Stalag Luft III. If the Tribunal would like, we will have him do so.
THE PRESIDENT: I think that might perhaps be done on Monday morning.
MR. DODD: Very well.
THE PRESIDENT: The Tribunal will now adjourn.
[The Tribunal adjourned until 4 March 1946 at 1000 hours.]
488